Anything Goes, Inc.

Trademark Trial and Appeal Board

Sep 14, 2005

No. 76530298re (T.T.A.B. Sep. 14, 2005)

Mailed: September 14, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Anything Goes, Inc.
________

Serial No. 76530298
_______

Request for Reconsideration
_______

Ezra Sutton of Ezra Sutton, P.A. for Anything Goes, Inc.

Michael Webster, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney).
_______

Before Hanak, Hairston and Chapman, Administrative
Trademark Judges.

Opinion by Chapman, Administrative Trademark Judge:
On February 8, 2005, the Board affirmed the Examining
Attorney’s refusal to register applicant’s mark shown below

for “mail order catalog services featuring jewelry and
online retail store services featuring jewelry” in
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser. No. 76530298
2
International Class 351 under Section 2(d) of the Trademark
Act, 15 U.S.C. §1052(d), in view of the registered mark
shown below

for “jewelry made of precious metals with or without
precious or semi-precious stones” in International Class
14.2
Applicant timely appealed the Board decision to the
Court of Appeals for the Federal Circuit (Appeal No. 05-
1350). On June 28, 2005, the Court granted a motion to
remand the case to the Board; and on July 7, 2005 (via
certificate of mailing), applicant filed a request for
reconsideration.
Applicant essentially contends that its mark and the
cited mark differ in appearance, sound, and commercial
impression. Specifically, applicant contends that the
cited mark consists of “a large and distinctive design in
the form of rectangular boxes inside a triangle, forming a
virtually pure and very distinctive design mark which is

1 Application Serial No. 76530298, filed July 7, 2003.
2 Registration No. 1771358, issued May 18, 1993, Section 8
affidavit accepted, renewed.
Ser. No. 76530298
3
distinguishable from Applicant’s mark” (request for
reconsideration, p. 3); that assuming the cited registered
mark is purely a design mark, it cannot be pronounced,
whereas applicant’s mark is clearly the letters “HT” and
would be so pronounced by consumers; that assuming
consumers would recognize that the cited mark includes the
letters “T” and “H,” those consumers would recognize the
letters as “TH” not “HT”; and that the USPTO has failed to
meet its burden to establish that there is a likelihood of
confusion between applicant’s mark and the cited registered
mark.
The Board has carefully reviewed applicant’s request
for reconsideration, and applicant has persuaded the Board
that the involved marks (shown above), when considered in
their entities, are more dissimilar than similar in
appearance, sound and commercial impression. For example,
the cited registrant’s mark might be viewed by some
consumers as purely a design, while other consumers may
recognize letters but see them as the letters “TH,” not
“HT.”
Thus, on this ex parte record, we hereby grant
applicant’s request for reconsideration, and the Board’s
February 8, 2005 order finding a likelihood of confusion
Ser. No. 76530298
4
and affirming the Examining Attorney’s refusal to register
is vacated.
The Examining Attorney’s refusal to register under
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), is
hereby reversed.