Arizona Employers’ Council, Inc.

Trademark Trial and Appeal Board

Apr 6, 2010

No. 77453189 (T.T.A.B. Apr. 6, 2010)

Mailed:
April 6, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Arizona Employers’ Council, Inc.
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Serial No. 77453189
_______

Laura J. Zeman of Snell & Wilmer LLP, for Arizona Employers’
Council, Inc.

Steven W. Jackson, Trademark Examining Attorney, Law Office 107
(J. Leslie Bishop, Managing Attorney).
_______

Before Quinn, Mermelstein, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Arizona Employers’ Council, Inc. (“applicant”) filed an
application to register the mark AECJOBSTORE,1 for services
identified as “providing on-line job placement services, namely,
testing to determine job competency and resume matching services
via a global computer network; organizing and conducting job
fairs.” The Trademark Examining Attorney refused registration
of applicant’s mark under Section 2(d) of the Trademark Act of

1 Serial No. 77453189, in International Class 35, filed April 21, 2008,
pursuant to Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a),
alleging dates of first use and first in commerce on November 30,
2007.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77453189
2
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the registered mark JOB STORE,2 in typed drawing
format, for “employment job placement services,” that when used
on or in connection with applicant’s identified services, it is
likely to cause confusion or mistake or to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs. For the reasons discussed herein, the Board affirms the
refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in

2 Registration No. 1213413, in International Class 35, issued July 27,
1982, based on first use and first use in commerce on August 27, 1980,
and disclaiming the exclusive right to use “JOB” apart from the mark
as shown. Sections 8 and 15 affidavits acknowledged and accepted.
Renewed.
Serial No. 77453189
3
the marks”). We discuss each of the du Pont factors as to which
applicant or the examining attorney submitted argument or
evidence.
The Services

The cited registration identifies “job placement services”
while the application identifies a narrower field of “on-line
job placement services.” Nonetheless, applicant’s services are
encompassed within the broad scope of “job placement services”
identified in the cited registration. Hence, applicant’s
services are legally identical to those in the cited
registration.
To further demonstrate this point, the examining attorney
submitted numerous use-based, third-party registrations
identifying some of the particular types of “job placement”
services offered by applicant (such as “organizing and
conducting job fairs”) alongside the general “job placement”
services offered by registrant. Copies of use-based, third-
party registrations may serve to suggest that the services are
of a type which may emanate from a single source. See In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
Because applicant’s services are legally identical to those
in the cited registration, we find that this du Pont factor
strongly favors finding a likelihood of confusion.

The Channels of Trade and Consumer Sophistication

Serial No. 77453189
4
In the absence of specific limitations in the registration,
we must presume that registrant’s services will travel in all
normal and usual channels of trade and methods of distribution.
Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983); see also In re Linkvest S.A., 24 USPQ2d 1716,
1716 (TTAB 1992) (because there are no limitations as to
channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
services in the registration and the application move in all
channels of trade normal for those services, and that the
services are available to all classes of purchasers for the
listed services). In other words, there is nothing that
prevents the registrant from offering its various “job placement
services” through the same channels, and to the same customers,
as those who purchase applicant’s “on-line job placement
services.” To that end, the cited registration is not limited
in scope to particular channels of trade, and registrant may
offer its job placement services “on-line” as well.
Applicant argues that its customers are sophisticated,
stating in its brief: “In purchasing these types of services,
customers must typically sign up and enter extensive information
in addition to paying for significant service fees.” (Appl’s
Brief at 4). However, there is no evidence of record that would
dissuade us from believing that the services identified in
Serial No. 77453189
5
either the application or the cited registration would be
subject to inexpensive, or even free (perhaps advertiser-
sponsored) impulse purchases. See Octocom Systems, Inc. v.
Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods set forth in
the application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the sales
of goods are directed.” (citations omitted)). Furthermore, we
note that even sophisticated consumers are not immune from
source confusion. See In re Wilson, 57 USPQ2d 1863, 1865-66
(TTAB 2001) (where marks are very similar and goods related,
confusion may be likely even among sophisticated purchasers); In
re Decombe, 9 USPQ2d 1812, 1814-1815 (TTAB 1988) (“Being
knowledgeable and/or sophisticated in a particular field does
not necessarily endow one with knowledge and sophistication in
connection with the use of trademarks.”).
Accordingly, we find that these du Pont factors weigh in
favor of finding a likelihood of confusion.
The Marks
Preliminarily, we note that the more similar the services
at issue, the less similar the marks need to be for the Board to
Serial No. 77453189
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find a likelihood of confusion. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992). We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression
of the marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The mark in the cited registration consists of the words
“JOB STORE.” Applicant’s mark fully incorporates those words
and adds what appears to be its house mark, the initials “AEC.”
The addition of applicant’s house mark does not change the
connotation of its mark, which still references a “JOB STORE.”
Serial No. 77453189
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Accordingly, the connotation of applicant’s mark in its entirety
is the same as that of the mark in the cited registration, and
the addition of applicant’s house mark does not render the marks
less confusingly similar. See In re Sarkli, Ltd., 721 F.2d 353,
220 USPQ 111, 113 (Fed. Cir. 1983) (“the PTO may reject an
application ex parte solely because of similarity in meaning of
the mark sought to be registered with a previously registered
mark”); In re Christian Dior, S.A., 225 USPQ 533, 534 (TTAB
1985) (applicant’s LA CACHET DIOR held confusingly similar to
CACHET); In re the United States Shoe Corp., 229 USPQ 707, 709
(TTAB 1985) (CAREER IMAGE for retail women’s clothing store
services likely to cause confusion with CREST CAREER IMAGE for
clothing).
Applicant argues that the mark in the cited registration is
weak. To support this argument, applicant points to three
domain names that include the term “job store” (ejobstore.com;
healthcarejobstore.com; and radiologyjobstore.com).
Incorporation of the term “job store” in a few domain names is
hardly evidence that the mark is the cited registration is weak
however. Furthermore, even a weak mark is entitled to
protection against registration of confusingly similar marks.
See Giant Food Inc. v. Roos and Mastacco, Inc., 218 USPQ 521
(TTAB 1982).
In sum, we find this du Pont factor to also favor finding a
likelihood of confusion.

Serial No. 77453189
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Conclusion
In summary we have carefully considered all of the evidence
and arguments of record relevant to the du Pont likelihood of
confusion factors. We conclude that with legally identical
services moving in the same or similar channels of trade, and
similar marks with similar connotations, there is a likelihood
of confusion between applicant’s AECJOBSTORE mark for “providing
on-line job placement services, namely, testing to determine job
competency and resume matching services via a global computer
network; organizing and conducting job fairs” and the registered
mark JOB STORE for “employment job placement services.”

Decision: The refusal to register is affirmed.