Aviation Technology Group, Inc.

Trademark Trial and Appeal Board

Jul 14, 2004

No. 78193396 (T.T.A.B. Jul. 14, 2004)

Mailed: July 14, 2004
Paper No. 10
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Aviation Technology Group, Inc.
________
Serial No. 78193396
_______
Robert B. Schultz, V.P. General Counsel, for Aviation Technology
Group, Inc.
Christopher S. Adkins, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______
Before Simms, Hohein and Bucher, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
Aviation Technology Group, Inc. has filed an amended
application to register on the Principal Register the mark "ATG
AVIATION TECHNOLOGY GROUP, INC. PERFORMANCE AT A HIGHER LEVEL"
and design, as reproduced below,
for the following goods and services: "simulators for training
pilots" in International Class 9; "aircraft; jet aircraft,
military manned and unmanned combat aircraft, civilian and
military jet trainers and business and recreational jets" in
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78193396
2
International Class 12; and "educational services, namely,
aircraft pilot training services."1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods in International
Class 12,2 so resembles the following marks, which are each
registered for, inter alia,3 "aircraft; lighter-than-air craft;
airships; dirigible balloons, aerial transportation vehicles, and
structural parts and fittings for all the aforesaid goods" and
are owned by the same registrant, as to be likely to cause
confusion, mistake or deception: (i) the mark "ATG"4 and, as
illustrated below,
1 Ser. No. 78193396, filed on December 11, 2002, which is based on an
allegation of a date of first use anywhere and in commerce of December
5, 2002 with respect to all of the goods and services set forth above.
The words "AVIATION TECHNOLOGY GROUP, INC." are disclaimed.
2 While, as noted above, applicant's application, as amended, also
includes goods and services in International Classes 9 and 41, it is
clear from both the Examining Attorney's final refusal and his brief
that the refusal under Section 2(d) pertains solely to the goods set
forth in International Class 12 of such application.
3 Although each of the cited registrations also lists "geostationary
aerial platforms for telecommunication relays; and parts and fittings
therefor" in International Class 9, it is plain from both the
Examining Attorney's final refusal and his brief that the refusal
under Section 2(d) is based exclusively on the goods identified in
International Class 12 of each of such registrations.
4 Reg. No. 2,666,514, issued on December 24, 2002, which is based on
United Kingdom Reg. No. 2237166, dated June 23, 2000.
Ser. No. 78193396
3
(ii) the mark "ATG" and design.5 Registration has also been
finally refused pursuant to Trademark Rule 2.71(a) and TMEP
Sections 1402.06 and 1402.07 (3d ed. 2d rev. May 2003) on the
basis that the amended identification of goods and services
currently set forth is unacceptable because it is beyond the
scope of the application as originally filed, which specified
only "aircraft" in International Class 12.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusals to
register.
We turn first to the refusal under Section 2(d)
inasmuch as it is the sole issue which applicant has addressed in
its briefs. Our determination under such section is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity or
dissimilarity in the goods at issue and the similarity or
dissimilarity of the respective marks in their entireties.6
5 Reg. No. 2,666,515, issued on December 24, 2002, which is based on
United Kingdom Reg. No. 2237171, dated November 2, 2001.
6 The court, in particular, pointed out that: "The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods and differences in the marks."
192 USPQ at 29.
Ser. No. 78193396
4
With respect to the similarity or dissimilarity in the
goods at issue, applicant argues at length in both its main brief
and its reply brief that there is no likelihood of confusion
because its goods are in fact very different from those actually
offered by registrant. Specifically, applicant insists in its
main brief that:
Herein, the registrant identified its goods
as "lighter-than-air craft, airships,
dirigible balloons and geostationary aerial
platforms." By contrast, the applicant's
description is "jet aircraft, military manned
and unmanned combat aircraft, civilian and
military jet trainers and ... business and
recreational jets." Thus[,] far from being
"absolutely identical," [as asserted by the
Examining Attorney, in actuality] applicant's
and registrant's goods bear no similarity
whatsoever.
Applicant additionally maintains in its main brief that it "is
currently developing a very high performance two-seat two-engine
fighter-like jet aircraft for both civilian and military
customers," whereas "[r]egistrant's product is a blimp." Such
goods, according to applicant's reply brief, are simply so
different that "[i]t is truly a misnomer to call both products
aircraft."
Furthermore, as asserted in its main brief, applicant
notes that while "blimps and dirigibles (rigid frame blimps) were
[historically] used for military purposes and transportation,"
the "primary use of blimps today is for marketing" and, thus,
such goods are sold only "to large corporate buyers." However,
according to applicant, it is also the case that:
Such corporations do not buy small high
performance two seat jets. Applicant's jets,
by contrast[,] are sold as sport or business
Ser. No. 78193396
5
aircraft to individuals or small companies by
distributors or directly by the applicant to
government buyers as military aircraft.
These customers and trade channels are
entirely separate and apart from one another.
More importantly, the consumers of
blimps and jet aircraft are the most
sophisticated groups of buyers in the world
and would not be confused about the source of
the goods, regardless of the trademark
similarities. Applicants' [sic] products
range in price from $2.5 million to $4.5
million. Its customers are high net worth
individuals, large corporations and
governments. Similarly, blimps cost millions
of dollars each and are purchased only by
large corporations and governments. All of
these groups are very sophisticated buyers
who do not spend millions of dollars on
impulse. Such purchases are made only after
considerable due diligence.
Nonetheless, it is well settled that the issue of
likelihood of confusion must be determined on the basis of the
goods as they are respectively identified in the application and
the cited registration, and not in light of what such goods are
asserted to actually be. See, e.g., Octocom Systems Inc. v.
Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990); Canadian Imperial Bank of Commerce, N.A.
v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed.
Cir. 1987); CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199
(Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ
937, 940 (Fed. Cir. 1983); and Paula Payne Products Co. v.
Johnson Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973). It is also well established that a refusal under Section
2(d) is proper if there is a likelihood of confusion involving
any of the goods set forth in the application and the cited
registration, and that, where a likelihood of confusion is so
Ser. No. 78193396
6
found, it is unnecessary to rule with respect to any of the other
goods listed therein. See, e.g., Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981); and Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 137
USPQ 881, 883 (CCPA 1963).
We consequently must agree with the Examining Attorney
that, as identified, applicant's and registrant's goods are
identical in part in legal contemplation inasmuch as both include
the item "aircraft" among the goods which are respectively listed
in the application and the cited registration.7 Applicant, as
the Examining Attorney notes, has simply ignored such fact in its
attempt to distinguish its goods from those of the registrant.
The Examining Attorney is correct, however, in pointing out that
because both the identification of goods in applicant's
application and that of registrant's registration each list
"aircraft" as separate products, such goods are considered to be
"absolutely identical" and would accordingly be sold or leased
through the same normal or usual channels of trade for those
goods and would be directed to the same classes of customers.
Therefore, if applicant's and registrant's "aircraft" were to be
7 We judicially notice, in this regard, that the term "aircraft" is
defined, for example, by The American Heritage Dictionary of the
English Language (4th ed. 2000) at 37 as "[a] machine or device, such
as an airplane, helicopter, or dirigible, that is capable of
atmospheric flight." It is well settled that the Board may properly
take judicial notice of dictionary definitions. See, e.g., Hancock v.
American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ 330,
332 (CCPA 1953); University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983); and Marcal Paper Mills, Inc. v.
American Can Co., 212 USPQ 852, 860 (TTAB 1981) at n. 7. Thus it is
not "truly a misnomer," as applicant argues, to refer for instance to
both its "recreational jets" and registrant's "airships" as
"aircraft."
Ser. No. 78193396
7
marketed under the same or substantially similar marks, confusion
as to the source or sponsorship thereof would be likely to occur.
Moreover, while it is still the case that both
applicant's and registrant's "aircraft" are undoubtedly expensive
products which would be marketed to highly sophisticated
customers and would not be purchased or leased on impulse, we
concur with the Examining Attorney that such facts do not
preclude there being a likelihood of confusion as to origin or
affiliation. Specifically, even allowing for the fact that
"aircraft" are usually contracted for only after very careful
consideration, it nevertheless is well settled that the fact that
customers may exercise deliberation in choosing such products
"does not necessarily preclude their mistaking one trademark for
another" or that they otherwise are entirely immune from
confusion as to source or sponsorship. Wincharger Corp. v.
Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA 1962). See
also In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988); and In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983). Here, it
is plain that, if applicant's and registrant's "aircraft" were to
be marketed under the same or substantially similar marks, even
knowledgeable and sophisticated customers could be expected to
attribute a common source thereto notwithstanding the high degree
of care and deliberation typically exercised in the contracting
for such goods. For instance, purchasers who are familiar or
acquainted with certain aircraft marketed by registrant could
reasonably believe, upon encountering applicant's jet aircraft or
Ser. No. 78193396
8
its business and recreational jets, that either registrant had
expanded its product line or that applicant is a subsidiary of
registrant.
Turning, then, to consideration of the respective
marks, applicant argues in its main brief that, contrary to the
Examining Attorney's contention that they consist of or "contain
the dominant and identifying literal term 'ATG,'" such "text
elements are too commonly used to be distinctive or dominant."
Relying on a declaration which it submitted from "Raymond Cassel
('Cassel'), a graphics design expert who designed Applicant's
mark," applicant contends with respect to its mark and
registrant's "ATG" and design mark that, "according to Cassel,
the style of the two ATGs is significantly different" inasmuch as
"registrant's ATG is short, fat and upright while that of the
applicant is tall and slanted," with "a jet contrail [which]
forms the 'A's' crossbar." Applicant, in addition, insists that
as to such marks:
The dominant feature of the registered
mark is the uplifting ellipse above the
letters. Clearly, registrant intended the
ellipse to represent an airship (blimp).
By contrast, the dominant feature of
applicant's mark ... is the text "Aviation
Technology Group, Inc." and "Performance at a
Higher Level" which Cassel added to
distinguish it from all the other "ATG"
marks, which are quite common. In addition,
the applicant's mark incorporates a jet and
contrail, which are intended to represent
that its business is speed.
The ATG in registrant's mark is
secondary, at best. The dominant feature of
applicant's mark, on the other hand, is a jet
contrail, also representative of the
applicant's products, jet aircraft. It is
Ser. No. 78193396
9
meant to show, along with the motto
"Performance at a Higher Level", that
Aviation Technology Group's business is
speed.
Applicant concludes, as set forth in its reply brief,
that in view of the expert testimony by Mr. Cassel, who "is a
graphic[s] designer with ten years experience" and whose
"testimony under oath is uncontroverted," the Board "must find
that the Applicant's trademark is distinctively different than
that of the Registrant" and that there is consequently no
likelihood of confusion between applicant's mark and registrant's
"ATG" and design mark. Applicant, however, has essentially
ignored registrant's "ATG" mark and the issue of likelihood of
confusion with respect thereto, inasmuch as it has offered no
argument with respect to the similarities and dissimilarities
between such marks other than the generalized assertion that
"[t]he Examining Attorney incorrectly dissected the marks piece
by piece" instead of considering the marks in their entireties.
We agree with the Examining Attorney that, on the
whole, the marks at issue are so substantially similar that, when
used in connection with such legally identical goods as
"aircraft," confusion as to the source or sponsorship thereof is
likely.8 As the Examining Attorney properly points out in his
8 As to the "expert testimony" offered in Mr. Cassel's declaration with
respect to the distinguishing features of applicant's mark and
registrant's "ATG" and design mark, suffice it to say that it is well
established that the opinions expressed by a witness (whether that of
a layperson or an expert) on such an issue are not controlling or
binding on the Board. See, e.g., Jones & Laughlin Steel Corp. v.
Jones Engineering Co., 292 F.2d 294, 130 USPQ 99, 100 (CCPA 1961); and
Quaker Oats Co. v. St. Joe Processing Co., Inc., 232 F.2d 653, 109
USPQ 390, 391 (CCPA 1956). In particular, the Board has stated that
it is "the long-held view that the opinions of witnesses ... are
Ser. No. 78193396
10
brief, the test for whether marks are confusingly similar is not
whether they can be distinguished on the basis of a side-by-side
comparison. The reason therefor is that such is not the ordinary
way that customers will be exposed to the marks. Instead, it is
the similarity of the general overall commercial impression
engendered by the marks which must determine, due to the
fallibility of memory and the concomitant lack of perfect recall,
whether confusion as to source or sponsorship is likely. The
proper emphasis is accordingly on the fact that purchasers
normally retain a general rather than a specific impression of
marks. See, e.g., Grandpa Pidgeon's of Missouri, Inc. v.
Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973);
Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733 (TTAB 1981);
and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
Moreover, while correctly noting in his brief that
marks are to be considered in their entireties, including any
design elements and/or any highly suggestive or descriptive
matter, the Examining Attorney also properly observes that our
principal reviewing court has indicated that, in articulating
reasons for reaching a conclusion on the issue of likelihood of
confusion, "there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided [that] the ultimate
entitled to little if any weight and should not be substituted for the
opinion of the tribunal charged with the responsibility for the
ultimate opinion on the question" of likelihood of confusion. Mennon
Co. v. Yamanouchi Pharmaceutical Co., Ltd., 203 USPQ 302, 305 (TTAB
1979).
Ser. No. 78193396
11
conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, according to the court,
"that a particular feature is descriptive ... with respect to the
involved goods ... is one commonly accepted rationale for giving
less weight to a portion of a mark ...." Id.
Applying the above principles, it is readily apparent
that the arbitrary term "ATG," which constitutes the entirety of
one of registrant's marks, forms a very prominent, if not the
dominant, portion of both applicant's "ATG AVIATION TECHNOLOGY
GROUP, INC. PERFORMANCE AT A HIGHER LEVEL" and design mark as
well as registrant's "ATG" and design mark. In particular, as
the Examining Attorney accurately notes in his brief, the term
"ATG" in applicant's mark "is written in significantly larger,
bolded lettering," so that it stands out from the other features
of the mark just as the bold style of lettering in registrant's
"ATG" and design mark serves to display such term prominently.
Moreover, as to registrant's "ATG" mark, the Examining Attorney
correctly observes that because such mark is registered in typed
format, it covers the display thereof in any reasonable
stylization of lettering, including that utilized by applicant in
its mark for the same term. See, e.g., Phillips Petroleum Co. v.
C. J. Webb, Inc. 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971) [a
mark registered in typed format is not limited to the depiction
thereof in any special form]; and INB National Bank v. Metrohost
Inc., 22 USPQ2d 1585, 1588 (TTAB 1992) ["[a]s the Phillips
Ser. No. 78193396
12
Petroleum case makes clear, when [an] applicant seeks a typed or
block letter registration of its word mark, then the Board must
consider all reasonable manners in which ... [the word mark]
could be depicted"].
Furthermore, the additional words "AVIATION TECHNOLOGY
GROUP, INC.," although forming a prominent part of applicant's
mark, are descriptive of or otherwise lacking in distinctiveness
with respect to applicant's goods, as evidenced by the disclaimer
thereof (as well as their dictionary definitions which the
Examining Attorney has made of record from The American Heritage
Dictionary of the English Language (3d ed. 1992), and thus are of
considerably less source indicating significance than is the
arbitrary term "ATG," which is shared with registrant's marks
"ATG" and "ATG" and design. In addition, the phrase "PERFORMANCE
AT A HIGHER LEVEL," while suggestive rather than descriptive of
applicant's goods, is nonetheless clearly subordinate matter
inasmuch as it appears beneath the term "ATG" in applicant's mark
in a significantly smaller size, and a much less noticeable
style, of lettering. Consequently, as indicated above, it is the
arbitrary term "ATG" which forms a highly, if not the most
prominent and hence dominant, portion of applicant's "ATG
AVIATION TECHNOLOGY GROUP, INC. PERFORMANCE AT A HIGHER LEVEL"
and design mark.
Moreover, as the Examining Attorney and applicant have
also observed, applicant's mark and registrant's "ATG" and design
mark each contain a prominent design feature which the Examining
Attorney refers to as "a swerved band/line" in reference to
Ser. No. 78193396
13
applicant's mark and which applicant calls an "uplifting ellipse"
in discussing registrant's "ATG" and design mark. Regardless of
the characterization thereof, such feature is substantially
identical in appearance in both marks and serves to increase
their overall similarity. While applicant, as noted earlier,
maintains in the declaration from Mr. Cassel that marks which
contain the term "ATG" are too commonly used to be distinctive
enough to merit a broad scope of protection, applicant has
offered only a few examples of such third-party marks and none of
those provides an indication of the goods and/or services in
connection with such marks are assertedly used. Thus, as the
Examining Attorney points out in his brief, on this record "the
terminology ATG is not diluted" inasmuch as "the only 3 marks
which reference ATG in relation to aircraft goods/services are
the applicant's mark and registrant's marks."
We therefore conclude that, when considered in their
entireties, the marks at issue herein are so substantially
similar in sound, appearance, connotation and commercial
impression that customers for "aircraft," who are familiar or
otherwise acquainted with registrant's marks "ATG" and "ATG" and
design, could reasonably believe, upon encountering applicant's
mark "ATG AVIATION TECHNOLOGY GROUP, INC. PERFROMANCE AT A HIGHER
LEVEL" and design used in connection with "aircraft," that such
goods emanate from or are sponsored by or affiliated with, the
same source. In particular, even assuming that the knowledgeable
and sophisticated consumers who would purchase or lease
applicant's and registrant's "aircraft" would have occasion to
Ser. No. 78193396
14
notice the differences in the respective marks, it is still the
case that such differences are insufficient to preclude, for
example, a likelihood of confusion among consumers in the sense
of their believing, upon encountering aircraft manufactured by
applicant, that either registrant had expanded its offering of
aircraft or that applicant is a specialized subsidiary of
registrant. Nevertheless, while we have no doubt as to our
conclusion in this regard, if we were to entertain any possible
doubt as to whether confusion is likely to occur, such doubt
would have to be resolved in favor of the registrant. See, e.g.,
In re Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025,
1026 (Fed. Cir. 1988); In re Martin's Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); and In re
Pneumatiques Caoutchouc Manufacture et Plastiques Kelber-
Columbes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973).
Considering next the remaining basis for refusal,
Trademark Rule 2.71(a) provides that "[t]he applicant may amend
the application to clarify or limit, but not to broaden, the
identification of goods and/or services." As set forth in TMEP
Section 1402.06 (3d ed. 2d rev. May 2003), "[t]his rule applies
to all applications." The rule, moreover, has been strictly
interpreted. See, e.g., In re Swen Sonic Corp., 21 USPQ2d 1794,
1795 (TTAB 1991); and In re M. V Et Associes, 21 USPQ2d 1629,
1630 (Comm'r Pats. 1991). TMEP Section 1402.07(a) (3d ed. 2d
rev. May 2003) states, furthermore, that "[f]or the purpose of
determining the scope of an identification, the examining
Ser. No. 78193396
15
attorney should consider the ordinary meaning of the wording
apart from the class designation."
In addition, as more particularly indicated in TMEP
Section 1402.06(a) (3d ed. 2d rev. May 2003):
If an applicant wishes to amend the
identification of goods and services to
insert an item that is equivalent to or
logically encompassed by an item already
included in the identification of goods and
services, the examining attorney should
permit the amendment, if it is timely and
otherwise proper.
On the other hand, an applicant may not
amend an identification of goods or services
to add or substitute a term that is not
logically included within the scope of the
terms originally identified or that is
otherwise qualitatively different from the
goods and services as originally identified.
....
The scope of the goods and services, as
originally identified or as amended by an
express amendment, establishes the outer
limit for any later amendments. See TMEP
§1402.07.
However, as further set forth in TMEP Section 1402.07(c) (3d ed.
2d rev. May 2003) (italics in original):
An applicant may amend an unambiguous
identification of goods that indicates a
specific type of goods to specify definite
and acceptable identifications of goods
within the scope of the existing terminology.
....
An applicant may not amend a definite
identification of goods to specify services,
or vice versa. ....
As previously mentioned, the application when filed
sought registration of applicant's mark in connection with goods
identified as "aircraft" in International Class 12. The
Ser. No. 78193396
16
Examining Attorney, in view thereof, argues in his brief that
under Trademark Rule 2.71(a) and the pertinent sections of the
Trademark Manual of Examining Procedure, "the applicant may not
amend [the application] to include any goods or services that are
not within the scope of the goods or services set forth in the
present identification," that is, the definite identification of
goods set forth in the application when originally filed.
Specifically, the Examining Attorney contends in his
brief that:
[B]ecause "aircraft" is a relatively
broad term, the applicant is conceivably
permitted to specify in greater detail its
exact aircraft types. As such, the amended
identification portions of "aircraft; jet
aircraft, military manned and unmanned combat
aircraft and business and recreational jets"
are construed to be permissible (as providing
greater specificity regarding the originally
listed "aircraft." However, ... the listed
"simulators for training pilots" in
International Class 9, "civilian and military
jet trainers" in International Class 12 and
"educational services, namely, aircraft pilot
training services" in International Class 41
constitute an unacceptable expansion of the
original identification, as these are not
"aircrafts."
Applicant, we note, has not addressed this basis for refusal in
either of its briefs.9
We concur with the Examining Attorney that applicant's
present multiple class identification of goods is unacceptable
9 It is pointed out that the failure by an applicant to address a basis
for a refusal or a requirement on appeal may itself be a sufficient
reason to affirm such a refusal or requirement, irrespective of any
other ground or grounds for refusing registration. See, e.g., In re
DTI Partnership LLP, 67 USPQ2d 1699, 1701-02 (TTAB 2003); In re Ridge
Tahoe, 221 USPQ 839, 840 (TTAB 1983); and In re Big Daddy's Lounges
Inc., 200 USPQ 371, 372 (TTAB 1978).
Ser. No. 78193396
17
inasmuch as it is plain that "simulators for training pilots" in
International Class 9 and "educational services, namely, aircraft
pilot training services" are outside the scope of the term
"aircraft," which was the sole item listed when the application
was originally filed in International Class 12. Accordingly, and
notwithstanding that we also find that, contrary to the Examining
Attorney's contention, the phrase "civilian and military jet
trainers" designates particular types of "aircraft" and thus is
an acceptable clarification or addition to the identification of
goods as originally set forth in International Class 12,10 the
amended identification of goods and services currently set forth
is unacceptable because, by including "simulators for training
pilots" in International Class 9 and "educational services,
namely, aircraft pilot training services," it is beyond the scope
of the application as originally filed.
Decision: The refusal under Section 2(d) as to the
goods in International Class 12 and the refusal pursuant to
Trademark Rule 2.71(a) and TMEP Sections 1402.06 and 1402.07 (3d
ed. 2d rev. May 2003) as to the goods in International Class 9
and the services in International Class 41 are affirmed.
10 For instance, we judicially notice in this regard that Webster's
Third New International Dictionary (1993) at 2424 defines "trainer" as
a noun meaning, inter alia, "f (1) : an airplane used in training
airmen; esp : one with duplicate controls used in training pilots,"
while The Random House Dictionary of the English Language (2d ed.
1987) likewise lists such term as signifying, among other things, "5.
an airplane ... used in training aircrew members, esp. pilots."