Caroline Furlong

Trademark Trial and Appeal Board

Feb 25, 2003

No. 78021895 (T.T.A.B. Feb. 25, 2003)

Mailed:
Feb. 25, 2003
Paper No. 13
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Caroline Furlong
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Serial No. 78/021,895
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John C. Cain of Howrey Simon Arnold & White, LLP for
Caroline Furlong.
Cheryl Clayton, Trademark Examining Attorney, Law Office
102 (Thomas V. Shaw, Managing Attorney).
_______
Before Simms, Seeherman and Bottorff, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant seeks registration of the mark RADIO ANGEL
(in typed form; RADIO disclaimed) for goods and services
identified in the application as “musical sound recordings;
series of pre-recorded audio cassettes, and laser discs,
all featuring music,” in Class 9; and “audio recording and
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78/021,895
2
production, record production; entertainment, namely live
performances by a musical band,” in Class 41.
The Trademark Examining Attorney has issued a final
refusal to register on the ground that applicant’s mark, as
applied to applicant’s goods and services, so resembles the
mark depicted below, previously registered1 for “musical
sound recordings and video recordings featuring music,” as
to be likely to cause confusion, to cause mistake, or to
deceive. See Trademark Act Section 2(d), 15 U.S.C.
§1052(d).
Applicant has appealed the final refusal. Applicant
and the Trademark Examining Attorney filed main appeal
briefs, but applicant did not file a reply brief and did
1 Registration No. 2,094,897, issued September 9, 1997. The
following statement appears in the registration: “The lining in
the drawing is a feature of the mark and is not intended to
indicate color.”
Ser. No. 78/021,895
3
not request an oral hearing. We affirm the refusal to
register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
likelihood of confusion factors set forth in In re E.I. du
Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In considering the evidence of record on these
factors, we keep in mind that “[t]he 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.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
We find that the goods and services identified in
applicant’s application and the goods identified in the
cited registration are legally identical in part (“musical
sound recordings”), and otherwise are sufficiently related
that confusion is likely to result if similar marks are
used on or in connection therewith. Moreover, in view of
the identical and/or closely related nature of the
respective goods and services, we find that those goods and
services move in the same or similar trade channels and are
sold to the same or similar classes of purchasers. Thus,
Ser. No. 78/021,895
4
the second and third du Pont factors weigh in favor of a
finding of likelihood of confusion. Applicant does not
contend otherwise.
We next must determine, under the first du Pont
factor, whether applicant’s mark and the cited registered
mark, when compared in their entireties in terms of
appearance, sound and connotation, are similar or
dissimilar in their overall commercial impressions. 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 that confusion as to the
source of the goods and/or services offered under the
respective marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of marks. See
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). Furthermore, although the marks at issue must be
considered in their entireties, it is well-settled that one
feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant
feature in determining the commercial impression created by
the mark. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985). Finally, where, as in the
Ser. No. 78/021,895
5
present case, the marks would appear on virtually identical
goods, the degree of similarity between the marks which is
necessary to support a finding of likely confusion
declines. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ 1698 (Fed. Cir. 1992).
Applying these principles in the present case, we find
that the dominant feature in the commercial impression
created by both marks is the distinctive term ANGEL, and
that the similarity between the marks which results from
the appearance of that distinctive term in both marks
outweighs any differences between the marks which may
result from the presence of the word RADIO in applicant’s
mark and the presence of the cherub design element in the
registered mark.
More specifically, we are not persuaded by applicant’s
argument that the cherub design element dominates the
commercial impression of the registered mark; if anything,
that design element supports and reinforces the dominant
significance of the word ANGEL in the mark. Likewise, the
stylization of the lettering of the word ANGEL in the
registered mark is too minimal to have any significant
effect on the commercial impression of the registered mark,
and it does not suffice to legally distinguish that mark
from applicant’s typed-form mark. See Squirtco v. Tomy
Ser. No. 78/021,895
6
Corporation, 697 F.2d 1038, 216 USPQ 937 (Fed. Cir.
1983)(typed-form mark may be displayed in all reasonable
manners).
As for applicant’s mark, the disclaimed word RADIO is
merely descriptive and therefore is of lesser source-
indicating significance than the word ANGEL, even though it
appears first in the mark. Applicant argues that her mark
evokes a specific image in that its [sic – her]
goods and services relate to music.
Specifically, when viewing applicant’s mark as
a whole, one portion of the mark is “RADIO”
which describes one venue for the performance
of applicant’s goods and services. Moreover,
because a radio only transmits sounds, as
opposed to other forms of multimedia, the mark
suggests an image of angelic musical sounds.
…Thus, applicant is highlighting that its [sic]
goods and services relate specifically to music
by use of this mark.
This argument is unpersuasive because registrant’s ANGEL
mark, as applied to registrant’s music-related goods and
services, likewise connotes “angelic musical sounds.” That
registrant’s mark does not include a specific descriptor of
the medium by which those angelic musical sounds may be
transmitted is of less significance, in our comparison of
the connotations and commercial impressions of the marks,
than the fact that both marks feature the distinctive term
ANGEL.
Ser. No. 78/021,895
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For these reasons, we find that the respective marks,
although not identical, are more similar than dissimilar
when viewed in their entireties, and that the first du Pont
factor weighs in favor of a finding of likelihood of
confusion.
Having carefully considered the evidence of record
pertaining to the du Pont factors, we conclude that a
likelihood of confusion exists. That is, we find that
applicant’s mark is sufficiently similar to the cited
registered mark that confusion is likely to result if the
marks are used on or in connection with the identical
and/or closely related goods and services at issue here.
We have considered applicant’s arguments to the contrary
(including any arguments not specifically discussed in this
opinion), but find them to be unpersuasive of a different
result.2 To the extent that any doubt as to this result
exists, such doubt must be resolved against applicant. See
2 However, we have given no consideration to applicant’s argument
that the cited registered mark is a weak mark which is entitled
to a limited scope of protection, because applicant has presented
no evidence to support that argument. Third-party registrations
are not made of record merely by listing them in a party’s brief,
see In re Duofold, Inc., 184 USPQ 638 (TTAB 1974), and they are
not probative evidence (under the sixth du Pont factor) of
weakness in any event. See Olde Tyme Foods Inc. v. Roundy’s
Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir. 1992). Moreover,
even assuming arguendo that the cited registered mark is not
famous, such lack of fame does not preclude a finding of
likelihood of confusion. In re Majestic Distilling Company,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
Ser. No. 78/021,895
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In re Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d
1025 (Fed. Cir. 1988); In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).3
Decision: The refusal to register is affirmed.
3 In re Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972), cited by
applicant for the contrary proposition that doubts as to the
mark’s registrability must be resolved in applicant’s favor, is
inapposite to this case because it involved a mere
descriptiveness refusal under Trademark Act Section 2(e)(1), not
a likelihood of confusion refusal under Section 2(d).