Citadel Broad-casting Co.

Trademark Trial and Appeal Board

Feb 22, 2002

No. 75824804 (T.T.A.B. Feb. 22, 2002)

2/22/02

Paper No.
ejs

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Citadel Broadcasting Company
________

Serial Nos. 75/824,804; 75/824,921;
75/826,087; and 75/826,088
_______

David V. Radack of Eckert Seamans Cherin & Mellott, LLC for
Citadel Broadcasting Company.

Brooke A. Beyer, Jr.,1 Trademark Examining Attorney, Law
Office 105 (Thomas G. Howell, Managing Attorney).
_______

Before Seeherman, Hohein and Holtzman, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

On October 18, 1999 Citadel Broadcasting Company filed
four applications to register the marks CITADEL;2 CITADEL
COMMUNICATIONS, with the word COMMUNICATIONS disclaimed;3
CITADEL COMMUNICATIONS CORPORATION, with the words

1 Verna Beth Ririe examined the applications until the appeals
were filed.
2 Application Serial No. 75/826,088.
3 Application Serial No. 75/826,087.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
2
COMMUNICATIONS CORPORATION disclaimed;4 and CITADEL
BROADCASTING COMPANY, with the words BROADCASTING COMPANY
disclaimed,5 all for radio broadcasting services. The
applications were based on an asserted bona fide intention
to the use marks in commerce. Registration of all four
marks has been finally refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s marks so resemble the mark CITADEL
COMMUNICATIONS, with the word COMMUNICATIONS disclaimed,
previously registered for telecommunications services,
namely long distance telephone services,6 as to be likely,
if used in connection with applicant’s identified services,
to cause confusion or mistake or to deceive.
Applicant appealed the refusals of registration, and
filed appeal briefs in each application. The present
Examining Attorney requested that the appeals be
consolidated because they involved common questions of law
and fact, and the Board granted the request. Accordingly,
he filed a single appeal brief for all four applications.
An oral hearing was not requested.
We reverse.

4 Application Serial No. 75/824,921.
5 Application Serial No. 75/824,804.
6 Registration No. 1,913,805, issued August 22, 1995. Section 8
affidavit accepted; Section 15 affidavit received.
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
3
Our determination of likelihood of confusion is based
on an analysis of all of the probative facts in evidence
that are relevant to the factors set forth in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973).
Applicant concedes that its marks are identical or
substantially identical to the registered mark. However,
applicant contends that confusion is not likely because the
services are unrelated, and are sold to different consumers
through different trade channels. In particular, applicant
asserts that its customers are advertisers, and that the
listening public will not be aware that the radio station
they listen to is a Citadel station. Applicant also claims
that applicant’s and registrant’s services are sold through
different channels of trade, with applicant’s services to
advertisers being marketed through a sales staff, while
registrant’s services to the general public would be
marketed through direct consumer advertising. Further,
applicant argues that the advertisers who are the potential
purchasers of its services are sophisticated and
discriminating.
We are not persuaded by applicant’s argument that the
purchasers of its radio broadcasting services and the long
distance telephone services identified in the cited
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
4
registration are different. Although applicant may get its
income from advertisers, the general public is still a
recipient of its radio broadcasting services, since the
services are directed to the public at large. Even if
applicant may not currently publicize its trademark to the
public,7 there is no inherent reason why it might not do so
in the future.
Because applicant’s radio broadcasting services are
being rendered to the general public, its arguments
regarding differences in the channels of trade and
sophistication of its purchasers are not persuasive.
However, it is still the burden of the United States
Patent and Trademark Office (“Office”) to show that
applicant’s and the registrant’s services are related, such
that consumers will assume, when the same or substantially
the same trademark is used for both, that they emanate from
the same source. We turn, therefore, to an examination of
the evidence submitted by the initial Examining Attorney to
demonstrate the asserted relatedness of the services.
The record contains a large number of third-party
registrations which list both radio broadcasting services

7 Although the applications were all based on intent-to-use,
applicant has stated that it has used its marks for radio
broadcasting services since 1994.

Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
5
and long distance telephone services. Third-party
registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
The problem with the third-party registration evidence of
record in these appeals is that virtually all of the
registrations are based on Section 44 of the Trademark Act,
and do not reflect any use in commerce. Therefore, they
have no probative value to show that the services are of a
type which may emanate from a single source. Similarly,
the third-party applications which are also of record are
evidence only of the fact that they have been filed.
An examination of the third-party registrations
reveals that there are only two third parties which have
registered, based on use in commerce, long distance
telephone services and radio broadcasting services. They
are Metromedia Company, which owns five such registrations,8
and Citizens Utilities Company, which owns one.9

8 Registration Nos. 2,352,129; 2,139,344; 2,201,607; 2,201,202
and 2,234,476.
9 Registration No. 2,205,067.

Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
6
Also of record are excerpts and/or complete copies of
articles taken from the NEXIS data base which purport to
show that companies which offer long distance services also
offer radio broadcasting services. Such articles may be
used, not to prove the truth of the statements made
therein, but to show public exposure to the information.
(Accordingly, we have not considered the articles taken
from wire service reports, as we have no way of knowing
whether this information was ever published). Excerpts
from the articles are set forth below:
Since going on the air in October 1999,
the news-talk radio station has sought
to live up to its slogan –“Radio for
Change”—by blending liberal and
“progressive” programming....
Owned by a San Francisco-based company,
Working Assets, KWAB is trying to fill
... a void in a commercial radio market
dominated by talk shows....
Working Assets Inc. provides long-
distance telephone, credit-card and
online services to customers. Since
its founding in 1985, the company says
it has donated $20 million to
nonprofits.
The company ventured into broadcasting
last year when it purchased KBVI-AM.
Working Assets spent several months
installing new equipment before it went
on the air on October as KWAB.
“Denver Rocky Mountain News,” May 15,
2000

IDB Communications provides customers
with long distance telephone, radio,
television and satellite communications
services.
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
7
“The Hollywood Reporter,” December 16,
1993

...YAMA provides the following major
services: local and long-distance
telephone calls, data transmission,
radio broadcasting, cable and
commercial television, and Internet
access, and it plans to soon offer
cellular mobile and paging services.
“Company Fact Sheet,” September 12,
2000

CHER offers standard telecommunication
services including local and long-
distance telephone, data transmission,
wire radio broadcasting, cable and
commercial television broadcasting,
cellular communications, and
Internet....
“Company Fact Sheet,” April 18, 2000

We find that this NEXIS evidence is insufficient to
show that the public is aware that companies which provide
long distance telephone services also provide radio
broadcasting services. It is not clear to us what the
publication “Company Fact Sheet” is, or who its audience
is. It would appear that this is a specialized trade
publication which may be consulted by those requiring
information on certain companies. It does not appear to be
the type of publication that would be widely circulated
among the general public. Similarly, “The Hollywood
Reporter” is recognized as a trade paper, rather than a
publication directed to the public at large. The only
article provided by the Examining Attorney from a general
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
8
circulation paper is the article from the “Denver Rocky
Mountain News.”
It is presumed that the evidence submitted on behalf
of the Office provides the best support from the sources
from which it was taken for the Examining Attorney’s
refusal of registration. See In re Federated Department
Stores, Inc., 3 USPQ2d 1541 (TTAB 1987); In re Homes & Land
Publishing Corporation, 24 USPQ2d 1717 (TTAB 1992).
Based on the evidence of record, we are not persuaded
that the Office has met its burden of showing that
applicant’s and the registrant’s services are related, and
that the consuming public would regard them as emanating
from the same source if they were offered under the same
mark. Two third parties which have registered a single
mark for both services, and a reference in one publication
in general circulation that a company owns a radio station
and offers long distance telephone services, is simply not
sufficient to show that the public is aware of and would
understand that such services come from the same source.
We emphasize that we have reached our determination
that confusion is not likely based on the record before us
in these appeals. On a different record, such as might be
adduced in an opposition proceeding, we might well come to
a different conclusion.
Ser. Nos. 75/824,804; 75/824,921; 75/826,087 and 75/826,088
9
Decision: The refusals of registration are reversed.