Daystar Church

Trademark Trial and Appeal Board

Jan 6, 2010

No. 77521492 (T.T.A.B. Jan. 6, 2010)

Mailed:
January 6, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Daystar Church
________

Serial No. 77521492
Serial No. 77524306
_______

Robert O. Fox of Luedeka, Neely & Graham, PC for Daystar
Church.

Brian Pino, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Seeherman, Bucher, and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Daystar Church (“applicant”) filed use-based
applications for the marks DAYSTARCHURCH.TV and design,
shown below (Serial No. 77521492), and DAYSTAR CHURCH, in
standard character form (Serial No. 77524306), for
“evangelical and ministerial services,” in Class 45.

In Serial No. 77524306 for the mark DAYSTAR CHURCH,
applicant disclaimed the exclusive right to use the word
“Church.”
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
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Registration has been refused under Section 2(d) of
the Trademark Act of 1946, 15 U.S.C. §1052(d), on the
ground that applicant’s marks, when used in connection with
“evangelical and ministerial services,” so resemble the
mark DAYSTAR, in standard character form, for “satellite
television broadcasting; television broadcasting; Internet
broadcasting services” as to be likely to cause confusion.1
Because the applications are owned by the same
applicant and involve common issues of fact and law, we
have consolidated the appeals.
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the 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
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).

1 Registration No. 3457799, issued July 1, 2008.
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A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. In re E. I. du Pont De Nemours &
Co., 177 USPQ at 567. In a particular case, any one of
these means of comparison may be critical in finding the
marks to be similar. In re White Swan Ltd., 9 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042
(TTAB 1988). In analyzing the similarity or dissimilarity
of 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 overall commercial
impression so that confusion as to the source of the goods
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 1835,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir.
June 5, 1992). In making this determination, we must
consider the recollection of the average purchaser who
normally retains only a general, rather than a specific,
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impression of the marks. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975).
While marks must be compared in their entireties, it
is not improper to accord more or less weight to a
particular feature of a mark. In re National Data Corp.,
753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1983). For the
reasons set forth below, we find that the word DAYSTAR is
the dominant portion of applicant’s marks, as well as being
the entirety of the registered mark.
In the case of marks consisting of words and a design,
the words are normally given greater weight because they
would be used by consumers to request the products. In re
Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999);
In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB
1987). Thus, DAYSTARCHURCH.TV plays a more prominent role
in applicant’s composite mark DAYSTARCHURCH.TV and design.
Furthermore, the “.tv” portion of applicant’s
composite mark is likely to be perceived as referencing the
medium through which applicant’s services are rendered.2

2 As discussed below, evangelical and ministerial services are
often rendered through television broadcasting services. Also,
we recognize that “.TV” is the Internet country code top-level
domain name for the island nation of Tuvalu, but in the context
of the mark and services, there is no indication that consumers
would view this component in this manner, rather than as a way of
separating the word DAYSTARCHURCH from TV. At most, the “dot”
preceding “TV” may suggest that applicant’s services have some
connection with the Internet.
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Therefore, “.tv” is not a basis for distinguishing
applicant’s marks from the registrant’s mark.
Further, the word “Church” in applicant’s marks is
descriptive when used in connection with “evangelical and
ministerial services.”
Considering the marks in their entireties, we find
that the word “Daystar” is the dominant feature in both of
applicant’s marks for purposes of identifying and
distinguishing applicant’s services. It is well-settled
that disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000), quoting, In re National Data
Corp., 24 USPQ2d at 752 (“Regarding descriptive terms, this
court has noted that the descriptive component of a mark
may be given little weight in reaching a conclusion on the
likelihood of confusion”); In re Code Consultants, Inc., 60
USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often
“less significant in creating the mark’s commercial
impression”). It is unlikely that consumers will use the
descriptive word “Church” to distinguish applicant’s marks
from the registrant’s mark. To the contrary, consumers may
perceive the addition of the word “Church” to symbolize the
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evangelical and ministerial division of registrant’s
DAYSTAR broadcasting services.
The significance of the word “Daystar” as the dominant
element of applicant’s marks is further reinforced by its
location as the first part of the mark. See Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“[I]t is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered”); see also Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part
of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the
label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers will first
notice the identical lead word).
Applicant’s marks DAYSTARCHURCH.TV and design and
DAYSTAR CHURCH entirely incorporate the registered mark
DAYSTAR, to which applicant has essentially added merely
descriptive terms (i.e., “Church” and “.tv”) that do not
distinguish applicant’s marks from the registered mark.
Likelihood of confusion is often found where the entirety
of one mark is incorporated within another. The Wella
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Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ
419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer design
for men’s cologne, hair spray, conditioner and shampoo is
likely to cause confusion with the mark CONCEPT for cold
permanent wave lotion and neutralizer); In re West Point-
Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972)
(WEST POINT PEPPERELL and griffin design for fabrics is
likely to cause confusion with WEST POINT for woolen piece
goods); S Gumpert Co., Inc. v. ITT Continental Baking
Company, 191 USPQ 409 (TTAB 1976) (FLAV-O-BAKE for seasoned
coating mix is likely to cause confusion with FLAVO for
cake icing flavoring products).
Because the name DAYSTAR is the dominant portion of
applicant’s marks and the entirety of the registered mark,
we find that the marks are similar in appearance, sound,
meaning and commercial impression.
B. The similarity or dissimilarity and nature of the
services.

It is well-settled that it is not necessary that the
respective services be identical or even competitive in
order to find that they are related for purposes of our
likelihood of confusion analysis. That is, the issue is
not whether consumers would confuse the services
themselves, but rather whether they would be confused as to
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the source of the services. See In re Rexel Inc., 223 USPQ
830, 831 (TTAB 1984). The services need only be
sufficiently related that consumers would be likely to
assume, upon encountering the services under similar marks,
that the services originate from, are sponsored or
authorized by, or are otherwise connected to the same
source. In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); and In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
To prove that applicant’s evangelical and ministerial
services and the registrant’s broadcasting services are
related, the Examining Attorney has submitted numerous use-
based, third-party registrations for the services listed in
both the applications and registration at issue. Third-
party registrations which individually cover a number of
different services that are based on use in commerce may
have some probative value to the extent that they serve to
suggest that the listed services are of a type which may
emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d at 1785-1786; In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
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In addition, the Examining Attorney has submitted
numerous third-party registrations for religious
broadcasting services to show that broadcasting services
may encompass broadcasting in the field of religion. See
e.g., Registration No. 3127373 for the mark SPIRIT
TELEVISION NETWORK for “cable, and satellite television
broadcasting services in the fields of Christianity,
spirituality, and religion”; Registration No. 3075030 for
the mark WORD NETWORK for “broadcasting television
programming having religious content”; Registration No.
2484345 for the mark KTBN for “cable television broadcast,
digital television broadcast, and satellite broadcasting
services in the field of religion.”
The Examining Attorney also submitted evidence showing
that evangelical and ministerial services are offered
through television broadcasts. The Examining Attorney
submitted excerpts from two websites, Joyce Meyer
Ministries (joycemeyer.org) and Joel Osteen Ministries
(lightsource.com), as well as applicant’s website,
promoting evangelical, ministerial and broadcasting
services. In addition, the website for the National
Religious Broadcasters (NRB.org) describes itself as “the
preeminent association of Christian communicators working
to keep the doors of electronic media open for the spread
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of the Gospel, which promotes standards of excellence,
integrity and accountability. NRB provides networking,
educational, ministry and fellowship opportunities for its
members.”3
Finally, the Examining Attorney submitted Wikipedia
entries to show the relationship between evangelical and
ministerial services and television broadcasting services.
In the “Televangelism” entry, Wikipedia reports that a
“televangelist” is “a Christian minister who devotes a
large portion of his or her ministry to television
broadcasting.” “The Christian Broadcasting Network” is
reported to be “a Christian television broadcasting
network.”
Originally a complete cable network,
which launched on April 29, 1977, CBN
was later renamed The Family Channel,
which was later sold to Fox and known
as the “Fox Family Channel.” Fox later
sold it to Disney, which renamed it ABC
Family. CBN is now a production
company for The 700 Club, and other
syndicated shows.4

3 Wikipedia reports that the “National Religious Broadcasters” is
“an American organization that represents Christian religious
broadcasters on American television and radio. … NRB also
operates a Christian television network on the DirecTV satellite
television service called the NRB Network.” (February 20, 2009
Office Action). The Wikipedia evidence is probative of what the
authors have written; that is, their perception.
4 Wikipedia article attached to the February 20, 2009 Office
Action.
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In view of the foregoing, we find that the services
are related. Applicant argues to the contrary and asserts
that the Examining Attorney has failed to demonstrate that
the services are related. According to applicant, because
there are over 2,000 registrations for satellite or
television services and over 1,700 registrations for
evangelical or ministerial services, “the 50 registrations”
submitted by the Examining Attorney are not sufficient to
demonstrate a connection between the services. Indeed, a
low number of third-party registrations, under certain
circumstances, may suggest that the services are in fact
not related. However, in this case, the Examining Attorney
has submitted 14 third-party registrations for both
broadcasting services and evangelical and ministerial
services. This is more than a sufficient number to
demonstrate the relatedness of the services. Moreover, the
Examining Attorney did not rely solely on third-party
registrations; he submitted third-party websites and
Wikipedia evidence that show ministerial and evangelical
services are rendered through television broadcasting.
There is a further flaw in applicant’s argument. The
mere fact that other third parties do not offer both types
of services does not undercut the probative value of third-
party registrations that show some parties do. “There is
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no requirement for [services] to be found related that all
or even a majority of the sources of one [service] must
also be sources of the other [service].” In re G.B.I. Tile
and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009). Also,
“the mere fact that some [services] are not included in a
registration's identification of [services] does not
establish that the owner of the mark has not registered the
mark for those [services] in another registration since,
for example, the registrant may have begun using the mark
[in connection with those services] at a later date.” Id.
Thus, applicant’s evidence and arguments do not
successfully rebut the Examining Attorney’s evidence that
the services are related.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because there are no limitations as to channels of
trade or classes of purchasers in the description of
services in either the applications or the registration, it
is presumed that applicant’s evangelical and ministerial
services and registrant’s television, satellite and
Internet broadcasting services, move in all channels of
trade normal for those services, and that they are
available to all classes of purchasers for the listed
services. In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
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1992). Because television broadcasting services distribute
evangelical and ministerial programs and evangelical and
ministerial services are rendered through television, the
channels of trade and classes of consumers are the same.
D. Balancing the factors.
The du Pont factors require to us to consider the
thirteen factors for which evidence has been made of record
in likelihood of confusion cases. In this case, applicant
and the Examining Attorney have submitted evidence and
focused their arguments on the similarity of the marks,
services and channels of trade. In view of the facts that
the marks are similar, the services are related, and the
services move in the same channels of trade and are
available to the same classes of consumers, we find that
applicant’s registration of the marks DAYSTARCHURCH.TV and
design and DAYSTAR CHURCH for “evangelical and ministerial
services” is likely to cause confusion with DAYSTAR for
“satellite television broadcasting; television
broadcasting; Internet broadcasting services.”
Decision: The refusals to register are affirmed.