DeeDee Traylor Taft

Trademark Trial and Appeal Board

Feb 20, 2002

No. 75793904 (T.T.A.B. Feb. 20, 2002)

2/20/02

Paper No. 9
Bottorff

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re DeeDee Traylor Taft
________

Serial No. 75/793,904
_______

Malcolm B. Wittenberg of Crosby Heafey, Roach & May for
DeeDee Traylor Taft.

Asmet A. Kahn, Trademark Examining Attorney, Law Office 104
(Sidney Moskowitz, Managing Attorney)
_______

Before Quinn, Wendel and Bottorff, Administrative Trademark
Judges.

Opinion by Bottorff, Administrative Trademark Judge:

Applicant seeks registration on the Principal Register
of the mark SPIN COMMUNICATIONS (stylized) for “public
relations services.”1 Applicant has disclaimed the
exclusive right to use COMMUNICATIONS apart from the mark
as shown.

1 Serial No. 75/793,904, filed September 7, 1999. The
application is based on use in commerce, with August 1, 1998
alleged as the date of first use and the date of first use in
commerce.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/793,904
2
The Trademark Examining Attorney has refused
registration under Trademark Act Section 2(d), on the
ground that applicant’s mark, as applied to applicant’s
services, so resembles the mark SPINS, previously
registered (in typed form) for “market research, analysis
and study services,”2 as to be likely to cause confusion.
When the refusal was made final, applicant filed this
appeal. Applicant and the Trademark Examining Attorney
have filed main briefs, but applicant did not file a reply
brief. No oral hearing was requested. 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.

2 Registration No. 2,230,737, issued March 9, 1999.

Ser. No. 75/793,904
3
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
First, we turn to a determination of whether
applicant’s mark and registrant’s 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 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 an a specific impression
of trademarks. 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).
Ser. No. 75/793,904
4
Applying these principles to the present case, we find
that applicant’s and registrant’s marks are similar rather
than dissimilar, under the first du Pont evidentiary
factor. Applicant has not contended otherwise in either
its response to the initial office action or in its appeal
brief. Although the marks are not identical, we find that
the minor points of difference between the two marks (i.e.,
the minimal stylization of applicant’s mark, the presence
in applicant’s mark of the disclaimed word COMMUNICATIONS,
and the fact that applicant’s mark uses the singular SPIN
while registrant’s mark uses the plural SPINS) are
insufficient to overcome the basic overall similarity in
commercial impression which results from the two marks’
shared use of the dominant term SPIN or SPINS.
We next consider the similarity and relatedness of
applicant’s and registrant’s respective services. It is
not necessary that these respective services be identical
or even competitive in order to support a finding of
likelihood of confusion. Rather, it is sufficient that the
services are related in some manner, or that the
circumstances surrounding their marketing are such, that
they would be likely to be encountered by the same persons
in situations that would give rise, because of the marks
used thereon, to a mistaken belief that they originate from
Ser. No. 75/793,904
5
or are in some way associated with the same source or that
there is an association or connection between the sources
of the respective services. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed.
Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB
1991); In re International Telephone & Telegraph Corp., 197
USPQ2d 910 (TTAB 1978).
The Trademark Examining Attorney has submitted
printouts of twenty third-party registrations, each of
which includes in its recitation of services both “market
research” services and “public relations” services. This
evidence is probative to the extent that it serves to
suggest that both of these types of services are of a kind
that may emanate from a single source under a single mark.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB
1988). Based on this evidence, we find that applicant’s
services and registrant’s services are related and similar,
for purposes of the second du Pont evidentiary factor.
Neither applicant’s nor registrant’s recitation of
services includes any limitations as to trade channels or
classes of purchasers, so we must presume that both
applicant and registrant market their respective services
in all normal trade channels for such services (including
Ser. No. 75/793,904
6
each other’s) and to all normal classes of purchasers for
such services (including each other’s). See In re Elbaum,
211 USPQ 639 (TTAB 1981). We reject as irrelevant
applicant’s contention that there is no overlap in the
actual trade channels and classes of purchasers for
applicant’s and registrant’s respective services. See
Canadian Imperial Bank of Commerce v. Wells Fargo Bank,
N.A., 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
Applicant argues that purchasers of public relations
services necessarily are large and sophisticated companies
who are unlikely to be confused as to source. However,
there is no evidence in the record to support this claim.
In any event, “[t]he fact that purchasers are sophisticated
or knowledgeable in a particular field does not necessarily
mean that they are immune from source confusion when
similar marks are used in connection with related goods
and/or services.” In re Decombe, 9 USPQ2d 1812 (TTAB
1988).
In summary, based on the evidence of record with
respect to the relevant du Pont factors, we find that a
likelihood of confusion exists in this case, and that the
Trademark Examining Attorney’s refusal to register
accordingly is appropriate. Any doubt as to this
conclusion must be resolved against applicant. See In re
Ser. No. 75/793,904
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Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025
(Fed. Cir. 1988); In re Martin’s Famous Pastry Shoppe,
Inc., supra.
Decision: The refusal to register is affirmed.