Flyte LLC

Trademark Trial and Appeal Board

Mar 22, 2019

87347139 (T.T.A.B. Mar. 22, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 22, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Flyte LLC
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Serial No. 87347139
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Nigamnarayan Acharya of Lewis Brisbois Bisgaard & Smith LLP,
for Flyte LLC.
Jason Malashevich, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
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Before Zervas, Taylor and Shaw,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Flyte, LLC (“Applicant”) seeks registration on the Principal Register of the mark
FLYTE (in standard character format) for, as amended, “clocks; watches; timepieces;
chronographs for use as timepieces; horological and chronometric instruments” in
International Class 14.1

1 Application Serial No. 87347139 was filed on February 23, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C § 1051(b).
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),2 on the ground that it
is likely to cause confusion with the mark in Registration No. 1535206, AIRFLYTE
(in typed format3) for, inter alia, “clocks, namely wall clocks and desk clocks” in
International Class 14.4
When the refusal was made final, Applicant appealed. Both Applicant and the
Examining Attorney filed briefs. We affirm the refusal to register.
I. Likelihood of Confusion
A. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

2 Applicant also was required to clarify its identification of goods and pay additional fees, if
necessary. That requirement was satisfied.
3 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2018).
4 Registered April 18, 1989; renewed.
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USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.
2006) (even within du Pont list, only factors that are “relevant and of record” need be
considered).
B. Relatedness of the Goods, Channels of Trade and Classes of Consumers

Applicant’s goods are identified as “clocks, watches, timepieces, chronographs for
use as timepieces, [and] horological and chronometric instruments” and Registrant’s
goods are identified “clocks, namely wall clocks and desk clocks.” On comparison, we
find Applicant’s broadly worded “clocks” and “horological and chronometric
instruments” clearly encompass the more narrowly defined “wall and desk clocks” in
the cited registration. The remaining goods identified in Applicant’s application, i.e.,
watches, timepieces and chronographs for use as timepieces, are complementary and
related to the “clocks” identified in the cited registration, all being instruments for
telling time. Even so, given the in-part identical “clocks” we need not discuss the
similarity of all of Applicant’s goods because it is sufficient for a finding of likelihood
of confusion if relatedness is established for any item encompassed by the
identification of goods within a particular class in the application. In re Aquamar,
Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer
v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Nonetheless, to support the relatedness of the goods, the Examining Attorney
made of record web pages from the websites of various entities, e.g., Fisher Scientific,
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Extech, Princeton Watches, Braun, Cobb & Co. Clocks, Arne Jacobsen, and Swatch,
showing the same mark used in connection with a variety of timepieces, including
timers, stopwatches, watches and clocks.5 We thus find the goods identical or closely
related for purposes of our likelihood of confusion analysis. Applicant appears to
concede that the goods are related.6
Furthermore, because the goods are identical in-part, the channels of trade and
classes of purchasers for such goods are considered to be the same. In re Yawata Iron
& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian
Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028
(TTAB 2011). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (even though there was no evidence regarding channels of trade and classes
of consumers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion). As such the channels of trade and classes of purchasers at a
minimum overlap.
The du Pont factors of the relatedness of the goods, channels of trade and classes
of purchasers strongly favor a finding of likelihood of confusion.
B. Similarity/Dissimilarity of the Marks
We now consider the du Pont likelihood of confusion factor of the similarity or
dissimilarity of the marks in their entireties in terms of sound, appearance, meaning

5 May 19, 2017 Office Action; TSDR 8-17 and January 13, 2018 Office Action; TSDR 8-30.
The TSDR citations are to the downloadable .pdf format.
6 Applicant, in its brief, specifically stated: “while the goods connected with the marks are
substantially appear [sic] identical as described….” 4 TTABVUE 8 (Applicant’s Br. p. 7).
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and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In
comparing the marks, we are mindful that “[t]he proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. v. Triumph
Learning, 101 USPQ2d at 1721; see also 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 1735, 1741 (TTAB 1991), aff’d mem.,
972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks. L’Oreal
v. Marcon, 102 USPQ2d at 1438; Winnebago Industries, Inc. v. Oliver & Winston, Inc.,
207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). The average customers include members of the general public
seeking clocks.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
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determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Price Candy Co. v. Gold Medal
Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, 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 the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at
751.
Applicant’s mark FLYTE and the cited mark AIRFLYTE are similar in
appearance and sound in that they each include, or solely consists of, the term
“FLYTE.” The only difference between the two marks is the addition of the word
“AIR” to the cited registered mark, which does little to distinguish them. Given the
structure of Registrant’s mark, the “AIR” portion, defined, in part, as “[o]f or relating
to aircraft or aeronautics,”7 while appearing first and contributing to the mark’s
commercial impression, merely modifies the word FLYTE, the phonetic equivalent of
the “flight.”8 Likelihood of confusion is not necessarily avoided between otherwise
confusingly similar marks merely by adding or deleting other matter. If an important

7 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019)
(www.ahdictionary.com, retrieved March 18, 2019). The Board may take judicial notice of
dictionary definitions, including online dictionaries that exist in printed format or have
regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff'd, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v.
Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
8 Flight is defined, in part, as “[a] scheduled airline run.” THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2018). January 13, 2018 Office Action;
TSDR 32.
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or, as in the case here, significant portion and sole portion of both marks is the same,
then the marks may be confusingly similar notwithstanding some differences. See,
e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018)
(affirming TTAB’s finding that the marks DETROIT ATHLETIC CO. and DETROIT
ATHLETIC CLUB are nearly identical in terms of sound, appearance and commercial
impression, and noting that, while “the words ‘Co.’ and ‘Club’ technically differentiate
the marks, those words do little to alleviate the confusion that is likely to
ensue”); Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (affirming TTAB’s finding that applicant’s mark STONE LION
CAPITAL incorporated the entirety of the registered marks LION CAPITAL and
LION, and that the noun LION was the dominant part of both parties’ marks);
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002) (finding that, even though applicant’s mark PACKARD
TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not incorporate every
feature of opposer’s HEWLETT PACKARD marks, a similar overall commercial
impression is created).
Also, both Applicant’s and Registrant’s marks are in standard characters and, as
such, their display is not limited to any particular font style, size, or color. We
therefore must consider that both marks might be used in any stylized display,
including the same or similar lettering style or color. See In re Viterra, 101 USPQ2d
at 1909-10; Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1259 (Fed. Cir. 2011); In re Aquitaine Wine USA, LLC, 126 USPQ2d
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1181, 1886 (TTAB 2018) (literal elements of standard character marks may be
presented in any font style, size or color).
As to connotation, there is no evidence that the term FLYTE (which as Applicant
asserts, and we concur, “is a play on the word ‘flight’”9) has any particular meaning
with regard to clocks and other timepieces. Accordingly, both Applicant’s and
Registrant’s marks are likely to impart the same arbitrary meaning. Applicant’s
argument that its mark connotes “the action or process of leaving,” while the cited
mark imparts the impression of an ‘“airplane or air flight’” is unsupported. Moreover,
the different connotations of the marks are not apparent in the marks themselves,
and, in fact, conflicts with the definition of “flight” set out in footnote 8 of this decision.
To the extent consumers may view the term “FLYTE” in Registrant’s mark as “air
flight,” they could attribute that same meaning to Applicant’s mark.
We recognize that in comparing the marks, we must consider Registrant’s mark
in its entirety. Thus, we have taken into account the differences in appearance and
sound between them. We nonetheless find that despite these differences, given the
similarities between the marks in sound, appearance and meaning due to the shared
term FLYTE, the marks engender similar commercial impressions. Because of the
similarities between Applicant’s and Registrant’s marks and the syntax of
Registrant’s mark, consumers are likely to believe that that the respective marks are
variant marks used by a single entity to identify and distinguish a companion product
line.

9 4 TSDR 6 (Applicant’s Br. p. 5).
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The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
C. Prior Decisions
Applicant has relied on a number of prior decisions, including several unpublished
ones,10 to bolster its position with regard to the likelihood of confusion issue. While
our decision is made within the confines of established statutes, rules and case
precedent, it is axiomatic that each case must be decided on its own facts. See In re
Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if
some prior registrations had some characteristics similar to [Applicant’s] application,
the PTO’s allowance of such prior registrations does not bind the Board or this
court.”); In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d
1141, 1142 (Fed. Cir. 1987). We are therefore obligated to assess, and have assessed
the registrability of Applicant’s mark on its own merits and have carefully considered
the arguments and evidence of record in this case, even if not specifically addressed
in the decision.
E. Analyzing the Factors
When we consider the record, the relevant likelihood of confusion factors, and all
of the arguments and evidence relating thereto, the marks are sufficiently similar for
confusion to be likely when used in connection with in-part identical and otherwise

10 While applicants may cite to non-precedential decisions, such decisions are not binding on
the Board and the Board does not encourage this practice. In re Fiat Grp. Mktg. & Corporate
Commc'ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014); In re Procter & Gamble Co., 105
USPQ2d 1119, 1121 (TTAB 2012); In re Luxuria s.r.o., 100 USPQ2d 1146, 1151 n.7 (TTAB
2011); Corporacion Habanos SA v. Rodriquez, 99 USPQ2d 1873, 1875 n.5 (TTAB 2011).
Serial No. 87347139
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related goods in overlapping trade channels, and we conclude that prospective
purchasers familiar with the registered mark AIRFLYTE for “clocks, namely wall
clocks and desk clocks” would be likely to believe, upon encountering Applicant’s
similar mark FLYTE for “clocks; watches; timepieces; chronographs for use as
timepieces; [and] horological and chronometric instruments,” that such goods
emanate from, or are sponsored by or affiliated with, the same source.
Decision: The refusal to register Applicant’s mark FLYTE is affirmed.