Gary Fujarek

Trademark Trial and Appeal Board

Feb 17, 2017

No. 76709445 (T.T.A.B. Feb. 17, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: February 17, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Fujarek
_____

Serial No. 76709445

_____

Mark Terry, Esq. for Gary Fujarek.

Jami Holland, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____

Before Zervas, Masiello and Goodman,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Gary Fujarek (“Applicant”) seeks registration on the Principal Register of the
proposed standard character mark VOICE for “broadcasting services, namely, radio
and television broadcasting by satellite and mobile phones, via a global computer
network” in International Class 38.1 The mark was refused under Trademark Action
Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that the mark merely describes

1 Application Serial No. 76709445 was filed on October 18, 2011. Applicant claims a bona fide
intention to use the mark in commerce pursuant to Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b).
Serial No. 76709445
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a feature of Applicant’s services, namely, “the sound or sounds uttered through the
mouths of human beings.”2 In addition, the Examining Attorney refused registration
of the proposed mark under Trademark Act Section 2(d), 15 U.S.C. §1052(d), on the
ground that the applied-for mark is likely to be confused with the following marks:
• THE VOICE OF ST. LOUIS (Reg. No. 1845914)3 in typed
form4 for “radio broadcasting services” in International
Class 38 (ST. LOUIS disclaimed).
• THE VOICE OF CHICAGO (Reg. No. 3129368)5 in
standard character form for “radio broadcasting” in
International Class 38 (CHICAGO disclaimed).
• VOICE OF AMERICA (Reg. No. 3205170)6 in standard
character form for “Audio broadcasting; Broadcast of cable
television programmes [sic]; Broadcasting programs via a
global computer network; Cable radio broadcasting; Cable
radio transmission; Cable television broadcasting; Cable
television transmission; Communication via radio,
telephone and television transmissions; Radio
broadcasting; Radio broadcasting of information and other
programs; Radio communication; Radio program
broadcasting; Radio programme [sic] broadcasting; Radio,
telephone, telegraph communication services; Satellite
communication services; Satellite television broadcasting;
Satellite transmission services; Satellite, cable, network
transmission of sounds, images, signals and data;
Streaming of audio material on the Internet; Streaming of
video material on the Internet; Subscription television
broadcasting; Television broadcasting; Television
programme [sic] broadcasting via cable; Television
transmission services; Transmission of news; Video

2 Examining Attorney brief, 9 TTABVUE 17.
3 Second renewal, July 12, 2014.
4 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. TMEP § 807.03(i)
(January 2017).
5 Renewed, October 25, 2016.
6 Registered, February 6, 2007; Section 8 affidavit accepted August 31, 2012.
Serial No. 76709445
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broadcasting; Webcasting services” in International Class
38 (AMERICA disclaimed).
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Both Applicant and the Examining
Attorney filed briefs. We reverse the Section 2(e)(1) refusal and affirm the Section
2(d) refusal.
Mere Descriptiveness
We consider first the Examining Attorney’s Section 2(e)(1) refusal. A mark is
merely descriptive if it immediately describes the ingredients, qualities, or
characteristics of the goods or services or if it conveys information regarding a
function, purpose, or use of the goods or services. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). See also In re Nett Designs, 236 F.3d
1339, 57 USPQ2d 1564 (Fed. Cir. 2001). It is not necessary that a term describe all of
the properties or functions of the goods and/or services in order for it to be considered
to be merely descriptive thereof; rather, it is sufficient if the term describes a
significant attribute or feature of them. Moreover, whether a term is merely
descriptive is determined not in the abstract, but in relation to the goods and/or
services for which registration is sought. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009 (Fed. Cir. 1987); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). On the
other hand, if a mark requires imagination, thought, and perception to arrive at the
qualities or characteristics of the goods or services, then the mark is suggestive. In re
MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003).
Serial No. 76709445
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According to the Examining Attorney, the term “Voice” refers to “the sound or
sounds uttered through the mouths of human beings.” See dictionary.com definition;
“the sound or sounds uttered through the mouth of living creatures, especially of
human beings in speaking, shouting, singing, etc.”7 We note that “voice” is also
defined in the same dictionary as “to give utterance or expression to; declare;
proclaim; to voice one’s discontent”; and in Merriam-Webster Dictionary as “an
instrument or medium of expression .”8
The Examining Attorney has placed the following in the record:
● “Voice Broadcasting: Introduction to Broadcasting,” at
http://www.ckbooks.com/
“Radio broadcasting is essentially based on voice.
Listeners know hardly about the face, dressing up at
times the age of the person whose voice they are
listening to. Most broadcasters have their peculiar
voice – soft, hard, harsh or sharp.”9
● Article entitled “Modifying Broadcasting Voices,” at
http://www.nature.com/
“I[n] a broadcast talk . . . method of improving the
voices of some of the political speakers was
described. By using a subtle combination of
electrical devices in connection with the microphone,
it is possible to improve the broadcast voice by
smoothing out rough and strengthening weak
notes.”
● Article entitled Top 10 Voices in Broadcast Journalism at
http://www.journalismdegree.com/, listing “iconic” voices in
television and radio broadcasting.

7 February 13, 2012 Office Action, TSDR 27.
8 October 15, 2015 Response, TSDR 2.
9 The author also discusses voice characteristics of a good broadcaster.
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We are not persuaded by the Examining Attorney’s arguments that the consuming
general public will immediately, without reflection, recognize that “voice,” as used
with Applicant’s services, is merely descriptive of a feature of Applicant’s services,
namely, that it identifies the “the sound or sounds uttered through the mouths of
human beings.” “Voice” has additional meanings; “to give utterance or expression to;
declare; proclaim; to voice one’s discontent” and as “an instrument or medium of
expression .” We find that these
additional definitions are more apt in the context of the specified services, and that
giving “utterance or expression to; declare; proclaim; to voice one’s discontent” or
being “an instrument or medium of expression” are non-specific in nature and convey
nothing about the services. They hence are without the required immediacy of
meaning or significance in the context of Applicant’s identified services. Further, the
webpages on which the Examining Attorney relies concern the sounds a person makes
in the context of broadcasting, e.g., “soft, hard, harsh or sharp” voices; they do not
describe a specific characteristic or feature of broadcasting services, but rather of
persons who are involved in or featured in broadcasting services. In addition, as
Applicant points out, “Applicant’s services also include the use of satellites, mobile
phones, communication towers, electrical equipment, music, televisions, electrical
components, and numerous other components[, and] Applicant also provides videos,
instrumental music and other music products, and visual art”; and “[t]he fact that a
person’s voice is one component utilized in conjunction with a variety of other
components does not mean that a consumer will ‘immediately’ ascertain” Applicant’s
Serial No. 76709445
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services.10 In sum, the evidence does not establish the immediacy required pursuant
to In re Abcor Development Corp., 200 USPQ at 217-18. The refusal to register under
Section 2(e)(1) is therefore reversed.
Likelihood of Confusion
Our determination under Trademark Act § 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 issue. See In re E.I. du Pont de Nemours and Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also Palm Bay Imp., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005);
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003);
In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB
1999).
Similarity of the Services, Trade Channels and Classes of Purchasers
The registrations for THE VOICE OF ST. LOUIS and THE VOICE OF CHICAGO
both identify radio broadcasting services, which encompass the specific radio
broadcasting services set forth in Applicant’s recitation of services. In addition, the

10 Applicant’s brief at 15-16, 7 TTABVUE 16-17.
Serial No. 76709445
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VOICE OF AMERICA registration identifies radio program broadcasting as well as
television broadcasting, which encompass the radio and television broadcasting
services set forth in Applicant’s recitation of services. Thus, the services of each
registration and the application are identical in part.
Turning to the trade channels and classes of purchasers, because Applicant’s
identified services and those in the cited registrations contain no trade channel or
purchaser restrictions, and because they are identical in part, we presume both
Applicant’s and the cited Registrants’ services move in all normal channels of trade
and are available to all potential classes of ordinary consumers. See In re Viterra, 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on
legal presumption that “absent restrictions in the application and registration, goods
and services are presumed to travel in the same channels of trade to the same class
of purchasers” (citations omitted)); Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding that where the
identification is unrestricted, “we must deem the goods to travel in all appropriate
trade channels to all potential purchasers of such goods”); American Lebanese Syrian
Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB
2011). Consumers of such services include members of the general public who listen
to radio broadcast services. Thus, the du Pont factors regarding the similarity of the
services, trade channels and classes of purchasers strongly weigh in favor of a finding
of likely confusion.
Serial No. 76709445
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Number and Nature of Similar Marks in Use on Similar Goods
Evidence of use by third parties of similar marks on similar goods is probative of
the ultimate inquiry of likelihood of confusion when such use is so extensive that
“customers have become so conditioned by a plethora of such similar marks that
customers have been educated to distinguish between different [such] marks on the
basis of minute distinctions.” Palm Bay Imports, 73 USPQ2d at 1694. See also Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015).
“[T]he strength of a mark is not a binary factor” and “varies along a spectrum from
very strong to very weak.” Juice Generation, 115 USPQ2d at 1675-76 (internal
citations omitted). “The weaker [the Registrant’s] mark, the closer an applicant’s
mark can come without causing a likelihood of confusion and thereby invading what
amounts to its comparatively narrower range of protection.” Id. at 1676 (internal
citations omitted). See also Palm Bay, 73 USPQ2d at 1693 (“Evidence of third-party
use of similar marks on similar goods is relevant to show that a mark is relatively
weak and entitled to only a narrow scope of protection.”). Third-party registrations
such as those offered by Applicant are not evidence of use of the marks, Olde Tyme
Foods, Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992),
but they can be used to show that a mark or portion thereof has a descriptive or
suggestive meaning, leading to the conclusion that it is weak. See Juice Generation,
115 USPQ2d at 1675; Jack Wolfskin, 116 USPQ2d at 1136; Tektronix, Inc. v.
Serial No. 76709445
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Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (CCPA 1976) (even if “there is no
evidence of actual use” of third-party registrations, such registrations “may be given
some weight to show the meaning of a mark in the same way that dictionaries are
used”).
The record contains the following registrations:11
Reg.
No.
Mark Services Disclaimer
1845914 THE VOICE OF ST.
LOUIS
Radio broadcasting services ST. LOUIS
1992278 SPORTS VOICE OF
THE SOUTH
Radio broadcasting services none
3008342 LA VOZ DE LA
COMMUINIDAD
Television broadcasting
services
none
4235584 RTV VOICE OF THE
WORLD VOICE12
Television and Radio
Broadcasting Services
VOICE
3697506 MEDIA VOICE
GENERATION
Broadcast services, namely,
cable and satellite television
broadcasting services in the
fields of news, current
events, social and cultural
issues, faith issues,
Christianity, spirituality,
and religion; streaming of
audio, video, and
audiovisual content via a
global communications
network in the fields of
news, current events, social
and cultural issues, faith
issues, Christianity,
spirituality, and religion
MEDIA

11 The record contains several cancelled registrations. A cancelled registration is generally
evidence only of the fact that that registration issued. In re Brown-Forman Corp., 81 USPQ2d
1284, 1286 n.3 (TTAB 2006).
12 Applicant is the owner of this registration.
Serial No. 76709445
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3205170 VOICE OF AMERICA Audio broadcasting;
Broadcast of cable television
programmes;
AMERICA
3129068 THE VOICE OF
CHICAGO
Radio broadcasting CHICAGO
4031386 WE’RE
CHICAGOLAND’S
ETHNIC VOICE
Radio program broadcasting none
4471207 VOICE OF THE
SOCIAL
GENERATION
entertainment services,
namely, providing pre-
recorded songs, music,
television shows, and movies
for live performances or
exhibitions broadcasted via
television, radio, satellite,
cable, the Internet, the
global computer network,
PDA’s, mobile telephones
and wireless devices
none
4165580 AMERICA’S NU
VOICE
Broadcasting programs via a
global computer network;
Cable television
broadcasting;
AMERICA’S
4153358 RAISE YOUR VOICE audio, text and video
broadcasting services over
computer or other
communication networks,
namely, uploading, posting,
displaying, tagging, and
electronically transmitting
data, information, audio and
video images;

4508913 CHILDREN’S RADIO
FOUNDATION
AMPLYFYING
YOUTH VOICES
ACROSS AFRICA and
Design
radio broadcasting services,
radio program broadcasting,
radio broadcasting
consultation, and Internet
radio services, namely,
transmission of audio
material via the Internet
FOUNDATION
4618729 CHARTER
SPECTRUM VOICE
pay-per-view television and
video transmission services;
video-on-demand television
transmission services; and
interactive television
VOICE
Serial No. 76709445
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broadcasting and
transmission services
providing access to
information from third-party
sources and the global
computer network
4804725 REACH BEYOND
THE VOICE AND
HANDS OF JESUS,
TOGETHER and
Design
Broadcasting of radio
programs featuring
Christian religious content
or content based on
Christian religious values;
audio and video
broadcasting; broadcasting
programs via a global
computer network;
broadcasting of video and
audio programming on the
Internet; streaming of audio,
visual and audiovisual
material on the Internet
none
4662614 VOICE OF ISRAEL Broadcasting of video and
audio programming over the
Internet
none
4761772 LIBERTY’S VOICE Broadcasting of television,
cable television, satellite
television, internet and
radio programs
none
4823558 Voicekick Broadcasting of audio
programming over the
Internet
none

The record contains no evidence that the referenced third-party marks are in
actual use or that consumers are aware of them. Olde Tyme Foods, 22 USPQ2d at
1545. Thus, the evidence before us falls short of a showing that would allow us to
conclude that “voice” is diluted and commercially weak. Cf., Jack Wolfskin, 116
USPQ2d at 1136 (“extensive” evidence not only of third-party registrations but also
“of these marks being used in internet commerce” for the relevant goods); Juice
Serial No. 76709445
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Generation, 115 USPQ2d 1671 (uncontradicted testimony of “a considerable number”
of third party uses of similar marks, along with third-party registrations). Instead,
we find based on this record and our consideration of the third-party registrations
only that the term “voice” is conceptually weak due to its suggestiveness with respect
to audio broadcasting. Nonetheless, even assuming some degree of conceptual
weakness of VOICE, this is not dispositive, as “likelihood of confusion is to be avoided,
as much between ‘weak’ marks as between ‘strong’ marks.” King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
Similarity or Dissimilarity of the Marks.
In a likelihood of confusion analysis, we compare the marks for similarities and
dissimilarities in appearance, sound, connotation and commercial impression. Palm
Bay, 73 USPQ2d at 1692. “[T]he 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 so that confusion
as to the source of the goods offered under the respective marks is likely to result.”
H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1727 (TTAB 2008). Because the
similarity or dissimilarity of the marks is determined based on the marks in their
entireties, the 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 National 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
23, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and
Serial No. 76709445
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considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion”). On the other hand, 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. National Data Corp., 224 USPQ at 751.
Applicant argues:
Unlike the Applicant’s mark, all of the Cited Registrations
have a common thread – all the Cited Registrations use the
words “voice of” followed by a specific geographic location.
The use of the words “voice of” followed by a specific
geographic location gives the Cited Registrations the
commercial impression that the mark or someone
associated with the mark is speaking on behalf of a specific
geographic location. According to the Merriam-Webster
Dictionary, the term “voice of” means an instrument or
medium of expression or an opinion openly or formally
expressed. … As a result, the commercial impression of
each of the Cited Registrations are indeed quite similar to
each of the other Cited Registrations in that they all give
the commercial impression of: expressing the opinions of a
geographic area, i.e., Chicago, America, New York and St.
Louis.
On the other hand, the Applicant’s mark gives quite a
different commercial impression. In the Applicant’s case,
the textual portion of Applicant’s mark includes only the
single word “VOICE”. …
As a result, the commercial impression can be: the musical
sound produced by the vocal cord. … Additionally, the
commercial impression intended by the Applicant is of the
Applicant himself … which is very different than the
commercial impression of the Cited Registrations, namely
someone speaking on behalf of a geographic area.13

13 Applicant’s brief at 11-12, 7 TTABVUE 12-13.
Serial No. 76709445
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Applicant is apparently relying on the definition of “voice” submitted with the
request for reconsideration which offers “the party became the voice of the workers”
as an example of use for the following definition of voice, “an instrument or medium
of expression.”14 We are not persuaded by the distinction Applicant makes. The
definition offered by Applicant is the definition of “voice,” not the definition of “voice
of.” Further, there is nothing in the example quoted by Applicant that requires the
term “of” to follow “voice” in order to have the definition, “an instrument or medium
of expression.” We see no reason why the same meaning of VOICE would not attach
to all of the marks, particularly when they all involve broadcasting services.
Rather, we find Applicant’s mark to be similar to each of the cited marks. VOICE
is the entirety of Applicant’s mark, and the dominant feature in each of registrant’s
marks. VOICE is the most distinctive word in each of the cited marks. It is also the
first term in each of the cited marks with trademark significance,15 and is the first
term that consumers will perceive when considering the marks. See Palm Bay, 73
USPQ2d at 1692 (“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); Presto Products Inc. v. Nice-Pak Products,

14 October 15, 2015 Req. for Recon., TSDR 2.
15 The term THE in two of the cited registrations has no trademark significance.
Serial No. 76709445
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Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is
most likely to be impressed upon the mind of a purchaser and remembered”).
We have found earlier in this decision that Applicant’s mark is suggestive of his
services, and Applicant has submitted numerous third-party registrations to
demonstrate that the term VOICE is a weak term in the broadcast area. Even if
VOICE is a weak term in the broadcast area, there is no distinguishing term in
Applicant’s mark to differentiate his mark from any of the cited marks, as there are
with each of the cited marks. (The terms CHICAGO, ST. LOUIS and AMERICA
function to differentiate each of the cited marks.) This is not a situation where
Applicant has added terms to differentiate his mark from another mark. Rather,
Applicant has stripped away all of the distinguishing matter from the cited marks,
leaving the consuming public unable to differentiate his mark from any of the cited
marks. In fact, Applicant’s mark may be viewed by consumers as a shortened form of
any one of the cited marks.
In view of the foregoing, and particularly because Applicant’s mark is identical to
the dominant term in registrants’ marks, we find that Applicant’s mark and the cited
marks are similar in overall commercial impression.
The du Pont factor regarding the similarity of the marks favors a finding of
likelihood of confusion.
Balancing the Factors
We have considered all of the arguments and evidence of record and all relevant
du Pont factors. Regardless of the suggestive nature of the shared term VOICE, the
Serial No. 76709445
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overall similarity of the marks for overlapping services that move in the same
channels of trade to the same classes of customers renders confusion likely.
Decision: The refusal to register under Section 2(e)(1) is reversed. The refusal to
register under Trademark Act § 2(d) is affirmed.