Glass Onion, Inc.

Trademark Trial and Appeal Board

Aug 1, 2016

No. 86366080 (T.T.A.B. Aug. 1, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: August 1, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Glass Onion, Inc.
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Serial No. 86366080
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Konrad K. Gatien of Stubbs Alderton & Markiles, LLP,
for Glass Onion, Inc.
Brittany A. Estell, Trademark Examining Attorney, Law Office 112,
Renee Servance, Acting Managing Attorney.
_____

Before Zervas, Kuczma, and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Glass Onion, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark SECRET HIDEOUT (in standard characters) for the following services in
International Class 41: 1
Motion picture services, namely, development, production and distribution
of film, television, video and digital programs, audio recordings, music
recordings; Entertainment services, namely, providing a website where
users can listen and view non-downloadable audio and video content in the
field of film, television, video and digital programs, audio recordings, and

1 Application Serial No. 86366080 was filed on August 13, 2014, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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music; Entertainment and educational services, namely, providing
information related to film, television and media content over the internet.

The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act on the ground that it so resembles the
registered mark THE HIDEOUT for “entertainment services, namely, live show
performances and presentations, live musical entertainment performances; and
special events planning for others,” also in International Class 41,2 as to be likely to
cause confusion, mistake or deception. 15 U.S.C. § 1052(d).
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Applicable Law
Our determination of likelihood of confusion under Section 2(d) of the Trademark
Act 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, 567 (CCPA 1973) (“duPont”) cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., __U.S. __, 135 S.Ct.1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each duPont factor that is relevant and for which there is evidence of
record. See M2 Software, Inc. v. M2 Communications, Inc., 450 F.3d 1378, 78 USPQ2d
1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. and H.J. Heinz Company v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each

2 Reg. No. 3849406, registered on the Principal Register on Sept. 21, 2010. Section 8
declaration accepted and Section 15 declaration acknowledged.
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factor for which we have evidence, we focus our analysis on those factors we find to
be relevant.”). In applying these factors, we are guided by the underlying purposes of
the Lanham Act, which are to “secure to the owner of the mark the goodwill of his
business and to protect the ability of consumers to distinguish among competing
producers.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327,
331 (1985). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976). See also In re i.am.symbolic, LLC, 116 USPQ2d 1406, 1409 (TTAB
2015).
II. Analysis
A. The Marks
Under the first duPont factor, we determine the similarity or dissimilarity of
Applicant’s mark to the cited registered mark as viewed in their entireties in terms
of appearance, sound, connotation and commercial impression. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir.
2014); Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (quoting duPont 177 USPQ at
567).
With respect to this duPont factor, Applicant incorporates by reference the
arguments it advanced during prosecution, where it argued that the addition of the
word SECRET as the first word in its mark, SECRET HIDEOUT, suffices to
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differentiate it from the cited mark.3
Upon comparing Applicant’s mark with the registered mark, THE HIDEOUT, we
agree with the Examining Attorney that the dominant feature of each mark is the
noun HIDEOUT, which means “a place of shelter or concealment.”4 Applicant’s
addition of the adjective SECRET, meaning “kept hidden from knowledge or view;
concealed,”5 merely serves to emphasize the connotation of concealment shared by
both marks. The article THE in the cited mark has no source-indicating significance,
and merely serves to direct attention to HIDEOUT. In re Thor Tech, Inc., 90 USPQ2d
1634, 1635 (TTAB 2009) (“The addition of the word ‘The’ at the beginning of the
registered mark does not have any trademark significance. ‘The’ is a definite article.
When used before a noun, it denotes a particular person or thing.”) (citing inter alia
Conde Nast Pubs. Inc. v. Redbook Pub. Co., 217 USPQ 356, 357 (TTAB 1983)).
Hence, the first words in both marks do little or nothing to differentiate them.
Quite the contrary, they emphasize their shared dominant component, HIDEOUT, a
component that has the same appearance and sound, and conveys the same
connotation and overall commercial impression in both marks. “[I]t is the similarity
of the general overall commercial impression engendered by the marks which must

3 Applicant’s brief at p. 2, 5 TTABVUE 7; Response to Office Action of May 30, 2015 at pp. 3-
5.
4 The American Heritage Dictionary, AHDictionary.com, Office Action of June 26, 2015, p. 8.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
5 The American Heritage Dictionary, AHDictionary.com, Office Action of June 26, 2015, p.
10.
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determine, due to the fallibility of memory and the consequent lack of perfect recall,
whether confusion as to source or sponsorship is likely.” Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991); see also, Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
As a result, we find that these marks, as viewed in their entireties, are similar in
appearance, sound, connotation and overall commercial impression.
B. The Services and Channels of Trade
We turn next to the second and third duPont factors, involving the similarity or
dissimilarity of Applicant’s and Registrant’s services and the channels of trade
through which consumers would encounter them. Where the similarity between
marks increases, the similarity of goods or services needed to support a finding of
likelihood of confusion declines. See In re C. H. Hanson Co., 116 USPQ2d 1351, 1353
(TTAB 2015).
Applicant argues that Registrant is a nightclub that offers live show performances
and presentations, such as comedy acts and live musical entertainment
performances, as well as special events planning for others, whereas Applicant is an
independent motion picture and television production company.6 To bridge the gap
between these two different sorts of service providers, Applicant argues, “something
more” must be shown than that similar marks are used for allegedly similar goods
and services—specifically, “evidence of independent production companies offering

6 Applicant’s brief, p. 4, 5 TTABVUE 9.
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nightclub services, and vice versa.”7
It is settled, however, that in making our determination, we must look to the
services as identified in the application vis-à-vis those recited in the cited
registration. See Stone Lion, 110 USPQ2d at 1161; Octocom Sys., Inc. v. Houston
Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re
Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). We do not read limitations
into the identifications, as Applicant would have it. Id.; Squirtco v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). Moreover, the “something more”
standard applies in certain circumstances when one compares goods with services. In
re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1087 (Fed. Cir. 2014) (“In
situations like the present, in which the relatedness of the goods and services is
obscure or less evident, the PTO will need to show ‘something more’ than the mere
fact that the goods and services are ‘used together.’”) (citing Shen Mfg. Co. v. Ritz
Hotel, Ltd, 393 F.3d 1238, 1244, 73 USPQ2d 1350 (Fed. Cir. 2004)).
When one compares services with services, it is sufficient that the respective
services are related in some manner, or that the conditions and activities surrounding
the marketing of the services are such that they would be likely to be encountered by
the same persons under circumstances that could give rise, because of the marks, to
the mistaken belief that they emanate from the same source, or that there is an
association between the producers of the services. Coach Servs., 101 USPQ2d at 1722;
In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). Further, we need not find

7 Applicant’s brief, p. 4, 5 TTABVUE 10.
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similarity as to each and every activity listed in the recitation of services. It suffices
if confusion is likely as to any item that comes within the recitation of services in the
application and in the cited registration. See Tuxedo Monopoly, Inc. v. General Mills
Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, 116
USPQ2d at 1409.
Once again, Registrant’s identified services are “entertainment services, namely,
live show performances and presentations, live musical entertainment
performances; and special events planning for others.” (Emphasis added.)
Applicant’s identified services are “Motion picture services, namely, development,
production and distribution of film, television, video and digital programs, audio
recordings, music recordings; Entertainment services, namely, providing a
website where users can listen and view non-downloadable audio and video
content in the field of film, television, video and digital programs, audio
recordings, and music; Entertainment and educational services, namely, providing
information related to film, television and media content over the internet.”
(Emphasis added.)
These respective identifications of services simply describe “different conduits for
presenting content”--via live performances, recordings, and websites--“from offering
content through ‘hard copies’ of DVDs or CDs to streaming content over the Internet,”
… conduits that are “‘generally recognized as having a common source of origin.’” In
re Mr. Recipe, LLC, 118 USPQ2d 1084, 1093 (TTAB 2016) (quoting In re St. Helena
Hospital, 113 USPQ2d at 1087). It is common knowledge that live performances at
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entertainment venues may be the subject of audio and video recordings, and may be
streamed via the Internet.
To demonstrate this point, the Examining Attorney has adduced third-party
evidence demonstrating that both Applicant’s and Registrant’s identified services
may come from a single source:
• Country Music Television -- provides a live music awards show, television
shows, and online videos;
• Disney – provides live theatrical performances, events, motion pictures, and
online videos;
• Nickelodeon Television Channel – provides a live show, radio and
television shows, and online videos;
• The Smithsonian – provides a live Discovery Theater, special events, music
recordings, television shows, and online videos;
• Universal – provides live shows, special event planning, and movie
production;
• Warner Bros. – provides live theater, special events, and film and television
production.8
Applicant argues that these third parties are large, nationally recognized film
and television studios that also provide theme parks, hotel services and cruise lines,
unlike Applicant and other similar independent production companies.9 But that does

8 Office Action of June 26, 2015, pp. 4 et seq.
9 Applicant’s brief, p. 3, 5 TTABVUE 8.
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not render this third-party evidence irrelevant. For example, in In re Toshiba Medical
Systems Corp., 91 USPQ2d 1266 (TTAB 2009) the examining attorney refused
registration to a medical MRI manufacturer on the ground that its proposed mark
resembled a registered mark owned by a medical ultrasound manufacturer. The
evidence in that case showed that MRI and ultrasound diagnostic equipment can
originate from the same source. Id. at 1272. The Board found that “While applicant
points out that some of these companies are ‘large international companies often
engaged in vast and diverse business areas’ …, this fact would not mean that this
evidence is irrelevant. When applicant and its competitors are the source of both
applicant’s and registrant’s goods in the same field, it is of no aid to applicant to show
that its competitors also make unrelated products.” Id. at 1272n. 12.
Additionally, the Examining Attorney provided third party registrations owned
by smaller companies and individuals, indicating use of the same mark to provide
different conduits of content: live performances, visual and audio recordings, and
online content. E.g.:
Registration Registrant Services
4640406 Dowling’s Palace, Inc. “entertainment services, namely, live,
televised appearances by a professional
entertainer; entertainment services,
namely, providing a web
site featuring musical performances,
musical videos, related film clips, and
non-downloadable photographs;
entertainment services, namely,
providing non-downloadable prerecorded
music…all online via a global computer
network”
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4640161 Fly America LLC “entertainment in the nature of live
concerts and performances by musical
artists and groups; entertainment
services, namely, performances by
musical artists rendered live; providing a
web site with non-downloadable
multimedia materials featuring music
and music videos”
4645153 Todd Anthony Hall “entertainment,
namely, live music concerts;
entertainment services, namely,
providing non-downloadable prerecorded
music, information in the field of music,
and commentary and articles about
music, all on-line via a global computer
network”
4641011 ScheanaMarie Jancan “entertainment in the nature of live
performances by a musical artist;
entertainment, namely, live music
concerts; entertainment services, namely,
providing a website featuring news and
information about a motion picture and
television celebrity, related photographs,
and other multimedia materials
featuring a motion picture and television
celebrity”10

Such third-party registrations indicate that Applicant and Registrant’s identified
services may originate from the same source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988) aff’d per curiam, 864 F.2d 149 (Fed. Cir.1988).
Applicant maintains that that it is an entertainment production and development
company, which would have quite different channels of trade from Registrant, a

10 Office Action of Dec. 5, 2014, pp. 5-22.
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nightclub.11 As the Supreme Court has stated, though, “The usages listed in the
application … [including] if applicable, their channels of distribution—are critical.
See, e.g., 3 McCarthy §20:24, … at 20–85 (explaining that if an “application does not
delimit any specific trade channels of distribution, no limitation will be” applied).”
B&B Hardware, 113 USPQ2d at 2049. Here, there are no identified limitations;
Applicant’s and Registrant’s conduits of communication overlap, indicating common
channels of trade. See generally United Global Media Group, Inc. v. Tseng, 112
USPQ2d 1039, 1049 (TTAB 2014) (presume same channels of trade).
These duPont factors therefore weigh in favor of finding a likelihood of confusion.
C. The Purchasers and Conditions Surrounding Purchase
Applicant argues that the purchasers of its services are sophisticated motion
picture and television studios, with whom Applicant painstakingly negotiates
business deals. Conversely, the purchasers of Registrant’s services, Applicant argues,
are bands and acts (or their management teams) that negotiate and book tour dates,
as well as the public that pays to see the shows. As such, Applicant concludes, “the
relevant purchasers are discriminating, and there is no similarity in the nature of the
purchasers and conditions surrounding purchase that would lead to a likelihood of
confusion between Applicant and Registrant.”12
However, because Applicant’s identification of services is not restricted to
professional studios, its services, like Registrant’s, are presumed to travel in all

11 Applicant’s brief, p. 5, 5 TTABVUE 10.
12 Applicant’s brief, p. 7, 5 TTABVUE 12.
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normal and usual channels to all normal potential classes of purchasers for those
services. See, e.g., Stone Lion, 110 USPQ2d at 1160; Coach Servs., 101 USPQ2d at
1722; Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351,
1357 (Fed. Cir. 2000). Its identified services, including “audio and video content in
the field of film, television, video and digital programs, audio recordings, and music,”
offered via the Internet and other media, are the sort of fare offered to the general
public. As the Examining Attorney correctly notes, Applicant’s and Registrant’s
customers would tend to be the same: “[T]he same consumer who views a live show,
concert or presentation, will also be the same consumer who frequents a
performance’s corresponding website for audio, video, and information related
thereto.”13 This class of customers would contain both sophisticated and
unsophisticated purchasers. Bd. of Regents v. So. Ill. Miners, LLC, 110 USPQ2d 1182,
1193 (TTAB 2014) (“Although some of the parties’ more knowledgeable consumers
may be more careful in their purchase, neither the registrations nor the applications
contain limitations on the classes of customers. We therefore must not limit our
consideration of this factor to the more sophisticated purchasers within the classes of
potential customers.”). And since there is no restriction as to price or quality in
Applicant’s identification of services, there is no reason to infer that the members of
the general public would be particularly discriminating or careful in making their
purchases. See In re i.am.symbolic, 116 USPQ2d at 1413 (no limitation of price).
Hence, these factors favor a finding of likelihood of confusion.

13 Examining Attorney’s brief, 7 TTABVUE 13.
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D. The Extent of Potential Confusion
Addressing the twelfth duPont factor, Applicant urges that, “given the very
different purchasers of the services at issue and the obvious differences in which the
services are offered and purchased in commerce, Applicant respectfully submits that
any potential confusion would be de minimis.”14 As the foregoing analysis
demonstrates, however, this case entails similar marks, used in connection with
overlapping services that would tend to travel through the same channels of trade to
the same classes of customers--customers who may not be particularly sophisticated
and who cannot be expected to exercise any particular degree of care in their
purchases. For these reasons, the likelihood of confusion is not de minimis.
III. Conclusion
After considering all of the evidence of record, including any evidence not
specifically discussed herein, we find that Applicant’s applied-for mark SECRET
HIDEOUT is likely to cause confusion with the cited registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s mark SECRET HIDEOUT is
affirmed.

14 Applicant’s brief, p. 8, 5 TTABVUE 13.