Global Connections, Inc.

Trademark Trial and Appeal Board

Mar 6, 2009

No. 77079812 (T.T.A.B. Mar. 6, 2009)

Mailed: 3/6/09

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Global Connections, Inc.
________

Serial No. 77079812
_______

Raghu R. Raju of Weinstock & Scavo for Global Connections,
Inc.

Sani Khouri, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______

Before Quinn, Hairston and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Global Connections, Inc. filed an application to
register the mark ESCAPE.EXPLORE.DISCOVER. for
Travel agency services, namely,
arranging transportation by air, ground
vehicles, boat and rail for
individuals, making reservations and
bookings for transportation; arranging
and making reservations and bookings
for travel tours; providing packaged
travel-related services by way of a
travel membership program, namely,
providing travel booking agency
services; travel agency services,
featuring a travel membership program
which issues credits which may be
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 77079812
2
redeemed for travel-related services,
namely, reservations and booking for
transportation (in International Class
39); and

Travel agency services, namely,
arranging temporary accommodations and
making reservations and bookings for
temporary accommodations; providing
packaged travel-related services by way
of a travel membership program, namely,
providing temporary accommodations;
travel agency services, featuring a
travel membership program which issues
credits which may be redeemed for
travel-related services, namely,
reservations and bookings for temporary
lodging (in International Class 43).1

The trademark examining attorney refused registration
under Section 2(d), 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used in connection with applicant’s
services, so resembles the previously registered mark
EXPLORE & DISCOVER for “travel agency services, namely,
making reservations and bookings for transportation; travel
booking agencies; arranging travel tours; organization,
booking and arrangement of excursions, day trips and
sightseeing tours for others” (in International Class 39),2
as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.

1 Application Serial No. 77079812, filed January 10, 2007,
alleging first use anywhere on November 7, 2005, and first use in
commerce on December 6, 2005.
2 Registration No. 3216789, issued March 13, 2007.
Ser. No. 77079812
3
Applicant argues that the examining attorney has
failed to carefully analyze applicant’s position,
especially with respect to the dissimilarity between the
marks. Applicant highlights the fact that the first word
in applicant’s mark, “ESCAPE,” is distinctly different from
the beginning of the registered mark. The word “ESCAPE” in
applicant’s mark creates an entirely different commercial
impression from registrant’s mark, applicant argues, and,
when coupled with the additional difference in punctuation,
makes confusion between the two marks unlikely to occur
among consumers. According to applicant, the term “escape”
is unrelated to the terms “explore” and “discover” and, as
such, is unique. Because of this, and given that it is the
first word in applicant’s mark, the term “ESCAPE” is likely
to be remembered and used by consumers to distinguish the
marks. Applicant also contends that the terms “explore”
and “discover” are commonly used in the travel industry,
thereby rendering the cited mark weak and entitled to a
narrow scope of protection. Applicant also asks the Board
to do a “real world comparison” of the actual uses of the
marks in order to see that there is no likelihood of
confusion between the two marks. With respect to the
services, applicant asserts that any overlap is minimal,
and that its services are aimed at consumers interested in
Ser. No. 77079812
4
a travel membership program, whereas registrant’s services
are targeted to travelers interested in European tours.
Further, applicant points out that the involved marks have
been contemporaneously used for over two years without any
instances of actual confusion. In support of its
arguments, applicant submitted a dictionary definition of
the word “escape”; one example of each mark as actually
used in commerce; and a printout of a Google search summary
showing the terms “explore” and “discover” used together.3
The examining attorney maintains that the addition of
the term “ESCAPE” in applicant’s mark is insufficient to
distinguish its mark from the registered mark. As to the
services, the examining attorney points out that the
services, as identified, are similar, and that any
distinctions relied upon by applicant are not reflected in
the respective recitations of services. The examining

3 Applicant accompanied its reply brief with additional Google
summaries, these two based on searches of “explore discover
travel” and “explore discover vacation.” The record in the
application should be complete prior to the filing of an appeal.
Trademark Rule 2.142(d). Accordingly, exhibits attached to a
brief that were not made of record during examination are
untimely, and will not be considered. See In re Fitch IBCA,
Inc., 64 USPQ2d 1058, 1059 n.2 (TTAB 2002). See also TBMP
§1203.02(e) (2d ed. rev. 2004). Because this evidence was not
timely made of record, we have not considered it. We hasten to
point out, however, that even if considered, it suffers from the
same lack of probative value as the earlier search summary (see
discussion, infra).
Ser. No. 77079812
5
attorney lastly points out that actual confusion is not
necessary to establish a likelihood of confusion.
Our determination of the issue of likelihood of
confusion 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 (CCPA 1973). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, 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).
We first turn to consider the services. In comparing
the services, the question of likelihood of confusion must
be determined based on an analysis of the services recited
in applicant’s application vis-à-vis the services
identified in the cited registration. In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687, 1690 n. 4 (Fed. Cir. 1993);
and Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
1490, 1 USPQ2d 1783 (Fed. Cir. 1992). In this case,
applicant’s services include “travel agency services,
namely, arranging transportation by air, ground vehicles,
boat and rail for individuals, making reservations and
Ser. No. 77079812
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bookings for transportation” in Class 39 and “travel agency
services, namely, arranging temporary accommodations and
making reservations and bookings for temporary
accommodations” in Class 43, while registrant’s services
include “travel agency services, namely, making
reservations and bookings for transportation.”
As recited in the portions of the respective
application and cited registration referenced above, the
services are legally identical and/or closely related for
purposes of the likelihood of confusion analysis.
Likelihood of confusion may be found based on any service
that comes within the recitation of services in the
involved application or registration. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981). This factor weighs heavily in favor
of likelihood of confusion.
Applicant attempts to distinguish the services by
arguing that its travel agency services involve a travel
membership program promoted by direct presentations to
consumers, whereas registrant’s travel agency services
involve European tours promoted on the Internet. These
restrictions are not reflected in the portions of either
applicant’s or registrant’s recitation of services
referenced above, and it is not proper for the Board to
Ser. No. 77079812
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read limitations into either recitation. See Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983).
Regarding the purchasers and channels of trade, there
would be an overlap. As identified, the services are
rendered through the same trade channels, namely travel
agencies, and the services are rendered to the same classes
of purchasers. These purchasers would include ordinary
consumers who would be expected to exercise nothing more
than ordinary care in buying either applicant’s or
registrant’s services. These factors weigh in favor of a
likelihood of confusion.
With respect to the marks, we must compare the marks
in their entireties as to appearance, sound, connotation
and commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test, under the
first du Pont factor, 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
Ser. No. 77079812
8
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). Finally, where, as in the present case, the marks
are used in connection with legally identical or closely
related services, the degree of similarity between the
marks that is necessary to support a finding of likely
confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed.
Cir. 1992).
Applicant’s mark is ESCAPE.EXPLORE.DISCOVER. and
registrant’s mark is EXPLORE & DISCOVER. We must compare
the marks as depicted in the respective drawings. Thus,
contrary to the gist of one of applicant’s arguments, the
fact that in “the real world” applicant’s name “Global
Connections” appears immediately above the mark sought to
be registered herein is of no moment.
The two marks obviously share the words “EXPLORE” and
“DISCOVER” in the same order. The presence of periods in
applicant’s mark and an ampersand in registrant’s mark,
differences highlighted by applicant, are insufficient to
distinguish the marks. See In re General Electric Co., 180
USPQ 542, 544 (TTAB 1973). See also In re Vanilla Gorilla,
L.P., 80 USPQ2d 1637, 1640 (TTAB 2006). Thus, the
Ser. No. 77079812
9
comparison of the marks boils down to whether the addition
of the term “ESCAPE” in applicant’s mark is enough to
distinguish the two marks in the minds of consumers. We
think not.
The addition of the term “ESCAPE” in applicant’s mark
admittedly creates a specific difference between the marks
in sound and appearance. The term “ESCAPE” in applicant’s
mark is the first portion of the mark, a fact that enhances
the probability that consumers will notice it. However,
this term is followed by “EXPLORE” and “DISCOVER,” the same
terms that make up registrant’s mark. Thus, while there is
a specific difference in the first words of the marks, the
remainder of the marks comprises the identical terms in the
same order. See, e.g., In re Chatham International Inc.,
380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) [JOSE GASPAR
GOLD for tequila and GASPAR’S ALE for beer and ale likely
to cause confusion]; Henry Siegel Co. v. M & R
International Mfg. Co., 4 USPQ2d 1154 (TTAB 1987) [L.A.
CHIC and CHIC for women’s clothing likely to cause
confusion]; and Uncle Ben’s, Inc. v. Stubenberg
International, Inc., 47 USPQ2d 1310 (TTAB 1998) [UNCLE
BEN’S for rice and BEN’S BREAD for bread mix likely to
cause confusion].
Ser. No. 77079812
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In considering meaning and overall commercial
impression, we acknowledge the highly suggestive nature of
the marks. In an attempt to limit the scope of protection
afforded to the registered mark, applicant relied upon a
Google search result summary for a search of “explore and
discover.” This evidence, however, does not provide the
context within which the terms are used. Indeed, some of
the summaries appear to show use of the terms “explore” and
“discover” in contexts wholly unrelated to the travel
industry (see, e.g., a library’s summer reading program and
a Girl Scout badge project). “Search engine results –
which provide little context to discern how a term is
actually used on the webpage that can be accessed through
the search result link – may be insufficient to determine
the nature of the use of a term or the relevance of the
search results to registration considerations.” In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1833 (Fed. Cir. 2007). To be clear on this point, the
record is devoid of evidence of any third-party
registrations or uses of similar marks in the travel
industry. Be that as it may, we acknowledge that the terms
comprising the marks are commonly understood words that are
suggestive when used in connection with travel agency
services. However, the marks suggest the same idea, that
Ser. No. 77079812
11
is, travel agencies that book travel to allow one to
explore and discover various geographical locations. The
fact that applicant’s mark includes “ESCAPE” does not alter
our view on this point. The term “escape” means “to break
loose from confinement; break free.” The American Heritage
Dictionary of the English Language (4th ed. 2006). In order
to be able to “explore and discover,” a traveler must
necessarily “escape” from the rigors of everyday life.
Thus, the addition of this term in applicant’s mark does
not alter the mark’s overall meaning or commercial
impression in any appreciable manner.
In view of the above, we find, on balance, that the
similarities between the marks outweigh the
dissimilarities. This factor weighs in favor of a
likelihood of confusion.
Applicant claims that there has been no actual
confusion between the marks despite over two years of
contemporaneous use. Simply put, applicant’s
uncorroborated statement of no known instances of actual
confusion is of little evidentiary value. In re Majestic
Drilling Co., 65 USPQ2d at 1205. The lack of evidence of
actual confusion carries little weight, especially in an ex
parte context. Id. This factor is neutral in our
analysis.
Ser. No. 77079812
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We conclude that consumers familiar with registrant’s
travel agency services rendered under the mark EXPLORE &
DISCOVER would be likely to believe, upon encountering
applicant’s travel agency services rendered under the mark
ESCAPE.EXPLORE.DISCOVER., that the services originated with
or are somehow associated with or sponsored by the same
entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.