KidsPark, Inc.

Trademark Trial and Appeal Board

Feb 27, 2001

No. 75576807 (T.T.A.B. Feb. 27, 2001)

02/27/01
Paper No. 10
RFC
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re KidsPark, Inc.
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Serial No. 75/576,807
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Harold C. Hohbach of Flehr Hohbach Test Albritton & Herbert
LLP for KidsPark, Inc.
Gina M. Fink, Trademark Examining Attorney, Law Office 103
(Michael Szoke, Managing Attorney).
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Before Cissel, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Cissel, Administrative Trademark Judge:
On October 23, 1998, applicant filed the above-
referenced application to register the mark shown below
on the Principal Register for “child care services,” in
Class 42. The application was based on applicant’s claim
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/576,807
2
of use of the mark in connection with the services since
March 11, 1996.
The Examining Attorney refused registration under
Section 2(d) the Lanham Act on the ground that applicant’s
mark so resembles the mark “CHILDREN’S PARK,” which is
registered1 for “professional child care services,” in Class
42, that confusion is likely.
Applicant responded to the refusal of registration
with arguments that confusion is not likely because of
differences in the appearances of the marks, differences in
their pronunciations and differences in their connotations.
Among other things, applicant contended that the word “kid”
is defined as “a young goat,” and only as a colloquial
expression is it used in reference to a child or young
person. Based on this reasoning, applicant concluded that
the words “CHILDREN’S” and “KIDS” are not necessarily
synonymous, and that this fact, along with the differences
in the overall appearances, spellings and pronunciations of
the marks, including the substantial design portion of the
mark applicant seeks to register, renders confusion
unlikely. Further, applicant argued that because the word
1 Registration No. 1,305,492 was issued on the Principal Register
to Children’s Park, Inc. on November 13, 1984 with a disclaimer
of the descriptive word “CHILDREN’S.” A combined affidavit under
Sections 8 and 15 of the Lanham Act was subsequently accepted and
acknowledged.
Ser No. 75/576,807
3
“CHILDREN’S” is disclaimed in the cited registration, it is
weak in source-identifying significance.
The Examining Attorney was not persuaded by
applicant’s arguments, and in the second Office Action, the
refusal to register under Section 2(d) of the Act was
repeated and made final. In response to applicant’s
arguments with respect to the similarity the marks, the
Examining Attorney made of record additional evidence in
support of the refusal to register. A copy of an entry
from a dictionary explains that the designation
“colloquial” is used to indicate that a term is in
widespread use and is generally characteristic of
conversation or informal writing. The same dictionary
lists the meaning of “kid” as “a child or young person,”
and designates this meaning as the colloquial one. Also
attached to the final refusal to register were copies of a
number of excerpts retrieved from the Nexis
database of
articles published in periodicals. These articles provide
many examples of the interchangeable use of the words
“kids” and “children” as synonyms.
Applicant filed a timely Notice of Appeal. Both
applicant and the Examining Attorney filed briefs.
Applicant filed a reply brief, but did not request an oral
hearing before the Board.
Ser No. 75/576,807
4
The sole issue before us in this appeal is whether
confusion is likely to arise from applicant’s use of the
mark it seeks to register in connection with child care
services in view of the registered mark “CHILDREN’S PARK”
for the identical services. The record before us in this
appeal supports the conclusion that confusion is likely.
The predecessor to our primary reviewing court has set
forth the factors to be considered in resolving the issue
of likelihood confusion in In re E. I. Du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Chief among
these factors are the similarities of the marks as to
appearance, sound, meaning and commercial impression and
the similarity of the services with which the marks are
used.
Although applicant argues strenuously that there are
distinctions to be drawn between the child care services it
renders under its mark and the child care services provided
by the owner of the cited registration, we cannot adopt
that conclusion. Applicant’s advertising brochure provides
details concerning the nature of applicant’s services, but
the only information of record in connection with the
services rendered under the registered mark is the
registration itself, which broadly describes registrant’s
services as “child care services.” Moreover, the
Ser No. 75/576,807
5
distinctions argued by applicant are not reflected in the
language used to describe the services in either the
application or the cited registration. In resolving the
question of whether confusion is likely, we must consider
the services to be as they are recited in the application
and the cited registration, without limitations or
restrictions that are not reflected therein. Toys “R” Us,
Inc. v. Lamps R Us, 219 USPQ 340 (TTAB 1983), and cases
cited therein. As noted above, the services set forth in
the application are the same as the services identified in
the cited registration.
In situations where the services are the same or very
closely related, the degree of similarity between the marks
required to support a finding of likelihood of confusion is
not as great as would be the case if the services were not
so closely related. ECI Division of E Systems, Inc. v.
Environmental Communications Inc., 207 USPQ 443 (TTAB
1980).
In the case at hand, not only are the services
designated in the application and the cited registration
identical, the marks are very similar as well. We must
examine the marks in their entireties in resolving whether
confusion is likely under Section 2(d) of the Lanham Act.
In doing so, however, we may nevertheless recognize that
Ser No. 75/576,807
6
one feature of a mark may have more source-identifying
significance than others, and greater weight is typically
given to such a dominant feature in determining whether
confusion is likely. In re National Data Corp., 224 USPQ
749 (Fed. Cir. 1985). In the mark applicant seeks to
register, the term “KIDSPARK” is the dominant component of
the mark. Although the slogan underneath the word and the
bouncing ball design cannot be ignored, they do not alter
the commercial impression created by the dominant element
in the mark, “KIDSPARK.” That term is the same as
applicant’s trade name, and it is the portion of the mark
which customers are more likely to remember and use when
calling for or recommending applicant’s services.
The commercial impression created by applicant’s mark
is dominated by “KIDSPARK,” and this term is very similar
in connotation to the registered mark, “CHILDREN’S PARK.”
As noted above, the evidence amply demonstrates that the
words “kids” and “children’s” are synonymous in ordinary
parlance. To contend that the “young goat” meaning would
be attributed to “kids” in the context of child care
services is illogical and unrealistic. Each of these two
marks combines one or the other of these two synonyms with
the word “PARK,” which is at most suggestive in connection
with the services rendered by applicant and the owner of
Ser No. 75/576,807
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the cited registration, in that it names a place where
children can play. Applicant points out all the technical
distinctions between the marks in the number of letters and
syllables, and resulting differences in appearances and
pronunciation of these two marks, but the fact remains that
the commercial impressions these two marks create are very
similar because their connotations are the same.
Notwithstanding applicant’s arguments to the contrary, the
marks have the same meaning because they combine synonyms
with the same suggestive term. This similarity in
connotation alone is a sufficient basis upon which to
predicate a finding that confusion is likely in
circumstances such as these, where the services are
identical.
In summary, because applicant’s mark and the
registered mark create similar commercial impressions when
both are used in connection with child care services,
confusion is likely.
Decision: The refusal to register under Section 2(d)
of the Lanham Act is affirmed.