KidsPark, Inc.

Trademark Trial and Appeal Board

Feb 9, 2001

No. 75576809 (T.T.A.B. Feb. 9, 2001)

02/09/01
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. 75/576,809
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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 “KIDSPARK” on
the Principal Register for “child care services,” in Class
42. The application was based on applicant’s claim of use
of the mark in connection with these services since October
28, 1988, and use in interstate commerce in connection with
the services since at least as early as November 25, 1988.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/576,809
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The Examining Attorney refused registration under
Section 2(d) of 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 an differences in
the appearances of the marks, their spellings and their
pronunciations make confusion unlikely. Further, applicant
argued that because the word “children’s” is disclaimed in
cited registration, it is weak in source-identifying
significance.
1 Reg. 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. 75/576,809
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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 Lanham Act
was repeated and made final. The Examining Attorney
responded to applicant’s arguments with respect to the
similarity of the marks, and 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 timely filed a Notice of Appeal. Both
applicant and the Examining Attorney filed briefs, but
applicant did not request an oral hearing before the Board.
The sole issue before us in this appeal is whether
confusion is likely to arise from applicant’s use of the
mark “KIDSPARK” in connection with child care services in
Ser No. 75/576,809
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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 set
forth the factors to be considered in resolving the issue
of likelihood confusion in In re E. I. duPont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Chief among
these factors are the similarity 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 in its brief that there are
distinctions to be drawn between the child care services it
renders and those provided by the owner of the cited
registration, we cannot adopt that conclusion. There is no
evidence of record in support of it, and it is 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
Ser No. 75/576,809
5
the application are the same as the services specified 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 of 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 instant case, not only are the services
designated in the application and the cited registration
identical, the marks are very similar as well. 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. 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 the cited
registration, in that it names a place where children can
play. Applicant can and does point out all the technical
distinctions betweem the marks in the number of letters and
syllables, and the resulting differences in appearance and
Ser No. 75/576,809
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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
fact that the marks have the same meaning because they
combine synonyms with the same suggestive term 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, “KIDSPARK,” and
the registered mark, “CHILDREN’S PARK,” 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.
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