Levy-Gardner-Laven Productions, Inc.

Trademark Trial and Appeal Board

Apr 23, 2008

No. 78740442 (T.T.A.B. Apr. 23, 2008)

Mailed:
23 April 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Levy-Gardner-Laven Productions, Inc.
________

Serial No. 78740442
_______

Paul D. Supnik, Esq. for Levy-Gardner-Laven Productions,
Inc.

Steven M. Perez, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
_______

Before Bucher, Rogers, and Drost, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On October 25, 2005, Levy-Gardner-Laven Productions,
Inc. (applicant) filed an application seeking to register
the mark THE RIFLEMAN, in standard character form, on the
Principal Register for goods identified as “Commemorative
series of guns and rifles associated with a television
series” in Class 13. The application (Serial No. 78740442)
is based on applicant’s assertion of a bona fide intention
to use the mark in commerce. The application contains a
claim of ownership of Registration No. 1576916 for the “THE
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
Ser No. 78740442
2
RIFLEMAN” for “entertainment services in the nature of a
continuing television series” in Class 41.
The examining attorney has refused to register
applicant’s mark under Section 2(d) of the Trademark Act,
15 U.S.C. § 1052(d), because of the mark RIFLEMAN (typed or
standard character drawing) registered for “riflescopes;
optical lens scopes” in Class 9 and “scope mounts for
firearms” in Class 13 (No. 3007779, issued to Leupold &
Stevens, Inc. on October 18, 2005).
After the refusal was made final, applicant filed a
request for reconsideration and a notice of appeal.1
In a case involving a refusal under Section 2(d), we
analyze the facts as they relate to the relevant factors
set out in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003); Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000).

1 After the examining attorney filed his brief, applicant sought
a remand to submit additional evidence and to amend the
identification of goods to read: “Commemorative series of
carbine rifles associated with a television series sold only on
special order, similar in appearance to the carbine rifles
featured on ‘The Rifleman’ television series and marketed and
promoted with reference to ‘The Rifleman’ television series and
sold with material referencing ‘The Rifleman’ television series.”
On December 12, 2007, the board denied applicant’s request to
remand the application.

Ser No. 78740442
3
The examining attorney argues that the “marks RIFLEMAN
and THE RIFLEMAN are virtually identical in appearance,
pronunciation and overall commercial impression.” Brief at
unnumbered p. 4. Regarding the goods, the examining
attorney points out that “firearms and firearm scopes and
scope mounts are clearly related and marketed together.”
Brief at 11. The examining attorney points to the third-
party, used-based registrations made of record that include
the following marks and relevant goods:
Reg. No. Goods
0695896 - Air rifles including gun scopes
1214561 - Rifles and scope mount rings and bases
2247250 - Air rifles and scopes for rifles and air
rifles
2499681 - Rifles and aiming scopes
2645000 - Spotting scopes and firearms
3037251 - Firearms and scopes and sights for firearms

Also, the examining attorney included printouts from
the www.precisionarms.com website showing various rifles
equipped with scopes. The website also advertised that it
specializes “in Remington action rifles and Leopold &
Nightforce optics.” Other evidence that the examining
attorney submitted include: printouts from Gamaliel
Shooting Supply and Cabela’s websites showing the sale of
Leupold Rifleman scopes and firearms and a printout from
the Bass Pro Shops website advertising scopes and
muzzleloaders on the same page.
Ser No. 78740442
4
Applicant has submitted a one-page Google printout
that shows the first ten results for a search of “‘the
rifleman.’” These results include:
The Rifleman DVD Set
www.tvdvdplanet.com

The Rifleman – Cast, Crew, Reviews, Plot Summary…
www.imdb.com

The Rifleman
Take a trip back to the town of North Fork. Visit
with Lucas McCain…
Members.tripod.com

The Rifleman Episode Guide List
www.riflemanconnors.com

Another piece of evidence includes a two-page article
about the television show. http://en.wikipedia.org (“The
Rifleman was a television program that ran from 1958 to
1963”). Applicant’s final piece of evidence is a printout
of several definitions of “rifleman” (“a soldier armed with
a rifle” and “a person skilled in the use of a rifle”).
Applicant argues that the “two marks do not carry the
same overall impression because the word THE changes the
meaning completely, and therefore associating the mark with
the television series.” Reply Brief at 2. Furthermore,
applicant argues (Reply Brief at 2-3) that:
While a Google search may not be perfect, it does
point out in effect that the series ran for some five
years with well over 150 episodes. Five years is a
very substantial period of time in that earlier era of
television where the wide variety of programming which
Ser No. 78740442
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exists today through cable and satellite programming
was nonexistent.

Regarding the goods, applicant points out that “the
named goods are specifically delineated as being a
‘Commemorative series of guns and rifles associated with a
television series’ and thus a decidedly different
connotation than the cited registrant’s goods.” Reply
Brief at 4.
We begin with the first du Pont factor, which
“requires examination of ‘the similarity or dissimilarity
of the marks in their entireties as to appearance, sound,
connotation and commercial impression.’” Palm Bay Imports
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting
du Pont, 177 USPQ at 567). Here, the marks are identical
except that applicant has added the definite article “The”
to the registered mark RIFLEMAN. The addition of this word
has not been a significant factor in distinguishing
otherwise confusingly similar marks. Citadel v. Army and
Air Force Exchange Service, 21 USPQ2d 1158, 1159-60 (TTAB
1991) (“The marks are clearly very much alike.
Notwithstanding the fact that opposer is always referred to
by using the definite article “THE” before the word
“CITADEL”, it would be difficult to conclude that if the
Ser No. 78740442
6
parties sold similar products under “CITADEL” and “THE
CITADEL,” respectively, confusion would not be likely.”);
In re Narwood Prod., Inc., 223 USPQ 1034, 1034 (TTAB 1984)
(The fact that applicant's mark includes the definite
article “the” is “obviously insignificant” to likelihood of
confusion analysis); and U.S. National Bank of Oregon v.
Midwest Savings and Loan Ass'n, 194 USPQ 232, 236 (TTAB
1977)(“‘THE’ likewise adds little distinguishing matter
because the definite article most generally serves as a
means to refer to a particular business entity or activity
or division thereof…”).
Applicant has presented little evidence that would
indicate that we should give the term “The” greater
significance in this case. Its evidence consists of the
fact that forty-five years ago there was a show called “The
Rifleman” that ended a five-year run on television.
Applicant’s one page of Google search results with ten
entries hardly establishes that the addition of the term
“the” eliminates the similarity with the registered mark
“Rifleman.” Google search results have not been considered
to be very persuasive evidence. In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833
(Fed. Cir. 2007) (“Bayer asserts that the list of GOOGLE
search result summaries is of lesser probative value than
Ser No. 78740442
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evidence that provides the context within which a term is
used. We agree. 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 this case, applicant has submitted no evidence that
would explain what factors contribute to the order of the
search results or a comparison of search results for the
terms “Rifleman” and “The Rifleman.” Therefore, the term
“The” does not significantly distinguish the marks. The
appearance and pronunciation of the marks are nearly the
same and even their meanings would be similar because both
applicant’s and registrant’s marks would suggest a person
skilled with a rifle and the television show was apparently
about a person who was skilled with a rifle. Regarding
their commercial impression, we cannot see that these marks
would be significantly different inasmuch as both contain
the identical term “Rifleman” and it is not at all clear
that consumers would place great weight on the presence or
absence of the definite article. For example, in a
description of the Leupold Rifleman™ Riflescope, the
advertising refers to the fact that: “the Rifleman is
Ser No. 78740442
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covered by the best consumer protection in the business.”
www.cabelas.com (emphasis added). Thus, it is unlikely
that the presence of the definite article in applicant’s
mark will significantly change the commercial impression of
the marks.
Applicant argues that “the words RIFLE and the word
MAN when placed together as a whole are highly suggestive
of the goods, that is rifles and the parts for rifles.
Thus, when determining the scope of protection and
likelihood of confusion under Dupont, the mark is highly
suggestive and therefore is entitled to only a narrow range
of protection.” Reply Brief at 2. We agree that the term
“Rifleman” for rifles and rifle scopes and mounts is
suggestive of the goods. However, applicant has not shown
that the mark is widely used by others on similar goods.
We also note that even “weak marks are entitled to
protection against registration of similar marks,
especially identical ones, for related goods and services.”
In re Colonial Stores, 216 USPQ 793, 795 (TTAB 1982). See
also In re The Clorox Co., 578 F.2d 305, 198 USPQ 337, 341
(CCPA 1978) (ERASE for a laundry soil and stain remover
held confusingly similar to STAIN ERASER, registered on the
Supplemental Register, for a stain remover).
Ser No. 78740442
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The second du Pont factor is whether the goods of
applicant and registrant are related. The registrant’s
goods are rifle scopes and scope mounts. Applicant’s goods
include commemorative rifles. The examining attorney’s
third-party registrations show that various scopes and
firearms are registered by a single entity under a common
mark. These registrations suggest that there is a
relationship between applicant’s and registrant’s goods.
In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988) (Although third-party registrations are “not evidence
that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, [they] may
nonetheless have some probative value to the extent that
they may serve to suggest that such goods or services are
of a type which may emanate from a single source”). See
also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786
(TTAB 1993).
Goods are related if they are marketed in such a way
that it “could give rise, because of the marks used
thereon, to a mistaken belief that they originate from or
are in some way associated with the same producer or that
there is an association between the producers of each
parties' goods or services.” In re Melville Corp., 18
USPQ2d 1386, 1388 (TTAB 1991). When we consider the goods,
Ser No. 78740442
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absent restrictions in the identification, we must assume
that the goods travel in “the normal and usual channels of
trade and methods of distribution.” CBS Inc. v. Morrow,
708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983). Here,
applicant’s goods are limited to commemorative guns and
rifles associated with a television series. Registrant’s
goods are not limited and they would include all types of
riflescopes, optical lens scopes, and scope mounts for
firearms. See also Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which the sales of goods are directed”) and Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983)(“There is no specific limitation and nothing in the
inherent nature of Squirtco’s mark or goods that restricts
the usage of SQUIRT for balloons to promotion of soft
drinks. The Board, thus, improperly read limitations into
the registration”).
Ser No. 78740442
11
Applicant argues that “there is nothing inherent in
the cited mark that would suggest a relation to the
television series and commemorative goods related to the
television series.” Brief at 5. Even though applicant’s
goods are limited, registrant’s goods are not. Thus, we
have to assume that they would include commemorative
scopes, lenses, and mounts. For example, registrant’s
goods would include commemorative scopes and mounts sold in
association with a television series such as the series,
“The Westerner,” mentioned in applicant’s Wikipedia
article.
Also, applicant’s goods, while somewhat limited
because they are “commemorative,” are not at all limited to
any particular “guns and rifles.” Therefore, we must
assume that these commemorative guns and rifles would
include guns or rifles that may be fitted with applicant’s
riflescopes, lens scopes, and scope mounts. The purchasers
of commemorative rifles and guns and riflescopes and mounts
would at least overlap inasmuch as the purchaser of a
commemorative rifle may wish to add a scope to it.
Furthermore, applicant does not limit the channels of trade
for its firearms and we would have to assume that
commemorative guns and rifles could be sold in the same
retail establishments that sell scopes and mounts.
Ser No. 78740442
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We add that while purchasers of commemorative rifles
and scopes might not be impulse purchasers, we cannot agree
with applicant that they are “discerning” purchasers (Brief
at 14). While some purchasers may be discerning, others
would be simply ordinary purchasers. Even if they were
discerning purchasers, “careful purchasers are not immune
from source confusion.” In re Total Quality Group Inc., 51
USPQ2d 1474, 1477 (TTAB 1999).
When we consider the evidence of record in relation to
the du Pont factors, we conclude that confusion is likely
in this case. The marks are virtually identical, THE
RIFLEMAN and RIFLEMAN, and the goods, commemorative rifles
associated with a television series and rifle scopes and
mounts, are closely related. The purchasers and channels
of trade for these items would overlap. Finally, we add
that to the extent that we have any doubts about confusion,
we have resolved them, as we must, in favor of registrant.
In re Chatam International Inc., 380 F.3d 1340, 71 USPQ2d
1944, 1948 (Fed. Cir. 2004) and In re Hyper Shoppes (Ohio),
Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988).

Decision: The refusal to register applicant’s mark
THE RIFLEMAN under Section 2(d) is affirmed.