Ming Int’l., Inc.

Trademark Trial and Appeal Board

Jun 24, 1998

No. 74678296 (T.T.A.B. Jun. 24, 1998)

Paper No. 11
GDH/MD
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JUNE 24, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Ming International, Inc.
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Serial No. 74/678,296
_______
Maurice B. Pilosof of Novian, Novian & Younesi for Ming
International, Inc.
Katherine Stoides, Trademark Examining Attorney, Law Office 109
(Deborah S. Cohn, Managing Attorney).
_______
Before Quinn, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Ming International, Inc. has filed an application to
register the mark "STAMP" for "clothing, namely[,] jackets,
pants, shirts, dresses and blouses".1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that

1 Ser. No. 74/678,296, filed on May 22, 1995, which alleges dates of
first use of February 1988.
Ser. No. 74/678,296
2
applicant’s mark, when applied to its goods, so resembles the
mark "THE STAMP COLLECTION" and design, as reproduced below,
which is registered for "retail store services in the toy and
clothing fields,"2 as to be likely to cause confusion, mistake or
deception.3
Applicant has appealed. Briefs have been filed,4 but
an oral hearing was not requested. We affirm the refusal to
register.
Turning first to consideration of the respective goods
and services, applicant "concedes that the goods and services are
related, and that in the absence of any evidence to the contrary,

2 Reg. No. 1,199,121, issued on June 22, 1982, which sets forth dates
of first use of July 14, 1980; combined affidavit §§8 and 15. The
words "Fine Children's Clothes" are disclaimed.
3 Although originally, the Examining Attorney also refused registration
in view of Reg. No. 829,833, which issued to another registrant on
June 6, 1967 for the mark "POSTAGE STAMP" for "girdles," the Examining
Attorney states in her final refusal that, "[u]pon further
consideration, the refusal under Section 2(d), citing U.S.
Registration No. 829,833[,] is hereby withdrawn."
4 While the Examining Attorney, in her brief, argues the merits of the
refusal under Section 2(d) as to both of the registrations originally
cited, applicant in its reply brief correctly points out that, in the
final refusal, the Examining Attorney "withdrew the objection to
Applicants's [sic] registration of its mark on the basis of the
previously cited registration for the mark 'POSTAGE STAMP'."
Consequently, as applicant observes, "the issue of whether there is a
Ser. No. 74/678,296
3
the trade channels are similar," as contended by the Examining
Attorney. Applicant asserts, however, that "[t]his concession
does not alter the fact that no likelihood of confusion is
presented with respect to the marks involved in this appeal."
Nevertheless, it bears emphasizing that the question of
likelihood of confusion is determined, in part, on the basis of
the goods and services as set forth in the respective application
and cited registration.5 Thus, as the Examining Attorney
properly observes:
[Since] the application describes the goods
broadly and there are no limitations as to
their nature, type, channels of trade or age
group of purchasers, it is presumed that the
identification [of goods] encompasses all
those of the type described, that they will
move in all normal channels of trade, and
that they are available to all potential
customers. [See, e.g., In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).] As the applicant
has not restricted the identification of
goods with respect to channels of trade
and/or intended customer[s], it is presumed
that the jackets, pants, shirts, dresses and
blouses [marketed by applicant] will be made
for all sizes, including children’s sizes,
and that these items of clothing will be
offered for sale in all normal channels of
trade, including the registrant’s retail
stores. ....
Applicant’s goods and registrant’s services plainly are so
closely related that, if offered under the same or similar marks,
confusion would be likely as to the source or sponsorship
thereof.

likelihood of confusion as between Applicant’s mark and the mark
’POSTAGE STAMP’ is not properly before the Board."
5 See, e.g., CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed.
Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 F.2d 937, 940
Ser. No. 74/678,296
4
Considering, then, the respective marks, we disagree
with applicant’s contention that, because the marks "STAMP" and
"THE STAMP COLLECTION" and design have only the word "STAMP" in
common, they are similar only in appearance and have no
similarity in sound, meaning or commercial impression. Although
we also disagree with the Examining Attorney’s assertion that, in
terms of its similarities to applicant’s "STAMP" mark, the
dominant portion of registrant’s mark is merely the word "STAMP,"
consideration of such marks in their entireties, together with
the fact that stamps plainly form the basis of any stamp
collection, lead us to the conclusion that contemporaneous use of
the respective marks in connection with items of clothing and
retail store services featuring clothing would be likely to cause
confusion.
In the present case, applicant’s "STAMP" mark is
similar in appearance and sound to the words "THE STAMP
COLLECTION" in registrant’s mark. Such words, which appear in
much larger type than the words "Fine Children’s Clothes,"
visually and phonetically comprise the most prominent of the
literal elements in registrant’s mark. Moreover, registrant’s
mark depicts a bold and striking stamp design which, in
connotation, is synonymous in meaning with the word "STAMP" in
applicant’s mark.6 Furthermore, in addition to the descriptive

(Fed. Cir. 1983); and Paula Payne Products Co. v. Johnson Publishing
Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973).
6 As stated in Pink Lady Corp. v. L. N. Renault & Sons, Inc., 265 F.2d
951, 121 USPQ 465, 466 (CCPA 1959): "It is well settled that words
and the symbols identified thereby will be given the same significance
in determining the likelihood of confusion between two marks." See
Ser. No. 74/678,296
5
phrase "Fine Children’s Clothes," registrant’s mark contains a
teddy bear design and the word "COLLECTION". Such features
indicate that registrant is a retailer of a line of clothing for
children. Taken together, the elements of registrant’s mark
create a mark which conveys the image of a retail store which
sells a collection of children’s apparel.
In view thereof, and since a stamp collection obviously
is composed of stamps, consumers who are familiar or acquainted
with registrant’s "THE STAMP COLLECTION" and design mark for
retail store services in the toy and clothing fields could
reasonably believe, upon encountering applicant’s highly similar
"STAMP" mark for clothing, namely, jackets, pants, shirts,
dresses and blouses, that such goods constitute a line of fine
children’s clothing which is sold, licensed or otherwise
sponsored by or affiliated with registrant. The overall
similarities in the respective marks in sound and appearance,
coupled with the significant fact that, in terms of the
connotation of the marks, a stamp--as underscored by the design
thereof in registrant’s mark--is an item which would be found in
any stamp collection, combine to create marks which, given the
children’s theme in registrant’s mark, are substantially similar
in overall commercial impression when used in connection with
items of children’s clothing, on the one hand, and retail store

also Izod, Ltd. v. Zip Hosiery Co., Inc., 405 F.2d 575, 160 USPQ 202,
203 (CCPA 1963) [picture of a tiger head and word mark "TIGER HEAD"];
In re Duofold Inc., 184 USPQ 638, 640 (TTAB 1974) [picture of a golden
eagle and word mark "GOLDEN EAGLE"]; and In re Penthouse Int’l Ltd.,
175 USPQ 42, 43 (TTAB 1974) [picture of a key and word mark "KEY"].
Ser. No. 74/678,296
6
services which feature children’s clothing, on the other.
Confusion as to the origin or affiliation of such closely related
products and services would consequently be likely to occur.
Decision: The refusal under Section 2(d) is affirmed.
T. J. Quinn
G. D. Hohein
P. T. Hairston
Administrative Trademark Judges,
Trademark Trial and Appeal Board