Moore Business Forms, Inc.

Trademark Trial and Appeal Board

Nov 4, 1998

No. 75148395 (T.T.A.B. Nov. 4, 1998)

Paper No. 9
HANAK/md
THIS DISPOSITION IS NOT CITABLE AS
PRECEDENT OF THE TTAB 11/4/98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Moore Business Forms, Inc.
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Serial No. 75/148,395
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Robert A. Vanderhye of Nixon & Vanderhye P.C. for Moore
Business Forms, Inc.
Melvin T. Axilbund, Trademark Examining Attorney, Law
Office 103 (Michael Szoke, Managing Attorney)
_______
Before Hanak, Quinn and Chapman, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Moore Business Forms, Inc. (applicant) seeks
registration of LANDMARK VISTA in typed capital letters for
“pre-recorded computer programs related to real estate sold
to real estate agents and sales people.” The intent-to-use
application was filed on August 12, 1996.
The Examining Attorney refused registration pursuant
to Section 2(d) of the Lanham Trademark Act on the basis
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that applicant’s mark, as applied to applicant’s goods, is
likely to cause confusion with the mark shown below,
previously registered for “general real estate brokerage.”
Registration No. 749,538. The mark shown below will
hereinafter be referred to as the “registered mark.”
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request an oral hearing.
In any likelihood of confusion analysis, two key
considerations are the similarities of the marks and the
similarities of the goods or services. Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976).
Considering first the marks, we note that the
Examining Attorney refers to the registered mark as simply
LANDMARK CORPORATION and design. (Examining Attorney’s
brief page 4). The Examining Attorney characterizes the
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design component of the registered mark as being “minor.”
(Examining Attorney’s brief page 7).
On the other hand, applicant argues that the design
element appearing at the beginning of the registered mark
is so unusual that a person encountering the registered
mark would have to use imagination and ingenuity to reach
the conclusion that this design element is somehow
equivalent to the letter “L” and thus that the first word
in the registered mark is LANDMARK. (Applicant’s brief
page 11). Continuing, applicant argues that even assuming
that one can ascertain that the first word in the
registered mark is LANDMARK, that at a minimum this person
would “not soon forget” the unusual design element having
gone “through the mental the exercise of trying to figure
[it] out.” (Applicant’s brief page 11).
We agree with applicant that it is debatable as to
whether most viewers of the registered mark would perceive
it as the equivalent of the words LANDMARK CORPORATION.
However, even assuming that with if the use of ingenuity
and imagination the registered mark would be perceived as
such, the fact remains that in terms of visual appearance,
the registered mark is still decidedly different from
applicant’s mark LANDMARK VISTA. Moreover, assuming again
that people would perceive the registered mark as LANDMARK
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CORPORATION, then in terms of meaning or connotation, the
registered mark is distinct from applicant’s mark LANDMARK
VISTA. The former suggests a business. The latter, as
applicant persuasively argues, suggests a view or location.
(Applicant’s brief page 10).
In sum, we find that if individuals are unable to
perceive the design element in the registered mark as
constituting or containing the letter “L,” then the
registered mark and applicant’s mark are quite dissimilar.
On the other hand, if individuals are able to perceive the
design element in the registered mark as constituting or
containing the letter “L,” that nevertheless the registered
mark and applicant’s mark are still very dissimilar in
terms of visual appearance, and are somewhat dissimilar in
terms of connotation and pronunciation.
Turning to a consideration of applicant’s goods and
registrant’s services, both relate (obviously) to real
estate. However, applicant's goods have specifically been
restricted to computer programs which are “sold to real
estate agents and sales people.” In other words,
applicant’s goods are sold only to professionals. Hence,
the only overlap between applicant’s goods and registrant’s
services involves real estate professionals. Given the
dissimilarities in the marks and the fact that applicant’s
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goods and registrant’s services are related simply in the
sense that both involve real estate, we find that there
exists no likelihood of confusion amongst the only
individuals who would encounter both marks, namely, real
estate professionals. When it comes to matters involving
real estate, such real estate professionals are somewhat
sophisticated purchasers. As our primary reviewing Court
has noted, when considering the issue of likelihood of
confusion, purchaser “sophistication is important and often
dispositive because sophisticated consumers may be expected
to exercise greater care.” Electronic Design & Sales v.
Electronic Data System, 954 F.2d 713, 21 USPQ2d 1388, 1392
(Fed. Cir. 1992).
Decision: The refusal to register is reversed.
E. W. Hanak
T. J. Quinn
B. A. Chapman
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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