National Weather Networks, Inc.

Trademark Trial and Appeal Board

Nov 23, 2004

No. 76273134 (T.T.A.B. Nov. 23, 2004)

Mailed: November 23, 2004
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re National Weather Networks, Inc.
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Serial No. 76273134
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W. Whitaker Rayner of Watkins Ludlam Winter & Stennis for
National Weather Networks, Inc.
Michael H. Kazazian, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney).
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Before Hohein, Walters and Rogers, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
National Weather Networks, Inc. has filed an
application to register the mark WEATHERVISION on the
Principal Register for “audio and video broadcasting of
customized, localized weather forecasts,” in International
Class 38, and “weather forecasting, namely, providing
customized audio and video local weather forecasting
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Serial No. 76273134
2
information via multi-media means,” in International Class
42.1
The Trademark Examining Attorney has issued a final
refusal to register under Section 2(d) of the Trademark Act,
15 U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark WEATHERVISION, previously registered for
“weather consulting services, including consulting services
in the nature of expert testimony in the field of
meteorological conditions,”2 that, if used on or in
connection with applicant’s services, it would be likely to
cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs,3 but an oral hearing
was not requested. We affirm the refusal to register.
The Examining Attorney contends that the marks are
identical and the services are “highly related and commonly

1 Serial No. 76273134, filed June 18, 2001, based on use in commerce,
alleging first use and use in commerce as of June 1, 2000.
2 Registration No. 1703882, issued July 28, 1992, in International Class
42, which is owned by New World Communications of Tampa, Inc. The
registration has been renewed for a term of 10 years from July 28, 2002.
Sections 8 (6 year and 10 year) and 15 declarations accepted and
acknowledged, respectively.
3 Applicant filed an untimely reply brief. Applicant was directed by
the Board to explain why the brief was untimely; and, after receiving no
response, the Board, on September 13, 2004, notified applicant that its
reply brief would not be considered. Applicant then submitted a copy of
a letter previously filed, with a certificate of mailing, explaining
that the reply brief was filed late due to a docketing error. We
accordingly set aside the Board’s order of September 13, 2004, and
consider applicant’s explanation for its late filing. Without condoning
docketing errors, we have exercised our discretion and we have
considered applicant’s reply brief.
Serial No. 76273134
3
provided by a single entity and in the same channels of
trade” (brief, unnumbered p. 4), and that weather
forecasting services are within the logical zone of
expansion of registrant’s weather consulting services.
In support of his claim of a close relationship between
applicant’s and registrant’s services, the Examining
Attorney submitted copies of third-party registrations
listing identifications that include both consulting and
information services in diverse fields,4 and excerpts of
articles retrieved from the LEXIS/NEXIS database containing
references to both weather consulting and forecasting
services offered by the same entity.5 The Examining

4 With regard to the third-party registrations submitted by the
Examining Attorney, we note that although third-party registrations
which cover a number of differing goods and/or services, and which are
based on use in commerce, are not evidence that the marks shown therein
are in use on a commercial scale or that the public is familiar with
them, such registrations nevertheless 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 In re Albert Trostel
& Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467 (TTAB 1988). Two of the third-party registrations
list identifications that include weather consulting, forecasting and
information services; and the remaining eleven registrations pertain to
a wide variety of fields other than weather and list identifications
that include consulting, research and information services, which are of
limited probative value.
5 The following LEXIS/NEXIS excerpts are representative examples:
Those storms sent a small front carrying lots of rain-cooled air
to the north, said Mike Smith, a meteorologist with Weather Data
Inc., a weather forecasting and consulting firm based in Wichita,
Kan. [Omaha World-Herald, June 24, 2000.]
The company [Strategic Weather Services] supplies weather
forecasting and consulting programs to many Fortune 1000
industries such as PEP Boys and Charming Shoppes. [Northeast
Pennsylvania Business Journal, May 1998.]
Meteorological consulting services with the ability to conduct
past weather investigations or weather assessments and which can
Serial No. 76273134
4
Attorney argues that the classes of purchasers in
applicant’s and registrant’s identifications of services are
not limited; and he disagrees with applicant’s contention
that the services identified in the cited registration are
limited to expert testimony services provided to the legal
profession, noting that the identification is not so limited
by its language, but, rather, includes all types of weather
consulting services.
Applicant does not dispute that the marks are
identical, but contends that the respective services are
different, namely, weather forecasting versus “expert
testimony of meteorological conditions.” (Brief, p. 2.)
Applicant states further that registrant could have, but did
not, include weather forecasting services in its
registration; that the services are different from one
another, as shown in the USPTO Acceptable Identification of
Goods and Services Manual, because consulting is not
included among two other acceptably identified services,
weather reporting and weather forecasting; that “the term
‘consulting’ implies the providing of services as a result
of a one-on-one relationship as opposed to distribution to
the public at large [as with forecasting]” (brief, p. 3);
and that the services travel in different channels of trade

help develop a defense against litigation are often affiliated
with meteorological research institutes, universities, and
weather-forecasting firms. [Electrical World, 1993, Vol. 207, No.
11; p. 41.]
Serial No. 76273134
5
to different classes of purchasers. Applicant argues that
registrant’s identification of services is essentially
“consulting services in the nature of expert testimony” and
that, as such, the class of purchasers would be the legal
profession, who would obtain such services after careful
consideration.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In considering the evidence of
record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976); In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997); and In
re Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein. The factors deemed
pertinent in this proceeding are discussed below.
Considering, first, the marks, there is no question
that the marks are in all respects identical, and applicant
Serial No. 76273134
6
does not contend otherwise. It is well established that
when the marks at issue are the same, the goods or services
in question do not have to be as close to find that
confusion is likely. As the Board stated in In re Concordia
International Forwarding Corp., 222 USPQ 352, 356 (TTAB
1983), “… the greater the degree of similarity in the marks,
the lesser the degree of similarity that is required of the
products or services on which they are being used in order
to support a holding of likelihood of confusion.”
Considering the services involved in this case, we note
that the question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
It is true that registrant's and applicant's services
are not the same. However, the question is not whether
purchasers can differentiate the services themselves but
rather whether purchasers are likely to confuse the source
of the services. See Helene Curtis Industries Inc. v. Suave
Serial No. 76273134
7
Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Thus, it is not
necessary that the services of applicant and registrant be
similar or even competitive to support a finding of
likelihood of confusion. It is sufficient if the respective
services are related in some manner and/or that the
conditions surrounding their marketing are such that they
would be encountered by the same persons under circumstances
that could, because of the identity or similarity of the
marks used thereon, give rise to the mistaken belief that
they emanate from or are associated with, the same source.
See In re Albert Trostel & Sons Co., supra note 4;; and In
re International Telephone and Telegraph Corp., 197 USPQ 910
(TTAB 1978).
Applicant goes to great lengths to convince us that the
registrant’s services are limited to consulting services in
the nature of expert testimony and thus, that there are
distinctly different trade channels for the respective
services. However, we find applicant’s reasoning flawed and
conclude that the use of the word “including” in the
identification of services, “weather consulting services,
including consulting services in the nature of expert
testimony in the field of meteorological conditions,” does
not limit the services, but rather serves to indicate that
the clause beginning with “including” is an example or a
clarification of the preceding clause, i.e., that the
Serial No. 76273134
8
identified “weather consulting services” include the
specified expert testimony services.6 Thus, registrant’s
services as identified encompass all types of consulting
services pertaining to weather. Similarly, applicant’s
services encompass customized weather forecasting that is
broadcast or disseminated via all types of media. These
services are closely related, as exemplified by the excerpts
from the LEXIS/NEXIS database. Further, there is no basis
in fact for limiting registrant’s purchasers to the legal
profession. It is reasonable to conclude that the channels
of trade and purchasers of these closely related services
are at least overlapping, if not the same.
Therefore, we conclude that in view of the identity in
the commercial impressions of applicant’s mark and
registrant’s mark, WEATHERVISION, their contemporaneous use
on the closely related services involved in this case is
likely to cause confusion as to the source or sponsorship of
such services.
Decision: The refusal under Section 2(d) of the Act is
affirmed.

6 The fact noted by applicant that the USPTO generally finds the use of
terms like “including” in an identification of goods or services to be
unacceptable does not change the plain language meaning of the term or
of its meaning in the context of the recitation of services in the cited
registration.