O’Sullivan Industries, Inc.

Trademark Trial and Appeal Board

Nov 2, 2000

No. 75396003 (T.T.A.B. Nov. 2, 2000)

Paper No. 10
JQ
11/7/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re O’Sullivan Industries, Inc.
________
Serial No. 75/396,003
_______
Andrew B. Mayfield of Armstrong Teasdale for applicant.
Vanessa J. Cooper, Trademark Examining Attorney, Law Office
113 (Meryl Hershkowitz, Managing Attorney).
_______
Before Cissel, Quinn and Holtzman, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by O’Sullivan
Industries, Inc. to register the mark shown below
for, as amended, “ready-to-assemble computer furniture,
namely, workstations and mobile work centers” (in
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/396,003
2
International Class 9) and “ready-to-assemble furniture,
namely, desks, entertainment centers, TV/VCR cabinets and
carts, bookcases and cabinets” (in International Class 20).1
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Act on the ground
that applicant’s mark, when applied to applicant’s goods,
so resembles the previously registered mark I. D. KIDS
(“KIDS” disclaimed) for “children’s furniture”2 as to be
likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An
oral hearing was not requested.
Applicant argues that the marks are different in
sound, appearance and meaning. More specifically,
applicant contends that the letters “I” and “D” in
registrant’s mark are constructed so that they will be

1 Application Serial No. 75/396,003, filed November 25, 1997,
alleging dates of first use of May 19, 1997. Although a proposed
amendment to the identification of goods was rejected in the
final refusal, the Examining Attorney, in her brief, indicates
that her action was in error. Accordingly, she has accepted the
amended identification of goods (set forth above) and, thus,
there is no issue with respect thereto on appeal.
2 Registration No. 1,928,469, issued October 17, 1995. For some
inexplicable reason, the prosecution record includes an
Examiner’s Amendment wherein a claim of ownership of the cited
registration was made. A handwritten notation “DO NOT PRINT”
appears on the amendment. The Board has independently checked
the ownership of the cited registration, and Office records show
that applicant does not own the registration.
Ser No. 75/396,003
3
pronounced as separate letters which, in turn, will be
perceived as the abbreviation for “identification.” Thus,
according to applicant, registrant’s mark, as applied to
children’s furniture, connotes products “identified with
kids.” Applicant contrasts this with its mark which,
applicant argues, does not suggest a separate pronunciation
for the letters “I” and “D”. Applicant goes on to assert
that the letters in its mark stand for “intelligent
designs,” and that the design and type style of its mark
creates an overall commercial impression of modern, high-
tech goods used by adults, not children. As to the goods,
applicant states that its goods do not include children’s
furniture, and that its goods are generally sold through
general merchandise retailers and office supply stores
rather than furniture stores. Applicant also contends that
furniture products are not inexpensive goods subject to
impulse purchases, and that purchasers tend to be
sophisticated and brand-conscious in their buying
decisions.
The Examining Attorney maintains that the dominant
portions of the marks are the letters “ID” which are
identical. The Examining Attorney further maintains that
the presence of the descriptive term “KIDS” in registrant’s
mark and the design feature in applicant’s mark are
Ser No. 75/396,003
4
insufficient to distinguish the marks. With respect to the
goods, the Examining Attorney contends that they are
closely related, pointing to excerpts retrieved from the
NEXIS database which show, according to the Examining
Attorney, that the same manufacturers make both types of
furniture as involved herein.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion
issue. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976); and In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209 (TTAB 1999).
We first turn to consider the marks. Insofar as
appearance is concerned, both marks include the letters “I”
and “D” which we view as the dominant portion of the marks.
Although we stress that we have considered the marks in
their entireties, including the disclaimed portion of
registrant’s mark, “there is nothing improper in stating
that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided [that]
Ser No. 75/396,003
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the ultimate conclusion rests on consideration of the marks
in their entireties.” In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). For example,
“that a particular feature is descriptive or generic with
respect to the involved goods or services is one commonly
accepted rationale for giving less weight to a portion of a
mark...” Id. at 751. In registrant’s mark, “I. D.” is the
dominant portion, with the disclaimed term “KIDS” being
relegated to a subordinate role because it lacks
distinctiveness as applied to children’s furniture.
Likewise, in applicant’s mark, the letter portion is
dominant. Although applicant’s mark includes a prominent
design feature, we find that the literal letter portion,
because it will be used to call for the goods, dominates
over the design. See: In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987). The letter portions also sound
alike. As to meaning, although applicant asserts that the
letters in its mark stand for “intelligent designs,” there
is nothing establishing that purchasers will perceive the
letters as such. We must consider the mark as sought to be
registered without the wording shown on the specimens of
record. Having said this, we acknowledge that the meanings
of the marks may differ, with registrant’s mark connoting
furniture identified with kids (or that kids will identify
Ser No. 75/396,003
6
with the furniture). On balance, however, we find that the
similarities between the marks, when they are considered in
their entireties, outweigh the dissimilarities.
In finding that the marks are similar, we note that
the record is devoid of any evidence of any third-party
uses or registrations of marks which include the letters
“ID” in the furniture field. We also have kept in mind the
normal fallibility of human memory over time and the fact
that consumers retain a general, rather than specific,
impression of trademarks encountered in the marketplace.
With respect to the goods, it is not necessary that
they be similar or competitive, or even that they move in
the same channels of trade to support a holding of
likelihood of confusion. It is sufficient that the
respective goods are related in some manner, and/or that
the conditions and activities surrounding the marketing of
the goods are such that they would or could be encountered
by the same person under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978). In the present case, the identification
of goods in the cited registration, “children’s furniture,”
is broad enough to encompass ready-to-assemble furniture
Ser No. 75/396,003
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such as desks, workstations, bookcases and cabinets which
might designed for and used by children.
In finding that applicant’s and registrant’s goods are
related, we have considered the NEXIS excerpts. The gist
of the articles is that a single entity may produce both
types of goods as those involved herein. [See, e.g., “In
addition to manufacturers such as Child Craft/ETC., which
is dedicated to making children’s furniture from cribs to
computer desks, many mainline manufacturers debuted new
youth designs...”] Although the articles do not indicate
whether the goods are marketed under the same marks, the
articles serve to suggest that applicant’s and registrant’s
goods are of a kind which may emanate from a single source.
Here, consumers familiar with registrant’s mark and
registrant’s products, upon encountering applicant’s mark
on applicant’s goods, are likely to mistakenly assume that
applicant’s mark identifies another line of furniture
emanating from registrant.
Inasmuch as there are no limitations as to trade
channels and purchasers in either the cited registration or
the application, the identified goods must be assumed to
move through all the normal channels of trade for such
goods, and would be offered to all types of purchasers.
Octocom Systems Inc. v. Houston Computer Services Inc., 918
Ser No. 75/396,003
8
F.2d 937, 16 USPQ2d 1783, 1788 (Fed. Cir. 1990). Thus, in
the present case, we assume that applicant’s and
registrant’s furniture is sold in the same types of stores
(e.g., general merchandise retailers or furniture stores)
to the same classes of purchasers, including ordinary
purchasers. Moreover, the goods, as identified in both the
application and the registration, include relatively
inexpensive furniture, the purchase of which would not
require anything more than ordinary care.
We conclude that purchasers familiar with registrant’s
children’s furniture sold under the mark I. D. KIDS would
be likely to believe, upon encountering applicant’s mark ID
and design for computer furniture and other types of
furniture such as desks, bookcases and cabinets, that the
goods originated with or are somehow associated with or
sponsored by the same entity.
Ser No. 75/396,003
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Decision: The refusal to register is affirmed.
R. F. Cissel
T. J. Quinn
T. E. Holtzman
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
Ser No. 75/396,003
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