Ralph Whitworth

Trademark Trial and Appeal Board

Mar 5, 2008

No. 78816413 (T.T.A.B. Mar. 5, 2008)

Mailed: March 5, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ralph Whitworth
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Application No. 78816413
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Thomas D. Foster, TDFoster for applicant.

Thomas M. Manor, Examining Attorney, Law Office 110 (Chris
A.F. Pedersen, Managing Attorney).
_______

Before Seeherman, Quinn, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Ralph Whitworth filed an application to register the
mark FLYING A GARAGE (in standard characters)1 on the
Principal Register for
clothing, namely, denim shirts, jackets, polo
shirts, sweat shirts, sweatsuits, and T-shirts,
skirts, pants, dresses, belts, neckties, footwear;
headwear, namely, hats and caps

in International Class 25 (as amended).

1 Filed December 16, 2006, based on a bona fide intent to use the
mark in commerce. This application originally included “vehicle
repair, restoration and maintenance services[;] providing of food
and drink, namely, cafe and restaurant services.” Pursuant to
the examining attorney’s requirement, applicant submitted a
disclaimer of “garage” with respect to the vehicle repair,
restoration and maintenance services. As the refusal to register
pertained only to the clothing items at issue here, applicant
divided those goods from the rest of the application.
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Application No. 78816413
2
The examining attorney issued a final refusal to
register under Trademark Act § 2(d), 15 U.S.C. § 1052(d), on
the ground that applicant’s mark so resembles the mark
FLYING A (typed), previously registered for “shirts, pants,
shorts and slacks,”2 that it would, if used on or in
connection with the identified goods, be likely to cause
confusion, to cause mistake, or to deceive.
Applicant appealed. Both applicant and the examining
attorney have filed briefs.
We affirm.
I. Applicable Law
We base our determination under Section 2(d) on an
analysis of all of the probative evidence of record bearing
on the likelihood of confusion. See In re E.I. du Pont de
Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973);
see also Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005); In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by

2 Registration No. 1932346, issued October 31, 1995. Filings
under Trademark Act §§ 8, 9 & 15, accepted, acknowledged, and
granted.
Application No. 78816413
3
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
Azteca Rest. Enter., Inc., 50 USPQ2d 1209 (TTAB 1999).
II. Record on Appeal
Applicant submitted the following evidence in support
of registration:
• Ten records from the USPTO’s TESS database of
applications and registrations comprising the words
“FLYING A.”

• Copies of seven web pages indicating use of the term
“flying A.”

• Copies of what appear to be two California state
trademark registrations comprising the words “FLYING A”
from an unknown database.

III. Discussion
A. Similarity of the Goods/Channels of Trade
Applicant’s goods are in part identical with the goods
set out in the cited registration to the extent that both
include “shirts and pants.” The remainder of applicant’s
goods are also related to those of the cited registrant in
that they are all items of clothing, likely to be purchased
by the same customers, for the same purpose, and sold in the
same clothing stores or departments.
Nonetheless, applicant points out that
the CCPA found that there is no per se rule
requiring a finding of a likelihood of confusion
Application No. 78816413
4
when items in a single channel ... are sold under
similar marks – rather, the CCPA noted that this
factor, while relevant, is really an area of
“peripheral inquiry.”

Applicant’s Br. at 9, citing Interstate Brands Corp. v.
Celestial Seasonings, Inc., 576 F.2d 927, 198 USPQ 151 (CCPA
1978). The principle is of course correct, although it is
inapplicable here.
In Interstate Brands, the CCPA, affirming the Board,
rejected the notion that herbal tea (RED ZINGER) and cakes
(ZINGER) were necessarily related merely because they were
both food items and sold in supermarkets. Unlike Interstate
Brands, applicant’s goods here are identical in part (and
otherwise closely related) to the cited registrant’s goods.
Neither the application nor the registration is limited in
its channels of trade or the classes of customers to whom
the goods would be sold, and we must accordingly presume
that the goods move in the same channels of trade and would
be sold to the same classes of consumers. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981), citing Kalart Co., Inc. v.
Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958). This is not
the type of per se rule that both the Board and the CCPA
rejected in Interstate Brands; on the contrary, we merely
recognize that where goods are identical in an application
and registration, they must be considered as such for
registration purposes.
Application No. 78816413
5
The identical goods, channels of trade, and classes of
purchasers are all factors which strongly support the
refusal to register.
B. Similarity of the Marks
In comparing the marks, we are mindful that where, as
here, the goods are identical, the degree of similarity
necessary to find likelihood of confusion need not be as
great as where there is a recognizable disparity between the
goods. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992); Real Estate One, Inc. v. Real Estate 100 Enter.
Corp., 212 USPQ 957, 959 (TTAB 1981); ECI Div. of E-Syst.,
Inc. v. Envtl. Communications Inc., 207 USPQ 443, 449 (TTAB
1980).
[I]t is well established that the test to be
applied in determining likelihood of confusion is
not whether marks are distinguishable on the basis
of a side-by-side comparison but rather whether
they so resemble one another as to be likely to
cause confusion, and this necessarily requires us
to consider the fallibility of memory over a
period of time. That is to say, the emphasis must
be on the recollection of the average purchaser,
who normally retains a general rather than a
specific impression of trademarks.

Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975)(citations omitted).
Although the marks at issue must be considered in their
entireties, it is well-settled that one feature of a mark
may be more significant than another, and it is not improper
Application No. 78816413
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to give more weight to this feature in determining the
commercial impression created by the mark. “Indeed, this
type of analysis appears to be unavoidable.” In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
Applicant’s mark is FLYING A GARAGE, while the mark in
the cited registrations is FLYING A. The first two words of
applicant’s mark are identical to the whole of the mark in
the cited registration; applicant has simply appended the
word GARAGE to the cited mark. As we have noted previously,
“it is often the first part of a mark which is most likely
to be impressed upon the mind of a purchaser and
remembered.” Presto Prod. Inc. v. Nice-Pak Prod. Inc., 9
USPQ2d 1895, 1897 (TTAB 1988). Moreover, “we cannot ignore
the propensity of consumers to often shorten trademarks.”
Big M. Inc. v. United States Shoe Corp., 228 USPQ 614, 616
(TTAB 1985). As such, FLYING A is likely to be the part of
the mark which makes the greatest impression on the
consumer, and the way consumers will likely speak of and
remember applicant’s mark.
Moreover, the construction of the mark itself lends the
impression that the brand – reminiscent of a brand for
livestock used as a trademark – is “FLYING A” and that what
is branded is a garage. Thus, while the arbitrary term
“GARAGE” is not descriptive or even suggestive of the
clothing items in this application, it naturally would have
Application No. 78816413
7
a somewhat lesser significance to the consumer than the
fanciful term “FLYING A.”
Applicant argues that the marks, considered as a whole,
carry different commercial impressions:
Registrant’s mark, when viewed, seems somewhat
incomplete. The public see [sic] “FLYING A” and
are [sic] invariably left thinking, “Flying a
‘what’”? Applicant’s mark, however, contains the
answer to that question within the mark – “Flying
a ‘garage’”.

....

[D]espite the fact that the marks at issue
both contain the term “FLYING A,” the marks taken
as a whole have different meanings. When used on
clothing, “FLYING A GARAGE” is distinct in its
connotation. Though the Examining attorney
suggests “the average consumer could not be
expected to extrapolate the un-common impression,
as suggested by Applicant, of a garage being
piloted and flown as if an aircraft,” Applicant
respectfully disagrees. The very absurdity of
piloting a garage as if it were a plane, or of
maintaining a garage in an airborne state by means
of a tether as if it were a kite, is precisely
what makes the mark so distinct. No one
encounters flying garages outside Applicant’s
mark. On the other hand, Registrant’s mark
“FLYING A,” as used on clothing, gives the
impression of a letter A with wings, exactly as
Registrant uses in their Design logo[3] and others
have used in logos past.

Applicant’s Br. at 7-9.

3 Applicant’s mention of registrant’s logo is an apparent
reference to the mark as shown in the specimen in registrant’s
registration file. However, we note that the cited mark is
registered without claim to any particular font style, size, or
color, and that applicant also seeks registration for a standard
character mark. See Trademark Rule 2.52(a). Whatever the manner
of registrant’s actual current use of its mark, we cannot
restrict the scope of its registration to any particular display.
Likewise, applicant’s mark, if registered, would not be
restricted to any particular stylization.
Application No. 78816413
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We agree with the examining attorney, however, that
applicant’s argument is implausible. We find it highly
unlikely that purchasers encountering applicant’s mark on
clothing would think primarily of a building for the repair
or storage of automobiles, which refuses to obey the rules
of gravity. The very absurdity of this notion argues
against a strained construction of the mark as a sentence
fragment about a flying building, and in favor of the
simpler connotation we have already discussed, namely that
of a garage (fictional or otherwise) that bears the mark
“FLYING A.”
Finally, applicant argues that the marks are pronounced
differently and have different appearances. While applicant
is correct, the same could be said of any two marks which
differ in any respect. Needless to say, there is no rule
that a prior registration will only bar registration of an
identical mark. Here, the marks are far more visually and
aurally similar than they are different. Both marks begin
with the same wording – FLYING A – to which applicant has
appended the word “garage.” While we do not ignore the last
part of applicant’s mark, we nonetheless find it unlikely
that the word “garage” will distinguish these two marks and
prevent any confusion. Although applicant places emphasis
on the term “GARAGE” in its mark, “[w]hen one incorporates
the entire arbitrary registered mark of another into a
Application No. 78816413
9
composite mark, inclusion in the composite mark of a
significant nonsuggestive element does not necessarily
preclude the marks from being so similar as to cause a
likelihood of confusion.” Coca-Cola Bottling Co. of
Memphis, Tenn., Inc. v. Joseph E. Seagram & Sons, Inc., 526
F.2d 556, 188 USPQ 105, 106 (CCPA 1975)(affirming sustained
opposition against BENGAL LANCER for club soda, quinine
water, and ginger ale in view of prior registration of
BENGAL for gin). Likewise, we find that in this case, the
addition of “GARAGE” to the prior registrant’s mark does not
avoid a likelihood of confusion. Prospective purchasers
seeing applicant’s FLYING A GARAGE mark on clothing may well
assume that the makers of FLYING A clothing have simply
expanded their FLYING A line.
Viewing the marks in their entireties, we find that
applicant’s mark is substantially similar to that of the
prior registrant, and that this factor supports the
examining attorney’s refusal to register.
C. Strength of the Mark
Applicant has submitted various evidence in an attempt
to show that “the mark is in a ‘crowded field’” on the
trademark register and in the marketplace, and that “the
public has been trained to look to the variations of the
marks to determine their source and to arrive at a distinct
Application No. 78816413
10
connotation for the mark.” Applicant’s Br. at 4-6. We find
this evidence inconclusive at best, and largely irrelevant.
As noted, applicant submitted the records of ten
applications and registrations comprising the term “FLYING
A.” Of these, five are either applications or cancelled or
abandoned registrations, and are therefore of no probative
value. Two of the five cover unrelated goods and services
(entertainment services and breeding and stud services). Of
the remaining three, two (for FLYING A and FLYING A and
design) are for retail store services, and are owned by the
same party, and the last is the cited registration.
Third-party registrations are not evidence of the use
of a mark. AMF Inc. v. Am. Leisure Prod., Inc., 177 USPQ
268, 269-70 (CCPA 1973)(third-party registrations are not
evidence that such marks are in use or that consumers are
familiar with them). But even if they were, given that
there is only one other registrant of “FLYING A” marks with
any possible relevance, we cannot say that this term is so
ubiquitous that consumers are accustomed to making fine
distinctions among them.
Applicant’s Internet evidence fares no better. Of the
seven pages submitted, six of them use the term “FLYING A”
in connection with unrelated services (farm, trailer and
truck business, cars, film production, and horse breeding).
The one remaining shows use of FLYING A as “Mount Allison
Application No. 78816413
11
University’s official clothes line.” The web page indicates
that Mount Allison University is located in Sackville, New
Brunswick, and the page bears a URL with a “.ca” TLD,
indicating a Canadian website. Based on this evidence, we
cannot say that this one use in Canada indicates that U.S.
consumers would find the registrant’s mark weak, or readily
distinguish applicant’s mark from it.
Finally, applicant has submitted what appear to be two
California state trademark registrations, owned by the same
entity, and incorporating the term “FLYING A” (covering
“gasoline, lube oils and greases,” and “automotive
batteries.”) Like most of the proffered federal
registrations, these registrations are far afield of the
clothing items at issue here, and thus of no relevance.
Moreover, state registrations do not establish use of a
trademark, Faultless Starch Co. v. Sales Producers Assoc.,
Inc., 530 F.2d 1400, 189 USPQ 141 (CCPA 1976).
In sum, considering all of the third-party
registrations, both state and federal, and the Internet
evidence, we are unable to say that FLYING A marks have been
so frequently adopted in the clothing field, or that
consumers have become inured to seeing many “FLYING A”
marks, such that the cited registration is entitled to a
limited scope of protection.
Application No. 78816413
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We conclude that the mark in the cited registration is
strong, and not diluted. Again, this factor supports the
refusal to register.
IV. Conclusion
After careful consideration of the briefs and the
evidence of record, we conclude that in view of the
substantial similarity in the commercial impressions of
applicant’s mark and that of the registrant, their
contemporaneous use on applicant’s identical and related
goods is likely to cause confusion as to the source or
sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.