Rum Bum Records, LLC

Trademark Trial and Appeal Board

Jun 19, 2015

No. 85512437 (T.T.A.B. Jun. 19, 2015)

This Opinion is not a
Precedent of the TTAB

Hearing: June 18, 2015 Mailed: June 19, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Rum Bum Records, LLC
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Serial No. 85512432
Serial No. 85512437
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Ira Cohen of Henke & Cohen, P.A.,
for Rum Bum Records, LLC.
Evelyn Bradley, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
_____

Before Bergsman, Lykos and Goodman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Rum Bum Records, LLC (“Applicant”) seeks registration on the Principal
Register of the mark BACARDI RECORDS (in standard characters) for
Sound recordings, namely, digital recordings, compact
discs being CDs, digital video discs being DVDs, disc
phonograph records, and audio cassettes, all of the
aforementioned featuring music or musical performances,
in Class 9;1 and

1 Application Serial No. 85512437 was filed on January 10, 2012, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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Education, namely, providing training in the field of
musical entertainment, specifically, training relating to
live performances by a musical group; organizing
community sporting and cultural events, in Class 41.2
Applicant disclaimed the exclusive right to use the word “Records” in both
applications.
The Trademark Examining Attorney has refused registration of Applicant’s
mark in both applications under Section 2(d) of the Trademark Act of 1946, 15
U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the registered
mark BACARDI for a wide variety of goods and services, including the services
listed below, as to be likely to cause confusion:
Entertainment and leisure services including those
provided via the Internet, namely, providing a web site
featuring musical videos, related film clips, photographs,
and other multimedia materials, organization, provision
and running of recreational, cultural and sporting events,
exhibitions in the field of music entertainment,
conferences in the field of music entertainment,
entertainment and leisure activities; organization,
provision and running of entertainment events, namely,
discos and live music concerts, advice, information and
consultancy services relating to all of the aforesaid
services; providing prerecorded digital non-downloadable
music on-line via a global computer network; production
of radio programs; radio entertainment and supplying of
information in connection therewith, namely, radio
programs featuring live performances, interviews and
information relating to music; providing radio, television
and live entertainment programs for non-downloadable
retrieval from a global computer network; providing
prerecorded digital music, digital audio and digital video
featuring live and prerecorded cultural and sporting

2 Application Serial No. 85512432 was filed on January 10, 2012, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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events, online via a global computer network; nightclub
services, in Class 41.3
When the refusals were made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed.
Because the appeals in both applications involve common questions of fact and
law, we consolidate the appeals and decide them in this single opinion. See TBMP §
1214 ( 2014); In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009).
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 issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”).4
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

3 Registration No. 3665186, issued August 2, 2009.
4 At the oral hearing, the Trademark Examining Attorney confirmed that she was relying
solely on the similarity of the marks and the relatedness of the goods and services for
holding that Applicant’s mark is likely to cause confusion with the mark in the cited
registration.
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We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, “two marks may be found to be confusingly
similar if there are sufficient similarities in terms of sound or visual appearance or
connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d
1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) (emphasis in the
original; citation omitted). See also Eveready Battery Co. v. Green Planet Inc., 91
USPQ2d 1511, 1519 (TTAB 2009) (citing Krim-Ko Corp. v. The Coca-Cola Co., 390
F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in
either form, spelling or sound alone is likely to cause confusion.”)).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See also San Fernando Electric Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992). The proper focus is on the recollection
of the average customer, who retains a general rather than specific impression of
the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012);
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Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Applicant’s mark is BACARDI RECORDS and the mark in the cited registration
is BACARDI. Applicant disclaimed the exclusive right to use the word “Records” in
both applications in response to the requirement by the Trademark Examining
Attorney that the word “Records” is merely descriptive.5 It is well-settled that
disclaimed, descriptive matter may have less significance in likelihood of confusion
determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”) (quoting In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60
USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”). Thus, the dominant element of
Applicant’s mark is the name “Bacardi.”
While the name “Bacardi” is the dominant element of Applicant’s mark, we are
cognizant that the analysis of the similarity or dissimilarity of the marks cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,

5 April 25, 2012 Office Actions and May 14, 2013 Responses.
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1161 (Fed. Cir. 2014); In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985). See also Franklin Mint Corp. V. Master Mfg. Co., 667 F.2d 1005,
212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, 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 the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 224 USPQ
at 751.
Another factor highlighting the significance of the “Bacardi” name as the
dominant element of Applicant’s mark is its location as the first part of the mark.
See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part
of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and
the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead word); Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is
often the first part of a mark which is most likely to be impressed upon the mind of
a purchaser and remembered”).
Applicant’s mark BACARDI RECORDS encompasses the Registrant’s entire
mark. While there is no explicit rule that likelihood of confusion automatically
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applies where a junior user’s mark contains in part the whole of another mark, the
fact that the cited registered mark is subsumed by Applicant’s mark increases the
similarity between the two. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for medical magnetic
resonance imaging diagnostic apparatus confusingly similar to TITAN for medical
ultrasound diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004
(TTAB 1988) (applicant’s mark MACHO COMBOS for food items confusingly
similar to MACHO for restaurant entrees); In re U.S. Shoe Corp., 229 USPQ 707,
709 (TTAB 1985) (applicant’s mark CAREER IMAGE for women’s clothing stores
and women’s clothing likely to cause confusion with CREST CAREER IMAGES for
uniforms including items of women’s clothing); In re Riddle, 225 USPQ 630, 632
(TTAB 1985) (RICHARD PETTY’S ACCU TUNE for automotive service centers
confusingly similar to ACCU-TUNE for automotive testing equipment).
Applicant’s mark BACARDI RECORDS means and engenders the commercial
impression BACARDI brand RECORDS, in effect, telling the consumers that
BACARDI is the source of the records. Because the marks share the name
”Bacardi,” the only element in the registered mark and the most recognizable and
prominent element in Applicant's mark, we find that there are strong similarities
between the marks in terms of appearance, sound, meaning and commercial
impression.
B. The similarities or dissimilarities and nature of the goods and services,
established, likely-to-continue channels of trade and classes of consumers.

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At the outset, we note that Applicant contends that to the best of its knowledge,
Registrant is not involved in the recording business and is not a record label.6
However, we must make our determination regarding the relatedness of the goods
and services and channels of trade based on the goods and services as they are
identified in the registration and applications at issue. See In re Dixie Restaurants
Inc., 41 USPQ2d at 1534. See also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 110 USPQ2d at 1157; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d
1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Even assuming Applicant’s contention is correct, we may not limit the description of
goods or services by extrinsic evidence. See In re Hughes Furniture Indus., Inc., 114
USPQ2d 1134, 1137 (TTAB 2015) (“Notwithstanding Applicant’s argument and
evidence regarding the actual scope of its own and the cited Registrant’s commercial
use of its mark, we may not limit, by resort to extrinsic evidence, the scope of goods
as identified in the cited registration or in the subject application.”); In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods
are expensive wines sold to discriminating purchasers must be disregarded given
the absence of any such restrictions in the application or registration). The cited
registration is entitled to the presumptions accorded a registered mark pursuant to
Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b) (i.e., the certificate of
registration is “prima facie evidence of the validity of the registered mark and of the

6 8 TTABVUE 14.
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registration of the mark, of the owner’s ownership of the mark, and of the owner’s
exclusive right to use the registered mark in commerce on or in connection with the
goods or services specified in the certificate.”).
1. Applicant’s Services in Class 41.

Applicant has applied to register its mark for services, in Class 41, that include,
inter alia, “organizing community sporting and cultural events.” The mark in the
cited registration is registered for a wide variety of activities in Class 41, including,
inter alia, “providing a web site featuring … organization, provision and running of
recreational, cultural and sporting events, exhibitions in the field of music
entertainment, conferences in the field of music entertainment, entertainment and
leisure activities; organization, provision and running of entertainment events,
namely, discos and live music concerts, advice, information and consultancy services
relating to all of the aforesaid services.” The services are in part identical. For
purposes of our analysis, it is sufficient if likelihood of confusion is found with
respect to use of Applicant’s mark in connection with any service in a particular
class. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981); Inter IKEA Systems B.V. v. Akea, LLC, 110 USPQ2d 1734,
1745 (TTAB 2014).
Because the services described in the application and the cited registration are
in part identical, we must presume that the channels of trade and classes of
purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of
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trade and classes of consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion); In re Yawata Iron & Steel Co.,
403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical
goods, the channels of trade and classes of purchasers are considered to be the
same); American Lebanese Syrian Associated Charities Inc. v. Child Health
Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011).
2. Applicant’s Goods in Class 9.7
Applicant’s Class 9 description of goods includes “sound recordings, namely,
digital recordings, compact discs being CDs, digital video discs being DVDs, disc
phonograph records, and audio cassettes, all of the aforementioned featuring music
or musical performances.” The description of services in the cited registration
includes, inter alia, “providing prerecorded digital non-downloadable music on-line
via a global computer network” and “providing prerecorded digital music, digital
audio and digital video featuring live and prerecorded cultural and sporting events,
online via a global computer network.” Applicant’s products and Registrant’s
services both involve providing digital recordings albeit through different media.
Because of the inherent nature of the goods and services, the goods and services of
Applicant and Registrant are very closely related, if not legally identical.

7 In its brief, Applicant notes, “there appear to be no Class 9 Registrations, or pending
Applications, for BACARDI.” 8 TTABVUE 9 and 14. The classification of goods and services
by the USPTO is a purely administrative determination and has no bearing on the issue of
likelihood of confusion. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774
(Fed. Cir. 1993); National Football League v. Jasper Alliance Corp., 16 USPQ2d 1212, 1216
n.5 (TTAB 1990).
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The Trademark Examining Attorney submitted seven copies of third-party
registrations for marks registered for the same goods and services as in the
application and registration at issue. Third-party registrations which individually
cover a number of different goods and services that are based on use in commerce
may have some probative value to the extent that they serve to suggest that the
listed goods and services are of a type which may emanate from the same source. In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The registrations
listed below are representative.8
Mark Reg. No. Goods and Services

MIMA 3639068 Digital media, namely, pre-recorded video
cassettes, digital video discs, digital
versatile discs, downloadable audio and
video recordings DVDs, and high definition
digital discs featuring live music and/or
improvised music;

Non-downloadable pre-recorded music,
video and graphics presented to mobile
communications devices via a global
communications network and wireless
networks; providing a website featuring
musical performances, musical videos,
related film clips, photographs and other
multimedia materials.

ILG 3855840 Musical sound recordings;

Providing a website featuring non-
downloadable musical sound recordings.

8 We have not included the entire description of goods and services for each of the
registrations. Only the goods and services in both Applicant’s application and Registrant’s
registration are listed.
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Mark Reg. No. Goods and Services

BUTCHER 3428318 Series of musical sound recordings, musical
video recordings, downloadable musical
sound recordings, and downloadable
musical video recordings, including pre-
recorded compact discs and DVDs;

Providing a website featuring
entertainment in the nature of musical
performances, musical videos, related film
clips, photographs and other multimedia
materials.

CANDOR
ENTERTAINMENT
3541959 Compact discs and digital recordings
featuring music;

Providing a website featuring music,
musical performances, musical videos,
photographs and other multimedia
materials.

MAC MILLER 4059321 Downloadable musical sound recordings,
audiovisual recordings featuring music and
musical entertainment, downloadable
audio visual recordings featuring music
and musical entertainment;

Providing non-downloadable record music,
non-downloadable record musical
performances, non-downloadable musical
videos, related video clips, photographs and
other entertainment information on a
musical artist, all provided via a website.

In her June 21, 2013 Office Action, the Trademark Examining Attorney
submitted excerpts from ten websites to show that Applicant’s goods and
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Registrant’s services “are of a kind that are likely to emanate from the same source
under a single mark.”9 For example,
1. The ACOUSTIC DISC website indicates that it streams music (provides
digital music via an online network) and that it sells videos, CDs and DVDs. It is
not clear from the excerpt submitted by the Trademark Examining Attorney
whether the videos, CDs and DVDs are ACOUSTIC DISC brand products.
Nevertheless, the website provides evidence that the same source provides digital
music via an online network and sells videos, CDs and DVDs and, therefore, the
products and services move in the same channels of trade;
2. The STUDIO 1290 website shows STUDIO 1290 providing non-downloadable
musical videos and CDs featuring musical performances; and
3. The Warner Bros. website provides “song clips” and videos online as well as
CDs, DVDs, and vinyl albums.
Based on the inherent nature of Applicant’s goods and Registrant’s services, the
third-party registrations, and the third-party websites, we find that Applicant’s
Class 9 description of goods, inter alia, “sound recordings, namely, digital
recordings, compact discs being CDs, digital video discs being DVDs, disc
phonograph records, and audio cassettes, all of the aforementioned featuring music
or musical performances” are closely related to the description of services in the

9 We recognize the hearsay problems and other limitations inherent in such evidence and
have accorded the Internet websites the probative value they merit. Essentially, the
websites show on their face that the public may have been exposed to those websites and,
therefore, may be aware of the advertisements contained therein. See Rocket Trademarks
Pty Ltd., v. Phard S.p.A., 98 USPQ 2d 1066, 1072 (TTAB 2011).
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cited registration, inter alia, “providing prerecorded digital non-downloadable music
on-line via a global computer network” and “providing prerecorded digital music,
digital audio and digital video featuring live and prerecorded cultural and sporting
events, online via a global computer network.”
The websites also demonstrate that the goods and services move in the same
channels of trade.
In view of the foregoing, we find that Applicant’s goods in Class 9 and
Registrant’s services are related and move in the same channels of trade.
C. Miscellaneous
In Applicant’s October 23, 2012 Response to an Office Action, Applicant
explained that “Bacardi” is the surname of Applicant’s principal, the Registrant is
Bacardi & Company Limited, and that Applicant’s principal holds a “substantial
interest” in Registrant. Applicant repeated its contention in its brief:
The Applicant’s principal’s surname is “Bacardi” (and he
is, as a matter of objective fact, a member of the famous
“Bacardi” family, the same family that owns a majority
portion of [Registrant]. Applicant maintains that its
mark, BACARDI RECORDS, is named after Applicant-
entity’s principal and Management Member, Luis
Bacardi. In sum, Luis Bacardi seeks to use his own family
name for his own business.10
The fact that “Bacardi” is Applicant’s principal’s surname does not give
Applicant an unfettered right to use that name if it conflicts with a registered mark.
See Nina Ricci S.A.R.L. V. E.T.F. Enterprises Inc., 889 F.2d 1070, 12 USPQ2d 1901
(Fed. Cir. 1989) (VITTORIO RICCI for handbags, clothing and retail store services

10 8 TTABVUE 18.
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in the field of clothing is likely to cause confusion with NINA RICCI for clothing and
accessories even though Vittorio Ricci was the name of defendant's principal); Ford
Motor Co. v. Ford, 462 F.2d 1405, 174 USPQ 456, 458 (CCPA 1972) (“the interest in
allowing an entrepreneur to use his own surname as a trademark on his goods must
give way to the more compelling public and private interests involved in avoiding a
likelihood of confusion or mistake as to source where use of the surname leads to
such confusion or mistake”). See also In re SL&E Training Stable Inc., 88 USPQ2d
1216, 1219 (TTAB 2008) (“The first name ‘Sam’ in applicant's mark modifies the
surname ‘Edelman,’ in effect, telling which Edelman it is, and therefore emphasizes
the ‘Edelman’ portion.” SAM EDELMAN likely to be confused with EDELMAN);
Justin Industries, Inc. v. D.B. Rosenblatt, Inc., 213 USPQ 968, 976 (TTAB 1981)
(“the right to use one's name in his business may be circumscribed if it conflicts
with a mark previously used by another and is likely to cause confusion as to the
origin of the business or of the goods sold thereunder”); Jack Winter Inc. v. Lancer of
California, Inc., 183 USPQ 445, 446 (TTAB 1974) (DAVID WINTER for clothing is
likely to cause confusion with JACK WINTER for clothing); Girard-Perregaux &
Cie, S.A. v. Perregaux, 122 USPQ 95, 96 (Comm'r. Pats. 1959) (“Paul Perregaux” is
likely to be confused with “Girard Perregaux” and “Perregaux”).
D. Balancing the factors.
1. Class 9 Application (Serial No. 85512437).
Because the marks are similar, because Applicant’s goods are closely related to
Registrant’s services and the goods and services move in the same channels of
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trade, we find that Applicant’s mark BACARDI RECORDS for “sound recordings,
namely, digital recordings, compact discs being CDs, digital video discs being DVDs,
disc phonograph records, and audio cassettes, all of the aforementioned featuring
music or musical performances,” in Class 9, is likely to cause confusion with the
registered mark BACARDI for “providing prerecorded digital non-downloadable
music on-line via a global computer network” and “providing prerecorded digital
music, digital audio and digital video featuring live and prerecorded cultural and
sporting events, online via a global computer network.”
2. Class 41 Application (Serial No. 85512432).
Because the marks are similar, the services are in part identical and the
presumption that the services move in the same channels of trade and are sold to
the same classes of consumers, we find that Applicant’s mark BACARDI RECORDS
for “education, namely, providing training in the field of musical entertainment,
specifically, training relating to live performances by a musical group; organizing
community sporting and cultural events,” in Class 41 is likely to cause confusion
with the registered mark BACARDI for, inter alia, “providing a web site featuring
… organization, provision and running of recreational, cultural and sporting events,
exhibitions in the field of music entertainment, conferences in the field of music
entertainment, entertainment and leisure activities; organization, provision and
running of entertainment events, namely, discos and live music concerts, advice,
information and consultancy services relating to all of the aforesaid services.”

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Decision: The refusal to register Applicant’s mark BACARDI RECORDS in
both applications for Classes 9 and 41 is affirmed.