THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed:
August 7, 2013
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Saber Helicopters, Inc.
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Serial No. 85272599
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Jordan A. LaVine of Flaster/Greenberg P.C. for Saber Helicopters, Inc.
Katherine Stoides, Trademark Examining Attorney, Law Office 101 (Ronald R.
Sussman, Managing Attorney).
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Before Grendel, Shaw, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Saber Helicopters, Inc. filed an application to register on the Principal
Register the mark SABER HELICOPTERS, in standard character form, for “Air
charter services; Air charter transportation services; Chartering of helicopters;
Helicopter transport,” in International Class 39.1
1 Application Serial No. 85272599, filed under Trademark Act § 1(a), 15 U.S.C. § 1051(a), on
March 21, 2011, with a claim of first use and first use in commerce of February, 1973.
Applicant has disclaimed the exclusive right to use HELICOPTERS apart from the mark as
shown.
Serial No. 85272599
2
The trademark examining attorney refused registration under § 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, as used in
connection with applicant’s services, so resembles the mark SABRELINER, in
standard character form, and the mark shown below, as to be likely to cause
confusion, or to cause mistake, or to deceive.
The cited stylized mark is registered on the Principal Register for “Aircraft,”
in International Class 12.2
The cited standard character mark is registered for the following goods and
services (among others):
Structural parts for aircraft engines…, in International
Class 7;
Instrumentation systems and controls for aircraft and
structural parts therefor…, in International Class 9;
…training aircraft, namely, airplanes and structural
parts therefor…, in International Class 12;
Aircraft maintenance services; aircraft modification
services; aircraft overhaul services; and aircraft repair
services, in International Class 37;
Custom fabrication and manufacture for others of all
aspects of aircraft, in International Class 40.3
2 Reg. No. 733000, issued on June 19, 1962; renewed.
3 Reg. No. 2495287, issued on October 9, 2001; renewed. The registration also covers
certain goods and services in Classes 11, 16, and 42.
Serial No. 85272599
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When the refusal was made final, applicant filed a request for
reconsideration, which was denied. This appeal ensued. Applicant and the
examining attorney have filed briefs.
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 as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and services at issue. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
We will first consider the similarity or dissimilarity of the marks at issue.
Applicant appears to concede that “the marks themselves are somewhat similar in
sound and appearance…”4 and does not otherwise argue that the marks are
dissimilar. The examining attorney points out that the initial portions of the marks
are the phonetically identical terms SABER and SABRE-. She further argues that
SABER and SABRE- are, respectively, the dominant portions of the marks, such
that the additional matter in the marks (HELICOPTERS and LINER, respectively),
do not suffice to distinguish the marks from each other. She also argues that the
stylized form of one of the registered marks is insufficient to distinguish it from
applicant’s mark.
4 Applicant’s brief at 3.
Serial No. 85272599
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We agree with all of these points. Although our ultimate conclusion must
rest upon a comparison of the marks at issue in their entireties, there is nothing
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). SABER and SABRE are the dominant elements of
the marks not only because they are in the initial position (See Palm Bay Imports
Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005)), but also because they are arbitrary in meaning with respect to the goods and
services at issue and, accordingly, they have stronger source-identifying potential
than the remainders of the marks. HELICOPTERS is obviously a generic term in
relation to applicant’s services and lacks source-identifying capability. -LINER, as
it appears in registrant’s marks, is at least highly suggestive with respect to
registrant’s goods and services. LINER has been defined as follows:
5 a (1) : a ship belonging to a regular line of ships
(2) : SHIP OF THE LINE b : an aircraft
belonging to an airline….
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993) p. 1316.5
Because descriptive or suggestive terms have less source-identifying potential, they
may be given less weight in an analysis of likelihood of confusion. See Cunningham
v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000); In re
National Data Corp., 224 USPQ at 752. We also agree that the design component of
5 The Board may take judicial notice of dictionary definitions. Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Serial No. 85272599
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registrant’s stylized mark does not alter the overall commercial impression created
by the literal component SABRELINER.
Finally we note that the marks at issue are rather similar in overall
meaning. SABER and SABRE are standard variant spellings of the same common
word, which signifies a type of sword.6 As is shown above, LINER signifies a type of
aircraft, as does HELICOPTERS.
Considering applicant’s mark and the cited registered marks in their
entireties in terms of appearance, sound, meaning, and overall commercial
impression, we find that their similarities substantially outweigh their differences.
Accordingly, this du Pont factor weighs in favor of a finding of likelihood of
confusion.
We turn next to the similarity or dissimilarity of the services at issue.
Applicant points out that the cited registrations do not cover air charter or air
travel services; and argues that “it is extremely unlikely that there would be any
overlap between persons engaging Applicant’s air charter services and those
persons actually purchasing the highly specialized products and services identified
in the cited registrations.”7 There is no evidence of record regarding the likely
customers of applicant and registrant, and neither the application nor the
registrations contain any limitations on the relevant classes of customers. We
therefore assume that the goods and services of applicant and registrant are
available to all classes of purchasers for those goods and services. See Paula Payne
6 WEBSTER’S at 1994.
7 Applicant’s brief at 2.
Serial No. 85272599
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Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973);
Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). Although the class of
customers who purchase aircraft parts and aircraft repair and maintenance services
is substantially narrower than the class of customers who use charter air travel
services, the breadth of the latter class suggests that there must be at least some
overlap. Those who avail themselves of both types of service might well believe that
aircraft maintenance and air travel provided under similar marks emanate from the
source.
The examining attorney argues that charter air travel services, on the one
hand, and maintenance and repair of aircraft, on the other, are types of services
that are sometimes provided by a single entity, and that this fact makes it more
likely that customers would believe they emanate from a single source if they are
offered under similar marks. The examining attorney has made of record evidence
showing that each of a number of companies offers both air charter and
maintenance services under a single mark, including Sky Limo Air Charter;
JetLogistics; Edwards Montana Jet Center; Averitt Aviation; Corporate Flight
International; Rite Bros. Aviation; and Spitfire Aviation.8
To further demonstrate that applicant’s services and registrant’s services are
related, the examining attorney has submitted several third-party registrations
that list both types of services. Such registrations, if they are based on use in
8 Internet evidence submitted with the Office action of January 26, 2012.
Serial No. 85272599
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commerce, may have some probative value to the extent that they serve to suggest
that the listed goods or services are of types that may emanate from the same
source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786; In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). We find the
following registrations to be most relevant:
Reg. No. 3396881 covers helicopter transport; and maintenance and repair of
airplanes and helicopters.
Reg. No. 3491553 covers helicopter transport and chartering of helicopter; and
aircraft repair and maintenance.
Reg. No. 3948299 covers helicopter transport and helicopter charter services; and
helicopter fueling and maintenance.
Reg. No. 1321268 covers air charter services; and aircraft repair, maintenance and
refueling services.
Reg. No. 1985250 covers air transportation and air charter services; and
maintenance and repair services for aircraft.
Reg. No. 3198479 covers air taxi and air charter services; and aircraft
maintenance and repair.
Reg. No. 3984247 covers air charter services; and aircraft repair and maintenance.
Reg. No. 3997493 covers air transportation and air charter services; and
maintenance and repair services for aircraft.
These registrations do suggest that services similar to the those of both applicant
and registrant may emanate from a single source. Although they are not competent
to demonstrate that such services are in fact currently being offered under the
indicated marks, they give support to the examining attorney’s more highly
probative evidence of actual marketplace use of trademarks on both types of
services, discussed above. Together, these two types of evidence support the
Serial No. 85272599
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examining attorney’s position that the services of applicant and registrant are
commercially related.
The fact that “the vast majority of the goods and services in the cited
registrations relate to air craft engines and parts therefore [sic]”9 does not reduce
the degree of relatedness that we may perceive between applicant’s services and the
repair and maintenance services of registrant. The examining attorney need not
demonstrate a close commercial relationship between applicant’s services and all of
registrant’s goods and services. It is sufficient if likelihood of confusion is found
with respect to use of applicant’s mark on any product or service that comes within
the identifications of the cited registrations. Tuxedo Monopoly, Inc. v. General Mills
Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v.
TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Finally, applicant mentions in passing that the respective trade channels for
the goods and services of applicant and registrant lack any commercial relationship.
However, applicant does not explain further and has presented no evidence on this
point. In the absence of evidence there is no reason to assume that trade channels
such as advertising media and the internet would not bring the marks, products
and services of both applicant and registrant to the attention of the same members
of the public.
Having considered all of the evidence and arguments of record and all
relevant du Pont factors, including those not specifically discussed herein, we find
9 Applicant’s brief at 2.
Serial No. 85272599
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that applicant’s mark, as applied to applicant’s services, so closely resembles the
cited registered marks as to be likely to cause confusion, mistake or deception as to
the source of applicant’s services.
Decision: The refusal to register is affirmed.
