Sidie

Trademark Trial and Appeal Board

Jan 18, 2006

No. 78297602 (T.T.A.B. Jan. 18, 2006)

Mailed: January 18, 2006
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Sidie
________

Serial No. 78297602
_______

Linda A. Tancs of Norris, McLaughlin & Marcus for Robert J.
Sidie.

Sharon A. Meier, Trademark Examining Attorney, Law Office 112
(Janice O'Lear, Managing Attorney).
_______

Before Hohein, Hairston and Walsh, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

Robert J. Sidie, a United States citizen, has filed an
application to register on the Principal Register the mark
"CRYSTAL AIRWAYS" in standard character form for "transportation
of passengers and goods by air" in International Class 39.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to his services, so resembles the
mark "KRYSTAL," which is registered on the Principal Register in

1 Ser. No. 78297602, filed on September 8, 2003, which is based an
allegation of a bona fide intention to use the mark in commerce; the
word "AIRWAYS" is disclaimed.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 78297602
2
standard character form for "air transportation services; storage
of aircraft in the nature of rental of hanger space; [and]
delivery of goods by truck" in International Class 39,2 as to be
likely to cause confusion, or to cause mistake, or to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity or
dissimilarity in the services or goods at issue and the
similarity or dissimilarity of the respective marks in their
entireties.3
Turning first to consideration of the respective
services, applicant asserts in his brief that, among other
things, "registrant's mark is associated with hanger space" and
that, as indicated in an article which he made of record from the

2 Reg. No. 2,305,146, issued on January 4, 2000, which sets forth a
date of first use anywhere of 1977 and a date of first use in commerce
of 1997.

3 The court, in particular, pointed out that: "The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the [services or] goods and differences
in the marks." 192 USPQ at 29.
Ser. No. 78297602
3
Internet, registrant's services are "associated with an FBO
(fixed based operations) facility." Specifically, according to
applicant, "[f]ixed based operators provide airport-related
services such as aircraft fueling, line service, passenger
facilities and flight planning." By contrast, applicant contends
that his mark "is to be associated with the transportation of
passengers and/or goods by air" and "is not associated with FBO
facility operations." Applicant urges, in view thereof, that the
respective services are not commercially or otherwise related,
and thus there is no likelihood of confusion, inasmuch as such
services would not in fact be encountered by the same persons in
situations that would create the incorrect assumption that they
originate from the same source.4
The Examining Attorney, on the other hand, accurately
observes in her brief that it is well settled that the issue of
likelihood of confusion must be determined on the basis of the
services as they are respectively set forth in the particular
application and the cited registration, and not in light of what
such services are asserted to actually be. See, e.g., Octocom

4 Applicant also notes in his brief that, in his response to the
initial Office action, he "brought to the attention of the Examiner
information available to the general public indicating that registrant
sold its aviation business to a third party to focus on its 'core
restaurant business.'" Applicant asserts that, "[a]s a result,
registrant has constructively abandoned its mark." Such an argument,
however, as the Examining Attorney correctly points out in her brief,
constitutes an improper collateral attack on the validity of the cited
registration and hence will not be further considered. See, e.g., In
re Dixie Restaurants, 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997), citing Cosmetically Yours, Inc. v. Clairol Inc., 424 F.2d 1385,
165 USPQ 515, 517 (CCPA 1970) and In re Calgon Corp. 435 F.2d 596, 168
USPQ 278, 280 (CCPA 1971).

Ser. No. 78297602
4
Systems Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); Canadian Imperial Bank of
Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813,
1815-16 (Fed. Cir. 1987); CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d
1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula Payne
Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973). Thus, as she further correctly notes,
where the services in the application at issue and in the cited
registration are broadly described as to their nature and type,
such that there is an absence of any restriction as to the
channels of trade and no limitation as to the classes of
purchasers, it is presumed that in scope the identification of
services encompasses not only all services of the nature and type
described therein, but that the identified services are provided
in all channels of trade which would be normal therefor, and that
they would be purchased by all potential buyers thereof. See,
e.g., In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Here, as the Examining Attorney properly points out,
applicant's and registrant's "air transportation services ... are
identical" in pertinent part inasmuch as applicant's services are
identified as "transportation of passengers and goods by air "
while registrant's services, which are set forth as including
"air transportation services," necessarily encompasses the
transportation by air of passengers and goods.5 The customers

5 It is noted that because it also is well settled that a refusal under
Section 2(d) is proper if there is a likelihood of confusion involving
Ser. No. 78297602
5
and channels of trade for the respective services are
consequently deemed to be the same, irrespective of what
applicant intends to do or what registrant actually does.
Applicant further asserts in its brief, however, that
the related du Pont factor of the conditions under which and
buyers to whom sales of the services at issue are made, that is,
"impulse" purchasers versus those who are careful and
sophisticated in their purchasing decisions, is a factor which
mitigates any likelihood of confusion. According to applicant,
"the target purchasers of the respective services are, by the
nature of the services, sophisticated and discerning purchasers."
Applicant insists, in view thereof, that such customers "would
likely exercise care in selecting their merchant and are not
likely to rely on impulse but rather on recommendations and/or
referrals based on a predetermined and specific need."
Nonetheless, even assuming that such is the case, the Examining
Attorney correctly observes in her brief that the fact that
purchasers are sophisticated or knowledgeable in a particular
field does not necessarily mean that they are sophisticated or
knowledgeable in the field of trademarks or immune from source
confusion. See, e.g., Wincharger Corp. v. Rinco, Inc., 297 F.2d
261, 132 USPQ 289, 292 (CCPA 1962); In re Decombe, 9 USPQ 1812,
1814-15 (TTAB 1988); In re Pellerin Milnor Corp., 221 USPQ 558,

the services listed in the application and any of the services
identified in the cited registration, it is unnecessary to rule as to
whether the other services set forth in the cited registration are so
related to those listed in the application that, if rendered under the
same or similar marks, confusion would be likely. See, e.g., Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
Ser. No. 78297602
6
560 (TTAB 1983); and TMEP §1207.01(d)(vii). Clearly, the more
similar the marks at issue, the more likely confusion becomes
even for discriminating and sophisticated customers. Thus, if
applicant's and registrant's air transportation services of
passengers and goods were to be rendered under the same or
substantially similar marks, confusion as to the source or
sponsorship thereof would be likely to occur, notwithstanding the
deliberation which knowledgeable and sophisticated consumers
would be expected to exercise in selecting such services.
Turning, therefore, to consideration of the marks at
issue, we note as a preliminary matter that as stated by our
principal reviewing court in Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed.
Cir. 1992), cert. denied, 506 U.S. 1034 (1994), "[w]hen marks
would appear on virtually identical ... services, the degree of
similarity necessary to support a conclusion of likely confusion
declines." Applicant argues in his brief, however, that the
marks "CRYSTAL AIRWAYS" and "KRYSTAL" "contain only a common
phonetic element" (underlining in original) and do not otherwise
"look the same or sound alike." In particular, although an
amendment to allege use has not been submitted, applicant insists
that, "[i]n fact, Applicant uses its mark in script font,
rendered in blue ink," which serves to differentiate his mark

986, 988 (CCPA 1981) and Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d
328, 137 USPQ 881, 883 (CCPA 1963).
Ser. No. 78297602
7
from that of the registrant and prevent any likelihood of
confusion.6
We agree with the Examining Attorney, however, that
confusion is likely. As she properly notes in her brief, a side-
by-side comparison of the respective marks is not the proper test
to be used in determining the issue of likelihood of confusion
inasmuch as it is not the ordinary way that customers will be
exposed to the marks. Instead, it is the similarity of the
general overall commercial impression engendered by the marks
which must determine, due to the fallibility of memory and the
concomitant lack of perfect recall, whether confusion as to
source or sponsorship is likely. The proper emphasis is

6 Applicant additionally contends in his brief that the marks at issue
herein are weak, and hence entitled to only a narrow scope of
protection, by asserting in support thereof that "a recent search of
the PTO online database reveals 135 records of 'KRYSTAL' and
variations thereof" and that "the same database reveals over 2,650
records of 'CRYSTAL' and variations thereof." Applicant maintains
that "[s]uch extensive third party use of marks which contain the word
'krystal' or a phonetic equivalent clearly demonstrates that either
mark is an extremely weak mark" and that, consequently, "the
prevalence of such marks suggests that consumers are capable of
distinguishing amongst the marks, thus mitigating any likelihood of
confusion." Nonetheless, as the Examining Attorney accurately points
out in her brief, applicant "did not make this search or any other
evidence [properly] of record" and, therefore, "has not provided any
copies of third-party registrations as evidence that the terms CRYSTAL
and/or KRYSTAL are weak in connection with the type[s] of services
specified in the applicant's and registrant's recitation[s] of
services." Thus, there is not only no evidence to support applicant's
assertions, but according to the Examining Attorney, "the registrant's
mark is not weak" inasmuch as the cited registration "for the term
KRYSTAL is the only registration for air transportation services."
Moreover, even if applicant had made of record copies of the third-
party registrations upon which he wishes to rely, it is well
established that such registrations do not demonstrate use of the
marks which are the subjects thereof in the marketplace or that the
consuming public is familiar with the use of those marks and has
learned to distinguish between them. See, e.g., Smith Bros. Mfg. Co.
v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973); and
AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ
268, 269 (CCPA 1973)

Ser. No. 78297602
8
accordingly on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of
marks. See, e.g., Grandpa Pidgeon's of Missouri, Inc. v.
Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973);
Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733 (TTAB 1981);
and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
Moreover, the Examining Attorney is also correct that
while the marks at issue must be considered in their entireties,
including any descriptive matter therein, our principal reviewing
court has indicated that, in articulating reasons for reaching a
conclusion on the issue of likelihood of confusion, "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] the ultimate conclusion rests on consideration of
the marks in their entireties." In re National Data Corp., supra
at 751. For instance, according to the court, "that a particular
feature is ... generic with respect to the involved ... services
is one commonly accepted rationale for giving less weight to a
portion of a mark ...." Id.
With the above principles in mind, we concur with the
Examining Attorney that, when considered in their entireties, the
marks at issue are substantially similar in sound, appearance,
connotation and commercial impression. Specifically, given that
the word "AIRWAYS" in applicant's "CRYSTAL AIRWAYS" mark is
generic in relation to his services of the "transportation of

Ser. No. 78297602
9
passengers and goods by air," it is plain that the dominant and
source distinguishing portion of applicant's mark, as asserted by
the Examining Attorney, is the word "CRYSTAL," which is the
phonetic equivalent of registrant's "KRYSTAL" mark. Thus, as the
Examining Attorney persuasively points out:
The fact that the Applicant's mark
contains the word AIRWAYS is not significant.
Consumers, and even those in the airline
industry themselves, often refer to air
transportation companies both with and
without the generic term(s) AIRWAYS or
AIRLINE[S]. For example, JETBLUE AIRWAYS is
often just referred to as JETBLUE; UNITED
AIRLINES is often referred to as just UNITED;
AMERICAN AIRLINES is often called just
AMERICAN; and AIRTRAN AIRWAYS is called just
AIRTRAN. Adding the generic term AIRWAYS to
the phonetically equivalent [term] CRYSTAL
... does little or nothing to avoid confusion
... [with the registrant's mark KRYSTAL].

In addition, because the terms "CRYSTAL" and "KRYSTAL" are, as
applicant concedes, phonetic equivalents, we agree with the
Examining Attorney that "the mere substitution of the letter 'C'
for the 'K' in KRYSTAL will not avoid a likelihood of confusion."
Furthermore, with respect to applicant's assertion that
he uses his mark "in script font, rendered in blue ink," the
Examining Attorney correctly observes that:
It is ... important to note that both
the applicant and the registrant have
presented their marks in typed [or standard
character] form. If a mark (in either an
application or a registration) is presented
in typed form, the owner is not limited to
any particular depiction and can combine the
wording with design elements. A party who
presents a typed drawing cannot assert
differences in typestyle. Squirtco v. Tomy
Corp., [697 F.2d 1038,] 216 USPQ 937 (Fed.
Cir. 1983) ....

Ser. No. 78297602
10
Thus, for purposes of determining similarity, both applicant's
mark and registrant's mark must be regarded as suitable for
display in the same stylized manners, including the blue script
font assertedly used by applicant. See, e.g., Phillips Petroleum
Co. v. C. J. Webb, Inc. 442 F.2d 1376, 170 USPQ 35, 36 (CCPA
1971) [a mark in typed or standard character form is not limited
to the depiction thereof in any special form]; and INB National
Bank v. Metrohost Inc., 22 USPQ2d 1585, 1588 (TTAB 1992) ["[a]s
the Phillips Petroleum case makes clear, when [an] applicant
seeks a typed or block letter registration of its word mark, then
the Board must consider all reasonable manners in which ... [the
word mark] could be depicted"]. Applicant's mark and
registrant's mark consequently must be considered identical in
their manner of display, and the addition of the generic term
"AIRWAYS" to applicant's mark does not, for the reason previously
indicated, serve to sufficiently distinguish such mark in
appearance from registrant's mark.
Finally, it is apparent that the term "KRYSTAL," which
constitutes registrant's mark, is an obvious misspelling or
alternative form of the dominant term "CRYSTAL" in applicant's
"CRYSTAL AIRWAYS" mark. As such, the terms are identical in
meaning and, in view thereof, the respective marks are thus
substantially similar in connotation. Overall, given the above
noted similarities in sound, appearance and connotation, the
marks at issue, when used in connection with air transportation
services, engender a substantially similar, if not virtually
identical, commercial impression.
Ser. No. 78297602
11
We accordingly conclude that customers and prospective
consumers who are familiar or acquainted with registrant's mark
"KRYSTAL" for "air transportation services" would be likely to
believe, upon encountering applicant's substantially similar
"CRYSTAL AIRWAYS" mark for the services of "transportation of
passengers and goods by air," that such identical services
emanate from, or are sponsored by or associated with, the same
source.
Decision: The refusal under Section 2(d) is affirmed.