Team Worldwide Corp.

Trademark Trial and Appeal Board

Mar 15, 2007

No. 76430485 (T.T.A.B. Mar. 15, 2007)

Mailed:
March 15, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Team Worldwide Corp.
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Serial No. 76430485
_______

Lesia O. Skrypoczka of Akin, Gump, Strauss, Hauer & Feld,
L.L.P. for Team Worldwide Corp.

Tracy Cross, Trademark Examining Attorney, Law Office 109
(Dan Vavonese, Managing Attorney).
_______

Before Seeherman, Grendel and Kuhlke, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Team Worldwide Corp. seeks registration on the
Principal Register of the mark EZ BED (in standard
character form with the word BED disclaimed) for goods
ultimately identified as “air mattresses for use when
camping; air beds” in International Class 20.1

1 Application Serial No. 76430485, filed July 15, 2002, alleging
a bona fide intention to use the mark in commerce under Trademark
Act Section 1(b). 15 U.S.C. §1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76430485
2
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used with its identified goods, so
resembles the registered mark EASYBED (in typed form)
for “telephone shop-at-home services in the field of
mattresses, beds, and bedding; retail stores featuring
mattresses, beds and bedding” in International Class 42 as
to be likely to cause confusion, mistake or deception.2
When the refusal was made final, applicant filed this
appeal. The appeal has been fully briefed. We affirm the
refusal to register.
As a preliminary matter, the examining attorney’s
objection to evidence attached to applicant’s brief is
sustained. The record should be complete prior to the
filing of the appeal; after an appeal is filed, if the
appellant or the examiner desires to introduce additional
evidence, the appellant or the examiner may request the
Board to suspend the appeal and to remand the application
for further examination.3

2 Registration No. 2128072, issued January 13, 1998; Section 8
affidavit accepted; Section 15 affidavit acknowledged.

3 We realize the Section 8 declaration for the cited registration
in exhibit A was not filed until after the final office action
issued; however, it is noted that it was available prior to
filing the notice of appeal; therefore, upon resumption of
examination by the examining attorney, applicant could have
entered this declaration into the record by filing a request for
Serial No. 76430485
3
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We begin with the first du Pont factor, i.e., whether
applicant’s mark EZ BED and registrant’s mark EASYBED are
similar or dissimilar when compared in their entireties in
terms of appearance, sound, connotation and commercial
impression. In making this determination, we must consider
the recollection of the average purchaser, who normally
retains a general, rather than specific, impression of
trademarks. Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975).

reconsideration or, after the filing of the appeal, applicant
could have filed a request for remand.
Serial No. 76430485
4
The examining attorney bases her finding that the
marks are similar primarily on the identical sound of the
first part of the marks EZ and EASY and the identical
second part BED combining to “convey the same overall
impression, suggesting a bed product with an ease of use.”
Br. p. 5. The examining attorney further notes that
“[s]imilarity in sound alone may be sufficient to support a
finding of likelihood of confusion,” citing RE/MAX of
America, Inc. v. Realty Mart, Inc., 207 USPQ 960, 964 (TTAB
1980). Br. p. 4. In response, applicant argues only that
“a]pplicant’s mark uses the two letters ‘E’ and ‘Z’ to read
the word ‘easy’ [in contrast] the mark of the cited
registration uses the spelled out version for the word
‘EASY’ which creates a distinct appearance from applicant’s
mark.” Br. p. 3.
Examining the marks in terms of their appearance,
sound, meaning, and commercial impression, we find the
marks to be similar. The test of likelihood of confusion
is not whether the marks can be distinguished when
subjected to a side-by-side comparison. The question is
whether the marks create the same overall impression.
Visual Information Inst., Inc. v. Vicon Indus. Inc., 209
USPQ 179 (TTAB 1980).
Serial No. 76430485
5
Although there are slight differences in the
appearance of the marks in view of the different spelling
of easy, overall the marks are very similar, since they
both begin with an “e” and end with “BED,” and EASY and EZ
will be viewed as equivalent. Further, the marks sound the
same. RE/MAX, supra. The different spellings for EZ and
EASY, and the compound word presentation in registrant’s
mark, do not affect the identity of the spoken marks.
Moreover, because EZ is the well-recognized abbreviation
for easy, the marks have the same meaning and connotation
in relation to the respective goods and services, i.e., an
easy way of obtaining a bed. Finally, the different
spelling in applicant’s and registrant’s marks does not
create a different commercial impression or distinguish the
marks. With regard to applicant’s argument concerning
registrant’s actual use of the mark as part of a telephone
number, the rights associated with a mark in standard
character or typed form reside in the wording and not in
any particular display. TMEP §1207.01(c)(iii) (4th ed.
2005). Further, the Section 7(b) presumptions emanating
from the Trademark Act apply to the mark as it appears in
the registration. Therefore, we must make our
determination of likelihood of confusion with regard to the
mark in the registration. Inasmuch as the mark in the
Serial No. 76430485
6
cited registration is in typed form and does not contain a
“numerical prefix,” applicant’s arguments regarding the
registrant’s actual use of the mark are irrelevant.
In view of the above, the factor of the similarity of
the marks weighs in favor of a finding of likelihood of
confusion.
We now turn to a consideration of the goods identified
in the application and the cited registration. It is well
settled that goods and services need not be similar or
competitive in nature to support a finding of likelihood of
confusion. The question is not whether purchasers can
differentiate the goods and services, but rather whether
purchasers are likely to confuse the source of the goods
and services. See Helene Curtis Industries Inc. v. Suave
Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Further, we must
consider the applicant’s goods and the cited registrant’s
services as they are described in the application and
registration. See Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and
Octocom Systems Inc. v. Houston Computer Services Inc., 918
F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1987). Finally, “the
greater degree of similarity between the applicant’s mark
and the cited registered mark, the lesser the degree of
similarity between the applicant’s goods or services and
Serial No. 76430485
7
the registrant’s goods or services that is required to
support a finding of likelihood of confusion.” In re Opus
One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). See also In re
Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993).
The examining attorney argues that the identification
of services in registrant’s mark includes all types of
mattresses and that “companies providing ‘stationary home
mattresses’ also provide inflatable portable mattresses.”
Br. p. 8. In support of her position, the examining
attorney submitted excerpts from several websites selling
“traditional” mattresses and air mattresses. See, e.g.,
abed.com (offering, inter alia, foam beds, air beds,
adjustable beds and mattress pads); emattress.com (listing
air mattresses, foam mattresses and king coil mattresses);
a webpage titled Furniture Zone (listing furniture and
bedding including air beds, air mattresses and air
mattresses for camping); a webpage titled AEROBED (advising
that the air bed can be used daily or can be taken when
traveling); and a webpage titled Quality Trading, Inc.
(offering SERTA inflatable air mattresses; traditional beds
are also sold under the mark SERTA in other examples in the
record, e.g., mattressgiant.com). This evidence shows that
“air bed” is a term used for inflatable mattresses.
Serial No. 76430485
8
In response, applicant argues that “applicant’s
product is a unique, portable, electrically blown up
mattress used for travel and/or camping purposes” whereas
the “services of the cited registration are telephone shop-
at-home services in the field of mattresses, beds and
bedding and retail stores featuring mattresses, beds, and
bedding.” Br. p. 3. (emphasis in original) Applicant
asserts that “[c]onsumers would be unlikely to confuse
portable air mattresses with registrant’s ‘shop-at-home
phone’ number that can be used to purchase various home
furniture.” Br. p. 4. (emphasis in original) Applicant
also contends that the trade channels differ inasmuch as
applicant’s goods are “primarily sold through sporting
goods stores or camping retailers [and] applicant’s
portable air mattresses are cheaper in price and are not
sold in the same retail outlets.” Br. p. 5. Applicant
states that “Internet searches of retail sellers of beds,
mattresses and bedding did not reveal any such retailers
that also sold air mattresses for camping and air beds.”
Br. p. 5. Finally, applicant states that registrant’s
goods are expensive and concludes that “the sophisticated
consumers for registrant’s expensive stationary home
furniture are unlikely to confuse applicant’s inexpensive
and portable camping mattresses and the channels of trade
Serial No. 76430485
9
for air mattresses for camping and air beds are entirely
distinct from the trade channels for beds, mattresses and
bedding.” Id. In support of its arguments applicant
timely submitted excerpts from several websites offering
different types of mattresses for sale. See, e.g.,
camping-equipment-now.com (offering camping equipment
including air mattresses); tents-tents-now.com (offering
camping equipment including air mattresses);
rockawaybedding.com (search result on website notes “air
bed” could not be found); and sleepys.com (offering a
variety of traditional mattresses).
We begin by noting that confusion can occur from the
use of the same or similar marks for goods, on the one
hand, and for services involving those goods, on the other.
See, e.g., In re Hyper Shoppes (Ohio) inc., 837 F.2d 463, 6
USPQ2d 1025 (Fed. Cir. 1988). Further, we are not
persuaded by applicant’s argument that registrant’s
identification excludes the sale of air beds. The evidence
of record shows air beds and traditional mattresses sold on
the same websites. In addition, the evidence shows air
beds and traditional mattresses sold under the same mark
(SERTA). Thus, registrant’s identification of the goods,
mattresses and beds, provided by its services, encompasses
applicant’s air beds. While the record is not as clear as
Serial No. 76430485
10
to whether air mattresses for camping fall within the
“mattresses, beds and bedding” listed in registrant’s
identification, i.e., whether air mattresses that are used
specifically for camping would be sold in a retail or shop-
at-home outlet for mattresses, beds, and beddings, in view
of our findings with respect to applicant’s air beds, we
need not make a determination as to the relationship
between applicant’s air mattresses for camping and
registrant’s services. See, e.g., Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986 (CCPA
1981). The du Pont factor of the similarity of the goods
favors a finding of likelihood of confusion.
Considering the channels of trade, the examining
attorney correctly states that absent limitations in the
identifications we must consider all normal channels of
trade. Applicant’s arguments seek to impermissibly limit
the trade channels for its goods by asserting that they are
primarily sold in sporting goods stores or camping
retailers. However, the identification in its application
is not restricted by trade channels. As shown in the
record, air beds and traditional mattresses are sold on the
same websites.4 Further, as noted above, although the

4 The dissent suggests that we must presume that applicant’s
goods will not be sold through registrant’s services; therefore,
Serial No. 76430485
11
evidence of record does tend to show that air mattresses
for camping are sold on different websites from other
mattresses, we need not find likelihood of confusion with
respect to all of applicant’s identified goods. In view
thereof, the overlap in the channels of trade favors a
finding of likelihood of confusion.
Applicant argues that registrant’s purchasers would be
sophisticated in view of the expensive nature of those
goods. We point out, again, that there is no such
limitation in the broad identification of services in the
registration, which would include the sale of air
beds/inflatable mattresses. Moreover, applicant has
acknowledged that its goods are inexpensive, and therefore
they might well be purchased without a great deal of
deliberation. Thus, we find this factor favors a finding of
likelihood of confusion.

consumers will not encounter applicant’s goods in registrant’s
venues. However, in cases involving goods and services, an
overlap in trade channels is found given that the type of goods
in the identification would be sold in the type of store in the
identification; there is no acknowledgment of an implied
limitation to applicant’s specific goods not being sold in
registrant’s specific store. See, e.g., In re The United States
Shoe Corp., 229 USPQ 707, 708 (TTAB 1985) (“Absent a specific
limitation in the registration certificate, we must assume
registrant’s uniforms move in all of the normal channels of trade
for such goods which certainly includes retail stores in the case
of uniforms. Even if registrant sold only to the trade, garments
bearing the mark are ultimately purchased by ordinary consumers,
such as waitresses or hospital workers, who buy their uniforms at
retail.” Citation omitted). Thus, the majority does not find
Serial No. 76430485
12
In conclusion, we find that because of the close
similarities in the marks, the relatedness of the goods and
services, and the overlap in trade channels, confusion is
likely between applicant’s mark and the mark in the cited
registration. Finally, to the extent we have any doubts,
we resolve them, as we must, in registrant’s favor. In re
Hyper Shoppes (Ohio), Inc., supra.
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.
Seeherman, Administrative Trademark Judge, dissenting:
I respectfully dissent. The registered mark, EASYBED,
is obviously highly suggestive for “telephone shop-at-home
services in the field of mattresses, beds, and bedding;
retail stores featuring mattresses, beds and bedding,” in
that it suggests that it is easy to obtain or purchase a
bed by using the registrant’s services. Suggestive marks
are entitled to a more limited scope of protection.
Applicant’s mark, although similar in appearance and
identical in pronunciation to the cited mark, has a
distinctly different connotation when used in connection
with “air mattresses for use when camping; air beds.”
Namely, it suggests that the air mattresses or air beds are

this implied limitation a factor to be considered in the
analysis.
Serial No. 76430485
13
easy to inflate and use. I believe that consumers will
readily recognize these different connotations, and because
of this, will view the marks as indicating different
sources for the respective goods and services. See In re
British Bulldog, Ltd., 224 USPQ 854 (TTAB 1984) (no
likelihood of confusion found between PLAYERS in stylized
form for men’s underwear and PLAYERS for shoes, based in
part on the different connotations the marks have when used
in connection with the respective goods); In re Sydel
Lingerie Co., Inc., 197 USPQ 629 (TTAB 1977) (no likelihood
of confusion found between BOTTOMS UP for ladies’ and
children’s underwear and BOTTOMS UP for men’s suits, coats
and trousers).
Nor is there clear evidence that the channels of trade
for applicant’s goods and the registrant’s services are the
same. The website evidence submitted by the examining
attorney shows only that air mattresses or air beds and
traditional mattresses may be sold on the same website.
However, the cited registration is not for goods, it is for
telephone and retail store sales. The channels of trade
for registrant’s telephone and retail store services are,
obviously, telephone sales and retail store sales.
Although air beds and air mattresses can be sold through
such channels of trade, it is not appropriate to assume
Serial No. 76430485
14
that applicant’s goods would actually be sold by the
registrant in the registrant’s stores or through the
registrant’s telephone sales; a registrant cannot
deliberately cause confusion by its own actions. Thus,
while applicant’s goods must be considered to be sold in
all stores that would sell air beds, including retail
stores that sell traditional mattresses, applicant’s own
goods would not be sold through the registrant’s own
telephone shop-at-home services or in its retail stores. I
do not suggest that consumers of air beds and air
mattresses for camping would not also encounter telephone
shop-at-home services for mattresses, beds and bedding, or
retail stores that sell such goods. However, consumers
would not encounter applicant’s air beds and air mattresses
in the same venue that the registrant offers its retail
store and telephone shop-at-home services, nor would
customers at the registrant’s retail stores or those using
the registrant’s telephone shopping services encounter
applicant’s goods. Thus, I am not persuaded, given the
highly suggestive nature of the marks and their different
connotations as used for the respective goods and services,
that consumers would assume that there is a connection in
source or sponsorship between applicant’s identified goods
Serial No. 76430485
15
and the registrant’s services if they were encountered in
different arenas.
Accordingly, I would reverse the refusal of
registration.