The Paper Magic Group, Inc.

Trademark Trial and Appeal Board

Dec 31, 1998

No. 75000903 (T.T.A.B. Dec. 31, 1998)

Paper No. 17
HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 31, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re The Paper Magic Group, Inc.
________
Serial No. 75/000,903
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Charles N. Quinn of Dann, Dorfman, Herrell & Skillman
for The Paper Magic Group, Inc.
Jeri J. Fickes, Trademark Examining Attorney, Law Office
108 (Dave Shallant, Managing Attorney)
_______
Before Cissel, Hairston and Wendel, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
The Paper Magic Group, Inc. filed an application to
register the mark KIDS STUFF and design, as shown below,
for Halloween and costume novelty masks, capes, wigs, hats,
pantyhose and tights.1

1 Ser. No. 75/000,903, filed Oct. 3, 1995, claiming first use
dates of June 1, 1993.
Ser No. 75/000,903
2
Registration has been finally refused under Section
2(d) of the Trademark Act, on the ground of likelihood of
confusion with the registered mark KIDSTUFF for “children’s
clothing, namely, shorts, shirts, overalls and play suits.”2
The Examining Attorney has also made final the requirement
that a drawing be submitted which complies with the
requirements of 37 CFR Sections 2.51 and 2.52 for a special
form drawing, including the requirement that no gray tones
be used.
Applicant and the Examining Attorney have filed
briefs, but no request was made for an oral hearing.
Giving consideration first to the marks involved, the
Examining Attorney maintains that the marks are not only
phonetically and connotatively identical, but also are
potentially visually identical. The Examining Attorney
bases this latter conclusion on the fact that the
registered mark is a typed drawing and thus unrestricted in
form of presentation.
Applicant, on the other hand, argues that the marks
are not close to being identical in appearance or
commercial impression, in view of the design features of
applicant’s mark. Applicant points to the stylized form of

2 Reg. No. 1,110,560, issued Jan. 2, 1979, claiming first use
dates of Oct. 25, 1939. Combined Section 8 and 15 affidavit
Ser No. 75/000,903
3
the words KIDS STUFF on the diamond background as well as
the “juvenile figures” scattered over the words and
contends that these features result in a distinctly
different commercial impression for its mark from the
“plain vanilla, unstylized, words-only” mark of registrant.
Although it is true that in determining the likelihood
of confusion, marks must be considered in their entireties,
it is well established that there is nothing improper in
giving more or less weight to a particular feature of a
mark. In re National Data Corp., 753 F.2d 1056, 224 USPQ
749 (Fed. Cir. 1985). If the word portion of a mark rather
than the design feature (or features) is more likely to be
remembered and relied upon by purchasers in referring to
the goods, it is the word portion which will be accorded
more weight. See Ceccato v. Manifattura Lane Gaetano
Marzotto & Figli S.p.A., 32 USPQ2d 1192 (TTAB 1994); In re
Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Here we consider the words KIDS STUFF to be the
dominant portion of applicant’s mark. Clearly it would be
by these words, not the design features, that purchasers
would refer to, or call for, the goods. Furthermore, the
youthful figures in costumes climbing over the letters
serve more to reinforce the word portion of the mark and to

accepted and acknowledged.
Ser No. 75/000,903
4
depict the goods upon which the mark is being used than to
create a separate impression as an indication of source.
Cf. Ceccato v. Manifattura Lane Gaetano Marzotto & Figli
S.p.A., supra [coat of arms reinforces meaning of word
mark]; In re Appetito Provisions Co., supra [sandwich
design merely descriptive of food sold in registrant’s
restaurant].
In addition, we agree with the Examining Attorney that
registrant’s mark is far from a “plain vanilla” mark.
Inasmuch as KIDSTUFF has been registered with a typed
drawing, registrant’s mark must be construed to encompass
any form of presentation, with or without design features,
including a format very similar to that of applicant’s.
See Squirto v, Tomy Corp., 697 F.2d 1038, 216 USPQ 937
(Fed. Cir. 1983); Jockey International Inc. v. Mallory &
Church Corp., 25 USPQ2d 1233 (TTAB 1992). While registrant
might not have its figures dressed in Halloween costumes,
similar figures dressed in ordinary children’s clothing
would be a reasonable alternative. It is only the mark
that applicant seeks to register that is limited to one
particular stylized form.
Accordingly, we find the marks to be not only
identical in sound, but also highly similar in commercial
impression and in appearance.
Ser No. 75/000,903
5
Turning to the goods involved, applicant’s principal
argument is that the marketing environments for the
products of the respective parties are “quite different,”
and thus there is no likelihood of confusion. Applicant
states that its Halloween costume items are sold mainly in
drugstores and mass merchandising outlets such as K-Mart,
and not in children’s specialty stores.
The Examining Attorney correctly points out that
because there are no limitations in either the registration
or the application with respect to channels of trade, both
the children’s apparel of registrant and the children’s
costume apparel of applicant must be presumed to travel in
all the normal channels of trade for these goods. See
Kangol Ltd. v. KangaROOS U.S.A. Inc., 974 F.2d 161, 23
USPQ2d 1945 (Fed. Cir. 1992) and the cases cited therein.
The normal channels of trade for the goods of both
applicant and registrant, in the Examining Attorney’s view,
would include large discount stores, mail order catalogs
and children’s shops. To support this assertion, she has
made of record advertisements in a recent Disney catalog
for both children’s clothing and costumes.
We find no basis for applicant’s presumption that
registrant’s children’s clothing would be sold for the most
part in children’s specialty shops. It is common knowledge
Ser No. 75/000,903
6
that children’s clothing is sold in discount stores,
department stores, and other types of mass merchandising
outlets, as well as children’s specialty shops. Thus,
there is an overlap in the types of stores in which
applicant’s Halloween costumes and registrant’s children’s
apparel would be sold and, accordingly, the same purchasers
would encounter both types of children’s goods in the same
stores.
If there is any remaining doubt as to the likelihood
that purchasers, on encountering the two “KIDSTUFF” marks
on these children’s items, would attribute the goods to a
single source, we find that the Examining Attorney has
obviated this doubt by making of record several third-party
registrations and applications showing the adoption of the
same mark by an entity for both children’s apparel and
children’s Halloween costumes. Such evidence is more than
adequate to show that both types of goods might well be
assumed to emanate from the same source when highly similar
marks are used in connection therewith. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Accordingly, we find that there is the likelihood of
confusion in view of the similarity of the marks, the close
relationship of the goods upon which the marks are used and
Ser No. 75/000,903
7
the similarity of the trade channels in which the
respective goods travel.
Insofar as the requirement for an acceptable drawing
is concerned, applicant has requested deferral until there
has been a decision on the merits or other indication that
the application is in condition for publication.
Applicant’s request is not well taken. In order for a
substitute drawing to be considered by the Examining
Attorney, the drawing must have been submitted prior to the
filing of an appeal. See TBMP §1201.02; TMEP §1105.04(c).
Decision: The refusal to register under Section 2(d)
and the requirement for an acceptable drawing are affirmed.
R. F. Cissel
P. T. Hairston
H. R. Wendel
Trademark Administrative Judges,
Trademark Trial and Appeal Board

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