Tim Ennis dba Cymbal & Gong

Trademark Trial and Appeal Board

Apr 16, 2015

No. 85916478 (T.T.A.B. Apr. 16, 2015)

Mailed: April 16, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Tim Ennis dba Cymbal & Gong
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Serial No. 85916478
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Andrew P. Lahser of Law Office of Andrew P Lahser PLC,
for Tim Ennis dba Cymbal & Gong

Tarah Hardy Ludlow, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
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Before Bucher, Ritchie, and Greenbaum,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Tim Ennis, dba Cymbal & Gong, has filed an application to register on the
Principal Register the mark CYMBAL FOUNDRY, in standard character form,
for goods identified as “musical instruments, namely, cymbals and gongs;
percussion instruments, namely, cymbals and gongs,” in International Class 15.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that

1 Application No. 85916478, filed April 26, 2013, under Section 1(a) of the Trademark
Act, claiming dates of first use and first use in commerce on April 18, 2012, and
disclaiming the word “Cymbal” apart from the mark as shown.
This Opinion is not a
Precedent of the TTAB
Ser. No. 85916478
2
Applicant’s mark, when applied to the identified goods, so resembles the
previously registered mark DRUM FOUNDRY for “parts and accessories for
music drums, namely drum shells, lugs, strainers, butts, hoops, tension rods,
mounting screws, air vents, brackets, clamps, mounts, claws, spurs, snare wires,
drum wraps,” also in International Class 15,2 as to be likely to cause confusion,
mistake, or to deceive.
Applicant and the Examining Attorney filed briefs. We affirm the refusal to
register.
Our determination of the issue of likelihood of confusion is based on an
analysis of all 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 Company, 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/or 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 also
consider such factors as the conditions under which and buyers to whom sales of
the goods are made.
Applicant, in urging reversal of the refusal to register, argues that consumers
will not believe that the goods offered by Registrant and Applicant under their

2 Registration No. 3199753, issued January 16, 2007, and disclaiming “DRUM” apart
from the mark as shown. Sections 8 and 15 affidavits accepted and acknowledged.
Ser. No. 85916478
3
respective marks emanate from the same source because the goods are different,
the consumers are sophisticated, the decision to purchase the goods is not made
on impulse, and the normal trade channels do not overlap.3
We first consider the du Pont factor of 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. The mark in
the cited registration is DRUM FOUNDRY while Applicant’s mark is CYMBAL
FOUNDRY. Although Registrant has disclaimed the word “Drum,” and Applicant
has disclaimed the word “Cymbal,” this does not automatically render the marks
confusingly similar. Given that the leading words are quite dissimilar, the marks
in their entireties do not look or sound similar. While both marks share the term
“Foundry,” this word has somewhat different connotations as applied to cymbals,
produced through the manipulation of metal (and often by forging) and drum
parts, many of which are not made of metal..
Applicant has included in the record a Wikipedia entry for “Cymbal” which
states, “Cymbals are a common percussion instrument. … Drum kits usually
incorporate at least a crash, ride or crash/ride, and a pair of hi hat cymbals.”
(February 13, 2014 Response to Office Action, at p.7). The Examining Attorney
also included a dictionary definition of “cymbal” as “noun, a percussion
instrument of indefinite pitch consisting of a thin circular piece of brass, which

3 We note that in his February 13, 2014 Response to Office Action, Applicant stated that
he “respectfully requests an interview with the Examiner to help clarify these matters
and to move this Application toward allowance.” There is no indication that the
interview took place.
Ser. No. 85916478
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vibrates when clashed together with another cymbal or struck with a stick.”
(August 13, 2013 Office Action at p.57). It is clear from the record that there is a
relationship between drums and cymbals in that both are percussion
instruments. Hence, as to overall commercial impressions, both marks suggest
the place where complementary percussion instruments or parts/accessories are
made. Given this similarity, we find that the first du Pont factor weighs in favor
of a likelihood of confusion.
We turn next to a consideration of the similarity or dissimilarity of the goods.
It is well-settled that the question of likelihood of confusion must be determined
based on an analysis of the goods identified in the application vis-à-vis those
identified in the registration. Stone Lion Capital Partners, LP v. Lion Capital
LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Canadian Imperial
Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); and
The Chicago Corp. v. North American Chicago Corp., 20 USPQ2d 1715 (TTAB
1991). Applicant’s goods include “musical instruments, namely, cymbals and
gongs; percussion instruments, namely, cymbals and gongs,” while the goods in
the cited registration include “parts and accessories for music drums, namely
drum shells, lugs, strainers, butts, hoops, tension rods, mounting screws, air
vents, brackets, clamps, mounts, claws, spurs, snare wires, drum wraps.” The
Examining Attorney submitted numerous third-party registrations that include
both “cymbals” on the one hand and “drums” on the other. Copies of use-based,
third-party registrations may serve to suggest that the goods and services are of
a type which may emanate from a single source. See In re Albert Trostel & Sons
Ser. No. 85916478
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Co., 29 USPQ2d 1783, 1785 (TTAB 1993). However, we note that the goods in the
cited registration are not “drums,” but rather are various drum parts and
accessories.
Nonetheless, several of the third-party registrations of record reflect a closer
relationship between the respective goods than Applicant concedes. Whether one
focuses on inventors,4 manufacturers,5 wholesalers6 or retailers,7 we find a
commercial relationship between cymbals and drum parts and accessories,
especially those made of metal. Finally, one website reviewing a drum set that
can be set up by the user mentions inclusion of both “cymbals” and “shells”:
Putting the heads on was fun! Never got a chance to do that ever,
sure I will be doing a lot more in time. Shells are solid and thick
and surely a cheap wood but they’re wood-all we need. Very sturdy.
Pedals aren’t fancy but are about 3/8 - 1/2” thick and simple
mechanics so that if you keeps [sic] tight with included drum
wrench they should last. Cymbals nicer than expected.

4 John Stannard, owner of Registration No. 3338420, MEANIE for, inter alia, drums,
gongs, cymbals, triangles, chimes, and parts and accessories therefor.
5 Sabian, Ltd., owner of Registration No. 2711408, B8PRO for, inter alia, musical
cymbals, gongs, triangles, drums, drumsticks, cymbal-strand nuts and drum keys,
cymbal mountings for cymbal stands, gong and cymbal stands, and parts therefor, and
Crush Drums and Percussion, owner of Registration No. 4242634, the mark
shown at right for, inter alia, cymbals; percussion
instruments, namely, snare drums, drum sets, hand
drums; drum pedals; skins for drums; snare wires for
use with snare drums.

6 Universal Percussions, owner of Registration No. 3340730, XIGSIR for, inter alia,
percussion instruments, namely, drums, cymbals, gongs, latin goods and percussion
accessories.
7 Sam Ash Music Corp., owner of Registration No.
2992541, the mark shown at right for, inter alia,
percussion instruments, namely, drum sets, drums
and cymbals and parts and accessories therefor.

Ser. No. 85916478
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We find this to be a sufficient showing that cymbals are related to, and offered
through the same channels as, the various drum parts and accessories identified
in the registration such that consumers would identify them as being from a
single source. Accordingly, the second and third du Pont factors weigh in favor of
our finding a likelihood of confusion.
We turn next to the du Pont factor considering the conditions of sale and the
sophistication of the purchasers. Although Applicant has shown that many
cymbals are meticulously handcrafted items that sell at higher price points, we
must look to the standard of care of the least sophisticated consumers. Whether it
is the beginning percussionist with a first drum set including hi hat cymbals or a
more seasoned musician in need of a drum key, for example, some purchasers of
these respective products will not be sophisticated, and hence may not exercise a
higher level of care. At best for the position taken by Applicant, this is a neutral
factor in our determination of likelihood of confusion.
In conclusion, we find that the evidence of record supports a finding that there
is a likelihood of confusion. The marks have a similar commercial impression,
there is evidence as to the relationship of the goods and that they would travel in
the same or similar channels of trade. We further find that some consumers are
not likely to exercise care in purchasing the identified drum parts and
accessories. We therefore conclude that confusion is likely.
Decision: The refusal under Section 2(d) is affirmed.