Global Animal Management, Inc.

Trademark Trial and Appeal Board

May 31, 2011

No. 77551179 (T.T.A.B. May. 31, 2011)

Mailed: May 31, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Global Animal Management, Inc.
________

Serial No. 77551179
_______

James E. Rosini, of Kenyon & Kenyon, for Global Animal
Management, Inc.

Charles L. Jenkins Jr., Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______

Before Grendel, Holtzman, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Global Animal Management, Inc. (“applicant”) filed an
application to register the mark shown below for goods
identified as “radio frequency identification tags for animals,”
in International Class 9:1

1 Serial No. 77551179, filed August 20, 2008, pursuant to Section 1(b)
of the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent
to use in commerce, and disclaiming an exclusive right to use the term
“TAG” apart from the mark as shown. The description of the mark
reads: “The mark consists of the words “GAM” and “TAG” appearing in
black separated by a red triangle symbol.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77551179
2

The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the registered mark GAMMATAG,2 in standard character
form, for “radio frequency identification (RFID) equipment and
systems, namely, RFID tags,” that when used on or in connection
with applicant’s identified goods, it is likely to cause
confusion or mistake or to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs, and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d

2 Registration No. 3542469, issued December 9, 2008, based on first use
and first use in commerce on November 30, 2006.
Serial No. 77551179
3
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in
the marks”).
The Goods and Channels of Trade

The items in the application are identical-in-part to those
in the cited registration. Specifically, the “radio frequency
identification tags for animals,” identified in the application
are a subset of the “radio frequency identification (RFID)
equipment and systems, namely, RFID tags,” identified in the
cited registration. Although applicant argues that the goods
are different, and are sold to different purchasers based on the
respective websites of applicant and registrant, we are bound to
consider only the identifications of goods themselves, which are
clear in showing that both applicant and registrant identify
radio frequency identification, or RFID, tags, with applicant
more specifically identifying RFID tags for animals. Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“[t]he authority is
legion that the question of registrability of an applicant’s
mark must be decided on the basis of the identification of goods
set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which
the sales of goods are directed.” [citations omitted]).
Serial No. 77551179
4
Accordingly, we find the goods to be overlapping and legally
identical.

The fact that some of applicant’s goods are identical to
registrant’s goods is sufficient to support a finding of
likelihood of confusion. See Tuxedo Monopoly, Inc. v. General
Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981). Furthermore, there is nothing that prevents the
registrant from selling its “radio frequency identification
(RFID) tags” specifically “for animals” as so designated in the
application. Accordingly, these may appear in the same stores
or venues as applicant’s products, and may be sold to the same
customers. This is particularly true where, as here, the goods
are in-part identical. Accordingly, we find that these du Pont
factors weigh heavily in favor of finding a likelihood of
confusion.
The Marks
Preliminarily, we note that the more similar the goods at
issue, the less similar the marks need to be for the Board to
find a likelihood of confusion. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992). We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Serial No. 77551179
5
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer for the goods at issue, who retains a general rather
than specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
The mark in the cited registration consists of the term
GAMMATAG in standard character form. Applicant submitted
definitions of the term “GAMMA” as “a unit of magnetic field
strength”/“involving or relating to photons of energy”3 and “a
very high form of radiation.”4 Applicant argues that this term
is descriptive of the goods in the cited registration. We

3 American Heritage Dictionary (4th ed. 2000).
4 Kernermen English Multilingual Dictionary (2010).
Serial No. 77551179
6
disagree, and find the term to be at most suggestive of the
goods in the cited registration.
The examining attorney describes applicant’s mark as being
pronounced “GAMATAG” as well. It is well-settled that there is
no correct pronunciation of a trademark. In re Teradata Corp.,
223 USPQ 361, 362 (TTAB 1984). However, we agree with applicant
that it is not obvious that the red triangle in the middle of
applicant’s mark would be perceived by consumers as the letter
“A.” Rather, we think it more apt that consumers would likely
perceive applicant’s mark as “GAM TAG” with a red triangle in
the middle. That said, the letters do clearly dominate the
mark, and the triangle does little, if anything, to change the
commercial connotation as it is the words and not the design
that will be used by consumers to call for or refer to the
goods. CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir.
1983); In re Dakin’s Miniatures Inc., 59 UPSQ2d 1593, 1596 (TTAB
2001); In re Appetito Provisions Co., Inc., 3 USPQ2d 1553, 1554
(TTAB 1987).5 Overall, applicant’s “GAM TAG” sounds strikingly
similar to registrant’s “GAMMATAG” and looks quite similar too,
especially with a red triangle in the middle that is shaped like
the letter “A.”
In sum, we find the similarities of the marks to outweigh
their dissimilarities, and this du Pont factor to also favor

5 Applicant’s reference in its reply brief to examples like WAL*MART
actually prove this point. Consumers pronounce and refer to the
letters, not the intervening symbol.
Serial No. 77551179
7
finding a likelihood of confusion.

Consumer Sophistication
Applicant urges us to consider consumer sophistication. In
this regard, as with the other du Pont factors, we are bound by
the parties’ respective identifications of goods. Octocom
Systems, Inc. v. Houston Computers Services Inc., supra, 16
USPQ2d 1783, 1787.
There is nothing in the record that would give us further
insight as to whether “RFID tags” and “radio frequency tags for
animals” may be sold to particularly savvy customers.
Presumably, the overlapping customers would be breeders or
possibly veterinarians, although it is also possible that pet
owners could purchase RFID tags for various purposes, including
to track their pets. To the extent we accept that the goods are
marketed to more careful purchasers, with some advanced
knowledge of tracking devices, we note that with identical goods
and similar marks, even a careful, sophisticated consumer of
these goods is not likely to note the differences in the marks.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir.
2000). Accordingly, we deem this du Pont factor to be neutral.
Serial No. 77551179
8
Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the pertinent du
Pont likelihood of confusion factors. We conclude that with in-
part identical goods, legally identical channels of trade, and
similar marks with similar connotations, even with potentially
sophisticated purchasers, there is a likelihood of confusion
between applicant’s mark for the goods for which it seeks
registration and the registered mark GAMMATAG for the items
identified therein.
Decision: The refusal to register is affirmed.