Great Gizmos Limited

Trademark Trial and Appeal Board

Apr 20, 2009

No. 79034859 (T.T.A.B. Apr. 20, 2009)

Mailed: April 20, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Great Gizmos Limited.
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Serial No. 79034859
_______

Lawrence E. Abelman of Abelman Frayne & Schwab for Great
Gizmos Limited.

Laurie R. Kaufman, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Walters, Bucher and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Great Gizmos Limited seeks registration on the
Principal Register of the mark for goods and
services identified as “puzzles, jigsaw puzzles, mosaic
puzzles; novelties for parties, namely, kaleidoscopes,
children’s telescopes, fake teeth, potato guns, glitter
wands; children’s toy vehicles; wooden puzzles, wooden
counting rings, wooden play clocks, wooden dollhouses and
wooden dollhouse furniture, wooden learning games;
children’s toy science kits; children’s toy gardening
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 79034859
2
tools; dollhouses and dollhouse furniture; kites;
children’s scooters, tricycles and pedal cars; children’s
hobby craft kits for making dolls, doll’s clothes, mirrors,
picture frames, trinket boxes, candles, candle holders,
door hangers, wind chimes, and children’s jewelry; hobby
craft kits, namely, children’s sequin art kits, children’s
sand art kits, children’s T-shirt transfer kits, children’s
knitting kits, children’s painting kits, children’s papier
mache kits, children’s origami kits; glow in the dark self-
adhesive shapes for children; children’s toy cooking and
baking implements; children’s toy dining and tea sets;
dressing up costumes and masks for children; children’s
dolls and playsets therefore; children’s hobby art and
craft kits, namely, children’s toy crockery decorating
kits; children’s toy model hydraulics kits; children’s toy
model robot kits; children’s toy model racing car kits” in
International Class 28 and “wholesale ordering services and
retail store services featuring puzzles, jigsaw puzzles,
mosaic puzzles; novelties for parties, namely,
kaleidoscopes, children’s telescopes, fake teeth, potato
guns, glitter wands; children’s vehicles; wooden puzzles,
wooden counting rings, wooden play clocks, wooden
dollhouses and wooden dollhouse furniture, wooden learning
games; children’s science kits; children’s gardening tools;
Serial No. 79034859
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dollhouses and dollhouse furniture; kites; children’s
scooters, tricycles and pedal cars; children’s kits for
making dolls, doll’s clothes, mirrors, picture frames,
trinket boxes, cradles, candle holders, door hangers, wind
chimes, and children’s jewelry; children’s sequin art kits;
children’s sand art kits; children’s T-shirt transfer kits;
children’s knitting kits; children’s painting kits;
children’s papier mache kits; children’s origami kits; glow
in the dark self-adhesive shapes for children; children’s
cooking and baking implements; children’s dining and tea
sets; dressing up costumes and masks for children;
children’s dolls and playsets therefor; children’s crockery
decorating kits; children’s model hydraulics kits;
children’s model robot kits; children’s model racing car
kits; children’s art and craft kits, children’s jewelry and
hair accessories, children’s bags and purses, trinket
boxes, jewelry boxes and stationery.”1
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 and
services, so resembles the registered mark GIZMOS (in typed
form) for “developmental and educational play materials,

1 Application Serial No. 79034859, filed December 4, 2006, under
Trademark Act Section 66(a), 15 U.S.C. §1141(f).
Serial No. 79034859
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namely, gear construction and assembly toy sets,” in
International Class 28, as to be likely to cause confusion,
mistake or deception.2
Applicant has appealed the final refusal and the
appeal is fully briefed. We affirm the refusal to
register.
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).
As a preliminary matter, the examining attorney’s
objection to the materials attached to applicant’s brief is
sustained. These exhibits are untimely. See Trademark
Rule 2.142(d). In addition, although the Board may take
judicial notice of online dictionaries available in printed

2 Registration No. 2309336, issued January 18, 2000, Section 8
and 15 affidavits accepted and acknowledged.
Serial No. 79034859
5
format, it may not take judicial notice of online sources
such as Wikipedia. In re Total Quality Group Inc., 51
USPQ2d 1474, 1476 (TTAB 1999). In addition, the Board may
not take judicial notice of third-party registrations. In
re Wada, 48 USPQ2d 1689, 1689 n.2 (TTAB 1998), aff’d, 194
F.3d 1297, 52 USPQ2d 1539 (Fed. Cir. 1999). In view
thereof, these materials have not been considered.3
We turn first to a consideration of the goods and
services, channels of trade and classes of purchasers as
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
themselves, 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 cited
registrant’s goods and applicant’s goods and services as
they are described in the registration and application and
we cannot read limitations into those goods and services.
See Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d

3 We note that consideration of these materials would not change
the decision.
Serial No. 79034859
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1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1987). If the identifications in
the application or cited registration describe goods or
services broadly, and there is no limitation as to the
nature, type, channels of trade or class of purchasers, it
is presumed that the registration or application
encompasses all goods and services of the type described,
that they move in all channels of trade normal for these
goods and services, and that they are available to all
classes of purchasers for the described goods and services.
See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992).
Applicant’s goods, a variety of toys and hobby kits,
are identical or very closely related to registrant’s
goods, gear construction and toy assembly kits. The
examining attorney submitted excerpts from various websites
showing that entities sell applicant’s and registrant’s
types of goods under a common name. See, e.g.,
oakridgehobbies.com (construction toys and model hobby kits
sold under K’NEX mark); shopping.discovery.com (toy
assembly sets and a full line of educational toys sold
under DISCOVERY mark); www.clikits.com (games, dolls, and
building toys sold under LEGO mark); and www.gummylump.com
Serial No. 79034859
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(dolls, hand puppets, and assembly toy sets sold under
MELISSA & DOUG mark).
With regard to channels of trade and classes of
purchasers, as noted above, because there are no specific
limitations in either the registration or the subject
application, we must presume that applicant’s goods and
registrant’s goods move in all channels of trade normal for
these respective goods, and that they are available to all
classes of purchasers for the described goods. See In re
Linkvest S.A., 24 USPQ2d 1716. Further, the examining
attorney has submitted evidence supporting this
presumption. See, e.g., www.mindwearonline.com,
uncommongoods.com, and discovery.com (all displaying and
offering for sale various toys, hobby kits and toy assembly
kits on the same page).
With regard to the services, it is well established
that goods and services may be related. In re Hyper
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Cir. 1988) (BIGGS for retail grocery and general
merchandise store services likely to be confused with BIGGS
for furniture). The record shows that entities use the
same mark in connection with retail toy store services and
goods. See, e.g., www.discovery.com (DISCOVERY STORE
displaying toys sold under the DISCOVERY mark). Applicant
Serial No. 79034859
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has presented no argument or evidence to dispute this
contention.
In view of the above, the du Pont factors of the
relatedness of the goods and services, the channels of
trade and classes of purchasers weigh in favor of
likelihood of confusion as to the cited registration.
In determining the similarity between the marks we
analyze “the marks in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)
quoting du Pont, 177 USPQ at 567. While it is a basic
principle that “marks must be compared in their
entireties...[t]hat a particular feature is descriptive or
generic with respect to the involved goods or services is
one commonly accepted rationale for giving less weight to a
portion of a mark.” In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s proposed mark GREAT GIZMOS encompasses the
entirety of registrant’s mark GIZMOS. Further, the
dominant element in applicant’s mark is the word GIZMOS.
Id.
Applicant argues that the examining attorney
improperly dissected its mark in her analysis and did not
Serial No. 79034859
9
accord the proper weight to the word GREAT in its mark. We
find no error in the examining attorney’s analysis. The
marks were compared in their entireties; moreover, as noted
above, it is appropriate to accord more weight to dominant
elements in a mark. Further, the term GREAT connotes “very
good; first-rate.”4 Thus, GREAT serves a modifying and
laudatory function, and is not sufficient to distinguish
these marks, in particular given the close nature of the
goods and services.
Finally, while GIZMOS may be suggestive of
registrant’s and applicant’s goods and services, to the
extent it suggests a gadget like quality of the goods or
services,5 even weak marks are accorded protection. King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108 (CCPA 1974).
Applicant relies on In re Broadway Chicken Inc., 38
USPQ2d 1559 (TTAB 1996) in support of its argument that
widespread use of a term can lead consumers to look to

4 The Board takes judicial notice of The American Heritage
Dictionary of the English Language (4th ed. 2000) definition of
the word GREAT. The Board may take judicial notice of dictionary
definitions. University of Notre Dame du Lac v. J.C. Gourmet
Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).

5 Gizmo is defined as “a mechanical device or part whose name is
forgotten or unknown; a gadget.” The American Heritage
Dictionary of the English Language (4th ed. 2006).

Serial No. 79034859
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other aspects of a mark to identify source. However, even
if we considered the materials attached to applicant’s
brief, they do not compare to the record in Broadway
Chicken, which included examples of 575 other entities that
used BROADWAY in connection with restaurant services.
In view of the dominance of the shared word GIZMOS,
the similarities in the marks in terms of appearance,
sound, connotation and commercial impression, outweigh the
dissimilarity, the addition of the laudatory word GREAT, in
applicant’s mark. Thus, the factor of the similarities of
the marks weighs in favor of likelihood of confusion.
In conclusion, we find that because the marks are
similar, the goods and services are related, and the
channels of trade and purchasers overlap, confusion is
likely between applicant’s mark and the mark in the cited
registration. To the extent there are any doubts, we
resolve them, as we must, in registrant’s favor. In re
Hyper Shoppes (Ohio), Inc., 6 USPQ2d 1025.
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.