Harris Publications, Inc.

Trademark Trial and Appeal Board

Aug 5, 2008

No. 78894466 (T.T.A.B. Aug. 5, 2008)

Mailed: August 5, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Harris Publications, Inc.
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Serial No. 78894466
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Oliver R. Chernin of McLaughlin & Stern, LLP for Harris
Publications, Inc.

Sandra E. Manios, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Hairston, Drost and Wellington, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:
Harris Publications, Inc. has filed an application to
register the standard character form mark 0-60 for goods
ultimately identified as “magazines featuring information
and news in the field of automobiles” in International
Class 16.1

1 Application Serial No. 78894466, filed May 26, 2006, based on
an allegation of a bona fide intention to use the mark in
commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78894466
2
The trademark examining attorney has issued a final
refusal to register under Section 2(d) of the Trademark
Act, 15 U.S.C. §1052(d) in view of the previously
registered mark ZERO TO SIXTY for “entertainment services
in the nature of an ongoing television series concerning
automobiles and news relating to automobiles; providing
information in the field of entertainment, namely,
automobiles and news relating to automobiles rendered via
computer by means of a global computer network.”2
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. 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,
however, 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).

2 Registration No. 2902407 issued November 9, 2004.
Ser No. 78894466
3
Considering first the respective marks 0-60 and ZERO
TO SIXTY, applicant maintains that there are obvious
differences in the marks in terms of appearance. In
addition, applicant argues that in terms of sound, the
marks are not similar because the “0” (zero) in its mark
may also be pronounced as “the letter ‘O’ or the British
term ‘naught’ or ‘nought.’” (Brief, p. 9) Further,
applicant argues that the “-” in its mark 0-60 may be
pronounced as the word “dash.” Applicant contends that, in
any event, any phonetic similarity between the respective
marks should be given less weight in our analysis of the
marks because the services in the cited registration “rely
on visual viewing of the mark and not the pronunciation of
the mark.” (Id.) Insofar as connotation and commercial
impression are concerned, applicant maintains that
registrant uses its mark ZERO TO SIXTY as the title of 60-
second television updates featuring news from the
automobile world. Thus, according to applicant,
registrant’s mark ZERO TO SIXTY connotes the 60-second
nature of the television updates, which differs from the
connotation of applicant’s mark which is the acceleration
rate of an automobile. In this regard, applicant has
submitted an Internet printout which discusses registrant’s
television series.
Ser No. 78894466
4
The examining attorney does not dispute that the marks
0-60 and ZERO TO SIXTY differ in appearance. However, she
maintains that in terms of sound, connotation and
commercial impression, the marks are identical.
With respect to the marks, we must determine whether
applicant’s mark and registrant’s mark, when compared in
their entireties, are similar or dissimilar in terms of
sound, appearance, connotation and commercial impression.
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
commercial impression that confusion as to the source of
the goods and/or services offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).
There is no dispute that the marks 0-60 and ZERO TO
SIXTY differ in appearance. However, for confusion to be
likely, it is not necessary that the marks be identical or
similar in every element. Indeed, similarity in a single
element may be a sufficient basis for finding likelihood of
Ser No. 78894466
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confusion. In re Oil Well Company, 181 USPQ 656 (TTAB
1973).
With respect to sound, we find that the marks are
identical. Notwithstanding applicant’s arguments, we
believe that applicant’s mark 0-60, when used on
applicant’s magazines featuring information and news about
automobiles, is likely to be pronounced in the same manner
as registrant’s mark, namely, “zero to sixty.” In the
context of applicant’s magazines, it would make no sense to
pronounce the “0” (zero) in applicant’s mark as the letter
“O,” much less the term “naught” or “nought.” Also,
contrary to applicant’s argument, we do not believe that
purchasers are likely to pronounce the “-” in applicant’s
mark as the word “dash.” Again, in the context of
applicant’s magazines, purchasers are likely to pronounce
the “-” in 0-60 as the word “to.” In addition, we are not
persuaded by applicant’s argument that any phonetic
similarity in the respective marks should be given less
weight in our analysis of the marks because registrant’s
services “rely on visual viewing of the mark and not the
pronunciation of the mark.” (Brief, p. 9) The titles of
television series are announced during on-air promotions
and at commercial breaks during the programming.
Ser No. 78894466
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In terms of connotation, we find that both marks have
the identical meaning of the acceleration rate of an
automobile. We are not persuaded by applicant’s argument
that registrant’s mark ZERO TO SIXTY connotes 60-second
television updates. Moreover, as discussed infra,
registrant’s identification of services is not limited to
60-second television updates.
Further, in terms of commercial impression, we find
that the two marks are identical in that they both would be
viewed as the expression “zero to sixty.”
We find, therefore, that the marks are identical when
viewed in their entireties in terms of sound, connotation
and commercial impression.
Turning next to consider the goods and services
involved in this case, we note that the question of
likelihood of confusion must be determined based on an
analysis of the goods or services recited in applicant’s
application vis-à-vis the goods or services recited in the
registration, rather than what the evidence shows the goods
or services actually are. 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). Further, it is a general rule
that goods or services need not be identical or even
Ser No. 78894466
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competitive in order to support a finding of likelihood of
confusion. Rather, it is enough that goods or services are
related in some manner or that some circumstances
surrounding their marketing are such that they would be
likely to be seen by the same persons under circumstances
which could give rise, because of the marks used or
intended to be used therewith, to a mistaken belief that
they originate from or are in some way associated with the
same producer or that there is an association between the
producers of each party’s goods or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991), and cases cited
therein.
Applicant’s goods are identified as “magazines
featuring information and news in the field of
automobiles.” The services in the cited registration are
identified as “entertainment services in the nature of an
ongoing television series concerning automobiles and news
relating to automobiles; providing information in the field
of entertainment, namely, automobiles and news relating to
automobiles rendered via computer by means of a global
computer network.” Applicant argues that the respective
goods and services are not related because its magazines
will present in-depth articles about automobiles, whereas
registrant’s television series and information services
Ser No. 78894466
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provide mere snippets of information about automobiles.
Further, applicant argues that the respective goods and
services are offered in different channels of trade to
different classes of purchasers. Specifically, applicant
argues that its magazines will be sold at newsstands and/or
by subscription to automobile enthusiasts whereas
registrant’s television series is broadcast on television
and its information services are rendered via the Internet
to persons with only a casual interest in automobiles.3
In the present case, we find that the respective goods
and services are commercially related. Applicant’s
magazines and registrant’s television series and
information services obviously are similar in that the

3 We note applicant’s reliance on Parenting Unlimited Inc. v.
Columbia Pictures Television Inc., 743 F.Supp. 221, 16 USPQ2d
1171 (S.D.N.Y. 1990). Upon consideration of this decision, we
cannot agree with applicant that the situation in that case is
comparable to the present one. This case was an infringement
suit involving plaintiff’s mark BABY TALK for magazines and
defendant’s identical mark BABY TALK for a television series.
The court found plaintiff’s mark to be merely descriptive and
lacking secondary meaning. In addition, the court considered
specific distinctions in the content of plaintiff’s magazines and
defendant’s television series. Thus, no likelihood of confusion
was found. Here, there has been no showing by applicant that the
registered mark ZERO TO SIXTY is descriptive. Also, as discussed
infra, we find no distinctions in the subject matter of the
involved goods and services.
Ser No. 78894466
9
subject matter thereof is automobiles. Here, under very
similar marks, applicant intends to sell magazines with
news and information about automobiles and registrant
renders a television series and information services about
the identical subject.
We recognize that the channels of trade for the
respective goods and services are different. However,
neither applicant’s identification of goods nor
registrant’s identification of services is restricted in
any way as to the substantive nature of the
news/information about automobiles or the classes of
purchasers. We therefore must assume that applicant’s
magazines and registrant’s television series and
information services will include both in-depth and
superficial news/information about automobiles, and that
such goods and services will be marketed to all the usual
classes of purchasers. This would include automobile
enthusiasts as well as persons with only a casual interest
in automobiles. In short, we cannot draw the distinctions
urged by applicant with respect to the nature of the goods
and services and the classes of purchasers. Instead, we
find the subject matter of the respective goods and
services and the classes of purchasers to be identical.

Ser No. 78894466
10
To establish a relationship between applicant’s
magazines and registrant’s television series, in
particular, the examining attorney has submitted copies of
several pairs of third-party registrations for marks that
cover both television programs and magazines. Each pair of
registrations is owned by the same registrant: (1)
Registration No. 1794538 for television programming and
Registration No. 2046874 for magazines, both for THE
HISTORY CHANNEL; (2) Registration No. 1345096 for
television entertainment programs and Registration No.
2147722 for magazines, both for ESPN; (3) Registration No.
2455590 for a television program series and Registration
No. 2172031 for magazines, both for DISCOVERY CHANNEL
SCHOOL; and (4) Registration No. 1709962 for magazines and
Registration No. 1947885 for television programs, both for
MARTHA STEWART LIVING. See In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988) [Although third-party
registrations “are not evidence that the marks shown
therein are in use on a commercial scale or that the public
is familiar with them, [they] may have some probative value
to the extent that they may serve to suggest that such
goods or services are the type which may emanate from a
single source”]. See also In re Albert Trostel & Sons Co.,
29 USPQ2d 1783, 1786 (TTAB 1993).
Ser No. 78894466
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Under the facts of this case, we conclude that
applicant’s “magazines featuring information and news in
the field of automobiles” and registrant’s “entertainment
services in the nature of an ongoing television series
concerning automobiles and news relating to automobiles;
providing information in the field of entertainment,
namely, automobiles and news relating to automobiles
rendered via computer by means of a global computer
network” are related goods and services. Consumers, upon
encountering the marks and these related goods and services
offered thereunder, are likely to think that registrant has
expanded into a magazine format featuring information and
news about automobiles.
Applicant argues that consumers exercise greater care
when purchasing automobile-related magazines and,
therefore, will be able to distinguish between the sources
of applicant’s magazine and registrant’s television series
and information services. Apart from the fact that there
is nothing in this record to support applicant’s argument,
magazines are classic impulse items because they are
relatively inexpensive and purchased off the shelf. In any
event, even assuming that purchasers of automobile-related
magazines are discriminating purchasers, we note that “even
careful purchasers are not immune from source confusion.”
Ser No. 78894466
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In re Total Quality Group, Inc., 51 USPQ2d 1474, 1477 (TTAB
1999).
Finally, applicant points to Registration No. 3197480
for the mark ZERO TO SIXTY and Registration No. 3249531 for
the mark ZTS ZERO TO SIXTY and design, both for, inter
alia, “providing music for use in the production of
television shows.” Third-party registrations cannot be
used to justify the registration of another confusingly
similar mark. In re J.M. Originals Ind., 6 USPQ2d 1393,
1394 (TTAB 1987). These two registrations, which are owned
by the same entity, do not establish that there is no
likelihood of confusion in this case. Moreover, we observe
that the services of “providing music for use in the
production of television shows,” are far removed from the
goods and services involved herein.
We accordingly conclude that consumers who are
familiar with registrant’s mark ZERO TO SIXTY for either
entertainment services in the nature of an ongoing
television series concerning automobiles and news relating
to automobiles or the services of providing information in
the field of entertainment, namely, automobiles and news
relating to automobiles rendered via computer by means of a
global computer network, would be likely to believe, upon
encountering applicant’s very similar mark 0-60 for
Ser No. 78894466
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magazines featuring information and news in the field of
automobiles, that such goods and services emanate from, or
are sponsored by or associated with, the same source.
To the extent that any of the points argued by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved against applicant as the
newcomer. In re Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6
USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal under Section 2(d) is affirmed.