Jarral, Inc.

Trademark Trial and Appeal Board

Jan 25, 2017

No. 86728679 (T.T.A.B. Jan. 25, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: January 25, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jarral, Inc.
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Serial No. 86728679
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Scott R. Brown of Hovey Williams LLP,
for Jarral, Inc.
Nicholas A. Coleman, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Zervas, Ritchie and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Jarral, Inc. (“Applicant”) seeks registration on the Principal Register of the mark
WHIFF WIZARD (in standard characters) for “preparations for neutralizing odors in
the air” in International Class 5.1
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 of

1 Application Serial No. 86728679 was filed on August 18, 2015, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
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likelihood of confusion with the mark WHIFF (in typed drawing format)2 registered
on the Principal Register for “air freshener and room deodorizer” in International
Class 5.3
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of 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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (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. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 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.”).

2 Before November 2, 2003, standard character marks were known as typed drawings. A
typed mark is the legal equivalent of a standard character mark. Trademark Manual of
Examining Procedure (“TMEP”) § 807.03(i) (January 2017).
3 Registration No. 1635245, registered on February 19, 1991. Section 8 (10-Year) affidavit
accepted on March 17, 2011.
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A. Comparison of the Goods, Trade Channels and Consumers
We first compare Applicant’s and Registrant’s goods. In making our determination
under this second du Pont factor, we look to the goods as identified in the involved
application and cited registration. See Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The 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.”). See also Paula Payne Products v. Johnson Publishing Co., 473 F.2d 901,
177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of
confusion must be decided on the basis of the respective descriptions of goods.”).
In this case, Applicant’s goods are identified as “preparations for neutralizing
odors in the air” and Registrant’s goods are identified as “air freshener and room
deodorizer.”
Inasmuch as the goods identified in Applicant’s application are broadly defined to
include air fresheners and room deodorizers, we find that these goods encompass
Registrant’s more narrowly identified goods. As a result, Registrant’s goods are
legally identical in part to Applicant’s goods.
Because the goods at issue are legally identical in part, we must presume that the
goods of Applicant and Registrant move in the same channels of trade and are offered
to the same classes of consumers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
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1905, 1908 (Fed. Cir. 2012). Notwithstanding, since the identification of goods for
Applicant’s mark and the cited mark do not include any limitation as to the trade
channels or class of purchasers for the listed services, it is presumed that the goods
move in all channels of trade which would be normal therefor, and that they would
be purchased by all potential buyers thereof. See, e.g., Levi Strauss & Co. v.
Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir.
2013); In re Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no
authority to read any restrictions or limitations into the registrant’s description of
goods.”); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). Given the
relatedness of Applicant’s goods and Registrant’s goods and the lack of any
restrictions in their identifications as to trade channels or purchasers, these factors
weigh in favor of a finding of likelihood of confusion.
B. Comparison of the Marks
We next address the du Pont likelihood of confusion factor focusing on “the
similarity or dissimilarity of 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). “The proper test is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Serial No. 86728679
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Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on a consideration of the
marks in their entireties. In re Nat’l Data, 224 USPQ at 751.
In comparing the marks, we are mindful that where, as here, the goods are legally
identical in part, the degree of similarity necessary to find likelihood of confusion
need not be as great as where there is a recognizable disparity between the goods.
Coach Servs., Inc., 101 USPQ2d at 1721; Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises
Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare
Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
Serial No. 86728679
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Applicant’s mark is WHIFF WIZARD, and the cited mark is WHIFF. The sole
difference between the marks is the inclusion of the term WIZARD in Applicant’s
mark.
While “[t]here is no explicit rule that likelihood of confusion automatically applies
where a junior user’s mark contains in part the whole of another mark,” the fact that
the cited registered mark is subsumed by Applicant’s mark increases the similarity
between the two, particularly when the goods at issue are legally identical in part.
See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009)
(applicant’s mark VANTAGE TITAN for medical magnetic resonance imaging
diagnostic apparatus confusingly similar to TITAN for medical ultrasound diagnostic
apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988)
(applicant’s mark MACHO COMBOS for food items confusingly similar to MACHO
for restaurant entrees); In re Riddle, 225 USPQ 630, 632 (TTAB 1985) (RICHARD
PETTY’S ACCU TUNE for automotive service centers confusingly similar to ACCU-
TUNE for automotive testing equipment).
Moreover, while the additional term “WIZARD” cannot be ignored, the shared
term WHIFF appears first in Applicant’s mark. Consumers are generally more
inclined to focus on the first word, prefix, or syllable in any trademark or service
mark. See Palm Bay Imps., Inc., 73 USPQ2d at 1692 (Fed. Cir. 2005) (“VEUVE . . .
remains a ‘prominent feature’ as the first word in the mark and the first word to
appear on the label”). Further, even if consumers recognize the additional term
“WIZARD” in Applicant’s mark and attribute significance to it, they could still
Serial No. 86728679
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reasonably assume, due to the overall similarities between the respective marks and
the relatedness of the goods, that Applicant’s goods sold under the “WHIFF WIZARD”
mark constitute a new or additional product line from the same source as the goods
sold under Registrant’s “WHIFF” mark with which they are acquainted or familiar,
and that the “WHIFF WIZARD” mark is merely a variation of the Registrant’s
“WHIFF” mark. See, e.g., SMS, Inc. v. Byn-Mar Inc. 228 USPQ 219, 220 (TTAB 1985)
(applicant’s marks ALSO ANDREA and ANDREA SPORT were “likely to evoke an
association by consumers with opposer's preexisting mark [ANDREA SIMONE] for
its established line of clothing.”).
In view of the foregoing, we find that the marks are sufficiently similar for
likelihood of confusion purposes. The first du Pont factor thus supports a finding that
confusion is likely.
C. Strength of the Registrant’s Mark and Nature of Similar Marks in Use
on Similar Goods

Applicant argues that the term WHIFF is suggestive and/or descriptive of the
parties’ respective goods. Applicant has not submitted any evidence to support this
contention. Even if we were to assume that the term WHIFF is suggestive of air
freshening or odor deodorizing products, marks deemed suggestive are nonetheless
still entitled to protection against the registration by a subsequent user of a similar
mark for closely related goods. In re Max Capital Group Ltd., 93 USPQ2d 1243, 1246
(TTAB 2010); In re Chica Inc., 84 USPQ2d 1845, 1850 (TTAB 2007); In re Colonial
Stores, Inc., 216 USPQ 793, 795 (TTAB 1982).
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Applicant also argues that the term WHIFF is weak in relation to deodorizing or
odor eliminating products. In support of its argument, Applicant has submitted the
following third-party registrations:
REGISTRATION
NUBMER
MARK IDENTIFIED GOODS
Reg. No. 3461335 WHIFF Grooming products for
animals, namely, pet
conditioners and fragrance
sprays for pets; and pet
fragrances, namely, odor
control fragrance collars
Reg. No. 3586834 TAKE A WHIFF! Deodorant for personal use
Reg. No. 4950969 WHIFF OUT Deodorizers for ash trays
and ash and cigarette
receptacles.

Additionally, Applicant contends that because Registrant’s WHIFF mark was not
cited as a bar to registration with the marks subject to the now canceled registration
and abandoned application identified below, the Office has purportedly made a
determination that the term WHIFF is weak when used in relation to air freshening
and/or odor neutralizing products:
Registration No. 3053144
(canceled)
WHIFF WHACKER Liquid Odor removers for
eliminating pet odors and
household odors
Application Serial No.
77146037 (abandoned)
WHIFF IT Air deodorizer, air freshener
sprays; air fresheners;
deodorizers for automobiles;
shoe deodorizers; house
deodorizers

Evidence of extensive registration and use by others of a term on the same or very
similar goods can be “powerful” evidence of weakness. See Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
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116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).
Here, Applicant has not submitted any evidence of actual third-party marketplace
use of the term “WHIFF” used in connection with air freshening or odor neutralizing
products. Instead, Applicant has submitted only three live third-party registrations.
Third-party registrations such as those offered by Applicant are not evidence of use
of the marks, Olde Tyme Foods, Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542,
1545 (Fed. Cir. 1992), but they can be used to show that a mark or portion thereof is
weak. See Juice Generation, 115 USPQ2d at 1675 (weakness of PEACE, LOVE); Jack
Wolfskin, 116 USPQ2d at 1136; Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917
(CCPA 1976) (even if “there is no evidence of actual use” of third-party registrations,
such registrations “may be given some weight to show the meaning of a mark in the
same way that dictionaries are used”). An applicant may come closer to a weak mark
without causing a likelihood of confusion. Juice Generation, 115 USPQ2d at 1674.
With regard to the registered TAKE A WHIFF! mark, we find that the goods
identified in this registration, i.e., deodorant for personal use, are hygiene products
used by humans and are therefore unrelated to the goods at issue. Accordingly, this
registration is insufficient to establish that term WHIFF is weak when used
connection with products used to freshen the air or to remove odors from the air. See
Kay Chems., Inc. v. Kelite Chems. Corp., 464 F.2d 1040, 1042, 175 USPQ 99, 101
(C.C.P.A. 1972); In re Thor Tech, Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (third-
party registrations found to be of limited value because goods identified in the
Serial No. 86728679
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registrations appeared to be in fields which were far removed from the involved
products).
That leaves the two remaining registrations for the marks WHIFF for various pet
grooming products including odor control fragrance collars and WHIFF OUT used in
connection with deodorizers for ash trays and cigarette receptacles. While we
recognize the goods identified in these two registrations perform an identical function
as the goods identified in the cited registration, i.e., eliminating odors, we nonetheless
find that these two registrations, standing alone and without any evidence of actual
use of the marks, is insufficient evidence under our reviewing court’s decisions in
Juice Generation and Jack Wolfskin to establish that the term WHIFF is weak when
used in connection with air freshening and/or odor neutralizing products.4
We further find unpersuasive Applicant’s argument that because the Office did
not cite Registrant’s WHIFF mark as a bar to the registration of the marks WHIFF
WHACKER and WHIFF IT, both used in connection with various air freshening
and/or odor neutralizing products, the Office has determined that the term WHIFF
is weak when used in association with such products and therefore by not allowing
Applicant’s mark to proceed to registration would create an inconsistent treatment of
WHIFF formative marks.

4 We note that in Juice Generation, there were at least twenty-six relevant third-party uses
or registrations of record, see 115 USPQ2d at 1672 n. 1, and in Jack Wolfskin, there were at
least fourteen, 116 USPQ2d at 1136 n. 2.

Serial No. 86728679
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A canceled registration is generally evidence only of the fact that that registration
issued and therefore is not evidence of the weakness of a mark. In re Brown-Forman
Corp., 81 USPQ2d 1284, 1286 n.3 (TTAB 2006). Furthermore, an application only
serves as proof that an application was filed. In re Mr. Recipe, LLC, 118 USPQ2d
1084, 1089 (TTAB 2016). Thus we accord the canceled registration and the abandoned
application submitted by Applicant no probative value.
In any event, prior decisions and actions of other trademark examining attorneys
in registering other marks or approving marks for registration have little evidentiary
value and are not binding upon the USPTO or the Trademark Trial and Appeal
Board. See In re Cordua Rest. Inc., 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016)
(citing In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(“Even if some prior registrations had some characteristics similar to Nett Design’s
application, the PTO’s allowance of such registrations does not bind the Board or this
court.”)). Each case is decided on its own facts, and each mark stands on its own
merits. See In re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221
(Fed. Cir. 2009) (“Applicant's allegations regarding similar marks are irrelevant
because each application must be considered on its own merits.”); In re Binion, 93
USPQ2d 1531, 1536 (TTAB 2009).
Accordingly, Applicant has not demonstrated that the term “WHIFF” is weak or
diluted for any of the goods in the cited registration. This factor favors a finding of
likelihood of confusion.

Serial No. 86728679
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Conclusion
Based on all evidence and arguments bearing on the du Pont factors, including
the evidence and arguments that we have not specifically discussed herein, we
conclude that Applicant’s mark, as used in connection with the goods identified in the
application, so resembles the cited mark as to be likely to cause confusion or mistake,
or to deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s WHIFF WIZARD mark is affirmed.