Mark A. Flannery

Trademark Trial and Appeal Board

Apr 14, 2009

No. 76665792 (T.T.A.B. Apr. 14, 2009)

Mailed:
April 14, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Mark A. Flannery
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Serial No. 76665792
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Robert J. Jacobson, Esq., for Mark A. Flannery.

Katherine S. Chang, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Seeherman, Hairston, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Mark A. Flannery (“applicant”) filed an application to
register the mark Hide-Away in stylized form as shown below, for
goods ultimately identified as “safety rail apparatus for beds,
namely, portable bed safety rail that includes an upright safety
guard portion that rests against the side of the bed and a
horizontal portion that rests between the mattress and box
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76665792
2
spring,” in International Class 201:

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 HIDEAWAY, in the stylized format
shown below, for “folding beds, day beds, and folding cots” in
International Class 20,2 that when used on or in connection with
applicant’s identified goods, it is likely to cause confusion or
mistake or to deceive:

1 Serial No. 76665792, filed September 11, 2006, pursuant to Section
1(a) of the Trademark Act, 15 U.S.C. §1051(a), alleging first use and
first use in commerce on December 31, 2005. The description of the
mark reads: “The color purple appears in the wording "Hide" and "Away"
and further appears in the dash "—") separating the words "Hide" and
"Away". The color white appears in the wording "Hide" and "Away" and
further appears in the dash ("-") separating the words "Hide" and
"Away". The color black represents outlining and is not a part of the
mark. The color black shows where the color white is a part of the
mark and where the color white is not part of the mark. The color
white is a part of the mark where the color white depicts depth to the
color purple. The color white is not a part of the mark where the
color white is background and does not depict depth to the color
purple.
2 Registration No. 0597382, issued October 26, 1954, claiming first use
and first use in commerce on April 1, 1927; Sections 8 and 15
affidavits accepted and acknowledged. Renewed three times.
Serial No. 76665792
3

Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs. 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
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”). We discuss each of the du Pont factors as to which
Serial No. 76665792
4
applicant or the examining attorney submitted argument or
evidence.

The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The cited
registration consists of the words HIDEAWAY in stylized form.
These are also the only words in applicant’s stylized mark.
Although applicant’s mark contains lower case lettering and a
hyphen between the two words, those differences are not
sufficient to distinguish the marks. Thymo Borine Laboratory v.
Winthrop Chemical Co., Inc., 155 F.2d 402, 69 USPQ 512, 514
(CCPA 1946) (the hyphen in applicant's mark THY-RIN has no
significance); Charette Corp. v. Bowater Communication Papers
Inc., 13 USPQ2d 2040, 2042 (TTAB 1989) (registrant's PRO-PRINT
and petitioner's mark PROPRINT are identical except for the
division of registrant's mark by a hyphen between the
syllables); Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ
485, 488 n.1 (TTAB 1978) (FAST-FINDER with a hyphen is
substantially identical to the mark FASTFINDER without a
hyphen). Thus, the word portions of the marks are effectively
identical.
Serial No. 76665792
5
The only difference between the marks is the stylization of
the words. However, the stylization of applicant’s mark, which
consists of the words “Hide-Away” in colored, stylized format,
as well as the mark in the cited registration, which consists of
the words “HIDEAWAY” in stylized form, do not serve to
distinguish the marks. Consumers will note and remember the
words themselves, because they will be used to call for or refer
to the goods. See CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82
(Fed. Cir. 1983). Accordingly, the stylized lettering does not
change the connotation of either applicant’s mark or the mark in
the cited registration, which both give the same commercial
impression.
Applicant argues that the cited registration is weak since
the words “hide away” are frequently used to describe the types
of beds identified therein. In support of this argument,
applicant submitted a number of third-party registrations for
similar goods. Each of the registrations submitted by applicant
are for marks that contain either “hide” or “away,” but none
contains both. Accordingly, we do not find applicant’s evidence
to be probative of the weakness of the registered mark which, we
note, has been on the Register since 1954 (and claims use since
1927).
In sum, the marks are substantially similar in terms of
appearance, sound, meaning and commercial impression. In view
Serial No. 76665792
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of the foregoing, we find that the first du Pont factor weighs
heavily in favor of finding a likelihood of confusion.
The Goods and Channels of Trade

In determinining the similarity or dissimilarity of the
goods, we note that the more similar the marks at issue, the
less similar the goods or services need to be for the Board to
find a likelihood of confusion. In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001); In re Concordia Int’l Forwarding Corp.,
222 USPQ 355, 356 (TTAB 1983). Goods or services need not be
identical or even competitive in order to support a finding of
likelihood of confusion. Rather, it is enough that the 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 parties’ goods or
services. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Applicant’s identified goods are a safety rail apparatus
for beds, while the cited registration identifies certain types
of beds; specifically, folding beds, folding cots, and day beds.
A “daybed” is defined as “a chaise lounge” or “a couch that can
Serial No. 76665792
7
be converted into a bed.”3 In short, the cited registration
covers various types of beds that are or may be portable or
stowed away or not be obviously used as a bed during the day, as
the mark suggests. Applicant argues that although his safety
rails go with “beds” they do not go with portable beds. Even if
we accept that argument, there is sufficient evidence that the
goods identified by applicant are related to those identified in
the cited registration.
To that end, the examining attorney has submitted copies of
use-based, third-party registrations covering goods of the type
in both the application and the cited registration. These
include both daybeds, sleeper sofas, or other adjustable beds,
as identified by the registrant, and bed rails, as identified by
applicant. Copies of use-based, third-party registrations may
serve to suggest that the goods are of a type which may emanate
from a single source. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993).4 The examining attorney has also
submitted evidence of websites showing bed rails and folding
beds offered for sale together, including by the same
manufacturer.

3 Merriam-Webster Online Dictionary 2009. The Board may take judicial
notice of dictionary definitions not included in the record. The
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., Inc.
213 USPQ 594, 596 (TTAB 1982) aff’d, 703 F.3d 1372, 217 USPQ 505 (Fed.
Cir. 1983); and In re Red Bull GmbH, 78 USPQ2d 1375 (TTAB 2006).
Serial No. 76665792
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In the absence of specific limitations in the registration,
we must presume that registrant’s goods will travel in all
normal and usual channels of trade and methods of distribution.
Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983). See In re Linkvest S.A., 24 USPQ2d 1716, 1716
(TTAB 1992) (because there are no limitations as to channels of
trade or classes of purchasers in either the application or the
cited registration, it is presumed that the services in the
registration and the application move in all channels of trade
normal for those services, and that the services are available
to all classes of purchasers for the listed services). Since
there are no limitations on the channels of trade in applicant’s
identification of goods either, we must make the same
presumption with regard to applicant’s goods. In other words,
there is nothing that prevents the registrant’s various types of
beds from being sold in the same channels of trade and to the
same classes of consumers that purchase applicant’s safety rails
for beds (and vice versa). Accordingly, we find that these du
Pont factors weigh in favor of finding a likelihood of consumer
confusion.

4 We note that some of the third-party registrations are owned by the
registrant, further indicating that consumers are likely to believe
the goods are sufficiently related to emanate from a single source.
Serial No. 76665792
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Balancing the Factors
In view of our findings that the marks are substantially
similar, the goods are similar, and the goods move in the same
channels of trade to the same classes of purchasers, we find
that applicant’s stylized mark Hide-Away for “safety rail
apparatus for beds, namely, portable bed safety rail that
includes an upright safety guard portion that rests against the
side of the bed and a horizontal portion that rests between the
mattress and box spring,” is likely to cause confusion with the
registered mark HIDEDAWAY in stylized form for “folding beds,
day beds, and folding cots.”
Decision: The refusal to register is affirmed.