Mark A. Flannery

Trademark Trial and Appeal Board

May 27, 2009

No. 76665792re (T.T.A.B. May. 27, 2009)

Mailed:
May 27, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Mark A. Flannery
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Serial No. 76665792
On Request for Reconsideration
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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:

On April 14, 2009, the Board issued a decision affirming
the Office’s refusal to register applicant’s mark HIDE-AWAY in
stylized form as shown below, on the ground of likelihood of
confusion under Section 2(d) of the Trademark Act of 1946, 15
U.S.C. §1052(d):

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76665792
2
Applicant has timely filed a request for reconsideration of
the Board’s decision. In his request, applicant argues that the
Board’s decision is in error with regard to (1) the Board’s
identification and discussion of the goods at issue in the
application and the cited registration; (2) the Board’s
identification and discussion of the goods at issue in the
third-party registrations; and (3) the Board’s identification
and discussion of the goods at issue in the third-party
websites.
We have considered each of the three alleged errors raised
by applicant in his request for reconsideration. In each
instance, we find that the subject of the alleged error was
fully argued by applicant in his brief and correspondingly
addressed by the Board in the April 14 decision. With regard to
the first alleged error, the Board quoted the respective goods
of applicant and registrant exactly as set forth in their
respective identifications. To the extent the decision
characterized the goods (such as referring on p.4 to “daybeds,
sleeper sofas, or other adjustable beds, as identified by the
registrant”), we do not find such characterization to be
mistaken. Accordingly, we find no error on this ground.
With regard to the second alleged error, the Board relied
on several use-based, third-party registrations of record in
reaching the conclusion that consumers are likely to believe
that the respective goods identified by applicant and registrant
are of the type that may emanate from a single source. For
example, Registration No. 2017742 includes both “bed rails” and
Serial No. 76665792
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“daybeds,” as does Registration No. 2017743. Registrations No.
76096732 and 76097369 include distributorship services of both
“bed frames and rails” and “beds” without limitation as to type.
Despite applicant’s argument about nomenclature on the third-
party registrations and websites, using a slightly different
characterization (such as “bed rail” instead of “bed safety
rail”) does not change our analysis regarding likelihood of
confusion.
With regard to the third alleged error, the Board relied on
several websites of record in reaching the conclusion that
consumers are likely to believe that the respective goods
identified by applicant and registrant are of the type that may
emanate from a single source. For example, STACKS AND STACKS™,
the Homewares place (www.stacksandstacks.com), American Bedding
Manufacturer’s Inc. (www.campmattress.com), and 1st Senior Care
(www.1stseniorcare.com), each offer for sale to the general
public both bed safety rails, as identified by applicant, and
folding beds or cots, as identified in the cited registration.
Because we find no error in the Board’s findings or
discussion, respondents’ request for reconsideration is denied.