Tumble Town Gymnastics, Inc.

Trademark Trial and Appeal Board

Jan 24, 2017

No. 86091523 (T.T.A.B. Jan. 24, 2017)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: January 24, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re Tumble Town Gymnastics, Inc.
________

Serial No. 86091523
_______

Garland A. Brown, Jr. of Weiss Brown
for Tumble Town Gymnastics, Inc.

Tracy Whittaker-Brown, Trademark Examining Attorney, Law Office 111,
Michael Kazazian, Managing Attorney.
_______

Before Quinn, Bergsman, and Larkin,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
Tumble Town Gymnastics, Inc. (“Applicant”) filed an application to register on
the Principal Register the mark TUMBLE TOWN GYMNASTICS (in standard
characters) (TUMBLE and GYMNASTICS disclaimed) for “non-competitive
gymnastic instruction; educational services, namely, conducting programs for
children in the field of gymnastics and physical fitness” in International Class 41.1

1 Application Serial No. 86091523, filed October 15, 2013 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging first use anywhere and in commerce on April 1, 1995.
Application Serial No. 86091523

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The Trademark Examining Attorney refused registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used in connection with Applicant’s services, so resembles the previously registered
mark shown below

(TUMBLE and KIDS’ FITNESS disclaimed) for “children’s entertainment and
amusement centers, namely, interactive play areas” in International Class 412 as to
be likely to cause confusion.

2 Registration No. 4544347, issued June 3, 2014. The following statements appear in the
registration: “The mark consists of white cloud with light blue shading at the top a clock
tower with a light blue top and bottom with a pink band at the top and pink door and yellow
clock face, a red school house with a yellow bell and light green doors, a purple church with
pinks doors, a light blue house with light green curtains with a yellow window and doors, a
red fire hydrant with a yellow circle, a purple house with a red chimney and a window design
in the colors light blue, light green, brown and yellow with a red door, a light green tree, a
red house with yellow windows, a pink house with a light green roof with light blue shapes
and a yellow chimney, windows and door. The upside down boy on the left has a brown face
with black hair with red clothes and the girl on the right has a yellow face with black hair
and pink clothes. The grass is light green and the entire scenery is outlined in black. The
wording ‘TUMBLE TOWN’ appears in the rectangle below the scenery and appears in yellow
with light green shading and is outlined in black and red. The wording ‘THE TOP SPOT FOR
KIDS’ FITNESS & FUN’ is in yellow and is outlined in red and appears in a purple rectangle
below. The color(s) white, light blue, purple, black, pink, yellow, red, light green and brown
are claimed as a feature of the mark.”
Application Serial No. 86091523

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When the refusal was made final, Applicant requested reconsideration. When the
request for reconsideration was denied, Applicant appealed. Applicant and the
Examining Attorney filed briefs.
Applicant argues that the marks are different in overall commercial impression.
Applicant also argues that the services are different, asserting that its services are
educational and instructional for gymnastics, while Registrant’s services are focused
on play for young children. Further, Applicant contends that the respective services
are targeted to different customers through different trade channels, and that
purchasers of the respective services are sophisticated and discriminating. Applicant
submitted screenshots from Registrant’s website.
The Examining Attorney maintains that the dominant portion of each mark,
TUMBLE TOWN, is identical, and that the marks, when considered in their
entireties, are similar. She also contends that the services are related, and that any
distinctions argued by Applicant are not supported by any evidence of record. In
support of the refusal, the Examining Attorney submitted third-party registrations
and websites to illustrate that the services are related; and third-party websites to
show that others in the trade use words like “fitness” and “fun” in connection with
gymnastics.
Our determination under Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the likelihood of confusion. In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any
likelihood of confusion analysis, two key considerations are the similarities between
Application Serial No. 86091523

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the marks and the similarities between the services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
With respect to the first du Pont factor dealing with the similarity of the marks,
we must compare Applicant’s mark with the registered mark in their entireties as to
appearance, sound, connotation and commercial impression. Palm Bay Imps., 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. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012) (citation omitted). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. See Inter
IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014). As more fully
discussed below, because the average purchasers are parents looking for physical
activities for their children, we find that the average purchasers are ordinary
consumers who may exercise an enhanced degree of consumer care because they are
seeking services for their children.3
Although marks must be considered in their entireties, it is settled that one
feature of a mark may be more significant than another, and it is not improper to give
more weight to this dominant feature in determining the commercial impression

3 As discussed below, neither Applicant, nor the Examining Attorney, submitted any evidence
regarding the degree of consumer care.
Application Serial No. 86091523

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created by the mark. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985) (“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 consideration of the marks in their entireties. Indeed, this type of
analysis appears to be unavoidable.”).
When considering Applicant’s mark, the words TUMBLE TOWN are dominant.
Purchasers in general are inclined to focus on the first word or portion in a trademark;
in Applicant’s mark, TUMBLE TOWN is the first portion. Presto Prods., Inc. v. Nice-
Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a
mark which is likely to be impressed upon the mind of a purchaser and remembered”).
See Palm Bay Imps., Inc., 73 USPQ2d at 1692. Not only are these words the first
portion in the mark, but the word that follows, GYMNASTICS, is generic and
properly disclaimed. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1533-34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the
dominant portion of the mark THE DELTA CAFE).
The same words, TUMBLE TOWN, are dominant in Registrant’s mark as well.
Just as in Applicant’s mark, the words TUMBLE TOWN are the first words in the
mark; moreover, the words TUMBLE TOWN are in much larger font size than the
other wording in the mark. Further, in general, when wording and a design comprise
the mark, then the wording is normally accorded greater weight because the wording
is likely to make an impression upon purchasers, would be remembered by them, and
would be used by them to request the services. CBS, Inc. v. Morrow, 708 F.2d 1579,
Application Serial No. 86091523

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218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design and
words, the verbal portion of the mark is the one most likely to indicate the origin of
the goods to which it is affixed”); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107
USPQ2d 1424, 1430-31 (TTAB 2013); In re Appetito Provisions Co., 3 USPQ2d 1553,
1554 (TTAB 1987). See also Giant Food, Inc. v. Nation’s Food Serv., Inc., 710 F.2d
1565, 218 USPQ 390 (Fed. Cir. 1983). Given the prominent display of TUMBLE
TOWN in large font, this wording dominates the design features of the mark.
Although we have pointed to the identical dominant portions of the marks, we
acknowledge the fundamental rule in this situation that the marks must be
considered in their entireties. See Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134
(Fed. Cir. 2015). Nevertheless, it is likely that consumers, when encountering
Registrant’s mark, will focus on the dominant literal portion, namely the wording
TUMBLE TOWN, just as they would focus on the dominant TUMBLE TOWN portion
in Applicant’s mark.
Given the commonality of the dominant wording TUMBLE TOWN in the marks,
even when we factor in the disclaimers of TUMBLE, we find that the marks are
similar in sound, appearance and meaning. With respect to meaning, the Examining
Attorney provided examples showing third parties equating fitness and fun with
gymnastics. These entities use “FITNESS and/or FUN in their names … or to
describe their services. The evidence shows that consumers associate FITNESS and
FUN with GYMNASTICS.” (6 TTABVUE 8). These examples include “Fun-N-Fitness
Application Serial No. 86091523

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Gymnastics”; “Summer Gymnastics Fitness Camp”; “Gymnastics, Dance, Fitness and
Fun”; “Fun & Gymnastics”; and “Love Gymnastics is a fantastic place for Fitness and
Fun.” (Office action, 5/27/15). In view thereof, coupled with the common knowledge
that tumbling can be an aspect of gymnastics, physical fitness and simple play
activities, the marks convey similar meanings.4
When the marks are compared in their entireties, including the additional
wording in each of the marks and the design features of Registrant’s mark, we find
the marks convey similar overall commercial impressions so that consumers, upon
encountering the marks, are likely to be confused. This du Pont factor weighs in favor
of a finding of a likelihood of confusion.
As to the second du Pont factor regarding the similarity of the services, it is well
settled that the services of Applicant and Registrant need not be identical or
competitive, or even be offered through the same channels of trade, to support a
holding of likelihood of confusion. It is sufficient that the respective services of
Applicant and Registrant are related in some manner, and/or that the conditions and
activities surrounding the marketing of the services are such that they would or could
be encountered by the same persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief that they originate from the
same source. See Hilson Research, Inc. v. Society for Human Resource Management,
27 USPQ2d 1423 (TTAB 1993). The issue here, of course, is not whether purchasers

4 Although both marks suggest similar meanings, the record is devoid of evidence of any
third-party uses or registrations of similar marks for services of the types involved in this
appeal.
Application Serial No. 86091523

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would confuse the services, but rather whether there is a likelihood of confusion as to
the source of these services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB
2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In comparing the services, we must look to the services as identified in the
application and the cited registration. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014), quoting
Octocom Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Applicant’s recitation of services reads “non-competitive gymnastic instruction;
educational services, namely, conducting programs for children in the field of
gymnastics and physical fitness”; Registrant’s services are identified as “children’s
entertainment and amusement centers, namely, interactive play areas.”
The Examining Attorney’s evidence bearing on the relatedness of the services
includes copies of several use-based third-party registrations which individually
cover, under the same mark, both types of services involved herein. (Office action,
3/24/14). “Third-party registrations which cover a number of differing goods and/or
services, and which are based on use in commerce, although not evidence that the
marks shown therein are in use on a commercial scale or that the public is familiar
with them, may nevertheless have some probative value to the extent that they may
serve to suggest that such goods or services are of a type which may emanate from a
single source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re Albert Trostel & Sons Co.,
Application Serial No. 86091523

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29 USPQ2d 1783, 1785-86 (TTAB 1993). A representative sample of the registrations
includes the following:
J.W. TUMBLES
Children’s entertainment and amusement centers, namely,
interactive play areas; educational services, namely,
providing physical fitness instruction; provision of play
facilities for children
(Reg. No. 3688551)

BRIGHT CHILD
Entertainment and education services relating to
children’s learning activities, namely, in-person physical
education, learning and activity center services for pre-
school and primary age children in the form of indoor
activity centers with different play areas and play
equipment … providing recreational areas in the nature of
children’s play areas … providing education and play
classes, namely, exercise, fitness and gymnastic
instruction classes … providing fitness, exercise, dance,
recreational and sports facilities for children … physical
fitness consultation and instruction for children
(Reg. No. 3834564)

E and design
Children’s entertainment and amusement centers, namely,
interactive play areas … health club services, namely,
providing instruction and equipment in the field of physical
exercise … personal coaching services in the field of
gymnastics, training and fitness … physical fitness
instruction … providing gymnastic facilities … providing
recreational areas in the nature of children’s play areas
(Reg. No. 3201900)

WIN KIDS
Children’s entertainment and amusement centers, namely,
interactive play areas … physical fitness instruction …
providing gymnastic facilities … providing recreational
areas in the nature of children’s play areas
(Reg. No. 3341847)

Application Serial No. 86091523

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YOLO FIT
Educational and entertainment services for children,
namely, providing interactive play areas … physical fitness
instruction
(Reg. No. 4349949)

AIRHEADS TRAMPOLINE ARENA and design
Entertainment in the nature of providing entertainment
and amusement centers, namely, interactive play areas …
providing fitness instruction, classes and facilities
featuring trampoline activities
(Reg. No. 3928611)

The Examining Attorney also introduced third-party websites showing that a
single entity may offer under the same mark both play areas and gymnastics/fitness
activities. (Office action, 11/7/14). The examples include the following:
Seattle Gymnastics Academy’s Indoor Playground
At these open sessions, children ages 5 and younger have
access to most of the academy’s gymnastics equipment for
climbing, swinging, jumping and hula-hooping; it’s a great
way to get their bodies moving. Kids love the enormous
foam pit, trampolines and “Tumbl Trak” – a long, springy
pathway that leads to a padded end.
(www.seattleschild.com)

Intensity Gymnastics & Parkour
Gymnastics & Parkour + Fun & Games
(www.intensitygymnastics.com)

Mid-Columbia Gymnastics & Cheer Tiny Tots
Join us for Indoor Playground, a playgroup for little ones
and a parent. Children run, jump, bounce, play with toys
and have a ball! We have loads of push & pull toys, hoops,
balls, and lots of fun things for you to do with your child in
a fun & active environment.
Gymnastics Gym
18,000 sq. ft. of gymnastics equipment
Push & pull toys
Huge inflatable Castle Bounce House
Trampoline for the little ones

Application Serial No. 86091523

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Fun & fit activity songs at the end
(www.mcga.org)

The evidence is sufficient to establish that Applicant’s and Registrant’s services
are related, and that, if they were rendered under similar marks, consumers would
be likely to assume that they originate from a single source.5
As to trade channels, neither the recitation of services in the application nor the
cited registration includes any limitation, so it is presumed that the services move in
all normal channels of trade, including gymnasiums, health clubs, and indoor play
and amusement areas. Further, as shown by the third-party websites submitted by
the Examining Attorney, these services are directed to the same classes of
purchasers, namely parents looking for physical activities for their children. 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); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
The similarity in the services, trade channels and classes of purchasers are
factors that weigh in favor of a finding of likelihood of confusion.

5 Applicant, in a feeble attempt to distinguish the services, states that it renders educational
and instructional services for gymnastics, while Registrant’s services are focused on play for
young children. In this connection, Applicant submitted screenshots of Registrant’s website
in an apparent attempt to restrict the scope of Registrant’s services. Suffice it to say that an
applicant may not restrict the scope of the services covered in the cited registration by
argument or extrinsic evidence. In re Midwest Gaming & Entertainment LLC, 106 USPQ2d
1163, 1165 (TTAB 2013); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re
Bercut-Vandervoort & Co., 229 USPQ2d 763, 764 (TTAB 1986). In any event, as shown by
the other evidence of record, there is an overlap between gymnastics, physical fitness and
play activities.
Application Serial No. 86091523

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As to conditions of sale, Applicant claims that customers for Applicant’s and
Registrant’s services are sophisticated buyers who exercise discrimination when
purchasing the types of services involved herein. Applicant did not introduce any
evidence regarding the degree of care exercised by customers in selecting gymnastic,
physical fitness and play area services for children and, in any event, the recitations
in the application and cited registration are unrestricted as to price point or type of
customer. Even assuming that Applicant’s and Registrant’s services may involve a
somewhat more thoughtful purchase because today’s parents are more careful when
it comes to choosing their children’s activities, it is settled that even careful
purchasers are not immune from source confusion, especially in cases such as the
instant one involving similar marks and related services. See In re Research Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical
Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA
1970) (“Human memories even of discriminating purchasers...are not infallible.”). See
also In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993); In re
Decombe, 9 USPQ2d 1812 (TTAB 1988). We find that the similarity between the
marks and the relatedness of the services rendered thereunder outweigh any
purported sophisticated purchasing decision. See HRL Associates, Inc. v. Weiss
Associates, Inc., 12 USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL
Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods
and marks outweigh sophisticated purchasers, careful purchasing decision, and
Application Serial No. 86091523

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expensive goods). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 110
USPQ2d at 1162-63. This du Pont factor is neutral.
We conclude that consumers familiar with Registrant’s “children’s entertainment
and amusement centers, namely, interactive play areas” rendered under the mark
TUMBLE TOWN THE TOP SPOT FOR KIDS’ FITNESS & FUN and design would
be likely to believe, upon encountering Applicant’s “non-competitive gymnastic
instruction; educational services, namely, conducting programs for children in the
field of gymnastics and physical fitness” rendered under the mark TUMBLE TOWN
GYMNASTICS, that the services originated with or are somehow associated with or
sponsored by the same entity.
Decision: The refusal to register is affirmed.