Amazing Products, Inc.

Trademark Trial and Appeal Board

Sep 2, 2009

No. 77320814 (T.T.A.B. Sep. 2, 2009)

Mailed: September 2, 2009
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Amazing Products, Inc.
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Serial No. 77320814
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Stephen J. Miller of The Miller Law Offices, PLC for
Amazing Products, Inc.

Elisa Garber Kon, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
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Before Hairston, Zervas and Kuhlke, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Amazing Products, Inc. seeks registration on the
Principal Register of the mark AMAZING PET CALLER in
standard character form for “electronic wireless
communication devices comprised of an electronic audio
voice transmitter attached to a human in any manner and an
electronic audio voice receiver attached to a pet in any
manner that allows said human to communicate remotely with
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 77320814
2
a pet animal” in International Class 9.”1 Applicant has
disclaimed the word PET apart from the mark as shown.
The trademark examining attorney has refused
registration on the ground that applicant’s mark, as
applied to the identified goods, so resembles the mark CAT
CALLER, previously registered in standard character form
for “electronic animal location units comprising of
transmitters and receiver collars,”2 as to be likely to
cause confusion. Trademark Act Section 2(d), 15 U.S.C.
§1052(d).
When the refusal was made final, applicant filed this
appeal. Applicant and the examining attorney have filed
briefs. We reverse the refusal to register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant
to the factors bearing on the issue of whether there is a
likelihood of confusion. In re E. I. du Pont de Nemours
and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). However,
as indicated in Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976), in any
likelihood of confusion analysis, two key, although not

1 Application Serial No. 77320814, filed November 3, 2007. The
application is based on an allegation of an intent to use under
Section 1(b), 15 U.S.C. §1051(b) of the Trademark Act.
2 Registration No. 3366307, issued January 8, 2008.
Ser No. 77320814
3
exclusive, considerations are the similarity of the goods
and the similarity of the marks.
Turning first to a consideration of the respective
goods, the examining attorney argues that they are similar
in that they perform essentially the same function, that
is, locating pets; and that applicant’s and registrant’s
goods would be sold in the same channels of trade to the
same class of purchasers.
Applicant contends, on the other hand, that the
respective goods are functionally different in that
applicant’s devices allow a human to communicate remotely
with a pet animal, whereas registrant’s devices simply
allow a human to locate a pet animal. Furthermore,
applicant maintains that the involved goods are purchased
by knowledgeable consumers.
With respect to the goods, it is well settled that
goods need not be identical or even competitive in nature
to support a finding of likelihood of confusion. Instead,
it is sufficient that the goods are related in some manner
and/or that the circumstances surrounding their marketing
are such that they would be likely to be encountered by the
same persons under situations that would give rise, because
of the marks used thereon, to the mistaken belief that they
originate from or are in some way associated with the same
Ser No. 77320814
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producer or provider. See In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Moreover, it is well established that the issue
of likelihood of confusion must be determined on the
basis of the goods as they are set forth in the
involved application and the cited registration, and
not in light of what such goods are or asserted to
actually be. See Octocom Systems Inc. v. Houston
Computer Services, Inc., 918 F.2d 937, 16 USPQ2d 1783
(Fed. Cir. 1990); and Canadian Imperial Bank of
Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813 (Fed. Cir. 1987).
Applicant’s goods are identified as “electronic
wireless communication devices comprised of an electronic
audio voice transmitter attached to a human in any manner
and an electronic audio voice receiver attached to a pet in
any manner that allows said human to communicate remotely
with a pet animal.” Registrant’s goods are identified as
“electronic animal location units comprising of
transmitters and receiver collars.” As identified, the
goods are clearly closely related, if not overlapping.
Notwithstanding applicant’s argument, both its goods and
registrant’s goods are used to electronically locate lost
pets.
Ser No. 77320814
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Further, in view of the closely related nature of
applicant’s and registrant’s goods, and given the absence
of any restrictions or limitations in either applicant’s or
registrant’s identification of goods, we must presume that
the respective goods are marketed in all normal trade
channels for such goods and to all normal classes of
purchasers for such goods. In re Elbaum, 211 USPQ 639
(TTAB 1981). Thus, we must assume that applicant’s
electronic communication devices for communicating remotely
with a pet animal and registrant’s electronic animal
location units would be sold in some of the same channels
of trade, e.g., pet supply stores, to some of the same
purchasers, e.g., members of the general public who own
pets. Although applicant contends that purchasers of the
involved goods are sophisticated consumers, applicant
offered no evidence to support this contention. Thus, we
conclude that purchasers of applicant’s and registrant’s
goods would exercise nothing more than ordinary care in
making their purchasing decisions.
Turning then to a consideration of the respective
marks, the examining attorney argues that CALLER is the
dominant portion of both marks; and that the presence of
AMAZING PET in applicant’s mark and CAT in registrant’s
mark is insufficient to distinguish the marks.
Ser No. 77320814
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Furthermore, the examining attorney argues that applicant’s
evidence fails to demonstrate that registrant’s mark is
weak and entitled to only a narrow scope of protection.
Applicant contends, on the other hand, that when the
respective marks are viewed in their entireties they are
readily distinguishable; and that registrant’s mark is weak
and entitled to only a narrow scope of protection.
Applicant asserts that the registered mark is weak because
the dates of first use in the registration show that the
mark has been in use for a short period of time; and CALLER
is a descriptive term as applied to the involved goods.
Our consideration of the marks is based on whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance,
sound, 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 overall
commercial impressions that confusion as to the source of
the goods 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). Furthermore,
Ser No. 77320814
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although the marks at issue must be considered in their
entireties, it is well 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 created by the mark.
See In re National Data Corp., 753 F.2d 1056, 24 USPQ 749
(Fed. Cir. 1985).
Obviously, applicant’s mark and registrant’s mark both
include the word CALLER used as a noun, as the last term in
each mark. In this regard, we take judicial notice of the
definition of the noun “caller” in the Random House
Dictionary (2009) as “a person or thing that calls.” In
view of this definition, it is clear that the word CALLER
is at least highly suggestive of both applicant’s and
registrant’s goods in that they are used to “call” a lost
pet.
In addition, applicant has submitted a printout from
the website http://www.gamecalls.net which features
products described as “Electronic and Digital Wildlife Game
Callers.” These products are used by hunters,
photographers, and naturalists to “call” wild animals
closer. Among the products offered are the “FOXPRO FX3”
which is described as a “high quality caller”; the
“Preymaster Digital Caller”; the “Western Rivers Predation
Ser No. 77320814
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Mini-Electronic Callers”; and the “Johnny Stewart Prey
Master Digital Deer Caller.” These products are similar in
function to those of applicant and registrant in that they
are used to “call” animals. Thus, the use of “Caller” in
connection with these products confirms that such term is
highly suggestive of both applicant’s and registrant’s
goods.
Insofar as the word PET in applicant’s mark is
concerned, it is obviously descriptive for a feature of
applicant’s goods, and the word AMAZING is laudatory in
character and, thus, highly suggestive of the quality of
the goods. With respect to the word CAT in registrant’s
mark, it is obviously descriptive for a feature of
registrant’s goods.
The marks AMAZING PET CALLER and CAT CALLER, as
applied to the respective goods, therefore, must be
regarded as weak marks which merit only a correspondingly
narrow scope of protection.3 As stated in Sure-Fit Products

3 In reaching this finding, we have not relied on applicant’s
argument that registrant’s mark is weak since the dates of first
use in the registration show that the mark has been in use for a
short period of time. The fact that a cited mark has been in use
for only a short period of time does not necessarily demonstrate
that the mark is weak.
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Co. v. Saltzson Drapery Co., 254 F.2d 158, 117 USPQ 295,
297 (CCPA 1958):
It seems both logical and obvious to us that
where a party chooses a trademark which is
inherently weak, he will not enjoy the wide
latitude of protection afforded the owners of
strong trademarks. Where a party uses a weak
mark, his competitors may come closer to his mark
than would be the case with a strong mark without
violating his rights. The essence of all we have
said is that in the former case there is not the
possibility of confusion that exists in the
latter case.

Furthermore, we find that the presence of the words
AMAZING PET in applicant’s mark creates a mark which is
distinguishable in sound, appearance, connotation and
commercial impression from registrant’s mark CAT CALLER.
Accordingly, and in view of the highly suggestive
nature of the word CALLER as applied to both applicant’s
and registrant’s goods, we conclude that applicant’s mark
AMAZING PET CALLER projects a different commercial
impression from that created by registrant’s mark CAT
CALLER. Notwithstanding that the goods are closely related
and the trade channels and purchasers overlap, we believe
that confusion as to the origin or affiliation of the
respective goods of applicant and registrant is unlikely
due to the differences in, and the weakness of, the marks
at issue.
Ser No. 77320814
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Decision: The refusal to register under Section 2(d)
is reversed.