Arizona Elk Society

Trademark Trial and Appeal Board

Sep 30, 2019

87782453 (T.T.A.B. Sep. 30, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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Arizona Elk Society
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Serial No. 87782453
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Leia M. Dingott of Adam R Stephenson LTD
for Arizona Elk Society
Benjamin Rosen, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Wellington, Ritchie, and Dunn,
Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:
Arizona Elk Society (Applicant) seeks registration on the Principal Register of the
mark HEALING THROUGH HUNTING (in standard characters) for services
“conducting guided outdoor expeditions” in International Class 41. Application Serial
No. 87782453 was filed on February 2, 2018 under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), alleging a date of first use anywhere and in commerce of January
12, 2018.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
Applicant’s mark so resembles the registered mark HEALING ON THE HUNT
(standard characters) for services “organizing hunting, fishing, and outdoor trips for
wounded combat veterans to help heal” in International Class 39 as to be likely to
cause confusion, mistake or to deceive.1 Registration No. 4835852 issued October 20,
2015.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on 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, 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 (CCPA 1976). These factors, and the other relevant du Pont factors now
before us, are discussed below. To the extent that any other du Pont factors for which

1 The Examining Attorney also refused registration on the ground that the mark is merely
descriptive of the services, but withdrew the refusal in his appeal brief.
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no argument or evidence was presented may nonetheless be applicable, we treat them
as neutral.
A. Similarity or Dissimilarity of the Services and Channels of
Trade
We turn first to the du Pont factors regarding the similarity or dissimilarity of the
respective services and channels of trade, including prospective purchasers.
Applicant’s services are “conducting guided outdoor expeditions” and Registrant’s
services are “organizing hunting, fishing, and outdoor trips for wounded combat
veterans to help heal.” Most significantly, by the plain wording of their services, both
parties offer the same “outdoor expeditions” or “outdoor trips.”2 See Hewlett-Packard
Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)
(“The ‘data and information processing’ description in the ITU application is very
similar to HP's registrations covering consulting services, whether for data
processing or for data processing products.”).
While Applicant’s services feature guided outdoor trips, Registrant’s services are
unrestricted, and so are presumed to include both guided and unguided outdoor trips.
See Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107
USPQ2d 1167, 1173 (Fed. Cir. 2013) (“If the cited registration describes goods or

2 expedition noun
1a : a journey or excursion undertaken for a specific purpose
trip noun
1 a yoyage, journey
Merriam-Webster, https://www.merriam-webster.com/dictionary/. The Board may take
judicial notice of widely available online dictionary definitions. In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (“Definitions available from an online
resource that are readily available and as such capable of being verified are useful to
determine consumer perception.”).
Serial No. 87782453
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services broadly, and there is no limitation as to their nature, type, channels of trade,
or class of purchasers, it is presumed that the registration encompasses all goods or
services of the type described, that they move in all normal channels of trade, and
that they are available to all classes of purchasers.”). While Registrant’s services are
directed to “wounded combat veterans”, Applicant’s services are unrestricted, and
thus may be offered to all potential consumers, including wounded combat veterans.
Likewise, while Registrant’s services “help heal”, Applicant’s services are
unrestricted, and thus also may help heal. Hewlett-Packard Co. v. Packard Press Inc.,
62 USPQ2d at 1004 (finding the subject application and cited registrations are
themselves “important evidence” on the relationship between the services). In sum,
we find Applicant’s services, which may include conducting guided outdoor trips to
help heal wounded combat veterans, and Registrant’s services, which may include
organizing guided outdoor trips to help heal wounded combat veterans, to be at least
in part identical.
In addition to the evidence provided by the similar wording of the parties’
recitations of their services, the Examining Attorney submitted evidence that
prospective consumers may regard the different services of organizing and conducting
such outdoor trips as emanating from a single source. The organizations High
Adventure Ranch, Sportsman’s Foundation for Military Families, Hunting With
Soldiers, and North American Hunter for Heroes all have webpages which advertise
services organizing and conducting hunts, including hunts for veterans and the
disabled. May 17, 2018 Office Action TSDR 9-13.
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While we base our comparison of the services on the recitations provided by
Applicant and Registrant in their respective application and registration, as
corroboration for our finding that the services are closely related or overlap, we note
that Applicant’s specimen of use makes clear that it both organizes (“mission is to
provide Arizona physically disabled veterans the chance to get outdoors and
participate in activities”) and conducts (“delivers free all-inclusive, comfortable 3- to
4-day guided hunts throughout Arizona’s awesome outdoors”) its guided outdoor
trips. February 2, 2018 Specimen, TSDR 3. We note that Applicant did not contest
during examination, and does not contest in its brief, that the services are closely
related.
For the same reasons, we also find that the parties’ respective services are likely
to travel through some of the same channels of trade to some of the same classes of
purchasers.
We find that the second and third du Pont factors weigh heavily in favor of finding
a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks
We must compare the marks HEALING THROUGH HUNTING and HEALING
ON THE HUNT in their entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or dissimilarity between them.
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1690 (Fed. Cir. 2005). The test, under the first du Pont factor,
is not whether the marks can be distinguished when subjected to a side-by-side
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comparison, but rather whether the marks are sufficiently similar in terms of their
overall commercial impression that confusion as to the source of the services offered
under the respective marks is likely to result. Coach Servs. Inc. v. Triumph Learning,
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading
Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
The proper focus is on the recollection of the average purchaser, who retains a general
rather than specific impression of trademarks. In re Bay State Brewing Co., 117
USPQ2d 1958, 1960 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed. Cir.1992)).
Given our finding that the services are in-part identical or overlap, we further keep
in mind that, in such situations, the degree of similarity between the marks necessary
to support a determination that confusion is likely declines. See Bridgestone Americas
Tire Operations, LLC v. Fed. Corp., 673 F.3d 1330, 1337, 102 USPQ2d 1061, 1064
(Fed. Cir. 2012); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010).
As shown by the standard character drawings, both parties seek registration of
the respective word marks without stylization or design. This ability to employ any
font, size, style, or color when using the mark could result in use of displays which
increase or emphasize the similarities between the marks. See In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Davia, 110 USPQ2d 1810,
1814 (TTAB 2014).
Both Applicant’s mark HEALING THROUGH HUNTING and Registrant’s mark
HEALING ON THE HUNT possess the identical and predominant term, HEALING.
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The identity of this initial term in the marks, along with their shared use of
HUNT[ING], not only creates strong visual and aural similarities, but also creates
the situation where both marks in their entireties evoke the same therapeutic result
to be obtained from their outdoor expedition or trip services. The dictionary definition
submitted by the Examining Attorney defines the term HEAL as “to make well again;
to restore to health.” May 17, 2018 Office Action TSDR 14. The latter respective
wording in the marks, THROUGH HUNTING and ON THE HUNT, merely describe
or strongly suggest that the healing will be brought upon via participation in the
parties’ services offering guided outdoor trips to help heal wounded combat veterans.
Thus, we disagree with Applicant’s argument that its mark suggests that “the healing
will take place through hunting activities” while Registrant’s mark suggests that
healing “will take place ON-THE-HUNT itself. Brief, 4 TTABVUE 10. Consumers are
unlike to perceive such a distinction, but rather grasp the overall same suggestive
meaning of the marks -- that HEALING takes place as a result of hunting activity.
In addition to its contribution to the overall commercial impression of each mark
through its meaning, we note that the term HEALING is placed first in both marks,
generally considered to be the term which will be remembered, and thus the most
prominent part of the mark. See Palm Bay Imps. 73 USPQ2d at 1692 (“Veuve” is the
most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark); L'Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438-1439 (TTAB
2012) (“In applicant's mark, the term L'OREAL is the first component, and
purchasers in general are inclined to focus on the first word or portion in a
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trademark.”). The identical beginning, and a brief explanatory term that follows with
the similar terms HUNTING and HUNT, results in two marks which create highly
similar commercial impressions.
In conjunction with the withdrawn descriptiveness refusal the Examining
Attorney submitted dictionary definitions and evidence of third party use of the terms
HEALING and HUNTING in two Internet articles and two program descriptions
featuring veterans described as healing from post combat conditions through the act
of hunting and being outdoors. May 17, 2018 Office Action TSDR 17-19, 21. These few
articles are insufficient to demonstrate that potential purchasers of either party’s
services perceive the term HEALING as descriptive of guided outdoor trips to help
heal wounded combat veterans. To the extent that Applicant contends that the
combination of the terms HEALING with the more descriptive terms HUNT or
HUNTING is so conceptually weak that any alteration serves to distinguish the
marks, the evidence is too sparse to support that argument. Compare In re Bed &
Breakfast Registry, 791 F.2d 157, 159 229 USPQ 818, 819 (Fed. Cir. 1986); U.S. Shoe
Corp. v. Chapman, 229 USPQ 74 (TTAB 1985).
We find that, despite the differences between HUNTING and HUNT, and one
mark having three words and one mark having four words, with the corresponding
differences in sound and appearance, the marks HEALING THROUGH HUNTING
and Registrant’s mark HEALING ON THE HUNT, viewed in their entireties, create
highly similar overall commercial impressions. See Crocker Nat’l Bank v. Canadian
Imperial Bank of Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom.
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Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d
1490, USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and
COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66
(TTAB 1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983) (finding MILTRON and
MILLTRONICS confusingly similar).
The du Pont factor regarding the similarity or dissimilarity of the marks weighs
in favor of finding a likelihood of confusion.
II. Decision
In conclusion, we have considered all of the arguments and evidence of record, and
all relevant du Pont factors. When we balance the du Pont factors, we conclude that
confusion is likely to occur between Applicant’s mark and Registrant’s mark.
The refusal to register Applicant’s mark HEALING THROUGH HUNTING is
affirmed.