Art House Greetings, Inc.

Trademark Trial and Appeal Board

Apr 13, 2010

No. 77093040 (T.T.A.B. Apr. 13, 2010)

Mailed: 4/13/10

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Art House Greetings, Inc.
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Serial No. 77093040
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Christopher P. Carroll for Art House Greetings, Inc.

Aisha Clarke, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
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Before Quinn, Hairston and Zervas, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Art House Greetings, Inc. filed, on January 28, 2007,
an intent-to-use application to register the mark ART HOUSE
GREETINGS (“GREETINGS” disclaimed) in standard character
form for “greeting cards.”
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 applied
to applicant’s goods, so resembles the previously
registered mark ARTEHOUSE in standard character form for
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Ser. No. 77093040
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“fine art prints, posters, calendars and greeting cards”1 as
to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Applicant argues that the marks are “clearly
distinguishable,” stating that the combination of the
Italian word “arte” and the English word “house” comprising
registrant’s mark ARTEHOUSE creates a different commercial
impression than that created by the combination “ART HOUSE”
in applicant’s mark. Applicant also points to differences
between the marks in appearance and sound; with respect to
the latter, applicant contends that consumers will
pronounce the letter “E” in “ARTE” in registrant’s mark.
Applicant does not contest that the goods are similar or,
in part, identical; however, applicant does assert that its
customers are more sophisticated than the average purchaser
of greeting cards. Lastly, applicant relies on the absence
of any known instances of actual confusion and, in this
connection, introduced a declaration of one of its
officers. Applicant also submitted an excerpt from
registrant’s website to show that registrant’s goods are
based on Italian art, and an excerpt from a guide to the
Italian language.

1 Registration No. 3308861, issued October 9, 2007.
Ser. No. 77093040
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The examining attorney maintains that the goods are,
in part, identical and/or otherwise related. The marks,
according to the examining attorney, are similar, it being
likely that the additional letter “e” in the “ARTE” portion
of registrant’s mark will be neither noticed nor pronounced
by consumers.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We first turn to consider the goods. It is well
settled that the question of likelihood of confusion must
be determined based on an analysis of the goods recited in
applicant’s application vis-à-vis the goods identified in
the cited registration. In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1690 n. 4 (Fed. Cir. 1993); and
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490,
Ser. No. 77093040
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1 USPQ2d 1783 (Fed. Cir. 1992). Where the goods in the
application at issue and/or in the cited registration are
broadly identified as to their nature and type, such that
there is an absence of any restrictions as to the channels
of trade and no limitation as to the classes of purchasers,
it is presumed that in scope the identification of goods
encompasses not only all the goods of the nature and type
described therein, but that the identified goods are
offered in all channels of trade which would be normal
therefore, and that they would be purchased by all
potential buyers thereof. In re Elbaum, 211 USPQ 639, 640
(TTAB 1981). Further, it is not necessary that the
respective goods be identical or competitive, or even that
they move in the same channels of trade to support a
holding of likelihood of confusion. It is sufficient that
the respective goods are related in some manner, and/or
that the conditions and activities surrounding the
marketing of the goods 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 originated from the same
producer. In re Melville Corp., 18 USPQ2d 1386 (TTAB
1991).
Ser. No. 77093040
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When we compare the goods, we again note applicant has
not disputed at any time during prosecution or the appeal
the examining attorney’s finding that the applicant’s and
registrant’s “greeting cards” are legally identical. So as
to be clear, applicant’s communications during prosecution
and appeal brief are completely silent on the du Pont
factor relating to the similarity between the goods.
Likelihood of confusion may be found based on any item that
comes within the identification of goods in the involved
application or registration. Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
In view of the identity between applicant’s and
registrant’s “greeting cards,” we presume that they travel
in the same trade channels (e.g., greeting card stores,
specialty stores, drug and grocery stores, and the like)
and are bought by the same classes of purchasers, including
ordinary ones. Further, greeting cards generally are
relatively inexpensive. Given the absence of any
limitation in the respective identifications of goods
relating to cost, we must assume that applicant’s and
registrant’s greeting cards include those that are
inexpensive. As such, they would be subject to impulse
purchases made with nothing more than ordinary care.
Ser. No. 77093040
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The identity, at least in part, between the goods, and
the overlap in purchasers and trade channels weigh heavily
in favor of a finding of likelihood of confusion.
Likewise, the fact that greeting cards may be subject to an
impulse purchase favors a finding of likelihood of
confusion.
We next turn to consider the du Pont factor of the
similarity between the marks. We must compare the marks in
their entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (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 comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression that confusion
as to the source of the goods and/or services 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).
Ser. No. 77093040
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Finally, where, as in the present case, the marks are
used, in part, on identical goods, the degree of similarity
between the marks that is necessary to support a finding of
likely confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed.
Cir. 1992).
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. 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.”).
In the case of applicant’s mark, the “ART HOUSE”
portion of the mark clearly dominates the “GREETINGS”
portion. The generic/descriptive word “GREETINGS” is
disclaimed, and, although we have compared the marks in
their entireties, this word plays a subordinate role in the
mark. See In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1533-34 (Fed. Cir. 1997). There is no
Ser. No. 77093040
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question that “ART HOUSE” is the portion of the mark that
is most likely to be remembered and used by consumers in
calling for and referring to applicant’s greeting cards.
This dominant portion of applicant’s mark, “ART HOUSE,” is
similar to the entirety of registrant’s mark ARTEHOUSE.
In terms of appearance, the marks, in their
entireties, are very similar. Given that the letter “E”
appears in the middle of registrant’s mark, we share the
examining attorney’s doubts that American consumers will
even notice it. Even if the letter “E” is noticed,
consumers are unlikely to give it much significance in
forming their perception of the mark.
As to sound, we begin with the legal premise, as
pointed to by the examining attorney, that there is no
“correct” pronunciation of a trademark because it is
impossible to predict how the American public will
pronounce a particular mark. We find this to be especially
true when the debate over pronunciation, as in this case,
centers on a foreign term. Therefore, “correct”
pronunciation cannot be relied upon to avoid a likelihood
of confusion. See Centra Industries Inc. v. Spartan
Chemical Co. Inc., 77 USPQ2d 1698 (TTAB 2006); and In re
Great Lakes Canning, Inc., 227 USPQ 483 (TTAB 1985).
Applicant contends (as supported by applicant’s Ex. A
Ser. No. 77093040
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captioned “How To Pronounce Italian Vowels”) that consumers
will articulate the “E” in registrant’s mark in a sharp,
clear fashion. We find it just as likely, however, that
American consumers, especially those not familiar with the
Italian language, will not even bother to pronounce the
“E.” In any event, even if the “E” in registrant’s mark is
pronounced, the difference in sound between the marks is
minimal relative to the other similarities between the
marks.
We also find that the marks convey essentially the
same meaning. We take judicial notice that the translation
of the Italian word “arte” in English is “art.” The Pocket
Oxford Italian Dictionary (2006). See In re
Styleclick.com, 58 USPQ2d 1523, 1525 (TTAB 2001) (the Board
may take judicial notice of dictionary definitions). Thus,
both marks, as applied to greeting cards, connote that the
goods emanate from an art house. The fact that
registrant’s mark may also suggest an art house
specializing in Italian art does not create a significant
difference in meaning.
With respect to commercial impression, applicant
argues that “the combination of the Italian word ‘ARTE’
with the English word ‘HOUSE’ is a ‘somewhat incongruous
expression which competitors,’ such as the Appellant, have
Ser. No. 77093040
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‘no need to use to describe their goods. In other words,
the use of the Italian word ‘ARTE’ is somewhat out of place
or incompatible with the English word ‘HOUSE’ which makes
the combination commercially distinguishable from the
completely English combination ART HOUSE.” (Brief, pp. 4-
5). Applicant relies on prior Board decisions wherein the
Board found that the juxtaposition of a foreign word with
an English word created an incongruous mark that may serve
to distinguish it from an otherwise similar mark. See,
e.g., In re Sweet Victory, Inc., 228 USPQ 959 (TTAB 1986).
We find, however, that the cases are distinguishable for
the reasons articulated by the examining attorney. In any
event, “ARTE” and “ART” as they appear in ARTEHOUSE and ART
HOUSE GREETINGS, respectively, are very similar in
appearance, and identical in meaning; any difference in
sound is minimal. And, again, because American consumers
may not notice or pronounce the “E” in the “ARTE” portion
of registrant’s mark ARTEHOUSE, or otherwise be familiar
with the Italian language, the purported incongruity would
not even be perceived by consumers.
In sum, any differences between the marks are easily
outweighed by the similarities. The marks, ARTEHOUSE and
ART HOUSE GREETINGS, both for greeting cards, engender
substantially similar overall commercial impressions.
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Thus, the du Pont factor regarding the similarity between
the marks weighs in favor of a finding of likelihood of
confusion.
In connection with its assertion of the absence of any
actual confusion between the involved marks, applicant
introduced the declaration of Justin E. Neal, applicant’s
vice-president for finance. Mr. Neal states that applicant
began using its mark in March 2007, and that applicant has
marketed and sold its greeting cards in approximately 30
states.
Applicant’s assertion of no actual confusion between
the marks is entitled to little weight. In re Majestic
Distilling Co., 65 USPQ2d at 1205 (“uncorroborated
statements of no known instances of actual confusion are of
little evidentiary value”). See In re Bisset-Berman Corp.,
476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that
self-serving testimony of applicant’s corporate president’s
unawareness of instances of actual confusion was not
conclusive that actual confusion did not exist or that
there was no likelihood of confusion). A showing of actual
confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion. The
opposite is not true, however. The lack of evidence of
actual confusion carries little weight, J.C. Hall Co. v.
Ser. No. 77093040
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Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA
1965), especially in an ex parte context. In any event,
the record is devoid of probative evidence relating to the
extent of use of registrant’s mark and, thus, whether there
have been meaningful opportunities for instances of actual
confusion to have occurred in the marketplace. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1847 (Fed. Cir. 2000); and Gillette Canada Inc. v.
Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
Accordingly, the du Pont factor of the length of time
during and conditions under which there has been
contemporaneous use without evidence of actual confusion is
considered neutral.
As indicated earlier, there is no limitation on the
“greeting cards” listed in either applicant’s or
registrant’s identification of goods. Thus, we must assume
that the greeting cards include those that are relatively
inexpensive and bought on impulse. Applicant contends,
however, that its cards are “directed toward a more
sophisticated greeting card buyer.” (Brief, p. 9). We
will assume, strictly for purposes of dispensing with this
legally untenable argument, that applicant’s customers are
more sophisticated than the average purchaser of greeting
cards. Nevertheless, even careful purchasers are likely to
Ser. No. 77093040
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be confused when encountering identical products offered
under similar marks. As stated by our primary reviewing
court, “[t]hat the relevant class of buyers may exercise
care does not necessarily impose on that class the
responsibility of distinguishing between similar trademarks
for similar goods. ‘Human memories even of discriminating
purchasers ... are not infallible.’” In re Research and
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir.
1986) quoting Carlisle Chemical Works, Inc. v. Hardman &
Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970).
The similarity between the marks and the identity between
the goods outweigh any 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
expensive goods).
We conclude that consumers familiar with registrant’s
greeting cards sold under the mark ARTEHOUSE would be
likely to mistakenly believe, upon encountering applicant’s
mark ART HOUSE GREETINGS for greeting cards, that these
identical goods originated with or are somehow associated
with or sponsored by the same entity.
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Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.