CBS Radio License, Inc.

Trademark Trial and Appeal Board

Jul 30, 2001

No. 75709027 (T.T.A.B. Jul. 30, 2001)

7/30/01

Paper No. 9
RFC

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CBS Radio License, Inc.
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Serial No. 75/709,027
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Robert P. Lenert for CBS Radio License, Inc.

Fred Mandir, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______

Before Cissel, Hanak and Rogers, Administrative Trademark
Judges.

Opinion by Cissel, Administrative Trademark Judge:
On May 12, 1999, applicant filed the above-referenced
application to register the mark “KMZQ” on the Principal
Register for “radio broadcasting services,” in Class 38.
The application was based on applicant’s claim of use of
the mark in interstate commerce in connection with the
services on or before April 30, 1996.
The Examining Attorney refused registration under
Section 2(d) of the Lanham Act, 15 U.S.C. Section 1052(d),
on the ground that applicant’s mark, as used in connection
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/709,027
2
with the services specified in the application, so
resembles the mark “WMZQ,” which is registered1 for the
identical services, that confusion is likely.
With the Office Action refusing registration, the
Examining Attorney also made of record copies of official
United States Patent and Trademark Office records of four
third-party registrations of marks registered for
television and radio broadcasting services. Two of the
registered marks, “WCBS” and “KCBS,” are owned by the same
entity, CBS Inc.2 The other two marks, “WNBC-TV” and
“KNBC,” are both owned by National Broadcasting Co., Inc.3
The Examining Attorney argued that these registrations show
that the same entities have registered such similar marks
for identical services.
Responsive to the refusal to register, applicant
argued that confusion is not likely because its mark is not
similar to the cited registered mark in appearance, sound,
meaning or connotation. As to the third-party
registrations cited by the Examining Attorney wherein the

1 Reg. No. 1,370,574 issued on the Principal Register to Viacom
International, Inc. on Nov. 12, 1985. Combined affidavit under
Sections 8 and 15 of the Act were accepted and acknowledged,
respectively.
2 Reg. Nos. 1,407,078 and 1,390,268, both valid and subsisting
registrations on the Principal Register.
3 Reg. Nos. 1,382,707 and 1,382,708, both also valid and
subsisting registrations on the Principal Register.
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3
marks differ only in the first letter of the four-letter
series, applicant argued that “the common letters are
either found in the name of the registrant (CBS), or are an
abbreviation of the name of the registrant (NBC).”
Applicant went on to argue that “a brief review of the
USPTO on-line Trademark database revealed other
registrations for radio station call letters that differ
only in the first letter, but are owned by different
entities. For example, Registration No. 1,371,752 for WINK
owned by Fort Myers broadcasting Co. and Registration No.
1,510,432 for KINK owned by Portland Radio, Inc.
(subsequently assigned to the present applicant.) Another
example is Registration No. 1,767,671 for WMXV owned by
Bonneville International Corp. and Application No. 75-
695946 for KMXV owned by the present applicant and
published for opposition on February 2, 2000.”4
The Examining Attorney was not persuaded by
applicant’s arguments. The refusal to register was made
final in the second Office Action.
Applicant timely filed a Notice of Appeal, and both
applicant and the Examining Attorney filed briefs.
Applicant filed a reply to the brief of the Examining

4 This application subsequently matured into Registration No.
2,349.937 on May 16, 2000.
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4
Attorney, but applicant did not request an oral hearing
before the Board.
Based on careful consideration of the record in this
application and the arguments presented in the briefs, we
hold that the refusal to register must be affirmed.
In the case of In re E.I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), the predecessor to
our primary reviewing court set out the factors to be
considered in determining whether confusion is likely.
Chief among these factors are the similarity of the marks
as to appearance, pronunciation, meaning and commercial
impression, and the similarity of the goods or services as
set forth in the application and the registration,
respectively.
In the instant case, the services set forth in the
application are identical to those specified in the cited
registration, and the mark applicant seeks to register
creates a commercial impression which is similar to the one
created by the cited registered mark.
Applicant argues that because the different letters
with which the marks begin dominate each mark, the marks
are therefore different in appearance, pronunciation, and
commercial impression. Applicant points to what it views
as the inconsistent past practice of the Patent and
Ser No. 75/709,027
5
Trademark Office with regard to registering broadcasting
service call-letter marks which differ only in the first
letter, and argues that advertisers, who are the actual
customers for broadcasting services, are sophisticated
purchasers who can readily distinguish between these two
marks, particularly in view of the fact that applicant
renders its services in Nevada, whereas the owner of the
cited registration broadcasts from the District of
Columbia. Applicant argues that these facts require the
Board to find that confusion is not likely in this case.
Although these two four-letter marks share the final
three letters, the initial letters are obviously different.
The Examining Attorney explains that Federal Communications
Commission regulations require call letters for stations
east of the Mississippi River to begin with the letter “W,”
whereas the call letters for stations west of the
Mississippi River must begin with the letter “K.” He goes
on to argue that in view of this fact, radio listeners
attach less significance to the “W” or “K” at the beginning
of a set of broadcast call letters, such that the final
three letters are the dominant portion of any given call-
letter mark. He contends that stations are frequently
referred to by their last three letters, e.g. “KMZQ” and
Ser No. 75/709,027
6
WMZQ” would both be shortened to “MZQ.” This argument
makes sense to us.
The cited registration is not geographically
restricted, nor would any registration which could issue as
a result of this application be geographically restricted.
It logically follows that applicant and registrant could
conceivably create a situation in which their broadcasting
and marketing territories overlap. Federal Communications
Commission regulations may in fact be designed to preclude
this, but the record in this appeal does not contain
evidence establishing that such a situation could not
occur.
The third-party registrations argued by both the
Examining Attorney and applicant do appear to demonstrate
that the Patent and Trademark Office has in the past taken
inconsistent positions with respect to the issue of
likelihood of confusion between call-letter marks which
differ only in the initial letter. While there are obvious
differences in the commercial impressions created by “WINK”
and “LINK” because of the fact that these two marks make up
words with different connotations, we have no ready
explanation for the issuance of the “K” and “W” “MXV”
registrations to different entities. Needless to say,
however, this Board is not bound by prior decisions of
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Examining Attorneys to pass other marks to publication. In
re Nett Designs Inc., 57 USPQ2d 1564 (Fed. Cir. 2001). We
must resolve every appeal with which we are presented on
the basis of the record in that particular application. In
re Cosvetic Laboratories, Inc., 202 USPQ 842 (TTAB 1979).
While the evidence of record is inconsistent on this point,
it is our view that the third-party registrations made of
record by the Examining Attorney show that the public,
including both radio listeners and potential radio
advertisers, has a basis upon which to assume that radio
stations which use call letters which differ only as to the
initial “K” or “W” are affiliated or related in some way,
such that the services rendered under such marks are
controlled by a single entity. This is obviously the case
with the registrations for “WCBS” and “KCBS,” both of which
are owned by a company which appears to be related to
applicant.
In summary, confusion is likely in the instant case
because the services set forth in the application and the
cited registration are identical, and the marks at issue
create similar commercial impressions. Applicant, as the
newcomer, had a duty to select a mark that is not likely to
cause confusion with one which was already in use by
someone else in the same field. Moreover, if we had any
Ser No. 75/709,027
8
doubt on this issue, such doubt would necessarily be
resolved in favor of the prior registrant, and against the
junior user, applicant. Recot Inc. v. Becton, 56 USPQ2d
1859 (TTAB 2000).
DECISION: The refusal to register is affirmed.

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