Celestial Movie Channel Limited

Trademark Trial and Appeal Board

Feb 19, 2008

No. 78721446 (T.T.A.B. Feb. 19, 2008)

Mailed:
February 19, 2008
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Celestial Movie Channel Limited
________

Serial Nos. 78721446 and 78721455
_______

Brian J. Downey of Frost Brown Todd LLC for Celestial Movie
Channel Limited.

Leigh A. Lowry, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Quinn, Bucher and Zervas, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Celestial Movie Channel Limited seeks registration on
the Principal Register of the mark CFX (in standard character
format) for services recited in the applications, as amended,
as follows:
“electronic and wireless communication,
transmission of data, documents, messages,
images, sounds, voices, text, audio, video
and electronic data; broadcasting of programs
by television; cable television broadcasting,
video on demand transmission services,
satellite television broadcast services; and
radio broadcasting” in International Class
38; 1 and

1 Application Serial No. 78721446 was filed on September 27,
2005 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
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“production and distribution of motion
pictures and documentaries; script writing
services; audio recording and production of
music; conducting entertainment exhibitions
in the nature of film festivals and in
relation to film technology; conducting award
ceremonies to promote excellence in the
entertainment industry; entertainment in the
nature of ongoing television shows and
documentaries in the fields of
action/adventure, comedy, crime, drama,
horror, musicals, science fiction, war,
westerns, soap operas, martial arts, sports,
news, and game shows; entertainment in the
nature of live and on-line musical
performances, conducting film festivals, and
fashion shows; providing on-line computer
games; entertainment in the nature of visual
and audio performances, dance performances,
amusement park shows, and theatre
productions; entertainment services, namely
providing a website featuring musical
performances, musical videos, photographs,
movies, live-action reality shows, comedy
shows, dramatic shows, related film clips,
and other multimedia materials, and related
reviews; entertainment services, namely live,
televised and movie appearances by
professional entertainers, movie stars,
singers, and sports celebrities;
entertainment services, namely providing
television programs in the fields of movies,
live-action reality shows, comedy shows, and
dramatic shows, via a global computer
network; entertainment services, namely
providing on-line reviews of movies, live-
action reality shows, comedy shows, dramatic
shows, books, music and computer games;
arranging ticket reservations for shows and
other entertainment events; educational and
entertainment services, namely providing
motivational and educational speakers;
entertainment in the nature of competitions
in the fields of films, television shows,
television series, music, fashion, sports,
animation shows, dance, theatre productions,
and on-line computer games; entertainment
services, namely providing prerecorded music,
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information in the field of music, and
commentary and articles about music, all on-
line via a global computer network and
electronic global communications network;
entertainment, namely live performances by
musical bands; entertainment, namely live
music concerts; radio entertainment
production; entertainment services, namely
providing radio programs, ongoing television
programs, and conducting contests and
festivals in the fields of music, film,
sports, animation, and audio and visual shows
via a global computer network; entertainment
services, namely conducting contests on board
cruise ships for passengers of all ages, in
function rooms, stadiums, exhibition centers,
concert halls, parks, or shopping malls;
radio entertainment services, namely radio
programs featuring performances by fictional
characters, radio and sports and movie and
games personalities, professional
entertainers, movie stars, singers and sports
celebrities; movie studios; movie theatres;
and production of radio and television
programs; [and] animation production
services” in International Class 41. 2

This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this mark based upon Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d). The Trademark Examining Attorney
asserts that applicant’s mark, when used in connection with
applicant’s recited services, so resembles the following
mark:

2 Application Serial No. 78721455 was filed on September 27,
2005 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.

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registered in connection with “radio broadcasting services” 3
in International Class 38, as to be likely to cause
confusion, to cause mistake or to deceive.
Inasmuch as these two ex parte appeals involve common
issues of law and fact, the Board has granted the request of
the Trademark Examining Attorney to consolidate these two
cases by deciding them in a single opinion. Applicant and
the Trademark Examining Attorney have briefed the
substantive issues. We affirm the refusals to register.
In arguing for registrability, applicant argues that
the Trademark Examining Attorney erred by concluding that
consumers will shorten the four letter call sign of
to a three letter designation of CFX; that the Trademark
Examining Attorney erred by failing to consider all relevant
du Pont factors; that inasmuch as there are third-party
registrations for identical or highly related services
containing the letters “FX” along with other close
variations on registrant’s mark, the cited mark is
relatively weak and entitled to only a narrow scope of

3 Registration No. 2773400 issued on October 14, 2003.
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protection; and that most of applicant’s services in the
International Class 41 application are different from
registrant’s recited services.
By contrast, the Trademark Examining Attorney contends
that the services are identical in part and otherwise
closely related, and that the marks are confusingly similar,
especially noting that radio announcers, their listeners and
journalists often use the last three letters of a radio
station’s identification to refer to the station.
LIKELIHOOD OF CONFUSION
We turn then to a consideration of the issue of
likelihood of confusion. Our determination under Section
2(d) is based upon an analysis of all of the probative facts
in evidence that are relevant to the factors bearing on this
issue. 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 the marks and the relationship of the goods and/or
services. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
The Services
We turn first to the du Pont factor focusing on the
relationship of the services recited in the involved
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applications and the services of the cited registration.
The Trademark Examining Attorney points out that applicant’s
radio broadcasting services are legally identical to
registrant’s radio broadcasting services.
Additionally, there are a number of reasons to find
that applicant’s services in International Class 41 are
closely related to registrant’s “radio broadcasting
services.” First, that applicant itself intends to use the
same mark with both types of services supports the
conclusion that these services are related. Second, the
Trademark Examining Attorney has made of record third-party
registrations demonstrating that services as identified in
registrant’s registration and applicant’s International
Class 41 services in the ’455 application come from the same
source. These registrations, summarized below, have
probative value to the extent that they serve to suggest
that the services listed therein are of a kind that may
emanate from a single source. See In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1217-1218
(TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993); and In re Mucky Duck Mustard Co.,
Inc., 6 USPQ2d 1467, 1470 at n.6 (TTAB 1988).
- 7 -

GEORGIA TECH for, inter alia, “radio
broadcasting services” in
International Class 38;
“educational services-namely, …
recording of video and audio
tapes for others …” in
International Class 41;4

for “radio broadcasting
services” in Int. Class 38;
“entertainment services in the
field of an on-going radio
program …” in Int. Class 41;5

for “radio broadcasting
services” in Int. Class 38;
“radio entertainment production
services; entertainment in the
nature of on-going radio
programs in the field of rock
and roll music; providing
entertainment information on
radio stations, music, musical
performers, musical groups and
musical bands, music
performances, live events and
concerts by means of a global
computer network” in Int. Class
41;6

4 Registration No. 1279173 issued to Board of Regents of the
University System of Georgia on May 22, 1984; renewed. No claim
is made to the term “Tech” apart from the mark as shown.

5 Registration No. 2449497 issued to WNYC Radio Foundation on
May 8, 2001. No claim is made to the designations AM 830/93.9
FM" apart from the mark as shown.

6 Registration No. 2472958 issued to Broadcasting and
Programming Systems Of Puerto Rico, Inc. on July 31, 2001; No
claim is made to the word “Rock” apart from the mark as shown.
Section 8 affidavit (six-year) accepted and Section 15 affidavit
acknowledged.

PURA BUENAS for “radio broadcasting
services” in Int. Class 38;
“entertainment services in the
nature of on-going audio
programs provided by
telecommunication channels, …”
in International Class 41;7
FI for “multi-media broadcasting
services, namely … radio
broadcasting services” in
International Class 38;
“production of … radio programs
featuring entertainment in the
areas of the performing arts
and fine arts …” in Int. Class
41;8
ULTRACRIB for “radio broadcasting
services” in Int. Class 38;
“entertainment services,
namely, providing on-air radio
contests featuring a party” in
International Class 41;9
THE EXPERTS’ CHOICE for “radio broadcasting in the
field of professional and
amateur sports, and sports
news, scores and statistics” in
International Class 38;
“entertainment services in the
nature of providing radio,
television and interactive
television programs in the
field of professional and
amateur sports, and sports
news, scores and statistics” in
Int. Class 41;10

7 Registration No. 2588074 issued to Univision Radio, Inc. on
July 2, 2002. The English translation of “Pura Buenas” is “pure
goods.”

8 Registration No. 2693094 issued to The Flat Iron Corp. on
March 4, 2003.

9 Registration No. 2819736 issued to Emmis Radio, LLC on March
2, 2004.

10 Registration No. 2940942 issued on April 12, 2005.

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for “… radio broadcasting …
concerning the field of
basketball …” in Int. Class 38;
“entertainment and educational
services in the nature of
ongoing … radio programs in the
field of basketball …; the
production and distribution of
radio and television broadcasts
of basketball games, basketball
events and programs in the
field of basketball; …
entertainment services, namely
providing a website featuring …
radio programs, radio
highlights, and audio
recordings in the field of
basketball, …” in Class 41;11
for “radio broadcasting
services” in Int. Class 38;
“entertainment services,
namely, music publishing
services; recording studio
services; concert services,
namely, concert booking;
providing on-line information
in the field of entertainment
information for the radio and
music industries” in Class 41;12
for, inter alia, “radio
broadcasting services” in
International Class 38;
“entertainment services,
namely, production of
television, radio and cable
television programs, …” in
International Class 41.13

11 Registration No. 2993212 issued to NBA Properties, Inc. on
September 6, 2005. No claim is made to the designation “TV”
apart from the mark as shown.

12 Registration No. 3003037 issued on the Supplemental Register
to Dontron, Inc. on 09/27/2005.

13 Registration No. 3030778 issued on the Supplemental Register
to National Barbershop Television Network on December 13, 2005.
No claim is made to the term “Television Network” apart from the
mark as shown.

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TBN for, inter alia, “… radio
broadcasting of information and
other programs; radio program
broadcasting; and streaming of
audio material on the internet”
in Int. Class 38; and
“entertainment, namely …
production of radio … programs;
… entertainment services,
namely providing a radio
program in the field of news,
religion, health, variety,
music, comedy and youth, adult
and children specific topics
via a global computer network;
… radio entertainment services,
namely radio programs featuring
performances by a radio
personality; …” in
International Class 41;14

Finally, the fact that some of applicant’s services in
International Class 41 are closely related to registrant’s
cited radio broadcasting services makes irrelevant the fact
that some other services that applicant recited in the
International Class 41 application may be somewhat different
from registrant’s services. In fact, applicant does not
seriously dispute the evidence of the Trademark Examining
Attorney that its class 38 services are identical to
registrant’s services in part, and that some of its class 41
services are otherwise closely related to registrant’s
services. See Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
[likelihood of confusion must be found if public is confused

14 Registration No. 3135360 issued to Trinity Christian Center
of Santa Ana, Inc. on August 29, 2006.
- 11 -
as to any item that comes within the identifications of
goods [or services] in any given class in the involved
application[s] and registration]. Accordingly, this
critical du Pont factor supports a finding of likelihood of
confusion as to both classes of applied-for services.
The Marks
We turn next to the similarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1692 (Fed. Cir. 2005). We begin this part
of the analysis mindful of the fact that when marks would
appear on identical and/or closely-related services, the
degree of similarity in the marks necessary to support a
conclusion of likely confusion declines. Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
The Trademark Examining Attorney contends that the
literal portions of these two marks [i.e., the letters
K·C·F·X and C·F·X) are confusingly similar. In neither case
do these letter-strings comprise spoken words or acronyms,
but rather, both consist of a series of letters, each of
which would be enunciated separately. As the Trademark
Examining Attorney points out, it is more difficult to
- 12 -
remember a series of letters than it is to remember words.
Hence, when comparing letter marks, the letters do not have
to be exactly the same for a likelihood of confusion to
exist. See Weiss Associates Inc. v. HRL Associates, Inc.,
902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) [confusing
similarity between TMS and TMM]; Dere v. Institute for
Scientific Information, Inc., 420 F.2d 1068, 164 USPQ 347
(CCPA 1970) [confusing similarity between ISI and I.A.I.);
Edison Brothers Stores,
Inc. v. Brutting E.B.
Sport-International GmbH,
230 USPQ 530, 533 (TTAB
1986) [confusing
similarity between EB and
EBS
and

EBS]; and American Optical Corp. v. Southwest Petro-Chem,
Inc., 175 USPQ 317
(TTAB 1972)
[similarity between
AOC and “AO” marks
shown at right].

However, applicant argues that these cases do not apply
inasmuch as registrant’s letters are not arbitrarily
arranged letters. Applicant argues that registrant’s
precise call letters K·C·F·X will be easily remembered
- 13 -
because they convey a specific meaning to its listeners,
namely “Kansas City Fox.” Indeed, the letter “X” in
registrant’s mark does appear to have the stylized tail of a
fox. And the Trademark Examining Attorney’s own evidence
shows that radio station owners may apply for call letters
where portions of the call letters may have origins in the
station’s geographic location [e.g., -PGC: Prince Georges
County; KC--: Kansas City; -BAL: Baltimore], ownership
[e.g., -HUR: Howard University Radio; -PLU: Pacific
Lutheran University; -TUL: Tulane University], a slogan
[-RNO: Rock of New Orleans], euphony/homonym [--FX: Fox],
frequency, or the like. However, our likelihood of
confusion analysis under the Lanham Act cannot be limited to
the assumption that registrant’s K·C·F·X will always carry
the tag “Kansas City Fox,” or that these call letters will
be synonymous with this location and homonym combination.
Even if we accepted as relevant to our determination that
such may have been the case in the recent past, as shown on
registrant’s website, the record also shows that station’s
marketing tags change with changes in formats. Moreover,
based on this entire record, it is equally plausible that
registrant’s tag could just as easily be shortened to “CFX.”
In fact, there is no dispute based on this record that
the leading letters “K” and “W” are mandatory geographic
- 14 -
indicators for radio station call letters. Hence,
registrant’s location west of the Mississippi River calls
for a leading letter “K.” 15 Inasmuch as substantially all
the stations within the same media market (except most
notably those situated along the Mississippi River) will
share the same leading letters “K” or “W,” these beginning
letters are often dropped by the stations themselves as well
as by the members of the target audience. The Trademark
Examining Attorney pointed out specific examples of this
phenomenon:
WHFS is known as HFS:
Frank Ahrens: “… Legendary [alternative]-
rocker WHFS 99.1 … switched its format at
noon today…. Now, ’HFS is ‘El Zol,’
broadcasting a current hit blend of
Caribbean and Central American dance
music’….”
…
Annapolis, Md.: “I stopped listening to HFS
years ago when it became clear that I’d be
out of place at an HFSFestival.”
…
Oakland, Calif.: I am stunned -- stunned! I
remember the first thing I did when I
bought a car in 1988: slapped a big ’HFS
sticker on the bumper. If I recall, there
was some sort of hierarchy about the color
of the bumper sticker -- blue or green?!

15 BROADCAST STATION IDENTIFICATION
“Broadcast stations in this country are assigned call signs
beginning with K or W. Generally speaking, those beginning
with K are assigned to stations West of the Mississippi
River and in U.S. territories and possessions, while those
beginning with W are assigned to broadcast stations East of
the Mississippi River…” < www.fcc.gov/cgb/statid.html >

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Regardless, the ’HFS sticker was such an
important announcement for my teenage self
to make to the rest of the world:
"Madonna is not the only music out there!
The Cure rules!” And when you looked for
parking around the old 9:30 Club and saw
tons of other cars with the same sticker
you knew you were with your people.

’HFS went downhill so significantly in the
mid-’90’s that it became almost
unlistenable, (so much so that I didn’t
miss it at all when I moved to California)
but I’ve never been able to let go. The
radios in both of my parents’ (WETA
listeners, both) cars both have ’HFS
presets, allowing me to feed my nostalgia
whenever I visit.

Unlike when WDCU went off the air, I can’t
say I’m really going to miss ’HFS’s
programming. Still it’s hard to believe
it’s gone. I’m stunned.

Frank Ahrens: Thanks for the story. In many
ways, ’HFS cultivated what radio station
owners lust for – a real sense of
ownership from its listeners, a passionate
following. ’HFS became a currency among
the hipperati, one of the Stations of the
Cross to visit on your visit to D.C.
hippitude….
…
Parkland, Fla.: Lived in D.C. from ’79 to
’89 and HFS was the ONLY station to listen
to … when you could get it. Couldn’t
stand Greaseman or Stern, and the music
and DJs on HFS were great… they actually
were “DJs”!
…
McLean, Va.: Hi Frank. When I was in
college we had a great commercial-free
alternative station – 91.9 WNRN – that was
modeled after HFS but with much better
variety. … Do you think there’s a market
for a low-budget, independent alt-rock
- 16 -
station like that in D.C., now that HFS is
gone? … 16

WYSP is known as YSP:
HEADLINE: Stern heard on ’YSP
… 94.1 WYSP listeners heard a familiar
voice Tuesday afternoon when Howard
Stern called into Kidd Chris’s show …”17

HEADLINE: Inqlings | Yikes! Opie & Anthony
on ’YSP
“… I hear that CBS is about to bring in
– actually rehire – the XM satellite
bad-boy team of Opie & Anthony to do a
morning show in three or four markets,
including Philly’s “Free FM” station,
WYSP (94.1). 18

WPGC is known as PGC:
“… This week [Former Mayor Barry’s] staff
was busy planning a Youth Peace Summit …
working with WPGC Radio.”
“‘PGC did one in Prince George’s County
and it was very successful,’ [Linda]
Green said.” 19

Todd Reynolds / Ed Kowalski / Ed McNeal writes:
…
“… After returning from Pittsburgh in late-
1977, I was looking for something to fill the
time before my FCC gig came through. Dan
Mason was shuffling the chairs at ’PGC after
Brant Miller went to WLS. … [The DJ name] Ed
McNeal lasted until I left ’PGC for the last

16 “Radio: WHFS Off the Air,” Wednesday, January 12, 2005
< www.washingtonpost.com/wp-dyn/articles/A4252-2005Jan12.html >

17 HEADLINE: Dan Gross | Stern heard on ’YSP
< http://www.philly.com/mld/philly/entertainment/15851070.htm >

18 < http://www.highbeam.com/doc/1K1-12f8160000009392.html >

19 < http://www.washingtoninformer.com/OPEDeditorial
2006Jan12.html >

- 17 -
time in August 1978. (Interestingly enough,
though, Dan did call me when Jerry Clifton
went into ’PGC, to let me know they were
looking for weekend jocks.]” 20

WFAN is known as FAN:
HEADLINE: About Sports Radio 66 WFAN
“… Since its debut on July 1, 1987,
dozens of stations have copied the all
sports format, but none have achieved
the success and the notoriety of the
FAN.” 21

HEADLINE: Bob Raissman: WFAN’s Sid vicious
“[DJ Sid] Rosenberg, FAN’s resident bad
boy…”
…
“‘Because he’s stupid,’ one of
Rosenberg’s FAN colleagues said.
“Putting him in that Imus atmosphere is
like giving an alcoholic the keys to a
bar.” 22

WXPN is known as XPN:
Join XPN today
“Y-Rock on XPN”
“Tour the XPN Studios”
“Y-Rock and XPN Welcome Broken Social Scene”
“XPN Free At Noon: Arlo Guthrie”
“XPN Welcomes Bruce Hornsby” 23

Furthermore, even if the first two letters of
registrant’s call sign are arguably derived in some way from
“Kansas City,” and even if we should conclude that this

20 < http://www.amandfmmorningside.com/wpgc_todd_reynolds
aka_ed_mcneil.html >

21 < http://wfan.com/about/ >

22 < http://www.nydailynews.com/11-05-
2002/sports/col/braissman/story/311809p-266781c.html >

23 < http://www.xpn.org/ >
- 18 -
Kansas City radio station markets itself as “The Fox,” that
does not force a different conclusion on the issue of
confusing similarity of the letters. By analogy, the
lettered marks in some of the decisions cited above were
derived from the trade or corporate names of the involved
parties. For example, in Edison Brothers, the “EB” logo of
E.B. Sport’s, as illustrated above, was held confusingly
similar to the “EBS” logo despite the fact that “EBS” was
derived from, and often used together with, the designation
“Edison Brothers Stores.”
As to the design feature of registrant’s mark, we find
the overall significance of the stylized foxtail to be
de minimis. Registrant’s mark is a vocalized, letter-string
mark having clear visual portrayals of the involved letter.
This is to be distinguished from those decisions dealing
with what are primarily design marks – incapable of being
pronounced or of conveying any inherent meaning. In such
cases, lettering style and designs may well be sufficient to
prevent a likelihood of confusion.24 That is clearly not the
case herein.

24 The more highly stylized one of the involved marks may be,
the more determinative of the outcome will be the similarity or
difference in the appearance of the marks. Our then primary
reviewing Court, in Diamond Alkali Company v. Dundee Cement
Company, 343 F.2d 781, 145 USPQ 211 (CCPA 1965), when faced with
the following marks:
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Applying these principles to the case now before us
leads us to conclude that the marks, when taken as a whole,
are more similar than they are dissimilar. The only literal

held as follows:
“Upon the question of likelihood of confusion the
board stated, [Diamond Alkali Company v. Dundee
Cement Company,] 139 USPQ 314, 316:
“While there is a remote possibility that
some purchasers of opposer’s [Diamond Alkali
Co.’s] products might ascertain that this
house mark includes a stylized version of
the letter “d” as a feature thereof, the
mark, when viewed either as a whole or in
part, would normally be regarded as
consisting of an arbitrary design which is
capable of many different interpretations
rather than as a letter “d.” Such a
conclusion is supported by opposer’s own
actions in connection with its mark [i.e.,
describing this image as an “emblem
deriv[ing] its inspiration from a chemical
retort.”] When considered in their
entireties, applicant’s mark differs
radically in appearance from opposer’s
design mark, and it is concluded that no
likelihood of confusion or mistake would
result from the contemporaneous use thereof.
Cf. In re Burndy Corporation, 133 USPQ 196
(CCPA 1962).
“When symbol marks such as these are being
considered, appearance is most significant.
“Symbols of this kind do not sound.” Columbian
Steel Tank Co. v. Union Tank & Supply Co., 47
CCPA 898, 902, 277 F.2d 192, 125 USPQ 406, 409.
Appellant requests our consideration of the
[differences in specific features]. We have
considered these features but agree with the
board that in appearance the marks are
sufficiently dissimilar that there is no
likelihood of confusion.”
Diamond Alkali Company, 145 USPQ at 213.
- 20 -
difference between the two marks is the initial letter “K.”
Both marks contain the same three upper-case letters “CFX”
in the same order. The Trademark Examining Attorney has
placed evidence into this record clearly showing that radio
station owners, webmasters, disc jockeys, reporters and
members of the listening public refer to radio stations by
using the last three call letters. Thus, if consumers were
to refer to the registrant’s KCFX by the last three letters
of its call sign, they would call it CFX, which is
applicant’s mark. We conclude that applicant’s CFX mark and
registrant’s mark are substantially similar in
overall commercial impression, and thus are likely to be
confused.
The number and nature of similar marks in use on similar services

Applicant points out that there are a number of third-
party registrations for similar marks in connection with
related services [“The co-existence of all these ‘FX’ marks
on related services …” (applicant’s brief, pp. 8 and 9)],
decreasing the likelihood of confusion between any two
specific services incorporating the weak mark. Visa
International Service Associations, 24 USPQ2d 1365, 1367 (9th
Cir. 1992). For example, applicant points to the following:
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KZFX for “radio broadcasting
services” in Int. Cl. 38;25

for, inter alia “… production
and distribution of television
programs and network radio
programming services … ” in Int.
Class 38;26 and
EFX MEDIA for, inter alia “… production
and distribution of radio and
television commercials” in Int.
Cl. 38.27

However, third-party registrations are entitled to
little weight on the question of likelihood of confusion.
In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); and
In re Hub Distributing, Inc., 218 USPQ 284 (TTAB 1983).
Such registrations are not evidence of what happens in the
marketplace or that the public is familiar with the use of
the marks. In re Comexa Ltda, 60 USPQ2d 1118 (TTAB 2001);
and National Aeronautics and Space Admin. v. Record Chem.
Co., 185 USPQ 563 (TTAB 1975). Furthermore, when compared

25 Registration No. 1481082 issued to Shamrock Broadcasting,
Inc. on March 15, 1988. Section 8 affidavit accepted and section
15 affidavit acknowledged.

26 Registration No. 2641611 issued to SFX Entertainment, Inc.
on October 29, 2002.

27 Registration No. 3062840 issued to The EFX Company on
February 28, 2006. No claim is made to the word “Media” apart
from the mark as shown.
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in their entireties, none of these marks is as close to
registrant’s mark as is applicant’s mark herein.
Additionally, while the Trademark Examining Attorney,
as part of the Office’s analysis, has carefully compared the
marks in their entireties, here it is applicant who is
dissecting the mark in placing undue emphasis on the “FX”
component of these several marks.
Finally, the coexistence of the registered mark, KZFX,
with registrant’s mark, , reminds us of the
special difficulties presented in any Lanham Act
determination of likelihood of confusion involving radio
station call letters:
“… We recognize that the FCC issues licenses
to parties to use very similar call letters,
and that the public is aware that call
letters for separate radio and television
stations may vary by just one letter. As a
result, call letters may be able to be closer
to each other without causing likelihood of
confusion than would be the case for other
marks for other goods or services. Our
finding of likelihood of confusion in this
case should not be read as asserting a
principle that confusion is likely if call
letters for radio or television broadcasting
services differ by just one letter. Here we
have found the marks to be confusingly
similar because of the identity of the
remaining letters and the similarity of the
differing letters in terms of the similar
effect of those letters in the marks as a
whole, as discussed supra.”

In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d at
1219 [finding confusion between registrant’s KING FM and KING-
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TV and applicant’s KYNG]. Similarly, we find these two
marks to be substantially similar in overall commercial
impression.
Conclusion

When compared in their entireties, applicant’s mark
conveys a similar commercial impression to registrant’s
cited mark. The respective services are overlapping and
otherwise related, and presumably will move in the same
channels of trade, albeit over different frequencies, to the
same groups of ordinary members of the radio-listening
audience. Moreover, applicant has failed to rebut the
evidence of the Trademark Examining Attorney that radio
audiences are most accustomed to the industry practice of
shortening call letters to the last three letters. Hence,
we find a likelihood of confusion herein.
Decision: We affirm both of the refusals to register
herein based upon Section 2(d) of the Lanham Act.