Chris Townsend

Trademark Trial and Appeal Board

Jun 26, 2001

No. 75761476 (T.T.A.B. Jun. 26, 2001)

06/26/01
Paper No. 10
TJQ
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Chris Townsend
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Serial No. 75/761,476
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David A. Harlow of Moore & Van Allen for applicant.
Catherine K. Krebs, Trademark Examining Attorney, Law
Office 108 (David Shallant, Managing Attorney).
_______
Before Simms, Cissel and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application was filed by Chris Townsend, a citizen
of the United Kingdom, to register the mark shown below
for “clothing, namely t-shirts.”1
1 Application Serial No. 75/761,476, filed July 27, 1999,
alleging a bona fide intention to use the mark in commerce. The
term “London” is disclaimed apart from the mark.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/761,476
2
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act on the
ground that applicant’s mark, if applied to applicant’s
goods, would so resemble the previously registered mark MAP
for “t-shirts”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant3 and the Examining Attorney filed briefs.4 An
oral hearing was not requested.
The Examining Attorney points out that the goods are
identical and maintains that the marks are similar so that
consumers would be likely to be confused.
Applicant contends that the Examining Attorney
“improperly dissected his mark and failed to give
sufficient credence to the additional disclaimed LONDON
2 Registration No. 1,901,254, issued June 20, 1995.
3 In the event that applicant’s counsel is involved in future
Board proceedings, his attention is directed to the Trademark
Rules of Practice (in this case, specifically Trademark Rule
2.142(b)(2)) which provide that briefs be typed double spaced.
4 Applicant’s appeal brief includes a list of third-party
registrations to which the Examining Attorney has objected.
Trademark Rule 2.142(d) provides, in relevant part, that the
record should be complete prior to the filing of the appeal, and
that the Board will ordinarily not consider additional evidence
filed with the Board after the appeal is filed. Not only is
applicant’s submission untimely, but a mere listing is
insufficient to make third-party registrations of record. In re
Duofold Inc., 184 USPQ 638 (TTAB 1974). Accordingly, the
Examining Attorney’s objection is sustained, and the list has not
been considered. Even if considered, however, the registrations
are entitled to little probative weight for the reasons set forth
by the Examining Attorney in her alternative response to this
evidence. If we were to consider this evidence, we would reach
the same result on the merits of this case.
Ser No. 75/761,476
3
term and to the design feature in creating a different
commercial impression than the MAP word mark alone.”
(brief, p. 3) Applicant asserts that his mark differs in
appearance from the cited mark, and that the stylized globe
and the word “LONDON” in his mark create an international
connotation that is distinctly different from registrant’s
mark.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion
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 similarities between
the goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
The goods in the application and the cited
registration are identical, namely “t-shirts.” It is
presumed that the goods move in the same channels of trade
and are purchased by the same classes of purchasers. In re
Elbaum, 211 USPQ 639 (TTAB 1981).
Accordingly, the only remaining issue to be decided is
whether the respective marks are sufficiently similar such
that their use in connection with the identical clothing
Ser No. 75/761,476
4
item, t-shirts, would be likely to cause confusion. In
this connection, we note that if the goods are identical,
as they are here, “the degree of similarity [between 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).
With respect to the marks, we start with the premise
that they must be considered in their entireties. In
comparing the marks here, we have considered the disclaimed
word “LONDON” and the design feature appearing in
applicant’s mark. In comparing the marks, however, “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 [that] the ultimate conclusion rests on
consideration of the marks in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). For example, “that a particular feature is
descriptive or generic with respect to the involved goods
or services is one commonly accepted rationale for giving
less weight to a portion of a mark...” Id. at 751.
In the present case, applicant’s mark is dominated by
the literal portion “MAP LONDON.” In re Decombe, 9 USPQ2d
1813, 1814 (TTAB 1988)[the literal portion of a mark is
Ser No. 75/761,476
5
used to call for the goods]. Further, the literal portion
of the mark is dominated by the term “MAP.” The “MAP”
portion appears in large, bold capital letters above the
“LONDON” portion depicted in smaller, thin letters. Also,
the term “LONDON” in the mark is primarily geographically
descriptive and has been disclaimed. The globe design is
integrated into the letter “M” of the term “MAP” and, thus,
to a degree, reinforces the “MAP” portion of the mark and
its geographical meaning, a meaning identical to the term
“MAP” standing alone.5 The global design is fairly simple
and would not likely be remembered by consumers when
confronted by the substantially similar marks involved
herein. The record is devoid of any third-party uses or
registrations of the same or similar “MAP” marks in the
clothing field, and it would appear that the term “MAP” is
arbitrary as applied to clothing. See: B. Altman & Co. v.
Bernhard Altmann Gesellschaft MBH, 160 USPQ 493, 494 (TTAB
1968)[“The designations ‘ALTMAN’ and ‘ALTMANN’ are, in
legal contemplation, identical. The mere addition of the
phrase ‘OF VIENNA’ to ‘ALTMANN’ cannot serve to distinguish
5 We take judicial notice of the dictionary definition of the
term “map”: “a drawing or other representation that is usually
made on a flat surface and that shows the whole or a part of an
area (as of the surface of the earth) and indicates the nature
and relative position and size according to a chosen scale or
projection of selected features or details.” Webster’s Third New
International Dictionary (unabridged ed. 1993).
Ser No. 75/761,476
6
between ‘ALTMAN’ and ‘ALTMANN OF VIENNA’ for the
geographical appellation would leave prospective purchasers
to assume that applicant is the Viennese branch, affiliate
or agent of opposer or that the product bearing that
designation is one imported by opposer.”].
In sum, the marks, when considered in their
entireties, engender substantially similar overall
commercial impressions. In finding that the marks are
likely to cause confusion, we have kept in mind the normal
fallibility of human memory over time and the fact that
consumers retain a general, rather than a specific,
impression of trademarks encountered in the marketplace.
Another du Pont factor weighing in favor of the
Examining Attorney’s position is that t-shirts are
relatively inexpensive, and the subject of impulse
purchases. In such cases, consumers are likely to use less
care in their purchases. See, e.g., Specialty Brands, Inc.
v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ
1281, 1282 (Fed. Cir. 1984).
Lastly, we have no doubt about the likelihood of
confusion between applicant’s and registrant’s marks. But
even if there were a doubt, that doubt is required to be
resolved in favor of the prior registrant. In re Hyper
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Ser No. 75/761,476
7
Cir. 1988); and In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
We conclude that consumers familiar with registrant’s
t-shirts sold under the mark MAP would be likely to
believe, upon encountering applicant’s mark MAP LONDON and
design for t-shirts, that the t-shirts originated with or
were somehow associated with or sponsored by the same
entity.
Decision: The refusal to register is affirmed.