Fallen Heroes Memorial Foundation

Trademark Trial and Appeal Board

Sep 11, 2009

No. 77285616 (T.T.A.B. Sep. 11, 2009)

Mailed: September 11, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Fallen Heroes Memorial Foundation
________

Serial No. 77285616
_______

Molly B. Markley of Young, Basile, Hanlon, Macfarlane &
Helm for Fallen Heroes Memorial Foundation.

Anne Gustason, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
_______

Before Walsh, Cataldo and Mermelstein,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

An application was filed by Fallen Heroes Memorial
Foundation to register in standard characters on the
Principal Register the mark FALLEN HEROES MEMORIAL
FOUNDATION for “memorial fundraising services in the nature
of raising money for statues to memorialize service
members” in International Class 36.1

1 Application Serial No. 77285616 was filed on September 21,
2007, based upon applicant’s assertion of May 1, 2007 as a date
of first use of the mark anywhere and in commerce. Applicant
disclaimed “MEMORIAL FOUNDATION.”
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 77285616
2
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as used in connection with applicant’s
services, so resembles the mark shown below, previously
registered on the Principal Register for “charitable fund
raising services, namely, soliciting and distributing
donated funds to assist in supporting and educating
children of United States armed forces members who died in
service,” in International Class 362 as to be likely to
cause confusion.

When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs on
the issue under appeal.
Likelihood of Confusion
Our determination of the issue of likelihood of

2 Registration No. 2957006 issued on May 31, 2005 with a
disclaimer of FOUNDATION; and the following statements: “The
color(s) red, white, blue and gray is/are claimed as a feature of
the mark;” and “The mark consists of the wording FALLEN HEROES
LAST WISH FOUNDATION to the right of a rectangle containing a
design of a small star on the left and a larger star on the
right, with stripes behind the small star and to the left of the
larger star, and a solid color field to the right of and below
the larger star. The stars are white with gray highlights; the
stripes are red and red shaded with gray; the solid color field
is blue. The wording consists of two lines, with FALLEN HEROES
in larger type above LAST WISH FOUNDATION.”
Ser No. 77285616
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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).
The Services
We begin by comparing applicant’s services with those
of registrant. In this case, registrant provides
charitable fundraising services to provide support and
education for the children of U.S. armed forces members who
died in service. Applicant provides memorial fundraising
services to provide statues to memorialize service members.
Thus, applicant’s services are related on their face to
registrant’s services in that both provide fundraising
services directed toward service members killed in service
and their families.
In addition, the examining attorney has made of record
a number of use-based third-party registrations which show
that various entities have adopted a single mark for both
Ser No. 77285616
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charitable and memorial fundraising services. See, for
example:
Registration No. 2110777 for charitable and
memorial fundraising services in the nature of
amusement events, parties, gatherings and
community interest activities;

Registration No. 3402914 for charitable fund
raising services; memorial fund raising services;

Registration No. 3247263 for charitable
fundraising and memorial fundraising services;
philanthropic services concerning monetary
donations;

Registration No. 2612210 for charitable
fundraising services and memorial fundraising
services; and

Registration No. 2774878 for charitable fund
raising and memorial fundraising services,
philanthropic services concerning monetary
donations; philanthropic services in connection
with volunteer services in connection with
producing a fund raising event.

Third-party registrations which individually cover a number
of different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993). The evidence of record establishes that applicant’s
services are closely related to the services identified in
the cited registration, and further may be identified under
Ser No. 77285616
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the same mark.3 As such, this du Pont factor favors a
finding of likelihood of confusion.
Channels of Trade
Furthermore, it is settled that in making our
determination regarding the relatedness of the services, we
must look to those services as identified in the involved
application and cited registration. See Octocom Systems,
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an
applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the
sales of goods are directed.”) See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ

3 In determining the relatedness of the involved services, we
have not considered the examining attorney’s reliance upon the
results of her search of the Google Internet search engine for a
listing of various fundraising sites. The examining attorney
submitted such evidence in further support of her contention that
applicant’s services are related to those of registrant.
However, the submitted listing contains insufficient information
upon which we may ascertain the nature of the use, if any, of the
charitable or memorial fundraising services assertedly identified
therein. It is settled that truncated results from search
engines are entitled to little weight. See In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir.
2007).
Ser No. 77285616
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76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods.”) In this case, neither
applicant’s nor registrant’s recitation of services
contains any restrictions with regard either to the
channels of trade or the consumers to whom the services are
marketed. Accordingly, both applicant’s and registrant’s
services are presumed to move in all normal channels of
trade and be available to all classes of potential
consumers, including consumers of each others’ services.
See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). This du
Pont factor further favors a finding of likelihood of
confusion.
The Marks
We turn then to the first du Pont factor, i.e.,
whether applicant’s FALLEN HEROES MEMORIAL FOUNDATION mark
and registrant’s FALLEN HEROES LAST WISH FOUNDATION and
design mark are similar or dissimilar when viewed in their
entireties in terms of appearance, sound, connotation and
overall commercial impression. See Palm Bay Imports, Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). We note initially
that the test under the first du Pont factor is not whether
the marks can be distinguished when subjected to a side-by-
Ser No. 77285616
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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 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).
In comparing the marks, we find that FALLEN HEROES is
the dominant element of both applicant’s mark and the cited
mark, and accordingly it is entitled to more weight in our
analysis. It is a well-established principle that, in
articulating reasons for reaching a conclusion on the issue
of likelihood of confusion, 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 a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
In registrant’s mark, the word “FOUNDATION” is
disclaimed, and the term clearly has little source
distinguishing quality and is subordinate to the remainder
of the wording in the mark. Further, both the wording LAST
WISH FOUNDATION and the star design are visually smaller
Ser No. 77285616
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than the wording “FALLEN HEROES.” As a result, the wording
“FALLEN HEROES” is visually more prominent than the
remaining wording or design comprising registrant’s mark.
Further, if a mark comprises both a word and a design, then
the word is normally accorded greater weight because it
would be used by purchasers to request the goods or
services. See In re Appetito Provisions Co., 3 USPQ2d 1553
(TTAB 1987). For all of the above reasons, we consider
“FALLEN HEROES” to be the dominant feature of the
registered mark.
Likewise, insofar as applicant’s mark is concerned,
the wording “MEMORIAL FOUNDATION” appears to be
descriptive, and has been disclaimed by applicant pursuant
to the examining attorney’s requirement. Thus, “FALLEN
HEROES,” also appearing first in applicant’s mark, is the
dominant portion thereof, and the portion that is most
likely to be remembered by purchasers. Furthermore, we
note that the identical words “FALLEN HEROES,” which the
marks share in common, are also the first words in both
marks. Presto Products, Inc. v. Nice-Pak Products Inc., 9
USPQ2d 1895, 1897 (TTAB 1988)(“…[it is] a matter of some
importance since it is often the first part of a mark which
is most likely to be impressed upon the mind of a purchaser
Ser No. 77285616
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and remembered.”). See also Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, supra.
Based upon the foregoing analysis, we find that the
terms “FALLEN HEROES” are the dominant and most distinctive
portions of both applicant’s and registrant’s marks. These
terms, which appear at the beginning of both marks, are
identical in appearance, sound and meaning. Furthermore,
we note that both applicant’s mark and the word portion of
registrant’s mark end with the identical, albeit less
distinctive, term “FOUNDATION.” As a result, we find that
applicant’s FALLEN HEROES MEMORIAL FOUNDATION mark and
registrant’s FALLEN HEROES LAST WISH FOUNDATION and design
mark are highly similar in appearance, sound and
connotation, and that overall the marks convey highly
similar commercial impressions. As such, this du Pont
factor also weighs against applicant.
In making our finding, we have considered applicant’s
evidence and argument that “FALLEN HEROES” is weak in the
field of activities related to individuals killed in the
line of military and other duties. In support of this
argument, applicant submitted screenshots from Internet web
sites displaying the following: “INTREPID FALLEN HEROES
Ser No. 77285616
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FUND,”4 “Fallen Hero Portrait Project,”5 “Advocates For A 9-
11 Fallen Heroes Memorial,”6 “Wisconsin Department of
Veteran’s Affairs Wisconsin’s Fallen Heroes,”7 “Respect for
America’s Fallen Heroes Act,”8 and “Fallen Heroes of
Operation Iraqi Freedom.”9 We note, however, that several
of these designations appear merely to be headlines for
articles or informational material that do not serve as
trademarks to identify the source of any goods or services.
Further, in those cases in which the designations appear to
serve a trademark function, such marks are more dissimilar
from the cited mark than applicant’s mark.
In addition, the probative value of this evidence is
limited because applicant presented no evidence concerning
the extent to which these third-party designations are used
in commerce. As a result of the foregoing, this record
simply does not establish that “FALLEN HEROES” has been
diluted or otherwise is weak in the field of fundraising
services. See Broadway Chicken, Inc., 38 USPQ2d 1559 (TTAB
1996) (BROADWAY weak for restaurant services based on
evidence that hundreds of restaurants and eating

4 www.fallenheroesfund.org
5 www.fallenheroesproject.org
6 www.911fallenheroes.org
7 dva.state.wi.us/pa_heroes
8 Wikipedia.org/wiki/Fallen_Heroes_Act
9 www.foxnews.com

Ser No. 77285616
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establishments use that word). Thus, applicant’s evidence
does not establish that there is widespread use of similar
marks for fundraising services such that registrant’s mark
is weak and entitled to only a narrow scope of protection.
In any event, even if we were to find, based on
applicant’s evidence, that registrant’s mark is weak and
entitled to a narrow scope of protection, the scope is
still broad enough to prevent the registration of a highly
similar mark for closely related services. See In re Farah
Mfg. Co., Inc., 435 F.2d 594, 168 USPQ 277, 278 (CCPA
1971).
Conclusion
Neither applicant nor the examining attorney has
discussed any of the remaining du Pont factors. We note,
nonetheless, that none seems to be applicable, inasmuch as
we have no evidence with respect to them.
In light of the foregoing, we conclude that consumers
familiar with registrant’s services sold under its above-
referenced mark would be likely to believe, upon
encountering applicant’s closely related services offered
under its mark that the services originated with or are
somehow associated with or sponsored by the same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
Ser No. 77285616
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doubt is required to be resolved in favor of the prior
registrant. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register is affirmed.