Historic Tours of America, Inc.

Trademark Trial and Appeal Board

May 31, 2001

No. 75978525 (T.T.A.B. May. 31, 2001)

5/31/01
UNITED
Tr
In re
Susan M. Mulholl
Hannah Fisher, T
(Thomas Lamone,
Before Hanak, Ho
Judges.
Opinion by Hanak
Historic To
register the mar
namely calendars
prints, cartoon
books, picture b
paper, souvenir
displays and tro
and bumper stick
aquariums, and t
applicant and/or
use application
IS NOT
THIS DISPOSITION
CITABLE AS PRECEDENT
OF THE T.T.A.B.STATES PATENT AND TRADEMARK OFFICE
________________
ademark Trial and Appeal Board
_______________
Historic Tours of America, Inc.
______________
Serial No. 75/978,525
____________
and of Lucash, Gesmer & Updegrove.
rademark Examining Attorney, Law Office 107
Managing Attorney).
ltzman and Rogers, Administrative Trademark
, Administrative Trademark Judge:
urs of America, Inc. (applicant) seeks to
k depicted below for “printed materials,
, gift cards, greeting cards, cartoon
strips, comic books, comic strips, coloring
ooks, children’s books, coasters made of
programs regarding shops, historical
lley, aquarium or museum tours, stickers,
ers, all sold exclusively at museums,
ourist facilities owned and operated by
its affiliated companies.” The intent-to-
was filed on February 25, 1998.
Ser. No. 75/978,525
The Examining Attorney has refused registration
pursuant to Section 2(d) of the Trademark Act on the basis
that applicant’s mark, when applied to applicant’s goods,
will be likely to cause confusion with the mark SEEMORE,
previously registered in typed drawing form for “games and
playthings, namely, stuffed toys, toy figurines, Christmas
tree ornaments, board games, jump ropes, balloons, and yo-
yos.” Registration No. 2,097,778.
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Ser. No. 75/978,525
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976).
Marks are compared in terms of visual appearance,
pronunciation and meaning or connotation.
In terms of visual appearance, applicant’s mark, with
its massive smiling trolley, bears minimal resemblance to
the registered mark SEEMORE per se. While the word SEEMORE
is visible on applicant’s trolley, it is the trolley which
is the dominant portion of applicant’s mark. Indeed, a
consumer quickly glancing at applicant’s mark may not even
notice the words SEEMORE.
In terms of pronunciation, to the extent that
applicant’s mark is vocalized, then the two marks would be
identical.
In terms of connotation, we find that the two marks are
different. When the word SEEMORE appears on the side of a
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Ser. No. 75/978,525
large trolley, the connotation is that passengers on the
trolley will see more attractions. In her first office
action, the Examining Attorney stated that the mark SEEMORE
per se is the phonetic equivalent of the name Seymour. We
find that a number of consumers, upon seeing the mark
SEEMORE per se, will think of the given name Seymour. This
is particularly true when one takes into account the goods
on which the cited mark SEEMORE is used, namely, stuffed
toys and the like. None of the goods of the registrant are
in any way related to optical devices or other devices that
would permit one to see more. A more typical scenario is
that consumers would view the registered mark SEEMORE as the
given name of the stuffed toys and the like. As the
Examining Attorney’s own evidence demonstrates, it is common
for goods such as registrant’s to have trademarks which are
given names.
In sum, we find that the only significant similarity
between the two marks is in terms of pronunciation, assuming
for the sake of argument that applicant’s mark, consisting
of a very large smiling trolley design, would be vocalized.
In terms of visual appearance and connotation, the two marks
are dissimilar.
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Ser. No. 75/978,525
Turning to a consideration of the goods, we note that
while they are not identical, that with one important
exception to be discussed in a moment, the goods are closely
related. Many of applicant’s goods and many of registrant’s
goods have particular appeal to children. We have little
doubt that if very similar marks were used on stuffed toys
(one of registrant’s goods) and comic books (one of
applicant’s goods), confusion would result.
However, in this case there is one important
restriction in applicant’s identification of goods which
causes us to find that there is no likelihood of confusion.
All of applicant’s goods are sold exclusively at museums,
aquariums and tourist facilities owned and operated by
applicant and/or its affiliated companies. There is no
dispute that applicant’s primary business is conducting
trolley tours in various popular tourist cities. Applicant
also owns and operates museums, aquariums and other tourist
attractions which, as one might expect, applicant’s trolleys
stop at. In these museums, aquariums and other tourist
facilities applicant, again as one might expect, has gift
shops in which it sells the goods for which it seeks
registration.
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Ser. No. 75/978,525
In our view, even if a consumer was familiar with
registrant’s SEEMORE per se line of goods, they would not
confuse this line of goods with applicant’s products which
are sold exclusively at applicant’s own museums, aquariums
and tourist facilities. In other words, after having taken
one of applicant’s SEEMORE trolley tours, consumers, upon
seeing the very massive smiling trolley on applicant’s
goods, would not associate these goods with registrant’s
goods which, we must assume, are sold through all normal
trade channels.
At page 5 of her brief, the Examining attorney appears
to argue that the trade channels could be the same in that
registrant’s SEEMORE per se goods could be sold in
applicant’s museums, aquariums and tourist facilities. This
is a highly unlikely scenario. Applicant would have no
interest in paying a higher price to purchase registrant’s
goods for sale in applicant’s own museums, aquariums and
tourist facilities. Likewise, if registrant were to sell
its SEEMORE per se goods to applicant, registrant either
would be the cause of the likelihood of confusion, or would
be of the view that confusion would not exist. It must be
remembered that the issue before us is the likelihood of
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Ser. No. 75/978,525
confusion, not the mere theoretical possibility of
confusion.
In sum, given the fact that the marks are only similar
in terms of pronunciation (assuming that applicant’s mark
will be vocalized) and the fact that applicant has
restricted the sale of its goods to its own museums,
aquariums and tourist facilities, we find that there exists
no likelihood of confusion.
Decision: The refusal to register is reversed.
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