Kendall

Trademark Trial and Appeal Board

Sep 27, 2000

No. 75344519 (T.T.A.B. Sep. 27, 2000)

Paper No.
14
GDH/gdh
9/27/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Kendall
________
Serial No. 75/344,519
_______
Vaughn W. North and Peter M. de Jonge of Thorpe, North &
Western, L.L.P. for David W. Kendall.
Steven R. Berk, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney).
_______
Before Hanak, Hohein and Chapman, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
David W. Kendall has filed an application to
register the mark "WRISTGLIDERS" for a "wrist support for [a]
computer operator."1

1 Ser. No. 75/344,519, filed on August 21, 1997, which alleges dates
of first use of November 21, 1996.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/344,519
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground
that applicant's mark, when applied to his goods, so resembles
the mark "HANDGLIDER," which is registered for "wrist support
pads for use with computer keyboards,"2 as to be likely to
cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed,3 but
an oral hearing was not requested. We affirm the refusal to
register.

2 Reg. No. 1,897,407, issued on June 6, 1995, which sets forth dates
of first use of September 2, 1992.
3 Applicant, with his main brief, has attached as an exhibit a
listing of information from a commercial database concerning 41
third-party registrations for marks which consist of or include the
word "GLIDER" or its plural. Applicant asserts, in view thereof,
that "[t]he 'glider' portion of the mark HANDGLIDER is not entitled
to a broad scope of protection because it is in a crowded market
since the word 'glider' is very commonly used in composite
trademarks." The Examining Attorney, in his brief, has properly
objected to consideration of such evidence as untimely under
Trademark Rule 2.142(d). Moreover, and even if applicant had
utilized the correct procedure for making third-party registrations
of record, see, e.g., In re Consolidated Cigar Corp., 35 USPQ2d 1290,
1292 (TTAB 1995) at n. 3, it is settled that third-party
registrations are not evidence that the marks which are the subjects
thereof are in use and that consumers have learned to distinguish
such marks on the basis of the differences therein. See, e.g., In re
Hub Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983). Finally, and
in any event, even if we were to consider such evidence as properly
constituting part of the record in this case, none of the third-party
registrations is for goods in the computer field. Thus, it simply
could not be said that the marks at issue herein coexist in a
marketplace of similar "GLIDER"-based marks and should be given only
a narrow scope of protection.
Ser. No. 75/344,519
3
Turning first to consideration of the respective
goods, there is no real question but that, in legal
contemplation, applicant's goods and registrant's goods are
identical. While applicant asserts that his "wrist support
for [a] computer operator" is composed of three separate
devices while registrant's "wrist support pads for use with
computer keyboards" are single-piece devices, the fact remains
that both products are wrist supports for computer keyboard
users. Such goods would be sold through the same channels of
trade, such as computer stores or by mail-order, to the same
classes of purchasers, including ordinary consumers as well as
business customers. Clearly, if the respective goods were to
be marketed under identical or similar marks, confusion as to
the source or sponsorship thereof would be likely to occur,
particularly since such goods appear to be relatively
inexpensive items which consequently would tend to be
purchased without a great deal of care as to the maker of the
product.
Turning, therefore, to the real issue in this
appeal, which is the similarity or dissimilarity of the
respective marks when considered in their entireties,
applicant contends that there is no likelihood of confusion as
to origin or affiliation because:
[T]he marks in this matter are
compound word marks that share in common
Ser. No. 75/344,519
4
one word which is highly suggestive of the
nature of the goods to which the marks are
applied. The word "glider" suggests that
each product facilitates a gliding
movement. In the final office action, the
Examining Attorney did not dispute the fact
that the "glider" portion of the marks is
highly suggestive and therefore not
entitled to a broad scope of protection.
However, the words "wrist" and "hand"
suggest different things. While both are
parts of the human anatomy, they are not
the same part and are not used
interchangeably to describe or suggest the
same part of the human anatomy. In the
final office action, the Examining Attorney
makes the point very strongly that a wrist
and hand "are closely related
physiologically, one being the terminus of
the other." Due to this relationship, the
Examining Attorney concludes that they are
interchangeable and should be treated as
equivalents for purposes of likelihood of
confusion analysis. In making this
conclusion the Examining Attorney is in
error.
Simply because the marks suggest
similar or competing goods (as the
Examining Attorney has argued) does not
necessarily mean that the marks make the
same commercial impression. By virtue of
the differences between the marks, i.e.
wrist and hand, a typical consumer will
have the impression that the goods are
competing and that the manufacturer has
simply chosen a different solution to a
similar problem.
Applicant consequently concludes that "the marks WRISTGLIDERS
and HANDGLIDER do not have the same connotation or commercial
impression."
Ser. No. 75/344,519
5
In addition, applicant maintains that "just because
the words 'wrist' and 'hand' may be deemed merely descriptive
by the Examining Attorney does not mean that they cannot
provide the basis of concluding that two marks are not
confusingly similar." Specifically, applicant argues that:
"[E]ven if the Examining Attorney
deems the words "wrist" and "hand" to be
merely descriptive of the underlying goods,
they do create a significantly different
commercial impression. As indicated above,
the mark WRISTGLIDERS suggests that the
manufacturer has solved the problem of
providing support to computer operators by
using two or more devices (thus "gilders"
[sic]) to support the wrist. On the other
hand, a consumer will recognize that the
HANDGLIDER manufacturer has chosen to solve
the problem of providing support to
computer operators by using one device
(thus "glider") to support the hand. Even
though the Examining Attorney has deemed
"wrist" and "hand" to be merely
descriptive, the mark[s] WRISTGLIDERS and
HANDGLIDER do ... create sufficiently
different commercial impressions such that
confusion is not likely.
Furthermore, the words "wrist" and
"hand" have significantly different
appearance. In fact the words "wrist" and
"hand" do not have one letter in common.
Since these significantly different words
appear at the beginning of their respective
marks, it is extremely unlikely that the
appearance of the mark WRISTGLIDERS will be
confused with HANDGLIDER.
Furthermore, the pronunciation of the
word "wrist" is completely different from
the pronunciation of the word "hand." In
fact, as the words do not share any common
letters[,] they do not share any common
sounds. Therefore, since these differently
Ser. No. 75/344,519
6
pronounced words appear at the beginning of
their respective marks, it is extremely
unlikely that the sound or pronunciation of
the mark WRISTGLIDERS will be confused with
that of HANDGLIDER.
The Examining Attorney, on the other hand, contends
that the respective marks "consist of an arbitrary term
combined with two different, yet related descriptive terms."
In particular, the Examining Attorney insists that, with
respect to wrist supports for computer keyboard users, there
is nothing in the record to show that the word "glider" is
"commonly used in the industry to describe the aforesaid
goods." In consequence thereof, the Examining Attorney
maintains that "the mark HANDGLIDER is unique and therefore
warrants a broader scope of protection." Moreover, as to the
fact that the word "glider" is in the singular in such mark
while it is in the plural in applicant's "WRISTGLIDERS" mark,
the Examining Attorney takes the position that such fact is
insufficient to distinguish the marks at issue, citing In re
Pix of America, Inc., 225 USPQ 691, 692 (TTAB 1985).4

4 In pertinent part, the Board stated therein that (footnote
omitted): "As for the marks [NEWPORTS for women's shoes and NEWPORT
for outer shirts,] except for the pluralization of applicant's
mark[,] which is almost totally insignificant in terms of the
likelihood of confusion of purchasers, the marks are essentially
identical in sound, appearance and commercial impression."
Ser. No. 75/344,519
7
In view thereof, and relying on various dictionary
definitions of the words "hand" and "wrist"5 as well as the
specimens of use submitted by applicant, the Examining
Attorney urges that the contemporaneous use of the marks
"WRISTGLIDERS" and "HANDGLIDER" for wrist supports for
computer keyboard users is likely to cause confusion as to
source or sponsorship because (footnote omitted):
The terms HAND and WRIST both identify
the body parts with which the goods are to
be used. Furthermore, the "hand" and
"wrist" are closely related
physiologically, one being the terminus for
the other. The applicant's specimens
reflect the intimate relationship between
these body parts, instructing the user of
its WRISTGLIDERS to "1) Find your Pisiform
[pie-zeh-form] bone on the heel of your
hand. 2) Rest your Pisiform bone (not the

5 The definitions of record from Webster's II New Riverside
University Dictionary in relevant part define "hand" as "1. a. The
terminal part of the human arm below the wrist, including the palm,
four fingers, and an opposable thumb and used for grasping and
holding" and "wrist" as "1. a. The junction between the hand and
forearm." As requested by the Examining Attorney in his brief, we
also judicially notice that The American Heritage Dictionary of the
English Language (3rd ed. 1992) similarly defines "hand" in pertinent
part as "1. a. The terminal part of the human arm located below the
forearm, used for grasping and holding and consisting of the wrist,
palm, four fingers, and an opposable thumb." In addition, we
judicially notice that, as shown by the excerpt attached to
applicant's reply brief, Merriam Webster's Collegiate Dictionary
lists "wrist" as meaning in relevant part "1 : the joint or the
region of the joint between the human and the arm or a corresponding
part on a lower animal." It is settled that the Board may properly
take judicial notice of dictionary definitions. See, e.g., Hancock
v. American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ
330, 332 (CCPA 1953) and University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 75/344,519
8
centers of your wrist) on your Wrist
Gliders." Thus it appears that the
applicant's WRISTGLIDERS support a portion
of the hand and not the wrist, as argued by
the applicant. The interchangeability of
the term "hand" and "wrist" in relation to
hand and wrist supports is also evident in
the registrant's identification of goods
which states that its HANDGLIDER mark is
used in conjunction with "wrist support
pads." Because the human hand and wrist
are connected and work in conjunction, the
terms are used interchangeably. When used
in connection with the term glider(s), the
marks create the same commercial
impression.
As a general proposition, our principal reviewing
court has noted that "[w]hen marks would appear on virtually
identical goods ..., the degree of similarity [of 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, 1701 (Fed. Cir. 1992),
cert. denied, 506 U.S. 1034 (1994). In the present case, we
are constrained to agree with the Examining Attorney that
applicant's use of the mark "WRISTGLIDERS" for wrist supports
for computer operators is likely to cause confusion with
registrant's use of the mark "HANDGLIDER" in connection with
such legally identical goods as wrist support pads for use
with computer keyboards. While the respective marks are
distinguishable on a side-by-side basis, the Examining
Attorney is correct in pointing out that such a comparison is
Ser. No. 75/344,519
9
not the proper test to be used in determining the issue of
likelihood of confusion since it is not the ordinary way that
consumers will be exposed to the marks. Rather, it is the
similarity of the general overall commercial impression
engendered by the marks which must determine, due to the
fallibility of memory and the consequent lack of perfect
recall, whether confusion as to source or sponsorship is
likely. The proper emphasis is thus on the recollection of
the average purchaser, who normally retains a general rather
that a specific impression of trademarks or service marks.
See, e.g., In re United Service Distributors, Inc., 229 USPQ
237, 239 (TTAB 1986); and In re Solar Energy Corp., 217 USPQ
743, 745 (TTAB 1983).
When considered in their entireties, it is readily
apparent that the marks "WRISTGLIDERS" and "HANDGLIDER" are
similar in sound and appearance, given the respective presence
of the words "GLIDERS" and "GLIDER" in the marks. Moreover,
contrary to applicant's argument, there is no material
difference, in a trademark sense, between the singular and the
plural form of a word.6 Wilson v. Delaunay, 245 F.2d 877, 114

6 The plural form of applicant's mark would appear to be reflective
of the fact, as asserted by applicant and confirmed by the specimens
of use, that applicant's goods include a pair of wrist supports, one
for each hand, while the singular form of registrant's mark would
seem to be indicative that its goods are sold in single unit
packaging. See, e.g., In re Pix of America, Inc., supra at n. 4
["For example, the pluralization here might be thought to reflect the
Ser. No. 75/344,519
10
USPQ 339, 341 (CCPA 1957). Consequently, and while we agree
with applicant that the words "WRIST" and "HAND" in the
abstract are not "interchangeable" in meaning, they are
similar enough, when respectively used in combination with the
words "GLIDERS" and "GLIDER," as to result in marks which
engender substantially similar overall commercial impressions.
See, e.g., Bill Rivers Trailers, Inc. v. Thermo King Corp.,
478 F.2d 1243, 177 USPQ 764, 765 (CCPA 1973) [mark "ZERO KING"
for transport refrigeration equipment likely to cause
confusion with similar mark "THERMO KING" for transport
refrigeration equipment]; Aktiebolaget Electrolux v. Armatron
International Inc., 999 F.2d 1, 27 USPQ2d 1460, 1463 (1st Cir.
1993) [mark "LEAF EATER" for leaf shredder is likely to cause
confusion with mark "WEED EATER" for leaf
blower/shredder/vacuum]; and Masterpiece of Pennsylvania, Inc.
v. Consolidated Novelty Co., Inc., 186 USPQ 134, 137 (S.D.N.Y.
1975) [mark "ALPINE KING" for artificial Christmas trees
likely to cause confusion with similar mark "MOUNTAIN KING"
for artificial Christmas trees].
In particular, the marks "WRISTGLIDERS" and
"HANDGLIDER" are not only structurally similar, in that the
suggestive terms "GLIDERS" and "GLIDER" respectively follow

fact that shoes are always sold in pairs, whereas outer shirts are
not. See, e.g., Mushroom Makers Inc. v. R.G. Barry Corp., 580 F.2d
Ser. No. 75/344,519
11
the words "WRIST" and "HAND," but such words, even if the
former is not strictly viewed as part of the latter, are
nevertheless so related in everyday experience, in that the
human hand and wrist physiologically are interconnected and
work in conjunction, that the respective marks as a whole
engender substantially similar commercial impressions when
used in connection with wrist supports for computer keyboards.
Both applicant's goods and registrant's goods are in essence
designed to rest or support a computer operator's wrists while
allowing the hands to move freely or "glide" over a computer
keyboard, thereby preventing or relieving the painful
condition of carpal tunnel syndrome caused by repetitive
keystrokes. Given the normal fallibility of human memory and
the consequent lack of perfect recall, purchasers and
prospective customers seeking to protect their hands and
wrists while using computer keyboards would be likely to
believe, in light of the substantial similarity in the
commercial impression of the respective marks, that
applicant's and registrant's goods have the same origin or are
affiliated with or sponsored by the same source. Furthermore,
even if consumers were to be cognizant of the differences
between applicant's "WRISTGLIDERS" mark for his wrist supports
for computer operators and registrant's "HANDGLIDER" mark for

44, 199 USPQ 65, 67 (2d Cir. 1978) [MUSHROOM for misses' sportswear
Ser. No. 75/344,519
12
wrist support pads for use with computer keyboards, it is
still the case that they could reasonably believe, albeit
erroneously, that the former constitutes a new product line
from the makers of the latter or vice versa.
Decision: The refusal under Section 2(d) is
affirmed.
E. W. Hanak
G. D. Hohein
B. A. Chapman
Administrative Trademark
Judges,
Trademark Trial and Appeal
Board

and MUSHROOMS for slippers, shoes and sandals.]"].