Key Holdings, LLC

Trademark Trial and Appeal Board

Mar 27, 2008

No. 78801223 (T.T.A.B. Mar. 27, 2008)

Mailed:
March 27, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Key Holdings, LLC
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Serial No. 78801223
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Jeffrey D. Myers of Peacock Myers, P.C. for Key Holdings,
LLC.

Laura A. Hammel, Trademark Examining Attorney, Law Office
116 (Michael W. Baird, Managing Attorney).
_______

Before Hairston, Grendel and Zervas, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

Key Holdings, LLC (“applicant”) has filed, on January
27, 2006, an application to register on the Principal
Register the mark AIRPORT PARK-A-POOCH (in standard
character form) for “kennel services” in International
Class 43. The application is based on a bona fide intent
to use the mark in commerce under Trademark Act Section
1(b), 15 U.S.C. §1051(b). Applicant has disclaimed the
word AIRPORT.
THIS OPINION IS
NOT A PRECEDENT
OF THE T.T.A.B.
Ser No. 78801223
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 used in connection with
its services, so resembles the previously registered mark
PARK-A-PET (in typed form) for “pet daycare services” in
International Class 42 as to be likely to cause confusion,
or to cause mistake or to deceive.1
Applicant has appealed the final refusal. Both
applicant and the examining attorney have filed briefs. We
affirm the refusal to register.
Before considering the merits of the refusal, we
address the examining attorney’s objection to applicant's
submission of evidence with its brief. The record in any
application should be complete prior to the filing of an
appeal. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d).
In view thereof, and because the examining attorney has
objected to applicant's late submission of this evidence,
the examining attorney’s objection is sustained and we have
not considered such evidence.2
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark

1 Registration No. 2886807, issued September 21, 2004.
2 Even if we had considered such evidence, our disposition of
this appeal would not be any different.
Ser No. 78801223
3
Act 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. See 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, 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). See
also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
We first consider the similarity or dissimilarity of
registrant's and applicant's services. Both applicant’s
and registrant’s services involve the care of pets,
including dogs. “Kennel” is defined in the definition of
record from Random House Unabridged Dictionary (2006) (at
dictionary.com) as “an establishment where dogs or cats are
… trained, or boarded.” Based on the definition of
“daycare” in the record from The American Heritage
Dictionary of the English Language (4th ed.) located on
dictionary.com,3 we construe “pet daycare services” as

3 “Daycare” is defined in The American Heritage Dictionary of the
English Language (4th ed.) as “provision of daytime training,
Ser No. 78801223
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providing daytime training, supervision and recreation for
pets, including dogs. The Internet evidence in the record
specifies that kennel services entail the overnight
boarding of dogs, and suggests that service providers
distinguish overnight boarding services from daycare
services. It also establishes that a single provider
offers both overnight boarding and daycare services. See
doggydayout.com, providing “Doggy Day Out is a dog daycare,
kennel (overnight boarding) and dog training facility …”;
bealuckydog.com (“[w]e provide a one stop shop, offering
boarding, daycare ….”); campbowwowusa.com (“[w]e provide
doggy day camp for clients wishing to drop their dogs off
in the morning and pick them up in the evening, as well as
overnight boarding for travelers. Overnight boarders play
in the day camp program during the day and have their own
individual cabins at night.”). Further, certain providers
who identify themselves as kennels provide both overnight
boarding and daycare for dogs. See bearbrookkennel.com
showing links to “Boarding” and “Day Care” and stating
“[s]ince 1995 we have operated a Doggy Daycare Monday to
Friday from 8am to 5pm”; seespotrunkennel.com showing links
to “Daycare” and “Overnight Boarding”; and roverkennels.com

supervision, recreation, and often medical services for children
of preschool age, for the disabled, or for the elderly.”
Ser No. 78801223
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listing “ROVER Kennels offers cage-free dog daycare,
overnight boarding for both dogs ….”
The examining attorney has also introduced several
use-based third-party registrations which list both kennel
services and pet daycare services. Third-party
registrations which individually cover a number of
different items and which are based on use in commerce may
have some probative value to the extent that they 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 (TTAB 1993). In light
of the foregoing, we find that the examining attorney has
established that the services are highly related, differing
minimally largely due to the temporal nature of the
services, and resolve the du Pont factor regarding the
similarity of the services against applicant.
With respect to the trade channels and the classes of
purchasers of the respective services, we presume in the
absence of any restrictions in the identifications of
services in the application and registration that
applicant's and registrant's services are marketed in the
same, overlapping trade channels to the same classes of
purchasers, namely pet owners and especially members of the
general public who own dogs. See In re Elbaum, 211 USPQ
Ser No. 78801223
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639 (TTAB 1981). The du Pont factors regarding trade
channels and classes of purchasers therefore weigh in favor
of a finding of likelihood of confusion.
We next consider the similarity or dissimilarity of
the marks. Specifically, we must determine whether
applicant's mark, AIRPORT PARK-A-POOCH and registrant's
mark PARK-A-PET, are similar or dissimilar when compared in
their entireties in terms of appearance, sound, connotation
and commercial impression. We do not consider whether the
marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar that confusion as to the source of the goods
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).
Applicant's mark is AIRPORT PARK-A-POOCH, and
applicant has disclaimed the term AIRPORT. When
considering marks for purposes of a likelihood of confusion
determination under Section 2(d) of the Trademark Act,
disclaimed matter is typically less significant or less
dominant when comparing marks. Although a disclaimed
portion of a mark certainly cannot be ignored, and the
Ser No. 78801223
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marks must be compared in their entireties, one feature of
a mark may be more significant in creating a commercial
impression. Dixie Restaurants, 41 USPQ2d at 1533-34; In re
National Data Corporation, 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985); and In re Appetito Provisions Co. Inc., 3
USPQ2d 1553 (TTAB 1987). Here, because applicant has
disclaimed the descriptive term AIRPORT that identifies
where applicant's services are provided, we find that the
dominant portion of applicant's mark which is more
significant in creating a commercial impression is PARK-A-
POOCH.
The dominant part of applicant's mark, PARK-A-POOCH,
and registrant’s mark, i.e., PARK-A-PET, have similar
overall meanings, i.e., to “park” or board one’s pet.
“Pooch” is defined as “a dog,” which, of course, is a pet.
See the Random House Unabridged Dictionary, supra,
definition of “pooch” in the record, obtained from
dictionary.com. Both marks use the expression PARK-A- to
refer to boarding of an animal, whether for the day or
longer. Because of this similarity in meaning, as well as
a similarity in construction with both marks beginning with
PARK-A- followed by a term beginning with the letter “P”
referring to an animal, we find that the marks are similar
in commercial impression. In so finding, we reject
Ser No. 78801223
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applicant's argument that the “word ‘AIRPORT’ in
Applicant's mark provides a connotation of traveling that
is not made in the mark ‘PARK-A-PET’.” Brief at p. 4.
AIRPORT in applicant's mark merely indicates where the
services are provided - at or near an airport. Further,
even if the mark includes a connotation of travel, this
connotation is not so significant in comparison to the
other similarities between the marks.
Turning next to the sound of the marks, we find that
the marks are similar in sound too. As noted by the
examining attorney, PARK-A-POOCH and PARK-A-PET, due to the
inclusion of two single syllable terms beginning with the
letter “P,” have a similar lilting cadence. Because of the
shared term PARK-A-, the appearance of the marks is also
similar.
Due to these similarities in the marks, we resolve the
du Pont factor regarding the similarity of the marks
against applicant.
Applicant has argued that “dog and pet owners who are
likely to use either service tend to be highly selective
and particular as to how their animals are treated”; that a
“consumer of either service cannot simply purchase the
service without making inquiries regarding the services”;
and that “the consumer of either service is sophisticated,
Ser No. 78801223
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or becomes sufficiently sophisticated, [and is] not to be
confused regarding the source of the services.” Brief at
pp. 6 – 7. Applicant has offered no evidentiary support
for its arguments and we hence find its arguments
unpersuasive. Rather, we are persuaded by that evidence of
record which bears on purchaser care, namely the
bealuckydog.com webpage which advertises pet boarding for
$28.00 per night and pet daycare services for $14.50 per
day. While we agree with the examining attorney that such
services are inexpensive, we disagree that purchases may be
made on impulse. Because both services involve the
boarding of family pets, we find that purchasers – who are
members of the general public who own pets - use ordinary
care in selecting their kennel or daycare services. The du
Pont factor regarding conditions under which purchases are
made is hence neutral.
Thus, on the basis of our findings discussed above, we
conclude that applicant's mark AIRPORT PARK-A-POOCH for
“kennel services” is likely to be confused with
registrant's mark PARK-A-PET for “pet daycare services.”
We have considered all of applicant’s arguments to the
contrary (including arguments not specifically addressed in
this opinion) but are not persuaded by them. To the extent
that any of its arguments raise a doubt about likelihood of
Ser No. 78801223
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confusion, that doubt is required to be resolved in favor
of the prior registrant. In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.