LLC Concepts, L.P.

Trademark Trial and Appeal Board

Jan 13, 2006

No. 78288524 (T.T.A.B. Jan. 13, 2006)

Mailed:
January 13, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re LLC Concepts, L.P.
________

Serial No. 78288524
_______

Lisa H. Meyerhoff of Baker & McKenzie for LLC Concepts,
L.P.

Susan Leslie DuBois, Trademark Examining Attorney, Law
Office 111 (Craig D. Taylor, Managing Attorney).
_______

Before Hohein, Rogers and Walsh, Administrative Trademark
Judges.

Opinion by Walsh, Administrative Trademark Judge:

On August 18, 2003, LLC Concepts, L.P. (applicant),
applied to register LEGACY LEARNING CENTER, in standard-
character form, on the Principal Register for “child care
and pre-school centers; day care services” in International
Class 43. Applicant asserted both first use anywhere and
first use of the mark in commerce on May 1, 2002.
Applicant has disclaimed “LEARNING CENTER.”
The examining attorney refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 78288524
2
based on a likelihood of confusion with the marks in two
prior active registrations, both owned by Legacy Academy,
Inc., a Georgia corporation:
(1) Reg. No. 2277846, issued September 14, 1999, on
the Principal Register, for the mark LEGACY
ACADEMY FOR CHILDREN, in standard-character form,
for “child care services” claiming both first use
anywhere and first use in commerce in May of 1997
with a disclaimer of “ACADEMY FOR CHILDREN”; the
registrant has filed affidavits under Sections 8
and 15 of the Trademark Act and the USPTO has
accepted and acknowledged those filings
respectively; and

(2) Reg. No. 2686283, issued February 11, 2003, on
the Principal Register, for the mark LEGACY
ACADEMY FOR CHILDREN, as shown below, for “child
care services” claiming both first use anywhere
and first use in commerce in March of 2000 with a
disclaimer of “ACADEMY FOR CHILDREN.”

Applicant responded to the refusal; the examining attorney
made the refusal final; and applicant filed this appeal.
For the reasons indicated below, we affirm. Applicant did
not request a hearing.
Section 2(d) of the Act precludes registration of an
applicant’s mark “which so resembles a mark registered in
the Patent and Trademark Office . . . as to be likely,
Ser No. 78288524
3
when used on or in connection with the goods of the
applicant, to cause confusion . . .” Id. The opinion in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1977) sets forth the factors we must
consider in determining likelihood of confusion when
evidence relevant to a factor is of record. Here, as is
often the case, the crucial factors are the similarity of
the marks and the similarity of the services of the
applicant and registrant. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976)(“The fundamental inquiry mandated by Section 2(d)
goes to the cumulative effect of differences in the
essential characteristics of the goods [or services] and
differences in the marks.”). Below we will discuss all
factors as to which applicant or the examining attorney
argued or presented evidence.
Comparison of the Services
Applicant has not argued that its services differ from
those of the registrant. We must consider the services as
identified in the application and registration. CBS Inc.
v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir.
1983); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB
1991). Both the application and the cited registrations
include “child care” services without any restrictions as
Ser No. 78288524
4
to trade channels. Accordingly, we conclude that the
services of the applicant and registrant and that the trade
channels for those services are, at least in part,
identical.
Furthermore, we note that, “the degree of similarity
[between the marks] necessary to support the conclusion of
likely confusion declines” when the goods or services are
identical. 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 (1992).
The Marks
Applicant argues generally that the marks differ when
viewed in their entireties. More specifically applicant
argues that its mark, LEGACY LEARNING CENTER, employs
alliteration which results in the first two words in the
mark, both beginning with “L,” becoming dominant. The
examining attorney argues principally that “LEGACY” is the
only distinctive word element and the dominant element in
applicant’s mark and the cited marks, and therefore, that
the marks are confusingly similar.
To determine whether the marks are confusingly
similar, we must consider the appearance, sound,
connotation and commercial impression of each mark. Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee
Ser No. 78288524
5
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005).
We conclude that LEGACY is the only distinctive word
element in both applicant’s mark and the cited registered
marks. Applicant has disclaimed the remainder of the
wording in its mark, that is, “LEARNING CENTER,” and
registrant has disclaimed the remainder of the wording in
its marks, that is, ”ACADEMY FOR CHILDREN.” Most
importantly, in each instance the disclaimed wording
appears to be highly descriptive, if not generic. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).
Applicant has argued that “LEGACY LEARNING” is the
dominant element in its mark due to the alleged
alliteration in this combination. Applicant has offered no
evidence in support of its contention that the letter
pattern would dictate perception of its mark in such a way.
Cf. Safe-T Pacific Co. v. Nabisco, Co., 204 USPQ 307, 315-
317 (TTAB 1979)(“KRAZY GLAZY” for toaster pastries held not
likely to be confused with “CRAZY” for ice cream cups and
cones). In viewing the entire mark we conclude that any
alliteration which may be present is insufficient to alter
the conclusion that “LEGACY,” the only distinctive word
Ser No. 78288524
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element, is the dominant element in applicant’s mark.
“LEGACY” is also the dominant element in both cited marks.
For completeness we note that one of the cited marks
includes an apple design. This design element does nothing
to diminish the dominance of “LEGACY” in the cited mark.
In re Dixie Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1534 (Fed. Cir. 1997). Likewise, applicant’s
arguments that there are differences in the number of
syllables and differences in the appearance and sound of
the marks are unpersuasive. These differences are
superficial and insufficient to distinguish applicant’s
mark from the cited marks, again because “LEGACY” is the
dominant element in the marks of both applicant and
registrant.
Applicant most strenuously criticizes the examining
attorney for allegedly failing “to consider the composite
marks as a whole.”1 As the Court of Appeals for the Federal
Circuit observed in National Data, “. . . in articulating
reasons for reaching a conclusion on the issue of
confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a

1 Applicant has also correctly criticized the examining attorney
for speculating as to how parents may use abbreviated versions of
the cited marks to refer to registrant. We have not engaged in
any such speculation in our consideration of this case.

Ser No. 78288524
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particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.” In re National Data Corp., 224 USPQ at 751.
Accordingly, we have considered the marks in their
entireties and conclude that “LEGACY” is the dominant word
element in each mark. In re Sunmarks Inc., 32 USPQ2d 1470,
1472 (TTAB 1994). We conclude further that the marks are
highly similar in appearance, sound, connotation and
commercial impression because they share the same dominant
word element.
Strength of the Cited Marks
Applicant also presents a closely related argument,
namely, that “LEGACY,” the common element among the marks,
is suggestive, and as such, entitled to a narrow scope of
protection. In support of its contention, applicant
provides a dictionary definition of “LEGACY” and records of
third-party registrations for marks which include “LEGACY.”
Applicant’s dictionary definition of “legacy” is from the
online version of The American Heritage Dictionary of the
English Language (Fourth Ed. 2000): “something handed down
Ser No. 78288524
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from an ancestor or a predecessor or from the past.”2
The examining attorney disputes the characterization
of “LEGACY” as either suggestive or weak. The examining
attorney has also provided dictionary definitions from the
online version of The American Heritage Dictionary of the
English Language (Third Ed. 1992), to support her argument
that “LEGACY” is not suggestive, including the exact
definition applicant provided as well as the following:
“money or property bequeathed to another by will.”3 We
agree with applicant on the fundamental point that “LEGACY”
is suggestive of child care services, at least to some
degree. We find credible applicant’s argument that
“LEGACY,” “. . . is used to communicate something passed
on from generation to generation through society, family
and other sources,” and the implied argument that it would,
therefore, suggest something about child care services. On
the other hand, we reject applicant’s characterization of
“LEGACY” as a term adopted by “businesses and individuals .
. . to convey to consumers the nature and quality of the

2 We take judicial notice of this dictionary definition pursuant
to In re Total Quality Group Inc., 51 USPQ 1474, 1476 (TTAB 1999)
because the definition appears to be from an online version of a
dictionary which is also available in printed form.
3 Id. The examining attorney appears to have provided a
definition from a different edition of the same online/printed
dictionary as applicant.

Ser No. 78288524
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business’s goods and services.” Here applicant implies
that “LEGACY” may be merely descriptive. We emphasize that
“LEGACY” is not merely descriptive of child care services
which are at issue here. On the basis of the dictionary
definitions and other evidence of record we conclude that
“LEGACY” is somewhat suggestive, but not highly suggestive
of the involved services.
Applicant has provided, and relies on, a number of
third-party registrations for marks which include “LEGACY”
also in support of its attempt to establish that “LEGACY”
is suggestive and weak as applied to registrant’s services.
Applicant emphasizes one third-party registration, in
particular, stating, “For example, THE PERFECT BEGINNING
FOR YOUR LEGACY covers services identical to the cited
marks, child care services (Ex. 2).” The registration for
THE PERFECT BEGINNING FOR YOUR LEGACY, Reg. No. 2777705,
covers “child care services.” In fact, it is the only
third-party registration of record which does cover child
care services. The registration is owned by Legacy
Academy, Inc., a Georgia corporation. As noted above, the
record also indicates that Legacy Academy, Inc., a Georgia
corporation, is the owner of both cited registrations.
Thus, the record appears to indicate that this alleged
“third-party” registration is another registration owned by
Ser No. 78288524
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the owner of the cited registrations. Accordingly, on this
record we decline to recognize it as a third-party
registration.
The remainder of the registrations of record cover
goods and services other than child care services and are
less relevant.4 For example, several cover educational
services for children:
Reg. No. 2578641 for LEARNING IS OUR LEGACY for
“educational services, namely, providing courses of
instruction at the primary and secondary levels”;

Reg. No. 2519523 for CREATING A LEGACY OF LITERACY for
“educational services, namely, providing incentives to
children to encourage reading”; and

Reg. No. 2774467 for LEGACY MINISTRIES INTERNATIONAL
for “educational services, namely, providing courses
at the primary and secondary level.”

Others involve products, such as, software and books, or
services, such as, tax and estate planning services, or
educational services in particular fields, such as,
religion, management and leadership, or estate planning.
In sum, the third-party registrations do not indicate that

4 Applicant includes App. No. 76596506 for PAUAHI’S LEGACY LIVES
A CONTNUING COMMITMENT (and design) for “educational services,
namely, educational services, namely, providing courses of
instruction at the preschool, kindergarten, primary and secondary
levels.” We have not given any consideration to this record
because the mark is not registered. Glamorene Prods. Corp. v.
Earl Grissmer Co., Inc., 203 USPQ 1090, 1092 n. 5 (TTAB 1979).

Ser No. 78288524
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the cited “LEGACY” marks are weak marks for child care
services.
Overall, we conclude that, on this record, the cited
“LEGACY” marks are not weak and are entitled to the degree
of protection we would accord to any duly registered mark
which is no more than suggestive of the goods. In re
Melville Corp., 18 USPQ2d at 1389. See also In re Rexel,
Inc., 223 USPQ 830, 832 (TTAB 1984). Furthermore, the
registration of marks in prior applications does not bind
us here. In re Nett Designs, Inc., 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001).
The Purchasers
Under the heading “Sophistication of Applicant’s
Customers,” applicant argues:
It is widely known that child care services are one of
the most expensive costs that the average American
family incurs. The cost of child care can be
thousands of dollars per year, and even thousands of
dollars each month, depending on the quality and
reputation of the particular facility. Child care is
therefore not an impulse purchase made in haste.
Rather, the purchase of child care requires much
thought and deliberation, as the services affect the
most important thing to parents – their children.

Applicant refers to the “average American family” in its
discussion of the issue. In the absence of any evidence to
the contrary we conclude that the child care services at
issue here could be directed to a wide range of families
Ser No. 78288524
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and individuals in need of child care, including both
sophisticated and unsophisticated consumers. Cf.
Electronic Design & Sales, Inc. v. Electronic Data Systems
Corp., 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992).
On the other hand, we agree with applicant that child care
services, by their very nature, would generally not be
purchased on impulse but with relative care. On balance,
we conclude that this factor tends to enhance the
likelihood of confusion because the purchasers include
unsophisticated individuals.5 More importantly, in the
overall analysis in this case, this factor is considerably
less important than the comparison of the services, which
are identical, and the marks, which are highly similar.
Furthermore, even sophisticated consumers are not
necessarily knowledgeable in the field of trademarks, and
as such, are not immune from trademark confusion. In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983).
In conclusion, we have considered all evidence of
record in this case with respect to the du Pont factors and
determined that there is a likelihood of confusion among
consumers when LEGACY LEARNING CENTER and LEGACY ACADEMY

5 In addition, even sophisticated purchasers may be compelled by
circumstances to choose among child care options based on other
factors, for example, convenience of a location to a home or
workplace. Accordingly, we cannot assume any particular degree
of deliberation by prospective purchasers.
Ser No. 78288524
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FOR CHILDREN both are used in connection with child care
services, principally due to the fact that the services are
identical and the marks are highly similar.
Decision: The refusal to register applicant’s mark
under Section 2(d) of the Trademark Act is affirmed.