Lominger Limited, Inc.v.Maria C. Seddio

Trademark Trial and Appeal Board

Oct 24, 2008

No. 91176811 (T.T.A.B. Oct. 24, 2008)

Mailed:
October 23, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Lominger Limited, Inc.
v.
Maria C. Seddio
_____

Opposition No. 91176811
to application Serial No. 77040804
filed on November 9, 2006
_____

Erin C. Skold of Leonard, Street and Deinard for Lominger
Limited, Inc.

Bernard Lau, Esq. for Maria C. Seddio.1
______

Before Cataldo, Taylor and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Maria C. Seddio (“applicant”) filed an intent-to-use
application for the mark The Architecture of Talk, in
standard character format, for “consultation in the field of
human resources,” in Class 35.

1 We note that although applicant is represented by counsel, she
represented herself in her brief. However, because applicant has
not revoked her counsel’s power of attorney and instructed the
Board to send all correspondence to her, we must continue to send
all correspondence to Mr. Lau. Trademark Rule §2.18(a) and (b),
37 CFR §2.18(a) and (b). See also TBMP §§117.01 and 117.03 (2nd
ed. rev. 2004).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition Nos. 91176811
2
Lominger Limited, Inc. (“opposer”) filed a notice of
opposition against the registration of applicant’s
application on the ground of priority and likelihood of
confusion pursuant to Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d).2 Specifically, opposer alleged
ownership of a family of marks incorporating the word
“architect” for “training and consulting related products in
the human resources field”3 and that applicant’s mark is
likely to cause confusion with opposer’s “Architect” family
of marks.4
Applicant denied the essential allegations in the
notice of opposition.
The Record
By rule, the record includes applicant’s application
file and the pleadings. Trademark Rule 2.122(b), 37 CFR
§2.122(b). In addition, opposer introduced the trial
testimony deposition of Zoe Hruby, opposer’s director of

2 Opposer also alleged that applicant’s mark would dilute the
distinctive nature of opposer’s trademarks. However, because
opposer did not argue the issue of dilution in its brief, we
consider that claim to have been waived.
3 Notice of opposition, ¶3. Opposer also alleged priority of use
and likelihood of confusion with Registration Nos. 2887561 and
2887562 both for the mark TALKING TALENT for consulting services
in the field of human resources and educational services in the
field of human resources, respectively. In view of our decision
herein, we need not consider these marks.
4 Notice of opposition, ¶10. Opposer did not allege that
applicant’s mark would cause confusion with any specific mark;
rather, the claim of likelihood of confusion was limited to
opposer’s family of marks in their entirety.
Opposition Nos. 91176811
3
strategic alliances, with attached exhibits, and it filed a
notice of reliance on the following items:
1. Applicant’s responses to opposer’s interrogatory
Nos. 2, 5, 6, 7, 8, 9, 17, and 22;
2. Applicant’s responses to opposer’s requests for
admission Nos. 5, 6, and 9;
3. Applicant’s responses to opposer’s amended
requests for admission Nos. 1-4, 7, 8, 10-12, and 14; and,
4. Photocopies of opposer’s pleaded registrations.5
Applicant did not introduce any testimony or evidence.
Standing
Because opposer has properly made its pleaded
registrations of record through the testimony deposition of
Zoe Hruby, opposer has established its standing.6
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA
1982).

5 These registrations were not filed in compliance with Trademark
Rule 2.122(d)(2), 37 CFR §2.122(d)(2), because they were not
prepared by the U.S. Patent and Trademark Office showing both the
current status and current title to the registrations.
Accordingly, the registrations filed through the notice of
reliance have not been given any consideration. However, we note
that applicant properly made the registrations of record during
the testimony deposition of Zoe Hruby.
6 See the discussion in footnote 5.
Opposition Nos. 91176811
4
Priority

Applicant admitted that opposer established its
“Architect” family of marks prior to applicant’s rights in
its mark.7 Accordingly, priority is not at issue in this
proceeding.
Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the issue of likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003).
A. Whether opposer has a family of “Architect” marks.

Opposer claims a family of marks based on the surname
“Architect.” Applicant has admitted that opposer has a
family of “Architect” marks.8 Accordingly, we find that
opposer has a family of marks incorporating the word
“architect.”
B. Whether opposer’s “Architect” family of marks is
famous?

Opposer contends that its “Architect” family of marks
is famous because opposer is a leader in its field, well-

7 Applicant’s response to opposer’s request for admission No. 14.
8 Applicant’s response to opposer’s request for admission No. 4
(“Admit, to that Opposer has a family of marks containing the
common element ARCHITECT”).
Opposition Nos. 91176811
5
known in the market, and recognized by its “Architect”
family of marks.9 Opposer’s annual sales are roughly
between $22 and $25 million and are attributable to sales of
products under the “Architect” family of marks.10
This du Pont factor requires us to consider the fame of
opposer’s family of marks. Fame, if it exists, plays a
dominant role in the likelihood of confusion analysis
because famous marks enjoy a broad scope of protection or
exclusivity of use. A famous mark has extensive public
recognition and renown. Bose Corp. v. QSC Audio Products
Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002);
Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1897 (Fed. Cir. 2000); Kenner Parker Toys, Inc. v. Rose Art
Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed.
Cir. 1992).
Fame may be measured indirectly by the volume of sales
and advertising expenditures of the goods and services
identified by the marks at issue, “by the length of time
those indicia of commercial awareness have been evident,”
widespread critical assessments and notice by independent
sources of the products identified by the marks, as well as
the general reputation of the products and services. Bose
Corp. v. QSC Audio Products Inc., 63 USPQ2d at 1305-1306 and

9 Opposer’s Brief, pp. 4-5.
10 Hruby Dep., p. 49.
Opposition Nos. 91176811
6
1309. Although raw numbers of product sales and advertising
expenses may have sufficed in the past to prove fame of a
mark, raw numbers alone may be misleading. Some context in
which to place raw statistics may be necessary (e.g., the
substantiality of the sales or advertising figures for
comparable types of products or services). Bose Corp. v.
QSC Audio Products Inc., 63 USPQ2d at 1309.
Finally, because of the extreme deference that we
accord a famous mark in terms of the wide latitude of legal
protection it receives, and the dominant role fame plays in
the likelihood of confusion analysis, it is the duty of the
party asserting that its mark is famous to clearly prove it.
Blue Man Productions Inc. v. Tarmann, 75 USPQ2d 1811, 1819
(TTAB 2005).
The evidence of record falls far short of proving that
opposer’s “Architect” family of marks is famous. First,
opposer’s contention that it is a leader in the field and
well-known in the market is not supported by any evidence;
it is simply argument. Second, opposer’s contention that it
is known by its “Architect” family of marks is supported
only by the testimony of opposer’s employee.11 Opposer’s
testimony is not corroborated by any customers or

11 Hruby Dep., pp. 42-43 (“most of our clients actually knew us
more as the The Leadership Architects, as opposed to our actual
name of Lominger . . . it was such a familiar brand to our
clients, ‘Oh, you’re the Architect people,’ ‘Oh, you do the
Architecture stuff.’”).
Opposition Nos. 91176811
7
unsolicited media coverage. Accordingly, opposer’s claim
that it is known as the “Architect people” is not as
persuasive as it might have been. Finally, we do not have
any context in which to analyze opposer’s sales. For
example, there is no testimony regarding opposer’s market
share or the sales figures for comparable businesses, as
well as the fact that there is no evidence regarding
opposer’s advertising expenditures or the advertising
expenditures of comparable companies.
In view of the foregoing, there is not sufficient
evidence to find that consumers have been so exposed to
opposer’s “Architect” family of marks that it can be
considered famous.
C. The similarity or dissimilarity and nature of the goods
and services as described in the application and
registrations at issue.

The issue in an opposition is the right of the
applicant to register the mark for the services identified
in the application (i.e., consultation in the field of human
resources). Opposer provides an array of services and
products in the field of human resources and organizational
development.12 Also, it has registered, inter alia, the
following members of its “Architect” family of marks:
Reg. No. Mark Products

2899493 THE LEADERSHIP
ARCHITECTS
Consulting services in the
field of human resources

12 Hruby Dep., pp. 11-13, 38, 39, and 45.
Opposition Nos. 91176811
8
Reg. No. Mark Products

2238076
2398224
CHANGE!ABLE
ARCHITECT
Printed educational manuals and
computer software to evaluate
and implement management
performance action plans

2201618
2148391
CHOICES ARCHITECT Printed educational materials
and computer software to
evaluate leaning styles and
learning skills

2756993
2895367
INTERVIEW
ARCHITECT
Printed educational materials
and nonloadable computer
programs to evaluate and
improve recruiting, analyses
and evaluation skills, job
performance and job development

1825119
1967221
LEADERSHIP
ARCHITECT
Printed educational materials,
computer software and
multimedia electronic programs
to evaluate and improve job
performance, leadership skills
and leadership development

2155594
2077606
ORGANIZATION
ARCHITECT
Computer software and printed
materials for the evaluation
and implementation of
management performance action
plans

2180870 PERFORMANCE
MANAGEMENT
ARCHITECT
Computer software and
multimedia electronic programs
to evaluate performance of
employees and managers

2911373
2652521
SUCCESSION
ARCHITECT
Printed materials and computer
programs to evaluate leadership
and managerial aptitudes and
skills for developing and
implementing leadership
development and succession
plans

2509130
2600117
TEAM ARCHITECT Printed materials and computer
programs to evaluate and
improve job performance, career
skills, and career development
Opposition Nos. 91176811
9
Opposer has registered and applicant is seeking to
register their respective marks for consulting services in
the field of human resources and opposer’s products are
otherwise closely related to human resources services.
D. The similarity or dissimilarity of likely-to-continue
trade channels.

Because we have found that the parties’ services are
identical, and opposer’s products are closely related to
applicant’s services, we must presume that the channels of
trade and classes of purchasers are the same. Genesco Inc.
v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-
part (sic) identical and in-part (sic) related nature of the
parties’ goods, and the lack of any restrictions in the
identifications thereof as to trade channels and purchasers,
these clothing items could be offered and sold to the same
classes of purchasers through the same channels of trade”);
In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
(“Because the goods are legally identical, they must be
presumed to travel in the same channels of trade, and be
sold to the same class of purchasers”).
E. The similarity of the marks in their entireties in
terms of appearance, sound, meaning, and connotation.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
Opposition Nos. 91176811
10
de Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where, as here, the services are identical
and opposer’s products are closely related to applicant’s
services, the degree of similarity necessary to find
likelihood of confusion need not be as great as where there
is a recognizable disparity between the goods and services.
Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Real Estate
One, Inc. v. Real Estate 100 Enterprises Corporation, 212
USPQ 957, 959 (TTAB 1981); ECI Division of E-Systems, Inc.
v. Environmental Communications Incorporated, 207 USPQ 443,
449 (TTAB 1980).
In addition, in comparing the marks, we are mindful
that the test is not whether the marks can be distinguished
when subjected to a side-by-side comparison, but rather
whether the marks are sufficiently similar in terms of their
overall commercial impression so that confusion as to the
source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3
(CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
Opposition Nos. 91176811
11
USPQ 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general
rather than specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
Finally, because we have determined that opposer has a
family of marks incorporating the word “architect,”
specifically, a descriptive or suggestive word or term
followed by the word “architect,” the question is not
whether applicant’s mark is similar to opposer’s individual
marks, but whether applicant’s mark would be likely to be
viewed as a member of opposer’s “Architect” family of marks.
The Black & Decker Corporation v. Emerson Electric Co., 84
USPQ2d 1482, 1491 (TTAB 2007).
Applicant contends that consumers would not believe
that its mark The Architecture of Talk would be viewed as a
member of opposer’s family of “Architect” marks because
applicant uses the word “architecture,” not “architect,” and
because the word “architecture” in applicant’s mark is at
the beginning of the mark, not at the end of the mark as in
opposer’s family of marks.13

13 Applicant’s Brief, p. 7.
Opposition Nos. 91176811
12
While acknowledging that applicant’s mark is not
structured the same way as opposer’s “Architect” family of
marks, we nevertheless find that applicant’s mark The
Architecture of Talk is similar in appearance, sound,
meaning and commercial impression to opposer’s “Architect”
family of marks because the word “architecture” is similar
to the “architect” surname of opposer’s family of marks.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749,
751 (Fed. Cir. 1985) (“there is nothing improper in stating
that, for rational reasons, more or less weight have been
given to a particular feature of the mark”).
The words “architect” and “architecture” are arbitrary
when used in connection with human resources consulting
services and products, and thus they are entitled to a broad
scope of protection or exclusivity of use. The evidence of
record shows that opposer has used the word “architect” in
connection with its goods and services to point uniquely and
exclusively to opposer as the source of its “Architect”
human resources products and services.
The words “architect” and “architecture” look and sound
similar, and they also have related meanings. An
“architect” is “a person skilled in the art of building: a
professional student of architecture or one who makes it his
occupation to form plans and designs of and to draw up
specifications for buildings and to superintend their
Opposition Nos. 91176811
13
execution.”14 Likewise, “architecture” is defined as “the
art or science of building.”15 In other words, an architect
is one who practices architecture.
When the terms “architect” and “architecture” are used
as part of their respective marks, they create similar
commercial impressions (i.e., building something). For
example, in the case of opposer’s mark THE LEADERSHIP
ARCHITECTS, the commercial impression engendered by the mark
is people who build leadership. By the same token,
commercial impression engendered by applicant’s mark The
Architecture of Talk engenders the commercial impression of
building or structuring communication.
In view of the foregoing, when consumers encounter
human resources consulting services and products identified
by a family of marks incorporating the word “architect,” all
originating with opposer, it is more than likely that they
would expect human resources consulting services identified
by the mark The Architecture of Talk to have the same
source. Otherwise, the word “architect” in opposer’s marks
would have no trademark significance. Accordingly, we find
that applicant’s mark The Architecture of Talk is similar in

14 Webster’s Third International New Dictionary of the English
Language (Unabridged), p. 113 (1993). The Board may take
judicial notice of dictionary evidence. University of Notre Dame
du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
15 Id.
Opposition Nos. 91176811
14
appearance, sound, meaning, and commercial impression with
opposer’s “Architect” family of marks.
F. Balancing the factors.
Having concluded that opposer owns a family of marks
incorporating the word “architect” in the field of human
resources consulting services and products, and having found
that the services of the parties are identical and that
opposer’s products are closely related to applicant’s
services, as well as the presumption that the goods and
services move in the same channels of trade and are sold to
the same classes of consumers, we find that consumers would
believe that applicant’s mark The Architecture of Talk, if
used in connection with consulting services in the field of
human resources, would appear to many to be a member of
opposer’s “Architect” family of marks.
Decision: The opposition is sustained and
registration to applicant is refused.