Mickelson

Trademark Trial and Appeal Board

Sep 25, 2007

No. 78666050 (T.T.A.B. Sep. 25, 2007)

Mailed: September 25, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Mickelson
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Serial No. 78666050
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Peter N. Jansson of Jansson, Shupe, Munger & Antaramian,
Ltd. for Scott D. Mickelson.

Laura A. Hammel, Trademark Examining Attorney, Law Office
116 (Michael W. Baird, Managing Attorney).
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Before Hairston, Walters, and Taylor, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Scott D. Mickelson (“applicant”) has filed an
application to register the mark NO MORE DRAMA (in standard
character form) for goods ultimately identified as
“clothing, namely sweat shirts, t-shirts and hats” in
International Class 25.1
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that

1 Serial No. 78666050, filed July 8, 2005, and alleging July 7,
2005 as the date of first use of the mark anywhere and in
commerce.
THIS OPINION IS NOT A
PRECEDENT OF
THE TTAB
Ser No. 78666050
2
applicant’s mark, when used on his identified goods, so
resembles the registered mark, shown below,

for “men’s and women’s clothing, namely, shirts, sweaters,
vests, shorts, pants, jackets, socks, and hats” in
International Class 25,2 as to be likely to cause confusion,
mistake or deception.
After the refusal was made final, applicant appealed
and requested reconsideration of the final refusal. On
February 6, 2007, the Examining Attorney denied the request
for reconsideration and the appeal was resumed. Applicant
and the examining attorney filed briefs. We affirm the
refusal to register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. duPont de Nemours & Co., 476 F.2d

2 Registration No. 2,499,023, issued October 16, 2001 (the “’023
Registration”).
Ser No. 78666050
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1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, 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).
Similarity of the Goods/Trade Channels/Class of Purchasers
Turning first to a consideration of the respective
goods, it is clear that applicant’s items of clothing are
identical in part (i.e., hats) and are otherwise closely
related to the items of clothing in the cited registration.
We note in this regard that applicant does not argue
otherwise. Further, it is apparent that both applicant and
registrant are marketing the kinds of wearing apparel which
would be sold to the same class of purchasers, namely
ordinary consumers, through the same channels of trade
(e.g., clothing stores, department stores, and mass
merchandisers).
Accordingly, the du Pont factors of similarity of
goods, channels of trade and class of purchasers strongly
favor a finding of likelihood of confusion.
Ser No. 78666050
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Similarity of the Marks
We next compare registrant’s NO DRAMA! and design mark
with applicant’s mark NO MORE DRAMA. In determining the
similarity or dissimilarity of the marks, we must consider
the marks in their entireties in terms of sound,
appearance, meaning and commercial impression. See du
Pont, supra. See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). 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
their entireties that confusion as to 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. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106 (TTAB 1975). Last, where, as in the
present case, the mark marks appear on, at least in part,
legally identical goods, the degree of similarity 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 (Fed. Cir. 1992).
The examining attorney argues that when the marks are
compared in their entireties, applicant’s mark is
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confusingly similar to the registered mark in sound,
appearance, meaning and overall commercial impression.
Applicant, on the other hand, contends that the
examining attorney did not consider the registered mark as
a whole, but rather improperly dissected the mark and
focused exclusively on the word portions NO and DRAMA.
Applicant particularly argues that the examining attorney
“discounted” the design and “ignored” the stylization in
registrant’s mark and that “the marks are sufficiently
distinguishable when compared in their entireties to
prevent a likelihood of confusion, especially (emphasis in
original) considering the design element of the [mark in
the] ‘023 registration.” We disagree.
Although, as applicant correctly notes, we must
compare the marks in their entireties, one feature of a
mark may be more significant than another, and it is not
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985) [“There is nothing improper in stating
that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the
ultimate conclusion rests on consideration of the marks in
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their entireties. Indeed, this type of analysis appears to
be unavoidable.”]
Applicant argues that the “distinctive” design element
of the registered mark is sufficient to distinguish its
mark, which has no design element, from the registered
mark. The argument is unpersuasive. Although applicant’s
mark contains no design element, we find that the design in
the registered mark, consisting of the universal
prohibition sign imposed over two dramatic masks, while
clearly noticeable, does not serve to distinguish the marks
in sound or appearance. The design simply reinforces the
meaning of the wording “NO DRAMA” in registrant’s mark.
Moreover, it is the wording NO DRAMA that would be
used by purchasers to call for registrant’s goods. Thus,
the wording would make a greater impression on purchasers
and is the portion that is more likely to be remembered as
the dominant and source-signifying portion of the
registered mark. In re Dakin’s Miniatures, Inc., 59 USPQ2d
1593 (TTAB 2001) (“words are normally accorded greater
weight because they would be used by purchasers to request
the goods”). See also, e.g., In re Appetito Provisions
Co., 3 USPQ2d 1553 (1987).
We also do not find the stylization of registrant’s
mark a distinguishing factor. Applicant seeks to register
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its mark in standard character format and, thus, applicant
could conceivably display its mark in any lettering style,
including that of the words NO DRAMA in registrant’s mark.
37 C.F.R. § 2.52(a); In re Pollio Dairy Products Corp., 8
USPQ2d 2012, 2015 (TTAB 1988) (when registering mark in
block letters, registrant remains free to change the
display of its mark at any time). Consequently,
applicant’s argument that the examining attorney “ignored”
the stylization of the registered mark is unpersuasive.
See e.g., Sunnen Products Co. v. Sunex Int’l Inc., 1 USPQ2d
1744 (TTAB 1987) (styling of letters is irrelevant to the
issue of confusion where applicant seeks to register mark
without any special form of lettering or design).
For these reasons, the literal portion of registrant’s
mark, namely the words NO DRAMA, is the dominant portion of
the mark.
The dominant portion of registrant’s mark, NO DRAMA,
is very similar to applicant’s mark NO MORE DRAMA.
Contrary to applicant’s assertion, we do not find the
addition of the word MORE sufficient to distinguish
applicant’s mark from the registrant’s mark. The word is
embedded between the words NO and DRAMA and, as pointed out
by the examining attorney, “in applicant’s mark, the word
“MORE” is used as an adjective that modifies the word
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“DRAMA.” The word “MORE” means “additional: indicates
something additional or further.”3 (Examining attorney’s
brief at p. 8). The word MORE merely modifies the word
DRAMA such that applicant’s mark is similar in meaning to
registrant’s mark, the marks respectively meaning “no
additional drama” and “no drama.” Simply put, the word
MORE has little impact visually or in meaning.
While differences admittedly exist between the
respective marks, we find that in their entireties, the
marks are not only substantially similar in appearance due
to the shared phrase NO DRAMA but, in light thereof, they
are substantially similar in commercial impression. Thus,
the factor of similarity of the marks favors a finding of
likelihood of confusion.
Conclusion
We conclude that purchasers familiar with registrant’s
clothing items, especially hats, sold under the mark NO
DRAMA! (and design) would be likely to believe, upon
encountering applicant’s mark NO MORE DRAMA for clothing
items, including hats, that the goods originate from or are
associated with or sponsored by the same source.

3 The examining attorney cites to a definition from the Encarta
World English Dictionary found online at www.encarta.msn.com and
submitted with the August 2, 2006 Office action.
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Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.