Mosquito Systems, Ltd.

Trademark Trial and Appeal Board

Jan 16, 2008

No. 78628011 (T.T.A.B. Jan. 16, 2008)

Mailed:
16 January 2008
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Mosquito Systems, Ltd.
________

Serial No. 78628011
_______

John S. Egbert of Egbert Law Offices for Mosquito Systems,
Ltd.

Sara N. Thomas, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Drost, Kuhlke, and Walsh, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On May 11, 2005, applicant, Mosquito Systems, Ltd.,
applied under the intent to use provision of the Trademark
Act, to register the mark THE BUZZ STOPS HERE, in standard
character form, on the Principal Register for “pest control
services, mosquito control services” in Class 37. Serial
No. 78628011. Applicant subsequently amended its
identification of services and deleted the term “pest
control services.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78628011
2
The examining attorney has refused to register
applicant’s mark on the ground that it is confusingly
similar under Section 2(d) of the Trademark Act (15 U.S.C.
§ 1052(d)) to the mark THE BUG STOPS HERE (in typed or
standard form) for “pest control services” in Class 37.1
The registration contains a disclaimer of the term “Bug.”
The examining attorney’s position is that the marks
are nearly identical and that both “marks are a play on the
phrase THE BUCK STOPS HERE.” Brief at unnumbered p. 6.
Regarding the services, the examining attorney maintains
that since “the mosquito is ‘an organism that is damaging
to livestock, crops, humans, or land fertility,’ it is
properly classified as a pest, and therefore, applicant’s
specific ‘mosquito control services’ are encompassed by the
more broadly specified ‘pest control services’ provided by
the registrant.” Brief at unnumbered p. 8. Furthermore,
“businesses often provide mosquito control services as one
of the types of pest control services that they provide.”
Brief at unnumbered p. 9.
Applicant, on the other hand, argues that the
“substitution of the terms ‘BUG’ and ‘BUZZ’, - when viewing
the marks as a whole – as well as the strikingly different

1 Registration No. 1089424, issued April 11, 1978, second
renewal.
Ser No. 78628011
3
terms substituted results in the production of a visual
difference that makes the marks dissimilar in appearance.”
Brief at 4. Regarding the services, applicant maintains
that:
The services provided by both Applicant and Registrant
are narrow and only apply to the above-mentioned
services. Mosquito control services of Applicant are
different services than those offered by the cited
Registrant. Pest control services cover the abatement
of many, but do not necessarily include mosquito
control services. Indeed, most pest control services
involve the abatement of pests that inhabit the
interior of one’s residence or place of business.
Unlike pest control services, mosquito abatement
services generally involve attacking mosquitoes which
remain outside of one’s residence or place of
business… Additionally, mosquito reduction services
are primarily a commercial venture often utilized by
local governments and businesses.

Brief at 2-3.
After the examining attorney made the refusal final,
this appeal and a request for reconsideration followed.
In likelihood of confusion cases, when we consider the
evidence of record, we view it in relation to the relevant
factors set out in 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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003) and Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000). In
considering the evidence of record on these factors, we
must keep in mind that “[t]he fundamental inquiry mandated
Ser No. 78628011
4
by § 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods [or services]
and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
We will begin our analysis with the first du Pont
factor. Here, we consider the similarities and
dissimilarities of applicant’s and registrant’s marks in
sound, appearance, meaning, and commercial impression in
their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). Both marks in this case are
displayed in typed or standard character form so there is
no difference in the marks as a result of any stylization
or design. The marks, THE BUG STOPS HERE and THE BUZZ
STOPS HERE, are identical in part because they consist of
the same three words “The ___ STOPS HERE.” The second
words are BUG and BUZZ. These words are also similar
inasmuch as they are single syllable words that begin with
the letters “BU-.” However, they are different because
their final letter(s), “G” and “ZZ,” result in the
formation of different English words, BUG and BUZZ.
Despite this difference, we find that the marks are
very similar in sound and appearance. The marks THE BUG
Ser No. 78628011
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STOPS HERE and THE BUZZ STOPS HERE appear very similar and
the difference between BUG and BUZZ may not even be noticed
by some purchasers. The marks in their entireties would
also be pronounced very similarly because they are
identical except for the ending sound of the second word.
Their meanings would also be similar because they are
likely to remind many purchasers of the expression that was
popularized by the sign on President Truman’s desk that
read “The Buck Stops Here.” See Final Office Action, “The
Phrase Finder” attachment. These marks would likely be
recognized as takeoffs of this expression. Finally,
regarding their commercial impressions, THE BUG STOPS HERE
and THE BUZZ STOPS HERE marks are likewise similar. The
word “Bug” in relation to pest control services and “Buzz”
in relation to mosquito control services suggest a
relationship between the marks as applicant argues “the
mosquito is known for its buzzing sound.” Brief at 7.
While “Buzz” can have other meanings, purchasers of
mosquito control services are likely to believe that
registrant’s “Bug” pest control services are directed to
the more general pest control while the “Buzz” services are
directed to the more specific mosquito control services and
that these services are from the same entity. We conclude
that the marks here, when viewed in their entireties, are
Ser No. 78628011
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more similar than they are different. See In re Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946
(Fed. Cir. 2004) (“With respect to JOSE, the Board
correctly observed that the term simply reinforces the
impression that GASPAR is an individual’s name. Thus, in
accord with considerable case law, the JOSE term does not
alter the commercial impression of the mark.” The marks
JOSE GASPAR GOLD and GASPAR’S ALE were determined to be
similar); Chemical Corporation of America v. Anheuser-
Busch, Inc., 306 F.2d 433, 134 USPQ 524 (5th Cir. 1962)
(Defendant’s use of the slogan WHERE THERE’S LIFE … THERE’S
BUGS enjoined in view of plaintiff’s slogan WHERE THERE’S
LIFE … THERE’S BUD).
Next, we consider whether applicant’s and registrant’s
services are related.
It is a well settled principle of trademark law that
it is not necessary that the goods [or services] of
the parties be similar or competitive, or even that
they move in the same channels of trade to support a
holding of likelihood of confusion. It is sufficient
for purposes herein that the respective goods [or
services] of the parties are related in some manner,
and/or that the conditions and activities surrounding
the marketing of the goods are such that they would or
could be encountered by the same persons under
circumstances that could because of the similarity of
the marks used therewith, give rise to the mistaken
belief that they originate from or are in some way
associated with the same producer.

Ser No. 78628011
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In re International Telephone & Telegraph Corp., 197 USPQ
910, 911 (TTAB 1978).
Applicant’s services are mosquito control services;
registrant’s services are pest control services. With her
final Office action, the examining attorney submitted a
definition of a “pest” as “an organism that is damaging to
livestock, crops, humans, or land fertility.” Certainly,
mosquitoes have been recognized as having a harmful impact
on humans. See www.baronpest.com (“Mosquito-borne diseases
affect millions of people worldwide each year. In the
United States, some species of mosquitoes can transmit
diseases such as West Nile, encephalitis, dengue fever and
malaria to humans, and a variety of diseases to wildlife
and domestic animals”) and www.nardypest.com (“Mosquito-
borne illness is not a laughing matter”). Clearly, as an
organism that is associated with the West Nile,
encephalitis, dengue fever and malaria as well as other
diseases, the mosquito can properly be classified as a pest
that is damaging to humans and livestock.
The binding precedent of our principal reviewing
court, the Court of Appeals for the Federal Circuit,
requires us to consider the goods or services as they are
identified in the identification of goods or services.
Octocom Systems, Inc. v. Houston Computers Services Inc.,
Ser No. 78628011
8
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The
authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the
sales of goods are directed”). See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”). Here, the term, pest
control services, is a broad enough term that it would
encompass the more specific mosquito control services.
Therefore, applicant’s services overlap registrant’s
services, and we must assume that the channels of trade and
purchasers are the same. 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”).
We also address applicant’s point that mosquito
control services are not the same. Even if we accept the
argument that these services are separate, we nonetheless
Ser No. 78628011
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conclude that the evidence of record indicates that these
services are related and that they are provided by the same
entities under a common mark. See, e.g.,
www.middletonpest.com (“Pest Control” and “Specialized
Services – From our mosquito reduction services to our
exclusive Farm and Commercial Division”); www.dfwpest.com
(“Pest Control – Services for all Pests – Roaches, Ants,
Fleas, Spiders, Etc… Mister Mosquito Control Systems”);
www.critterridders.com (“Simmons Pest Management Inc.,”
“Pantry Pests,” and “Mosquitoes”); www.baronpest.com (“Pest
Control” and “Mosquito Control/West Nile”) and
www.nardypest.com (“Pest Control Services – Our services
include monthly maintenance, deer tick and mosquito control
programs” and “general insect and pest control services”).
The evidence of record supports a finding that, even
if the services are not overlapping, pest control and
mosquito control services are closely related. The
printouts show that there is nothing unusual about an
entity providing both of these services. Indeed, consumers
seeking mosquito control services are likely to seek those
services from the same entity that provides their pest
control services. We also see no reason to conclude that
the purchasers of these services would not at least
overlap. For example, these services seem to be marketed
Ser No. 78628011
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to ordinary owners of land. See, e.g., www.baronpest.com
(“The huge amount of rain recently has left huge pools of
standing water, the perfect breeding grounds for
Mosquitoes”).
When the marks THE BUZZ STOPS HERE and THE BUG STOPS
HERE are used on mosquito control services and pest control
services, consumers are likely to believe that these
services originate from the same entity. Therefore, we
conclude that there is a likelihood of confusion.
Decision: The examining attorney’s refusal to
register applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.