QVC, Inc.

Trademark Trial and Appeal Board

Jan 13, 2005

No. 76292022 (T.T.A.B. Jan. 13, 2005)

Mailed: January 13, 2005
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re QVC, Inc.
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Serial No. 76292022
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Manny D. Pokotilow of Caesar, Rivise, Bernstein, Cohen &
Pokotilow, Ltd. for QVC, Inc.
Won T. Oh, Trademark Examining Attorney, Law Office 114
(Margaret Le, Managing Attorney).
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Before Hanak, Hairston and Holtzman, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application was filed by QVC, Inc. to register the
mark HOMEWORKS for “electric fans, electric space heaters,
and household air cleaners.”1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, if applied to applicant’s goods, would so
1 Application Serial No. 76292022, filed July 30, 2001, based
upon an allegation of a bona fide intention to use the mark in
commerce in connection with the identified goods.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76292022
2
resemble the previously registered mark EQUITABLE HOMEWORKS
for “on line and mail order retail store services featuring
consumer and commercial energy related products, namely,
gas grills, carbon monoxide alarms, gas lamps and gas
heaters,”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs. An oral
hearing was not requested.
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 likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In
considering the evidence of record on these factors, we
keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and
differences in the marks.” Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Considering first the marks, we find that they are
similar to the extent that they share the term HOMEWORKS.
However, registrant’s mark also includes the word
2 Registration No. 2,753,645 issued August 19, 2003.
Ser No. 76292022
3
EQUITABLE. In view of the suggestive nature of the word
HOMEWORKS when used in connection with home products and
services, and because EQUITABLE is the first word in
registrant’s mark, we find that EQUITABLE is the dominant
portion of the mark. Thus, applicant’s mark HOMEWORKS and
registrant’s mark EQUITABLE HOMEWORKS create different
overall commercial impressions.
We consider next the goods and services in this case.
It is well settled that goods/services need not be
identical or even competitive in order to support a finding
of likelihood of confusion. Rather, it is sufficient that
the goods/services are related in some manner and/or that
the circumstances surrounding their marketing are such that
they would be likely to be encountered by the same persons
in situations that would give rise, because of the marks
used thereon, to the mistaken belief that they originate
from or are in some way associated with the same producer
or provider. See In re Melville Corp., 18 USPQ2d 1386
(TTAB 1991); and In re International Telephone & Telegraph
Corp., 197 USPQ 910 (TTAB 1978).
Applying these principles to the present case, we find
that the examining attorney has failed to establish that
applicant’s goods and registrant’s services are
Ser No. 76292022
4
sufficiently related in some way that would result in
source confusion.
In order to show a relationship between the involved
goods and services, the examining attorney submitted copies
of five third-party registrations. The examining attorney
maintains that such registrations show that applicant’s
kinds of goods and registrant’s types of services are
related. However, upon examination of these third-party
registrations, we note that none of them cover the type of
services in registrant’s registration. Rather, the third-
party registrations cover the kinds of goods in applicant’s
application and the kinds of goods featured in registrant’s
services. Moreover, four of the registrations are for
house marks and cover a wide variety of home appliances and
home heating products. In short, the third-party
registrations are not probative evidence that electric
fans, electric space heaters, and household air cleaners,
on the one hand, and retail store services featuring
consumer and commercial energy related products, namely gas
grills, carbon monoxide alarms, gas lamps and gas heaters,
on the other hand, may emanate from a single source under a
single mark.
Ser No. 76292022
5
Therefore, in view of the cumulative differences in
the marks and the goods and services involved herein, we
find that there is no likelihood of confusion in this case.
Decision: The refusal to register under Section 2(d)
is reversed.