Sealy Technology, LLC

Trademark Trial and Appeal Board

Mar 16, 2001

No. 75369284 (T.T.A.B. Mar. 16, 2001)

03/16/01 Paper No. 16
CEW
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Sealy Technology, LLC
___________
Serial No. 75/369,284
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James A. Dimitrijevs of Calfee, Halter & Griswold for
applicant.
Monique C. Miller, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
____________
Before Hairston, Walters and Holtzman, Administrative
Trademark Judges.
Opinion by Walters, Administrative Trademark Judge:
Sealy Technology LLC has filed a trademark application
to register the mark SEALY POSTUREPEDIC CROWN JEWEL for, as
amended, “non-decorative bed pillows, not including linens
to cover bed pillows,” in International Class 20, and “non-
decorative feather beds and mattress pads, not including
linens to cover feather beds and mattress pads,” in
International Class 24.1

1 Serial No. 75/369,284, filed October 7, 1997, based on an allegation
of a bona fide intention to use the mark in commerce in each class of
goods.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/369,284
2
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark CROWN JEWEL, previously registered for
“bedspreads, blankets, sheets, pillowcases, towels, wash
cloths, decorative fabric and upholstery fabric,”2 that, if
used on or in connection with applicant’s goods, it would
be likely to cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but 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

2 Registration No. 1,016,926 issued July 29, 1975, in International
Class 24. The registration was renewed for a period of 10 years from
July 29, 1995, and Section 8 and 15 declarations have been accepted and
acknowledged, respectively. The owner of record is Fieldcrest Cannon
Licensing, Inc.
Serial No. 75/369,284
3
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976); and In re Azteca Restaurant Enterprises, Inc., 50
USPQ2d 1209 (TTAB 1999) and the cases cited therein.
The Examining Attorney contends that applicant’s mark
merely incorporates registrant’s mark in its entirety, and
adds to it applicant’s “house marks,” which does not
distinguish the marks. She argues that CROWN JEWEL is not
a weak mark and, further, that the record contains no
evidence of third-party registrations of CROWN JEWEL for
similar goods to those of either applicant or registrant.
The Examining Attorney contends that applicant’s and
registrant’s goods are closely related; that applicant’s
registration of CROWN JEWEL for mattresses and box springs
does not entitle it to registration in this case; that the
goods in this application are more closely related to
registrant’s goods than they are to mattresses and box
springs; and that applicant has not established that the
goods in this application are a natural expansion of its
mattress and box spring business.
The Examining Attorney submitted copies of
registrations owned by applicant for the marks SEALY,
POSTUREPEDIC and SEALY POSTUREPEDIC, principally for
mattresses and box springs; and a copy of applicant’s
Serial No. 75/369,284
4
Registration No. 1,422,873 for the mark CROWN JEWEL for
mattresses and box springs.
In support of her position that applicant’s and
registrant’s goods are related and travel through the same
trade channels, the Examining Attorney submitted numerous
third-party registrations for linens, including bed linens
of the type listed in the cited registration. However,
only one of these third-party registrations includes any
bedding of the type identified in this application
(mattress pads). The Examining Attorney also submitted
excerpts from two catalogues advertising bed linens of the
type listed in the cited registration; and an excerpt of a
magazine article about using bed linens to decorate.
Neither the catalogs nor the magazine include any of the
goods identified in the application.
The Examining Attorney also submitted excerpts from
several Internet web sites that offer, among other
products, bed linens. Of eight Internet web sites offering
bed linens of the type listed in the cited registration,
two sites also offered feather beds and five sites also
offered mattress pads. None of the evidence regarding bed
linens included bed pillows. We note that the excerpted
sites appear to be, like department stores, sites offering
a wide range of goods, with bed lines comprising just one
Serial No. 75/369,284
5
of many categories of goods. As such, this evidence does
not establish, by itself, that the identified goods may
emanate from, or be associated with, a single entity, much
less that purchasers have become accustomed to seeing both
applicant’s and registrant’s goods emanate from a common
source under the same mark.
Applicant states, and the Examining Attorney agrees,
that its mark SEALY POSTUREPEDIC is well known.3 Thus,
applicant concludes, SEALY POSTUREPEDIC is the dominant
portion of the mark SEALY POSTUREPEDIC CROWN JEWEL and will
distinguish applicant’s mark from other CROWN JEWEL marks.
Applicant contends that its intended use of the mark
SEALY POSTUREPEDIC CROWN JEWEL in connection with the
identified goods “is merely within the natural expansion of
applicant’s long-standing use of the mark CROWN JEWEL in
association with mattresses and box springs”; and that the
goods identified herein are at least as distinguishable
from the cited registrant’s goods as are the goods in
applicant’s CROWN JEWEL registration.
Applicant argues that its identified goods, like
mattresses and box springs, “are all composed of cushioning
material or a cushioning system enclosed within a non-

3 There is no evidence establishing the Examining Attorney’s further
conclusion that SEALY POSTUREPEDIC is applicant’s house mark.
Serial No. 75/369,284
6
decorative fabric [and] the main function of such goods is
to provide orthopedic comfort”; whereas, registrant’s
identified goods are decorative items used to cover
applicant’s goods and “provide an aesthetic cover.”
Applicant argues, further, that registrant is no more
entitled to protection for the mark CROWN JEWEL in
connection with applicant’s identified goods, based on the
goods identified in registrant’s registration, than
applicant is based on its registration of CROWN JEWEL for
mattresses and box springs. Applicant states "[e]ven if
non-decorative pillows, feather beds and mattress pads may
be considered within the natural expansion of both
Applicant and Registrant, Applicant is entitled to
registration, since Applicant is the first to apply for
registration of the mark in connection with such goods.”
Considering, first, the goods involved in this case,
we note that the question of likelihood of confusion must
be determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are.
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See also, Octocom
Systems, Inc. v. Houston Computer Services, Inc., 918 F.2d
Serial No. 75/369,284
7
937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp.
v. North American Chicago Corp., 20 USPQ2d 1715 (TTAB
1991). Further, it is a general rule that goods or
services need not be identical or even competitive in order
to support a finding of likelihood of confusion. Rather,
it is enough that goods or services are related in some
manner or that some circumstances surrounding their
marketing are such that they would be likely to be seen by
the same persons under circumstances which could give rise,
because of the marks used therewith, to a mistaken belief
that they originate from or are in some way associated with
the same producer or that there is an association between
the producers of each parties’ goods or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991), and cases cited
therein.
It is clear that applicant’s and registrant’s goods
are, at least, complementary goods, as all the goods
involved are used either as beds, bedding, or as linens for
bedding. However, applicant has drawn a reasonable
distinction in describing its products as non-decorative
functional items of bedding,4 whereas the goods in the cited
registration are clearly bed linens which, while serving

4 We take judicial notice of the definition in The American Heritage
Dictionary (2nd college ed. 1985) of “featherbed” as “1. A mattress
stuffed with feathers. 2. A bed having a feather mattress.”
Serial No. 75/369,284
8
the function of covering items such as those identified in
the application, are also largely decorative. The
Examining Attorney has not established that these goods are
sufficiently similar or related in such a manner that
consumers will mistakenly believe that they emanate from,
or are sponsored by, the same source.
We turn, next, to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance,
sound, connotation and commercial impression. 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 impressions that confusion as to the source of
the goods or services 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. See, Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Furthermore, although the marks at issue must be considered
in their entireties, it is well settled that 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.
Serial No. 75/369,284
9
See, In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
Registrant’s mark and the CROWN JEWEL portion of
applicant’s mark are identical. In this regard, we take
judicial notice of the definition of “crown jewels” in
Encyclopedia Britannica (britannica.com, 1999-2000) as
follows:
Royal ornaments used in the actual ceremony of
consecration, and the formal ensigns of monarchy
worn or carried on occasions of state, as well as
the collections of rich personal jewelry brought
together by various European sovereigns as
valuable assets not of their individual estates
but of the offices they filled and the royal
houses to which they belonged.
In view of this definition, it is likely that
consumers will consider the term CROWN JEWEL in a trademark
to be laudatory in character and, thus, highly suggestive
of the quality of the goods so identified.
While the word “posture” within the word POSTUREPEDIC
may suggest that the use of applicant’s mattresses and box
springs, or the goods identified herein, improves posture,
this requires multi-step reasoning and, thus, we find the
SEALY POSTUREPEDIC portion of applicant’s mark to be, for
the most part, arbitrary. Further, the SEALY POSTUREPEDIC
portion of applicant’s mark is admitted to be well known in
connection with, at least, mattresses and box springs, and
Serial No. 75/369,284
10
is likely to be perceived as the dominant portion of
applicant’s mark. Additionally, it is likely to be
perceived as the dominant portion of the mark because it
comprises the first two words of the mark.
We agree with the Examining Attorney that merely
adding material to the mark of another does not avoid
confusion. However, as the Examining Attorney noted, The
Board, in the case of In re Christian Dior, S.A., 225 USPQ
533, 534 (TTAB 1985), stated the following:
[W]here there are some recognizable differences
in the asserted conflicting product marks or the
product marks in question are highly suggestive
or merely descriptive or play upon commonly used
or registered terms, the addition of a housemark
and/or other material to the assertedly
conflicting product mark has been determined
sufficient to render the marks as a whole
sufficiently distinguishable. [citations
omitted.]
We find the addition of SEALY POSTUREPEDIC to the
highly suggestive term CROWN JEWEL to sufficiently
distinguish applicant’s mark from registrant’s mark,
particularly in view of the differences between applicant’s
and registrant’s goods.
Therefore, in view of the marks and goods involved
herein, we conclude that confusion as to the source or
sponsorship of such goods in not likely. In so doing, we
Serial No. 75/369,284
11
are also mindful of applicant’s pre-existing registration
for the mark CROWN JEWEL for mattresses and box springs.
Decision: The refusal under Section 2(d) of the Act
is reversed.