Trident Energy Corp.

Trademark Trial and Appeal Board

Sep 26, 2000

No. 75243677 (T.T.A.B. Sep. 26, 2000)

Oral Hearing:
April 26, 2000
Paper No. 22
CEW
9/26/00
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Trident Energy Corporation
___________
Serial No. 75/243,677
___________
Robert E. Bushnell, Esq. for applicant.
Andrew P. Baxley, Trademark Examining Attorney, Law Office
114 (Mary Frances Bruce, Managing Attorney).
____________
Before Walters, Rogers and McLeod, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Trident Energy Corporation has filed a trademark
application to register the mark shown below for “business
management services in the field of oil and gas
exploration.”1

1 Serial No. 75/243,677, in International Class 35, filed February 18,
1997, based on use in commerce, alleging first use and first use in
commerce as of May 1, 1989.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/243,677
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 shown below, previously registered for
“storage of natural gas, and transportation of natural gas
by pipeline,” in International Class 39, and “retail and/or
wholesale distributorship services in the field of natural
gas,” in International Class 42,2 that, if used on or in
connection with applicant’s goods, it would be likely to
cause confusion or mistake or to deceive.

2 Registration No. 1,992,811, issued August 13, 1996, to Cascade Natural
Gas Corporation. The registration includes a disclaimer of NATURAL GAS
CORPORATION and of the representation of the triangle and flame design.
Serial No. 75/243,677
3
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, and an oral hearing
was held.
Before we begin our analysis, we respond to
applicant’s arguments against finding a likelihood of
confusion in this case based on its prior ownership of a
registration for the same mark that is the subject of this
application, and for the same services; however, that
registration was canceled under the provisions of Section 8
of the Trademark Act. Applicant submitted with its
supplemental brief a copy of the application prosecution
history of cited Registration No. 1,992,811. Applicant
points out that the mark in the registration cited herein
initially was refused registration, under Section 2(d) of
the Trademark Act, based on applicant’s then-subsisting
registration. The then-applicant submitted various
Serial No. 75/243,677
4
arguments against likelihood of confusion with the mark in
this applicant’s then-subsisting registration.3 Thereafter,
the Examining Attorney handling that application withdrew
the refusal of registration. Applicant argues,
essentially, that, since the same marks and services are
involved herein, we are required to find no likelihood of
confusion in this case because of registrant’s argument
during the prosecution of its underlying application that
confusion is not likely and its statements regarding the
differences in the marks, services and purchasers; and
because of the Examining Attorney’s decision to withdraw
the Section 2(d) refusal in that application.
However, we must make our determination based on the
facts before us in this case. We consider registrant’s
arguments in its application as evidence illuminative of
shade and tone in the total picture confronting us, but we
do not consider it determinative. See Interstate Brands
Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ
151 (CCPA 1978); and American Rice, Inc. v. H.I.T. Corp.,
231 USPQ 793 (TTAB 1986). Further, the Board is not bound
by the Examining Attorney’s decision in the application

3 Although this evidence is untimely, the Examining Attorney does not
object on this ground, but addresses the probative value of the
evidence on other grounds. Thus, we consider the file history of the
cited registration to be of record herein.
Serial No. 75/243,677
5
that resulted in the cited registration. Rather, the Board
is bound to review all of the record in this application
and reach a determination concerning whether the evidence,
taken as a whole, supports the refusal made by the
Examining Attorney or supports the applicant’s argument for
allowance of the application. In re Avocet, Inc., 227 USPQ
566 (TTAB 1985). See also In re AFG Industries, Inc., 17
USPQ2d 1162 (TTAB 1990); and In re D. B. Kaplan
Delicatessen, 225 USPQ 342 (TTAB 1985).
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 the
analysis of likelihood of confusion in this case, two key
considerations are the similarities or dissimilarities
between the marks and the similarities or dissimilarities
between the services. Federated Foods, Inc. v. Fort 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.
We consider, first, the services involved in this
case, and we note that the question of likelihood of
confusion must be determined based on an analysis of the
Serial No. 75/243,677
6
services recited in applicant’s application vis-à-vis the
services recited in the registration, rather than what the
evidence shows the 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 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.
The Examining Attorney contends that applicant’s and
registrant’s services are sufficiently related that the
relevant purchaser would believe that such services, if
Serial No. 75/243,677
7
identified by confusingly similar marks, come from the same
or a related source; and that applicant’s services are so
broadly identified as to encompass business management
services to all sectors of the oil and gas exploration
industry, including the recipients of the services recited
in the cited registration. In support of his position, the
Examining Attorney submitted copies of third-party
registrations containing business management services
encompassed by applicant’s recitation of services, as well
as services identical to those in the cited registration.
Applicant argues that there is no relationship between
the services; that the third-party registrations are of no
relevance; that applicant’s and registrant’s services are
rendered to “different groups of business entities”; and
that “the nature of the services mandates substantial
expense characteristic of sophisticated users over
substantial periods of time.”4
We find the third-party registrations made of record
by the Examining Attorney adequate to establish that a

4 Applicant also argues that applicant’s and registrant’s services are
unrelated because they are classified in different International
Classes. It is irrelevant that applicant’s and registrant’s services
are classified in different International Classes. The classification
of goods and services in trademark applications is for the
administrative ease of the PTO and is neither relevant to, nor
determinative of, likelihood of confusion. In re Sailerbrau Franz
Sailer, 23 USPQ2d 1719 (TTAB 1992).
Serial No. 75/243,677
8
number of companies have registered marks for services the
same as, or similar to, applicant’s and registrant’s
recited services. Although these registrations are
admittedly not evidence of actual use of the marks, they
are sufficient to suggest that these various types of
services may be offered by a single entity. See In re
Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In
re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988).
Thus, we find that applicant’s and registrant’s recited
services are sufficiently related that, if used and
registered in connection with confusingly similar marks,
confusion as to the source of applicant’s services would be
likely. Applicant has made a number of assertions to the
contrary that are purely speculation and unsupported by any
evidence regarding the nature of the services, purchasers
or trade channels in this field.
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
Serial No. 75/243,677
9
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.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
The Examining Attorney contends that the marks herein
have substantially similar commercial impressions because
their design portions are essentially identical; and that
the words NATURAL GAS CORPORATION in the cited registration
are merely descriptive. Applicant, on the other hand,
argues that the marks are visually different because the
specific flame designs are quite different.
We agree with the Examining Attorney that the design
elements of the two marks, namely the flame contained in a
triangular carrier in each mark, are substantially similar.
Applicant’s contentions regarding the minute differences
between the two flame designs are unpersuasive in view of
Serial No. 75/243,677
10
the fact that the proper test for determining the issue of
likelihood of confusion is the similarity of the general
commercial impression engendered by the marks. Due to the
consuming public’s fallibility of memory, the emphasis is
on the likely recollection of the average customer, who
normally retains a general rather than a specific
impression of trademarks or service marks. Spoons
Restaurants, Inc. v. Morrison, Inc., 23 USPQ2d 1735 (TTAB
1991), aff’d. No. 92-1086 (Fed. Cir. June 5, 1992); and In
re Steury Corporation, 189 USPQ 353 (TTAB 1975).
However, having said that the design elements are
similar, we are mindful of the fact that a flame design in
the natural gas industry is highly suggestive in connection
therewith. Further, the triangular carrier for each design
is not particularly unique or distinctive.
The registered mark includes, in a size equal to the
design, the company name, CASCADE NATURAL GAS CORPORATION.
While it is undisputed that NATURAL GAS CORPORATION is
merely descriptive in connection with the services recited
in the registration, there is no evidence indicating that
CASCADE is other than arbitrary in connection with these
services. When both words and a design comprise a mark,
then the words are normally accorded greater weight because
the words are likely to make an impression upon purchasers
Serial No. 75/243,677
11
that would be remembered by them and would be used by them
to request the goods and/or services. In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987); and
Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461,
462 (TTAB 1985). See also: Giant Food, Inc. v. Nation’s
Food Service, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir.
1983). We find that CASCADE is the dominant portion of the
registered mark and, thus, the overall commercial
impression of the registered mark is different from that of
applicant’s mark.
Therefore, we conclude that in view of the differences
in the commercial impressions of applicant’s mark and
registrant’s mark, their contemporaneous use on the related
services involved in this case is not likely to cause
confusion as to the source or sponsorship of such services.5

5 We note that, based on the facts in a particular case, similarity of
one element of the sight, sound and meaning trilogy may be
determinative of likelihood of confusion. See In re Lamson Oil Co., 6
USPQ2d 1041, 1042 n. 4 (TTAB 1988).
Serial No. 75/243,677
12
Decision: The refusal under Section 2(d) of the Act
is reversed.
C. E. Walters
G. F. Rogers
L. K. McLeod
Administrative Trademark Judges,
Trademark Trial and Appeal Board