Wings and Rings, Inc.

Trademark Trial and Appeal Board

Sep 26, 2000

No. 75445612 (T.T.A.B. Sep. 26, 2000)

Paper No. 11
LKM
9/26/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Wings and Rings Inc.
________
Serial No. 75/445,612
_______
Charles E. Baxley of Hart, Baxley, Daniels & Holton for
applicant.
Robert L. Lorenzo, Trademark Examining Attorney, Law Office 111
(Craig Taylor, Managing Attorney).
_______
Before Simms, Bucher and McLeod, Administrative Trademark
Judges.
Opinion by McLeod, Administrative Trademark Judge:
An application has been filed by Wings and Rings, Inc. to
register BEST WINGS USA for "cooked poultry."1
The Examining Attorney issued a final refusal of
registration under Section 2(e)(2) of the Trademark Act, 15
U.S.C. §1052(e)(2), on the ground that the proposed mark is
primarily geographically descriptive of the goods, and under

1 Application Serial No. 75/445,612, filed March 5, 1998, under
Section 1(b), 15 U.S.C. §1051(b). The term “WINGS” is disclaimed
apart from the mark as shown. The Board is aware of applicant’s
related Application Serial No. 75/445,927 for the mark BEST WINGS USA
for “restaurant services.” A separate decision has been issued in
that case.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/445,612
2
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant's mark, when applied to the identified
goods, so resembles the previously registered mark shown below
for "restaurant services"2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An oral
hearing was not requested.
Turning first to the refusal of registration under Section
2(d), applicant argues that confusion is unlikely because the
overall commercial impression, sound and appearance of the
involved marks are dissimilar. Applicant acknowledges that both
marks contain the words BEST and WINGS. According to applicant,
however, BEST is laudatory and BEST WINGS is suggestive in both
marks. Applicant submits that the cited mark BEST WINGS IN THE
WORLD and design is entitled to a narrow scope of protection.
Applicant claims, among other things, that the term USA in
applicant’s mark and the phrase IN THE WORLD in the cited
registration conjure up different, contrasting commercial

2 Registration No. 1,805,650, issued November 16, 1993, on the
Supplemental Register, setting forth dates of first use of February
24, 1993. Section 8 affidavit accepted.
Ser No. 75/445,612
3
messages. Also, applicant argues that there have been no
instances of actual confusion and that there are many similar
marks used by others. Applicant has not submitted any evidence
in support of its position.
The Examining Attorney, on the other hand, contends that
the involved marks are similar in overall impression and
meaning. The Examining Attorney maintains, among other things,
that both marks contain the words BEST WINGS, and thus both
refer to chicken wings or “buffalo” wings. The only difference
between the marks, according to the Examining Attorney, is the
geographically descriptive term USA in applicant’s mark and IN
THE WORLD in registrant’s mark. The Examining Attorney submits,
however, that these terms are nevertheless both geographic.
According to the Examining Attorney, the design element in the
registered mark is negligible and does not minimize the word
portion of the mark. In support of his position, the Examining
Attorney relies upon dictionary definitions and articles from
the NEXIS computer database to show that restaurants serve
“chicken wings.”3
In determining whether there is likelihood of confusion
between two marks, we must consider all relevant factors as set

3 While the dictionary evidence was not submitted prior to appeal,
the Board may take judicial notice of dictionary definitions. See
Trademark Rule 2.142(d); University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser No. 75/445,612
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forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). In any likelihood of confusion analysis
under Section 2(d), two of the most important considerations are
the similarities or dissimilarities between the marks and the
similarities or dissimilarities between the goods and 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. Because applicant and the Examining Attorney
have focused on these two factors, we have done the same.
Applicant does not seriously dispute the fact that the
applicant’s goods are related to the registrant’s services.
Indeed, applicant itself has filed separate applications seeking
registration of BEST WINGS USA for “cooked poultry” and
“restaurant services.” The Examining Attorney has, at any rate,
established that the goods and services are related for purposes
of finding a likelihood of confusion. In particular, the
Examining Attorney’s NEXIS evidence demonstrates that
restaurants, like the applicant and registrant’s respective
establishments, serve cooked poultry items (including chicken
and “buffalo” wings).
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
Ser No. 75/445,612
5
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. See In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
In comparing applicant’s BEST WINGS USA to the cited BEST
WINGS IN THE WORLD and design, in their entireties, we recognize
that the marks are not identical in sound, appearance,
connotation or commercial impression. However, we find that the
marks are sufficiently similar overall that consumers are likely
to be confused. Both marks contain the wording BEST WINGS as
the first and most dominant portion of the respective marks.
These words have the same appearance and sound. We also agree
with the Examining Attorney that BEST WINGS presents the same
Ser No. 75/445,612
6
connotation in both marks, namely, that the parties’ offer the
“best” chicken or “buffalo” wings. Furthermore, both marks end
with a geographical term (USA and IN THE WORLD) which, in our
opinion, does not distinguish the overall commercial impression
of the marks, but rather emphasizes the overall similarities
between them.4 In our view, consumers encountering applicant’s
BEST WINGS USA on “cooked poultry” are likely to believe that
applicant's products originate with or are associated with the
registrant’s BEST WINGS IN THE WORLD “restaurant services.”
With respect to applicant’s contention that there are
numerous third-party uses of similar marks or that there have
been no instances of actual confusion, applicant has failed to
present any supporting evidence. Consequently, these arguments
have been given no consideration. AMF Inc. v. American Leisure
Products, Inc., 474 F.2d 1403, 1406, 177 USPQ 268, 269 (CCPA
1973); In re Hub Distributing, Inc., 218 USPQ 284 (TTAB 1983).
To the extent applicant contends that the cited
registration is entitled to a narrow scope of protection because
it is on the Supplemental Register, we would point out that even

4 Applicant did not specifically address the “design” feature of the
cited mark. Nonetheless, we agree with the Examining Attorney that
the stylized presentation of the word “WINGS” does not serve to
distinguish the marks as a whole.
Ser No. 75/445,612
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weak marks are entitled to some measure of protection. This is
particularly true in the case of an applicant seeking to
register a similar mark for related goods and services. See In
re Clorox Co., 578 F.2d 305, 198 USPQ 337, 340-41 (CCPA 1978).
With respect to the Examining Attorney’s refusal of
registration under Section 2(e)(2), we note that applicant
failed to address this ground of refusal in its initial appeal
brief. We view applicant’s failure to respond on the merits to
the Examining Attorney’s final refusal under Section 2(e)(2) as
a concession of the matter in question. See In re Big Daddy’s
Lounges Inc., 200 USPQ 371, 373 n. 3 (TTAB 1978). We hasten to
add, however, that even if we considered this issue on brief, we
would nevertheless affirm the refusal of registration under
Section 2(e)(2) for the reasons set forth in the Examining
Attorney’s appeal brief.
Decision: The refusals to register are affirmed.
R. L. Simms
D. E. Bucher
L. K. McLeod
Administrative Trademark
Judges, Trademark
Trial and Appeal Board
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