Wings and Rings Inc.

Trademark Trial and Appeal Board

Sep 26, 2000

No. 75445927 (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. 75/445,927
_______
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 "restaurant services."1
The Examining Attorney issued a final refusal of
registration under Section 2(d) of the Trademark Act, 15
U.S.C. §1052(d), on the ground that applicant's mark, when

1 Application Serial No. 75/445,927, filed March 6, 1998, alleging
dates of first use of June 1, 1994. The term “WINGS” is disclaimed
apart from the mark as shown and the application has been amended to
seek registration under Section 2(f), 15 U.S.C. §1052(f). The Board
is aware of applicant’s related Application Serial No. 75/445,612
for the mark BEST WINGS USA for “cooked poultry.” A separate
decision has been issued in that case.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/445,927
2
applied to the identified services, 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.
On appeal, applicant argues that confusion is unlikely
because the overall commercial impression of the involved
marks is 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 messages. Also, applicant argues that there have
been no instances of actual confusion and that there are many

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. 75/445,927
3
similar marks for similar services. 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 convey that the parties’ respective restaurant services
offer 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 forth in In re E.I. du Pont de Nemours & Co., 476 F.2d

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. 75/445,927
4
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 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 dispute the fact that the parties
offer identical services. The question in this case is
whether, when the marks are used in connection with identical
services, there is degree of similarity between the marks
necessary to support a conclusion of likely confusion. See
Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992); and In re Elbaum,
211 USPQ 639 (TTAB 1981). That is, 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
Ser No. 75/445,927
5
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 registered
mark 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 connotation in both marks,
namely, that the parties’ offer the “best” chicken or
“buffalo” wings in their respective restaurants. Furthermore,
Ser No. 75/445,927
6
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 for “restaurant
services” are likely to believe that applicant's services 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 and 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).
Moreover, 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 weak marks are entitled to some measure of
protection. This is particularly true in the case of an

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. 75/445,927
7
applicant seeking to register a similar mark for identical
services. See In re Clorox Co., 578 F.2d 305, 198 USPQ 337,
340-41 (CCPA 1978).
Decision: The refusal to register is affirmed.
R. L. Simms
D. E. Bucher
L. K. McLeod
Administrative Trademark
Judges, Trademark
Trial and Appeal Board