Boomerang.com, Inc.v.Market Tools, Inc.

Trademark Trial and Appeal Board

Aug 31, 2005

No. 91150250 (T.T.A.B. Aug. 31, 2005)

Mailed:
August 31, 2005
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Boomerang.com, Inc.,
v.
Market Tools, Inc.
________

Opposition No. 91150250
against Serial Nos. 75821186 and 75821187
_______

Anthony J. Malutta, Elizabeth R. Gosse and John A. Hughes
of Townsend and Townsend and Crew LLP for Boomerang.com,
Inc.

Sheila Fox Morrison and Thomas R. Burke of Davis Wright
Tremaine LLP for Market Tools, Inc.
_______

Before Quinn, Bucher and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Market Tools, Inc. seeks registration on the Principal
Register of the mark ZOOMERANG (standard character
drawing)1 and the following special form drawing:

1 Application Serial No. 75821187 was filed on October 13,
1999 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91150250
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both marks to be used in connection with services recited
as amended, as
“building and facilitating of market
research communities; dissemination of
information in the fields of advertising,
marketing, and business via electronic mail;
providing information and technical
consultation in the field of survey research
methods, real-time feedback, and results;
providing information in the field of market
research” in International Class 35; and,

“providing temporary use of non-downloadable
computer software for designing and
conducting surveys, polls and other feedback
and data collection activities via computer
and communication networks; providing
temporary use of non-downloadable computer
software for the administration,
distribution, collection, reporting,
analysis and presentation of information
gathered via computer and communication
networks; hosting web-based surveys, polls
and other feedback and data collection
instruments for others; acquisition of
potential survey respondents and their data
for others” in International Class 42.2

Registration has been opposed by Boomerang.com, Inc.
As its ground for opposition, opposer asserts that
applicant’s marks when used in connection with applicant’s
services so resemble opposer’s previously used and
registered marks, as to be likely to cause confusion, to
cause mistake or to deceive under Section 2(d) of the
Lanham Act.

2 Application Serial No. 75821186 was filed on October 13,
1999 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.
Opposition No. 91150250
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Applicant, in its answer, has denied the salient
allegations in the opposition.
The Record
By operation of the rules, the record includes the
pleadings and the files of the opposed applications.
Opposer has also made of record its pleaded registrations
by submitting certified status and title copies of the
following registrations:
REGISTRATION NO. 1731670 BOOMERANG (STANDARD CHARACTER DRAWING)
for “automated facsimile retrieval and transmission services” in
International Class 38;3
REGISTRATION NO. 2233267

for “services for sending and retrieving data, namely, the
electronic transmission and reception of data via the
global computer information network” in International Class
38.4

Opposer, as part of its case-in-chief, has also made
of record, pursuant to a notice of reliance, the
testimonial deposition of David A. Kearney, President and
Chief Executive Officer of Boomerang.com, Inc., and
exhibits thereto, applicant’s responses to opposer’s First
Set of Interrogatories and documents related thereto, and

3 Registration No. 1731670 issued on November 10, 1992,
claiming first use anywhere at least as early as August 1991 and
first use in commerce at least as early as October 1991; renewed
4 Registration No. 2233267 issued on March 23, 1999, claiming
use anywhere and use in commerce at least as early as September
1994. The words “Information Services” are disclaimed apart from
the mark as shown.
Opposition No. 91150250
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applicant’s responses to opposer’s First Set of Requests
for Admission and documents related thereto. Applicant’s
case-in-chief consists of the testimony, with exhibits, of
Dana Meade, Vice President and General Manager of Market
Tools, Inc., a dictionary definition of the word
“boomerang” and the letter “Z” section of the dictionary,
both from Oxford Dictionary & Thesaurus (Am. Ed. 1996), and
copies of forty-four electronic (TESS) records from the
United States Patent and Trademark Office (USPTO) of third-
party registrations containing the term BOOMERANG, all
submitted by applicant via its notice of reliance. The
parties have fully briefed the case, but an oral hearing
was not requested.
Accordingly, the issues to be determined in this
proceeding are whether opposer has priority of use of its
BOOMERANG marks for a range of marketing communication
services, including telephone and email survey services,
and, if so, whether contemporaneous use by applicant of its
ZOOMERANG marks in connection with its marketing services
and online survey services is likely to cause confusion, to
cause mistake, or to deceive.
Opposition No. 91150250
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Standing
As noted above, opposer has made of record status and
title copies of its pleaded registrations. In view
thereof, and because opposer’s likelihood of confusion
claim based thereon is not frivolous, we find that opposer
has standing to oppose registration of applicant’s marks.
See Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982).
Facts
The Opposer specializes in large-scale marketing
campaigns for Fortune 1000 companies in retail, financial
services, travel services, entertainment-related services,
as well as those in the software, hardware, high-tech and
publishing industries. As suggested by its first BOOMERANG
registration (for “automated facsimile retrieval and
transmission services”), the testimony evidence shows that
opposer initially conducted direct marketing services by
facsimile services and other telephone-based methodologies.
With the changed technologies of the Internet age, opposer
shifted to email marketing services (Kearney testimony, pp.
8-16, and Ex. 2), and as suggested by the wording of its
second claimed registration [Registration No. 2233267].
Opposition No. 91150250
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Applicant, MarketTools, Inc., provides market research
services for companies and not-for-profit organizations,
and also offers a software tool online by which the user
can create and send market research surveys without the
need for assistance or interaction with applicant. This
do-it-yourself service gives users access to tools and
resources to help develop survey questionnaires, send those
surveys to potential respondents, then view and analyze the
results and respondent comments. Applicant adopted the
trademark ZOOMERANG for use in connection with its online
market research survey services, and filed the two involved
trademark applications [ZOOMERANG and ] on October
13, 1999.
It is clear that applicant is a marketing research
survey company, with its business research services
correctly classified in International Class 35, and its
computer services as an application service provider (ASP),
and its providing for the temporary use of non-downloadable
computer software, in International Class 42.
According to the testimony of opposer’s president,
surveys make up 10 to 15% of opposer’s email marketing
services business at the present time. From opposer’s most
recent web pages that have been made of record, it is clear
that this portion of opposer’s services is directly
Opposition No. 91150250
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competitive with applicant’s services, namely, as an ASP
offering marketing research survey services. Applicant
agrees that with the expansion of opposer’s services in
recent years, opposer’s services might well now include the
distribution and collection of surveys. The determinative
issue in this case is whether this expansion took place
prior to October 13, 1999.
PRIORITY
Priority based on Registrations
Inasmuch as opposer’s pleaded registrations are not
the subject of counterclaims or separate petitions to
cancel by applicant, priority under Section 2(d) is not an
issue in this case, as to the services recited in the
registrations. See King Candy Co., Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
The involved applications are intent-to-use
applications filed on October 13, 1999. Applicant’s
witness has also testified that applicant’s ZOOMERANG
website was launched on November 1999. Meade testimony,
pp. 17 – 18. Certainly, applicant has not tried to
establish a date of first use in commerce earlier than the
constructive date of first use established by its
applications’ filing date. Accordingly, applicant does not
Opposition No. 91150250
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argue that it has an earlier date of first use than
opposer’s recited services in International Class 38.
Priority based upon opposer’s common law rights
In the event that opposer has not established that the
services recited in the registrations are related to
applicant’s recited services, applicant argues correctly
that in order for opposer to establish priority of use, it
has the burden of proving that as of October 13, 1999, it
had valid common law rights in the mark for marketing
research survey services. On the critical issue of whether
opposer has demonstrated that it can rely upon prior common
law rights in its BOOMERANG mark extending to telephone and
email survey services, the parties strongly disagree.
Eastman Kodak Co. v. Bell & Howell Document Mgmt. Products
Co., 994 F.2d 1569, 1575, 26 USPQ2d 1912, 1918 (Fed. Cir.
1993) ["[T]he challenger’s burden of proof in both
opposition and cancellation proceedings is a preponderance
of the evidence.”].
Mr. Kearney, the founder of opposer, is a software
engineer with training and experience in marketing. At its
inception in 1991, opposer was providing its customers with
fax-on-demand, fax broadcasts and interactive voice
response connections via Touch-Tone telephones as ways of
Opposition No. 91150250
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communicating with its customers’ customers. Over the next
several years, opposer initiated telephone surveys and
quizzes as well as faxed survey questions where the
returned forms were scanned using optical character
recognition (OCR) technologies. Around 1995, as opposer
moved into the Internet world, it started utilizing email
services, including automated surveys. Even though the
record does not contain documentary support for opposer’s
offering this type of service, we find Mr. Kearney’s
testimony on this point to be uncontroverted. That is,
while opposer has failed to supply definitive evidence in
support of this testimony, we find, despite applicant’s
claims to the contrary, that this oral testimony is in no
way inconsistent with applicant’s documentary evidence on
this point. Furthermore, we find it a logical progression
for opposer’s marketing services to have switched from
providing direct mail, fax and telephone surveys in 1991-
1992 into providing email surveys by 1995-1996 -- soon
after establishing an online presence in 1994. Kearney
testimony, pp. 8, 13, 27 – 37.
Applicant points out that in late-1999, before
adopting the ZOOMERANG mark, applicant conducted various
searches, discovering, inter alia, opposer’s fax and
Internet services being offered under the BOOMERANG mark.
Opposition No. 91150250
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However, applicant argues that none of the products or
services then shown on opposer’s website were described as
survey tools or services. In cross-examining Mr. Kearney,
applicant’s counsel used an archived copy of opposer’s
website as it existed during April 1999. It appears as if
there were a series of vertical buttons on the left side of
the home page, as well as larger, horizontally-placed
buttons across the top of the page. During its cross
examination of Mr. Kearney, applicant’s counsel appears to
have used the web pages that follow from the left hand
buttons, such as “Why Use Boomerang?,” “Blast Manager,”
“Fax-on-Demand,” “WebFax,” “Fax Broadcasts,” “Email
Broadcasts,” and “FaxNet Mailboxes.” However, it does not
appear as if applicant
submitted any of the web
pages that follow from the
buttons across the top,
such as “Products and
Services.” Kearney
testimony, pp. 39 – 40,
Exhibit 5.

Accordingly, we find that Exhibit 5, in its totality,
does not contradict Mr. Kearney’s testimony. As opposed to
Opposition No. 91150250
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providing inconsistent information, we find it significant
that web pages dealing with opposer’s “Products and
Services” are simply missing from applicant’s submission
for the record.5 We acknowledge that opposer appears to
have failed to highlight this function during the 1996 to
1999 time frame in the “Why Use Boomerang?” section of its
website, for example, and that opposer failed to submit for
the record any direct mail marketing materials, letters or
other documentary evidence rebutting this seeming absence
of a key, claimed service from the archival screen prints
of its website from 1999. Nonetheless, we find that
opposer has established by a preponderance of the evidence
that it was providing survey-related services at the time
the applicant applied for and began using its ZOOMERANG
mark and thus established its priority as to these
services. Sealy, Inc. v. Simmons Co., 265 F.2d 934, 121
USPQ 456, 458 (CCPA 1959) [“[A]lthough prior use must be
established by a preponderance of the evidence … such use
can be proven by the testimony of only one witness.”]

5 We note that applicant did choose to introduce into the
record the “Products and Services” summary from a re-designed
webpage of a year later (2000), which given the absence of any
listing of surveys in that summary page, evidently supported
applicant’s position herein. Kearney testimony, Exhibit 6.
Opposition No. 91150250
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Likelihood of Confusion
We turn then to the issue of likelihood of confusion.
Our determination of likelihood of confusion must be based
upon our analysis of all of the probative facts in evidence
that are relevant to the factors bearing on the issue of
likelihood of confusion. See In re E. I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the relatedness of the
services and/or goods. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
See also In re Dixie Restaurants Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997).
We turn first to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to 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 impression
that confusion as to the source of the services and/or
Opposition No. 91150250
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goods offered under the respective marks is likely to
result.
Applicant’s ZOOMERANG marks are quite similar to
opposer’s BOOMERANG mark, as previously used and
registered, as to sound and appearance. Applicant’s marks
simply replace the letter “B” with a rhyming letter “Z.”
While the modification of the initial letter does create a
somewhat different appearance, the change of a single
letter in the applicant’s mark does not change the look of
the mark significantly. In the context of applicant’s
business and marketing survey services, the coined word
“zoomerang” clearly evokes the word “boomerang.” Both
suggest the delivery of some form of communications that
anticipates a response. The parties agree that applicant’s
melding of the word “zoom” into the first syllable of the
word “boomerang” suggests that applicant’s services allow
for a quick return. However, we agree with opposer that
this additional meaning does not change significantly the
commercial impression of applicant’s marks. Certainly
considering applicant’s mark preceded by a design feature,
, the fact that the fanciful letter “Z” is made up
of two boomerangs simply reinforces the impression of the
“boomerang” origin of the “zoomerang” mark. As seen above,
it is also reminiscent of opposer’s website trade dress.
Opposition No. 91150250
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In summary, on this du Pont factor, a proper evaluation of
the marks in their entireties show that they are highly
similar as to commercial impression, and that the minor
differences one might discover with a side-by-side
comparison certainly do not outweigh these similarities.
Hence, we find that this du Pont factor favors opposer.
We turn next to the du Pont factor focusing on the
relationship of the respective services. As to the
telecommunications services recited in opposer’s
registrations, there is no evidence in the record showing
that these telecommunication services are related to
applicant’s recited services, nor is there any evidence to
suggest that online marketing research survey services
would be within the “natural zone of expansion” for such a
service provider. Thus, we find that opposer has not
established a relationship between the services recited in
opposer’s registrations and the subject applications. As
discussed earlier, we have found that applicant and opposer
both function as application service providers offering
online their automated marketing research survey services.
While the exact nature of their online or email survey
services may be slightly different, their automated survey
services represent competitive options for prospective
Opposition No. 91150250
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customers. Hence, we find that this du Pont factor too
favors opposer, at least as to business survey services.
In a related du Pont factor focusing on the similarity
of established, likely-to-continue trade channels,
according to the evidence of record, both parties are
currently using the Internet in order to provide a way for
customers to use their services and to promote their
respective services to prospective customers. Accordingly,
we find that the channels of trade are identical.
As to the conditions under which and buyers to whom
sales are made, applicant permits individuals interested in
conducting a very basic survey to do so free of charge.
This means its customer base will not necessarily be
restricted to sophisticated users. By contrast, because
opposer tends to cater mostly to larger, Fortune 1000
companies, the classes of persons making these purchasing
decisions would constitute sophisticated and discriminating
purchasers. Nonetheless, we also agree with opposer that
the ultimate consumers of both parties’ survey services
include many members of the general public who receive the
survey queries. Hence, we disagree with applicant’s
position that the ultimate recipients of applicant’s and
opposer’s survey invitations are not consumers of these
services, and are irrelevant to the likelihood of confusion
Opposition No. 91150250
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analysis. Although these ultimate consumers may not
directly purchase services from applicant or from opposer,
they would be aware that they have been contacted by a
marketing survey company trading under a specific trade
name and having a return email address. Such consumers
plainly are akin to ordinary consumers and would not,
therefore, be expected to exercise a great deal of care or
deliberation in how they may deal, for example, with any
unhappiness over receiving such an invitation. Giving
consideration to likely confusion on the part of such
ordinary consumers means that this du Pont factor too would
weigh slightly in favor of a finding of a likelihood of
confusion herein.
We turn then to the du Pont factor focusing on the
nature and extent of any actual confusion. Upon reviewing
the entire record, we agree with applicant that opposer’s
characterization of actual confusion is “dramatically
oversold.” The documentary evidence consists of six
misdirected opt-out email messages from recipients of
survey invitations over an eight-month period (September
2001 to April 2002). If indeed applicant sends out more
than twenty million survey invitations a year and opposer
sends out more than 300 million automated messages a year,
we are not convinced that six misdirected email messages
Opposition No. 91150250
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comprises a strong case for actual confusion. If each one
of tens (or even hundreds) of millions of potential opt-out
recipient of a survey invitation had to actually type in
the “abuse@zoomerang.com” email address, inevitably some
individuals would type a letter “b” (for the familiar word
“boomerang”) instead of a letter “z” at the beginning of
the originator’s domain name qua email address. In this
context, we find that these six emails were likely the
result of inattentive typing rather than the result of a
perceived connection between applicant and opposer. See
Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 636,
63 USPQ2d 1659 (6th Cir. 2002). Hence, we find that this
evidence must be viewed as de minimis and accorded very
little probative value. McGraw-Hill Publ’g. Co., Inc. v.
Am. Aviation Assocs., 117 F.2d 293, 295, 47 USPQ 494 (App.
D.C. 1940).
Additionally, while Mr. Kearny describes the telephone
calls, emails, and other forms of confusion between opposer
and applicant as representing a pervasive and ongoing
problem for opposer, his testimony in this regard was not
very specific and other than the aforementioned six
misdirected emails, the record contains absolutely no
corroborating evidence (e.g., no “customer care” call
Opposition No. 91150250
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records, no affidavits from www.boomerang.com personnel,
etc.) of this alleged pattern of actual confusion.
Conversely, as to the factor focusing on length of
time during which there has been concurrent use without
evidence of actual confusion, applicant argues that it
should be found to favor applicant. Even though we deem
the six examples of record to be de minimis, we do not
agree that these marks “have been simultaneously used for
five years without causing any consumers to be confused.”
In light of the de minimis nature of the e-mail
evidence and the nonspecific testimony lacking any
supporting documentary evidence, we find opposer’s alleged
evidence of actual confusion as well as applicant’s alleged
absence of actual confusion to be neutral factors herein.
As to the renown of opposer’s BOOMERANG mark, the
record does not contain evidence as to opposer’s sales
figures or the level of opposer’s marketing expenditures.
While the mark appears to be inherently distinctive for
these services, the record is largely devoid of any
evidence of how much exposure consumers had to the
BOOMERANG mark used in connection with marketing surveys in
the period since 1995. Hence, we find on this record, that
opposer has not established that its mark is well known for
marketing surveys, making this another neutral factor.
Opposition No. 91150250
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As to the du Pont factor focusing on the variety of
services and/or goods on which a mark is or is not used,
opposer argues that it uses its BOOMERANG mark on a variety
of marketing and communications services. Yet as noted
earlier, its registrations of record do little to support
this position. While we find Mr. Kearney’s testimony
sufficient to establish priority as to online survey
services, the evidentiary support for finding that opposer
should be given a broad and exclusive scope of rights in
the BOOMERANG mark for a wide range of marketing
communications services is missing from this record.
Hence, this too is a neutral factor.
We turn next to the du Pont factor focusing on the
number and nature of similar marks in use on services
similar to opposer’s claimed services. Applicant takes the
position that opposer’s BOOMERANG mark is weak because it
appears to be one in a crowd of BOOMERANG marks. By notice
of reliance, applicant has demonstrated that opposer’s
BOOMERANG marks “are two out of 44 active trademark
registrations that include the term BOOMERANG.” These
third-party BOOMERANG trademark registrations include the
following, as highlighted by applicant in its brief:
REGISTRATION NO. 2390924 BOOMERANG
Opposition No. 91150250
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(standard character drawing)
for “providing business and advertising information
regarding the compilation and evaluation of data
related to global computer network web sites and users;
dissemination of advertising in the nature of delivery
of online advertising banners; conducting marketing
studies in the nature of providing targeting and
reporting services related to the dissemination of
advertising on the global computer network” in Class 356
REGISTRATION NO. 2712550 BOOMERANG WIRELESS
(standard character drawing)
for “wireless telecommunication services, namely the
transmission of voice by electronic means” in Class 387
REGISTRATION NO. 2787976 BOOMERANG POWERED BY ALLTEL
(standard character drawing)
for “wireless telecommunication services, namely the
transmission of voice by electronic means” in Class 388

6 Registration No. 2390924 issued to DoubleClick, Inc. on
October 3, 2000, reciting a date of first use in commerce at
least as early as August 18, 1998.
7 Registration No. 2712550 issued to AllTell Communications,
Inc., on May 6, 2003, reciting a date of first use in commerce at
least as early as October 15, 2000.
8 Registration No. 2787976 issued to AllTell Communications,
Inc., on December 2, 2003, reciting a date of first use in
commerce at least as early as May 25, 2001.
Opposition No. 91150250
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REGISTRATION NO. 2610075 BOOMERANG
(standard character drawing)
for “cable television broadcasting services;
broadcasting programs directed to children and
young adults via global computer network” in Class
389

Arguably DoubleClick Inc.’s services, recited above as
“ … dissemination of advertising in the nature of delivery
of online advertising … ,” are related to opposer’s usage
in connection with the marketing services that Mr. Kearney
discussed in his testimony. However, opposer argues that
there is “no evidence of record that other parties use or
have used BOOMERANG for marketing communications services
generally or telephone or email survey services
specifically.” Opposer correctly argues that inasmuch as
there is no evidence that any of these forty-two third-
party registrations are for marks that are actually in use,
the probative value of these registrations is most limited.
It is well settled that third-party registrations are not
evidence of what happens in the marketplace or that the
public is familiar with the use of the subject marks. See
National Aeronautics & Space Administration v. Record
Chemical Co., 185 USPQ 563, 567 (TTAB 1975). Clearly,

9 Registration No. 2610075 issued to The Cartoon Network,
LLP, on August 20, 2002, reciting a date of first use in commerce
at least as early as April 1, 2001.
Opposition No. 91150250
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third-party registrations do not show that the marks which
are the subjects thereof are actually being used, or that
the extent of their use is so great that customers have
become accustomed to seeing the marks and hence have
learned to distinguish them. See Smith Brothers
Manufacturing Co. v. Stone Manufacturing Co., 476 F.2d
1004, 177 USPQ 462, 463 (CCPA 1973); and In re Hub
Distributing, Inc., 218 USPQ 284, 285-86 (TTAB 1983).
Consequently, the co-existence of the third-party
registrations with opposer’s pleaded registrations does not
justify registration of a confusingly similar mark by
applicant. AMF Inc. v. American Leisure Products, Inc.,
474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973).
Accordingly, in view of the absence of any evidence
demonstrating that the marks which are the subjects of the
third-party registrations made of record by applicant are
actually in use, this du Pont factor favors opposer, but
because of the suggestive nature of the term for such
services, it favors opposer only minimally.10

10 To the extent that these third-party registrations do show
that the term “boomerang” has a normally understood and well-
known meaning in the broad field of automated interactions, and
hence may be somewhat suggestive of a key element of such
services, Red Carpet Corp. v. Johnstown American Enterprises
Inc., 7 USPQ2d 1404 (TTAB 1988), we have already found that
opposer has not established that it is a well known mark or one
meriting a broad scope of protection.
Opposition No. 91150250
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In conclusion, upon weighing all the relevant du Pont
factors in this case, and giving each its appropriate
weight, we find a likelihood of confusion herein. We find
opposer is favored on two key considerations, i.e., that
the parties’ marks are similar in appearance, sound,
connotation and commercial impression while the parties’
respective survey services represent competitive options
for prospective customers. On this record, we have found
that opposer’s prior mark has not been shown to be either
weak or well known, and on balance, the few cases of
misdirected email shown in the record help neither party.
Decision: The opposition is sustained on the ground
of likelihood of confusion under Section 2(d) of the Lanham
Act, and registration to applicant for both of the affected
applications is hereby refused.