Fallen Angels Production, Inc.

Trademark Trial and Appeal Board

Aug 25, 2006

No. 78648759 (T.T.A.B. Aug. 25, 2006)

Mailed: August 25, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Fallen Angels Production, Inc.
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Serial No. 78648759
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Marc J. Kesten of Marc J. Kesten, P.L. for Fallen Angels
Production, Inc.

Cynthia Sloan, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Hairston, Kuhlke and Walsh, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Fallen Angels Production, Inc. has filed an
application to register the mark shown below

for goods ultimately identified as “jewelry; beads for use
in the manufacture of jewelry; diamonds; precious and semi-
precious gemstones; pearls; belt buckles of precious metal;
book marks of precious metal; busts of precious metal;
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Serial No. 78648759
2
charms; cufflinks; decorative boxes made of precious metal;
jewelry boxes of precious metal; jewelry cases of precious
metal; jewelry findings; medallions; non-monetary coins;
ornaments of precious metal; watches and chronometers;
watch straps; watch bands; watch cases; watch faces; watch
chains; clocks; precious metal money clips; tiaras; tie
clips; tie pins" in International Class 14.1
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used on its identified goods, so
resembles the registered mark FH (in standard character
form) for “jewelry” in International Class 14,2 as to be
likely to cause confusion, mistake or deception.
When the refusal was made final, applicant appealed.
Briefs have been filed, but applicant did not request an
oral hearing. We affirm the refusal to register.
As a preliminary matter, the examining attorney’s
objection to evidence submitted for the first time with
applicant’s brief is sustained. See Trademark Rule
2.142(d) (evidentiary record in an application should be
complete prior to the filing of an ex parte appeal).

1 Application Serial No. 78648759, filed June 11, 2005, alleging
a bona fide intention to use the mark in commerce under Section
1(b) of the Trademark Act. 15 U.S.C. §1051(b).

2 Registration No. 1687794, issued May 19, 1992, renewed.
Serial No. 78648759
3
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., 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 similarities between the goods and/or
services. 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 a consideration of the goods
identified in the application and the cited registration.
It is well settled that goods need not be similar or
competitive in nature to support a finding of likelihood of
confusion. The question is not whether purchasers can
differentiate the goods themselves, but rather whether
purchasers are likely to confuse the source of the goods.
See Helene Curtis Industries Inc. v. Suave Shoe Corp., 13
USPQ2d 1618 (TTAB 1989). Further, we must consider the
cited registrant’s goods as they are described in the

Serial No. 78648759
4
registration and we cannot read limitations into those
goods. See Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1987). If the cited
registration describes goods or services broadly, and there
is no limitation as to the nature, type, channels of trade
or class of purchasers, it is presumed that the
registration encompasses all goods or services of the type
described, that they move in all channels of trade normal
for these goods, and that they are available to all classes
of purchasers for the described goods. See In re Linkvest
S.A., 24 USPQ2d 1716 (TTAB 1992).
Clearly, applicant’s goods are identical to (jewelry),
encompassed by (charms, cuff links, medallions, ornaments
of precious metal), and otherwise related to (tie pins,
tiaras, jewelry cases of precious metal, decorative boxes
made of precious metal) the goods recited in the
registration (jewelry). Accordingly, for purposes of the
likelihood of confusion analysis, certain of applicant’s
goods must be considered legally identical to the goods in
the cited registration and must be deemed to be sold in the
same channels of trade. Applicant’s argument regarding the
actual channels of trade are unavailing in view of the
Serial No. 78648759
5
requirement to make our analysis based on the
identification of goods in the application and
registration.
In view thereof, the du Pont factors of the similarity
of the goods and the channels of trade favor a finding of
likelihood of confusion as to the cited registration.
We turn now to the first du Pont factor, i.e., whether
applicant’s mark and registrant’s mark are similar or
dissimilar when compared in their entireties in terms of
appearance, sound, connotation and commercial impression.
We find that applicant’s mark is highly similar to the
cited mark. The literal element in applicant’s mark FH is
identical in sound and meaning to the registered mark FH
inasmuch as when spoken they are both the letters FH.
Although the appearance of applicant’s mark is slightly
different from the mark in the registration due to the
stylization, we do not believe that this difference alone
creates an overall different commercial impression. The
stylization does not mask the literal element, the letters
FH are discernable by potential purchasers. More
importantly, registrant’s mark is registered in typed form
and, as such, may be displayed in all reasonable manners.
As noted by the examining attorney “[t]he rights associated
with a mark in standard character form reside in the
Serial No. 78648759
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wording itself, and registrant is free to adopt any style
of lettering, including lettering identical to that used by
applicant. Therefore, applicant’s presentation of its mark
in special form will not avoid likelihood of confusion with
a mark that is registered in typed or standard character
form because the marks could be used in the same manner of
display.” Br. unnumbered pp. 6-7. See Jockey
International Inc. v. Mallory & Church Corp., 25 USPQ2d
1233 (TTAB 1992) and cases cited therein; In re Melville
Corp., 18 USPQ2d 1386, 1387-88 (TTAB 1991); TMEP
§1207.01(c)(iii). Thus, registrant would be free to depict
its mark in a manner similar to applicant’s mark. Similar
to applicant’s argument regarding the trade channels,
applicant’s argument regarding the intended use of the mark
as a “makers’ mark,” are not relevant inasmuch as the
identification of goods in the application is not so
limited, nor are there any such limitations in the
registration, which would encompass all manner of uses. In
addition, there is no legal basis to apply a different
standard for likelihood of confusion to a “makers’ mark.”
Thus, the factor of the similarity of the marks also favors
a finding of likelihood of confusion.
Applicant argues that purchasers of both registrant’s
and applicant’s goods would exercise greater care in making
Serial No. 78648759
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a purchase. Specifically, applicant states that “because
of their very nature and market appeal, [the goods] are
quite expensive” and “[t]he goods sold under the registered
mark are significantly different and more expensive than
Applicant’s jewelry goods, and due to their nature and
their trade channels, persons buying such goods from either
party exercise great care in making their purchasing
decision.” Br. p. 10. Again, applicant is improperly
attempting to limit the goods by extrinsic evidence. See
In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB
1986). The goods as identified encompass both inexpensive
and expensive jewelry. Thus, while it certainly is the
case that a consumer would exercise heightened care when
purchasing a diamond ring, less care would be taken when
purchasing jewelry not made of precious metals or precious
gemstones. Therefore, the purchasing conditions include a
range of care and the potential consumers include both
sophisticated and unsophisticated purchasers. This factor
is neutral as to the likelihood of confusion analysis.
Applicant argues that third-party registrations should
be given some weight in our determination as to whether its
application should proceed to registration, particularly
noting that the Office strives for consistency. Applicant
contends that “[o]bviously, the existing registrations of
Serial No. 78648759
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these three ‘FH’ marks shows that, in this area,
differences in appearance between and [sic] typed mark and
a stylized design may be acceptable for registration
purposed [sic].” Br. p. 7. The two other registrations
for jewelry are for the marks shown below.

We first note that it is correct that consistency in
prosecution is certainly a goal; however, as the examining
attorney stated, the “existence on the register of other
confusingly similar marks would not assist applicant in
registering yet another FH mark, which so resembles the
cited registered mark, that confusion is likely.” Br.
unnumbered p. 10. Moreover, we note that the marks in the
two third-party registrations include design elements and
in one the lettering FH is not clearly discernable. While
third-party registrations may be relevant to show that a
mark is descriptive, suggestive, or so commonly used that
the public will look to other elements to distinguish the
source of the goods or services, see, e.g., AMF Inc. v.
American Leisure Products, Inc., 474 F.2d 1403, 1406, 177
USPQ 268, 269-70 (CCPA 1973), the three registrations
containing the letters FH are simply not sufficient to
establish that FH is so commonly used that the public will
Serial No. 78648759
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look to other elements to distinguish the source of the
goods. With regard to the other third-party registrations
for different lettering, registrations, by themselves, are
entitled to little weight on the question of likelihood of
confusion because they are not evidence of use in the
marketplace. Moreover, these third-party registrations are
for different letters. The essence of applicant’s argument
appears to be that the Office should allow registration of
the same letters for jewelry even if a standard character
mark is registered because appearance is the primary
concern. Applicant has not cited to any cases in support
of this proposition, nor has applicant submitted evidence
to support this argument, other than the third-party
registrations from which we can draw no conclusions. We
further note that each case must stand on its own merits.
Cf. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564
(Fed. Cir. 2001); and In re Scholastic Testing Service,
Inc., 196 USPQ 517 (TTAB 1977).
Finally, in making our determination, we have
considered applicant’s argument regarding the National Gold
and Silver Stamping Act (Stamping Act), 15 U.S.C. §§291-
300. We see no conflict with the Lanham Act. The fact
that the Stamping Act may require that a federally
registered trademark be stamped on the goods does not
Serial No. 78648759
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obviate the requirements under the Lanham Act that no
likelihood of confusion exist with a prior registered mark.
In fact, it could even undermine the intention of the
Stamping Act to ensure that the jewelry may be traced back
to the manufacturer by the trademark, if the Trademark
Office registered confusingly similar marks.
In conclusion, we find that because the marks are
similar, the goods are the same or legally identical, and
the channels of trade are the same, confusion is likely
between applicant’s mark and the cited registration.
Finally, to the extent that any of the points argued by
applicant may cast doubt on our ultimate conclusion on the
issue of likelihood of confusion, we resolve that doubt, as
we must, in favor of the prior registrant. In re Hyper
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Cir. 1988).
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.