Generation’s Afield T.V. Show, LLCv.Miller Creek Production Company

Trademark Trial and Appeal Board

Oct 15, 2012

No. 91195817 (T.T.A.B. Oct. 15, 2012)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
October 15, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Generation’s Afield T.V. Show, LLC
v.
Miller Creek Production Company
_____

Opposition No. 91195817
to application Serial No. 77770182
filed on June 29, 2009
_____

Kelley Clements Keller of The Keller Law Firm, LLC for Generation’s Afield T.V.
Show, LLC.

Troy Miller, President of Miller Creek Production Company.
_____

Before Quinn, Cataldo and Bergsman, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Miller Creek Production Company (“applicant”) filed a use-based application
to register the mark GENERATIONS AFIELD, in standard character form, for
“entertainment services in the nature of on-going television programs in the field of
hunting, fishing and other outdoor activities,” in Class 41. During the prosecution
of its application, applicant amended its filing basis to intent to use.
Generation’s Afield T.V. Show, LLC (“opposer”) filed a notice of opposition
against the registration of applicant’s mark under Section 2(d) of the Trademark
Opposition No. 91195817
2

Act of 1946, 15 U.S.C. § 1052(d). Opposer alleged prior use of the mark
GENERATIONS AFIELD TV SHOW and design, shown below, and that applicant’s
mark is confusingly similar to opposer’s mark.

Although opposer did not identify any goods or services in connection with which it
allegedly uses its mark, it did allege ownership of application Serial No. 85029381
for the mark GENERATIONS AFIELD TV SHOW for the following services:
Entertainment in the nature of on-going television
programs in the field of hunting, fishing and other
outdoor activities; Entertainment, namely, a continuing
hunting, fishing and outdoor activities show broadcast
over television, satellite, internet, and other audio and
video media; Providing information in the field of hunting
and fishing via the Internet, in Class 41.
Opposer disclaimed the exclusive right to use the term “TV Show.” Opposer’s
application is suspended pending the disposition of applicant’s application.
Applicant, in its answer, denied the salient allegations in the notice of
opposition.
Preliminary Issue
Through a notice of reliance, opposer proffered into evidence the affidavits of
Michael Strickhouser, Tierney Strickhouser, Danielle Strickhouser, and Nicholas J.
Opposition No. 91195817
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Sampson. Trademark Rule 2.123(b), 37 CFR § 2.123(b), provides, in relevant part,
as follows:
By written agreement of the parties, the testimony of any
witness or witnesses of any party, may be submitted in
the form of an affidavit by such witness or witnesses.
Opposer did not submit the written agreement of applicant to permit affidavit
testimony, nor did applicant lodge an objection to the introduction of the affidavit
testimony.
Trademark Rule 2.123(l), 37 CFR § 2.123(l), provides that “[e]vidence not
obtained and filed in compliance with these sections will not be considered.”
Accordingly, the testimony affidavits were not properly introduced into evidence
and we have not considered them.
The Record
The record includes the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), applicant’s application file. In addition, opposer
introduced the following testimony and evidence:
1. Notice of reliance on the following items:
A. Opposer’s “Business Entity Filing History” printed from the
Pennsylvania Department of State website purporting to show
opposer’s corporate status;
B. Internet materials. See Safer Inc. v. OMS Investments Inc., 94
USPQ2d 1031 (TTAB 2010).
i. Applicant’s homepage (January 23, 2012);

Opposition No. 91195817
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ii. Error page on applicant’s website purporting to show
nonuse;

iii. A post on camopost.com (October 14, 2009); and
iv. A post on opposer’s website (December 14, 2009);1 and

C. Discovery deposition of Troy Miller, applicant’s owner, with
accompanying exhibits; and
2. Testimony deposition of Michael Strickhouser, opposer’s President,
with accompanying exhibits;
Applicant did not introduce any testimony or evidence during its testimony
period, nor did applicant file a brief.
Standing
Michael Strickhouser, opposer’s President, testified that opposer began doing
business as Generation’s Afield in late February 2009. Opposer films hunts, fishing
and other outdoor adventures and makes them into television shows and video clips
displayed on YouTube.2 Accordingly, opposer has a personal interest in this
proceeding, and standing. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,
1025 (Fed.Cir. 1999); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185 (CCPA 1982). Opposer also has standing by virtue of its application
being suspended pending the disposition of the application at issue in this
opposition. Lipton Industries, Inc. v. Ralston Purina Co., 213 USPQ at 189.

1 Opposer proffered items (B)(iii) and (iv) through Trademark Rule 2.120(j) as applicant’s
responses to opposer’s written discovery. However, Trademark Rule 2.120(j)(3)(ii)
specifically excludes documents obtained under Rule 34 of the Federal Rules of Civil
Procedure unless they are admissible under the provisions of Trademark Rule 2.122(e). In
this situation, the documents are admissible by virtue of our holding in Safer noted above.
2 Strickhouser Dep., pp. 6-7.
Opposition No. 91195817
5

Priority
In order to prevail on the ground of likelihood of confusion under Section 2(d)
of the Trademark Act, it is the opposer’s burden to prove both priority of use and
likelihood of confusion. Because the opposer in this case has not submitted any
registrations, it must rely on its common law rights, and is not entitled to any of the
presumptions accorded to a registration by Section 7(b) of the Trademark Act.
With respect to the issue of priority, applicant did not submit any evidence
about its use of its mark and, therefore, the earliest date on which it may rely is the
filing date of its application, June 29, 2009, which is its constructive use date.
“To establish priority, the [plaintiff] must show proprietary rights in the
mark that produce a likelihood of confusion …. These proprietary rights may arise
from a prior registration, prior trademark or service mark use, prior use as a trade
name, prior use analogous to trademark or service mark use, or any other use
sufficient to establish proprietary rights." Herbko International, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002). [Internal
citations omitted.]
Michael Strickhouser testified that opposer first began doing business as
Generation’s Afield in late February 2009.3
Q. And what does Generation’s Afield do as a
business?
A. We film hunts with sponsors or people that donate
hunts to us … And then we have a producer that
edits them to put them out on TV shows.

3 Strickhouser Dep., p. 6. See also Strickhouser Dep., p. 11.
Opposition No. 91195817
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Q. By “hunts,” you mean – do you mean hunting,
fishing?
A. Yeah. Hunting, fishing, yeah. Just about anything
that has to do with the outdoors.4
To corroborate his testimony, Mr. Strickhouser identified a photograph taken
on March 21, 2009 at a Hunters Helping Kids event displaying opposer’s logo.5 Mr.
Strickhouser also identified a “video still” from a video segment published on
YouTube in March 2009.6 Finally, Mr. Strickhouser identified an advertising
brochure displaying opposer’s mark that was distributed in April 2009.7
In view of the foregoing, we find that opposer has established prior use of its
Generation’s Afield logo in connection with television shows and videos published
on the Internet in the field of hunting, fishing and outdoor activities.
Likelihood of Confusion
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 issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry

4 Strickhouser Dep., p. 6.
5 Strickhouser Dep., pp. 11-12; Exhibit 1.
6 Strickhouser Dep., pp. 12-13; Exhibit 2.
7 Strickhouser Dep., pp. 13-14; Exhibit 3.
Opposition No. 91195817
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mandated by §2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
A. The similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression.
We turn first to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, any one of these means of comparison may be
critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In
comparing the marks, we are mindful that 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 so
that confusion as to the source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the recollection of the average
customer.
Opposition No. 91195817
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Applicant’s mark is GENERATIONS AFIELD, in standard character form,
and opposer’s mark is GENERATION’S AFIELD T.V. SHOW and design shown
below.

The marks are similar to the extent that they both include the term
GENERATIONS AFIELD. Because the similarity or dissimilarity of the marks is
determined based on the marks in their entireties, the analysis cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also
Franklin Mint Corp. V. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of
confusion”). On the other hand, different features may be analyzed to determine
whether the marks are similar. Price Candy Company v. Gold Medal Candy
Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, there is
nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 224 USPQ
Opposition No. 91195817
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at 751. For the reasons set forth below, we find that the term GENERATION’S
AFIELD is the dominant portion of opposer’s mark.
In the case of marks consisting of words and a design, the words are normally
given greater weight because they would be used by consumers to request the
services. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re
Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed.
Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ
390 (Fed. Cir. 1983). In this regard, the term GENERATION’S AFIELD is
presented in a larger font catches the attention of the viewer.
The significance of the term GENERATION’S AFIELD as the dominant
element of opposer’s mark is further reinforced by its location as the first part of the
mark. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered”). See also Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE
CLICQUOT because “veuve” is the first word in the mark and the first word to
appear on the label); Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers will first notice the identical lead word).
Opposition No. 91195817
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Finally, the term GENERATION’S AFIELD is the dominant element of
opposer’s mark because the term “T.V. Show” is descriptive and opposer disclaimed
the exclusive right to use it. It is well-settled that disclaimed, descriptive matter
may have less significance in likelihood of confusion determinations. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000), quoting, In re National Data Corp., 224 USPQ at 752 (“Regarding descriptive
terms, this court has noted that the descriptive component of a mark may be given
little weight in reaching a conclusion on the likelihood of confusion”); In re Dixie
Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re
Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is
often “less significant in creating the mark’s commercial impression”).
The dominant element of opposer’s mark is the term “Generation’s Afield”
which is virtually identical to applicant’s mark GENERATIONS AFIELD.
See Winn's Stores, Incorporated v. Hi-Lo, Inc., 203 USPQ 140, 143 (TTAB 1979)
(little if any trademark significance can be attributed to apostrophe and letter “s“ in
opposer's mark “Winn's“ when compared with applicant's mark “Win-
Way”); Goodyear Tire & Rubber Company v. Dayco Corporation, 201 USPQ 485,
488 n.4 (TTAB 1978) (“Fast-Finder” with hyphen is in legal contemplation
substantially identical to “Fastfinder” without hyphen). See also B.V.D. Licensing v.
Body Action Design, 846 F.2d 727, 6 USPQ2d 1717, 1721 (Fed. Cir. 1988) (B.A.D.
will be viewed as the word “bad”); and Henry I. Siegel Co., Inc. v. Highlander, Ltd.,
183 USPQ 496, 499 (TTAB 1974) (H.I.S. will be viewed as “his”).
Opposition No. 91195817
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Where, as here, the dominant element of opposer’s mark GENERATION’S
AFIELD T.V. SHOW and design is the term “Generation’s Afield” which
incorporates the entirety of applicant’s mark GENERATIONS AFIELD, the Board
has often found that the marks are similar. See, In re Mighty Leaf Tea, 601 F.3d
1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to
registrant’s mark ML MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d
324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women's dresses
is likely to be confused with LILLI ANN for women's apparel including dresses); In
re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE
for women's clothing stores and women's clothing likely to cause confusion with
CREST CAREER IMAGES for uniforms including items of women's clothing). In
United States Shoe, the Board observed that “Applicant's mark would appear to
prospective purchasers to be a shortened form of registrant's mark.” 229 USPQ at
709. Likewise, in this case, applicant’s use of GENERATIONS AFIELD would
appear to be a shortened form of opposer’s mark GENERATION’S AFIELD T.V.
SHOW and design.
In view of the foregoing, we find that the marks are similar in terms of
appearance, sound, meaning and commercial impression.
B. The similarity or dissimilarity and nature of the services described in the
application and through opposer’s use.
Applicant is seeking to register its mark for “entertainment services in the
nature of on-going television programs in the field of hunting, fishing and other
outdoor activities.” Michael Strickhouser, opposer’s President, testified that
Opposition No. 91195817
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opposer has been using its mark for television shows and YouTube videos featuring
hunting, fishing and other outdoor activities.8 Because both parties are using their
marks in connection with television shows in the field of hunting, fishing and
outdoor activities, we find that the services are in part identical.
C. The similarity or dissimilarity of likely-to-continue trade channels and
classes of consumers.
Because there are no limitations as to channels of trade or classes of
purchasers in the description of goods in applicant’s application, it is presumed that
applicant’s services move in all channels of trade normal for those services, and that
they are available to all classes of purchasers for those services. See Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813,
1815(Fed. Cir. 1987); Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340, 343 (TTAB
1983). On the other hand, because opposer is relying on common law rights, it must
provide evidence regarding its channels of trade and classes of consumers.
However, because the services are in part identical and applicant’s trade channels
and classes of consumers presumably cover all channels of trade and classes of
consumers for television services in field of hunting, fishing and outdoor activities,
applicant’s channels of trade and classes of consumers must necessarily overlap
with those of opposer.
Nevertheless, the evidence in the record shows at least one instance where
the channels of trade and classes of consumers are the same. On March 21, 2009,

8 Strickhouser Dep., pp. 6 and 11-14; Exhibits 1-3.
Opposition No. 91195817
13

opposer attended a Hunters Helping Kids event.9 In the specimen of use filed with
applicant’s application, there is an article that reports that “Hunters Helping Kids
invited [applicant] to cover all of the Hunters Helping Kids events.”
In view of the foregoing, we find that the parties’ services move in the same
channels of trade and are sold to the same classes of consumers.
D. Balancing the factors.
In view of the facts that the marks are very similar, the services are in part
identical and they move in the same channels of trade and are sold to the same
classes of consumers, we find that applicant’s mark GENERATIONS AFIELD, in
standard character form, for “entertainment services in the nature of on-going
television programs in the field of hunting, fishing and other outdoor activities,” is
likely to cause confusion with opposer’s mark GENERATION’S AFIELD T.V.
SHOW and design for television shows and YouTube videos in the field of hunting,
fishing and outdoor activities.
Decision: The opposition is sustained and registration to applicant is
refused.

9 Strickhouser Dep., pp. 11-12; Exhibit 1.