Infinity Broad-casting Corp. of Dallas

Trademark Trial and Appeal Board

Aug 15, 2001

No. 75689077 (T.T.A.B. Aug. 15, 2001)

8/15/01

Paper No. 10
JQ

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Infinity Broadcasting Corporation of Dallas
________

Serial No. 75/689,077
_______

Robert P. Lenart for applicant.

Andrew J. Benzmiller, Trademark Examining Attorney, Law
Office 113 (Meryl Hershkowitz, Managing Attorney).
_______

Before Seeherman, Quinn and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application was filed by Infinity Broadcasting
Corporation of Dallas to register the mark KYNG for “radio
broadcasting services.”1
The Trademark Examining Attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, when used in connection with applicant’s
services, so resembles the previously registered marks

1 Application Serial No. 75/689,077, filed April 21, 1999,
alleging first use and first use in commerce on March 9, 1992.
THIS DISPOSITION
IS CITABLE AS PRECEDENT
OF THE T.T.A.B.

Ser No. 75/689,077
2
KING-TV for “television broadcasting services”2 and KING FM
for “radio broadcasting services”3 as to be likely to cause
confusion. The registered marks are owned by the same
entity.
When the refusals were made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An
oral hearing was not requested.
Applicant’s Arguments
Applicant contends that the marks differ in
appearance, sound and meaning. Applicant goes on to argue
that commercial radio and television station call letters
are assigned by the Federal Communications Commission; that
the call letters must be broadcast hourly; and that they
are broadcast by pronouncing the individual letters in
sequence, not as words. Applicant points to its specimen
that is an audio cassette tape (bearing a label showing use
of “KYNG-FM”) of an on-air broadcast in which the mark is
pronounced as a series of letters. Applicant also asserts
that the respective marks are used in different markets,
with applicant’s broadcasting country music in Dallas,
Texas and registrant’s broadcasting classical music in

2 Registration No. 1,503,302, issued September 6, 1988; combined
Sections 8 and 15 affidavit filed.
3 Registration No. 2,059,389, issued May 6, 1997. The
designation “FM” is disclaimed apart from the mark.
Ser No. 75/689,077
3
Seattle, Washington. Applicant asserts that its
customers are sophisticated purchasers, maintaining that
commercial radio stations do not obtain any revenue from
listeners, and that the consumers of a radio station’s
services can only be the advertisers who pay the radio
station for its broadcasting services. Applicant points to
a district court decision between it and a third party
involving a claim of likelihood of confusion wherein the
court noted that purchasers of radio broadcasting services
are advertisers and that they are sophisticated. In that
case, the court found no likelihood of confusion between
the use of WBCN and WBCS by different radio stations in the
same geographical market. Infinity Broadcasting Corp. v.
Great Boston Radio, II, Inc., 32 USPQ2d 1925 (D.C. Mass.
1994). Applicant asserts that the case offers a “rational
approach” for deciding the present appeal.
Examining Attorney’s Arguments
The Examining Attorney maintains that the marks are
similar in sound, appearance and overall commercial
impression. The Examining Attorney contends that
applicant’s mark, when spoken aloud as a service mark (as
opposed to mere call letters), will be pronounced as
“KING.” With respect to the services, they are identical
with respect to Registration No. 2,059,389, and closely
Ser No. 75/689,077
4
related with respect to Registration No. 1,503,302. In
this connection, the Examining Attorney submitted third-
party registrations showing that entities have registered
their marks for both radio and television broadcasting
services. The Examining Attorney also maintains that in
addition to advertisers, the listeners to radio and viewers
of television must be considered consumers of the stations’
broadcasting services. With respect to the argument that
the services are separated geographically, the Examining
Attorney points out that federal trademark registrations
are nationwide in scope and that radio broadcasts are
offered on the Internet and, thus, may be accessed anywhere
in the country.
Analysis
It is clear from the record, as well as applicant’s
and the Examining Attorney’s arguments, that both
applicant’s and registrant’s marks are call letters. The
Board determined in 1985 that radio call letters were
registrable in the case of In re WSM, Inc., 225 USPQ 883,
884 (TTAB 1985). At the outset, we offer a bit of
perspective set forth in that case with respect to
obtaining particular call letters from the Federal
Communications Commission:
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5
The FCC [Federal Communications
Commission] licenses applicant to
broadcast from a specified geographic
location on a specified frequency at a
specified power during specified times.
47 U.S.C. 303(c). The FCC exercises
its authority under 47 U.S.C. 303(o) to
“designate” call letters for licensed
broadcasters by permitting the
broadcasters to request whatever call
letters they like. Prior to 1984 the
requests were granted unless: (1)
another station had the same call
letters, (2) the requested call letters
were not in good taste, or (3) the
requested letters were phonetically and
rhythmically similar to existing call
letters of stations in the same area,
so that the stations would likely be
confused. Prior to 1984 the FCC
administered a system whereby one
licensed station could object to the
approval of another station’s call
letters, but only if both stations were
to serve the same area. These disputes
between broadcasters were resolved by
the FCC. The interests of anyone who
was not a broadcaster were never
considered by the FCC.

In 1984 the FCC rules regarding
call letter approval and conflicts were
changed. The agency will now grant a
request for particular call signs if
the identical call sign is not already
in use by someone else, and the FCC is
no longer a forum for the resolution of
disputes between stations. Section
73.3550(g) of the FCC Rules now
provides as follows:

[A]pplicants may request call
signs of their choice if the
combination is available.
Objections to the assignment of
requested call signs will not be
entertained at the FCC. However,
Ser No. 75/689,077
6
this does not hamper any party
from asserting such rights as it
may have under private law in
some other forum. Should it be
determined by an appropriate
forum that a station should not
utilize a particular call sign,
the initial assignment of a call
sign will not serve as a bar to
the making of a different
assignment.

It is clear that the FCC is not
the owner of the call letters used by
the broadcasters which it regulates.
The right to broadcast is what the
agency licenses to broadcasters. The
right to use the call letters is not
licensed in a trademark sense. The FCC
neither adopts nor uses call letters as
service marks, so it does not own any
such marks. Even prior to its new
rules the agency did not assert
ownership of call letters. It acted
only as a third party to resolve
disputes between the owners of the call
letters, the broadcasters who actually
use them.

Id. at 884.
In the time since the FCC changed its rules, there
have been a number of decisions involving likelihood of
confusion between broadcasting call letters. See, e.g.:
Infinity Broadcasting Corp. v. Greater Boston Radio II,
Inc., supra; Pride Communications v. WCKG Inc., 851 F.Supp.
895, 30 USPQ2d 1185 (N.D. Ill. 1994); Virginia Tech
Foundation, Inc. v. Family Group, Limited V, 666 F.Supp.
856, 2 USPQ2d 1961 (W.D. Va. 1987); Pathfinder
Ser No. 75/689,077
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Communications Corp. v. Midwest Communications Co., 593
F.Supp. 281, 224 USPQ 203 (N.D. Ind. 1984); USA Network v.
Gannett Co., 584 F.Supp. 195, 223 USPQ 678 (D. Colo. 1984);
and Draper Communications, Inc. v. Delaware Valley
Broadcasters Ltd. Partnership, 229 USPQ 161 (Del. Ch.
1985). These courts, in determining likelihood of
confusion issues, have treated call letters in the same way
as any other service mark. See: 1 J. T. McCarthy,
McCarthy on Trademarks and Unfair Competition, §7:12 (4th
ed. 2001).
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion
issue. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the services. Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We first turn to the similarities between applicant’s
mark KYNG and registrant’s marks KING-TV and KING FM. We
find that the marks, when considered in their entireties,
are similar in sound, appearance and meaning. In comparing
the marks, we have considered the presence of “TV” and “FM”
Ser No. 75/689,077
8
in registrant’s respective marks. However, “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 [that] the ultimate conclusion rests on
consideration of the marks in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). For example, “that a particular feature is
descriptive or generic with respect to the involved goods
or services is one commonly accepted rationale for giving
less weight to a portion of a mark...” Id. at 751.
In the present case, registrant’s marks are dominated
by the “KING” portion. The terms “TV” and “FM” clearly are
descriptive and/or generic when used in connection with
television broadcasting services and radio broadcasting
services, respectively, and have no source-identifying
value. Thus, these two terms are subordinate to the
dominant portion.
The dominant portion KING in registrant’s mark and
applicant’s mark KYNG are similar in appearance. Not only
do they differ by only one letter, but this letter is the
second letter in each mark, and in each mark is a vowel
surrounded by the same consonants in the same order. As a
result, they present strongly similar visual similarities.
Ser No. 75/689,077
9
With respect to sound, the terms “KING” and “KYNG,” if
pronounced as “words,” are phonetic equivalents. The
letter “y” often has the sound of a short “i” (as, for
example, in the word “system”), and it is logical that the
letter “Y” in applicant’s mark would be pronounced as such
given the visual similarity between applicant’s mark and
the word “king.” Further, we are not persuaded by
applicant’s argument regarding the letter-by-letter
pronunciation of the marks when they are broadcast over the
airwaves. The letters “I” and “Y” sound very much alike,
as would “K-Y-N-G” and “K-I-N-G.” The letters may also be
pronounced as the term “king” by announcers when not doing
the federally required announcement, and may be shortened
to the single syllable “king” by listeners. It would not
surprise us if applicant’s mark, when spoken on the radio
or used in promotional activities, were pronounced as the
term “king” (as in, “you are listening to the king of
country music in Dallas”).
As to meaning, our view is that applicant’s mark
“KYNG”, when viewed as the phonetic equivalent of the term
“KING,” would convey the meaning of the commonly understood
Ser No. 75/689,077
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term “king,” that is, the same meaning conveyed by
registrant’s marks.4
In sum, the marks, when considered in their
entireties, engender similar overall commercial
impressions.
We next turn to a comparison of the services. The
services are legally identical in that both applicant’s and
registrant’s services are identified as “radio broadcasting
services.” Further, applicant’s “radio broadcasting
services” are closely related to registrant’s “television
broadcasting services.”
As is obvious, registrant itself renders both types of
services under virtually identical marks (differing only in
the descriptive and/or generic designations “TV” and “FM”).
Further, registrant’s situation is not unique in the
broadcasting industry. The Examining Attorney has
submitted several third-party registrations based on use.
The registrations show that entities have registered their
marks for both television and radio broadcasting services.
Although these registrations are not evidence that the
marks shown therein are in use or that the public is

4 If applicant’s mark were to be strictly perceived as a letter
mark, we recognize that the mark would have a connotation
different from the “word” pronunciation of KING-FM and KING-TV.
Ser No. 75/689,077
11
familiar with them, they nevertheless have probative value
to the extent that they serve to suggest that the services
listed therein, including television and radio
broadcasting, are of a kind which may emanate from a single
source. See, e.g., In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB 1988).
In attempting to distinguish the services, applicant
argues as follows (Brief, p. 4):
[S]ince the applicant’s mark and the
marks in the cited registrations are
used in connection with different radio
stations located in different markets,
the channels of distribution used by
applicant and the owner of the cited
registrations are clearly different.
The applicant uses the mark in
connection with a radio station in
Dallas, Texas, while the marks in the
cited registrations appear to the [sic]
used in connection with radio and
television stations in Seattle,
Washington. Thus, the services covered
by the marks are performed in different
markets.

Given that registrant’s registrations encompass
nationwide rights, and that applicant is seeking a
geographically unrestricted registration, applicant’s
argument is unavailing. This argument highlights, however,
a notable difference between situations involving the use
of call letters (for example, as determined by the FCC or
Ser No. 75/689,077
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through trademark infringement litigation in a civil
action) versus Office proceedings such as this one, which
involve the right to a geographically unrestricted federal
service mark registration. See: Pathfinder Communications
Corp. v. Midwest Communications Co., supra at 204
[“Implicit in the FCC’s relinquishment of its role as
arbiter of call letter disputes is the conclusion that,
when local courts resolve call letter disputes, the law of
that local forum and circuit would apply.”]. If a
geographically unrestricted registration were to issue to
applicant, the registration would give applicant certain
presumptions under Section 7(b) of the Trademark Act,
including a presumption of applicant’s exclusive right to
nationwide use of the registered mark in commerce in
connection with radio broadcasting services.5 These
nationwide rights are different from those arising from
territorial use. That is to say, in Board proceedings,
likelihood of confusion is determined independent of the
context of actual usage. In an infringement action, on the
other hand, the context of the use of the marks is

5 We note applicant’s statement that registrant has a website on
the Internet at www.king.org (response, March 11, 2000), and the
Examining Attorney’s statement that “online broadcasts are
offered via the Internet [that] can be accessed anywhere in the
country” (brief, p. 7). Although there is no evidence of record
on these points, it is common knowledge that radio broadcasts may
be heard in realtime on the Internet.
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relevant. See, e.g., Jim Beam Brands Co. v. Beamish &
Crawford, Ltd., 937 F.2d 729, 19 USPQ2d 1352 (2d Cir.
1991). See also: McCarthy on Trademarks and Unfair
Competition, supra at §§32:82 and 32:100. For this reason,
infringement cases in which no likelihood of confusion has
been found because the marks are used in different
geographical areas are not helpful to our analysis in this
appeal.
Applicant also argues that in the case of radio and
television broadcasting services, the relevant purchasers
of such services are advertisers, and the likelihood of
confusion analysis should focus on these purchasers.
Applicant contends that these purchasers “are sophisticated
and would not be likely to buy advertising time on the
applicant’s station thinking that they were buying time on
the registrant’s station.” (Brief, p. 6) Further,
applicant argues that “[c]onfusion on the part of listeners
is considered to be irrelevant to this analysis, but even
such confusion is unlikely in view of the geographic
separation between the applicant’s station and the
registrant’s station.” (Id.).
Applicant has cited to cases wherein courts have
identified advertisers as the purchasers of radio
broadcasting services. See, e.g., Infinity Broadcasting
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Corp. v. Great Boston Radio, II, Inc., supra. We agree
that advertisers comprise one of the classes of purchasers
of applicant’s and registrant’s services, and that they are
likely to be sophisticated when it comes to buying
advertising time on the airwaves.
We also find, however, that the public at large who
watches television and listens to radio comprises another
class of consumers that is relevant to our likelihood of
confusion analysis. Although these individuals do not
“purchase” broadcasting services in the sense that they pay
for such services (other than, for example, paying for
cable television, satellite television, premium channels
and the like), the broadcast services are certainly
directed to this class that “uses” the services, and
likelihood of confusion among viewers and listeners is
relevant. As the Federal Circuit stated in Electronic
Design & Sales Inc. v. Electronic Data Systems Corp., 954
F.2d 713, 21 USPQ2d 1388, 1390 (Fed. Cir. 1992):
For determining likelihood of
confusion...“relevant persons” is not
always limited to purchasers, past or
future. For some owners of marks, such
as the American Red Cross with its
well-known mark, there are no
purchasers. In these instances,
“relevant persons” would encompass all
who might know of their services and
then become purchasers of goods or
services of others.
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See also: Payless Shoesource Inc. v. Reebok International
Ltd., 998 F.2d 985, 27 USPQ2d 1516, 1519 (Fed. Cir.
1993)[“[S]everal of our sister circuits have recognized
that an action for trademark infringement may be based on
confusion of consumers other than direct purchasers...”].
The Board also has weighed in with its view on this point
in the case of In re Artic Electronics Co., Ltd., 220 USPQ
836, 838 (TTAB 1983):
We concur entirely with the contentions
of the Examining Attorney that in
addition to source confusion among
buyers, source confusion among ultimate
users of the goods...is both likely and
encompassed with the confusion
proscriptions of Section 2(d). The
notion that likelihood of confusion is
limited to purchaser confusion is
simply not correct. The 1962
amendments to the Trademark Act, both
in its sections relating to standards
for refusal of registration and for
trademark infringement, explicitly
deleted the qualifying term
“purchasers” after referring to marks
likely “to cause confusion, or to cause
mistake or to deceive,” thereby
evincing an intention to remove any
limitation of such standards to
purchasers of goods.

In view thereof, it is clear that likelihood of confusion
under Section 2(d) encompasses situations when even
relevant non-purchasers are confused, mistaken or deceived.
Therefore, applicant’s contention that listeners of radio
Ser No. 75/689,077
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are irrelevant to the analysis is not persuasive. See
generally: McCarthy on Trademarks and Unfair Competition,
supra at §23:7.
Everyday listeners of radio or viewers of television
are not likely to exercise anything more than ordinary care
when distinguishing between the call letters of the
broadcasting stations. With respect to these everyday
listeners and viewers, we have kept in mind the normal
fallibility of human memory over time and the fact that
consumers retain a general, rather than a specific,
impression of trademarks/service marks encountered in the
marketplace. See: Weiss Associates Inc. HRL Associates
Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990).
As a closing thought, we would add that a
determination of likelihood of confusion involving call
letters, while governed by the du Pont factors, presents
some special difficulties. We recognize that the FCC
issues licenses to parties to use very similar call
letters, and that the public is aware that call letters for
separate radio and television stations may vary by just one
letter. As a result, call letters may be able to be closer
to each other without causing likelihood of confusion than
would be the case for other marks for other goods or
services. Our finding of likelihood of confusion in this
Ser No. 75/689,077
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case should not be read as asserting a principle that
confusion is likely if call letters for radio or television
broadcasting services differ by just one letter. Here, we
have found the marks to be confusingly similar because of
the identity of the remaining letters and the similarity of
the differing letters in terms of the similar effect of
those letters in the marks as a whole, as discussed supra.
Lastly, to the extent that any of the points argued by
applicant 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); and In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusals to register are affirmed.
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