Landmark General Corp.

Trademark Trial and Appeal Board

Sep 28, 1999

No. 75265925 (T.T.A.B. Sep. 28, 1999)

Paper No. 9
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 9/28/99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Landmark General Corporation
________
Serial No. 75/265,925
_______
J. Jay Guiliano of Hancock & Estabrook, LLP for Landmark General
Corporation.
Craig D. Taylor, Trademark Examining Attorney, Law Office 107
(Tom Lamone, Managing Attorney).
_______
Before Cissel, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Landmark General Corporation has filed an application
to register the mark "LANDMARK" for "calendars, diaries,
appointment books and event planners."1

1 Ser. No. 75/265,925, filed on March 28, 1997, which alleges dates of
first use of December, 1980. Although, at the time applicant filed
its appeal, the goods in the application were identified as
"calendars, diaries, appointment books and other date indicating
goods," applicant requests in its appeal brief that the identification
of its goods be amended to read: "calendars, diaries, appointment
books and event planners." Inasmuch as the Examining Attorney, in his
appeal brief, has so referred to applicant’s goods and has raised no
objection thereto, the application is accordingly deemed to have been
amended by Examiner’s Amendment to identify applicant’s goods as set
forth above.
Ser. No. 75/265,925
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles both of
the "LANDMARK BOOKS" and design marks reproduced side by side
below,
which are registered, by the same registrant, for "books,"2 as to
be likely to cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
While applicant concedes in its brief that its mark and
the registered marks "appear similar," applicant maintains that
such marks "are for substantially different goods."3 In
particular, applicant notes that, other than consisting of

2 Respectively, Reg. No. 550,033, issued on October 23, 1951 with a
disclaimer of the word "BOOKS," and setting forth dates of first use
of October 12, 1950; second renewal; and Reg. No. 967,098, issued on
August 28, 1973, and setting forth dates of first use of October,
1950; first renewal.
3 Although applicant also contends that the respective marks "have been
used on different goods for approximately 18 years without any
resulting confusion," there is no affidavit or other evidence in the
record to support such a statement. Accordingly, applicant’s
contention that there have no incidents of actual confusion during a
period of contemporaneous use of the respective marks will not be
given further consideration.
Ser. No. 75/265,925
3
printed material, its calendars, diaries, appointment books and
event planners "do not share any other similarities" with
registrant’s books. According to applicant, its products pertain
to recording data or indicating dates and are purchased by
persons seeking to maintain written data for record keeping
purposes. Registrant’s goods, applicant argues, are not designed
for such uses, but are instead the literary or printed works of
specific authors. In addition, applicant insists that because
its goods and those of registrant "are displayed to the consumer
according to the content and use of the respective goods, there
would be no overlap of consumer impression during the goods-
selection process" and hence no likelihood of confusion.4
The Examining Attorney, on the other hand, correctly
points out that it is well settled that the issue of likelihood
of confusion must be determined in light of the goods set forth
in the involved application and cited registrations and that, in
the absence of any specific limitations therein, on the basis of
all normal and usual channels of trade and methods of
distribution for such goods. See, e.g., CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy
Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and
Paula Payne Products Co. v. Johnson Publishing Co., Inc., 473

4 While applicant also asserts that "the fact that [a] registration was
[also later] granted for the mark LANDMARKS OF FREEDOM for goods
identified as ’calendars’ ... further indicates that ’books’ are
sufficiently different from ’calendars’ so that a likelihood of
confusion is remote," we note that a more plausible explanation for
allowance of such registration is that the mark which is the subject
thereof plainly is substantially different in commercial impression
from the cited "LANDMARK BOOKS" and design marks.
Ser. No. 75/265,925
4
F.2d 901, 177 USPQ 76, 77 (CCPA 1973). The Examining Attorney
thus takes the position that "since there are no limitations in
the [cited] registrations, it is reasonable to infer that
registrant’s ’books’ could conceivably encompass applicant’s
’diaries and appointment books.’" While applicant criticizes
such viewpoint as being rather simplistic, applicant’s "diaries"
and "appointment books," strictly speaking, are in fact types of
"books" and, as such, are encompassed within the scope of
registrant’s registrations.5 Applicant’s goods consequently are
in part identical to registrant’s goods.6 If such goods,

5 We judicially notice, in this regard, that that Webster’s New World
College Dictionary (1997) at 380 defines "diary" as "1 a daily written
record, esp. of the writer’s own experiences, thoughts, etc. 2 a book
for keeping such a record" and at lists "book" in relevant part as "1
a) a number of sheets of paper, parchment, etc. with writing or
printing on them, fastened together along one edge, usually between
protective covers b) a literary or scientific work, anthology, etc. so
prepared, distinguished by length and form from a magazine, tract,
etc. ... 3 a) a set of blank or ruled sheets or printed forms bound
in a tablet, for the entry of accounts, records, notes, etc. [an
account book]". In the same vein, The Random House Dictionary of the
English Language (2d ed. 1987) at 548 defines the former as "1. a
daily record, usually private, esp. of the writer’s own experiences,
observations, feelings, attitudes, etc. 2. a book for keeping such a
record. 3. a book or pad containing pages marked and arranged in
calendar order, in which to note appointments and the like," while the
latter at 239 is similarly set forth in pertinent part as "1. a
written or printed work of fiction or nonfiction, usually on sheets of
paper fastened or bound together within covers. 2. a number of sheets
of blank or ruled paper bound together for writing, recording business
transactions, etc." It is settled that the Board may properly take
judicial notice of dictionary definitions. See, e.g., Hancock v.
American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ 330,
332 (CCPA 1953) and University of Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
6 It is well established that a refusal under Section 2(d) of the
statute is proper if use of the respective marks in connection with
any of the goods set forth in the application and cited registrations
would be likely to cause confusion. See, e.g., Tuxedo Monopoly, Inc.
v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981) [likelihood of confusion must be found if use of a mark for any
Ser. No. 75/265,925
5
therefore, were to be marketed under the same or similar marks,
confusion as to the source or sponsorship thereof would be likely
to occur.
Turning, then, to consideration of the marks at issue,
applicant asserts that while they are similar in view of the
shared term "LANDMARK," the respective marks are nevertheless
distinguishable "in terms of commercial impression" due to the
presence of the generic word "BOOKS" in registrant’s marks. We
agree with the Examining Attorney, however, that neither such
word nor the design elements in registrant’s mark are sufficient
to differentiate the registered marks from applicant’s mark and
that confusion as to origin or affiliation of the respective
goods is likely.
In particular, as the Examining Attorney properly
points out, while the respective marks must be compared in their
entireties, it is nevertheless the case that, in articulating
reasons for reaching a conclusion as to the issue of likelihood
of confusion, "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 instance, "that a particular
feature is descriptive or generic with respect to the involved

item in an applicant’s application is likely to cause confusion with a
mark for any of registrant’s goods] and Shunk Mfg. Co. v. Tarrant Mfg.
Co., 318 F.2d 328, 137 USPQ 881, 883 (CCPA 1963) [where there is a
Ser. No. 75/265,925
6
goods ... is one commonly accepted rationale for giving less
weight to a portion of a mark ...." 224 USPQ at 751.
Here, the word "BOOKS" in registrant’s "LANDMARK BOOKS"
and design marks plainly is a generic term for registrant’s
goods. It is therefore the term "LANDMARK" which serves as the
dominant and source-distinguishing element in such marks.
Although registrant’s marks also contain various design elements,
the script style of the word "LANDMARK" in both marks and the
additional pictorial background in one of those marks are clearly
subordinate features which would not serve to distinguish such
marks from applicant’s "LANDMARK" mark. Overall, the respective
marks are substantially similar in sound, appearance and
connotation and they create essentially the same commercial
impression when used in connection with the respective goods.
Consequently, even if purchasers and prospective
customers were to notice the differences in the marks, it would
still be reasonable for them to believe, for example, that
applicant’s "LANDMARK" mark for, in particular, diaries and
appointment books simply designates a new or additional product
line emanating from, or sponsored by, the same source as the
publisher of books which are sold under the "LANDMARK BOOKS" and
design marks.
Decision: The refusal under Section 2(d) is affirmed.
R. F. Cissel

likelihood of confusion as to any of goods listed in an application,
it is unnecessary to rule on other goods listed therein].
Ser. No. 75/265,925
7
G. D. Hohein
P. T. Hairston
Administrative Trademark Judges,
Trademark Trial and Appeal Board