Mark A. FlanneryDownload PDFTrademark Trial and Appeal BoardMay 27, 2009No. 76665792re (T.T.A.B. May. 27, 2009) Copy Citation Mailed: May 27, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Mark A. Flannery ________ Serial No. 76665792 On Request for Reconsideration _______ Robert J. Jacobson, Esq., for Mark A. Flannery. Katherine S. Chang, Trademark Examining Attorney, Law Office 115 (Tomas V. Vlcek, Managing Attorney). _______ Before Seeherman, Hairston, and Ritchie, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: On April 14, 2009, the Board issued a decision affirming the Office’s refusal to register applicant’s mark HIDE-AWAY in stylized form as shown below, on the ground of likelihood of confusion under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. §1052(d): THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 76665792 2 Applicant has timely filed a request for reconsideration of the Board’s decision. In his request, applicant argues that the Board’s decision is in error with regard to (1) the Board’s identification and discussion of the goods at issue in the application and the cited registration; (2) the Board’s identification and discussion of the goods at issue in the third-party registrations; and (3) the Board’s identification and discussion of the goods at issue in the third-party websites. We have considered each of the three alleged errors raised by applicant in his request for reconsideration. In each instance, we find that the subject of the alleged error was fully argued by applicant in his brief and correspondingly addressed by the Board in the April 14 decision. With regard to the first alleged error, the Board quoted the respective goods of applicant and registrant exactly as set forth in their respective identifications. To the extent the decision characterized the goods (such as referring on p.4 to “daybeds, sleeper sofas, or other adjustable beds, as identified by the registrant”), we do not find such characterization to be mistaken. Accordingly, we find no error on this ground. With regard to the second alleged error, the Board relied on several use-based, third-party registrations of record in reaching the conclusion that consumers are likely to believe that the respective goods identified by applicant and registrant are of the type that may emanate from a single source. For example, Registration No. 2017742 includes both “bed rails” and Serial No. 76665792 3 “daybeds,” as does Registration No. 2017743. Registrations No. 76096732 and 76097369 include distributorship services of both “bed frames and rails” and “beds” without limitation as to type. Despite applicant’s argument about nomenclature on the third- party registrations and websites, using a slightly different characterization (such as “bed rail” instead of “bed safety rail”) does not change our analysis regarding likelihood of confusion. With regard to the third alleged error, the Board relied on several websites of record in reaching the conclusion that consumers are likely to believe that the respective goods identified by applicant and registrant are of the type that may emanate from a single source. For example, STACKS AND STACKS™, the Homewares place (www.stacksandstacks.com), American Bedding Manufacturer’s Inc. (www.campmattress.com), and 1st Senior Care (www.1stseniorcare.com), each offer for sale to the general public both bed safety rails, as identified by applicant, and folding beds or cots, as identified in the cited registration. Because we find no error in the Board’s findings or discussion, respondents’ request for reconsideration is denied. Copy with citationCopy as parenthetical citation