Pyro-Spectaculars, Inc.

Trademark Trial and Appeal Board

Aug 29, 2001

No. 75405999 (T.T.A.B. Aug. 29, 2001)

8/29/01 Paper No. 13
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Pyro-Spectaculars, Inc.
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Serial No. 75/405,999
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Jeffrey L. Van Hoosear and Lynda J. Zadra-Symes of Knobbe,
Martens, Olson & Bear, LLP for Pyro-Spectaculars, Inc.

Gene V.J. Maciol, II, Trademark Examining Attorney, Law Office
109 (Ronald R. Sussman, Managing Attorney).
_______

Before Hohein, Wendel and Rogers, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

Pyro-Spectaculars, Inc. has filed an application to
register the mark "SKY CONCERT" for "entertainment services,
namely, production of events and shows featuring pyrotechnics
synchronized with music."1

1 Ser. No. 75/405,999, filed on December 16, 1997, which alleges dates
of first use anywhere and in commerce of 1975.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/405,999
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 services, so
resembles the mark "CONCERT IN THE SKY," which is registered for
"entertainment services in the nature of a musical fireworks
show,"2 as to be likely to cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not held.3 We affirm the refusal to
register.
The determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 568 (CCPA 1973). However, as
indicated in Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976), in any likelihood of
confusion analysis, two key considerations are the similarity of
the goods and/or services and the similarity of the marks.4

2 Reg. No. 1,348,659, issued on July 9, 1985, which sets forth dates of
first use anywhere and in commerce of July 4, 1976; affidavit §8
accepted. The word "CONCERT" is disclaimed.

3 Although applicant submitted a request for an oral hearing, it
subsequently withdrew such request.

4 The court, in particular, pointed out that: "The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods [and/or services] and
differences in the marks."
Ser. No. 75/405,999
3
Here, inasmuch as applicant's services are in essence identical
and otherwise closely related to registrant's services5 since
both involve the presentation of fireworks shows with
synchronized music,6 the principal focus of our inquiry is on the
similarities and dissimilarities in the marks at issue when
considered in their entireties. Moreover, as pointed out in
Century 21 Real Estate Corp. v. Century Life of America, 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992), cert. denied,
506 U.S. 1034 (1994), "[w]hen marks would appear on virtually
identical goods or services, the degree of similarity [of the
marks] necessary to support a conclusion of likely confusion
declines."
Applicant, in this regard, asserts that "[t]he mere
fact that both marks contain the words 'sky' and 'concert' does
not in and of itself establish that there is a likelihood of
confusion," given that the marks are not identical.7 The

5 Applicant, we note, does not argue to the contrary in its brief.

6 We judicially notice, as requested by the Examining Attorney in his
brief, that Merriam-Webster's Collegiate Dictionary (10th ed.) at 953
defines "pyrotechnics" in relevant part as "a display of fireworks"
and that Webster's II New Riverside Dictionary at 959 likewise lists
such term as meaning "[a] fireworks display." 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).

7 While applicant also contends that its rights in its mark are
superior to registrant's rights in the cited mark because applicant's
Ser. No. 75/405,999
4
Examining Attorney, on the other hand, maintains that when the
marks "SKY CONCERT" and "CONCERT IN THE SKY" are considered in
their entireties, confusion is likely because:
Both marks share the same overall
meaning and commercial impression when used
in connection with the [respective]
services. The applicant's mark focuses
consumers' attention on a musical
performance, a CONCERT, occurring in
conjunction with pyrotechnics in the SKY.
The registrant's mark also centers
consumers' attention on a musical
performance, a CONCERT, occurring in harmony
with fireworks IN THE SKY. Thus, consumers
are likely to retain the same general
commercial impression of the applicant's
mark as they do the registered mark, namely
that some type of musical performance occurs
with fireworks in the sky. Consequently,
the marks share the same overall commercial
impression.

As a general proposition, where the primary difference
between marks is the transposition of the elements which compose
the marks and such transposition does not change the overall
commercial impression engendered thereby, confusion has been
found to be likely. See, e.g., In re Wine Society of America
Inc., 12 USPQ2d 1139, 1142 (TTAB 1989) [mark "WINE SOCIETY OF
AMERICA" and design for wine club membership services including

claimed dates of first use precede those stated in the cited
registration, it is pointed out that Section 2(d) of the Trademark Act
precludes registration of "a mark which so resembles a mark registered
in the Patent and Trademark Office ... as to be likely ... to cause
confusion ...." Thus, even if applicant actually is the prior user,
such fact is irrelevant and immaterial to the question of the
registrability of applicant's mark.

Ser. No. 75/405,999
5
the supplying of printed materials, selling of wines to members,
conducting wine tasting sessions and recommending specific
restaurants offering wines sold by the applicant held likely to
be confused with mark "AMERICAN WINE SOCIETY 1967" and design
for a newsletter, bulletin and journal of interest to members of
the registrant]; In re Nationwide Industries Inc., 6 USPQ2d
1882, 1884 (TTAB 1988) [mark "RUST BUSTER" for rust-penetrating
spray lubricant found likely to be confused with mark "BUST
RUST" for penetrating oil]; and In re General Tire & Rubber Co.,
213 USPQ 870, 871 (TTAB 1982) [mark "SPRINT STEEL RADIAL" for
tires held likely to be confused with mark "RADIAL SPRINT" for
tires]. We agree with the Examining Attorney that the same is
true in this case. Applicant's mark "SKY CONCERT" differs from
registrant's mark "CONCERT IN THE SKY" in the transposition of
the terms "SKY" and "CONCERT" and in the addition of the words
"IN THE." Such differences, however, fail to result in a
distinctly different overall commercial impression; instead, the
respective marks in essence share the same basic connotation and
project an identical commercial impression. Their
contemporaneous use in connection with essentially the same
entertainment services, consisting of the presentation of
fireworks displays or pyrotechnics shows choreographed to music,
is therefore likely to cause confusion.
Ser. No. 75/405,999
6
Applicant, notably without any supporting evidence,
nonetheless further argues that "the marks have co-existed for
approximately twenty-five (25) years in a relatively small
market (pyrotechnics) without Applicant becoming aware of any
instances of actual confusion." In particular, applicant
insists that "the differences in the marks, the conditions of
purchase, and the sophistication of the consumers has precluded
actual confusion from occurring during this time." According to
applicant:
The nature of Applicant's and
Registrant's services requires them to be
negotiated for well in advance of the event.
In addition, the significant cost of the
services generally requires a detailed
contract due to issues of cost and
insurance. Accordingly, Applicant submits
that Applicant's and Registrant's services
are generally purchased only after a careful
negotiation and review has been completed.
As such, customers and potential customers
of Applicant's and Registrant's services
will be well aware of the actual source of
those services. This condition on the
purchase of the services reduces a
likelihood of confusion.

As the Examining Attorney correctly points out, the
test under Section 2(d) of the statute is whether there is a
likelihood of confusion. It is not necessary, therefore, to
show actual confusion. See, e.g., Weiss Associates Inc. v. HRL
Associates Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842-43 (Fed.
Cir. 1990). Moreover, in the present case, there simply is no
Ser. No. 75/405,999
7
affidavit or other supporting evidence as to the extent to which
the respective marks, as claimed by applicant, have co-existed
in the marketplace for musical fireworks shows. For the absence
of any incidents of actual confusion to be probative that there
is no real likelihood of confusion between the respective marks,
evidence demonstrating appreciable and continuous use of such
marks for a significant period of time in the same markets is
necessary. Absent such proof, the mere assertion of a lack of
any reported instances of actual confusion is not a meaningful
factor in this appeal. See, e.g., Gillette Canada Inc. v. Ranir
Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
Lastly, as to applicant's contention that confusion is
unlikely because the conditions of purchase of the respective
services are such that, due to the expensive nature thereof and
insurance considerations, buyers contract for the services only
after a period of careful negotiation and review, suffice it to
say that, even as to the relatively few customers who actually
make arrangements for the presentation of musical fireworks
shows or pyrotechnics events, the fact that those purchasers may
indeed be knowledgeable or sophisticated in a particular field
and exercise a degree of care in their purchasing decisions
"does not necessarily preclude their mistaking one trademark for
another" or that they otherwise are entirely immune from
confusion as to source or sponsorship. Wincharger Corp. v.
Ser. No. 75/405,999
8
Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA 1962). See
also In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988); and In
re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983). To the
far larger group of consumers for such entertainment services,
namely, the general public who enjoys the presentation of
fireworks displays, including pyrotechnics shows which are
synchronized to music, such persons would not be expected to
exercise anything other than ordinary care in their selection of
such events to attend.
We accordingly conclude that consumers and potential
customers, who are familiar or acquainted with registrant's
"CONCERT IN THE SKY" mark for its "entertainment services in the
nature of a musical fireworks show," would be likely to believe,
upon encountering applicant's substantially identical "SKY
CONCERT" mark for its "entertainment services, namely,
production of events and shows featuring pyrotechnics
synchronized with music," that such identical and otherwise
closely related services emanate from, or are sponsored by or
associated with, the same source.
Decision: The refusal under Section 2(d) is affirmed.