Simplicity Burial & Cremation, Inc.

Trademark Trial and Appeal Board

Jul 23, 1999

No. 75132926 (T.T.A.B. Jul. 23, 1999)

Paper No. 10
JQ
THIS DISPOSITION IS NOT CITABLE AS
PRECEDENT OF THE TTAB JULY 23, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Simplicity Burial & Cremation, Inc.
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Serial No. 75/132,926
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Gerald Altman of Morse & Altman for applicant.
Andrew S. Ehard, Trademark Examining Attorney, Law Office
101 (Jerry L. Price, Managing Attorney).
_______
Before Seeherman, Hanak and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by Simplicity Burial &
Cremation, Inc. to register the mark shown below
Ser No. 75/132,926
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for “funeral services, namely embalming, burial, cremation
and memorial services, and planning, coordinating and
administering services therefor.”1
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Act on the ground
that applicant’s mark, when used in connection with
applicant’s services, so resembles the previously
registered mark SIMPLICITY for “funeral and cremation
services”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An
oral hearing was not requested.
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 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

1 Application Serial No. 75/132,926, filed July 11, 1996,
alleging dates of first use of January 1995. The words “Burial &
Cremation Services” are disclaimed apart from the mark. The
application also contains the following statement: “The design
element of the mark comprises the letter ‘s’ superimposed over a
headstone featuring blotches and stippling to create a marble
effect.”
2 Registration No. 1,333,799, issued April 30, 1985; combined
Sections 8 and 15 affidavit filed.
Ser No. 75/132,926
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the services. Federated Food, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
In this case, the services are essentially identical.
Turning to a consideration of the marks, we note at
the outset that if the services are identical, “the degree
of similarity [between the marks] necessary to support a
conclusion of likely confusion declines.” Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).
With respect to the marks, although they must be
considered in their entireties, it is nevertheless the case
that, in articulating reasons for reaching a conclusion on
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.3d 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.
Here, in the case of applicant’s composite mark, the
disclaimed words “Burial & Cremation Services” obviously
Ser No. 75/132,926
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are generic for the type of services offered by applicant.
And, although the letter “S” is prominently displayed in
applicant’s mark, we find that the word “SIMPLICITY” is the
most dominant feature of applicant’s mark. We find this
because this word is more likely to be impressed upon a
consumer’s memory and to be used in calling for the
services. See, e.g., In re Appetito Provisions Co., 3
USPQ2d 1553, 1554 (TTAB 1987). The dominant feature of
applicant’s mark is identical to the entirety of the cited
registered mark, and we conclude that applicant’s and
registrant’s marks are similar, when considered in their
entireties, in sound, appearance and meaning.
Contrary to applicant’s argument, we do not find that
the term “simplicity,” when used in connection with funeral
and cremation services, is highly descriptive such that the
scope of protection accorded to registrant’s mark would not
extend to the use of applicant’s mark for identical
services.3

3 The record fails to support applicant’s argument. In this
connection, applicant attached, to its reply brief, computer
printouts of listings of business names, all of which include, in
part, the term “simplicity.” This evidence, according to
applicant, shows widespread use of the term.
Applicant, in its two-page response to the first Office action
and in its three-page appeal brief, contended that the term was
in widespread use. In its reply brief, applicant reiterated its
contention, also asserting that “during the prosecution of the
application herein, the applicant did submit extensive proof of
this very fact in the form of documentation annexed hereto as
Ser No. 75/132,926
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Decision: The refusal to register is affirmed.
E. J. Seeherman
E. W. Hanak
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board

Attachment A.” Contrary to this assertion, however, the record
file of the application is devoid of any such evidence prior to
its submission with the reply brief. Moreover, both applicant’s
response and appeal brief are conspicuously silent regarding any
accompanying evidence in support of its contention of widespread
use.
Accordingly, applicant’s evidence is untimely submitted, and
has not been considered in making our decision. Trademark Rule
2.142(d). In any event, even if considered, the evidence would
not be persuasive of a different result in this case.
Ser No. 75/132,926
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