TicketAmerica, Inc.

Trademark Trial and Appeal Board

Mar 29, 2001

No. 75526870 (T.T.A.B. Mar. 29, 2001)

03/29/01
Paper No. 13
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re TicketAmerica, Inc.
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Serial No. 75/526,870
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Glenn M. Seager of Crompton, Seager & Tufte, LLC for
TicketAmerica, Inc.
Ann Kathleen Linnehan, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______
Before Hanak, Chapman and Holtzman, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
TicketAmerica, Inc. has appealed from the final refusal of
the Trademark Examining Attorney to register the mark
TICKETAMERICA for "printed tickets" in Class 16; "entertainment
ticket agencies" in Class 35; and "arranging for ticket
reservations for shows and other entertainment events" in Class
41.1
1 Application Serial No. 75/526,870, filed July 28, 1998 alleging a
bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/526,870
2
Registration has been refused under Section 2(d) of the
Trademark Act2 on the ground that applicant's mark so resembles
the registered mark AMERICA'S TICKET for "ticket reservation
services for entertainment events" as to be likely to cause
confusion.3
When the refusal was made final, applicant appealed. Both
applicant and the Examining Attorney filed briefs. An oral
hearing was not requested.
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E.I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular attention
to the factors most relevant to the case at hand, including the
similarity of the marks and the relatedness of the goods or
services.
Turning first to the respective goods and services,
applicant argues that although both applicant's and registrant's
goods and services may be "commercially related" in that they all
"relate broadly to entertainment ticketing," they are
2 In the first Office action, the Examining Attorney had also refused
registration on the ground that the mark is geographically descriptive
of applicant's goods and services. That refusal was subsequently
withdrawn.
3 Registration No. 1,602,993 issued June 19, 1990; combined affidavit
under Sections 8 and 15 filed. The word TICKET has been disclaimed.
Ser. No. 75/526,870
3
specifically different in nature. In explaining this
distinction, applicant relies on the declaration of Jeffrey C.
Robbins, applicant's Senior Vice President, General Counsel and
Secretary, who contends that while applicant acts as an agent of
a would-be audience member seeking tickets to an entertainment
event, registrant acts as an agent of the entertainer, such as a
theatrical troupe, musician, or sports team. Applicant maintains
that "members of the public who wish to engage the applicant as
their agent to obtain entertainment tickets would do so only
after the registrant, acting as the agent of the entertainer, has
completed its obligation to the entertainer, and is unable to
supply a ticket to the would-be audience member."
Applicant's attempt to distinguish the respective goods and
services is not persuasive. The services identified in the
application, "entertainment ticket agencies" and "arranging for
ticket reservations for shows and other entertainment events" are
essentially identical to those in the cited registration, "ticket
reservation services for entertainment events." Moreover, the
complementary nature of ticket reservation services and the
issuance of printed tickets for those events is obvious.4
4 We also note applicant's assertions, based on Mr. Robbins'
declaration, regarding applicant's lack of intent to trade on the
goodwill of the registrant's mark. Suffice it to say that this
evidence is not particularly probative of applicant's intent.
Ser. No. 75/526,870
4
As the Examining Attorney points out, the question of likelihood
of confusion is based on the goods and/or services as identified
in the application and registration rather than any evidence of
actual or intended use, channels of trade or classes of
purchasers. See J & J Snack Foods Corp. v. McDonalds' Corp., 932
F.2d 1460, 1464, 18 USPQ2d 1889, 1892 (Fed. Cir. 1991) and Saks &
Co. v. Snack Food Association, 12 USPQ2d 1833 (TTAB 1989). There
is no language in either the applicant's or registrant's
description of goods and/or services which would limit or
restrict the manner in which the reservation services are
provided or the tickets are sold, or the customers for those
goods and services. We must therefore presume that the goods and
services travel through the channels of trade normally associated
with those goods and services and that registrant's services
reach all classes of customers including applicant's customers.
We turn then to the marks. The Examining Attorney argues in
this regard that the two marks "are highly similar and,
consequently, create the same commercial impression." It is the
Examining Attorney's position that applicant's mark is merely a
transposition of registrant's mark and that the transposition
does not change the overall commercial impression the mark
creates. Applicant, on the other hand, argues that the marks
create different commercial impressions; applicant's mark
suggesting a ticket agent that can provide broad access to
Ser. No. 75/526,870
5
entertainment venues and registrant's mark suggesting a slogan
that it is "AMERICA'S TICKET to desirable entertainment venues."
It is true that the marks share the same words and that
applicant's mark, TICKETAMERICA is essentially a transposition of
the two words in the registered mark, AMERICA'S TICKET. It is
also true that ordinary purchasers are not infallible in their
recollection of trademarks and may well transpose elements of
mark in their minds and as a result, confuse the source of the
goods or services offered under those marks. However, it has
been held that the reversal of even nearly identical elements may
not result in confusion where the transposed words create
different commercial impressions. See In re Best Products Co.,
Inc., 231 USPQ 988 (TTAB 1986); In re Nationwide Industries Inc.,
6 USPQ2d 1882 (TTAB 1988) and In re Mavest, Inc., 130 USPQ 40
(TTAB 1961). We agree with applicant that the two marks in this
case, when considered in their entireties, convey different
meanings and create distinctly different commercial impressions.
Applicant's mark TICKETAMERICA suggests that applicant provides
tickets to entertainment events throughout the country.
Registrant's mark AMERICA'S TICKET, on the other hand, suggests
that registrant provides the country with exactly what it needs
in ticketing services. Thus, registrant's mark not only alludes
to registrant's ticketing services but also forms an idiomatic
expression suggesting the ideal solution, the perfect ballot, or,
Ser. No. 75/526,870
6
in its broadest sense, that registrant can give the American
public exactly what it needs.
Notwithstanding the identity of the services in this case,
we conclude that the differences in the respective marks makes
confusion unlikely.
Decision: The refusal to register is reversed.