UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/486787
APPLICANT: Ritz Camera Centers, Inc.
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CORRESPONDENT ADDRESS: SHERRY H. FLAX SAUL EWING LLP 100 SOUTH CHARLES STREET BALTIMORE, MD 21201
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom114@uspto.gov
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MARK: HIDDEN IMAGE
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
CORRESPONDENT EMAIL ADDRESS:
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Please provide in all correspondence:
1. Filing date, serial number, mark and applicant's name. 2. Date of this Office Action. 3. Examining Attorney's name and Law Office number. 4. Your telephone number and e-mail address.
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Serial Number 76/486787
The assigned examining attorney has reviewed the referenced application and determined the following.
The examining attorney refuses registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d), because the applicant’s mark, when used on or in connection with the identified goods/services, so resembles the mark in U.S. Registration No. 1913454 as to be likely to cause confusion, to cause mistake, or to deceive. TMEP §§1207.01 et seq. See the enclosed registration.
In determining whether there is a likelihood of confusion, the examining attorney must consider all circumstances surrounding the sale of the goods/services. Industrial Nucleonic Corp. v. Hinde Engineering Co., 475 F.2d 1197, 177 USPQ 386 (C.C.P.A. 1973). These circumstances include the marketing channels, the identity of the prospective purchasers and the degree of similarity between the marks and between the goods/services. In comparing the marks, similarity in any one of the elements of sound, appearance or meaning is sufficient to find a likelihood of confusion. If the goods/services of the parties differ, it is necessary to show that they are related in some manner. In re Mack, 197 USPQ 755 (TTAB 1977). TMEP §§1207.01 et seq.
The applicant’s goods are clothing items which are identical to the registrant’s clothing items, namely, swimwear. In addition, the registrant’s goods, namely, swim wear is broad enough to cover the applicant’s goods, namely, swim trunks. If the goods or services of the respective parties are closely related, the degree of similarity between marks required to support a finding of likelihood of confusion is not as great as would apply with diverse goods or services. ECI Division of E Systems, Inc. v. Environmental Communications Inc., 207 USPQ 443 (TTAB 1980). TMEP §1207.01(b).
The test of likelihood of confusion is not whether the marks can be distinguished when subjected to a side‑by‑side comparison. The issue is whether the marks create the same overall impression. Visual Information Institute, Inc. v. Vicon Industries Inc., 209 USPQ 179 (TTAB 1980). The focus is on the recollection of the average purchaser who normally retains a general rather than specific impression of trademarks. Chemetron Corp. v. Morris Coupling & Clamp Co., 203 USPQ 537 (TTAB 1979); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975); TMEP §1207.01(b).
The applicant’s mark is HIDDEN IMAGE and design. The registrant’s mark is THE ORIGINAL HIDEN IMAGE APPAREL. The examining attorney must look at the marks in their entireties under Section 2(d). Nevertheless, one feature of a mark may be recognized as more significant in creating a commercial impression. Greater weight is given to that dominant feature in determining whether there is a likelihood of confusion. In re National Data Corp., 224 USPQ 749 (Fed. Cir. 1985); Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (C.C.P.A. 1976). In re J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1988). TMEP §1207.01(b)(viii). The marks are similar in commercial impression because both marks use the wording HIDDEN IMAGE to covey a similar commercial impression.
Couple the similarity in commercial impression along with the identical goods and a consumer encountering both marks may wrongly assume that the goods are derived from a common commercial source.
Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.
/Brendan D. McCauley/
Brendan D. McCauley
Examining Attorney
Law Office 114
703-308-9114 X165
How to respond to this Office Action:
To respond formally using the Office’s Trademark Electronic Application System (TEAS), visit http://www.gov.uspto.report/teas/index.html and follow the instructions.
To respond formally via E-mail, visit http://www.gov.uspto.report/web/trademarks/tmelecresp.htm and follow the instructions.
To respond formally via regular mail, your response should be sent to the mailing Return Address listed above and include the serial number, law office and examining attorney’s name on the upper right corner of each page of your response.
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.
Fee increase effective January 1, 2003
Effective January 1, 2003, the fee for filing an application for trademark registration will be increased to $335.00 per International Class. The USPTO will not accord a filing date to applications that are filed on or after that date that are not accompanied by a minimum of $335.00.
Additionally, the fee for amending an existing application to add an additional class or classes of goods/services will be $335.00 per class for classes added on or after January 1, 2003.