To: | Altitude HQ Ltd (ljp@pinonicholsonlaw.com) |
Subject: | U.S. Trademark Application Serial No. 88310181 - ALTITUDE - N/A |
Sent: | October 04, 2019 10:23:02 AM |
Sent As: | ecom126@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88310181
Mark: ALTITUDE
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Correspondence Address: |
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Applicant: Altitude HQ Ltd
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Reference/Docket No. N/A
Correspondence Email Address: |
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SUSPENSION NOTICE
No Response Required
Issue date: October 04, 2019
Prior-Filed Application
Applicant was previously provided information regarding pending U.S. Application Serial No. 87887767, which may present a bar to registration of applicant’s mark based on a likelihood of confusion under Trademark Act Section 2(d). See 15 U.S.C. §1052(d); 37 C.F.R. §2.83; TMEP §§1208 et seq. Applicant has chosen not to argue against the suspension at this time. As the trademark examining attorney still believes there may be a likelihood of confusion between applicant’s mark and the mark in the cited prior-pending application, should they register, this application is suspended.
Refusal Continued and Maintained
Applicant’s arguments concerning the Section 2(d) refusal for a likelihood of confusion with Reg. No. 4861583 have been considered and found unpersuasive. Applicant argues that the registered mark, ALTITUDE – THE HEIGHT OF FITNESS contains additional wording that distinguishes it from the applied-for mark, ALTITUDE. Although applicant’s mark does not contain the entirety of the registered mark, applicant’s mark is likely to appear to prospective purchasers as a shortened form of registrant’s mark. See In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (quoting United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)). Thus, merely omitting some of the wording from a registered mark may not overcome a likelihood of confusion. See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257; In re Optica Int’l, 196 USPQ 775, 778 (TTAB 1977); TMEP §1207.01(b)(ii)-(iii). In this case, applicant’s mark does not create a distinct commercial impression from the registered mark because it contains some of the wording in the registered mark and does not add any wording that would distinguish it from that mark.
Additionally, when evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). In this case, the registered mark is also in standard characters. A mark in typed or standard characters may be displayed in any lettering style; the rights reside in the wording or other literal element and not in any particular display or rendition. See In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); 37 C.F.R. §2.52(a); TMEP §1207.01(c)(iii). Thus, a mark presented in stylized characters and/or with a design element generally will not avoid likelihood of confusion with a mark in typed or standard characters because the word portion could be presented in the same manner of display. See, e.g., In re Viterra Inc., 671 F.3d at 1363, 101 USPQ2d at 1909; Squirtco v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir. 1983) (stating that “the argument concerning a difference in type style is not viable where one party asserts rights in no particular display”). Because the registered mark could be displayed with a design like that of the applied-for mark, therefore, the marks remain confusingly similar.
Applicant also argues that the publication of application Serial No. 87887767 for ALTITUDE for fitness services, without a Section 2(d) refusal as to Reg. No. 4861583, is evidence that the instant applied-for mark and the registered mark can coexist without confusion. However, third-party applications are evidence only that the applications were filed; they are not evidence of use of the mark. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); see In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB 2009); TBMP §1208.02; TMEP §710.03. Additionally, prior decisions and actions of other trademark examining attorneys in registering other marks have little evidentiary value and are not binding upon the USPTO or the Trademark Trial and Appeal Board. TMEP §1207.01(d)(vi); see In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017). Each case is decided on its own facts, and each mark stands on its own merits. In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d at 1793 n.10 (quoting In re Boulevard Entm’t, 334 F.3d 1336, 1343, 67 USPQ2d 1475, 1480 (Fed. Cir. 2003)).
Therefore the Section 2(d) refusal is continued and maintained. See TMEP §713.02. This refusal will be made final once this application is removed from suspension, unless a new issue arises. See TMEP §716.01.
Suspension Process
The USPTO will periodically check this application to determine if it should remain suspended. See TMEP §716.04. As needed, the trademark examining attorney will issue a letter to applicant to inquire about the status of the reason for the suspension. TMEP §716.05.
Applicant may file a response, but is not required to do so.
/Sara Anne Helmers/
Sara Helmers
Trademark Examining Attorney
Law Office 126
571-270-3639
Sara.Helmers@uspto.gov