| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 88340425 |
| LAW OFFICE ASSIGNED | LAW OFFICE 108 |
| MARK SECTION | |
| MARK | http://uspto.report/TM/88340425/mark.png |
| LITERAL ELEMENT | KINSHIP |
| STANDARD CHARACTERS | YES |
| USPTO-GENERATED IMAGE | YES |
| MARK STATEMENT | The mark consists of standard characters, without claim to any particular font style, size or color. |
| ARGUMENT(S) | |
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Applicant respectfully submits Applicant’s mark KINSHIP and the cited mark TRUE KINSHIP are not confusingly similar for the following reasons. First, the marks appear different. Second, the marks sound different. Third, the marks have a different connotation. Fourth, each mark begins with a different word. Fifth, the shared term, KINSHIP, is weak in the relevant industries. Relevant Law "The basic principle in determining confusion between marks is that marks must be compared in their entireties and must be considered in connection with the particular goods or services for which they are used…. It follows from that principle that likelihood of confusion cannot be predicated on dissection of a mark." In re Nat'l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (C.C.P.A. 1981). The rationale for this rule is that the commercial impression of a trademark on an ordinary prospective buyer is created by the mark as a whole, not by its component parts. See Estate of P.D. Beckwith, Inc. v. Comm'r of Patents, 252 U.S. 538, 545-46 (1920); Franklin Mint, 667 F.2d at 1007. The correct standard for determining likelihood of confusion was set forth In re E.I. du Pont de Nemours & Co., 176 F.2d 1357, 1361 (C.C.P.A. 1973) (the "du Pont factors"). Under the du Pont factors, three of the most important factors in a likelihood of confusion analysis are the mark’s appearance, sound, and connotation. Typically, when considering compound marks, Consumers are generally more inclined to focus on the first word, prefix or syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005); see also Mattel Inc. v. Funline Merch. Co., 81 USPQ2d 1372, 1374-75 (TTAB 2006); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered” when making purchasing decisions). Weak marks are entitled to a narrow scope of protection. TMEP 1207.01(b)(ix). Evidence of third-party use falls under the sixth du Pont factor – the "number and nature of similar marks in use on similar goods." In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973). If the evidence establishes that the consuming public is exposed to third-party use of similar marks on similar goods, it "is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection." Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1373-74, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005). Applicant’s Mark and Cited Mark Look Different Applicant’s mark and the cited mark look different. One viewing Applicant’s mark in its entirety is confronted with one word: KINSHIP. One viewing the cited mark is confronted with two words: TRUE and KINSHIP. The cited mark includes one word (TRUE) arranged at the beginning of the mark which is not present in Applicant’s mark. These differences make the marks appear substantially different. Thus, the marks KINSHIP and TRUE KINSHIP look substantially different weighing against a finding of confusion. Applicant’s Mark and Cited Mark Sound Different Applicant’s mark and the cited mark sound different. When one views Applicant’s mark in its entirety they are confronted with a mark comprised of one word (KINSHIP) which, when pronounced, has two syllables. When one views the cited mark in it’s entirety they are confronted with two words (TRUE KINSHIP) which has three syllables. Thus, the marks KINSHIP and TRUE KINSHIP clearly sound different and have a different rhythm when spoken which further distinguishes the marks. The clear differences between the pronunciations of the two marks weighs against a finding of confusion. Applicant’s Mark and Cited Mark Have a Different Connotation Applicant’s mark and the cited mark have different connotations. As pointed out in the Office Action, the word KINSHIP means “blood relationship.” The word “true” means “accurate or exact”. Thus, the term TRUE KINSHIP connotes a true or exact blood relationship whereas the term KINSHIP does not require any sort of true or exact blood relationship. This difference in connotation weighs against a finding of confusion. The differences in connotation clearly weigh against a finding of confusion. Applicant’s Mark and Cited Mark Begin with a Different Word Not only does Applicant’s mark and the cited mark look and sound different, each begins with a different word further distinguishing the marks from one another. The first word in Applicant’s mark is KINSHIP. The first word in the cited mark is TRUE. These words not only look different, but sound different as well. According to the first word dominance rule, the dominant portion of a mark is often the first word, prefix, or syllable. Thus, the dominant portion of Applicant’s mark is either KIN or KINSHIP whereas the dominant portion of the cited mark is TRUE. Thus, the dominant portions of each mark are not shared. Accordingly, this also weighs against a finding of confusion. The Word KINSHIP is Weak As an initial matter, Applicant notes wine products and restaurant services are related goods and services. Exhibit A, for example, is a copy of a registration of the mark ROMEO’S GIN used to sell alcoholic beverages except beers as well as provide restaurant services (see 5882905). As another example, Exhibit B is a copy of a registration of the mark VESPA used to sell both wines as well as restaurant services (see 5871171). As yet another example, Exhibit C is a copy of a registration of the mark NUDAKE which is used to sell both wine and provide restaurant services (see 5824441). In fact, the USPTO register is replete with such registrations evidencing that distilled spirits and restaurants often share the same trademark. As such, the public is inclined to understand that restaurants often sell distilled spirits that carry the restaurant’s trademark. Thus, because distilled spirits and restaurant services are related goods and services, third party use of the word KINSHIP by restaurants not only weakens the use of the word KINSHIP in the restaurant industry, but also weakens use of the mark KINSHIP for distilled spirits as well. See TMEP 1207.01(a)(vi). Exhibit D is a screen capture from a website run by a winery that sells bottles of wine bearing the trademark KINSHIP WINERY. This exhibit shows third party use of the word KINSHIP on bottles of wine. This third party use weakens the term KINSHIP for wines as well as distilled spirits. http://kinshipwinery.com/. Exhibit E is a screen shot from TESS showing a trademark application (88236086) for the mark KINFOLK for wine. This application was given a notice of allowance on June 25, 2019 and was deemed not to cause confusion with the cited mark PURE KINSHIP. Not only do KINFOLK and KINSHIP look and sound similar (each starting with the letter KIN, each having two syllables, each having a same length of seven letters), they have the same meaning according to Thesaurus.com (see http://www.thesaurus.com/browse/kinfolk?s=t) see also Exhibit F). Thus the term KINFOLK clearly weakens the term KINSHIP in the wine industry. Exhibit G is a screen shot from TESS showing a trademark registration (4951961) for the mark KINSHIP for restaurant and bar services. As noted above, wine and restaurant/bar services are related goods and services. Thus, the registration of the mark KINSHIP in the restaurant/bar services weakens the use of the mark KINSHIP for wine products. Exhibit H is a screen capture from a website (see http://kinshipdc.com/wine-spirits/) run by a restaurant that uses the mark KINSHIP. The restaurant offers collections of wines and spirits. As noted above, restaurant and bar services are related goods and services. Thus, this use of the mark KINSHIP weakens the use of the mark KINSHIP for both restaurant services and wine products as well. Exhibit I is a screen capture from a website (see http://www.kinsfolkwine.com/?fbclid=IwAR1P3SdftK1VDxMjHYpbOY1Gqt7GJLds3J50MWyxh-wMAtVnC9OzcGBqMgQ) run by a wine shop that uses the mark KINSFOLK WINE. The shop showcases various wines and ciders made with organic and biodynamic farming methods. As noted above, restaurant and bar services are related goods and services. Thus, this use of the mark KINSFOLK WINE weakens the use of the mark KINSHIP for spirits. Exhibit J is a screen capture from a website (see http://kinwhitewhiskey.com/) which advertises the sale of white whisky under the trademark KIN. Like KINFOLK, the word KIN is a synonymn for the word KINSHIP (see Exhibit F). Clearly the use of KIN with a whisky product weakens the term KINSHIP in the mark TRUE KINSHIP for distilled spirits. Not only does KIN resemble KINSHIP, it has the same meaning since KIN and KINSHIP are synonyms. Furthermore, each word begins with the letters K-I-N and the first portion of KINSHIP sounds identical to the mark KIN used to sell whiskey. Thus, the use of the mark KIN by a third party for white whisky weakens the use of the mark KINSHIP in TRUE KINSHIP for spirits. The cited mark is TRUE KINSHIP for distilled spirits. However, the evidence above shows the term KINSHIP is common in both the restaurant and distilled spirits industry (which are related). The evidence further shows that not only do third parties in the restaurant industry use terms like KINSHIP and KINSFOLK but that several third parties market distilled spirits using terms such as KINSHIP, KINSFOLK, and KIN which are highly related words which not only sound similar but are, in fact, synonyms of each other. Thus, the term KINSHIP is clearly not a strong mark entitled to broad protection but is, instead, a weak mark entitled to only a narrow scope of protection. The above are merely examples of third party use showing the term KINSHIP is not a particularly strong mark. In the Office Action the Examining Attorney argued the term TRUE is also weak. Assuming this is true (no pun intended), the mark TRUE KINSHIP is still a relatively weak mark entitled to a narrow scope of protection. As such, the mark TRUE KINSHIP for class 033 distilled spirits should not be usable to block registration of the mark KINSHIP for class 032 goods related to alcoholic beverages, namely, beer. In summary, Applicant respectfully submits the mark TRUE KINSHIP registered for distilled spirits should not block registration of the mark KINSHIP for alcoholic beverages, namely, beer, for at least the following reasons. First, the marks appear different. Second, the marks sound different. Third, the marks have a different connotation. Fourth, each mark begins with a different word. Fifth, the shared term, KINSHIP, is weak in the relevant industries.
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| EVIDENCE SECTION | |
| EVIDENCE FILE NAME(S) | |
| ORIGINAL PDF FILE | evi_745121266-20191127121621034456_._Exhibits.pdf |
| CONVERTED PDF FILE(S) (10 pages) |
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| DESCRIPTION OF EVIDENCE FILE | Exhibitst A - J |
| ATTORNEY SECTION (current) | |
| NAME | Christopher A. Proskey |
| ATTORNEY BAR MEMBERSHIP NUMBER | NOT SPECIFIED |
| YEAR OF ADMISSION | NOT SPECIFIED |
| U.S. STATE/ COMMONWEALTH/ TERRITORY | NOT SPECIFIED |
| FIRM NAME | BROWNWINICK LAW FIRM |
| STREET | 666 GRAND AVENUE, SUITE 2000 |
| CITY | DES MOINES |
| STATE | Iowa |
| POSTAL CODE | 50309 |
| COUNTRY | US |
| PHONE | 515-242-2400 |
| FAX | 515-283-0231 |
| ip@brownwinick.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | 27757.0003 |
| ATTORNEY SECTION (proposed) | |
| NAME | Christopher A. Proskey |
| ATTORNEY BAR MEMBERSHIP NUMBER | XXX |
| YEAR OF ADMISSION | XXXX |
| U.S. STATE/ COMMONWEALTH/ TERRITORY | XX |
| FIRM NAME | BROWNWINICK LAW FIRM |
| STREET | 666 GRAND AVENUE, SUITE 2000 |
| CITY | DES MOINES |
| STATE | Iowa |
| POSTAL CODE | 50309 |
| COUNTRY | United States |
| PHONE | 515-242-2400 |
| FAX | 515-283-0231 |
| ip@brownwinick.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | 27757.0003 |
| CORRESPONDENCE SECTION (current) | |
| NAME | CHRISTOPHER A. PROSKEY |
| FIRM NAME | BROWNWINICK LAW FIRM |
| STREET | 666 GRAND AVENUE, SUITE 2000 |
| CITY | DES MOINES |
| STATE | Iowa |
| POSTAL CODE | 50309 |
| COUNTRY | US |
| PHONE | 515-242-2400 |
| FAX | 515-283-0231 |
| ip@brownwinick.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | 27757.0003 |
| CORRESPONDENCE SECTION (proposed) | |
| NAME | Christopher A. Proskey |
| FIRM NAME | BROWNWINICK LAW FIRM |
| STREET | 666 GRAND AVENUE, SUITE 2000 |
| CITY | DES MOINES |
| STATE | Iowa |
| POSTAL CODE | 50309 |
| COUNTRY | United States |
| PHONE | 515-242-2400 |
| FAX | 515-283-0231 |
| ip@brownwinick.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | 27757.0003 |
| SIGNATURE SECTION | |
| RESPONSE SIGNATURE | /CHRISTOPHER A. PROSKEY/ |
| SIGNATORY'S NAME | Christopher A. Proskey |
| SIGNATORY'S POSITION | Attorney of Record, Iowa Bar Member |
| SIGNATORY'S PHONE NUMBER | 5152422400 |
| DATE SIGNED | 11/27/2019 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Wed Nov 27 12:18:44 EST 2019 |
| TEAS STAMP | USPTO/ROA-XX.XX.XXX.XX-20 191127121844436622-883404 25-700c4322872144ef5974bf 5c5f657c9dac17e36d1491762 cbe29a040a3ba5d910-N/A-N/ A-20191127121621034456 |
| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
Applicant respectfully submits Applicant’s mark KINSHIP and the cited mark TRUE KINSHIP are not confusingly similar for the following reasons. First, the marks appear different. Second, the marks sound different. Third, the marks have a different connotation. Fourth, each mark begins with a different word. Fifth, the shared term, KINSHIP, is weak in the relevant industries.
Relevant Law
"The basic principle in determining confusion between marks is that marks must be compared in their entireties and must be considered in connection with the particular goods or services for which they are used…. It follows from that principle that likelihood of confusion cannot be predicated on dissection of a mark." In re Nat'l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (C.C.P.A. 1981). The rationale for this rule is that the commercial impression of a trademark on an ordinary prospective buyer is created by the mark as a whole, not by its component parts. See Estate of P.D. Beckwith, Inc. v. Comm'r of Patents, 252 U.S. 538, 545-46 (1920); Franklin Mint, 667 F.2d at 1007.
The correct standard for determining likelihood of confusion was set forth In re E.I. du Pont de Nemours & Co., 176 F.2d 1357, 1361 (C.C.P.A. 1973) (the "du Pont factors"). Under the du Pont factors, three of the most important factors in a likelihood of confusion analysis are the mark’s appearance, sound, and connotation.
Typically, when considering compound marks, Consumers are generally more inclined to focus on the first word, prefix or syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005); see also Mattel Inc. v. Funline Merch. Co., 81 USPQ2d 1372, 1374-75 (TTAB 2006); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered” when making purchasing decisions).
Weak marks are entitled to a narrow scope of protection. TMEP 1207.01(b)(ix). Evidence of third-party use falls under the sixth du Pont factor – the "number and nature of similar marks in use on similar goods." In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973). If the evidence establishes that the consuming public is exposed to third-party use of similar marks on similar goods, it "is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection." Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1373-74, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005).
Applicant’s Mark and Cited Mark Look Different
Applicant’s mark and the cited mark look different. One viewing Applicant’s mark in its entirety is confronted with one word: KINSHIP. One viewing the cited mark is confronted with two words: TRUE and KINSHIP. The cited mark includes one word (TRUE) arranged at the beginning of the mark which is not present in Applicant’s mark. These differences make the marks appear substantially different. Thus, the marks KINSHIP and TRUE KINSHIP look substantially different weighing against a finding of confusion.
Applicant’s Mark and Cited Mark Sound Different
Applicant’s mark and the cited mark sound different. When one views Applicant’s mark in its entirety they are confronted with a mark comprised of one word (KINSHIP) which, when pronounced, has two syllables. When one views the cited mark in it’s entirety they are confronted with two words (TRUE KINSHIP) which has three syllables. Thus, the marks KINSHIP and TRUE KINSHIP clearly sound different and have a different rhythm when spoken which further distinguishes the marks. The clear differences between the pronunciations of the two marks weighs against a finding of confusion.
Applicant’s Mark and Cited Mark Have a Different Connotation
Applicant’s mark and the cited mark have different connotations. As pointed out in the Office Action, the word KINSHIP means “blood relationship.” The word “true” means “accurate or exact”. Thus, the term TRUE KINSHIP connotes a true or exact blood relationship whereas the term KINSHIP does not require any sort of true or exact blood relationship. This difference in connotation weighs against a finding of confusion. The differences in connotation clearly weigh against a finding of confusion.
Applicant’s Mark and Cited Mark Begin with a Different Word
Not only does Applicant’s mark and the cited mark look and sound different, each begins with a different word further distinguishing the marks from one another. The first word in Applicant’s mark is KINSHIP. The first word in the cited mark is TRUE. These words not only look different, but sound different as well. According to the first word dominance rule, the dominant portion of a mark is often the first word, prefix, or syllable. Thus, the dominant portion of Applicant’s mark is either KIN or KINSHIP whereas the dominant portion of the cited mark is TRUE. Thus, the dominant portions of each mark are not shared. Accordingly, this also weighs against a finding of confusion.
The Word KINSHIP is Weak
As an initial matter, Applicant notes wine products and restaurant services are related goods and services. Exhibit A, for example, is a copy of a registration of the mark ROMEO’S GIN used to sell alcoholic beverages except beers as well as provide restaurant services (see 5882905). As another example, Exhibit B is a copy of a registration of the mark VESPA used to sell both wines as well as restaurant services (see 5871171). As yet another example, Exhibit C is a copy of a registration of the mark NUDAKE which is used to sell both wine and provide restaurant services (see 5824441). In fact, the USPTO register is replete with such registrations evidencing that distilled spirits and restaurants often share the same trademark. As such, the public is inclined to understand that restaurants often sell distilled spirits that carry the restaurant’s trademark. Thus, because distilled spirits and restaurant services are related goods and services, third party use of the word KINSHIP by restaurants not only weakens the use of the word KINSHIP in the restaurant industry, but also weakens use of the mark KINSHIP for distilled spirits as well. See TMEP 1207.01(a)(vi).
Exhibit D is a screen capture from a website run by a winery that sells bottles of wine bearing the trademark KINSHIP WINERY. This exhibit shows third party use of the word KINSHIP on bottles of wine. This third party use weakens the term KINSHIP for wines as well as distilled spirits. http://kinshipwinery.com/.
Exhibit E is a screen shot from TESS showing a trademark application (88236086) for the mark KINFOLK for wine. This application was given a notice of allowance on June 25, 2019 and was deemed not to cause confusion with the cited mark PURE KINSHIP. Not only do KINFOLK and KINSHIP look and sound similar (each starting with the letter KIN, each having two syllables, each having a same length of seven letters), they have the same meaning according to Thesaurus.com (see http://www.thesaurus.com/browse/kinfolk?s=t) see also Exhibit F). Thus the term KINFOLK clearly weakens the term KINSHIP in the wine industry.
Exhibit G is a screen shot from TESS showing a trademark registration (4951961) for the mark KINSHIP for restaurant and bar services. As noted above, wine and restaurant/bar services are related goods and services. Thus, the registration of the mark KINSHIP in the restaurant/bar services weakens the use of the mark KINSHIP for wine products.
Exhibit H is a screen capture from a website (see http://kinshipdc.com/wine-spirits/) run by a restaurant that uses the mark KINSHIP. The restaurant offers collections of wines and spirits. As noted above, restaurant and bar services are related goods and services. Thus, this use of the mark KINSHIP weakens the use of the mark KINSHIP for both restaurant services and wine products as well.
Exhibit I is a screen capture from a website (see http://www.kinsfolkwine.com/?fbclid=IwAR1P3SdftK1VDxMjHYpbOY1Gqt7GJLds3J50MWyxh-wMAtVnC9OzcGBqMgQ) run by a wine shop that uses the mark KINSFOLK WINE. The shop showcases various wines and ciders made with organic and biodynamic farming methods. As noted above, restaurant and bar services are related goods and services. Thus, this use of the mark KINSFOLK WINE weakens the use of the mark KINSHIP for spirits.
Exhibit J is a screen capture from a website (see http://kinwhitewhiskey.com/) which advertises the sale of white whisky under the trademark KIN. Like KINFOLK, the word KIN is a synonymn for the word KINSHIP (see Exhibit F). Clearly the use of KIN with a whisky product weakens the term KINSHIP in the mark TRUE KINSHIP for distilled spirits. Not only does KIN resemble KINSHIP, it has the same meaning since KIN and KINSHIP are synonyms. Furthermore, each word begins with the letters K-I-N and the first portion of KINSHIP sounds identical to the mark KIN used to sell whiskey. Thus, the use of the mark KIN by a third party for white whisky weakens the use of the mark KINSHIP in TRUE KINSHIP for spirits.
The cited mark is TRUE KINSHIP for distilled spirits. However, the evidence above shows the term KINSHIP is common in both the restaurant and distilled spirits industry (which are related). The evidence further shows that not only do third parties in the restaurant industry use terms like KINSHIP and KINSFOLK but that several third parties market distilled spirits using terms such as KINSHIP, KINSFOLK, and KIN which are highly related words which not only sound similar but are, in fact, synonyms of each other. Thus, the term KINSHIP is clearly not a strong mark entitled to broad protection but is, instead, a weak mark entitled to only a narrow scope of protection.
The above are merely examples of third party use showing the term KINSHIP is not a particularly strong mark. In the Office Action the Examining Attorney argued the term TRUE is also weak. Assuming this is true (no pun intended), the mark TRUE KINSHIP is still a relatively weak mark entitled to a narrow scope of protection. As such, the mark TRUE KINSHIP for class 033 distilled spirits should not be usable to block registration of the mark KINSHIP for class 032 goods related to alcoholic beverages, namely, beer.
In summary, Applicant respectfully submits the mark TRUE KINSHIP registered for distilled spirits should not block registration of the mark KINSHIP for alcoholic beverages, namely, beer, for at least the following reasons. First, the marks appear different. Second, the marks sound different. Third, the marks have a different connotation. Fourth, each mark begins with a different word. Fifth, the shared term, KINSHIP, is weak in the relevant industries.
