Flyte LLC

This Opinion is Not a
Precedent of the TTAB

Mailed: March 22, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Flyte LLC
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Serial No. 87347139
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Nigamnarayan Acharya of Lewis Brisbois Bisgaard & Smith LLP,
for Flyte LLC.

Jason Malashevich, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.

_____

Before Zervas, Taylor and Shaw,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Flyte, LLC (“Applicant”) seeks registration on the Principal Register of the mark

FLYTE (in standard character format) for, as amended, “clocks; watches; timepieces;

chronographs for use as timepieces; horological and chronometric instruments” in

International Class 14.1

1 Application Serial No. 87347139 was filed on February 23, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C § 1051(b).
Serial No. 87347139

The Trademark Examining Attorney has refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),2 on the ground that it

is likely to cause confusion with the mark in Registration No. 1535206, AIRFLYTE

(in typed format3) for, inter alia, “clocks, namely wall clocks and desk clocks” in

International Class 14.4

When the refusal was made final, Applicant appealed. Both Applicant and the

Examining Attorney filed briefs. We affirm the refusal to register.

I. Likelihood of Confusion

A. Applicable Law

Section 2(d) of the Trademark Act prohibits registration of a mark that so

resembles a registered mark as to be likely, when used on or in connection with the

goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.

§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on

an analysis of all probative facts in the record that are relevant to the likelihood of

confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177

USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key

considerations are the similarities between the marks and the similarities between

the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

2Applicant also was required to clarify its identification of goods and pay additional fees, if
necessary. That requirement was satisfied.
3Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2018).
4 Registered April 18, 1989; renewed.

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Serial No. 87347139

USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See M2

Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.

2006) (even within du Pont list, only factors that are “relevant and of record” need be

considered).

B. Relatedness of the Goods, Channels of Trade and Classes of Consumers

Applicant’s goods are identified as “clocks, watches, timepieces, chronographs for

use as timepieces, [and] horological and chronometric instruments” and Registrant’s

goods are identified “clocks, namely wall clocks and desk clocks.” On comparison, we

find Applicant’s broadly worded “clocks” and “horological and chronometric

instruments” clearly encompass the more narrowly defined “wall and desk clocks” in

the cited registration. The remaining goods identified in Applicant’s application, i.e.,

watches, timepieces and chronographs for use as timepieces, are complementary and

related to the “clocks” identified in the cited registration, all being instruments for

telling time. Even so, given the in-part identical “clocks” we need not discuss the

similarity of all of Applicant’s goods because it is sufficient for a finding of likelihood

of confusion if relatedness is established for any item encompassed by the

identification of goods within a particular class in the application. In re Aquamar,

Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Tuxedo Monopoly, Inc. v. General

Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer

v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).

Nonetheless, to support the relatedness of the goods, the Examining Attorney

made of record web pages from the websites of various entities, e.g., Fisher Scientific,

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Serial No. 87347139

Extech, Princeton Watches, Braun, Cobb & Co. Clocks, Arne Jacobsen, and Swatch,

showing the same mark used in connection with a variety of timepieces, including

timers, stopwatches, watches and clocks.5 We thus find the goods identical or closely

related for purposes of our likelihood of confusion analysis. Applicant appears to

concede that the goods are related.6

Furthermore, because the goods are identical in-part, the channels of trade and

classes of purchasers for such goods are considered to be the same. In re Yawata Iron

& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian

Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028

(TTAB 2011). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.

Cir. 2012) (even though there was no evidence regarding channels of trade and classes

of consumers, the Board was entitled to rely on this legal presumption in determining

likelihood of confusion). As such the channels of trade and classes of purchasers at a

minimum overlap.

The du Pont factors of the relatedness of the goods, channels of trade and classes

of purchasers strongly favor a finding of likelihood of confusion.

B. Similarity/Dissimilarity of the Marks

We now consider the du Pont likelihood of confusion factor of the similarity or

dissimilarity of the marks in their entireties in terms of sound, appearance, meaning

5 May 19, 2017 Office Action; TSDR 8-17 and January 13, 2018 Office Action; TSDR 8-30.
The TSDR citations are to the downloadable .pdf format.
6Applicant, in its brief, specifically stated: “while the goods connected with the marks are
substantially appear [sic] identical as described….” 4 TTABVUE 8 (Applicant’s Br. p. 7).

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Serial No. 87347139

and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin

Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In

comparing the marks, we are mindful that “[t]he proper test is not a side-by-side

comparison of the marks, but instead ‘whether the marks are sufficiently similar in

terms of their commercial impression’ such that persons who encounter the marks

would be likely to assume a connection between the parties.” Coach Servs. v. Triumph

Learning, 101 USPQ2d at 1721; see also San Fernando Electric Mfg. Co. v. JFD

Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons

Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem.,

972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average

customer, who retains a general rather than specific impression of the marks. L’Oreal

v. Marcon, 102 USPQ2d at 1438; Winnebago Industries, Inc. v. Oliver & Winston, Inc.,

207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,

108 (TTAB 1975). The average customers include members of the general public

seeking clocks.

Because the similarity or dissimilarity of the marks is determined based on the

marks in their entireties, our analysis cannot be predicated on dissecting the marks

into their various components; that is, the decision must be based on the entire

marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ

749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d

1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be

dissected and considered piecemeal; rather, it must be considered as a whole in

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Serial No. 87347139

determining likelihood of confusion.”). On the other hand, different features may be

analyzed to determine whether the marks are similar. Price Candy Co. v. Gold Medal

Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, 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 the ultimate conclusion rests on a

consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at

751.

Applicant’s mark FLYTE and the cited mark AIRFLYTE are similar in

appearance and sound in that they each include, or solely consists of, the term

“FLYTE.” The only difference between the two marks is the addition of the word

“AIR” to the cited registered mark, which does little to distinguish them. Given the

structure of Registrant’s mark, the “AIR” portion, defined, in part, as “[o]f or relating

to aircraft or aeronautics,”7 while appearing first and contributing to the mark’s

commercial impression, merely modifies the word FLYTE, the phonetic equivalent of

the “flight.”8 Likelihood of confusion is not necessarily avoided between otherwise

confusingly similar marks merely by adding or deleting other matter. If an important

7 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019)
(www.ahdictionary.com, retrieved March 18, 2019). The Board may take judicial notice of
dictionary definitions, including online dictionaries that exist in printed format or have
regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v.
Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
8Flight is defined, in part, as “[a] scheduled airline run.” THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2018). January 13, 2018 Office Action;
TSDR 32.

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Serial No. 87347139

or, as in the case here, significant portion and sole portion of both marks is the same,

then the marks may be confusingly similar notwithstanding some differences. See,

e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018)

(affirming TTAB’s finding that the marks DETROIT ATHLETIC CO. and DETROIT

ATHLETIC CLUB are nearly identical in terms of sound, appearance and commercial

impression, and noting that, while “the words ‘Co.’ and ‘Club’ technically differentiate

the marks, those words do little to alleviate the confusion that is likely to

ensue”); Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110

USPQ2d 1157, 1161 (affirming TTAB’s finding that applicant’s mark STONE LION

CAPITAL incorporated the entirety of the registered marks LION CAPITAL and

LION, and that the noun LION was the dominant part of both parties’ marks);

Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004

(Fed. Cir. 2002) (finding that, even though applicant’s mark PACKARD

TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not incorporate every

feature of opposer’s HEWLETT PACKARD marks, a similar overall commercial

impression is created).

Also, both Applicant’s and Registrant’s marks are in standard characters and, as

such, their display is not limited to any particular font style, size, or color. We

therefore must consider that both marks might be used in any stylized display,

including the same or similar lettering style or color. See In re Viterra, 101 USPQ2d

at 1909-10; Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98

USPQ2d 1253, 1259 (Fed. Cir. 2011); In re Aquitaine Wine USA, LLC, 126 USPQ2d

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Serial No. 87347139

1181, 1886 (TTAB 2018) (literal elements of standard character marks may be

presented in any font style, size or color).

As to connotation, there is no evidence that the term FLYTE (which as Applicant

asserts, and we concur, “is a play on the word ‘flight’”9) has any particular meaning

with regard to clocks and other timepieces. Accordingly, both Applicant’s and

Registrant’s marks are likely to impart the same arbitrary meaning. Applicant’s

argument that its mark connotes “the action or process of leaving,” while the cited

mark imparts the impression of an ‘“airplane or air flight’” is unsupported. Moreover,

the different connotations of the marks are not apparent in the marks themselves,

and, in fact, conflicts with the definition of “flight” set out in footnote 8 of this decision.

To the extent consumers may view the term “FLYTE” in Registrant’s mark as “air

flight,” they could attribute that same meaning to Applicant’s mark.

We recognize that in comparing the marks, we must consider Registrant’s mark

in its entirety. Thus, we have taken into account the differences in appearance and

sound between them. We nonetheless find that despite these differences, given the

similarities between the marks in sound, appearance and meaning due to the shared

term FLYTE, the marks engender similar commercial impressions. Because of the

similarities between Applicant’s and Registrant’s marks and the syntax of

Registrant’s mark, consumers are likely to believe that that the respective marks are

variant marks used by a single entity to identify and distinguish a companion product

line.

9 4 TSDR 6 (Applicant’s Br. p. 5).

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Serial No. 87347139

The factor of the similarity of the marks thus favors a finding of likelihood of

confusion.

C. Prior Decisions

Applicant has relied on a number of prior decisions, including several unpublished

ones,10 to bolster its position with regard to the likelihood of confusion issue. While

our decision is made within the confines of established statutes, rules and case

precedent, it is axiomatic that each case must be decided on its own facts. See In re

Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if

some prior registrations had some characteristics similar to [Applicant’s] application,

the PTO’s allowance of such prior registrations does not bind the Board or this

court.”); In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d

1141, 1142 (Fed. Cir. 1987). We are therefore obligated to assess, and have assessed

the registrability of Applicant’s mark on its own merits and have carefully considered

the arguments and evidence of record in this case, even if not specifically addressed

in the decision.

E. Analyzing the Factors

When we consider the record, the relevant likelihood of confusion factors, and all

of the arguments and evidence relating thereto, the marks are sufficiently similar for

confusion to be likely when used in connection with in-part identical and otherwise

10While applicants may cite to non-precedential decisions, such decisions are not binding on
the Board and the Board does not encourage this practice. In re Fiat Grp. Mktg. & Corporate
Commc’ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014); In re Procter & Gamble Co., 105
USPQ2d 1119, 1121 (TTAB 2012); In re Luxuria s.r.o., 100 USPQ2d 1146, 1151 n.7 (TTAB
2011); Corporacion Habanos SA v. Rodriquez, 99 USPQ2d 1873, 1875 n.5 (TTAB 2011).

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Serial No. 87347139

related goods in overlapping trade channels, and we conclude that prospective

purchasers familiar with the registered mark AIRFLYTE for “clocks, namely wall

clocks and desk clocks” would be likely to believe, upon encountering Applicant’s

similar mark FLYTE for “clocks; watches; timepieces; chronographs for use as

timepieces; [and] horological and chronometric instruments,” that such goods

emanate from, or are sponsored by or affiliated with, the same source.

Decision: The refusal to register Applicant’s mark FLYTE is affirmed.

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