TTAB Posts September 2007 Hearing Schedule

The TTAB has scheduled six hearings for the month of September, as listed below. The hearings will be held in the East Wing of the Madison Building. [The hearing schedule and other details regarding attendance may be found at the TTAB website (lower right-hand corner)]. Briefs and other papers for these cases may be found at TTABVUE via the links provided.


September 18, 2007 - 10 AM: University of Southern California v. University of South Carolina, Opposition No. 91125615 [Section 2(d) opposition to registration of a stylized SC mark for clothing, based upon Opposer's prior use and registration of the mark SC for clothing and other goods].


September 18, 2007 - 2 PM: Bose Corp. v. GoldWave, Inc., Opposition No. 91165449 [Section 2(d) opposition to the mark GOLDWAVE for computer software for audio editing, based upon the registered marks WAVE and ACOUSTIC WAVE for radios, audio systems, and other audio devices].

September 19, 2007 - 10 AM: In re KTS Co., Ltd., Serial No. 79009205 [Section 2(d) refusal to register POWER MAGNUM for air-operated hand-held tools, in light of the registered mark MAGNUM for electrically-powered tools].

September 20, 2007 - 2 PM: Pucell Enterprises, Inc. v. Grizzly Industrial, Inc., Opposition No. 91123506 and Cancellations No. 92031984, 92032024, and 92032025 [Consolidated Section 2(d) proceedings involving various GRIZZLY marks for material handling and industrial equipment].

September 25, 2007 - 2 PM: In re Hansen Beverage Co., Serial No. 78529821 [Section 2(d) refusal of JOKER MAD ENERGY for energy drinks excluding fruit juice drinks and fruit juices, in view of the registered mark JOKER for fruit drinks, fruit juices, and other beverages].

September 27, 2007 - 10 AM: TriForest Enterprises, Inc. v. Nalge Nunc Int'l Corp., Opposition No. 91165809 [Opposition to registration of a configuration of a bottle (shown below) on the ground of functionality].


Text Copyright John L. Welch 2007.

Precedential No. 52: TTAB Affirms Refusal of Product Configuration Mark for Boxes as Mere Packaging and Not Goods in Trade

The Board affirmed a refusal to register the configuration shown below for "trapezoidal cardboard boxes" for toys, tames, and athletic protective pads, agreeing with the PTO that the identified goods are not goods in trade and that, even if they were, the configuration is not inherently distinctive and lacks acquired distinctiveness. In re MGA Entertainment, Inc., 84 USPQ2d 1743 (TTAB 2007) [precedential].


Examining Attorney Ellen F. Burns maintained that the goods are "incidental to Applicant's business of selling toys and do not have intended additional utility to the consumer as boxes apart from conveying the goods at point of sale." There was no evidence "that the boxes ... have a use beyond holding the goods for sale," and consumers "would have no reason to view these boxes as having additional functions."

Applicant MGA argued that the boxes have the "additional utilitarian purpose of a storage container in which a consumer keeps the puzzle pieces when not playing with the puzzle." And the box also serves as a "carrying case" for Applicant's toy laptop computer.


The Board noted decisions holding that "collateral products which serve the purpose of promoting a party's primary goods and which have more than a mere incidental function in relation to the primary goods may constitute goods in trade." [e.g., ball point pens and calendars used as promotional items]. But bank passbooks, checks, and forms have been held not to be separate commodities in trade because they were used only as "necessary tools in the performance of banking services."

Here there was no evidence that MGA manufactures boxes or sells boxes as commodities in trade. Moreover, the mere fact that original boxes may be used to store products "does not infuse such boxes or packaging with additional utility such that they constitute goods in trade." As to toy laptops, there was no evidence that MGA promoted the boxes as carrying cases and no evidence that children actually use the boxes for that purpose.

In sum, the Board concluded that MGA's trapezoidal boxes are not goods in trade, and it affirmed the PTO's refusal on that ground.

For the sake of completeness, the Board also considered MGA's Section 2(f) claim (assuming arguendo that the boxes were goods in trade). Because MGA claimed that the boxes were the actual product it was offering, the product shape cannot be inherently distinctive. In any case, MGA, by seeking registration under Section 2(f), conceded that the configuration was not inherently distinctive.

The Board agreed with the Examining Attorney that Applicant's burden of proof is heavier because it seeks to register a product configuration. Moreover, in MGA's declarations in support of acquired distinctiveness, the declarants described the design as product packaging associated with the primary goods, and not as a product configuration. And although MGA's sales of BRATZ dolls were "impressive," that evidence did not speak to the issue of acquired distinctiveness of the box design itself.

Therefore, the Board also affirmed this second ground of refusal.

Text Copyright John L. Welch 2007.

Precedential No. 51: TTAB Affirms Rejection of Specimen of Use and 2(d) Refusal of "CORAZON BY CHICA" for Jewelry

In yet another citable decision, the Board affirmed the PTO's rejection of Applicant's specimen of use for the mark CORAZON BY CHICA and Design (mark shown immediately below) for jewelry, on the ground that the specimen of use comprised "a mere drawing of the goods with a representation of how the mark may be displayed and not an actual specimen that applicant used in commerce." For good measure, the Board also affirmed a Section 2(d) refusal, finding Applicant's mark likely to cause confusion with the mark CORAZON (Stylized) for jewelry. In re Chica, Inc., 84 USPQ2d 1845 (TTAB 2007) [precedential].

Under Rule 2.56(c), a photocopy or other reproduction of a specimen "as actually used" is acceptable. The specimen "may not be a "'picture' of the mark, such as an artist's drawing or a printer's proof that merely illustrates what the mark looks like and is not actually used on or in connection with the goods in commerce." TMEP 904.04. "Facsimiles" may be acceptable, but not a drawing of the mark on the goods. An artist's rendition is not a facsimile because it does not show the mark as actually used on the goods. Therefore, Applicant's artist's rendition (shown immediately below), failed the test.


Turning to the Section 2(d) refusal, the Board found that both marks are dominated by the word CORAZON (which means "heart"), and that the goods are identical or closely related and presumably travel in the same channels of trade to the same customers.


Applicant pointed to a third-party registration for the mark shown below for various jewelry items, arguing that it "must be considered undisputed evidence that the styles and logos of the CORAZON COEUR logo and the cited registration are different enough from each other and each sufficiently distinctive to allow both to be registered without the likelihood of confusion." No dice, said the Board.


Third-party registrations may be used to demonstrate that a portion of a mark is suggestive or descriptive, but "cannot justify the registration of another confusingly similar mark."

In addition, the Board noted that the third-party registration includes a disclaimer of "Corazon Coeur." According to the Board, the disclaimed terms may have less weight in a likelihood of confusion analysis. [TTABlog comment: yes, if they are descriptive. But what is descriptive about "Corazon Coeur"? Why did the registrant disclaim the words? Indeed, the public is unaware that terms have been disclaimed.] In any case, the Board discounted the significance of the third-party registration because of the disclaimer.

Text Copyright John L. Welch 2007.

Precedential No. 50: Section 2(f) Grandfather Clause Does Not Shield Geographically Deceptive Mark from Section 2(a) Refusal

Applicant Beaverton Foods, Inc. was foiled in its attempt to register the mark NAPA VALLEY MUSTARD CO. for mustard ("MUSTARD CO." disclaimed). Because its product is manufactured in Oregon from seeds grown in the Northern tier states and in Canada, Beaverton faced a geographically deceptively misdescriptive refusal, which it sought to overcome by invoking Section 2(f). The Examining Attorney maintained that registration is barred by Section 2(a), but Applicant contended that its mark had acquired distinctiveness prior to the enactment of NAFTA in 1993, and that the "grandfather clause" in Section 2(f) trumps a Section 2(a) geographical deceptiveness refusal. In any case, it argued, its mark is not deceptive. Both arguments failed to cut the mustard. In re Beaverton Foods, Inc., 84 USPQ2d 1253 (TTAB 2007) [precedential].


The "grandfather clause" of Section 2(f) provides that nothing in Section 2 "shall prevent the registration of a mark which, when used on or in connection with the goods of the applicant, is primarily geographically deceptively misdescriptive of them, and which became distinctive of the applicant's goods in commerce before the date of enactment of the Northern American Free Trade Agreement Implementation Act."

Applicant contended that, according to In re California Innovations, Inc., 329 F.3d 1334 (Fed. Cir. 2003), "geographic deception is specifically dealt with in subsection (e)(3) [of Section 2], while deception in general continues to be addressed under subsection (a)." In other words, according to Applicant, any geographical deceptiveness claim now falls under 2(e)(3). Therefore Section 2(f) evidence of acquired distinctiveness prior to NAFTA overcomes a geographic deceptiveness refusal.

Not so fast, replied the TTAB. California Innovation did not concern a pre-NAFTA 2(f) claim. The grandfather clause in 2(f) was meant "to provide a means for registering those marks that, prior to NAFTA implementation, could have been registrable under Section 2(f), i.e., primarily geographically deceptively misdescriptive marks where the geographic misdescriptiveness was not material to the purchasing decision." [Emphasis supplied]. Applicant's position would "provide a windfall to applicant's seeking to register marks that prior to the NAFTA amendments would have been unregistrable under Section 2(a)."

Therefore, the board held that:

"where an applicant is seeking registration for a mark with a geographic term on the Principal Register under Section 2(f) based on a claim that the mark had acquired distinctiveness prior to December 8, 1993, a geographically deceptive mark is properly refused registration under Section 2(a)."

Turning to the merits of the Section 2(a) refusal, Examining Attorney David Taylor maintained that the primary significance of the phrase NAPA VALLEY is geographic, and that the term NAPA VALLEY is used in connection by third parties in connection with mustard. The Board agreed that NAPA VALLEY is a well known geographic location, that Applicant's goods do not originate there, and that purchasers are likely to believe that the goods originated there. Moreover, by seeking a 2(f) registration, Applicant conceded that the mark is geographically misdescriptive.

The final question, then, was whether the misrepresentation is a material factor in a consumer's decision to purchase the goods. The Board found that it is, "inasmuch as the Napa Valley is known for mustard."

Therefore, the Board affirmed the Section 2(a) refusal.

TTABlog note: For an explanation of the changes wrought by NAFTA with regard to the treatment of geographically misdescriptive marks, read the California Innovations decision.

TTABlog update: On November 6, 2007, Applicant's Request for Reconsideration was denied by the Board (here).

Text Copyright John L. Welch 2007.

Precedential No. 49: TTAB Reverses Indefiniteness Refusal, Affirms 2(d) Refusal of "PAPER DOLL PROMOTIONS" for Custom Costumes

In a precedential decision, the Board provided a lengthy discussion of the propriety of Applicant Paper Doll Promotions' identification of goods, ruling that "costumes, namely masquerade costumes, Halloween costumes, Mardi Gras costumes, and custom costumes" is sufficiently definite. The Board then went on to sustain one of two Section 2(d) refusals, finding Applicant's mark PAPER DOLL PROMOTIONS likely to cause confusion with the registered mark PAPER DOLL for children's and women's clothing, but not confusingly similar to the mark PAPERDOLL A WOMAN BY ANY DEFINITION and Design (shown far below) for t-shirts and underwear. In re Paper Doll Promotions, Inc., 84 USPQ2d 1660 (TTAB 2007) [precedential].


In a request for reconsideration of the final refusal, Applicant sought to amend its identification of goods to that stated above. The Examining Attorney denied the request, asserting that the proposed identification was indefinite.

The Board assumed that the basis for the Examining Attorney's denial was that the "custom costumes" portion was indefinite. The Board disagreed, noting that the term "custom costumes" is comprised of "common names and terminology that would be generally understood by an average person able to speak English; in short, the identification meets the standards of TMEP Section 1402.01(a) and the clarity test of Examination Note 98/1, and one would not require technical knowledge to understand it." (p. 18)

The Board also reversed the PTO's requirement regarding classification of the goods, finding them to be properly classified in class 25.

"Considering 'custom costumes' in relationship to the other types of clothing costumes set forth in the identification (in contrast to, for example, considering the term in relationship to doll costumes), all of the recited clothing costumes would be commonly understood to be similar items moving in a particular channel of trade."

Turning to the Section 2(d) refusals, the PTO's third-party registration evidence was sufficient to establish the relationship between costumes and ordinary clothing. The marks PAPER DOLL PROMOTIONS and PAPER DOLL were clearly very similar.

As to the other cited registration, the goods were limited to "t-shirts and underwear." Therefore, consumers would not expect "a wide array of clothing items to be marketed under the mark." [TTABlog comment: what about reverse confusion?] Coupling the differences in goods with the differences between the marks, the Board found confusion not likely.



TTABlog comment: After reading this deadly dry decision, one needs a bit of humor. I'm reminded of the Flight of the Conchords song, "Tape of Love":

People are like paper dolls.
Paper dolls and people, they're a similar shape.

Text Copyright John L. Welch 2007.

TTAB Reverses 2(e)(1) Descriptiveness Refusal of "FOLDOVER" for Web-Based Marketing Software

A dearth of PTO evidence led the Board to reverse a Section 2(e)(1) refusal of the mark FOLDOVER for "[p]roviding temporary use of non-downloadable computer software for use in creating web-based advertisements" in Class 42. In re Point Roll, Inc., Serial No. 78612631 (August 17, 2007) [not precedential].


The Examining Attorney contended that the term FOLDOVER merely describes a type of advertisement, and "the purpose and function of the [applicant's] services is the creation of a foldover ad in an electronic environment." Applicant Point Roll, Inc. refused to roll over, urging (of course) that FOLDOVER is merely suggestive, not descriptive, and pointing out that its software works in a "one dimensional setting" [TTABlog comment: really?] and therefore the advertisement cannot literally be folded over.

The PTO failed to substantiate its contention that the term FOLDOVER describes a type of print advertising. Its meager evidence consisted of three Internet excerpts of limited probative value.

The Examining Attorney noted Applicant's own use of the term "folds over" in a press release, but the Board retorted that "applicant seeks to register the term FOLDOVER, not 'folds over.'" [TTABlog comment: so what?]. In a PTO response, Applicant stated that its software "allows for advertiser's promotions to appear as a fold over," but the Board brushed aside that evidence as well, observing that Applicant was merely using the PTO's terminology and did not concede the descriptiveness of the term.

Moreover, the Board adamantly asserted that even if it had found FOLDOVER to be descriptive of print advertising, that would not have changed its decision. FOLDOVER is merely suggestive of the services because "a multistage reasoning process or imagination would be necessary for purchasers of these services to deduce anything meaningful about the nature of the services from the mark FOLDOVER."

[TTABlog comment: Hmmm. Let's see. It's advertising software and it's called FOLDOVER. I wonder if it makes some kind of foldover advertisements?]

Anyway, the Board gave Applicant the benefit of the doubt and reversed the refusal to register.

Text Copyright John L. Welch 2007.

Finding Vinegar and Olive Oil Unrelated to Cigars, TTAB Dismisses "MONTECRISTO" Opposition

The Board dismissed an opposition to registration of the mark MONTECRISTO for olive oil and vinegar, finding the mark not likely to cause confusion with the mark MONTECRISTO registered in several forms for cigars and various other goods and services. The Board also dismissed Opposer's dilution claim because of lack of proof of the fame of the mark. Cuban Cigar Brands, N.V. v. Valle Grande Limitada, Opposition No. 91165277 (August 9, 2007) [not precedential].


Opposer not only sells MONTECRISTO brand cigars, but licenses the mark for use in connection with coffee, alcoholic beverages, and a variety of ancillary items, like mugs, ashtrays, hats, rum, and credit cards. Opposer claimed that MONTECRISTO is "among the best-known and top-selling brands in the country," but the record contained no sales or advertising dollar amounts.

Applicant sells its goods only in Chile. It admitted awareness of MONTECRISTO cigars and conceded that MONTECRISTO is a well-known mark for cigars, but it asserted that it chose its mark based on a Bible passage and not in an attempt to trade on Opposer's goodwill.

The Board found that Opposer established "a certain degree of renown" for its mark, but not fame. The similarity of the marks strongly favored Opposer, and the fact that purchasers are general consumers also favored Opposer.

As to the goods and services, however, the Board found "no evidence that cigars and olive oil and vinegar are related items or items that may be perceived by consumers as coming from the same source." Opposer asserted that its cigars are available at some restaurants, and Applicant indicated that it will sell its products to restaurants, but even so there was no evidence that "consumers encountering these products would believe that these disparate items come from the same source."

As to the additional items/services identified in Opposer's registrations (e.g., cologne, golf balls, restaurant services), there was no evidence that they have any relationship to olive oil and/or vinegar. Many of the products, as well as credit card services, "are logical ancillary items which [serve] to promote opposer's primary product under its mark - cigars." There was no evidence that olive oil or vinegar fall into that ancillary product category.

Therefore, in view of the "wide differences" between the goods and services, and despite the identity of the marks, the Board found no likelihood of confusion.

As to Opposer's dilution claim, lack of proof of fame proved fatal.

TTABlog comment: Compare this case to the VIRGIN decision blogged here on Monday. When a 2(d) Opposer proves fame, it hits the jackpot. When it doesn't? No cigar.

Text Copyright John L. Welch 2007.

TTAB Affirms 2(e)(1) Descriptiveness Refusal of "THE TTABLOG"

THE TTABLOG is not an inherently distinctive mark, says the TTAB. The Board has affirmed the PTO's Section 2(e)(1) refusal of the mark, finding it merely descriptive of "An online blog featuring commentary and information in the field of trademarks; an online blog featuring commentary and information regarding decisions of the Trademark Trial and Appeal [Board] and the courts relating to trademark law." On the brighter side, however, the application will now proceed to publication based upon the Examining Attorney's previous acceptance of Applicant's evidence of acquired distinctiveness under Section 2(f). In re Welch, Serial No. 78669946 (August 20, 2007) [not precedential].


Applicant argued that the mark, although comprised of the telescoped descriptive words TTAB and BLOG, "possesses an analogous distinctive characteristic to that of the double-entendre cases, namely, its 'tongue-twisting' pronunciation." The Board, however, rejected the contention the "the simple fact that some individuals allegedly experience uncertainty in determining how to pronounce Applicant's mark ipso facto renders it inherently distinctive." Rather, according to the Board, relevant consumers will readily perceive the merely descriptive significance of Applicant's mark, THE TTABLOG, that is, a blog concerned with TTAB matters, and nothing more."

Moreover, the Board found that, even accepting Applicant's "novel theory" regarding pronunciation, the evidence did not support the proposition that "the uncertainty regarding pronunciation so alters the commercial impression of the mark as to render it inherently distinctive."

TTABlog non-comment: Rather than comment on this decision, I will leave it up to the reader to form her or his own opinion regarding same.

I do note, however, that this may be the first and only Board opinion in which a statement made by Leo Stoller is cited in support of the Board's position. How ironic is that?

Text Copyright John L. Welch 2007.

Sale of Stoller Trademark Assets to SPTA is Completed

Pursuant to the August 8th Order of the United States Bankruptcy Court for the Northern District of Illinois, the Society for the Prevention of Trademark Abuse, LLC ("SPTA") has acquired Leo Stoller's trademark assets. (See TTABlog postings here and here).

Leo Stoller
The Chapter 7 trustee of Stoller's bankruptcy estate executed the Assignment yesterday, August 20th. (pdf here). The 44-page document includes lists of Stoller's trademark applications and registrations, licenses, and active TTAB and court proceedings. Stoller continues to challenge the bankruptcy court's rulings and subsequent actions via various court filings.
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TTAB Posts Chart Summarizing August 1st Rule Changes

The TTAB has posted at its website a six-page chart summarizing the changes effected by the TTAB Rule package issued on August 1, 2007 (chart here).


The chart provides a quick reference to each changed rule, summarizes the subject matter of the rule, states the effective date of the change, and indicates whether and how the change affects pending cases.
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Fame and Scope of "VIRGIN" Mark Yields 2(d) Opposition Victory over Auto Dealer

Finding the VIRGIN mark to be famous for Section 2(d) purposes, the Board sustained three Section 2(d) oppositions to registration of the marks VIRGIN VEHICLES, VIRGIN SALE, and VIRGIN PURCHASE for "automobile and truck dealerships." Virgin Enterprises Ltd. v. Albion Motors Ford Mercury, Inc., Oppositions Nos. 91153575, 91153612, and 91154161 (August 10, 2007) [not precedential].


The Board spent the first quarter of its 57-page decision reviewing and ruling upon various evidentiary and procedural objections. Applicant managed to gain a few moral victories, like limiting the Board's consideration to the 18 registration pleaded by Virgin, jettisoning several UK publications as irrelevant, and blocking an exhibit as to which Virgin had failed to furnish a copy.

Turning to the merits, the Board first noted that "the scope and importance" of Virgin's 18 registrations "cannot be underestimated." [TTABlog suggestion: perhaps the Board meant "overestimated"?]. The registrations cover a "significant number of variations on the VIRGIN marks" and include a "vast variety of goods and services ... "ranging from transportation and travel, to bar services, to communication services, to online sales and retail store services for a wide variety of goods."

Richard Branson and his Virgin companies have attracted "significant attention." Opposer's airline services have been "significant in terms of both length of service, revenue and number of passengers carried." The Virgin Group has also sold "significant numbers" of musical recordings and has operated its retail stores in some 20 major U.S. cities, including in New York City's Times Square. Its sales at retail and online are substantial, as are its advertising efforts. Opposer's use of the VIRGIN mark with communications services has also been extensive. Opposer's advertising and promotional efforts have brought "a widespread awareness of the VIRGIN marks."


Applicant Albion Motors uses its marks in connection with "custom ordered vehicles," with the word "virgin" referring to "the newness, purity, first-time element."

The Board began its du Pont discussion with a finding that Virgin established "significant fame" for Section 2(d) purposes as to airline services, communications, and retail and online store services. [The Board declined to decide whether the VIRGIN mark are famous for dilution purposes and, in light of its ruling on likelihood of confusion, declined to deal with Virgin's dilution claim at all.] Applicant objected to the Board's consideration of evidence of fame relating to the period after the filing of its applications, but the Board pointed out that the objection might be proper in a dilution context, but not on a Section 2(d) claim. In short, the Board ruled that Virgin is entitled to "a significantly broader scope of protection that would otherwise apply to its VIRGIN marks."

Turning to the marks, the Board determined that Opposer failed to prove its claim to a family of VIRGIN marks. Instead, the Board looked at the individual marks, noting, however, that ten of the 18 registrations are for the word VIRGIN alone or in stylized script, and those ten cover "substantially all of the significant goods and services covered by the eighteen registrations." Focusing on those ten registrations, the Board then pointed out that the dominant element in Applicant's marks is the word VIRGIN. The Board therefore found that this factor favored Opposer.

Applicant's third-party registration evidence for marks including the word VIRGIN failed to make a dent in the strength of Opposer's marks.

As to the goods and services, the Board found the parties services to be related "in view of the wide variety of goods and services identified in opposer's registrations and the fame of the VIRGIN mark. "We might reach a different conclusion if we looked at each of opposer's goods and services in isolation in relation to applicant's services." But the "circumstances surrounding the marketing of opposer's goods and services when viewed as a whole ... lead us to conclude that relevant purchasers would perceive that the goods and services of the parties are related."

Based on the same analysis, the Board found the channels of trade to be related. And although automobiles and trucks would be purchased with care, "[e]ven sophisticated purchasers are not immune from trademark confusion." The Board therefore deemed this factor to be neutral.

Considering all of the factors, the Board found confusion likely and it sustained the opposition.

TTABlog comment: As noted, the Board declined to reach the dilution claim. Nonetheless, Virgin obtained dilution-like protection without having to meet the higher fame standard and without having to show that the marks in question are substantially identical.

Text Copyright John L. Welch 2007.

Precedential No. 48: Based on Third-Party Registrations, TTAB Finds Banking and Real Estate Brokerage to be Related

Relying on several third-party registrations that include the services recited in the application and in the cited registration, the Board affirmed a Section 2(d) refusal of the mark 1st USA and Design for (shown immediately below) "real estate brokerage and listing services." The Board found the mark likely to cause confusion with the registered mark FIRST USA (Stylized) for banking, credit card, insurance underwriting, and financial investment services. In re 1st USA Realty Professionals, Inc., 84 USPQ2d 1581 (TTAB 2007).


Applicant argued that the registrant is "not likely to expand its services to those identified in applicant's application," but the Board pointed out that the expansion of trade doctrine applicable in inter partes proceedings, has a "more limited application in an ex parte appeal." Here, the question is whether consumers are likely to believe that the services emanate from a single source, rather than whether the particular registrant has expanded or is likely to expand its business to include Applicant's services.


The Examining Attorney submitted "a number of third-party registrations showing that a single mark has been adopted by various entities" for both applicant's services and those of the cited registration. [TTABlog note: there did not seem to be a shred of evidence that these third-party marks are in use, or that anyone ever heard of them]. The Board concluded that customers who encounter these services offered under the same or a confusingly similar mark are likely to believe that they emanate from the same source.

As to the marks, the Board observed that they are identical in pronunciation and connotation. The stars in the applied-for mark are not sufficient to distinguish the marks: they are merely background material, and tend to "reinforce" the component "USA."

The Board noted that "Applicant did submit information about third-party applications/registrations" containing either 1st USA or FIRST USA. These registrations, however, were brushed, because applications and registrations "are not evidence that the marks shown therein are in use, or that the public is familiar with them." [TTABlog note: In other words, what's sauce for the goose is not sauce for the gander.]

In sum, the Board found that the marks convey the same commercial impression, and that the similarities in appearance outweigh the differences in stylization and the presence of the design element.

Applicant urged that the services involved are purchased with care, but the Board disagreed. Members of the general public buy and sell homes, and have bank accounts or credit cards, and therefore the Board does not regard them "as being particularly sophisticated." Nor are financial transactions necessarily conducted only after careful consideration. As to real estate purchases, however, the Board did recognize that some degree of care is exercised, and therefore to that extent this factor favored Applicant.

Considering all of the relevant du Pont factors, the Board found confusion likely.

TTABlog comment: Well, this case illustrates nicely why the Board's treatment of third-party registration evidence is so annoying to practitioners. In this Internet age, shouldn't the PTO be required to demonstrate that the cited third-party marks are at least in use?

Suppose the Applicant had submitted 100 third-party registrations that cover banking services but not real estate brokerage? Would that make a difference? Would that show that consumers are not likely to expect banking and real estate services to be offered under the same mark?

Text Copyright John L. Welch 2007.

Marty Schwimmer on Online Branding Issues

Here's a podcast from Marty Schwimmer of The Trademark Blog, entitled "Internet Law: Online Branding Issues." (link). Marty shares his considerable knowledge of Internet matters. But if only he had a sense of humor ....


TTABlog note: On the topic of protection of brands against online abuse, see this article: "Online Brand Protection: 11 Graphic Examples of Brand Abuse Online." Hat tip to Ron Coleman's Likelihood of Confusion blog for this.
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Precedential No. 47: TTAB Dismisses Cancellation Petition on Laches and Acquiescence Grounds

In a precedential ruling, the Board dismissed a petition for cancellation of a registration for the standard character mark ABS-CBN for telephone calling card services and television broadcasting services, upholding Respondent's affirmative defenses of laches and acquiescence as to the television services, and finding the mark ABS-CBN for telephone calling card services not likely to cause confusion with Petitioner's mark CBN for television broadcasting and Christian evangelical ministerial services. Christian Broadcasting Network, Inc. v. ABS-CBN Int'l, 84 USPQ2d 1560 (TTAB 2007) [precedential].


Likelihood of confusion: The Board began its du Pont analysis by ruling that Petitioner had failed to establish a family of CBN marks, and further that, in any event, the ABS-CBN mark would not be seen as a member of such family. However, there was some good news for Petitioner: the Board found the mark CBN to be famous for television broadcasting and evangelical services, and entitled to a wide scope of protection.

As to Respondent's telephone calling card services, the Board ruled that, despite the fame of the CBN mark, confusion was not likely. There was simply no evidence regarding the similarity of the services or the channels of trade. The differences in the services and the marks "more than offset the fame of petitioner's CBN service mark and, therefore, serve to negate any likelihood of confusion."

With regard to broadcasting services, however, the Board found confusion likely. "The similarities of the marks, the services, the channels of trade, and classes of television viewers are sufficient to persuade us that the use of ABS-CBN ... so closely resembles the mark CBN ... as to be likely to cause confusion."

Laches and acquiescence: Turning to the affirmative defenses, the Board noted that proof of laches requires an unreasonable delay coupled with prejudice. The laches defense (and the acquiescence defense as well) will bar a Section 2(d) petition for cancellation unless confusion is inevitable.

Here, Petitioner had constructive notice of the registration as of the issue date of March 28, 2000, and had actual knowledge of respondent's use of the ABS-CBN mark in 2001 when Petitioner contracted with Respondent through its subsidiary, CBN Asia. The petition for cancellation was filed on March 24, 2005, nearly five years after the registration issued.

The Board found that, in the context of this case, the period of delay was unreasonable, based both on Petitioner's knowledge and on its testimony that "it purportedly actively policed its mark." Petitioner's claim of lack of knowledge was "implausible," since petitioner was broadcasting on respondent's network and the respective marks of the parties "often appeared on successive screen shots."

Petitioner argued that Respondent had not shown any actual harm from the delay, but the Board observed that prejudice "may be as simple as the development of goodwill built around a mark during petitioner's delay." Respondent had continued the promotion and use of its mark during the delay period, and grew its distribution network from 300-400 dealers to more than 70,000.

As to acquiescence, the Board noted that Petitioner had contracted with Respondent to broadcast its programming over Petitioner's network. Petitioner never objected to use of the ABS-CBN service mark, and its silence constituted acquiescence.

Finally, the Board ruled that confusion was not inevitable between the ABS-CBN mark and Petitioner's CBN mark. Although the services are virtually identical, the marks are not. In addition, there have been no incidents of actual confusion during the thirteen years of concurrent use of the involved marks.

And so, the Board dismissed the petition.

Text Copyright John L. Welch 2007.

Seattle Trademark Lawyer Reports on USPTO Anti-Counterfeiting Forum

Michael Atkins reports here at his Seattle Trademark Lawyer blog on the “Anti-Counterfeiting & Piracy 2007” program held in Seattle on August 10th, and co-sponsored by the U.S. Patent and Trademark Office and the U.S. Chamber of Commerce.


The same anti-counterfeiting forum will be held in Burlington, Vermont, on Aug. 17th, co-starring Sen. Patrick Leahy. The program "will highlight the growing threats of counterfeiting and piracy, while also providing information on how businesses can protect and enforce their own intellectual property rights in the U.S. and overseas." More information here.
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Rhode Island Federal Court Finds "MEMORY" to be Generic for a Card Game

On July 31, 2007, Judge William E. Smith of the United States District Court for the District of Rhode Island, denied a motion for preliminary injunction brought by Hasbro, Inc., ruling that Defendant MGA Entertainment, Inc. had carried its burden to show that the term "'Memory' is and has been a generic term not entitled to trademark protection." Hasbro, Inc. v. MGA Entertainment, Inc., C.A. No. 06-262 S (D.R.I. July 31, 2007).


Hasbro charged MGA with infringement of the registered mark MEMORY for a line of card-matching games. MGA sells a three-dimensional version of a memory game under the name "3-D Memory Match-Up."

3-D Memory Match-Up
According to the court, over the course of a seven-day evidentiary hearing, "the parties fought unsparingly over every inch of legal ground *** proving that when it comes to fun and games, there is no fooling around." The crux of the matter was simple: "whether the term 'memory/ is a generic name for a class of card (or card-variant) matching games."

After discussing the issue of who bears what burden of proof when "an incontestable mark is challenged as generic," and noting a difference in the law of the sixth and ninth circuits as compared to the seventh, the court concluded that MGA had met the more stringent test: proof by a preponderance of the evidence that the term is generic. Consequently, Hasbro was unable to demonstrate likely success on the merits, and its motion for preliminary injunction was denied.

MGA's evidence of genericness was "compelling." Although Hasbro's registration issued in 1967, game books and rule books dated 1946, 1958, 1964, and 1968 referred to a generic card game called "Memory" or "Concentration (Memory)". Various dictionaries also defined "memory" as a card game, sometimes referred to as "concentration." Hasbro's own website used the term generically, and "substantial evidence" showed use of the term "memory" by competitors. And finally, MGA submitted "considerable evidence of the term 'Memory' being used in conjunction with internet card-matching 'memory games.'"

Hasbro offered brand penetration surveys which it claimed demonstrated that "consumers associate Hasbro's specific game with the term 'Memory.'" However, such evidence is "not dispositive," but rather is considered as one of several factors. In any case, there was no evidence that "consumers associate the term 'Memory' with Hasbro's game, just that Hasbro's game occupies a large market share."

In closing, the court noted, however, that "a party losing the battle on likelihood of success may nonetheless win the war at a succeeding trial on the merits."

Text Copyright John L. Welch 2007.

Letter from SPTA Provides More Detail re Leo Stoller Asset Sale

Lance Johnson, Director of the Society for the Prevention of Trademark Abuse, LLC, has sent a letter to the TTABlog (pdf here) providing further details regarding the sale of Leo Stoller's trademark assets, reported yesterday at this blog. I reproduce, in pertinent part, the text of the letter below.

August 9, 2007Dear John:

[Referring to the August 9 TTABlog posting] I wanted to add the following to help make the news complete.

As approved by the bankruptcy court, The Society will also be acquiring the following assets, "free and clear":

• All trademark registrations and applications (including ITU's) owned by Central Mfg. Co. and all other proprietorships, including any business (or allegation thereof) that might support them,


• All licenses granted to any third parties (The Society will become the owning successor),


• All stock for each of Stoller's corporate entities and the associated control over the trademarks, claims, licenses, etc. that each of them might have,


• All past and future, known and unknown claims to all unregistered trademark rights, infringement, damages, royalties,


• All specimens of use, books, records, logs and other tangible evidence of use, rights, claims, or licenses for all acquired assets.

Exemplary marks in the portfolio include: STEALTH, SENTRA, TRILLIUM, DARK STAR, TERMINATOR, RENTAMARK, TRIANA, AIR FRAME, FIRE POWER, 24 KARAT, HAVOC, ANNIHILATOR and STRADIVARIUS.

Absent a judicial order to stay the closing, we will close on the sale August 20, 2007. The Society will then try to contact all of the affected companies and groups to arrange for an orderly resolution of any pending matters, outstanding licenses, etc. *** [R]eaders should feel free to contact me at LJohnson@Roylance.com or 202-530-7361 for expedited handling of their case.

This could not have happened without the help and support of many others. It is a testament to Stoller's pervasive reach that aid came from across the country, outside the country, and from some unforeseen sources. I want to thank each of them for helping to make this happen.

Lance Johnson, Director

Court Approves Sale of Leo Stoller Trademark Assets to the Society for the Prevention of Trademark Abuse, LLC

In an Order dated August 8, 2007, the United States Bankruptcy Court for the Northern District of Illinois has approved the sale of Leo Stoller's trademark assets to the Society for the Prevention of Trademark Abuse, LLC ("SPTA"). In re Leo Stoller, Case No. 05-B-64075. The chapter 7 trustee is authorized to sell the assets for $7,500 to the SPTA, who "made the only offer for the Assets received within the time period ordered."

Leo Stoller
Among the assets involved are Stoller's alleged rights in the mark STEALTH. The USPTO recently cancelled 34 registrations for various STEALTH marks owned by Stoller's company, Central Mfg. Co., as reported here.

In his recent comment (here) at the Seattle Trademark Lawyer blog, Lance Johnson, the Director of the SPTA, described the Society as follows:

The Society for the Prevention of Trademark Abuse, LLC was established for the purpose of buying Stoller's IP portfolio, licenses, claims, and all rights in all pending actions. The Society's plan is to convey the marks others may want/need to clear the way for their own applications to proceed, wind up all pending matters in a manner consistent with the known and trustworthy evidence.

Text Copyright John L. Welch 2007

Merchant & Gould Offers Power Breakfast Meeting on New TTAB Rules

Minneapolis-based Merchant & Gould appears to be the first firm to cross the bridge to the brave new world of the TTAB rule changes. M&G will host a Power Breakfast Presentation entitled: Understanding the "Miscellaneous Changes to Trademark Trial and Appeal Board Rules" on Friday, August 17, 2007 from 9AM to 11AM. Breakfast and validated parking provided. Details here. M&G announcement below:

Mary Tyler Moore statue

On August 1, 2007, the Trademark Office published significant procedural changes to the rules of practice for Trademark Trial and Appeal Board proceedings. *** The changes, which become effective as early as August 31, 2007, include:

* Party service of Notices of Opposition, Petitions for Cancellation

* Mandatory settlement/discovery conference at the beginning of the case

* Mandatory Initial Disclosures before a party can undertake traditional discovery

* Expert disclosures, including identification and summary of subjects on which witnesses will testify

* Pretrial disclosures before each testimony period

* Making the Board standard protective order applicable in all pending Board cases

Learn how the new rules will change TTAB practice and discuss strategies in view of the changes.

Finding Restaurant Services and Rice Related, TTAB Sustains "EL MAGO" 2(d) Opposition

Relying on questionable evidence and a dubious interpretation of the case law, the Board sustained a Section 2(d) opposition to registration of the mark EL MAGO for restaurant services, finding the mark likely to be confused with the identical mark registered for rice and rice mixes. Applicant Susana Romero-Nunez neither offered evidence nor filed a brief, and so the Board was seemingly determined to rule in Opposer Riviana's favor. Riviana Foods Inc. v. Romero-Nunez Opposition No. 91167098 (July 24, 2007) [not precedential].


Applicant had one strike against her because the marks are identical, a factor that "heavily favors opposer." [BTW: "el mago" means "the magician" in some unidentified foreign language, perhaps Spanish]. And it is black-letter TTAB law that the greater the similarity of the marks, the lesser the degree of similarity between the goods/services necessary to support a likelihood of confusion finding. [Strike two.]

Because Applicant's recitation of services was not limited to any particular cuisine [TTABlog suggested recitation: restaurant services not including any rice dishes?], the Board assumed that Applicant's services "may include all types of restaurants." Similiarly, Opposer Riviana's goods may include "all types of rice."

"Thus, opposer's goods and applicant's services must be presumed to include rice and rice mixes on the one hand and restaurants on the other with the same theme or flavoring. [TTABlog comment: Huh?] *** As a result, patrons of applicant's restaurant upon encountering registrant's rice and rice mixes identified by the identical EL MAGO mark, would be likely to experience confusion as to the source of those goods or services."

The Board distinguished Jacobs v. Int'l Multifoods Corp. and its progeny, which hold that "to establish likelihood of confusion a party must show something more than that similar or even identical marks are used for food products and restaurant services." [TTABlog comment: the Board ignored the "identical marks" part.]

Moreover, Opposer introduced "articles from printed publications "all discussing the growing trend among restaurants to license the use of their marks on food items." [TTABlog objection: Hearsay!!! Also, any mention of rice in these articles?] And then, the Board pointed to third-party registrations "in which the same mark is used to identify restaurant services and a variety of food products." [TABlog queries: how many? how many included rice? any proof as to the nature and extent of use of these third-party marks?].

Finally, the Board concluded that the involved goods must be presumed "to be marketed to the same class of consumers, i.e., the general public, through the same media outlets such as television, radio, internet, and printed advertisements." [TTABlog observation: By that reckoning, pretty much all goods and services are related].

Strike three! [Looked like ball four to me]. The Board sustained the opposition.

TTABlog further comments: Although the Board distinguished Jacobs on its facts, it failed to deal with In re Coors Brewing Co., 68 USPQ2d 1059 (Fed. Cir. 2003), wherein the CAFC reversed a Section 2(d) refusal to register the mark BLUE MOON & Design for beer in light of a registration for another BLUE MOON Design for restaurant services. In Coors, the CAFC reiterated the "something more" requirement, even when the marks are identical.

Here there was apparently no proof whatsoever that purchasers are accustomed to seeing restaurant services and rice offered under the same mark. The flimsy evidence relied on by the Board seems even flimsier than the evidence rejected by the CAFC in Coors. In fact, this case seems a lot like the ICEBERG cheese case of a few years ago (TTABlogged here), in which the Board reached the opposite conclusion.

I suspect, based on past experience and observation, that a major factor in the Board's ruling was this: Opposer did all the work in this case, while Applicant did nothing other than answer the Notice of Opposition.

TTABlog reader feedback: Magical rice video here.

Text Copyright John L. Welch 2007.

TTAB Reverses 2(d) Refusal of "KID TENNIS" Design for Clothing: Too Different from "TENNISKIDS"

The first du Pont factor, the dissimilarity of the marks, led the Board to reverse a Section 2(d) refusal of the KID TENNIS & Design mark (shown below) for various clothing items ("KID TENNIS" disclaimed). The Board found the mark not likely to cause confusion with the word mark TENNISKIDS for partly identical goods. In re Silberberg and Silberberg, Serial No. 78712155 (July 24, 2007) [not precedential].


The Board disagreed with the Examining Attorney's contention that "it is the wording in applicant's mark that necessarily is the dominant feature of the mark's commercial impression." Here, the wording and the design are integrated, and so neither predominates in the overall commercial impression of the mark.

Nor did the Board find it dispositive that the cited mark is registered in standard character form. It is true that the cited mark must be considered "in all reasonable manners in which it might be depicted," but Applicant's mark "is so highly stylized that it does not fall within the range of 'reasonable' manners of display that should be reserved to the registered standard character mark."

In short, the Board found the marks to be visually dissimilar.

In terms of sound, the Board deemed the marks more similar than dissimilar, but it found the connotations different. Applicant's mark connotes a character named "Kid Tennis," which is reinforced by the design element of the mark. The registered mark, on the other hand, would be understood to refer to "tennis kids" in general, i.e., "kids who play tennis."

Finally, as to overall commercial impression, the marks differ because Applicant's mark creates the impression of a cartoon character named "Kid Tennis." The words "kids" and "tennis" are highly suggestive of the involved goods, and so the "mere presence of these words does not outweigh the dissimilarities between the marks ...."

Therefore, despite the legal identity of the goods, trade channels, and purchasers, and the fact that consumers will exercise only ordinary care, the Board found that the dissimilarity of the marks outweighs the other factors.

Text Copyright John L. Welch 2007

Gotcha! No Certified Copy of Registration, So TTAB Denies Summary Judgment Motion

Applying its favorite "Gotcha!" rule, the Board denied a summary judgment motion brought by Opposer Omega SA because Omega relied on a mere photocopy of a registration, accompanied by an affidavit. The Board ruled that because Opposer failed to establish current status and title of the registration, a genuine issue of material fact as to the registration precluded summary judgment. Omega SA v. Oldenberg, Opposition No. 91164080 (July 16, 2007) [not precedential].


Applicant sought to register the word mark OMEGA for golf clubs, golf bags, and other golf gear. Opposer, while the opposition was pending, obtained a registration for its OMEGA & Design mark for goods including "golf equipment and accessories." The registration would have provided a constructive first use date earlier than Applicant's priority (filing) date.

Opposer moved for summary judgment, but furnished only a photocopy of its registration, rather than a certified, status-and-title copy. Moreover, its accompanying affidavit failed to confirm status and title. See TBMP Sec. 704.03(b)(1)(A). So the Board found that a genuine issue of material fact precluded summary judgment.

What happens next? Won't Omega simply re-file the motion along with a status-and-title copy? What's the point of the Board's denial of summary judgment? Applicant didn't object to the evidence; the Board raised the issue sue sponte.

Several trademark practitioners on the INTA list-serv have asked why the Board doesn't just take judicial notice of the information on the PTO's own database? When one obtains a status-and-title copy of a registration, the PTO does nothing more than confirm what its database already says. So again, what's the point?

It seems to me that at a minimum, the Board should recognize a rebuttable presumption that the PTO records are accurate and that the status and title of a registration is what the PTO's database says it is.

TTABlog note: Ron Coleman agrees, at his Likelihood of Confusion blog.

Text Copyright John L. Welch 2007

Precedential No. 46: Following Dell, TTAB Says Website Printouts Suffice as Trademark Specimens

In view of the "prevalence of online retailing" and the specialized nature of Applicant's products, the Board found Applicant's home webpage to constitute a "display associated with the goods" and therefore a proper specimen of use for the mark VALPRO for tools for power operated metal cutting machines. In re Valenite Inc., 84 USPQ2d 1346 (TTAB 2007) [precedential].

Reamer
Applicant Valenite relied on Lands' End Inc. v. Manbeck, 24 USPQ2d 1314 (E.D. Va. 1992) and In re Dell Inc., 71 USPQ2d 1725 (TTAB 2004) in arguing that the webpage is a display associated with the goods (Rule 2.56(b)(1)). The Examining Attorney maintained that the specimen of use failed to meet the criteria set forth in those cases because "the mark is not associated with the goods" and "sufficient ordering information" is lacking.

Specimen webpageClick on photo for larger picture
In Lands' End, a catalog page bearing a picture of a purse in association with the mark KETCH, and accompanied by ordering information, was found to be a display associated with the goods. In Dell, the Board held that a website page depicting a product and providing ordering information can constitute a display associated with the goods "as long as the mark appears on the webpage in a manner in which the mark is associated with the goods."

Here, the Board observed, the word VALPRO appears at the top middle of the webpage, to the right of a picture of some of Applicant's tools. A link to an online catalog is provided, along with a toll free number and web links to customer service, technical support, and Applicant's "Technical Resource Center." According to Applicant, purchase of the products "requires careful calculation and technical knowledge, so customers expect to purchase the goods by contacting Appellant's Customer Service Group."

The Board found that the webpage satisfies Lands' End and Dell because it (1) includes a picture of the goods; (2) shows the mark near enough to associate the mark with the goods; and (3) contains information necessary to order the goods.

"These are not products that can be ordered from a web page by clicking on an image of the product to add it to a shopping cart for checkout. *** Thus, the fact that the webpage does not allow a customer to click on a product to add it to a shopping cart or make specific mention under the customer service link or phone number that the customer 'click here' or 'call now" to place an order does not compel a different result in this case."

The Board noted in Dell that "a well-recognized fact of current commercial life [is] that many goods and services are offered for sale on-line, and that on-line sales make up a significant portion of trade." It found nothing in the record here "to suggest that this observation is any less apt three years after it was made."

And so the Board reversed the refusal to register.

TTABlog note: For a pair of cases in which the specimen of use did not pass the test, see the TTABlog postings here and here.

TTABlog query: Suppose a company distributes a brochure for its "specialized" product, which brochure includes the mark in close association with a picture of the product, and a telephone number whereby a customer may inquire about the product specifications and/or place an order. Is the brochure a proper trademark specimen, or is it mere advertising? For an answer, go here.

Text Copyright John L. Welch 2007.

TTABlog Special Bulletin: TTAB Publishes New Rules Package

The new TTAB Rules have been published today in the Federal Register (pdf here), along with the following summary.

Miscellaneous Changes to Trademark Trial and Appeal Board Rules; Final Rule [72 FR 42242]

SUMMARY: The United States Patent and Trademark Office (Office) is amending the Trademark Rules of Practice (trademark rules) to require plaintiffs in Trademark Trial and Appeal Board (Board) inter partes proceedings to serve on defendants their complaints or claims; to utilize in Board inter partes proceedings a modified form of the disclosure practices included in the Federal Rules of Civil Procedure; and to delete the option of making submissions to the Board in CD-ROM form. In addition, certain amendments are being made to clarify rules, conform the rules to current practice, and correct typographical errors or deviations from standard terminology.

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TTAB Posts August 2007 Hearing Schedule

The TTAB has scheduled six hearings for the month of August, as listed below. The hearings will be held in the East Wing of the Madison Building. [The hearing schedule and other details regarding attendance may be found at the TTAB website (lower right-hand corner)]. Briefs and other papers for these cases may be found at TTABVUE via the links provided..


August 8, 2007 - 10:30 AM: In re Annie's Homegrown, Inc., Serial No. 78524961 [Section 2(e)(1) refusal of FRUIT BUNNIES as merely descriptive of dehydrated fruit snacks that Applicant concedes will be shaped like bunnies].

August 14, 2007 - 11 AM: In re Microvision Optical, Inc., Serial No. 78519618 [Section 2(d) refusal of FRAMELOCK for eyeglass frames and fasteners, in view of the registered mark FRAMELOC for fasteners, namely, metal screws].

August 21, 2007 - 10 AM: In re Mid-America Group, Ltd., Serial No. 78462025 [Section 2(d) refusal to register MID-AMERICA GROUP & Design for real estate development services, in light of the registered mark MA MID-AMERICA & Design for real estate brokerage and management services].


August 21, 2007 - 11 AM: In re Tele-Town Hall, LLC, Serial No. 78897251 [Section 2(d) refusal of TELE TOWN HALL for "Internet telephony services; telephone conferencing services," in view of the registered mark THT TOWNHALL TELECONFERENCING & Design for "Telecommunications Services, namely audio, video, web and streaming teleconferencing"].


August 21, 2007 - 2 PM: In re Alternative Processing Systems, Inc., Serial No. 78556095 [Section 2(e)(1) mere descriptiveness refusal of AT STORE RECLAMATION for "inventory control services, namely, unsaleable damaged goods reclamation services"].

August 22, 2007 - 10 AM: Nextel Communications, Inc. v. Motorola, Inc., Opposition No. 91161817 [Opposition to registration of a sensory mark comprising an electronic chirp consisting of a tone at 911 Hz played at a cadence of 25 ms ON, 25 ms OFF, 25 ms ON, 25 ms OFF, 50 ms ON, for two-way radios. Opposer contends that the tone does not function as a trademark, and that the tone is not inherently distinctive and has not acquired distinctiveness].

Text Copyright John L. Welch 2007.