In re Simulations Publications, Inc.

521 F.2d 797, 187 U.S.P.Q. (BNA) 147, 1975 CCPA LEXIS 130

• Court: Court of Customs and Patent Appeals
• Decided: September 11, 1975
• Docket: Patent Appeal No. 75-568
• Status: Published

Opinions

LANE, Judge.

DECISION

This appeal is from the decision of the Trademark Trial and Appeal Board, affirming the examiner’s ex parte refusal to register the mark reproduced below (Serial No. 430,382 filed July 20, 1972) as a trademark for a magazine, use since June 1968 being asserted. We affirm.

OPINION

The issue presented in this appeal is whether the Trademark Trial and Appeal Board was correct in sustaining the examiner’s refusal to register appellant’s stylized mark “Strategy & Tactics,” for a magazine, on the ground that it so resembles the mark “TACTICS,” also stylized, registered on the Principal Register for a “monthly magazine,” as to be likely, when applied to the goods of the appellant, to cause confusion, or to cause mistake or to deceive. 15 U.S.C. § 1052(d).

Appellant raises two issues: whether the board erroneously relied on the similarity in the different dictionary definitions of the terms “strategy” and “tactics”; and whether the board erroneously limited its consideration to the words of the respective marks.

Both the examiner and the board recognized that the words “strategy” and “tactics” do not have the identical meaning, but do have similar connotations and are closely related in meaning. We agree with appellant that the examiner and the board properly referred to a standard dictionary to determine the ordinary significance and meaning of the words in issue. Hancock v. American Steel & Wire Co., 203 F.2d 737, 40 CCPA 931 (1953). Appellant appears to take the position that the words must be synonyms in order to support the board’s finding of likelihood of confusion. We do not agree. We are primarily concerned with the meaning of the marks to members of the public at large who are prospective purchasers of magazines, and not to military experts. In view of this, we think that the board properly considered the similarity in the meaning of the terms “strategy” and “tactics,” notwithstanding that there is a distinction between the technical meanings of the two terms.

We also do not agree with appellant’s contention that the board erroneously limited its consideration to the words of the respective marks. Appellant urges that both its magazine and the reference magazine are essentially sold by direct mail subscription, and that neither is sold on newsstands. Appellant further urges that the magazines deal with unrelated subject matter. Statements in a brief cannot take the place of evidence. See In re Scarbrough, 500 F.2d 560 (CCPA 1974). There is no evidence of record showing how appellant’s magazine or the reference magazine is sold. Although a footnote in the board’s opinion describes the contents of copies of the two magazines, these copies have not been made part of the record in the present appeal. Accordingly, there is no evidence before this court to support appellant’s arguments regarding these alleged differences between the two magazines.

This case turns on whether or not purchasers might reasonably be likely to believe that goods for which appellant seeks registration emanate from the reference registrant. The goods for which appellant seeks registration are described in appellant’s trademark application as a “magazine.” The goods for which the reference registrant has obtained registration on the Principal Register are specified in the registration certificate as a “monthly magazine.” Appellant has not attempted to limit its description of its magazine to any particular subject matter. Confusing similarity is determined on the basis of goods as defined in the application. Any differences between the contents of the magazines of appellant and of the registrant are subject to change without notice to the Patent and Trademark Office. Cf. Meyer Chemical Co. v. Anahist Co., 263 F.2d 344, 46 CCPA 784 (1959). In our view, the term “magazine” is broad enough to reasonably include monthly magazines for which the reference registrant has a prima facie right of exclusive use of its mark. 15 U.S.C. § 1057(b). In view of this, we think that the contemporaneous use of appellant’s mark and the reference mark for the names of magazines is likely to result in confusion regarding the source of the goods.

The dissent attempts to establish magazine titles as a special class of goods. We perceive no more reason to establish magazine titles as sui generis than light bulbs. Magazine titles like trademarks for light bulbs are what the purchaser relies upon to get him the content or product he has found satisfactory in the past. Magazine titles are not different than trademarks for other products.

The decision of the Trademark Trial and Appeal Board is affirmed.

Affirmed.