THIS DISPOSITION
`IS NOT CITABLE AS PRECEDENT
`OF THE T.T.A.B.
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`Paper No. 42
`HRW
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`
`4/3/02
`
`
`Hearing:
`January 10, 2002
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`______
`
`Houghton Mifflin Company, Inc.
`
`v.
`
`George M. Tabb
`_____
`
`
`
`
`
`Opposition No. 110,282
`to application Serial No. 75/241,060
`filed on February 13, 1997
`_____
`
`Francine Miller, Mary Donovan and Marya Lenn Yee of
`Donovan & Yee LLP for Houghton Mifflin Company, Inc.
`
`Andrew E. Krents, Esq. for George M. Tabb.
`______
`
`Before Hanak, Chapman and Wendel, Administrative
`Trademark Judges.
`
`Opinion by Wendel, Administrative Trademark Judge:
`
`George M. Tabb has filed an application to register
`
`the mark FURIOUS GEORGE for “film, video and audio
`
`recordings featuring musical entertainment” in Class 9
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`and
`
`

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`Opposition No. 110,282
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`“entertainment services, namely, live performances by a
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`musical band” in Class 41.1
`
`
`
`Houghton Mifflin Company, Inc. has filed an
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`opposition to registration of the mark on the ground of
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`priority of use and likelihood of confusion under Section
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`2(d) of the Trademark Act.2 In the notice of opposition,
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`opposer alleges, inter alia, that opposer is the owner of
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`the world famous trademark and character CURIOUS GEORGE;
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`that the first book of the CURIOUS GEORGE series was
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`published in 1941, followed by six more books written by
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`Margret and H.A. Rey and subsequently 28 more books were
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`added to the series; that the mark CURIOUS GEORGE has
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`additionally been used, both directly and under license,
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`for a wide variety of goods and services; that opposer is
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`the owner of registrations for the mark CURIOUS GEORGE
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`and CURIOUS GEORGE and design for a variety of goods and
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`services;3 that applicant’s FURIOUS GEORGE mark is
`
`
`1 Serial No. 75/241,060, filed February 13, 1997, setting forth
`a first use date for the Class 9 goods of September 1, 1995 and
`for the Class 41 services of January 1, 1995 and a first use in
`commerce date for the Class 9 goods of September 1, 1995 and for
`the Class 41 services of January 5, 1995.
`2 Although not pleaded in the notice of opposition, opposer, in
`its brief, also argued the ground of dilution. In view of the
`testimony taken on this issue during the deposition of Maire
`Gorman, we consider the pleadings to be so amended and the issue
`to be before us as one tried by the implied consent of the
`parties under FRCP 15(b).
`3 Opposer’s pleaded registrations are:
`
`2
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`

`
`Opposition No. 110,282
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`virtually identical to opposer’s mark and the marks are
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`being used on the same and/or closely related goods and
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`services; and that applicant’s use and registration of
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`FURIOUS GEORGE is likely to create confusion and deceive
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`purchasers into believing that applicant’s goods and
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`
`1) Registration No. 1,288,789, issued August 7, 1984, for
`the mark CURIOUS GEORGE for “entertainment services,
`namely, a television series for children”; Section 8 and
`15 affidavits accepted and acknowledged, respectively;
`2) Registration No. 1,292,195, issued August 28, 1984, for
`the mark CURIOUS GEORGE for “a series of books for
`children; coloring books” in Class 16 and “stuffed animals
`and equipment sold as a unit for playing a board game” in
`Class 28, Section 8 & 15 affidavits accepted and
`acknowledged, respectively;
`3) Registration No. 1,409,558, issued September 16, 1986,
`for the mark CURIOUS GEORGE for “children’s wearing
`apparel, namely, footwear, sleepwear, robes, earmuffs, and
`boys and girls knit tops,” Section 8 affidavit accepted;
`4) Registration No. 1,440,497, issued May 26, 1987, for
`the mark CURIOUS GEORGE and design for “production and
`distribution of television programming and motion picture
`films,” Section 8 accepted; and
`5) Registration No. 2,074,846, issued July 1, 1997, for
`the mark CURIOUS GEORGE for “prerecorded video cassettes
`and prerecorded audio cassettes for use in telling
`children’s stories.”
`Opposer’s pleaded applications which have since matured into
`registrations are:
`
`1) Registration No. 2,281,854, issued September 28, 1999,
`
`for the mark CURIOUS GEORGE for “balloons; bean bags;
`fabric dolls; fabric infant toys; jack-in-the-box; jumping
`jacks; mechanical action toys; musical toys, toy kits
`containing interchangeable design stickers; jigsaw
`puzzles; manipulative puzzles, toy banks and toy
`vehicles”; and
`2) Registration No. 2,155,103, issued May 5, 1998, for the
`mark CURIOUS GEORGE for “computer programs and multimedia
`software recorded on CD-ROM, all for use in telling
`children’s stories and inspiring children to create their
`own versions.”
`
`
`
`3
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`

`
`Opposition No. 110,282
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`services originate with or are in some way sponsored or
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`authorized by, or associated with opposer.
`
`
`
`Applicant, in his answer, has denied most of the
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`salient allegations of the notice of opposition, although
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`admitting that “applicant’s wordmark bears some
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`similarity to Opposer’s wordmark” and that “Applicant was
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`and is aware of the wordmark CURIOUS GEORGE.” As
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`affirmative defenses applicant asserts his First
`
`Amendment rights “in providing his musical group with a
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`name that enables such group to express itself” and the
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`fair use defense, available to applicant under copyright
`
`law, “as a product parodist.”
`
`
`
`
`
`
`
`
`
`
`
`The Record
`
`The record consists of the file of the involved
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`application; opposer’s trial testimony deposition, with
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`accompanying exhibits, of Maire Gorman, Vice President,
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`Director of Merchandise Licensing and Special Markets of
`
`opposer;4 certified status and title copies of opposer’s
`
`
`4 The deposition transcript has been designated as confidential.
`However, opposer has attached as an appendix to its brief a
`compilation of the record which is not designated as
`confidential and which contains the same deposition testimony.
`Accordingly, opposer has waived its claim of confidentiality for
`the deposition contents.
`
`4
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`

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`Opposition No. 110,282
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`pleaded registrations made of record by notice of
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`reliance;5
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`the discovery deposition of George Tabb, with
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`accompanying exhibits, made of record by opposer by
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`notice of reliance; and copies of newspaper and magazines
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`articles regarding the character Curious George and his
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`creators made of record by opposer by notice of reliance.6
`
`
`
`Both parties filed briefs, but applicant waived his
`
`right to attend the oral hearing and only opposer
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`participated in the hearing.
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`
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`
`
`
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`
`
`
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`The Parties
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`Opposer published the first Curious George book in
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`1941, followed by the six additional books of the
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`original series written by Margret and H.A. Rey in the
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`1950s and 1960s. All of the seven original books have
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`been published continuously since their initial
`
`
`5 We note that while opposer only pleaded ownership of five
`registrations and two applications which later became
`registrations in the notice of opposition, eight registrations
`have been submitted by notice of reliance. Inasmuch as applicant
`has failed to object thereto, the eighth registration,
`Registration No. 2,363,138 is also considered as being of
`record. This registration issued June 27, 2000 for the mark
`CURIOUS GEORGE for various goods, (e.g., backpacks and wallets)
`in Class 18.
`6 Applicant’s notices of reliance have been stricken from the
`record by the Board’s order of January 24, 2001 as being filed
`outside applicant’s testimony period. Opposer’s notice of
`reliance upon the discovery deposition of a non-party has been
`stricken by the same Board order as not falling within any of
`the exceptions listed in Trademark Rule 2.120(j).
`
`5
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`

`
`Opposition No. 110,282
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`publication date. Additional books derived from an
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`animated film series have also been published.
`
`
`
`Opposer has used the CURIOUS GEORGE mark in many
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`other media forms, in addition to books. Video and live
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`film versions have been produced, as well as audio tapes,
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`audio cassettes, and CD-ROMs. Book club editions have
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`been published of the books, along with translations into
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`many foreign languages. Opposer’s retail customers range
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`from large chain stores such as Barnes & Noble and
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`Musicland to small independent retailers. More of its
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`customers buy CURIOUS GEORGE books than any other book
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`opposer sells. The ultimate consumers of these products
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`consist of parents of small children, librarians,
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`educators, and “anyone who’s got children in their life.”
`
`(Gorman deposition, p. 96.)
`
`
`
`Opposer became the owner of the Curious George
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`character in the early 1990s and began a licensing
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`program for the character and mark in 1994. Over the
`
`years the licensing program has expanded to include
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`merchandise ranging from wearing apparel to stationery
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`items to plush toys; opposer has over 115 active
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`licensees including such entities as Gund, Sony and
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`Mattel. This merchandise is sold in all types of retail
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`stores, from Target and K-mart to specialty chains such
`
`6
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`

`
`Opposition No. 110,282
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`as Barnes & Noble, Borders and Tower Records to
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`independent book stores and specialty retail stores.
`
`Opposer exercises strict quality control over the manner
`
`of use of the CURIOUS GEORGE mark and character by its
`
`licensees and reviews every product at various stages to
`
`assure that opposer’s qualifications and standards have
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`been met. Opposer is very concerned with maintaining the
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`wholesome image that the Curious George character
`
`portrays. Opposer also licenses the Curous George
`
`character for various types of live performances,
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`licenses costumes for use by others and distributes a
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`party kit to retail stores, librarians and teachers who
`
`are interested in hosting a Curious George party.
`
`
`
` Over the years, more than 12 million copies of the
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`CURIOUS GEORGE books have been sold in the United States,
`
`with worldwide sales of over 20 million copies in 12
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`languages. Gross sales over the past five years (1995-
`
`2000) totaled $60 million. In addition, the gross sales
`
`from other CURIOUS GEORGE licensed merchandise for the
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`years 1996-1999 was between $160-$170 million. From
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`1993-1998 opposer itself spent more than $500,000 in
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`advertising and promoting the CURIOUS GEORGE series.
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`Additional advertising expenditures are made both by the
`
`licensing agents and the licensees themselves. There
`
`7
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`

`
`Opposition No. 110,282
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`also has been substantial media coverage over the years
`
`of the Curious George character and the various CURIOUS
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`GEORGE products, such as the highly touted educational
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`CD-ROMs.
`
`
`
`Applicant, George Tabb, has played in the punk rock
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`band FURIOUS GEORGE since 1995 or 1996. The band has put
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`out two CDs, the first one an extended-play three songs
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`entitled Furious George Goes Ape!, the second one a full
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`album entitled Furious George Gets a Record!. Applicant
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`designed the covers for each of the CDs and on both used
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`a yellow background, red FURIOUS GEORGE tube lettering,
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`and a picture of a monkey. The FURIOUS GEORGE mark is
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`also used on various promotional items which are either
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`sold or given away by the band, including T-shirts,
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`buttons and patches. The typical audience for the band’s
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`shows runs from persons in their late teens through their
`
`early 40s.
`
`
`
`
`
`
`
`
`
`
`
`
`
`The Opposition
`
`Priority is not an issue here in view of opposer’s
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`submission of certified status and title copies of its
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`pleaded registrations. See King Candy Co. v. Eunice
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`King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA
`
`1974). In addition, opposer’s witness Maire Gorman has
`
`testified to the publication of the original series of
`
`8
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`

`
`Opposition No. 110,282
`
`CURIOUS GEORGE books well prior to applicant’s filing of
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`his application, the earliest date to which applicant is
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`entitled.
`
`
`
`Turning to the issue of likelihood of confusion, we
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`take under consideration all of the du Pont factors which
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`are relevant under the present circumstances and for
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`which there is evidence of record. See E.I. du Pont de
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`Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
`
`
`
`Looking first to the similarity or dissimilarity of
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`the respective marks, we find that, when viewed in their
`
`entireties as they must be, the marks CURIOUS GEORGE and
`
`FURIOUS GEORGE are highly similar in both appearance and
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`sound. Not only do the marks share the common term
`
`GEORGE, but also there is only one letter difference
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`between the terms CURIOUS and FURIOUS. While there is an
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`obvious difference in connotation between CURIOUS and
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`FURIOUS, we do not find this distinction sufficient to
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`obviate the strong likelihood of confusion of the two
`
`marks. See Recot Inc. v. M.C. Becton, 214 F.3d 1332, 54
`
`USPQ2d 1895 (Fed. Cir. 2000)(Board must consider the
`
`similarity or dissimilarity of the marks in their
`
`entirety with respect to appearance, sound and
`
`connotation, not simply difference in connotation between
`
`FIDO LAY and FRITO-LAY).
`
`9
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`

`
`Opposition No. 110,282
`
`
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`But in the present case there are additional reasons
`
`for finding the overall commercial impressions created by
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`the marks to be highly similar. The similarity in trade
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`dress between applicant’s manner of use of his FURIOUS
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`GEORGE mark and opposer’s use of the CURIOUS GEORGE mark
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`cannot be overlooked. As stated in Kenner Parker Toys
`
`Inc. v. Rose Art Industries Inc., 963 F.2d 350, 22 USPQ2d
`
`1453, 1458 (Fed. Cir. 1992), citing Specialty Brands,
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`Inc. v. Coffee Beans Distributors, Inc., 748 F.2d 669,
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`223 USPQ 1281, 1284 (Fed. Cir. 1984):
`
`
`
`
`
`
`Ordinarily, for a word mark we do not look to
`the trade dress, which can be changed at any time.
`[Citation omitted] But the trade dress may
`nevertheless provide evidence of whether the word
`mark projects a confusingly similar impression.
`
`Opposer has made a comparison of the cover of its
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`book Curious George and the Dinosaur and the cover of
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`applicant’s CD entitled Furious George Goes Ape!. From
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`this it is blatantly clear that applicant uses the same
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`yellow background as opposer, the same red color for the
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`title as opposer and the same style of lettering. The
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`monkeys depicted on both look very similar, both are
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`tailless, both have hair on the same portions of their
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`bodies. Only the sunglasses and leather jacket
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`distinguish the monkey of FURIOUS GEORGE from the more
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`wholesome CURIOUS GEORGE. In addition, “the Man in the
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`10
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`

`
`Opposition No. 110,282
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`Yellow Hat,” a familiar character in the CURIOUS GEORGE
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`series, is included on applicant’s CD cover. While
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`applicant testified that he chose the yellow and red
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`colorings because they “went well” together, we can only
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`conclude that this obvious similarity in trade dress for
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`the display of the marks of opposer and applicant would
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`lead to the creation of highly similar overall commercial
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`impressions for the marks.
`
`
`
`Turning next to the goods and services involved, we
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`note at the outset that both opposer and applicant use
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`their marks on audio and video recordings. The content
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`of applicant’s recordings is identified simply as
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`“musical entertainment”; there is nothing that would
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`limit this music to the punk rock compositions of “rage
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`and irony” of which applicant contends his recordings
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`consist. The issue of likelihood of confusion must be
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`determined based on an analysis of the mark as used in
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`connection with the goods and services recited in
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`applicant’s application vis-à-vis the goods and services
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`recited in opposer’s registrations, rather than what any
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`evidence may show the actual goods and services to be.
`
`See Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
`
`1490, 1 USPQ2d 1813 (Fed. Cir. 1987); CBS Inc. v. Morrow,
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`708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983). The
`
`11
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`

`
`Opposition No. 110,282
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`recordings of both parties must be viewed, as identified,
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`as covering musical entertainment in general.
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`Applicant’s mark is also used in connection with
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`entertainment services in the nature of live performances
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`by a band; opposer’s mark is registered for use in
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`connection with a television series and motion picture
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`films. Opposer has established common law use of its
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`mark in connection with live stage performances and
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`appearance of the Curious George character throughout the
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`United States. We find these uses more than sufficient
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`to consider the goods and services of the parties closely
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`related.
`
`
`
`Furthermore, there are no restrictions in the goods
`
`or services as identified in applicant’s application or
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`opposer’s registrations as to the channels of trade.
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`Because there are no such limitations, it must be
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`presumed that the goods and services of each would be
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`offered in all the normal channels of trade for goods and
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`services of this nature and to the normal class of
`
`purchasers. See Canadian Imperial Bank v. Wells Fargo
`
`Bank, supra. Thus, it must be presumed that applicant’s
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`recordings would be sold at all the normal retail outlets
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`for such goods. Opposer’s recordings would be sold at
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`the same outlets and thus be available to the same
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`12
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`

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`Opposition No. 110,282
`
`purchasers. Applicant argued that his goods are not
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`actually offered at any of the national retailers at
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`which opposer’s goods are found, with the exception of
`
`Tower Records. Thus, even applicant acknowledged that
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`the goods of both parties are, in fact, sold in at least
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`one similar set of retail stores. Moreover, a clear
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`distinction cannot be drawn between the consumers of punk
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`rock music and the consumers of children’s recordings, as
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`applicant would urge. Even consumers of punk rock may
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`fall within the general category of “anyone who’s got
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`children in their life” and thus could, at times, be in
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`the market for children’s recordings as well.
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`
`
`In addition, we note that insofar as the goods of
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`opposer and applicant are concerned, both fall within the
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`range of being relatively inexpensive. Ms. Gorman
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`testified that the average price for a CURIOUS GEORGE
`
`product would be $12-15; Mr. Tabb testified that his CDs
`
`and other promotional items have been sold for $10 or
`
`less. When products are relatively low-priced and
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`subject to impulse buying, the risk of likelihood of
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`confusion is increased because purchasers of this type
`
`typically exercise a lesser standard of purchasing care.
`
`See Recot Inc. v. M.C. Becton, supra.
`
`13
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`

`
`Opposition No. 110,282
`
`
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`Next we turn to a significant factor in the present
`
`case, the fame of the prior mark, namely opposer’s mark
`
`CURIOUS GEORGE. As stated by our principal reviewing
`
`court in Kenner Parker Toys v. Rose Art Industries, Inc.,
`
`supra, in its consideration of the fame of the prior
`
`mark:
`
` [A] mark with extensive public recognition and
`
`renown deserves and receives more legal protection
`
`than
`
`an obscure or weak mark.
`
` Achieving fame for a mark in the marketplace
`where
`
`countless symbols clamor for public attention often
`
`requires a very distinct mark, enormous advertising
`
`investments, and a product of lasting value. After
`
`earning fame, a mark benefits not only its owner,
`but
`
`the
`
`
`We find the record here fully substantiates the fame
`
`the consumers who rely on the symbols to identify
`
`source of a desired product.
`
`which opposer’s CURIOUS GEORGE mark has achieved. The
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`many years of use of the mark (since the early 1940s),
`
`the wide variety of goods and services to which use of
`
`the mark has been expanded, the high level of sales over
`
`the years and the broad media coverage of the Curious
`
`George character all point to the extensive public
`
`recognition and renown of the mark. The CURIOUS GEORGE
`
`books, the associated goods such as audio or video
`
`recordings or CD-ROMs bearing this mark, as well as the
`
`14
`
`

`
`Opposition No. 110,282
`
`many licensed merchandise items, be they plush toys or
`
`wearing apparel, have all been shown to fall within the
`
`gambit of this fame.
`
`
`
`As emphasized by the court in its recent decision in
`
`Recot, Inc. v. M.C. Becton, supra, the fame of the prior
`
`mark, when found to exist, must play a dominant role in
`
`the process of balancing the relevant du Pont factors.
`
`Thus it is that famous marks enjoy a wide latitude of
`
`legal protection. This broader protection is accorded
`
`because the marks are more likely to be remembered and
`
`associated in the public mind than a weaker mark. Id. at
`
`54 USPQ2d 1897. In line with this reasoning, we find
`
`that opposer’s famous CURIOUS GEORGE mark may well be
`
`called to mind when purchasers encounter applicant’s
`
`FURIOUS GEORGE mark, particularly in view of the highly
`
`similar visual and aural characteristics of the marks and
`
`of the manner in which the FURIOUS GEORGE mark is
`
`presented to the public. We are convinced that the
`
`broader scope of protection to be accorded to a famous
`
`mark should extend to encompass the mark of another which
`
`is being used for highly similar goods and services and
`
`which creates a commercial impression very similar to
`
`that of the famous mark.
`
`15
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`

`
`Opposition No. 110,282
`
`
`
`Opposer has also raised an additional factor for our
`
`consideration, specifically the intent of applicant in
`
`adopting his FURIOUS GEORGE mark. It is true that
`
`applicant has admitted his familiarity with the CURIOUS
`
`GEORGE books from his childhood days. It is also true
`
`that applicant has designed the covers of the band’s CDs
`
`such that they contain elements highly similar to the
`
`trade dress used by opposer. On the other hand,
`
`applicant has testified that the name FURIOUS GEORGE
`
`originates from the fact that his name is George; that as
`
`a child he was called “Furious George”; and that the mark
`
`personifies the music he plays which is “angry and
`
`screaming.”
`
`On balance, we cannot unequivocally say that
`
`applicant has intentionally chosen his mark to trade on
`
`the good will associated with opposer’s mark. But we
`
`would be quick to point out that the lack of evidence of
`
`bad faith is but one factor in our analysis of likelihood
`
`of confusion and the absence of any such evidence clearly
`
`does not avoid a holding of likelihood of confusion. See
`
`J & J Snack Foods Corp. v. McDonald’s Corp., 18 USPQ2d
`
`1889 (Fed. Cir. 1991); McDonald’s Corp. v. McClain, 37
`
`USPQ2d 1274 (TTAB 1995).
`
`16
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`

`
`Opposition No. 110,282
`
`
`
`Every other factor which we have considered here
`
`falls strongly in opposer’s favor. The overall
`
`similarity in commercial impression of the marks, the
`
`close relationship of the goods and services, the
`
`identity in channels of trade, the similarity in type of
`
`purchase and type of purchasers, all weigh heavily on the
`
`side of opposer. If there were any doubt on the issue of
`
`likelihood of confusion, which there is not, our decision
`
`would be strengthened by the court’s statement in Kenner
`
`Parker Toys, Inc. v. Rose Art Industries Inc., supra at
`
`1456, citing Nina Ricci, S.A.R.L. v. E.T.F. Enters., 889
`
`F.2d 1070, 12 USPQ2d 1901 (Fed. Cir. 1989), that
`
`[T]here is “no excuse for even approaching the
`well-known trademark of a competitor ... and that
`all doubt as to whether confusion, mistake, or
`deception is likely is to be resolved against the
`newcomer, especially where the established mark is
`one which is famous... .”
`
`
`
`
`
`
`
`
`Accordingly, we find that opposer has clearly established
`
`a likelihood of confusion from the contemporaneous use of
`
`the marks CURIOUS GEORGE and FURIOUS GEORGE with the
`
`goods and services of the respective parties.7
`
`
`
`Applicant’s argument that opposer is attempting to
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`extend the copyright protection of its literary property
`
`
`7 In view of our determination on the issue of likelihood of
`confusion, we find no need to consider opposer’s further claim
`of dilution.
`
`17
`
`

`
`Opposition No. 110,282
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`rights is misdirected. Opposer is relying upon its
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`trademark rights, as evidenced by its pleaded
`
`registrations and its established common law rights, in
`
`this proceeding. Applicant is seeking to register his
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`mark, which under the provisions of Section 2(d) of the
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`Trademark Act is barred if his mark is likely to cause
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`confusion with a mark “registered in the Patent and
`
`Trademark Office” or with a mark “previously used in the
`
`United States by another.” Opposer is relying upon its
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`rights established under this section of the Trademark
`
`Act to oppose applicant’s registration of his mark, not
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`any rights under copyright law, which are entirely
`
`irrelevant to this proceeding.
`
`
`
`Applicant further argues his right to the
`
`registration of a parodic mark in that applicant has a
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`First Amendment right to commercially exploit literary
`
`characters in a parodic way.
`
`
`
`In the first place, as discussed above, we are not
`
`dealing here with opposer’s rights in its literary
`
`characters but rather its established trademark rights in
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`the trademark CURIOUS GEORGE. Moreover, any claim which
`
`applicant may make to the use of his FURIOUS GEORGE mark
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`as a parody will not be considered as a “defense” but
`
`rather simply as another factor which is relevant to our
`
`18
`
`

`
`Opposition No. 110,282
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`analysis of likelihood of confusion. See Elvis Presley
`
`Enterprises Inc. v. Capece, 141 F.3d 188, 46 USPQ2d 1737
`
`(5th Cir 1998); Dr. Seuss Enterprises L.P. v. Penguin
`
`Books USA, Inc., 109 F.3d 1394, 42 USPQ2d 1184 (9th Cir.
`
`1997). As stated by the Board in Columbia Pictures
`
`Industries, Inc. v. Miller, 211 USPQ 816, 820 (TTAB
`
`1981):
`
`The right of the public to use words in the English
`language in a humorous and parodic manner does not
`extend to use of such words as trademarks if such
`
`
`
`
`use
`
`
`
`See also Anheuser-Busch Inc. v. The Florist’s Association
`
`conflicts with the prior use and/or registration of
`the substantially same mark by another.
`
`of Greater Cleveland Inc., 29 USPQ2d 1146 (TTAB 1993)
`
`(applicant’s argument that THIS BUD’S FOR YOU when used
`
`with fresh-cut flowers would be viewed as a parody of
`
`opposer’s mark THIS BUD’S FOR YOU for beer is not
`
`persuasive when evidence shows that use of the slogan
`
`will do more than merely conjure up in the minds of
`
`potential purchasers opposer’s use of the slogan; instead
`
`purchasers are likely to believe that applicant’s flowers
`
`are being offered under the sponsorship of opposer).
`
`
`
`We are convinced in the present case, however, that
`
`applicant is not even using his mark FURIOUS GEORGE in a
`
`manner intended to parody opposer’s CURIOUS GEORGE mark.
`
`19
`
`

`
`Opposition No. 110,282
`
`As stated in 5 J.T. McCarthy, McCarthy on Trademarks and
`
`Unfair Competition, § 31:153 (4th ed. 2001):
`
`
`
`
`
`
`
`
`[I]f defendant appropriates a trademarked symbol
`such as a word or picture, not to parody the
`product or company symbolized by the trademark,
`but only as a prominent means to satirize and poke
`fun at something else in society, this is not
`“parody” of a trademark.
`
`Here the evidence of record points to the use of the
`
`FURIOUS GEORGE mark in connection with applicant’s “angry
`
`and screaming” punk rock music, regardless of topic. In
`
`his answer applicant describes himself as a “product
`
`parodist” in general and from the titles of songs in his
`
`albums it would appear that this self-proclaimed
`
`“parodist” role is directed to many subjects, the titles
`
`including such as “betty crocker, punk rocker,” “prozac
`
`defense,” and “burger king is dead.” In fact, applicant
`
`has specifically denied any association of the name
`
`FURIOUS GEORGE with other than his music as a “furious”
`
`person named George and has denied any intentional
`
`appropriation of the CURIOUS GEORGE trade dress,
`
`testifying, for example, that the colors red and yellow
`
`“went well” with each other. Thus, applicant has clearly
`
`failed to present evidence which supports any claim of
`
`parody of opposer’s CURIOUS GEORGE mark. We need not
`
`consider this as a relevant factor in our analysis of
`
`likelihood of confusion.
`
`20
`
`

`
`Opposition No. 110,282
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`
`
`Decision: The opposition is sustained and
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`registration is refused to applicant.
`
`21