ABRO Industries, Inc.

Trademark Trial and Appeal Board

Jan 25, 2018

No. 86886542 (T.T.A.B. Jan. 25, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 25, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re ABRO Industries, Inc.
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Serial No. 86886542
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Gerard T. Gallagher and Monica J. Stover of Barnes & Thornburg LLP,
for ABRO Industries, Inc.
Steven W. Ferrell Jr., Trademark Examining Attorney, Law Office 121,
Kevin Mittler, Managing Attorney.
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Before Mermelstein, Wolfson and Lykos,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
ABRO Industries, Inc. (“Applicant”) seeks to register on the Principal Register
the mark POLAR FREEZE in standard characters for goods ultimately identified as
“[r]efrigerant gas for use in automotive air conditioning systems” in International
Class 1.1
The Trademark Examining Attorney refused registration of Applicant’s mark
pursuant to Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the

1 Application Serial No. 86886542, filed January 26, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
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ground that Applicant’s mark so resembles the registered mark POLAR ICE also in
standard characters on the Principal Register for “[r]efrigeration and air conditioning
system chemical additives for enhancing performance of vehicle air conditioning
compressors” in International Class 1,2 that, when used on or in connection with
Applicant’s identified goods, it is likely to cause confusion or mistake or to deceive.3
When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney maintained the refusal to register, and
denied the request for reconsideration. The appeal was resumed and is now briefed.
For the reasons set forth below, we affirm the Section 2(d) refusal.
I. Applicable Law
We base our determination under Section 2(d) on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). In any likelihood of confusion analysis, however, two key considerations are
the similarities between the marks and the similarities between the goods. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). These
factors and others are discussed below. See M2 Software, Inc. v. M2 Commc’ns, Inc.,

2 Registration No. 3887594, issued December 7, 2010, on the Principal Register; combined
Section 8 and 15 declaration accepted and acknowledged.
3 The Examining Attorney made, but ultimately withdrew, a Section 2(d) refusal based on
Registration Nos. 2277441, 3914575, and 4286472 as well as the requirement to disclaim
FREEZE. See December 3, 2016 Final Office Action.
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450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (even within du Pont list, only
factors that are “relevant and of record” need be considered).
A. The Marks

We commence with the first du Pont likelihood of confusion factor which involves
an analysis of the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression. See Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). “The proper test is not a side-by-side comparison of the
marks, but instead ‘whether the marks are sufficiently similar in terms of their
commercial impression’ such that persons who encounter the marks would be likely
to assume a connection between the parties.” Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading
Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
The focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. Our analysis cannot be
predicated on dissection of the involved marks. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Rather,
we are obliged to consider the marks in their entireties. Id. See also Franklin Mint
Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”).
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The marks at issue are POLAR FREEZE and POLAR ICE. Applicant criticizes
the Examining Attorney for purportedly dissecting the marks and placing a
disproportionate emphasis on the shared portion – the initial word “polar.” As
Applicant asserts, “the terms FREEZE and ICE are completely different in
appearance and pronunciation and make the two marks readily distinguishable.”
Brief, p. 14; 7 TTABVUE 15. In view of these differences, Applicant takes the position
that the marks are audibly and visually distinct and project dissimilar connotations
and commercial impressions.
We acknowledge the specific differences in sight and sound pointed out by
Applicant. However, we disagree with Applicant’s contention that the Examining
Attorney has improperly dissected the marks and that they are overall different in
meaning and commercial impression. In reaching a conclusion on the issue of
likelihood of confusion, there is nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks in their entireties. Stone
Lion, 110 USPQ2d at 1161 (citing In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985)). Prospective consumers are often more inclined to focus on
the first word, prefix or syllable in a trademark when making purchasing decisions.
Palm Bay, 73 USPQ2d at 1692. “Polar” is the first word in both Applicant’s and
Registrant’s marks, meaning that it is likely to be accorded more weight by
consumers. But the similarities do not end there. The words “freeze” and “ice” are
related in meaning. “Freeze” is defined as “to harden into ice,” “to become hardened
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into ice,” and “to form ice on the surface of.” Merriam-Webster Dictionary
(http://www.merriam-webster.com/dictionary/freeze) attached to May 11, 2016 Office
Action at 13-14.4 Thus, when compared as a whole, both marks call to mind ice or
artic cold, making them similar in connotation and commercial impression.
Hence, despite slight differences in appearance and sound, overall the marks
POLAR FREEZE and POLAR ICE project a nearly identical meaning and commercial
impression. The first du Pont factor therefore weighs in favor of finding a likelihood
of confusion.
B. The Goods
The next step in our analysis here is a comparison of the goods, the second du
Pont factor. We consider the goods as identified in Applicant’s application vis-à-vis
the goods identified in the cited registration. Stone Lion, 110 USPQ2d at 1161. The
respective goods need not be identical or even competitive in order to find that they
are related for purposes of our likelihood of confusion analysis, but need only be
“related in some manner and/or if the circumstances surrounding their marketing
[be] such that they could give rise to the mistaken belief that [the goods] emanate
from the same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Evidence of relatedness may include
news articles or evidence from computer databases showing that the relevant goods
are used together or used by the same purchasers; advertisements showing that the
relevant goods are advertised together or sold by the same manufacturer or dealer;

4 Record citations are to the Trademark Document and Status Retrieval (TSDR) database.
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or copies of prior use-based registrations of the same mark for both applicant’s goods
and the goods listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d 1810,
1817 (TTAB 2014) (finding pepper sauce and agave sweetener related where evidence
showed both were used for the same purpose in the same recipes and thus consumers
were likely to purchase the products at the same time and in the same stores). The
issue is not whether purchasers would confuse the goods, but rather whether there is
a likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
Applicant argues that the goods are “sufficiently different” because whereas its
“[r]efrigerant gas for use in automotive air conditioning systems” is “absolutely
essential,” Registrant’s “[r]efrigeration and air conditioning system chemical
additives for enhancing performance of vehicle air conditioning compressors” are
optional. Brief, p. 11; 7 TTABVUE 12. According to Applicant:
Applicant’s goods are a gas that is used in a compressive refrigeration
system to produce a lower temperature in an enclosed space, namely, the
interior of an automobile. It does this by undergoing repeated phase
changes from gas to liquid to back. Applicant’s refrigerant gas product is
absolutely essential to the function of a vehicle’s air conditioning system;
the system will not cool the vehicle without it.

In contrast … Registrant’s goods are not a refrigerant gas that is necessary
for the operation of a vehicle air conditioning system. Rather, they are an
optional additive that may enhance the performance of a vehicle air
conditioning system.

Id. Applicant requests that the Board take judicial notice of the “commonly known
facts” that “a vehicle air conditioning system will not operate without refrigerant gas”
whereas “additives for enhancing performance” are optional products. Id. at n.1. The
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Examining Attorney objects on the basis that Applicant has provided no evidence to
support this contention but instead merely offers its own opinion.
Generally in an ex parte appeal the Board will take judicial notice of facts not
subject to reasonable dispute that “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned,”5 such as dictionaries,
encyclopedias and census data. See, e.g., In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1087 n.3 (TTAB 2016) (encyclopedias); In re Highlights for Children, Inc., 118
USPQ2d 1268, 1271 n.7 (TTAB 2016) (U.S. Census Report); In re Thomas White Int’l
Ltd., 106 USPQ2d 1158, 1160 n.1 (TTAB 2013) (online dictionary existing in print
format). However, commonly known facts may also be judicially noticed. Cf. Fed. R.
Evid. 201(1). For example, in In re Bay State Brewing Co., 117 USPQ2d 1958, 1960
(TTAB 2016),the Board took judicial notice that beer is often relatively inexpensive,
subject to impulse purchase, and often ordered orally in a bar or restaurant. With
this in mind, we grant Applicant’s request insofar as the subject of Applicant’s request
is commonly known and inherent in the meaning of Applicant’s and Registrant’s
goods as described in the application and cited registration. However, such a slight
distinction between the products does not overcome their inherent relationship as
explained below.
Based on the identifications themselves, both goods are closely related,
complementary products intended for use in automotive air conditioning systems. In

5 Fed. R. Evid. 201(2). To be clear, the Federal Rules of Evidence do not apply to ex parte
appeals; rather, they may be used as guidance in the taking of judicial notice. See Trademark
Trial and Appeal Board Manual of Procedure (“TBMP”) § 1208.04 (June 2017).
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addition, the Examining Attorney submitted evidence showing that other entities
offer for sale both Applicant’s and Registrant’s type of products under a single brand
name or trademark:
• PepBoys offers for sale automotive air conditioner refrigerant gas and
other chemical additives to improve air conditioner performance
under the Interdynamics® house mark. See
www.pepboys.com/car_care attached to June 15, 2017
Reconsideration Denial at 2-4.
• ACProCold (a manufacturer of automotive air conditioning goods,
offers for sale under the same mark A/C PRO refrigerant gas and
other chemical additives. See http://acprocold.com/products attached
to December 3, 2016 Final Office Action at 2.
• Supercool offers for sale automotive air conditioning refrigerant gas
and chemical additive gases and liquids, including combination
products, under the same mark, Supercool. See
http://auto.supercool.ac attached to Reconsideration Denial at 14-17.
Although we acknowledge that the above third-party marks may be viewed as house
marks, the evidence still demonstrates that the same consumers may encounter the
involved goods in the same context. The record also shows that automotive specialty
brick-and-mortar stores and direct-to-consumer e-commerce websites offer for sale in
the same subcategory both air conditioning refrigerants and additives under different
trademarks but as complementary products:
• PepBoys offers for sale in brick-and-mortar stores and online
“Refrigerant & A/C Additives.” See http://www.pepboys.com/car_care
attached to May 11, 2016 Office Action at 25.
• JCWhitney.com offers for sale online automotive “Air Conditioning
Refrigerant & Additives. See http://www.jcwhitney.com/air-
conditioning-refrigerant-and-additives attached to December 3, 2016
Final Office Action at 3.
• RyderFleetProducts.com offers for sale online automotive
“Refrigerant and Additives.” See
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http://www.ryderfleetproducts.com/refrigerant-and-additives
attached to December 3, 2016 Final Office Action at 7.
This evidence is not from “big box” retail stores selling a wide variety of goods but
rather from specialty retailers in the automotive parts field. This targeted type of
retailing is narrower in scope, and supports a finding that consumers would be likely
to encounter one product while purchasing the other.
In view of the evidence of record, we find that the goods identified in the
application and cited registration are related and complementary in nature. Cf. In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir.
1984) (holding bread and cheese to be related because they are often used in
combination and noting that “[s]uch complementary use has long been recognized as
a relevant consideration in determining a likelihood of confusion”). As such, the
second du Pont factor also weighs in favor of finding a likelihood of confusion.
C. Trade Channels
Next we direct our attention to the established, likely-to-continue channels of
trade, the third du Pont factor. Because the identifications in the application and
cited registration have no restrictions on channels of trade, we must presume that
the goods travel in all channels of trade appropriate for such goods. See Octocom, 16
USPQ2d at 1787. These trade channels include, as reflected in the record, traditional
brick-and-mortar automotive specialty stores as well as direct business-to-consumer
(B2C) websites delineating the specific subcategory of automotive air conditioning
refrigerants and additives. As such, the third du Pont factor regarding the similarity
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or dissimilarity of established, likely to continue trade channels also favors a finding
of likelihood of confusion.
D. Conditions of Sale
We consider now the conditions under which the goods are likely to be purchased,
e.g., whether on impulse or after careful consideration, as well as the degree, if any,
of sophistication of the consumers. Purchaser sophistication or degree of care may
tend to minimize likelihood of confusion. Conversely, impulse purchases of
inexpensive items may tend to have the opposite effect. Palm Bay, 73 USPQ2d at
1695.
Applicant concedes that the involved goods are relatively inexpensive. Brief, p. 9;
7 TTABVUE 10. However, Applicant postulates that because the involved goods are
dispensed in vehicle air conditioning systems which are in turn expensive themselves,
consumers are more likely to pay careful attention when making purchasing
decisions. Applicant also contends that the intended consumers are both professional
mechanics and the knowledgeable do-it-yourselfer who are aware that using the
wrong product could result in costly repairs.
The record shows otherwise. Both Applicant’s and Registrant’s products are
offered for sale to the general public. In addition, neither the application nor
registration are restricted with regard to purchasers or price point. When the
relevant consumer could include both knowledgeable consumers and the general
public, the standard of care for purchasing the goods is that of the least sophisticated
potential purchaser. Stone Lion, 110 USPQ2d at 1163; Alfacell Corp. v. Anticancer,
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Inc., 71 USPQ2d 1301, 1306 (TTAB 2004). In view thereof, the du Pont factor of the
conditions of sale also weighs in favor of finding a likelihood of confusion.
E. The Number and Nature of Similar Marks in Use on Similar Goods
Lastly, we consider the number and nature of similar marks in use on similar
goods, the sixth du Pont factor. In an ex parte appeal, “[t]he purpose of [an applicant]
introducing third-party uses is to show that customers have become so conditioned
by a plethora of such similar marks that customers have been educated to distinguish
between different such marks on the bases of minute distinctions.” Palm Bay, 73
USPQ2d at 1694; see also Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136
(Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal citations omitted). “[T]he strength
of a mark is not a binary factor” and “varies along a spectrum from very strong to
very weak.” Juice Generation, 115 USPQ2d at 1675-76 (internal citations omitted).
“The weaker [the Registrant’s] mark, the closer an applicant’s mark can come without
causing a likelihood of confusion and thereby invading what amounts to its
comparatively narrower range of protection.” Id. at 1676 (internal citations omitted).
See also Palm Bay, 73 USPQ2d at 1693 (“Evidence of third-party use of similar marks
on similar goods is relevant to show that a mark is relatively weak and entitled to
only a narrow scope of protection.”).
Applicant maintains that the common element in both marks, the word “polar,” is
relatively weak and entitled to a narrow scope of protection as applied to products in
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International Class 1. In support thereof, Applicant has made of record Principal
Register third-party registrations. See June 3, 2017 Request for Reconsideration, 5
TTABVUE 47-130. Third-party registrations may be relevant to show that a mark or
a portion of a mark is descriptive, suggestive, or so commonly used in ordinary
parlance that the public will look to other elements to distinguish the source of the
goods. Juice Generation, 115 USPQ2d at 1674-75. See also Institut National des
Appellations D’Origine v. Vintners Int’l Co. Inc., 22 USPQ2d 1190, 1196 (Fed. Cir.
1992) (“third party registrations show the sense in which the word is used in ordinary
parlance and may show that a particular term has descriptive significance as applied
to certain goods or services.”) (internal citations omitted). We have carefully reviewed
the third-party registrations. Suffice to say, they are of minimal, if any, probative
value because the identified goods, while falling under the same International Class,
are too dissimilar from the goods identified in the cited registration. That is to say,
none of the identified goods are used in connection with vehicle air conditioning
systems.
We further observe that the record is devoid of examples of actual use of marks
comprised of POLAR in connection with Registrant’s goods or goods related thereto.
Thus, the evidence before us falls short of showing that the cited mark is weak for
the relevant goods. We therefore deem this factor neutral.
II. Conclusion
After considering all of the evidence of record and arguments pertaining to the
du Pont likelihood of confusion factors, each of the du Pont factors discussed above
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either favors a finding of likelihood of confusion or is neutral. To summarize, despite
slight differences in sound and appearance, the marks project virtually the same
connotation and commercial impression. This, coupled with the related and
complementary nature of the goods which are marketed in the same trade channels
to the general public at relatively low price points, supports a finding that there is a
likelihood of confusion between Applicant’s mark POLAR FREEZE in standard
characters for “[r]efrigerant gas for use in automotive air conditioning systems” in
International Class 1 and the registered mark POLAR ICE also in standard
characters on the Principal Register for “[r]efrigeration and air conditioning system
chemical additives for enhancing performance of vehicle air conditioning
compressors” in International Class 1.
Decision: The Section 2(d) refusal is affirmed.