ADI Limited

Trademark Trial and Appeal Board

Jan 21, 2009

No. 79025359 (T.T.A.B. Jan. 21, 2009)

Mailed:
January 21, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re ADI Limited
________

Serial No. 79025359
_______

Eric O. Haugen of the Haugen Law Firm PLLP for ADI Limited.

Ramona Ortiga Palmer, Trademark Examining Attorney, Law Office
117 (Loretta C. Beck, Managing Attorney).
_______

Before Grendel, Mermelstein and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On April 4, 2006, applicant ADI Limited applied to register
the mark COPPERHEAD, in standard character form, for goods
ultimately identified as “flatbed utility military vehicles,
namely, armored military vehicles, armored security vehicles and
armored combat support vehicles for use by military personnel,
armored mobility vehicles for rapid deployment and protection of
armored personnel,” in Class 12. The application is a request
for extension of protection filed under Section 66(a) of the
Trademark Act of 1946, 15 U.S.C. §1144f(a).

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 79025359
2
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark is
likely to cause confusion with the mark KOPPERHED, in typed
drawing form, for “vehicles, namely custom automobiles,” in
Class 12.1
Our determination of likelihood of confusion under Section
2(d) is based on an analysis of all of the probative facts in
evidence that are relevant to the factors bearing on the issue
of likelihood of confusion. In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In
re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the marks
and the similarities between the services. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by §2(d) goes to
the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”).

1 Registration No. 2172025, issued July 7, 1998; Section 8 and 15
affidavits accepted and acknowledged; renewed. Because the Section 8
declaration of use and Section 9 renewal application were accepted by
the Trademark Office on September 13, 2008, applicant’s request to
suspend the appeal pending the renewal of the registration is denied.

The KOPPERHED mark is also registered for “entertainment services,
namely, display of custom automobile at car shows,” in Class 41.
However, the refusal is based only the goods in Class 12.
Serial No. 79025359
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A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont likelihood of confusion factor
focusing on the similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and
commercial impression. In re E. I. du Pont De Nemours & Co.,
177 USPQ at 567. In a particular case, any one of these means
of comparison may be critical in finding the marks to be
similar. In re White Swan Ltd., 9 USPQ2d 1534, 1535 (TTAB
1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1988).
In comparing the marks, the test is not whether the marks can be
distinguished when subjected to a side-by-side comparison, but
rather whether the marks are sufficiently similar in terms of
their overall commercial impression so that confusion as to the
source of the goods offered under the respective marks is likely
to result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992).
While the marks differ slightly in appearance, they are
phonetically identical (i.e., they are both pronounced kop’ ər
Serial No. 79025359
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hed’).2 Also, the marks mean the same thing, a venomous snake,
and thus they engender the same commercial impression.3
In view of the foregoing, we find the similarity of the
mark is a factor that weighs in favor of finding that there is a
likelihood of confusion.
B. The similarity or dissimilarity and nature of the goods
described in the application and registration at issue.

Applicant is seeking to register its mark for “flatbed
utility military vehicles, namely, armored military vehicles,
armored security vehicles and armored combat support vehicles
for use by military personnel, armored mobility vehicles for
rapid deployment and protection of armored personnel.” The
registered mark is for “custom automobiles.”
In analyzing the similarity or dissimilarity and the nature
of the goods, the question is not whether purchasers would
confuse the products, but rather whether purchasers are likely
to confuse the source of the products. Helene Curtis Industries
Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989); In
re Permagrain Products, Inc., 223 USPQ 147, 148 (TTAB 1984). See
also Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ
517, 520 (TTAB 1975) (“In determining whether products are

2 The Random House Dictionary of the English Language (Unabridged), p.
448 (2nd ed. 1987). The Board may take judicial notice of dictionary
evidence. University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
3 Id.
Serial No. 79025359
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identical or similar, the inquiry should be whether they appeal
to the same market, not whether they resemble each other
physically or whether a word can be found to describe the goods
of the parties”). Thus, the goods at issue need not be similar
or even competitive to support a finding of likelihood of
confusion. It is sufficient if the respective goods are related
in some manner and/or that the conditions surrounding their
marketing are such that they would be encountered by the same
persons under circumstances that could, because of the
similarity of the marks used thereon, give rise to the mistaken
belief that they emanate from or are associated with a single
source. In re Albert Trostel & Sons Co., 29 USPQ2d at 1785; In
re International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978).
The Examining Attorney argues that registrant’s “custom
automobiles” encompass all types of custom automobiles,
including military vehicles. To support this argument, the
Examining Attorney cites the definition of the term “automobile”
which she asserts is broad enough to include a “flatbed utility
military vehicle” and “armored mobility vehicles.” She also
contends that the definition of vehicle includes automobiles.
Citing The American Heritage Dictionary of the English Language
(4th ed. 2000), the Examining Attorney defines an “automobile” as
“[a] self-propelled passenger vehicle that usually has four
Serial No. 79025359
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wheels and an internal, used for land transport.”4 A “vehicle”
is “[a] device or structure for transporting persons or things .
. . a self-propelled conveyance that runs on tires; a motor
vehicle.”
The Examining Attorney’s analysis is based on the false
premise that there are no restrictions or limitations on the
goods at issue. To the contrary, the restrictions or
limitations are inherent in the nature of the products listed in
the description of goods. First, there is a difference between
vehicles and automobiles. While vehicles may encompass all
automobiles, automobiles do not encompass all vehicles.5 Second,
applicant’s vehicles are “flatbed utility military vehicles,”
not automobiles. A “flatbed” vehicle is “a truck or trailer
having an open body in the form of a platform without sides or
stakes.”6 Finally, applicant’s products are military vehicles
which mean that they are designed for use by the armed forces
(i.e., the army).7

4 Both The Random House Dictionary of the English Language
(Unabridged), p. 141 (2nd ed. 1987) and Webster’s Third New
International Dictionary of the English Language (Unabridged), p. 148
(1993) define an automobile as “a passenger vehicle designed for
operation on ordinary roads.” (Emphasis added).
5 As discussed below, the companies that build armored vehicles
categorize automobiles, sport utility vehicles and trucks as distinct
types of vehicles.
6 The Random House Dictionary of the English Language (Unabridged), p.
731 (2nd ed. 1987).
7 The Random House Dictionary of the English Language (Unabridged), p.
1220 (2nd ed. 1987)
Serial No. 79025359
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In further support of her argument that “custom
automobiles” and “flatbed utility military vehicles” are related
products, the Examining Attorney contends that her Internet
evidence shows that the vehicles emanate from a single source.
The Examining Attorney submitted the following websites:
1. The HUMMER review in the Carseek website (carseek.com)
discusses the off-road Am General Corp. HMMWV (High
Mobility Multipurpose Wheeled Vehicle), also known as
a HUMVEE. The civilian version is built by General
Motors and is sold under the HUMMER mark. Thus, the
military and civilian versions of the vehicle are
manufactured by different companies and they are sold
under different marks. In other words, the two
products do not come from a single source.8
2. The Mercedes-Benz G-Class review in the Carseek
websites references the fact that this heavy duty
sport utility vehicle has extreme off-road capability
was first sold overseas in 1979 and subsequently made
available in the United States in 2002.9 It “was

8 The Am General Corp. website (amgeneral.com) corroborates the fact
that Am General Corp. builds the military HUMVEE and General Motors
builds the civilian HUMMER, and that the two companies are not
related.
9 Technically, a “sport utility vehicle” is not an automobile. A
“sport utility vehicle” is “a rugged vehicle with a truck like chassis
and four-wheel drive, designed for occasional off-road use.”
Dictionary.com Unabridged based on the Random House Dictionary (2009).
Serial No. 79025359
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initially very popular with the military and those who
traveled over rough terrain.” However, it is not
clear whether it was used by the U.S. military and to
what extent U.S. consumers know that the vehicle has
or had military applications.
3. Supreme Industries (armoredcars.com) builds armored
trucks, sport utility vehicles, and automobiles and it
also builds armored trucks for military applications.
4. Alpine Armoring Inc. (alpine.com) custom designs
armored vehicles, including sport utility vehicles,
automobiles, and trucks for the private sector and the
military.
5. Armor Systems International (armorsystemsint.com)
provides armor for military and civilian vehicles.
6. The Armored Group, LLC (armored-trucks.com) provides a
full line of armored trucks, vans, cash in transit
vehicles, mobile check cashing and ATM vehicles.
While the excerpt of this website did not show that
the company builds armored cars or military vehicles,
there were links to “armored cars” and “military
vehicles” which were not produced. We are left to
wonder what those links might have shown.

Compare with footnote 4. Also, the other websites distinguish
automobiles and sport utility vehicles as distinct vehicles.
Serial No. 79025359
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7. Centigon (centigon.com) provides armor for commercial
vehicles, passenger vehicles, and cash-in-transit
vehicles. There is no evidence that it builds
military vehicles although there is a link to
“tactical vehicles.” Again, we are left to wonder
what information that link would have provided.
8. Lenco Armored Vehicles (armoredtrucks.com) is a
“leading designer and manufacturer of tactical armored
security vehicles.” Its vehicles are used for
“dangerous law enforcement and military operations
such as close quarter battle engagements, citizen
rescue and personnel/cargo delivery missions.” The
website provides photographs of armored trucks, but
not automobiles.
9. Spy Tech Agency
(http://spytechagency.stores.yahoo.net) builds “custom
armored specialty automobiles for the affluent.” It
customizes a brand name luxury sedans and limousines,
as well as sport utility vehicles and pick-up trucks.
Its clientele includes professional athletes,
entertainers, corporate executives, government and
corporate “power brokers, and other VIPs. There is no
indication that it provides military vehicles.
Serial No. 79025359
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Based on our review of these websites, we conclude that the
companies that build the armored vehicles do not build vehicles
from scratch; they customize existing chassis. For example, the
Armored Group, LLC website has an inventory page that invites
the viewer to select a chassis manufactured by Chrysler, Ford,
General Motors, Navistar, and Volvo; Supreme Industries offers
Ford, General Motors, Mack, Volvo, and other chassis; and Alpine
Armoring Inc. retrofits the BMX, Cadillacs, Chevy Suburbans,
Jeep Grand Cherokees, etc. The Centigon websites states that
Centigon “confine[s] our armoring to selected models produced by
well known manufacturers to ensure our customers get what they
deserve and require (sic) comfort, performance and protection
that they can rely on.”
Finally, the Examining Attorney submitted the following
three third-party registrations covering both automobiles and
military vehicles:
Mark Reg. No. Goods

BUILT FOR LIFE 2770794 Custom designed fully armored and
light armored passenger vehicles . . .
and specialty vehicles, namely
automobiles . . . commercial and
military trucks . . .

SENTRY OWL 2695563 Military and commercial vehicles,
namely, trucks and automobiles . . .

O’GARA-HESS &
EISENHARDT
2938429 Custom designed and refurbished motor
vehicles, including fully armored and
light armored vehicles, blast
protected vehicles, parade cars
Serial No. 79025359
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The other third-party registrations submitted by the Examining
Attorney do not include both military vehicles and automobiles.
For example, Registration No. 2810872 is for the mark LEHMANN-
PETERSON COACHBUILDERS for “automobiles, namely, stretch and
armored motor vehicles”; Registration No. 3114871 for the mark
M113E3 for “tracked land vehicles, namely, tanks and armored
personnel carriers”; Registration No. 3142288 for the mark
LOCKHEED MARTIN for “off-road ground vehicles.”
“Although the third-party registrations are not evidence
that the marks shown therein are in commercial use, or that the
public is familiar with them, nevertheless third-party
registrations which individually cover a number of different
items which are based on use in commerce may have some probative
value to the extent that they serve to suggest that the listed
goods and/or services are of a type which may emanate from a
single source.” In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1786 (TTAB 1993). See also In re Mucky Duck Mustard Co.,
Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
On the other hand, applicant submitted the following third-
party registrations for the same marks owned by different
entities, one for automobiles and one for military vehicles or
Serial No. 79025359
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armored vehicles:10
Mark Reg. No. Goods

COUGAR 3259883

1480744
Armored vehicles (Force Protection
Industries, Inc.)

Automobiles (Ford Motor Company)

PROWLER 2224038

3200866
Automobiles (DaimlerChrysler Corp.)

Light tactical wheeled/tracked vehicle
with automotive controls for use in
military applications (Phoenix
International Systems, Inc.)

Applicant argues, in essence, that these registrations serve to
suggest that the listed goods are of a type that may emanate
from different sources.
While the same companies may custom armor passenger
automobiles and military vehicles, there can be no doubt that
these are two entirely different types of vehicles. They are
different in appearance, general purpose and manner of use.
Also, common sense dictates that a military vehicle and a
“custom automobile” are not related products. The evidence by
the Examining Attorney does not persuade us that the relevant
consumers will believe that such disparate products emanate from
a single source. In view of the foregoing, we find that the
goods at issue are not related.

10 Applicant listed other third-party registrations covering vehicles
other than those at issue, and therefore, they have limited, if any,
probative value.
Serial No. 79025359
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C. The similarity or dissimilarity of likely-to-continue trade
channels and classes of consumers.

The Examining Attorney’s argument that “flatbed utility
military vehicles” and “custom automobiles” move in the same
channels of trade and are sold to the same classes of consumers
is again based on the false premise that there are no inherent
limitations on the channels of trade and classes of consumers in
the description of goods. See the discussion in Section B
supra. “Flatbed utility military vehicles,” by definition, are
manufactured for the armed forces while “custom automobiles” are
manufactured for a knowledgeable automobile enthusiast, car
buff, or status seeker, as well as professional athletes,
entertainers, corporate executives, government and corporate
“power brokers, and other VIPs who require heightened security.11
The goods at issue will not be marketed to the same consumers
under circumstances likely to give rise to the mistaken belief
that they emanate from the same source. Therefore, we find that
the channels of trade and classes of consumers are different.
D. The degree of consumer care.

Even though the applicant did not introduce any evidence
regarding the degree of care exercised by consumers purchasing
“flatbed utility military vehicles” and/or “custom automobiles,

11 While the military may purchase “custom automobiles,” as discussed
in the next section, a military purchaser is going to be aware of the
source of the vehicle he/she is purchasing.
Serial No. 79025359
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we can make certain suppositions about the degree of care
consumers exercise when selecting such products based on the
very nature of the products. Purchasers of “flatbed utility
military vehicles” will exercise a high degree of care, and
therefore focus the trademark for the products and become aware
of the source of the products, because these purchases will be
characterized by personal examination of the products,
knowledgeable salespersons, comparison of proposals for
competing products, a bureaucratic government procurement
process, a focused need for the product, the unusual nature of
the product, and the price. By the same token, purchasers of
“custom automobiles” will exercise a high degree of care, and
therefore focus on the trademark for the products and become
aware of the source of the products, because these purchases
will be characterized by personal examination of the products by
a purchaser who is an enthusiast, knowledgeable salespersons, a
focused need or plan for the product, the product will be a
status symbol, the purchaser is seeking to satisfy personal
taste, and the price.
E. Balancing the factors.
In view of the facts that the products are not similar or
related, the products move in different channels of trade and
are sold to different classes of consumers and that the
prospective customers will exercise a high degree of care, we
Serial No. 79025359
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find that applicant’s registration of the mark COPPERHEAD for
“flatbed utility military vehicles, namely, armored military
vehicles, armored security vehicles and armored combat support
vehicles for use by military personnel, armored mobility
vehicles for rapid deployment and protection of armored
personnel” is not likely to cause confusion with the mark
KOPPERHED for “vehicles, namely custom automobiles.”
Decision: The refusal to register is reversed.