Aircraft Gear Corporation

Trademark Trial and Appeal Board

Mar 26, 2014

No. 85587354 (T.T.A.B. Mar. 26, 2014)

Mailed: March 26, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Aircraft Gear Corporation
________

Serial Nos. 85587269 and 855873541
_______

Gordon M. Wright of Reinhart Boerner Van Deuren P.C. for Aircraft Gear
Corporation.
Matthew G. Galan, Trademark Examining Attorney, Law Office 113 (Odette
Bonnet, Managing Attorney).
_______

Before Bucher, Bergsman and Lykos, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:

On April 3, 2012, Aircraft Gear Corporation (“applicant”) filed an application to
register on the Principal Register the mark displayed below

1 Because the Board deems the cases to have common questions of fact and of law, and the
records are largely identical, the appeals are hereby consolidated. See, e.g., In re Anderson,
101 USPQ2d 1912, 1915 (TTAB 2012) (Board sua sponte consolidated two appeals).
This Opinion is Not a
Precedent of the TTAB
Serial Nos. 85587269 and 85587354
2
for “parts for high-performance motor vehicles, namely, drive lines, universal joints,
and components thereof” in International Class 12.2 That same day, applicant also
filed a second application to register on the Principal Register the slogan JOIN THE
RCV REVOLUTION! in standard character format for same identified goods.3
Applicant has appealed the Trademark Examining Attorney’s final refusals to
register both marks under Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(d), on the ground that both of applicant’s applied-for marks so
resemble the registered mark displayed at right used in connection with
“vehicles, namely, motorcycles; motorcycles and structural parts and
fittings therefor; motors and engines for land vehicles” in International Class 124
that when used on or in connection with applicant’s identified goods, they are likely
to cause confusion or mistake or to deceive.
For the reasons explained below, we affirm both refusals to register.
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

2 Application Serial No. 85587269, pursuant to Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b). The description of the mark is as follows: “The mark consists of the letters ‘RCV’
in stylized form against a background that includes a checkered flag and stylized
illustration of mountaintops, the words ‘Performance Products’ written in smaller letters
under the letters ‘RCV’. Color is not claimed as a feature of the mark. Applicant disclaimed
the wording “Performance Products” apart from the mark as shown.
3 Application Serial No. 85587354, filed pursuant to Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).

4 Registration No. 3159038, registered on October 17, 2006 pursuant to Section 66(a) of the
Trademark Act, 15 U.S.C. § 1141f(a); Sections 8 and 15 affidavits acknowledged and
accepted. The goods listed in International Class 7 of the registration do not provide a basis
for the examining attorney’s refusals.
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Serial Nos. 85587269 and 85587354
4
mark, but also that it had a different connotation and meaning when considered in
relation to the goods thereby resulting in a different commercial impression.
Applicant contends that the term RCV in the cited registration stands for “rotating
cylinder valve” whereas the term RCV in applicant’s mark is a coined initialism for
“Rockford Constant Velocity,” a direct reference to the velocity joints sold by
applicant. Applicant also points to the disclaimed wording “Performance Products”
in its mark as engendering a different meaning and commercial impression because
in the automotive industry, the phrase conveys that the goods are used in
connection with customized or high-end vehicles. In addition, applicant highlights
the distinct design elements of each mark, noting that the curved lines in the
registered mark are not at all similar to the checkered flag and mountain design in
applicant’s mark. As to applicant’s mark JOIN THE RCV REVOLUTION!,
applicant maintains that it too creates a different meaning and commercial
impression from the cited mark insofar as that the phrase suggests that the
products are “non-traditional or revolutionary” and represents “a call to action on
the part of the consumer.” Applicant’s Brief, p. 8.
We are not persuaded by applicant’s arguments. Applicant’s and registrant’s
marks are comprised, either in whole or in part, of the letters RCV, which we find to
be the dominant portion of each mark. While applicant maintains that the term
RCV when used in connection with applicant’s and registrant’s goods, respectively,
has a different meaning, we have no evidence in the record to support this
assertion. We note that the line of cases upon which applicant relies involves double
Serial Nos. 85587269 and 85587354
5
entendres and is distinguishable. See e.g., In re Sears, Roebuck and Co., 2 USPQ2d
1312 (TTAB 1987) (CROSSOVER for brassieres creates a different commercial
impression from CROSSOVER for ladies’ sportswear); In re British Bulldog, Ltd.,
224 USPQ 854 (TTAB 1984) (no likelihood of confusion found between PLAYERS in
stylized form for men's underwear and PLAYERS for shoes, based in part on the
different connotations the marks have when used in connection with the respective
goods); In re Sydel Lingerie Co., Inc., 197 USPQ 629 (TTAB 1977) (no likelihood of
confusion found between BOTTOMS UP for ladies ‘and children's underwear and
BOTTOMS UP for men's suits, coats and trousers). Thus, according to the record
before us, the designation RCV in the involved marks is arbitrary when applied to
both registrant’s and applicant’s goods. As previously recognized by the Board in
Edison Brothers Stores, Inc. v. Brutting E.B. Sport-International GmbH, 230 USPQ
530, 533 (TTAB 1986), “…[c]onfusion is more likely between arbitrarily arranged
letters than between other types of marks. … We think that it is well known that it
is more difficult to remember a series of arbitrarily arranged letters than it is to
remember figures, syllables, words, or phrases. The difficulty of remembering such
lettered marks makes confusion between such marks, when similar, more likely.”
That being said, our analysis cannot be predicated on dissection of the involved
marks. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). 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 23, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered
Serial Nos. 85587269 and 85587354
6
piecemeal; rather, it must be considered as a whole in determining likelihood of
confusion”). Different features may be analyzed to determine whether the marks are
similar. Price Candy Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266,
268 (CCPA 1955). In fact, 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. In re National Data Corp., 224 USPQ at 751.
Consistent with these principles, we observe that in
applicant’s mark, the disclaimed phrase “Performance
Products” appears in smaller size font below the stylized
rendition of “RCV.” In addition, the phrase is descriptive of the identified goods and
therefore carries less significance in engendering a commercial impression. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000), quoting In re National Data Corp., 224 USPQ at 752 (“Regarding descriptive
terms, this court has noted that the descriptive component of a mark may be given
little weight in reaching a conclusion on the likelihood of confusion”); In re Dixie
Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re
Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is
often “less significant in creating the mark’s commercial impression”). Thus, it is
more likely that prospective consumers will pay less attention to the visually
smaller, less prominent disclaimed phrase “Performance Products” in applicant’s
Serial Nos. 85587269 and 85587354
7
mark and instead treat the proportionally larger term “RCV” as the dominant
source-identifying element.
As to the checkered flag and mountain top design in applicant’s special form
mark and curved lines in registrant’s mark, we find that in this particular case, the
presence of distinct design elements fails to mitigate the highly similar connotation
of the respective literal portions of the involved marks. Applicant is reminded of the
often-recited principle that when a mark consists of a literal portion and a design
portion, the literal portion is more likely to be impressed upon a purchaser’s
memory and to be used in calling for the goods and/or services; therefore, the literal
portion is normally accorded greater weight in determining whether marks are
confusingly similar. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012), citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198,
200 (Fed. Cir. 1983); see also In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596
(TTAB 1999). The checkered flag/mountain top design in applicant’s mark serves as
a backdrop to the more prominently displayed term RCV. The curved lines of the
cited mark amplify the sole literal element “RCV”, which is identical to the
dominant portion “RCV” of applicant’s mark. In view of the foregoing, we find that
the marks overall engender a highly similar meaning and commercial impression.
Turning now to applicant’s mark JOIN THE RCV REVOLUTION!, considering
the mark as a whole without dissecting it into individual parts, we find that the
arbitrary designation “RCV” is the dominant, source identifying portion of the
slogan. Indeed when considering the meaning of the entire phrase “Join the RCV
Serial Nos. 85587269 and 85587354
8
revolution!,” the term “RCV” is the focus of the slogan inasmuch as prospective
consumers are urged to become a member of a movement involving “RCV” branded
products. Thus, the additional wording in applicant’s slogan actually serves to
emphasize, not detract, from the designation “RCV.” When compared to the cited
mark which, as explained above, includes only one literal element, “RCV”, the
marks engender a similar commercial impression.
We therefore find that, when considered in their entireties, both of applicant’s
marks has a similar commercial impression to registrant’s mark. This first du Pont
factor therefore weighs in favor of finding a likelihood of confusion for both
applications.
B. The Goods
The next step in our analysis is a comparison of the goods identified in
applicant’s applications vis-à-vis the goods identified in the cited registration. At
the outset, we note that the goods in question are not identical. However, it is well
established that the respective goods do not have to be identical or even competitive
in order to determine that there is a likelihood of confusion; rather, it is sufficient
that the respective goods are related in some manner, or the conditions surrounding
their marketing must be such that the goods will be encountered by the same
purchasers under circumstances that would give rise to the mistaken belief that
they originate from the same source. Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012), quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007); On-line Careline Inc. v. America
Serial Nos. 85587269 and 85587354
9
Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Applicant, based on evidence obtained from registrant’s website, argues that
registrant does not appear to be selling automotive parts but rather parts for small
aircraft applications (e.g., model aircraft, handheld garden tools, portable
generators and unmanned air vehicles). Consequently, applicant contends that
registrant’s motors and engines are not designed for automobiles and therefore are
unrelated to applicant’s goods.
Applicant’s arguments are unconvincing. Applicant not only improperly relies on
extrinsic evidence to distinguish the registrant’s goods, but also misreads the scope
of registrant’s identification of goods. In pertinent part, registrant’s identification
reads, “motors and engines for land vehicles.” As we have often stated, the question
of likelihood of confusion is determined based on the description of the goods stated
in the application and registration at issue, not on extrinsic evidence of actual use.
See, e.g., Coach Servs., Inc. 101 USPQ2d at 1722; Octocom Sys. Inc. v. Hous.
Computers Servs. Inc., 918 F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Indeed, Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), gives the registrant
the right to use the mark for the goods as they are identified in the registration. In
re Dixie Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997)
(“The certificate of registration is prima facie evidence of the validity of the
registration and the registrant's exclusive right to use the mark in connection with
the services specified.”). Here, the term “land vehicle” necessarily encompasses any
Serial Nos. 85587269 and 85587354
10
type of vehicle capable of movement on land, including automobiles, and for that
matter “high performance” automobiles. Furthermore, applicant’s identification is
not limited to automobiles but rather encompasses all “high performance motor
vehicles.” Thus, on the face of registrant’s identification, the goods identified as
“motors” and “engines” necessarily fall within the category of parts for high-
performance motor vehicles. Similarly, applicant’s high-performance, drivetrain
components could well overlap with registrant’s “motorcycle … fittings.”
Under similar circumstances, the Board has held that marketing by different
parties of different types of vehicle parts and accessories under the same or similar
marks is likely to cause confusion. See, e.g., In re Magic Muffler Serv., Inc., 184
USPQ 125 (TTAB 1984) (holding MAGIC for vehicle parts, namely mufflers, likely
to be confused with MAGIC for motors for motor vehicles); In re Delbar Prods., Inc.,
217 USPQ 859 (TTAB 1981) (holding ULTRA for outside mounted vehicle mirrors
likely to be confused with ULTRA and design for automobile parts, namely pistons
and pins, valves, water pumps, oil pumps, universal joints, gears, axle shafts,
hydraulic brake parts, automatic transmission repair kits and parts, engine
bearings and jacks); AP Parts Corp. v. Auto. Prods. Associated, 156 USPQ 254
(TTAB 1967) (holding AP for clutches, brakes, steering joints, tie-rod joints, and
suspension joints for land vehicles, aircraft or watercraft likely to be confused with
AP for mufflers for explosive engines). The record in this case supports such a
finding as well, showing that applicant’s “parts for high-performance motor
vehicles, namely, drive lines, universal joints, and components thereof” and
Serial Nos. 85587269 and 85587354
11
registrant’s “vehicles, namely, motorcycles; motorcycles and structural parts and
fittings therefor; motors and engines for land vehicles” are closely related,
complementary in nature, and are commonly offered by the same entities and
encountered at the same time by the same prospective purchasers.
To establish the relatedness of the goods, the examining attorney submitted into
the record copies of the following use-based, third-party registrations identifying
goods listed in both applications and the cited registration:
Reg. No.
2864219

Class 12: “Axle bearings for land vehicles;
internal combustion engines for land
vehicles; brakes for land vehicles;
clutches for land vehicles; land vehicle
parts, namely, shock absorbers; land
vehicle parts, namely, power steering
gearboxes; connecting rods for land
vehicles other than parts of motors and
engines; brake lining for land vehicles;
brake disc lining pads, brake disc sleeves
and brake disc plates, all for land vehicles;
vehicle control cables, namely, brake
cables; universal joints for land
vehicles; automotive parts, namely,
brake cylinders; and transmission cases
for land vehicles.”

Reg. No.
2912726

Class 12: “Wheel rims for vehicles; wheel
hubs for land vehicles and motorcycles;
tires for land vehicles; side shields as
structural parts of vehicles; universal
joints for land vehicles; fitted covers for
vehicles; engines for land vehicles;
door panels for land vehicles; axle
bearings for land vehicles; axle boot kits
for use with land vehicles.”

Reg. No.
3401876
Class 12: “universal joints for
automobiles, transmission shafts for
land vehicles, automobile wheel
Serial Nos. 85587269 and 85587354
12
bearings, automobiles, motors for land
vehicles, automobile chassis, shock
absorbers for vehicles, hydraulic circuits
for land vehicles, brakes for land vehicles,
clutches for land vehicles, direction
signals for vehicles, automobile seats,
tires for vehicles, motorcycles, brake
shoes for land vehicles, horns for vehicles,
torsion bars for land vehicles,
transmissions for land vehicles,
suspension shock absorbers for vehicles.”

Reg. No.
4006961

Class 12: “Couplings for land vehicles; air
pumps, namely, accessories for motor
vehicles; suspension shock absorbers for
vehicles; headrests for seats in vehicles;
coupling hook for vehicles; tires for vehicle
wheels; valves for vehicle tires; torsion
bars for vehicles; transmissions for land
vehicles; turbines for land vehicles;
windows for vehicles; anti-theft alarms for
vehicles; horns for vehicles; brake pads for
land vehicles; brake shoes for vehicles;
gear boxes for land vehicles; body for
vehicles; transmission chains for vehicles;
speed indicators for vehicles; steering
wheels for vehicles; caps for petrol tanks
of vehicles; connecting rods for land
vehicles; transmission shafts for land
vehicles; crankcases for land vehicles;
chassis for land vehicles; vehicle bumpers;
hydraulic circuits for vehicles; gearing for
land vehicles; electric engines for land
vehicles; clutches for land vehicles; drive
shafts for land vehicles; brakes for
vehicles; wheel covers for vehicles;
engines for vehicles.”

Copies of use-based, third-party registrations may serve to suggest that the goods
are of a type which may emanate from a single source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
Serial Nos. 85587269 and 85587354
13
The examining attorney also introduced evidence from third-party Internet
websites from companies such as Ford and General Motors to support this finding.
For example, excerpts from the “Ford Parts” website (www.fordparts.com) state that
the company sells both remanufactured gas engines and drivetrain components
under the same brand name. See February 4, 2013 Office Action. Remanufactured
gas engines are a subset of registrant’s broadly identified “engines for land
vehicles”; applicant’s “drive lines “and “universal joints” are drivetrain components.5
Thus, the record reflects use of the same mark by third parties in connection with
both applicant’s and registrant’s products, and that the goods are commercially
related.
In view of the foregoing, the second du Pont factor also favors a finding of
likelihood of confusion.
C. Trade Channels
Next we consider the third du Pont factor – the similarity or dissimilarity of
established, likely to continue trade channels. Because the identifications of the
involved application and registrations are unrestricted as to trade channels, we
must presume that applicant’s and registrant’s goods travel in all ordinary trade
and distribution channels. Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ
937, 939 (Fed. Cir. 1983).
Applicant, again relying on evidence obtained from registrant’s website, argues
that it appears that registrant is marketing its products to other engine, vehicle, or

5 In support thereof, the examining attorney submitted an article entitled “How It Works:
The Drivetrain” from the online version of Popular Mechanics magazine showing that drive
lines, universal joints and engines all comprise the drivetrain of an automobile.
Serial Nos. 85587269 and 85587354
14
industrial manufacturers for applications such as hybrid vehicles, small
motorcycles, portable generators, and marine boards, as opposed to members of the
general public. Applicant contends that its goods, by contrast, are typically sold in
specialty retail auto parts or auto service establishments to individual owners of
high-performance off-road four-wheeled automotive vehicles. Applicant maintains
that off-road enthusiasts, who are the typical purchasers of applicant’s goods, are
unlikely to encounter registrant’s products.
As to registrant’s goods, we cannot look to extrinsic evidence to restrict the
channels of trade. See In re Bercut Vanervoot & Co., 229 USPQ 763, 764 (TTAB
1986). Rather, we must deem the goods to travel in all channels of trade appropriate
for such goods. Because the goods in the cited registration are not restricted as to
any particular use, we must assume that such products are also manufactured for
high-performance motor vehicles. For this reason, presume that registrant’s
products travel through the same trade channels as applicant’s and may be
purchased by the same classes of purchasers (high-performance motor vehicle
enthusiasts). See Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937 (Fed.
Cir. 1983). In other words, we must assume that registrant’s goods would also be
sold in specialty retail auto parts or auto service establishments for high
performance motor vehicles.
Moreover, because the goods could be used for the same vehicle repair project,
consumers could purchase them together. As such, both applicant’s and registrant’s
goods will be encountered by the same prospective consumers in the high-
Serial Nos. 85587269 and 85587354
15
performance vehicle industry. Hence, the third du Pont factor weighs in favor of
finding a likelihood of confusion.
D. Conditions of Purchase
We now turn to the fourth du Pont factor, the conditions under which and buyers
to whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing.
Applicant argues that the purchasers of the applicant’s products are automotive
enthusiasts who are particularly knowledgeable about the products they purchase
and tend to do a fair amount of research and comparison shopping before
purchasing parts for high-performance vehicles. Similarly, applicant contends that
the motors and engines for land vehicles sold under registrant’s mark are high-
value items sold commercially to sophisticated purchasers in a professional
capacity.
We agree with applicant that the nature of applicant’s and registrant’s goods by
virtue of their intrinsic nature necessarily dictate that they are likely to be sold to
knowledgeable, relatively sophisticated consumers. Also, these items clearly do not
fall in the category of everyday purchases but rather are complex products designed
for a specific purpose. This fourth du Pont factor therefore favors a finding of no
likelihood of confusion.
E. Contemporaneous Use without Actual Confusion
Next, we consider the eighth du Pont factor, the length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion, as argued by applicant. Applicant argues that because there have been
Serial Nos. 85587269 and 85587354
16
no instances of actual confusion in the marketplace, confusion is unlikely. In
support thereof, applicant references several websites devoted to off-road
enthusiasts where a user can type in the letters “RCV” into the website’s search bar.
Because only applicant’s goods are retrieved from these searches, applicant
concludes that there is no confusion in the marketplace between its goods and
registrant’s goods.
We find this evidence to be of minimal, if any, probative value, since it does not
show the nature and extent of contemporaneous use in the marketplace by
applicant and registrant. In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB
1984). Further, registrant has had no meaningful opportunity to rebut the evidence
upon which applicant has relied to show that confusion in the marketplace has not
occurred. Id. Without a meaningful opportunity to rebut this evidence, applicant’s
evidence is not probative.
In any event the case law is clear that it is not necessary to show actual
confusion to establish a likelihood of confusion. Herbko Int’l, Inc. v. Kappa Books,
Inc., 308 F.3d 1156, 1165, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002), citing Giant
Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1571, 218 USPQ 390, 396
(Fed. Cir. 1983). Indeed, the lack of evidence of “actual confusion” carries little
weight, especially in an ex parte context. In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). We therefore find that the eighth du
Pont factor, at best, to be neutral.
Serial Nos. 85587269 and 85587354
17
To the extent that there are any other relevant du Pont factors, we treat them as
neutral.
After considering all of the evidence of record and argument pertaining to the
du Pont likelihood of confusion factors, we find that notwithstanding the conditions
of purchase, because the marks are similar and because the goods are related and
sold in overlapping trade channels, confusion is likely between applicant’s marks for
its identified goods and the mark in the cited registration.
DECISION: The refusal to register under Section 2(d) is affirmed.