87862875 (T.T.A.B. Jul. 30, 2020)

Alberee Products, Inc.

Trademark Trial and Appeal BoardJul 30, 2020

87862875 (T.T.A.B. Jul. 30, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: July 30, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Alberee Products, Inc. _____ Serial No. 87862875 _____ NOTICE OF CORRECTION _____ Robert J. Kenney of Birch Stewart Kolasch & Birch LLP, for Alberee Products, Inc. Daniel Donegan, Trademark Examining Attorney, Law Office 104, Zachary Cromer, Managing Attorney. _____ By the Board: On July 20, 2020, the Board issued a final decision in connection with the above styled ex parte appeal. The posted decision has three errors that must be corrected. The errors in the posted decision are listed below: On page 2, in the first full paragraph, lines 6-7 and on page 21, Section III, lines 8-9, the following text has been deleted from the opinion because the goods have been deleted from the cited registration: “and kits containing parts for use in repairing and rebuilding fuel injection systems.” Serial No. 87862875 - 2 - On page 4, Section II.A., line 1, the cited registration is identified as HYBEAM. It should be BEAM. A corrected copy of the Board’s final decision is attached. Applicant’s time for filing an appeal or commencing a civil action regarding the Board’s decision continues to run from the mailing date of the July 20, 2020 decision. See Trademark Rule 2.145(d)(1), 37 C.F.R. §2.145(d)(1). This Opinion is Not a Precedent of the TTAB Mailed: July 20, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Alberee Products, Inc. _____ Corrected Decision Serial No. 87862875 _____ Robert J. Kenney of Birch Stewart Kolasch & Birch LLP, for Alberee Products, Inc. Daniel Donegan, Trademark Examining Attorney, Law Office 104, Zachary Cromer, Managing Attorney. _____ Before Bergsman, Goodman, and Johnson, Administrative Trademark Judges. Opinion by Johnson, Administrative Trademark Judge: Alberee Products, Inc. (“Applicant”) seeks registration on the Principal Register of the mark HYBEAM (in standard characters) for Parts for automobiles, namely, windshield wiper frames and blades, excluding carburetors, fuel filters, fuel regulators for regulating and reducing the pressure of gaseous fuel supplied to an engine, and parts therefor, in International Class 12.1 1 Application Serial No. 87862875 filed on April 4, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. Serial No. 87862875 - 2 - The Trademark Examining Attorney refused to register Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the goods identified in the application, so resembles the registered mark BEAM2 for “vehicle parts, namely, carburetors, fuel filters, fuel regulators for regulating and reducing the pressure of gaseous fuel supplied to an engine, and parts therefore,” in International Class 7, on the Principal Register as to be likely to cause confusion, to cause mistake, or to deceive.3 When the Examining Attorney made the refusal final, Applicant appealed4 and requested reconsideration.5 After the Examining Attorney denied the request for reconsideration,6 the Board resumed the appeal.7 We affirm the refusal to register. I. Evidentiary Issue The Examining Attorney requests that the Board strike Exhibit 28 of Applicant’s Brief -- Google search engine results for “beam for auto parts” -- because the search results were first filed with the appeal brief.9 We agree that Applicant failed to file Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions, and orders on appeal are to the Board’s TTABVUE docket system. 2 Registration No. 2382603, issued September 5, 2000. 3 July 25, 2018 Non-Final Office Action, TSDR p. 1; January 22, 2019 Final Office Action, TSDR p. 1. 4 Notice of Appeal, 1 TTABVUE. 5 Request for Reconsideration after Final Action, 4 TTABVUE. 6 Request for Reconsideration after Final Action Denied, 5 TTABVUE. 7 8 TTABVUE. 8 Applicant’s Appeal Brief, 9 TTABVUE 93-102. 9 Examining Attorney’s Brief, 11 TTABVUE 4. Serial No. 87862875 - 3 - Exhibit 2 in a timely fashion. The prosecution of an application must be complete prior to the filing of an appeal. Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). As a result, we sustain the Examining Attorney’s objection and strike Exhibit 2 from the record.10 II. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake, or to deceive. Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all probative evidence in the record that is relevant to the likelihood of confusion factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor for which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). 10 Even if we were persuaded to consider Exhibit 2, the evidence has very limited probative value because it is a search result summary, provided without context, from an Internet search engine. TBMP § 1208.03 (2020). See also In re Bayer Aktiengesellschaft, 82 USPQ2d at 1833 (“Search engine results — which provide little context to discern how a term is actually used on the web page that can be accessed through the search result link — may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations.”) (citations omitted). Serial No. 87862875 - 4 - In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the goods or services. In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004). 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.”); In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all [du Pont] factors for which there is record evidence but ‘may focus . . . on dispositive factors, such as similarity of the marks and relatedness of the goods.”’) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). A. The Strength of the Mark in the Cited Registration Applicant argues that the mark in the cited registration, BEAM, is weak and entitled to a narrow scope of protection. In support, Applicant submits 19 third-party registrations,11 shown below, of BEAM-formative marks for lights, headlamps, and lightbulbs primarily used in automotive or vehicular applications: 11 Exhibit 1 of Applicant’s Appeal Brief, 9 TTABVUE 11-92. We note, however, that third-party Registration Nos. 4541417 (ACTIVE MULTIBEAM LED), 4766605 (BMW SELECTIVE BEAM), and 5337488 (CIBIE MYBEAM) are for marks registered solely under Sections 44 and 66 of the Trademark Act. Third-party registrations that are not based on use in commerce, such as those registered under § 66 of the Trademark Act (15 U.S.C. § 1141f(a)), or those registered solely under § 44 of the Trademark Act (15 U.S.C. § 1126(e)), and for which no § 8 or § 71 affidavits or declarations of continuing use have been filed (15 U.S.C. § 1058), have very little, if any, persuasive value. See Calypso Tech., Inc. v. Calypso Capital Mgmt., LP, 100 USPQ2d 1213, 1221 n.15 (TTAB 2011); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1583 (TTAB 2007); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 Serial No. 87862875 - 5 - MARK REGISTRATION NO. RELEVANT SERVICES WHITEBEAM 2388933 (Supplemental Register) Light bulbs [and mounting means for light bulbs] for automobiles, race cars, motorcycles, trucks and other vehicles (IC 11) GATLING BEAM 2488224 Electric light bulbs for automobiles, headlights for automobiles, lights for vehicles (IC 11) INTELLIBEAM 2958367 Electronic system comprised of hardware and software for automatically controlling vehicle headlamps (IC 9) SUNBEAM 2968560 Motor vehicles, namely, motorcycles, motorized scooters, bicycles, automobiles, trucks, sports utility vehicles, go-carts; neighborhood transportation vehicles, namely, motorized golf carts and aircrafts all using gas, electric, hybrid, fuel cell and other fuel means to provide locomotion; motor vehicle parts, namely, automobile bodies, automotive interior trim, and drive trains for automobiles (IC 12) 3004664 Electronic system comprising of hardware and software for (TTAB 1993). Moreover, third-party Registration No. 4275143 (CLEANBEAMS) has been cancelled. A cancelled registration is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), including the presumption of an exclusive right to use the mark. See In re Ginc UK Ltd., 90 USPQ2d 1472, 1480 (TTAB 2007); In re Hunter Publishing Co., 204 USPQ 957, 963 (TTAB 1979). Serial No. 87862875 - 6 - MARK REGISTRATION NO. RELEVANT SERVICES automatically controlling vehicle headlamps (IC 9) 3057006 Electronic system comprised of hardware and software for automatically controlling headlamps (IC 9) 4843139 (Supplemental Register) Bicycle lights; Diving lights; Electric Chinese lanterns; Electric lamps; Flashlights; Headlights for automobile; Lamp reflectors; Lamp whose light can be turned in all directions; Lamps; LED light assemblies for street lights, signs, commercial lighting, automobiles, buildings, and other architectural uses; LED light machines; Light bulbs; Lighting apparatus for vehicles; Lighting apparatus, namely, lighting installations; Lights for vehicles; Pocket search lights; Safety lamps for underground use; Searchlights; Sockets for electric lights; Vehicle headlights; Vehicle reflectors; Vehicle turn- signal light bulbs (IC 11) 4993408 Bicycle lights; Diving lights; Electric Chinese lanterns; Electric lamps; Flashlights; Headlights for automobile; Lamp reflectors; Lamp whose light can be turned in all directions; Lamps; LED light assemblies for street lights, signs, commercial Serial No. 87862875 - 7 - MARK REGISTRATION NO. RELEVANT SERVICES lighting, automobiles, buildings, and other architectural uses; LED light machines; Light Emitting Diode (LED) plant grow light; Lightbulbs; Lighting apparatus for vehicles; Lighting apparatus, namely, lighting installations; Lights for vehicles; Pocket search lights; Safety lamps for underground use; Searchlights; Sockets for electric lights; Vehicle headlights; Vehicle reflectors; Vehicle turn- signal light bulbs (IC 11) 4997744 Bicycle lamps; Bicycle lights; Diving lights; Electric lamps; Electric light bulbs; Electric lighting fixtures, namely, power failure backup safety lighting; Electric torches for lighting; Flashlights; Headlights for automobile; Headlights for vehicles; Lamp bulbs; Lamps; LED (light emitting diode) lighting fixtures; LED flashlights; LED lamps; LED light bulbs; LED luminaires; Light bulbs; Lighting apparatus for vehicles; Lighting fixtures; Lighting installations for vehicles; Lights for vehicles; Safety lamps for underground use; Searchlights (IC 11) Serial No. 87862875 - 8 - MARK REGISTRATION NO. RELEVANT SERVICES 5208982 Automotive maintenance and repair (IC 37) 5227264 Bicycle lights; Diving lights; Electric Chinese lanterns; Electric lamps; Flashlight holders; Headlights for automobiles; Lamp reflectors; Lamp casings; Lamp mantles; Lamps; LED lighting systems, namely, LED modules, power supplies, and wiring; Light bulbs; Light bulbs for directional signals for vehicles; Lighting apparatus, namely, lighting installations; Lighting installations for vehicles; Lighting apparatus for vehicles; Lights for vehicles; Pocket search lights; Rear lights for vehicles; Safety lamps for underground use; Searchlights; Vehicle headlights; Vehicle reflectors (IC 11) 5437968 LED light assemblies for street lights, signs, commercial lighting, automobiles, buildings, and other architectural uses (IC 11) NITEBEAM 5530064 Aquarium lights; Arc lamps; Bicycle lights; Diving lights; Electric lamps; Electric light bulbs; Electric torches for lighting; Flashlights; Headlights for automobiles; Incandescent lamps and their fittings; Lamps; LED Serial No. 87862875 - 9 - MARK REGISTRATION NO. RELEVANT SERVICES flashlights; LED light assemblies for street lights, signs, commercial lighting, automobiles, buildings, and other architectural uses; LED safety lamps; Pocket searchlights; Ultraviolet ray lamps, not for medical purposes (IC 11) 5578750 Bicycle lights; Electric lights for Christmas trees; Fairy lights for festive decoration; Flashlights; Headlights for automobiles; Lamps; Lanterns for lighting; LED safety lamps; Searchlights; Sockets for electric lights; Theatrical stage lighting apparatus; Ultraviolet ray lamps, not for medical purposes; Luminous house numbers; Motorcycle lights; Safety lamps for underground use (IC 11) Citing Juice Generation12 and Jack Wolfskin,13 Applicant argues that these registrations are “competent to show that the common term [BEAM] has an accepted 12 Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015) (“Third-party registrations are relevant to prove that some segment of the composite marks which both contesting parties use has a normally understood and well- recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak. Marks that are descriptive or highly suggestive are entitled to a narrower scope of protection, i.e., are less likely to generate confusion over source identification, than their more fanciful counterparts.”) (citations omitted). 13 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) (“[E]xtensive evidence of third-party use and registrations is ‘powerful on its face,’ even where the specific extent and impact of the usage has not been established.”) (citing Juice Generation, supra, at 1674). Serial No. 87862875 - 10 - meaning in a given field and that marks containing the term have been registered and used for related goods because the remaining portions of the marks may be sufficient to distinguish the marks as a whole from one another.”14 According to Applicant, since consumers are able to distinguish source with the slightest dissimilarities in the marks, here, the mere existence of these 19 BEAM-formative registrations for use with lights, headlamps, and lightbulbs shows that the cited registration for BEAM, when used in connection with auto parts (including beam wiper blades) is descriptive, diluted, and weak.15 We analyze the strength of the mark in the cited registration by determining “the number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567. “[S]ufficient evidence of third-party use of similar marks can ‘show that customers . . . have been educated to distinguish between different . . . marks on the basis of minute distinctions.’” Juice Generation, 115 USPQ2d at 1674 (citing 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:88 (4th ed. 2015)) (internal citation omitted). In both Jack Wolfskin and Juice Generation, the Board had significant evidence of third-party use before it.16 Specifically, in Jack Wolfskin, the applicant offered 87 registrations and seven applications for marks incorporating paw print designs used in conjunction with some form of clothing, as well as several third-party Internet websites also showing the use of a paw print with clothing items. 14 9 TTABVUE 6. 15 9 TTABVUE 7. 16 We note that both Jack Wolfskin and Juice Generation were oppositions and not ex parte appeals. So in those cases, in addition to third-party registration evidence, the record also included deposition testimony and discovery responses. Serial No. 87862875 - 11 - In Juice Generation, the applicant offered several third-party Internet websites along with 12 registrations that included both the words “peace and love” for food, restaurant services, or goods and services related thereto. The opposer countered with 21 third-party registrations used in connection with restaurant services and juice bar services, in addition to its own four registrations for peace and love- formative marks. We do not have the same quantity or quality of evidence before us here. The 15 BEAM-formative registrations under consideration are almost entirely for lights, lighting, or lamps; only two of the registrations are registered generally for motor vehicles, motor vehicle parts, auto maintenance, or auto repair. Notably, four of the registrations are single-term standard character marks with “beam” as the suffix; one registration is a two-term standard character mark with beam as the second term; six registrations are stylized word marks with beam composing the suffix of each; and three registrations are composite design marks which incorporate “beam.” These 15 registrations may show some weakness of the term “beam” with respect to lights or the vehicular or automotive lighting segment, but we do not agree that these registrations show that the cited registration, when used in connection with auto parts generally, is descriptive, diluted, or weak. Nor do we hold that these 15 registrations, without evidence of actual use, “show that customers . . . have been educated to distinguish between different . . . marks on the basis of minute distinctions.” Juice Generation, 115 USPQ2d at 1674. Weighing the evidence, we find this DuPont factor is neutral. Serial No. 87862875 - 12 - B. The Similarity or Dissimilarity of the Marks Next we consider the DuPont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014), aff’d per curiam, 777 F.App’x 516 (Fed. Cir. 2019)). See also Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). “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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)). See also Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general, rather than specific, impression of the marks. See Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005 , 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012). Since we do not have any evidence before us as to who might be the “average consumer,” the applicable standard of care Serial No. 87862875 - 13 - is that of the least sophisticated consumer. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (precedent requires consumer care for likelihood of confusion decision to be based “on the least sophisticated potential purchasers”). See also Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1027 (TTAB 2009) (citing Alfacell Corp. v. Anticancer, Inc., 71 USPQ2d 1301, 1306 (TTAB 2004)) (least sophisticated consumer standard of care applied where respondent introduced no evidence as to the actual sophistication of its customers). We must also consider the structure of the marks. “Likelihood of confusion often has been found where the entirety of one mark is incorporated within another.” See Stone Lion 110 USPQ2d at 1160-61 (“STONE LION CAPITAL” held similar in sight, sound, meaning, and overall commercial impression to “LION CAPITAL” and “LION”); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014) (finding PRECISION and PRECISION DISTRIBUTION CONTROL to be confusingly similar) (citations omitted). Because this factor is based on the marks in their entireties, our analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). 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.”). On the other hand, there is nothing improper in assigning Serial No. 87862875 - 14 - more or less weight to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Nat’l Data, 224 USPQ at 751. Applicant contends that the HY- prefix makes its HYBEAM mark “sufficiently dissimilar in sight, sound, and meaning”17 from the registered mark because “[t]he first word or portion of a mark often is given greater consideration by consumers and is considered the dominant portion of the mark,”18 citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In further support of its argument, Applicant postulates that the HYBEAM mark is the phonetic equivalent of “high beam,” thereby creating a different commercial impression from the registered mark, BEAM; that a “beam blade” is a common type of wiper blade, but HYBEAM is for a specific type of wiper blade; and that “beam” generally means an “an oscillating lever on a central axis receiving motion at one end from an engine connecting rod and transmitting it at the other.”19 In this case, consumers familiar with the previously-registered BEAM mark for vehicle parts encountering HYBEAM for windshield wiper frame and blades may mistakenly believe that HYBEAM is a new product in the BEAM line. We note there are no restrictions as to classes of consumers or price in the Application or the cited registration, so, as noted above, the average customer for the goods is the ordinary, 17 9 TTABVUE 5. 18 Id. 19 9 TTABVUE 7, citing the Merriam-Webster Dictionary (2020) (https://www.merriam- webster.com/dictionary/beam), accessed July 15, 2020. Serial No. 87862875 - 15 - least sophisticated consumer who purchases vehicle parts. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (citing Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268 (Fed. Cir. 2002)) (internal citation omitted). Considering the fallibility of human memory of the ordinary consumer and comparing the marks as a whole, we conclude that the HY- prefix of Applicant’s mark is not enough to distinguish the marks. See Spoons Rests., 23 USPQ2d at 1741 (“[I]t is the similarity of the general overall commercial impression engendered by the marks which must determine, due to the fallibility of memory and the consequent lack of perfect recall, whether confusion as to source or sponsorship is likely. The proper emphasis is thus on the recollection of the average customer, who normally retains a general rather than a specific impression of trademarks or service marks.”). This DuPont factor strongly supports a finding of a likelihood of confusion. C. The Similarity or Dissimilarity and Nature of the Goods and Services The respective goods offered under HYBEAM and BEAM need not be identical or directly competitive for there to be a likelihood of confusion, but the evidence must establish that the goods are related in some manner, or the conditions surrounding their marketing are such that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the goods come from a common source. Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003-04 (Fed. Cir. 2002). See also In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985) (CONFIRM for a buffered solution equilibrated to yield predetermined dissolved gas values in a blood-gas analyzer, and CONFIRMCELLS Serial No. 87862875 - 16 - for diagnostic blood reagents for laboratory use, likely to cause confusion, in part, because the relevant consumers would perceive the goods as related). If the Examining Attorney establishes relatedness for any item encompassed in the identification of goods in a particular class, such relatedness is sufficient for a finding of likelihood of confusion. Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Moreover, evidence that “a single company sells the goods and services of both parties, if presented, is relevant to the relatedness analysis.” Hewlett-Packard Co. v. Packard Press, Inc., 62 USPQ2d at 1004. To demonstrate the relatedness of the goods offered under Applicant’s mark and the cited registration, the Examining Attorney cites, as identified below, evidence from six web sites where windshield wiper frames and blades as well as fuel filters are offered for sale:20  Advance Auto Parts (showing fuel filters and windshield wipers offered by Bosch, AC Delco, and “OES genuine”);  Ecogard;  Ford Motorcraft;  Auto Zone (showing windshield wipers and fuel filters offered by Valmar Marine);  Pentius; and 20 11 TTABVUE 5-6, citing July 25, 2018 Non-Final Office Action, TSDR pp. 6-11; January 22, 2019 Final Office Action, TSDR pp. 59-73. Serial No. 87862875 - 17 -  Amazon (showing windshield wipers and fuel filters offered by OPparts and Mopar). To further support this relatedness argument, the Examining Attorney cites, as identified below, 10 third-party use-based trademark registrations for windshield wipers as well as fuel filters:21 MARK REGISTRATION NO. RELEVANT SERVICES 1399080 Parts and components for automotive vehicles, namely; air, oil, and fuel filters . . . windshield wiper arms and wiper blades . . . . and structural parts therefor. NAKAMOTO 2532418 Engine parts, namely, air filters, oil filters, fuel filters . . . . (IC 7) [W]iper blades, and wiper arms, windshield washers, windshield washer motors, windshield linkages, windshield wiper motors . . . . (IC 12) ATLANTIC BRITISH LTD. 2708647 Automotive parts and accessories . . . windshields, windshield wipers . . . . (IC 12) 2947335 Engine parts, namely, air filters, oil filters, fuel filters . . . . (IC 7) [W]iper blades, and wiper arms, windshield washers, windshield washer motors, windshield wiper linkages, windshield 21 11 TTABVUE 6, citing January 22, 2019 Final Office Action, TSDR pp. 2-16, 40-56. Serial No. 87862875 - 18 - wiper motors . . . all of the above for motor vehicles. (IC 12) PARTS MASTER 3678840 [O]il filters, air filters, breather filters and fuel filters for vehicle motors and engines . . . . (IC 7) [W]indow regulators; windshield wiper blades . . . . (IC 12) CLASSIC GOLD 3410210 Fuel filters and caps (IC 7) Windshield wipers (IC 12) 2919922 Oil and fuel filters (IC 7) Land vehicle parts, namely . . . windshield wipers and blades. (IC 12) 4788361 Fuel filters (IC 7) Windshield wipers (IC 12) PENTIUS 4806940 Filters for motors and engines, namely, air filters, oil filters, fuel filters. (IC 7) Vehicle parts, namely, brake pads, brake shoes, windshield wiper blades. (IC 12) MAINTENANCE ADVANTAGE 5511513 Fuel filters (IC 7) Automotive parts, namely . . . windshield wipers for vehicles, windshield wiper blades . . . . (IC 12) Serial No. 87862875 - 19 - Third-party registrations, based on use in commerce, that individually cover a number of different goods may have probative value to the extent they serve to suggest that the listed goods are of a type that may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem., 864 F.2d 149 (Fed. Cir. 1988). We find that the goods offered under Applicant’s mark, HYBEAM, and the cited registration, BEAM, are related. D. Established, Likely-to-Continue Channels of Trade and Purchasers to Whom Sales Are Made It is well-established that “absent restrictions in the application and registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.” Hewlett-Packard 62 USPQ2d at 1005 (Fed. Cir. 2002) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983)). The Federal Circuit has stated that confusion is likely when consumers can purchase goods at the same time and in the same stores, where the goods may be sold or displayed in close proximity to each other, especially when there is an “extensive pattern of complementary interests: the channels of trade, the types of stores, the commonality of purchasers, and the conjoint use.” In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984). See also In re Sela Prods., LLC, 107 USPQ2d 1580, 1587 (TTAB 2013) (purchasers are likely to encounter both surge Serial No. 87862875 - 20 - protectors, and wall mounts and brackets, during course of purchasing a television, audio or home theater system). Applicant has included a negative limitation in the identification of services for HYBEAM, specifically excluding “carburetors, fuel filters, fuel regulators for regulating and reducing the pressure of gaseous fuel supplied to an engine, and parts therefor.” This exclusion does not, however, limit the channels of trade for the cited registration. So, we must presume that registrant’s goods travel through all the ordinary channels of trade. See Squirtco v. Tomy Corp., 697 F.2d 1038 , 216 USPQ 937, 940 (Fed. Cir. 1983) (“[W]here the likelihood of confusion is asserted with a registered mark, the issue must be resolved on the basis of the goods named in the registration and, in the absence of specific limitations in the registration, on the basis of all normal and usual channels of trade and methods of distribution.”) (citation omitted). See also In re Diet Ctr. Inc., 4 USPQ2d 1975, 1976 (TTAB 1987) (although applicant had limited its identification to indicate that its goods were sold only through franchised outlets offering weight-reduction services, the cited registration’s identification contained no limitations as to trade channels or classes of customers; thus, it must be presumed that registrant’s goods travel through all the ordinary channels of trade). Here, the evidence supports a finding that a consumer would be likely to encounter one product while purchasing the other. As previously discussed, the Examining Attorney offers specific evidence of windshield wiper blades, wiper frames, fuel filters, and other vehicle parts being sold online, in proximity to each other, through major Serial No. 87862875 - 21 - retailers such as Amazon, Advance Auto Parts, and Auto Zone, just to name a few.22 Also, the record lacks any evidence that the goods offered under the cited registration flow through limited, or distinct, channels of trade; or that possible consumers of the goods of either mark are somehow different from the ordinary consumer. Accordingly, we find that this DuPont factor weighs in favor of finding a likelihood of confusion. III. Conclusion Because the marks are similar, the goods are related, and they are offered in the same channels of trade to the same classes of consumers, we find that Applicant’s mark HYBEAM for “parts for automobiles, namely, windshield wiper frames and blades, excluding carburetors, fuel filters, fuel regulators for regulating and reducing the pressure of gaseous fuel supplied to an engine, and parts therefor” is likely to cause confusion with the registered mark BEAM for “vehicle parts, namely, carburetors, fuel filters, fuel regulators for regulating and reducing the pressure of gaseous fuel supplied to an engine.” Decision: The refusal to register Applicant’s mark HYBEAM is affirmed. 22 Supra, pp. 16-17.