All Pro Exercise Products, Inc.

Trademark Trial and Appeal Board

Jul 8, 2004

No. 76334634 (T.T.A.B. Jul. 8, 2004)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
Trademark Trial and Appeal Board
____________
In re All Pro Exercise Products, Inc.
___________
Serial No. 76334634
___________
Myron Amer for All Pro Exercise Products, Inc.
Ronald McMorrow, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
____________
Before Simms, Hanak and Holtzman, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
All Pro Exercise Products, Inc. (applicant) seeks to
register in typed drawing form WATER WALKER for “a weight
adjustable water exercise belt worn during a walking
exercise in the pool.” The intent-to-use application was
filed on November 9, 2001. Applicant has disclaimed the
exclusive right to use WATER apart from applicant’s mark in
its entirety.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
that applicant’s mark, as applied to applicant’s goods, is
likely to cause confusion with the nearly identical mark
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B. Mailed: 7/8/2004
Ser. No. 76334634
2
WATER WALKERS, previously registered in typed drawing form
for “sporting articles and playthings, namely flotation
shoes and flotation shoes with support poles for ‘walking’
upon the surface of bodies of water.” Registration No.
2,152,864.
When the refusal to register was made final, applicant
appealed to this board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
In any likelihood of confusion analysis, two key,
although not exclusive considerations are the similarities
of the marks and the similarities of the goods. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated
by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.”).
Considering first the marks, they are virtually
identical. The fact that applicant’s mark is in the
singular form and the registered mark is in the plural form
is inconsequential. Thus, the first Dupont “factor weighs
heavily against applicant” because applicant’s mark is
virtually identical to the registered mark. In re Martin’s
Ser. No. 76334634
3
Famous Pastry Shoppe, Inc., 748 F.2d 565, 223 USPQ 1289,
1290 (Fed. Cir. 1984).
Turning to a consideration of applicant’s goods and
the goods of the cited registration, we note that because
the marks are virtually identical, their contemporaneous
use can lead to the assumption that there is a common
source “even when [the] goods or services are not
competitive or intrinsically related.” In re Shell Oil
Co., 922 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
In this case, we find that applicant’s goods and
registrant’s goods are clearly related. At page 3 of its
brief, applicant argues that “the use of the respective
goods in a swimming pool is after their purchase and is
irrelevant to how the trademark dictates the purchasing
decision.” We simply disagree. If a consumer were to see
one product in use in a pool, and later see the other
product with the virtually identical mark on it in a store,
he or she would naturally assume that both aquatic products
emanated from a common source. Likewise, if a consumer for
the first time saw both products in a store, he or she
would make the same conclusion that both aquatic products
emanated from a common source.
Decision: The refusal to register is affirmed.
Ser. No. 76334634
4