All Seasons Feeders, Ltd.

Trademark Trial and Appeal Board

Sep 6, 2017

No. 86699952 (T.T.A.B. Sep. 6, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: September 6, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re All Seasons Feeders, Ltd.
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Serial No. 86699952
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S. Roxanne Edwards of Klemchuk LLP,
for All Seasons Feeders, Ltd.
Natalie Polzer, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
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Before Zervas, Shaw and Goodman,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
All Seasons Feeders, Ltd. (“Applicant”) seeks registration on the Principal
Register of the mark:

Serial No. 86699952
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for “barbeque grills,” International Class 11.1 The description of the marks reads:
“The mark consists of a three-dimensional configuration of the octagonal firebox of
an outdoor grill with equal length sides. The matter shown in dotted lines serves to
show positioning of the mark and is not part of the mark.” Applicant claims the mark
has acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f).
Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used on the identified goods, so
resembles the following three commonly-owned marks registered for “outdoor cooking
grills,” in International Class 11:
2 3 4

1 Application Serial No. 86699952, filed on July 21, 2015 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging a date of first use and first use in commerce of May 1, 2010.
2 Registration No. 2372122, issued on August 1, 2000; renewed. The description of the mark
reads: “The mark consists of outdoor grill design featuring an octagonal housing with dual
chimneys thereon.”
3 Registration No. 2914040, issued on December 28, 2004; renewed. The description of the
mark reads: “The mark consists of the octagonal firebox portion of an outdoor grill with dual
chimneys thereon. The matter shown in dotted lines serves to show positioning of the mark
and is not part of the mark.”
4 Registration No. 2915459, issued on January 1, 2005; renewed. “The description of the mark
reads: The mark consists of the configuration of the octagonal firebox of an outdoor grill. The
matter shown in dotted lines serves to show positioning of the mark and is not part of the
mark.”
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When the refusal was made final, Applicant appealed. After filing its brief,
Applicant requested remand to the Examining Attorney for consideration of a request
for reconsideration, including an amended drawing. The Examining Attorney
accepted the amended drawing shown above, but otherwise denied the request for
reconsideration. The appeal resumed and the case is fully briefed. We affirm the
refusal to register.
Analysis
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We
have considered each du Pont factor that is relevant. See M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”).
The only significant difference between the three cited marks is that in the first
two marks, the “dual chimneys” on the top of the grills are part of the mark, whereas
in the third mark the “dual chimneys” are not claimed as part of the mark. We
therefore focus our analysis on the third mark, Registration No. 2915459, which is
most similar to Applicant’s mark. If we do not find a likelihood of confusion with this
registered mark and its associated goods, then there would be no likelihood of
Serial No. 86699952
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confusion with the marks in the other registrations. See In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. The similarity of the goods, channels of trade, and classes of purchasers
We begin with the similarity of the respective goods. Both the application and the
registration are for legally identical goods: “barbeque grills” and “outdoor cooking
grills.” Applicant admits that, despite the slight difference in wording, “[b]oth
Applicant’s and Registrant’s goods are barbeque grills.”5
Additionally, because the goods are legally identical, and there are no restrictions
in the identification of goods, we must presume that the grills are sold in all normal
trade channels and to all normal classes of purchasers for such goods, and that the
channels of trade and classes of purchasers of Applicant’s and Registrant’s goods are
the same. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 76 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re Yawata Iron & Steel Co., Ltd., 403
F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods,
the channels of trade and classes of purchasers are considered to be the same).
The du Pont factors regarding the similarity of the goods, channels of trade, and
classes of purchasers favor a finding of a likelihood of confusion.
Notwithstanding the legal identity of the respective goods, Applicant argues that
“this factor should be given little weight since the marks at issue are comprised of
product configuration trade dress.” As Applicant explains:
In other words, some measure of product similarity will
always be present in cases involving product configuration

5 Applicant’s Reply Br., p. 1, 16 TTABVUE 2.
Serial No. 86699952
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trade dress. Here, the marks at issue are comprised of a
product configuration trade dress of a barbeque grill. As
such, the relevant goods are necessarily going to be the
same, i.e., grills. The similarity of the goods should
therefore be afforded little probative value in the likelihood
of confusion analysis and other factors should be given
greater weight (i.e., the differences between Applicant’s
Mark and the Cited Marks).6
Applicant similarly argues that the du Pont factor relating to channels of trade should
be given little probative value:
Likewise, whether the goods are similar and marketed
through the same channels of trade is of little probative
value. This factor is designed for application to
noncompeting products since competing products are, by
nature, generally marketed through similar trade
channels. This factor therefore carries very little weight
toward establishing the probability of confusion in product
configuration trade dress cases where the goods are
necessarily similar and competing. In fact, this factor will
rarely, if ever, need to be considered in a product
configuration trade dress case since the goods at issue will
by definition be in competition. Rather, the focus should be
on other factors, as in the present case.7
These arguments are unpersuasive. Similarity of the respective goods is a key
consideration of the likelihood of confusion analysis. 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.”). Moreover, Applicant’s
suggestion that these du Pont factors are of “little probative value” would have us
virtually discard these factors. As the predecessor to our primary reviewing court has

6 Id.
7 Id. at 3.
Serial No. 86699952
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said: “We find no warrant, in the statute or elsewhere, for discarding any evidence
bearing on the question of likelihood of confusion.” Du Pont, 177 USPQ at 567.
Further, adoption of Applicant’s argument would have a perverse effect on the
likelihood of confusion analysis—it would reduce a registrant’s scope of protection as
a competitor’s goods come closer to those of the registrant. Such an argument strains
credulity. Rather, it is the newcomer who must avoid confusion with the senior user.
“[I]t is the affirmative duty of the newcomer to take reasonable precautions in the
selection of a mark, so as to avoid needless public confusion and private injury by the
invasion of the field previously occupied by another.” Kalart Company, Inc. v. The
Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139, 141 (CCPA 1958), citing Waterman
Co. v. Modern Pen Co., 235 U.S. 88, 94 (1914).
Accordingly, we see no reason to ignore the legal identity of the goods in order to
give “little probative value” to the du Pont factors regarding similarity of the goods
or channels of trade. See In re Homeland Vinyl Prods., Inc., 81 USPQ2d 1378, 1382
(TTAB 2006) (Du Pont factors apply to likelihood of confusion analysis between
product configuration marks).
Applicant also argues that “[c]onsumers have grown to rely on other factors to
distinguish the trade dress such as the products’ labeling and packaging, trademarks,
and advertising.”8 This argument is unavailing in ex parte proceedings. We must
make our determination regarding the similarities between the services based on how
they are identified in the subject application and cited registration, respectively, not

8 Id. at 2.
Serial No. 86699952
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on any extrinsic evidence of actual use. Stone Lion Capital Partners, 110 USPQ2d at
1162.
The du Pont factors regarding similarity of the goods, channels of trade, and
classes of purchasers favor a finding of a likelihood of confusion.
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression
Next, we consider the similarity of the marks. In comparing the marks we must
consider their appearance, sound, connotation and commercial impression. Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). The emphasis of our analysis must be on the
recollection of the average purchaser who normally retains a general, rather than
specific, impression of trademarks. Although we consider the mark as a whole, “in
articulating reasons for reaching a conclusion on the issue 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. . . .” In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
Inasmuch as the respective marks are product configurations and therefore, like
design marks, cannot be pronounced, the issue of likelihood of confusion must be
decided primarily on the basis of the overall visual similarity of the marks. Cf. In re
ATV Network Ltd., 522 F.2d 925, 193 USPQ 331, 332 (CCPA 1977); In re Burndy
Corp., 300 F.2d 938, 133 USPQ 196, 197 (CCPA 1962). Moreover, because the matter
depicted in broken or dotted lines is not part of the mark, it should not be considered
Serial No. 86699952
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in determining likelihood of confusion. In re Homeland Vinyl Prods, Inc., 81 USPQ2d
at 1382.
To recap, Applicant’s mark appears below, with the mark description stating: “The
mark consists of a three-dimensional configuration of the octagonal firebox of an
outdoor grill with equal length sides.”

The mark in Registration No. 2915459 appears below, with the mark description
stating: The mark consists of the configuration of the octagonal firebox of an outdoor
grill.

Discounting the matter in dotted lines, as we must, the most obvious similarity
between the mark is that they both consist of the configuration of a grill with a three
dimensional “octagonal firebox.” In addition, both grills are greater in width than
Serial No. 86699952
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height or depth. Conversely, the main differences between the marks appear to be (1)
Applicant’s mark has two lids to Registrant’s one, and (2) Registrant’s firebox does
not appear to be precisely octagonal in cross section.
Applicant argues that “[t]he differences in the shape of the chambers, coupled with
the inclusion of a single cooking chamber in the Cited Marks and a double cooking
chamber in Applicant’s Mark, creates significantly distinct commercial impressions
for the marks so that confusion is unlikely.”9
In response, the Examining Attorney argues that, notwithstanding these
differences, “the drawings of the marks at issue demonstrate that the shared
dominant feature in creating the commercial impression is the octagonal shape of a
grill firebox configuration design.”10 Regarding the two lids or “cooking chambers” of
Applicant’s grill, the Examining Attorney argues that the evidence of record
“demonstrates that the same entities commonly manufacture and/or provide the
relevant goods, e.g. barbecue grills with two cooking chambers and outdoor cooking
grills with one cooking chamber, and markets these goods under the same mark.”11
In particular, the Examining Attorney points to a number of third-party web sites
showing that manufacturers commonly offer grills under the same mark with one and
two lids, or “cooking chambers.”12 In fact, Applicant’s own specimens show it offers

9 Applicant’s Br., p. 6, 4 TTABVUE 8.
10 Examining Attorney’s Br., p. 7, 15 TTABVUE 7.
11 Id. at 12.
12 Office Action of February 15, 2017, pp. 2-95.
Serial No. 86699952
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for sale under the same mark, one-, two-, and three-chambered octagonal grills,
including the single chamber model below.
13
This evidence, that consumers are accustomed to seeing grills offered under the same
mark with one and two lids, establishes that the number of lids would be perceived
more as a feature of a particular grill rather than as an element of a trademark.
Nor do we find significant the fact that Registrant’s grill, as shown in the drawing
of the mark, is not precisely octagonal. The appropriate emphasis is on the
recollection of the average customer, who normally retains a general rather than a
specific impression of trademarks or service marks. Spoons Rests., Inc. v. Morrison,
Inc., 23 USPQ2d 1735, 1741 (TTAB 1991) (citations omitted), aff’d., No. 92-1086 (Fed.
Cir. June 5, 1992). See Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212

13 Application of July 21, 2015, TSDR p. 5.
Serial No. 86699952
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USPQ 233, 234 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734,
1740 (TTAB 2014). Moreover, the description of Registrant’s mark simply describes
an “octagonal firebox.” A description of the mark is part of the registration and helps
define the scope of the registration. See Trademark Rules 2.37 and 2.52, 37 C.F.R.
§§ 2.37 and 2.52. Notwithstanding slight variations in the proportions of Registrant’s
“octagonal firebox” grill, we find the dominant feature of both grills to be a similar
“octagonal firebox” configuration.
Accordingly, this du Pont factor favors a finding of a likelihood of confusion.
C. Aesthetic Functionality of Registrant’s mark
Citing the Supreme Court’s decision in TrafFix Devices, Inc. v. Mktg. Displays Inc.,
532 U.S. 23 (2001), Applicant argues that the refusal to register its mark “effectively
places all competitors at a disadvantage by eliminating all aesthetically appealing
octagonal shaped grill chambers from the available designs.”14 We disagree.
Applicant’s argument is a thinly-veiled collateral attack on the cited registrations.
Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), provides that a certificate of
registration on the Principal Register shall be prima facie evidence of the validity of
the registration, of the registrant’s ownership of the mark, and of the registrant’s
exclusive right to use the mark in commerce in connection with the goods or services
specified in the certificate. During ex parte prosecution, an applicant will not be heard
on matters that constitute a collateral attack on the cited registration. See In re Dixie
Rests., Inc., 105 F.3d 1405, 1408, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997).

14 Applicant’s Br., p. 9, 4 TTABVUE 9.
Serial No. 86699952
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D. Conclusion
Having considered all the evidence and arguments on the relevant du Pont factors,
we conclude that there is a likelihood of confusion between Applicant’s octagonal grill
configuration mark and Registrant’s octagonal grill configuration mark.

Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.