Almar Enterprises Ltd.

Trademark Trial and Appeal Board

Feb 25, 2011

No. 77650559 (T.T.A.B. Feb. 25, 2011)

Mailed: February 25, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Almar Enterprises Ltd.
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Serial No. 77650559
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Joseph L. Lazaroff of Law Offices of Joseph L. Lazaroff, for
Almar Enterprises Ltd.

Sara N. Benjamin, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______

Before Cataldo, Ritchie, and Wolfson, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Almar Enterprises Ltd. (“applicant”) filed an application
to register the mark ALLENS NATURALLY, in standard character
form, for goods identified as “liquid and powder laundry
detergents, automatic dishwasher detergent, all purpose
cleaners, dishwashing liquid, glass cleaners, fruit and
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77650559
2
vegetable wash.”1
The Trademark Examining Attorney refused registration of
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 so
resembles the following registered marks, all registered to the
same entity, that when used on or in connection with applicant’s
identified goods, it is likely to cause confusion or mistake or
to deceive:
1. KLEENALEN,2 in typed drawing format, for “liquid all
purpose cleaner”;
2. ALEN PINOL,3 in typed drawing format, for “household
liquid cleaning preparations”;
3. ALEN’S FLASH,4 in typed drawing format, for
“household liquid floor cleaner * but specifically
excluding foaming antimicrobial cleanser *”;

1 Serial No. 77650559, in International Class 3, filed January 15,
2009, pursuant to Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), alleging dates of first use and first use in commerce on
April 22, 1988. We note that a footnote in applicant’s brief
requested “if allowed” to amend the description of its goods, a
request which the examining attorney denied in her brief.
To the extent this was a request for remand, applicant’s request
should have been filed as a separate document, not buried in a
footnote in its brief. See In re Major League Umpires, 60 USPQ2d
1059, 1060 (TTAB 2001). In any event, we do not find “good cause” for
remand, and the request is denied. 37 CFR § 2.142(d); TBMP § 1207.02
(4th ed. 2004).
2 Registration No. 1692309, in International Class 3, issued June 9,
1992, based on first use and first use in commerce on February 25,
1991. Sections 8 and 15 affidavits accepted and acknowledged.
Renewed.
Serial No. 77650559
3
4. ALEN USA,5 in typed drawing format, for “all purpose
liquid cleaning preparations”;
5. ALEN AMERICAS,6 in typed drawing format, for “all
purpose liquid cleaning preparations”; and
6.

for “all purpose household cleaning preparations.”7
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed

3 Registration No. 3516958, in International Class 3, issued October
14, 2008, based on first use and first use in commerce on March 24,
2008.
4 Registration No. 3036439, in International Class 3, issued December
27, 2005, based on first use and first use in commerce on May 29.
2005.
5 Registration No. 3127530, in International Class 3, issued August 8,
2006, based on first use and first use in commerce on May 12, 2006,
and disclaiming the exclusive right to use the term “USA” apart from
the mark as shown.
6 Registration No. 3127529, in International Class 3, issued August 8,
2006, based on first use and first use in commerce on May 12, 2006,
and disclaiming the exclusive right to use the term “AMERICAS” apart
from the mark as shown.
7 Registration No. 1954038, in International Class 3, issued February
6, 1996, based on first use and first use in commerce on December 31,
Serial No. 77650559
4
briefs, and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal 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); see also, In re
Majestic Distilling Company, 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 goods or 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”). For purposes of the likelihood of confusion
analysis, we focus on the most relevant cited registration,
Registration No. 3127529, ALEN AMERICAS. If we find a
likelihood of confusion as to this registration, then we need
not find it as to the others. On the other hand, if we do not
find a likelihood of confusion with this cited registration,
then we would not find it with the other cited registrations
either.

1985. Sections 8 and 15 affidavits accepted and acknowledged.
Renewed.
Serial No. 77650559
5
The Goods and Channels of Trade

The items in the application are identical-in-part to those
in the cited registration. Specifically, the “all purpose
liquid cleaning preparations” identified in the cited
registration are a subset of “all purpose cleaners” identified
in the application. Accordingly, we find these goods to be
overlapping and legally identical.8

The fact that some of applicant’s goods are identical to
registrant’s goods is sufficient to support a finding of
likelihood of confusion with regard to any item of Class 3 goods
identified in in the involved application. See Tuxedo Monopoly,
Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981). Regarding the channels of trade, there is
nothing that prevents applicant from selling its “all purpose
cleaners” and various other products in the same stores, and
indeed on the same shelves, as registrant’s “all purpose liquid
cleaning preparations.” This is particularly true where, as
here, the goods are in-part identical. Accordingly, we find
that these du Pont factors weigh heavily in favor of finding a
likelihood of confusion.

8 The examining attorney also introduced evidence regarding the
relatedness of the remaining goods identified in the application to
the goods in the cited registration. 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). We note that applicant’s
proposed amendment would still include “all purpose cleaners.”

Serial No. 77650559
6
The Marks
Preliminarily, we note that the more similar the goods at
issue, the less similar the marks need to be for the Board to
find a likelihood of confusion. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992). We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that 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
and/or services 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). The proper focus is on the recollection of the average
customer for the goods at issue, who retains a general rather
than specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
Serial No. 77650559
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The mark in the cited registration consists solely of the
words ALEN AMERICAS, in typed drawing format. The term
“AMERICAS” is geographically descriptive, and is disclaimed,
rendering “ALEN” the dominant term in the mark. See In re
National Data Corp., 224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s mark consists solely of the words ALLENS
NATURALLY, in standard character format. The examining attorney
has submitted a definition from Webster’s dictionary of “Allen”
as meaning “a masculine name.” While there is no definition of
record for “ALEN,” (except as a “very rare” surname) we find the
terms to be arbitrary for the goods in both the application and
the cited registration. As applicant points out, the term
NATURALLY serves a double meaning of either suggesting the
“greenness” of its products (appl’s brief at 14) or of
emphasizing the brand -- ALLENS “of course.” Id. In either
case, while we view applicant’s mark in its entirety, we find
that the term “ALLENS” is emphasized, and creates the dominant
commercial impression. Accordingly, again noting that the test
is not a side-by-side comparison, consumers are likely to
overlook the second “L” in applicant’s mark, and view it as an
additional product in applicant’s line of cleaning products and
preparations in the “Americas,” perhaps either in a more “green”
line “NATURALLY” or emphasizing that consumers should once again
choose that brand “of course.” The marks have a similar
connotation and commercial impression.
As for the sight and sound, both marks contain very similar
first terms, “ALEN” or “ALLENS.” Both marks contain a flow of a
Serial No. 77650559
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plural, either with the first word or the second. When spoken,
“ALEN” and “ALLENS” are highly similar in sound.
We note that our precedent has found that adding a word to a
mark does not necessarily obviate likelihood of confusion. See
In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed.
Cir. 2004) (GASPAR’S ALE and JOSE GASPAR GOLD); Cola-Cola
Bottling Co. v. Joseph E. Seagrams & Sons, Inc., 526 F.2d 556
188 USPQ 105 (CCPA 1975) (BENGAL and BENGAL LANCER); Lilly
Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406
(CCPA 1967) (THE LILLY and LILLI ANN); In re U.S. Shoe Corp.,
229 USPQ 707(TTAB 1985) (“CAREER IMAGE” AND “CREST CAREER
IMAGES”); In re Riddle, 225 USPQ 630 (TTAB 1985) (“ACCUTUNE” and
“RICHARD PETTY’S ACCU TUNE”).
Finally, applicant argues that the cited registration is
weak. In support of this argument, applicant mentions that “A
review of TESS records in October, 2009 showed 722 records with
‘allen’ or ‘alen’ in a combined word mark.” (appl’s brief at
15). Applicant did not submit the actual registrations (if
indeed there even are registrations), however, and further
acknowledged that “we concede the Examiner’s point that these
records have limited weight because they were not shown to be
for cleaning preparations, but at the same time the prevalence
of a mark component in many other places subtracts from its
ability to convey distinctiveness.” Id. Since applicant did
not submit registrations into the record, we are not able to
gauge this assertion. In order to make a third-party
registration of record, a copy of the registration, either a
Serial No. 77650559
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copy of the paper USPTO record, or a copy taken from the
electronic records of the Office should be submitted. In re
Volvo Cars of North America Inc., 46 USPQ2d 1455, 1456 n. 2
(TTAB 1998); and In re Duofold Inc., 184 USPQ 638, 640 (TTAB
1974). Merely listing such registrations, or simply referring
to them without any specificity at all, as applicant has done
here, is certainly insufficient to make them of record. In re
Dos Padres Inc., 49 USPQ2d 1860, 1861 n. 2 (TTAB 1998). The
examining attorney’s objection to the discussion of the TESS
records is sustained. Furthermore, even weak marks are entitled
to protection against registration of a similar mark for in-part
identical goods. See Giant Food Inc. v. Rosso and Mastracco,
Inc., 218 USPQ 521 (TTAB 1982).
In sum, we find the similarities of the marks to outweigh
their dissimilarities, and this du Pont factor to also favor
finding a likelihood of confusion.
Actual Confusion
Applicant argues that there is no evidence of actual
confusion despite years of overlap in the marketplace.
A lack of evidence of “actual confusion” carries little weight
in our analysis however, especially in an ex parte context. In
re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2003). Accordingly, we find this du Pont
factor to be neutral.
Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the pertinent du
Serial No. 77650559
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Pont likelihood of confusion factors. We conclude that with in-
part identical goods, legally identical channels of trade, and
similar marks with similar connotations, there is a likelihood
of confusion between applicant’s mark ALLENS NATURALLY for
“liquid and powder laundry detergents, automatic dishwasher
detergent, all purpose cleaners, dishwashing liquid, glass
cleaners, fruit and vegetable wash,” and the registered mark
ALEN AMERICAS for “all purpose cleaning preparations.”

Decision: The refusal to register is affirmed.