Altoz, Inc.

Trademark Trial and Appeal Board

Aug 17, 2021

88625236 (T.T.A.B. Aug. 17, 2021)

Mailed: August 17, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
———
In re Altoz, Inc.
———
Serial No. 88625236
———
Glen E. Schumann and Michael A. Bondi, Moss & Barnett, for Altoz, Inc.
Tracy Cross, Trademark Examining Attorney, Law Office 109, Michael Kazazian,
Managing Attorney.
———
Before Zervas, Mermelstein, and Lebow, Administrative Trademark Judges.
Opinion by Mermelstein, Administrative Trademark Judge:
Applicant seeks to register the standard-character mark TRX on the Principal
Register for “[z]ero turn riding lawn mowers,” in International Class 7.1
The Examining Attorney finally refused registration under Trademark Act Sec-
tion 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to cause
confusion or mistake or to deceive in view of the typed2 mark TRX, registered for
“[a]ll terrain vehicles and structural parts therefor,” in International Class 12.3

1 Filed September 20, 2019, pursuant to Trademark Act § 1(a), 15 U.S.C. § 1051(a), alleging
first use and use in commerce as of September 21, 2016.
2 “Prior to November 2, 2003, ‘standard character’ drawings were known as ‘typed’ drawings.
. . . A typed mark is the legal equivalent of a standard character mark.” TRADEMARK MANUAL
OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (July 2021).
3 Registration No. 3199168, issued January 16, 2007, renewed.
This Opinion is not a
Precedent of the TTAB
Serial No. 88625236
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We affirm the refusal to register.
I. Evidentiary matters
In its opening brief, Applicant listed a number of third-party registrations and
attached copies of the registrations. App. Br., 4 TTABVUE 4–5, 10–46. The Examin-
ing Attorney objected to consideration of these registrations submitted for the first
time on appeal. Ex. Att. Br., 6 TTABVUE 4. In its reply brief, Applicant
“acknowledge[d] the objection to the third party registrations submitted with the Ap-
peal Brief,” Reply Br., 7 TTABVUE 2, and does not argue against it.
We sustain the objection. The record in an application should be complete prior to
the filing of an appeal. Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). We have not
considered the third-party registration evidence submitted with Applicant’s brief.
Applicant also attached to its opening brief two Wikipedia articles. App. Br., 4
TTABVUE 47–62 (“All-terrain vehicle”); 4 TTABVUE 63–76 (“Lawn mower”). Our
precedent is clear: New evidence attached to a brief will only be considered if the
nonoffering party (1) does not object and (2) discusses the untimely evidence or oth-
erwise affirmatively treats it as properly of record. In re Litehouse Inc., 82 USPQ2d
1471, 1475 n.2 (TTAB 2007) (registrations submitted for first time with applicant’s
brief considered because examining attorney did not object and instead presented ar-
guments in rebuttal of this evidence); In re Rodale Inc., 80 USPQ2d 1696, 1699 n.4
(TTAB 2006) (Board considered summary of applicant’s prior registrations presented
for the first time in its appeal brief because the examining attorney did not object and
also presented substantive arguments regarding the registrations); see TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.03 (June 2021). In
this case, although the examining attorney did not specifically object to the Wikipedia
Serial No. 88625236
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articles, neither did she discuss them or otherwise affirmatively treat them as
properly of record. Accordingly, these untimely submitted articles will not be consid-
ered.4
Nevertheless, we take judicial notice5 of the following dictionary definition, which
we find useful for our consideration:
all-terrain vehicle noun
: a small motor vehicle with three or four wheels that is
designed for use on various types of terrain
Merriam-Webster.com Dictionary, https://www.merriam-webster.com. (last accessed
Aug. 4, 2021).
II. Likelihood of Confusion
Our determination under Trademark Act § 2(d) is based on an analysis of the pro-
bative facts in evidence that are relevant to the factors bearing on the issue of likeli-
hood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In considering the evidence, we keep in mind that “[t]he 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.” Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209, 1210 (TTAB 1999). We must consider

4 The Board will not take judicial notice of Wikipedia articles on appeal. In re Jimmy Moore
LLC, 119 USPQ2d 1764, 1768 (TTAB 2016).
5 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Serial No. 88625236
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each du Pont factor for which there is evidence and argument. See, e.g., In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019).
Applicant contends that the refusal to register should be reversed, arguing that
TRX is entitled to a narrow scope of protection, that customers for the goods are so-
phisticated and exercise a high degree of care, and that the goods are dissimilar. The
Examining Attorney addresses the identity of the marks, the similarity of the goods,
and the sophistication of the consumers.
A. Similarity or dissimilarity of the marks
In a likelihood of confusion analysis, we compare the marks in their entireties for
similarities and dissimilarities in 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). Similarity in any one
element may be sufficient to find the marks similar. In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. App’x 516 (Fed. Cir. 2019)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
In this case, Applicant’s mark, TRX, is the same as the mark in the cited
registration. Applicant’s only mention of this du Pont factor is its acknowledgement
that the marks are “similar[ ].” Reply Br., 7 TTABVUE 4. Not surprisingly, we find
that the marks are identical, and thus look alike,6 sound alike, and have the same
connotation and commercial impression. This factor “ ‘weighs heavily’ in favor of a

6 Applicant’s mark and that of the cited registrant are in typed or standard characters. As
such, they could be displayed in any stylization, including the same or similar stylization.
See Trademark Rule 2.52(a); 37 CFR § 2.52(a); see Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 939 (Fed. Cir. 1983) (“the argument concerning a difference in type style is
not viable where one party asserts rights in no particular display”).
Serial No. 88625236
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likelihood of confusion.” In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744,
1748 (Fed. Cir. 2017) (quoting In re Majestic Distilling Co., Inc., 65 USPQ2d at 1201.
B. The similarity or dissimilarity and nature of the goods
In comparing the goods, “[t]he issue to be determined . . . is not whether the goods
. . . are likely to be confused but rather whether there is a likelihood that purchasers
will be misled into the belief that they emanate from a common source.” Helene Curtis
Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989). It is not neces-
sary that the parties’ goods be similar or even competitive to support a finding of
likelihood of confusion. It is sufficient if the goods are related in some manner or that
the conditions surrounding their marketing are such that they would be encountered
by the same persons under circumstances that could, in light of the similarity of the
marks, give rise to the mistaken belief that they come from or are associated with the
same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
We base our determination on the goods as identified in the application and cited
registration. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335,
209 USPQ 986, 988 (CCPA 1981). “When marks appear on identical [goods or] ser-
vices, the degree of similarity necessary to support a conclusion of likelihood of con-
fusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Applicant’s goods are “[z]ero turn riding lawn mowers,” while the goods in the
cited registration are “[a]ll terrain vehicles and structural parts therefor.” Noting that
the goods differ, Applicant argues that “a person looking to purchase a zero turn rid-
ing lawn mower would not view an all-terrain vehicle as being an acceptable substi-
tute and vice versa.” App. Br., 4 TTABVUE 8.
Serial No. 88625236
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We agree with Applicant that its goods and those of the cited registrant differ, and
are not competitive, i.e., prospective purchasers of zero-turn lawn mowers would not
view all-terrain vehicles as an acceptable substitute and vice versa. Nonetheless, “it
is not necessary that the products of the parties be similar or even competitive to
support a finding of likelihood of confusion.” 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)). “Instead, likelihood of confusion
can be found “if the respective products are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Id. The examining attorney
has provided evidence in an attempt to show that the goods are related.
1. Third Party Registration Evidence
The Examining Attorney first points to several third-party registrations in which
the registrant’s goods include “riding mowers” or “lawn mowers”7 on the one hand
and all-terrain vehicles on the other. 6 TTABVUE 8‒11:
Registration No. Mark Relevant Goods
2800753 N2 (stylized) “all terrain vehicles”
and
“riding mowers”
2901999 ROTAX “all-terrain vehicles”
and
“lawn mowers”

7 Applicant points out that its goods “are narrowly defined as zero turn riding lawn mowers.”
Reply Br., 7 TTABVUE 3. While true, it makes little difference for these purposes because
the identification of “lawn mowers” and “riding lawn mowers” in the third-party registrations
must be construed to encompass all such goods, including the more narrowly defined zero-
turn riding lawn mowers. However, we have excluded Registration No. 4599604 from our
consideration. While the registration covered “robotic lawn mowers” at the time of registra-
tion, those goods were deleted by a post-registration amendment, and the registration no
longer covers any kind of lawn mower. In any event, robotic lawn mowers do not encompass
zero-turn riding lawn mowers.
Serial No. 88625236
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Registration No. Mark Relevant Goods
3273163 KYMCO “all terrain vehicles”
and
“lawn mowers”
4011920 AG-PRO “Dealerships in the field of . . .
lawn mowers, [and] all terrain
vehicles.”
4359150 COUNTRY CAT (and de-
sign)
“Retail stores featuring . . . all
terrain vehicles”
and
“lawn mowers”
5200128 SUNBELT RENTALS (and
design)
“all-terrain vehicles”
and
“lawn mowers”
5586958 GALVSTAR “all-terrain vehicles”
and
“lawn mowers”

Ofc. Action (Dec. 21, 2019).8
While such evidence is not proof that the registered marks are in use on a com-
mercial scale or that consumers are familiar with them, “[t]hird-party registrations
that individually cover different items and that are based on use in commerce serve
to suggest that the listed goods . . . are of a type that may emanate from a single
source.” In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (citing In re
Albert Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co.,
6 USPQ2d 1467 (TTAB 1988), aff’d mem., 864 F.2d 149 (Fed. Cir. 1988)). The Exam-
ining Attorney’s registration evidence thus suggests that Applicant’s goods and those
of the registrant are “of a type that may emanate from a single source.”
2. Internet Evidence
Next, the examining attorney submitted evidence of five websites at which both

8 An additional registration, No. 3730498, was cancelled on July 31, 2020, for failure to file
an acceptable declaration under Trademark Act § 8.
Serial No. 88625236
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lawn mowers and all-terrain vehicles are offered:
Website ATV Mower
www.wherethepoweris.com CAN-AM HONDA (walk behind)
www.toolsinaction.com Various “ATV Mowers”9 Various brands (zero-turn
ride-on mower)
www.noltspower.com KAWASAKI Various brands (ride-on)
www.shivercarts.com

TEXTRON SCAG (“lawn mowers”)
www.atlantictractor.net
(John Deere brand)
JOHN DEERE JOHN DEERE (ride-on
mowers, including zero-
turn)

Final Ofc. Action (May 31, 2020).
Again, Applicant emphasizes that its goods are narrowly defined as “zero turn
riding lawn mowers,” and that evidence relating to other kinds of lawn mowers should
not be considered. See App. Br., 4 TTABVUE 6. Unlike interpretation of registrations
where we consider identifications categorically, when considering evidence of use in
the marketplace, we consider the actual use shown. Thus, for these purposes, we as-
sign little probative weight to the evidence from www.wherethepoweris.com (showing
only walk-behind mowers) or www.shivercarts.com (naming only “lawn mowers”
without further description). Walk-behind mowers differ significantly both in price,
see App. Br., 4 TTABVUE 6, and in function from riding mowers of any type. None-
theless, we have considered evidence of ride-on mowers, regardless of their zero-turn
capability. Although zero-turn mowers are typically more expensive than ride-on
mowers lacking that feature, see id., the two kinds of mower are highly similar in

9 This website shows the sale of mower attachments for ATVs, rather than ATVs themselves.
We therefore do not consider this website to show that ATVs are related to zero-turn riding
mowers.
Serial No. 88625236
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purpose and function, and the difference in price — less than $200 — is not large for
an item costing more than $3,000.
The remaining websites — www.noltspower.com and www.atlantictractor.net10 —
are evidence that Applicant’s goods and those of the cited registrant are sold together.
“[E]vidence, such as whether a single company sells the goods and services of both
parties, if presented, is relevant to a relatedness analysis.” Hewlett-Packard v. Pack-
ard Press, 281 F.3d 1261 62 USPQ2d 1001, 1004 (Fed. Cir. 2002).
Taken together, the Examining Attorney’s registration and internet evidence per-
suades us that Applicant’s goods are commercially related to those of the cited regis-
trant. This du Pont factor supports a finding of likely confusion.
C. Strength of TRX
Applicant argues that TRX is entitled to a narrow scope of protection. App. Br., 4
TTABVUE 3–5. That argument, however, relies entirely on the third-party registra-
tions that Applicant submitted with its brief. Id. Because Applicant’s third-party reg-
istration evidence is untimely, Applicant’s argument that TRX is commercially weak
is unsupported by record evidence.11 “[T]he Board need not consider du Pont factors

10 The atlantictractor.net site is particularly relevant because it demonstrates conjoint sale
of John Deere branded ATVs and zero-turn riding lawn mowers.
11 Even if properly submitted, Applicant’s third-party registration evidence would not have
merited a different result. Applicant’s position appears to be that TRX is commercially weak,
i.e., that consumers in the marketplace encounter other uses of similar marks for similar
goods. App. Br., 4 TTABVUE 5 (“Consumers thereby encounter a very large number of marks
that begin with TR such as TRX.”). Nonetheless, registrations are not evidence of use of the
registered marks on a commercial scale. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d
1004, 177 USPQ 462 (CCPA 1973); AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1407, 177
USPQ 268 (CCPA 1973); Richardson-Vicks, Inc. v. Franklin Mint Corp., 216 USPQ 989
Serial No. 88625236
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unsupported by evidence.” In re Morinaga Nyugyo K.K., 120 USPQ2d 1738, 1744
(TTAB 2016) (citing Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4
USPQ2d 1793, 1798 (Fed. Cir. 1987)).
We conclude that TRX is not weak, and is thus entitled to a normal scope of pro-
tection. This factor is neutral.
D. Channels of trade; conditions under which and buyers to
whom sales are made
As demonstrated by the Examining Attorney’s internet evidence, Applicant’s
goods and those of the cited registrant are sold through the same outlets. Nonethe-
less, Applicant argues that because of the significant price of zero-turn riding mowers
and ATVs, “consumers are likely to exercise relatively high level of care when select-
ing in the goods in the cited registration or this application.” 4 TTABVUE 7.
While it is clear that ATVs and zero-turn mowers are not low-cost impulse items,
the significant price of the goods at issue does not eliminate any possibility of confu-
sion. “That the relevant class of buyers may exercise care does not necessarily impose
on that class the responsibility of distinguishing between similar trademarks for sim-
ilar goods. ‘Human memories even of discriminating purchasers . . . are not infalli-
ble.’ ” In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir.
1986) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403,
168 USPQ 110, 112 (CCPA 1970)).

(TTAB 1982). To the contrary, “[t]he probative value of third-party trademarks depends en-
tirely upon their usage,” Palm Bay Imps., 73 USPQ2d at 1693, and Applicant has proffered
no evidence of the registrants’ usage of their marks. While it is true that registrations can be
evidence that a frequently registered term has a descriptive or suggestive meaning, Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015), Applicant does not
allege that TRX has a descriptive or suggestive meaning. Indeed, Applicant admits “that
TRX is not a word in English or any other language.” App. Br., 4 TTABVUE 3.
Serial No. 88625236
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And while the goods at issue are not inexpensive, there is no evidence that buyers
of ATVs and zero-turn mowers are by their nature particularly sophisticated or oth-
erwise unlikely to be confused by the use of identical marks on related goods. We
conclude that the relevant purchasers are ordinary consumers, including unsophisti-
cated purchasers who exercise no more than ordinary care.
We further conclude that the goods at issue are sold in overlapping channels of
trade to ordinary consumers. These factors favor a finding of likely confusion.
III. Conclusion
We find Applicant’s mark to be identical to that in the cited registration, a factor
which weighs heavily in favor of affirmance. Applicant’s goods, while not identical to
those of the registrant, are significantly related, and are sold in the same channels of
trade to ordinary — including unsophisticated — consumers. Upon balancing the fac-
tors, we find that confusion is likely.
Decision: The refusal to register under Trademark Act § 2(d) is affirmed.