Apollo Colors, Inc.

Trademark Trial and Appeal Board

Jul 7, 2005

No. 75942300 (T.T.A.B. Jul. 7, 2005)

Mailed:
July 7, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Apollo Colors, Inc.
________

Serial No. 75942300
_______

Joseph V. Norvell of Brinks Hofer Gilson & Lione for Apollo
Colors, Inc.

Tina L. Snapp, Trademark Examining Attorney, Law Office 116
(M. L. Hershkowitz, Managing Attorney).
_______

Before Seeherman, Zervas and Kuhlke, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Apollo Colors, Inc. has appealed from the final
refusal of the Trademark Examining Attorney to register
APOLLO as a trademark for “color pigments for use in the
graphic arts industry.”1 Registration has been refused
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75942300
2
the mark APOLLO, previously registered for “dye stuffs and
their intermediates, pigments and mordants for use in the
manufacture of textile, leather and paper,”2 that, as used
on applicant’s identified goods, it is likely to cause
confusion or mistake or to deceive.
The appeal has been fully briefed.3 Applicant did not
request an oral hearing.
We reverse the refusal of registration.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and/or

1 Application Serial No. 75942300, filed March 13, 2000, and
asserting first use and first use in commerce on July 1, 1970.
2 Registration No. 1810363, issued December 14, 1993; Section 8
and 15 affidavits accepted and acknowledged; renewed.
3 With the denial of applicant’s request for reconsideration the
Examining Attorney submitted materials taken from certain third-
party websites. In its brief applicant stated that the printouts
submitted by the Examining Attorney of two of the websites were
incomplete, and attached additional pages from these same
websites. Because applicant had no opportunity to submit these
pages prior to the filing of its appeal brief, we have treated
these additional pages as of record. See In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986).
Ser No. 75942300
3
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
The marks, of course, are identical, which is a factor
that favors a finding of likelihood of confusion.
Applicant has argued that APOLLO is a weak mark, based on a
search of USPTO records showing 498 registrations (of which
123 are “live”) for marks which include the term APOLLO.
The submission from the USPTO TESS database lists the
marks, registration numbers, and whether the registration
is “live” or “dead.” This mere listing of registrations
numbers and marks is not sufficient to make the
registrations of record. See In re Duofold Inc., 184 USPQ
638 (TTAB 1974) (the submission of a list of registrations
is insufficient to make them of record). Furthermore, even
if the Examining Attorney had treated the list of record
(and she did not), it is of no probative value, since it
does not indicate the goods or services for which the marks
are registered. Thus, we cannot ascertain whether APOLLO
has a suggestive significance with respect to the goods
listed in the cited registration of the subject
application. We also take issue with applicant’s statement
that this list indicates that APOLLO has been diluted
Ser No. 75942300
4
through widespread use. Third-party registrations are not
evidence that the marks shown therein are in use. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
The only third-party registration that is of record is
for APOLLO-COAT for “coatings in the nature of interior and
exterior paints, sealer coatings for use on boats, varnish,
wood stain, enamels in the nature of house paints, and
automobile finishing solutions.”4 The Examining Attorney
had cited this registration against applicant’s
application, and then withdrew this refusal. On the basis
of this single third-party registration, we cannot conclude
that the cited registration for APOLLO is weak and entitled
to only a limited scope of protection.
Despite this, however, we believe that the differences
in the channels of trade and the customers for the
applicant’s and the registrant’s goods are sufficient to
avoid any confusion.
The goods of applicant and registrant, as set forth in
the respective identifications, are very specific as to
their customers. Applicant’s pigments are for use in the
graphic arts industry; the registrant’s goods are for use
in the manufacture of textile, leather and paper. There is
no evidence that textile, leather and paper manufacturers
Ser No. 75942300
5
are also engaged in the graphic arts industry. The
Examining Attorney points to a definition of “graphic arts”
submitted with her appeal brief, and of which we take
judicial notice, as “the fine and applied arts of
representation, decoration, and writing or printing on flat
surfaces together with the techniques and crafts associated
with them.”5 Based on this definition, the Examining
Attorney contends that the graphic arts industry “might
include manufacture of printing media of all kinds
including paper, leather, textiles or other flat surfaces.”
Brief, p. 4. However, we think the Examining Attorney goes
too far in asserting, without any evidence, that the “flat
surfaces” referred to in the definition of “graphic arts”
would encompass anything that is flat, including leather or
textiles. More importantly, the pigments that are
identified in the cited registration are used in the
manufacture of leather, textiles and paper; they are not
for use on leather, textiles and paper. Thus, even if
graphic arts were to encompass printing on all flat

4 Registration No. 2554483.
5 Merriam-Webster OnLine, www.m-w.com/cgi-
bin/dictionary?book=Dictionary&va=graphic+arts. The Board may
take judicial notice of dictionary definitions. University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213
USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983).
Ser No. 75942300
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surfaces, the registrant’s pigments would not be used by
those in the graphic arts industry to do such printing.
Because of the different industries in which
applicant’s and the registrant’s pigments are used, and the
different customers, the channels of trade for the goods
must also be considered to be different.
The Examining Attorney has made of record third-party
registrations in an attempt to show that goods of the type
identified in the application and the cited registration
may be sold under a single mark by a single source. Third-
party registrations which individually cover a number of
different items and which are based on use in commerce may
have some probative value to the extent that they serve to
suggest that the listed goods and/or services are of a type
which may emanate from a single source. See In re Albert
Trostel & Sons Co., supra at 1785-86 (TTAB 1993). The
following registrations have been highlighted by the
Examining Attorney in her brief, and are therefore the ones
she presumably believes are most persuasive:6

6 The Examining Attorney also highlighted a registration, No.
2121979, for the BAYER logo. We have not listed the goods in
that registration because it is clear that the logo is in the
nature of a house mark, registered for goods in Classes 1, 2, 3,
4, 5, 6, 17, 22 and 23, ranging from wire ropes to pesticides to
industrial oils to tanning agents for use in the manufacture of
leather to general purpose adhesives for mending broken articles.
Obviously this registration, for a wide variety of goods, is of
Ser No. 75942300
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FLEXOBRITE for “colourants for use in
paint, textiles, ink, plastics, and
rubber; mordants for use in paint,
textiles, inks, plastics, and rubber;
color pigments and color pigment
compositions; printing inks; aqueous
and non-aqueous pigment dispersions for
leather finishing, textile printing,
the printing and mass coloration of
materials, and for use in paint
manufacture”;7

PIGMENTS FOR THE IMAGINATION for “color
pigments, colorants for use in the
manufacture of printers ink, textiles,
plastics, synthetic fibers, paints and
papers; printers ink; pigment
dispersions in aqueous or non-aqueous
forms for use in the manufacture of
printers ink, textiles, paints and
papers; color concentrate compounds for
use in the manufacture of printers ink,
plastics, synthetic fibers, textiles
and paints”;8

HILTON DAVIS for “paints, coloring
matter, colorants, pigment
concentrates, technical dyes and
dyestuffs, color dispersion products
and certified drug and cosmetic

no probative value to show that the goods listed therein are
related.
Our focus on the registrations highlighted by the Examining
Attorney does not mean we have not considered the other third-
party registrations that were submitted. However, they are not
persuasive of a different result herein. Most of the
registrations are based on Section 44 of the Act, rather than use
in commerce. Some are for pigments used in goods that are
specifically different from those identified in the application
and cited registration. See, for example, Registration No.
2721075 for “colorants and color pigments for use in the
manufacture of food, beverages, cosmetics and pharmaceuticals.”
Other registrations identify pigments that are used in the
textile industry, but make no mention of graphic arts, or are for
use in printing but make no mention of textiles, paper or
leather.
7 Registration No. 2266097.
8 Registration No. 2418769.
Ser No. 75942300
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colorants for use in the manufacture of
consumer and industrial products in the
textiles, paints, food products,
cosmetics, pharmaceuticals, printing
and plastics industries”;9

CLARIANT for “dyestuffs for use in the
manufacture and finishing of textiles,
leather, metal, and paper; color
pigments; mordants for use in the
textile, leather, metal, and paper
industries; lacquers in the nature of a
coating”;10 and

HISPERSE for “color pigments, pigment
dispersions and dyestuffs for printing
and dyeing of fibers and textile
materials.”11

The registration for HISPERSE is for pigments used for
printing and dyeing fibers and textiles, and makes no
mention of use in the graphic arts industry. Thus, this
registration is of no value in demonstrating relatedness of
the involved goods. The registration for HILTON DAVIS is
for pigment concentrates for use in the manufacture of
products in the textile and printing industries.
Applicant’s goods, as identified, are for use in the
graphic arts industry, and applicant has further explained
that its products are sold to graphic arts companies, who
use them in lithographic printing applications. An
identification listing pigments for use in the manufacture

9 Registration No. 1975942.
10 Registration No. 2349316.
11 Registration No. 2115379.
Ser No. 75942300
9
of a product that is then used in the printing industry is
not the same as an identification listing a pigment
actually used in the graphic arts industry.
The registrations for FLEXOBRITE and PIGMENTS FOR THE
IMAGINATION include colorants for use in textiles and, in
the case of FLEXOBRITE, colourants for use in inks and, in
the case of PIGMENTS FOR THE IMAGINATION, colorants and
pigment dispersions for use in the manufacture of printers
ink. While ink or printers ink could be considered a
product used in the graphic arts industry, the colorants
used to manufacture ink would not be such a product. As
for the printing inks and printers ink itself, which are
also identified in these registrations, these goods are
different from the color pigments for use in the graphic
arts industry which are identified in applicant’s
application.
Applicant has pointed out that, of the third-party
registrations submitted by the Examining Attorney, only one
registration, No. 2721889 for DAY GLO, specifically refers
to graphic arts in its identification, namely,
“phosphorescent color pigments and dispersions for use in
paints, plastics, coatings and graphic arts.” This
registration also includes “plastics, textiles, coatings
and tracer applications,” a listing that frankly puzzles us
Ser No. 75942300
10
as it appears to be missing some words, since “plastics”
and “textiles” do not belong in Class 2. Because of the
question regarding this listing, we cannot view this
registration as showing the relatedness of applicant’s and
the cited registrant’s goods.
There are some registrations, including the
registration for CLARIANT and FLEXOBRITE, which list “color
pigments” per se. The Examining Attorney points to these
registrations, which do not limit the uses for the color
pigments, and argues that the presumptions of Section 7(b)
of the Act require us to treat this identification as
encompassing all uses for color pigments. We do not agree.
Clearly, a determination of the issue of likelihood of
confusion between the applied-for and registered marks must
be made on the basis of the goods as they are identified in
the involved application and registration. In such
circumstances, if there are no limitations in the
identification, we must presume that the “registration
encompasses all goods of the nature and type described,
[and] that the identified goods move in all channels of
trade that would be normal for such goods.” In re Elbaum,
211 USPQ 639, 640 (TTAB 1981). However, when third-party
registrations are being submitted for the purpose of
showing that goods are related, the same Section 7(b)
Ser No. 75942300
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presumptions do not apply. As noted previously, third-
party registrations are not evidence that the marks shown
therein are in use, or that consumers are familiar with
them. They simply “serve to suggest that the listed goods
and/or services are of a type which may emanate from a
single source.” In re In re Albert Trostel & Sons Co.,
supra at 1786 (emphasis added). Therefore, we think the
Examining Attorney gives too broad a reading to a listing
of “color pigments” in a registration by asserting that
such a listing shows that the registrant is using these
pigments in both the graphic arts industry and in the
manufacture of textile, leather and paper. On the other
hand, we also recognize that broad identifications of goods
may be permissible in certain instances, see TMEP
§ 1402.03, and we do not mean to suggest that, unless the
identification in a third-party registration mimics exactly
the identification in the application and the cited
registration, it is of no probative value.
What we are left with, then, is that none of the
third-party registrations specifically covers the identical
goods identified in applicant’s application and the cited
registration. Although there are a few registrations which
arguably could be viewed to include the same goods, we find
that these registrations are not sufficient to demonstrate
Ser No. 75942300
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that companies generally sell both the goods identified in
the application and the goods identified in the cited
registration under a single mark.
The Examining Attorney has also submitted evidence of
third-party websites. Again, we concentrate on the
excerpts from these websites that the Examining Attorney
quoted in her brief, and which she characterizes as “the
relevant parts”:
Sun Chemical Corporation’s Colors Group
is one of the worlds [sic] leading
producers of organic pigments and
dispersions for use as colorants in
printing inks, plastics, paints,
cosmetics, textiles and specialities.
www.sunpigments.com/aboutus.htm

…you can save on your total pigment
cost without sacrificing opacity,
consistency or color. Coatings
applications for HITOX encompass
alkyds, acrylic urethanes, high solids
systems, water reducibles, water bases,
and powder coatings. Plastics uses
include PCV pipe and conduit, color
concentrates, and vinyl siding. HITOX
also finds uses in inks, adhesives,
paper, foundry products, and building
materials.
www.torminerals.com

Please note that we offer pigments
suitable for a wide range of end use
application(s) ie. Offset inks, aqueous
flexographic inks, solvent flexo,
malic, polyamide, vinyl and NC/PA based
inks, PVS, LDPE, JDPE, PP, ABS, cable
grade (plastics), air drying enamel
paints, industrial (OEM) water based
Ser No. 75942300
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paints, textiles, leather, rubber and
paper.
www.amantech.com/index1.html

Anar Chemical Industries is among one
of the fastest growing companies in the
field of Dyes, Pigments &
Intermediates…. Industries we serve …
Paint Industry … Textile Industry
…Leather Industry … Paper Industry …
Inks Industry.
www.anarchem.com

Reviewing these excerpts and the underlying materials
in order, we note that the information about Sun Chemical
Corporation and its Colors Group describes the history of
the group, which originally was two separate companies.
There is no indication about the trademark or trademarks
under which this entity’s pigments are sold, or whether the
pigments for various purposes are all sold under a single
trademark. Nor do the materials indicate that the pigments
are directed to the graphic arts industry.
The second excerpt, for HITOX TiO2, appears to use
HITOX as a trademark for a pigment that can be used in inks
and paper. However, “inks” is mentioned only tangentially;
and it is not clear to what industry the inks are marketed,
or whether the pigments would be sold to those in the
graphic arts industry.
The web materials from which the third excerpt is
taken lists AMANTACH PIGMENTS at the top of the page, and
Ser No. 75942300
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also lists pigments by color and “C.I. number” (e.g.,
Pigment Orange 5), as well as by what appears to be other
generic names (e.g., cadmium, synthetic iron oxide). The
uses for these specific pigments is not indicated, but it
does appear that only AMANTECH PIGMENTS is used to identify
the source of the pigments.
The website from which the fourth excerpt is taken
uses separate pages to list the categories of uses of its
dyes. For example, there is a page headed “Textiles” which
states that it is “one of the leading manufacturers of
textile dyes and offers comprehensive ranges for all
segments of the modern textile finishing industry.”
Another page is headed “Leather” and discusses its
specialty dyes for leather, and lists the dyes by CI name.
Yet another page is headed “Inks” and states that “Anar has
introduced good quality of dyes and pigments for Ink
markets.” The additional pages from the website, submitted
by applicant, show that this company is located in India.
Based on this, applicant argues that there is no evidence
that this company’s goods are sold in the United States.
The website materials provide some tenuous evidence
that a single company may sell pigments used in textiles
and pigments for markets that could include the graphic
arts industry. However, this evidence is quite limited,
Ser No. 75942300
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and is insufficient for us to find that applicant’s and the
registrant’s goods are related.
Even if we were to conclude from the third-party
registrations and Internet evidence that pigments used in
both the graphic arts industry and pigments, dye stuffs and
mordants for use in the manufacture of textile, leather and
paper emanate from a single source, that does not
necessarily demonstrate that the goods are related, such
that confusion is likely to result from the use of the same
or a confusingly similar mark on both.
As the Examining Attorney has pointed out, in quoting
In re International Telephone and Telegraph Corp., 197 USPQ
910, 911 (TTAB 1978), it “is sufficient for purposes herein
that the respective goods of the parties are related in
some manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could because of the similarity of the
marks used therewith, give rise to the mistaken belief that
they originate from or are in some way associated with the
same producer.” (emphasis added). Here, we find that
there is insufficient evidence to show that the goods would
be encountered by the same persons. There is no evidence
that people who are engaged in the graphic arts industry
Ser No. 75942300
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are also engaged in the manufacture of textile, leather and
paper, such that the same purchasers would buy both
products. As a result, it is highly unlikely that there
would be an opportunity for confusion to occur, even from
the use of identical marks, on these goods that are sold to
consumers in different industries. The goods at issue are
not ordinary consumer goods that might be displayed and
sold together in the same retail stores; rather, they are
highly specialized goods sold to sophisticated purchasers
who are engaged in very different businesses.
We recognize that pigments can be sold through the
Internet, and that, in view of some of the website evidence
submitted by the Examining Attorney, we think it possible
that a company who wishes to purchase pigments for use in
the graphic arts industry could access a website that also
sells pigments for the manufacture of textiles, leather or
paper. However, there is no evidence that the products of
multiple companies are offered on a single website, where
consumers might encounter both applicant’s APOLLO pigments
for the graphic arts industry and the registrant’s APOLLO
pigments for the manufacture of textiles, leather and
paper. This possibility for confusion strikes us as being
merely theoretical or de minimis. See Electronic Design &
Sales Inc. v. Electronic Data Systems Corp., 954 F.2d 713,
Ser No. 75942300
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21 USPQ2d 1388, 1391 (Fed. Cir. 1992), “We are not
concerned with mere theoretical possibilities of confusion,
deception, or mistake or with de minimis situations.”
The Examining Attorney also argues that she must
consider any goods in the registrant’s normal fields of
expansion, and that the registrant is entitled to
protection against the registration of a similar mark on a
product that might reasonably be expected to be produced by
it in the normal expansion of its business. In support of
this position, she points to the third-party registrations
and the third-party web pages. Although it might be
possible to argue that it is a normal expansion if a
company that has used its mark on pigments used in a wide
variety of industries began to use its mark on pigments for
the graphic arts industry, that is not the situation here.
Rather, the cited registration is for a very limited
identification--dye stuffs and their intermediates,
pigments and mordants for use in the manufacture of
textile, leather and paper. There is no evidence that the
registrant uses its mark on pigments used in other
industries; on the contrary, here the cited registration
issued in 1993, and there is no suggestion that the
registrant has expanded the use of its mark since that
date. Nor is there evidence that companies that sell
Ser No. 75942300
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pigments only for use in the manufacture of textile,
leather and paper expand to use their marks on pigments in
the graphic arts industry.
In conclusion, we find that, in view of the
differences in the consumers and channels of trade for the
goods, there is no likelihood of confusion between
applicant’s use of the mark APOLLO for color pigments for
use in the graphic arts industry, and registrant’s mark
APOLLO for dye stuffs and their intermediates, pigments and
mordants for use in the manufacture of textile, leather and
paper.
Decision: The refusal of registration is reversed.