No. 86303136 (T.T.A.B. Jul. 14, 2017)

BioLite LLC

Trademark Trial and Appeal BoardJul 14, 2017

No. 86303136 (T.T.A.B. Jul. 14, 2017)

This Opinion is not a Precedent of the TTAB Mailed: July 14, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re BioLite LLC _____ Serial No. 86303136 Jeffrey S. Newman of Loginov and Associates PLLC for BioLite LLC. Howard Smiga, Trademark Examining Attorney, Law Office 102, Mitchell Front, Managing Attorney. _____ Before Shaw, Gorowitz and Lynch, Administrative Trademark Judges. Opinion by Gorowitz, Administrative Trademark Judge: BioLite LLC (“Applicant”) seeks registration on the Principal Register of the mark BASECAMP (in standard characters) for Camping Grills featuring energy generating receptacles and USB-type receptacles, in International Class 211 1 Application Serial No. 86303136 was filed on June 6, 2014, based upon Applicant’s allegation of use of the mark in commerce under Section 1(a) of the Trademark Act, since January 31, 2014. Serial No. 86303136 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the marks in the following registrations owned by Enerco Group, Inc. as to be likely to cause confusion, mistake or deception: • Registration No. 4166953 - BASE CAMP ADVENTURE. COMFORT. INNOVATION. (in standard characters with a disclaimer of CAMP) (Registered July 3, 2012) for: Portable washing machines for clothes, in International Class 7; Portable camp stoves, LED lanterns, portable hot water heaters and portable fridge/freezers, in International Class 11; and Portable furniture, namely folding chairs, in International Class 20. • Registration No. 4818424 for the mark BASECAMP OUTDOOR SYSTEMS (in standard characters with a disclaimer of OUTDOOR SYSTEMS) (Registered September 22, 2015) for: Solid fire starters, in International Class 4, Portable washing machines for clothes, in International Class 7 and Portable camp stoves, LED lanterns, portable hot water heaters, in International Class 11. When the refusal was made final, Applicant filed an appeal and a request for reconsideration. After a remand to the Trademark Examining Attorney, the appeal was resumed when the request for reconsideration was denied. We affirm the refusal to register. Serial No. 86303136 - 3 - I. Likelihood of Confusion 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 Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence of record on these factors, 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.” See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). See also In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). A. Similarity or Dissimilarity of the Goods. We start our analysis with the second du Pont factor and determine the relatedness of Applicant’s goods and Registrant’s 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.’” Anheuser-Busch, LLC v. Innvopak Sys. Pty. Ltd., 115 USPQ2d 1816, 1825 (TTAB 2015) (quoting Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989)). In determining whether Applicant’s goods are related to Registrant’s goods, it is not necessary that the goods of Applicant and Registrant be similar or competitive in Serial No. 86303136 - 4 - character to support a holding of likelihood of confusion; it is sufficient for such purposes to establish that the goods are related in some manner or that conditions and activities surrounding marketing of these goods are such that they would or could be encountered by same persons under circumstances that could, because of similarities of marks used with them, give rise to the mistaken belief that they originate from or are in some way associated with the same producer. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); Schering Corp. v. Alza Corp., 207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corp. v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978). In our analysis, we focus on the wording of the application and registrations, rather than what the record may reveal regarding Applicant’s and Registrant’s particular goods, because “‘the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application.’” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Houston Computer Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). Applicant’s goods are identified as “camping grills featuring energy generating receptacles and USB-type receptacles.” Both registrations include “portable camp stoves,” which appear to be the closest to Applicant’s goods. Thus we must determine whether Applicant’s “camping grills featuring energy generating receptacles and Serial No. 86303136 - 5 - USB-type receptacles” are related to “portable camp stoves.” The record establishes that they are.2 A “camp stove” is “a small portable stove for cooking or heating used especially by campers or picnickers.” A “stove,” in turn, is defined as “a portable or fixed apparatus that burns fuel or uses electricity to provide heat (as for cooking or heating).”3 These definitions establish that portable camp stoves encompass a camping grill, which is a portable apparatus that burns fuel to cook. Other evidence in the record further supports this conclusion. The Examining Attorney introduced webpages from Applicant’s website, which include both a picture and a description of Applicant’s BASECAMP camping grill.4 2 In its appeal brief, Applicant describes the goods as issue by stating: “[t]hey are both cooking devices, but only one produces electrical power.” Appeal Brief, 7 TTABVUE 8. 3 We take judicial notice of the definitions of “camp stove” and “stove.” Merriam-Webster On- Line Dictionary, ”Camp Stove” and “Stove.” Merriam-Webster.com. https://www.merriam- webster.com/ dictionary/camp stove and https://www.merriam-webster.com/dictionary/stove. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format, In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). 4 August 28, 2014 Office Action, BioLite website, www.biolitestove.com, TSDR p. 14. All citations to the Trademark Status and Document Retrieval (TSDR) database are to the PDF version of the documents. Serial No. 86303136 - 6 - The BioLite BaseCamp is a complete off-grid cooking and energy solution for groups, powered by wood. Using only fallen branches or small pieces of firewood, you can make wood-fired meals and charge your devices all at the same time. It’s a smart alternative to fossil-fueled stoves, creating an elevated cooking fire that burns smarter than any campfire you’re used to. Applicant’s own website notes that the BioLite BaseCamp is used to “cook & boil” as well as to grill. On various other websites, Applicant’s goods are referred to as the “BioLite BaseCamp Stove,” see, e.g. Amazon.com,5 REI,6 Uncrate.com,7 and 5 Id., Amazon.com, TSDR p. 21. 6 May 10, 2016 Office Action, www.REI.com, TSDR p.21. 7 Id., www.uncrate.com, TSDR p. 20; also referenced in April 15, 2015 Response. TSDR p. 12. Serial No. 86303136 - 7 - Kickstarter.com.8 Applicant’s goods also appear in the GearFinder portion of the Backpacker.com website under “Spring Gear Guide 2015 - Camp Stoves,” where they are referred to as the “BioLite – BaseCamp Stove” … and where the purpose of goods is stated as: “[w]ith the camp stove, paddlers and basecampers can cook over wood while powering their electronics.9 In the February 20, 2014 issue of GizMag.com, Applicant’s goods are described as “gadget-charging portable stove … [which] can serve as both grill and stove…”10 Thus, Applicant’s camping grills, which can be described as a specific type of portable camp stove, are subsumed by the identification “portable camp stoves” in the cited registrations. In other words, “portable camp stoves,” by definition include portable camp grills, including those such as Applicant’s which also power electronics. The primary purpose of Applicant’s goods is to grill food, and regardless, Registrant’s identification has no limitations on the type of portable camp stoves, such that it embraces stoves or grills with specific features. Accordingly, we find the goods to be legally identical and thus, the second du Pont factor favors a finding of likelihood of confusion. B. Similarity or Dissimilarity of the Channels of Trade and Sophistication of Purchasers. It is well established that absent restrictions in the application and registration, identical goods and services are presumed to travel in the same channels of trade to 8 Id., www.kickstarter.com, TSDR p. 33. 9 Id., www.backpacker.com, TSDR p. 44. 10 Id., www.gizmag.com, TSDR p. 7. Serial No. 86303136 - 8 - the same class of purchasers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d, 1905, 1908 (Fed. Cir. 2012). Because the goods, as identified, are legally identical, they are presumed to travel in the same channels of trade to the same classes of purchasers, which in this case are campers. Moreover, Applicant admits that the goods “can travel in the same channel of trade.” Appeal Brief, 7 TTABVUE 8-9. Applicant attempts, however to distinguish its goods by arguing that “its goods cost significantly more than Registrant’s, in part because of the additional thermoelectric technology that is included in its goods.” Id. at 8. As such Applicant contends that “although Applicant’s goods can travel in the same channels of trade, this alone does not show that consumers would consider that the goods emanate from the same source. The Registrant’s products are propane stoves, while Applicant’s are wood burning stoves that create electrical power.” Id. at 8-9. As discussed above, it is the identification of goods that determines the relationship between the goods, not the goods themselves. In the Dixie Rests. case, the Federal Circuit found that: Likelihood of confusion must be determined based on an analysis of the mark as applied to the [goods and/or] services recited in applicant’s application vis-a-vis the [goods and/or] services recited in [a] … registration, rather than what the evidence shows the [goods and/or] services to be. In re Dixie Rests. Inc., 41 USPQ2d at 1534, quoting Canadian Imperial Bank v. Wells Fargo Bank, N.A. , 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). The goods identified in the cited registrations are not restricted to propane stoves, but rather are broadly identified as portable camping stoves. Thus, they are presumed to travel Serial No. 86303136 - 9 - in the same channels of trade as Applicant’s “camping grills featuring energy generating receptacles and USB-type receptacles,” which Applicant defines as “wood burning stoves that create electrical power.” Regarding consumer sophistication, there is no evidence that any of these goods are sold to sophisticated purchasers. Moreover, the fact that “the relevant class of purchasers may exercise care does not necessarily impose on that class the responsibility of distinguishing between similar marks for similar [goods or] services. Human memories even of discriminating purchasers are not infallible.” In re Research and Trading Corp., 793 F2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (internal citation omitted). Therefore, the third du Pont factor (channels of trade) favors a finding of likelihood of confusion and the fourth du Pont factor (sophistication of customers) is neutral. C. Similarity or Dissimilarity of the Marks. We finish our analysis with the first du Pont factor, the similarity or dissimilarity of the marks. In comparing the marks we must consider the appearance, sound, connotation and commercial impression of the marks at issue. Palm Bay Imports, 73 USPQ2d at 1692. The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). Serial No. 86303136 - 10 - The marks at issue are Applicant’s mark, BASECAMP in standard characters, and the cited marks, BASE CAMP ADVENTURE. COMFORT. INNOVATION. and BASECAMP OUTDOOR SYSTEMS, both in standard characters. Applicant admits that “[t]here is a similarity in use of these words [‘base’ and ‘camp’] insofar as each of these marks comprises in part these words.” Appeal Brief, 7 TTABVUE 4. Despite this admission, Applicant contends that there is no likelihood of confusion because “[t]the terms ‘Base’ and ‘Camp’ shared by Applicant’s mark and the cited marks are weak, diluted, and only entitled to a narrow scope of protection. To support this argument, Applicant asserts that “at least there are approximately 20 live registrations including ‘BASE’ and ‘CAMP’ for various services and goods, no party has an exclusive right to ‘BASECAMP,’ except as conferred by the USPTO for specific goods and services.” Id., pp. 6-7. Not only has Applicant failed to introduce any of these “registrations” into evidence, Applicant has not provided ANY information about such registrations.11 To determine whether the marks are similar, we must review them in their entireties, since “[t]he similarity or dissimilarity of the marks is determined based on the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). However, “there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided 11 Mere listings of registrations are not sufficient to make the registrations of record and the Board may not consider them in its decision. See In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (lists of registrations are of no probative value since they do not provide information, i.e. goods and services). See also Trademark Trial and Appeal Board Manual of Procedure (TBMP) §1298.02 (June 2017). Serial No. 86303136 - 11 - the ultimate conclusion rests on a consideration of the marks in their entireties.” Id. The first word in a mark is frequently the most dominant portion of a mark [which is given the most weight] since it is the most likely to be impressed upon the mind of the purchaser and to later be remembered. See Palm Bay Imports, 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered.”). The dominant feature, which is the common element in both of the cited marks is the term “BASECAMP” depicted as both a single word and two words, “BASE CAMP.”12 Applicant has adopted this term and added nothing thereto. As in the Chatam Int’l case when viewed in their entireties with the non-dominant features disclaimed in the cited marks, BASE CAMP ADVENTURE. COMFORT. INNOVATION. and BASECAMP OUTDOOR SYSTEMS create a very similar commercial impression to Applicant’ mark BASECAMP. In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in their entireties with 12 The presence or absence of a space between virtually the same words is not a significant difference. Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (“There is no question that the marks of the parties [STOCKPOT and STOCK POT] are confusingly similar. The word marks are phonetically identical and visually almost identical.”) Serial No. 86303136 - 12 - non-dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”). Also, Applicant’s BASECAMP mark could easily be perceived by consumers as a short form of Registrant’s longer marks in which BASE CAMP/BASECAMP dominates. Accordingly, the first du Pont factor favors a finding of likelihood of confusion. D. Conclusion. Having considered all the evidence and argument on the relevant du Pont factors, whether discussed herein or not, we find that there is a likelihood of confusion between Applicant’s mark BASECAMP (in standard characters) for “camping grills featuring energy generating receptacles and USB-type receptacles” and the cited marks BASE CAMP ADVENTURE. COMFORT. INNOVATION. and BASECAMP OUTDOOR SYSTEMS for “portable camp stoves.” Decision: The refusal to register Applicant’s mark BASECAMP is affirmed.