BRITA GmbH

Trademark Trial and Appeal Board

May 9, 2018

No. 86796332 (T.T.A.B. May. 9, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: May 9, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re BRITA GmbH
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Serial No. 86796332
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Scott D. Woldow of Smith, Gambrell & Russell, LLP,
for BRITA GmbH
Anna H. Rosenblatt, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Cataldo, Kuczma and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
BRITA GmbH (“Applicant”) seeks registration on the Principal Register of the
mark CCC (in standard characters) for “drinking bottles; drinking bottles for sports;
drink receptacles in the form of bottles; bottles sold empty” in International Class
21.1

1 Application Serial No. 86796332 was filed on October 22, 2015, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.

Serial No. 86796332
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The Trademark Examining Attorney refused registration of the application under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s
mark so resembles the registered mark for “plastic containers, such as
bottles and the like” in International Class 21 as to be likely to cause confusion,
mistake or deceive.2 After the Trademark Examining Attorney made the refusal final,
Applicant appealed to this Board.3 We affirm the refusal to register.
I. Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on 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 Co., 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. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA

Page references herein to the application record refer to the .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal refer to the Board’s TTABVUE docket system.
2 Reg. No. 0673697; issued February 10, 1959; renewed.
3 The Application initially covered other goods in Classes 7, 11 and 21 which were divided out
to a child application after a partial refusal for the Class 21 goods was made final.
Serial No. 86796332
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1976). These factors, and the other relevant du Pont factors now before us, are
discussed below. To the extent that any other du Pont factors for which no evidence
was presented may nonetheless be applicable, we treat them as neutral.
A. Similarity or Dissimilarity of the Respective Goods
We turn first to the du Pont factor regarding the similarity or dissimilarity of the
respective goods.4 The issue of likelihood of confusion must be determined on the basis
of the goods as set forth in the application and the cited registration. Octocom Sys.
Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). In comparing the goods, it is not necessary that they be identical or even
competitive in nature in order to support a finding of likelihood of confusion. The
goods need only be “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.” 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)).
Applicant’s goods are “drinking bottles; drinking bottles for sports; drink
receptacles in the form of bottles; bottles sold empty.” Registrant’s goods are “plastic
containers, such as bottles and the like.” The goods in Applicant’s and Registrant’s
identifications overlap. Registrant’s “plastic containers such as bottles” encompasses
Applicant’s bottles sold empty, drinking bottles, and drink receptacles in the form of

4 Applicant did not address this du Pont factor in its brief nor did it address channels of trade.
Serial No. 86796332
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bottles, which material composition could be plastic. Therefore, we find the goods are
at least in part legally identical.
To establish relatedness of the goods, the Examining Attorney has made of record
copies of eight use-based third-party registrations, showing that a common mark has
been registered by the same entity for both plastic containers and plastic bottles, or
plastic water bottles.5 These third-party registrations may serve to suggest that the
types of goods involved herein may emanate from a single source. See In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although third-party
registrations are “not evidence that the marks shown therein are in use on a
commercial scale or that the public is familiar with them, [they] may nonetheless
have some probative value to the extent that they may serve to suggest that such
goods and/or services are of a type which may emanate from a single source”); In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
Additionally, the Examining Attorney submitted website evidence to establish
that Applicant’s goods and Registrant’s goods commonly emanate from a single
source.6
For example,
The Rubbermaid website offers travel mugs, water and hydration
bottles, insulated bottles, and entrée, sandwich, and snack containers.

The Cary Company website offers a variety of plastic and glass bottles
as well as plastic tubs and containers.

5 August 2, 2017 Office Action, pp. 11-35.
6 September 6, 2016 Office Action, pp. 2-13; August 2, 2017 Office Action, pp. 2-9.
Serial No. 86796332
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The SKS Bottle & Packaging Inc. website offers plastic bottles, plastic
jars, plastic containers and glass bottles.

The Uline website offers plastic containers and plastic bottles.

The Freund Container and Supply website offers plastic bottles and
plastic containers.

We find the second du Pont factors weighs in favor of finding a likelihood of
confusion.
B. Channels of Trade and Classes of Purchasers

As to the trade channels and classes of purchasers, because the recited goods in
the application and registration are legally identical in part and both Applicant’s and
Registrant’s goods are unrestricted as to trade channels, we must also presume that
both Applicant’s and Registrant’s legally identical goods travel in the same ordinary
trade and distribution channels and will be marketed to the same potential
consumers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
(even though there was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion); In re Yawata Iron & Steel Co., 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); Genesco Inc. v. Martz, 66
USPQ2d 1260, 1268 (TTAB 2003) (finding goods, which were in part identical and in
part related as being offered and sold to the same classes of purchasers and channels
of trade). Additionally, the website evidence submitted by the Examining Attorney
shows that the goods travel through the same trade channels. Based on the similar
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trade channels and customers, the third du Pont factor favors a finding of likelihood
of confusion.
C. The Similarities or Dissimilarities between the Marks
When marks would appear on legally identical goods, the degree of similarity of
the marks necessary to support a conclusion of likely confusion declines. Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992). We analyze “the marks in their entireties as to 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, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). “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., 101
USPQ2d at 1721 (quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82
USPQ2d 1901, 1905 (TTAB 2007)). The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See Johann Maria Farina Gegenuber Dem Julichs-Platz v. Chesebrough-
Pond, Inc., 470 F.2d 1385, 176 USPQ 199, 200 (CCPA 1972); Inter IKEA Sys. B.V. v.
Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975).
Applicant argues that the appearance and connotation of its mark and the cited
mark are different. Applicant submits that the cited mark would appear to the
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consumer as three concentric circles, rather than three letter C’s, because there are
no external clues and the “arches are too circular.”7 Applicant also contends that even
if the cited mark were perceived as an “exaggeratedly curved ‘C,’” the mark is “[m]ore
reminiscent of the copyright symbol” and consumers would likely perceive it to be a
certification mark.8
In considering the marks, we find they are highly similar. In terms of visual
appearance, Applicant’s mark is three consecutive letter C’s, and although the cited
mark is highly stylized, we find that consumers would recognize the letters in the
cited mark as “CCC” or at the very least, a series of nested letters “C.” We find no
support either in the drawing of the registered mark itself or the record on appeal for
Applicant’s position that the mark in the cited registration would be perceived as the
copyright symbol (“©”) or an undefined “certification mark.” Applicant’s CCC mark
also is in standard character format, meaning that if registered, Applicant would
have the right to use the mark in any font style, size, or color, including versions
identical to the stylized registered mark. See Trademark Rule 2.52(a). If Applicant
were to depict its mark in such a manner, then visually the two marks would be
extremely similar in appearance. In re Viterra Inc., 101 USPQ2d at 1909-11;
Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259
(Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed.
Cir. 1983) (rejecting argument that for purposes of determining whether two marks

7 4 TTABVUE 4.
8 Id. at 4-5.
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are similar, a mark in a typed drawing (equivalent to modern standard character
format) is distinct from such mark in a logo format; “[b]y presenting its mark in a
typed drawing, a difference cannot legally be asserted by that party”). We find that
Applicant’s mark is more similar than dissimilar in appearance to the cited mark.
As to pronunciation, because the marks consist of a string of letters, they would
most likely be pronounced the same, as the letters themselves, “CCC.” As to
connotation, the letters “CCC” are an arbitrary designation as applied to Registrant’s
goods, but according to Applicant, “CCC,” as applied to its goods, is an acronym for
“Compressed Catalytic Carbon” and “relates to the [carbon] filter technology
associated with the goods.”9 Applicant submits that consumers will grasp the
meaning because carbon is the most frequently used filtration technology.10 However,
there is no evidence of record that “CCC” is a recognized acronym for “Compressed
Catalytic Carbon” to support any readily apparent differentiation in connotation of
the two marks or that it would be viewed by the public as other than an arbitrary
mark in connection with Applicant’s goods. We find the connotation of the marks
would be the same, and would be understood as merely the letters “CCC.” Finally, as
to overall commercial impression, although the cited mark is in a stylized form while
Applicant’s mark is in standard character form, the stylized letters “CCC” in
Registrant’s mark are discernible. We find the overall commercial impression to the

9 July 13, 2017 Response to Office Action, p. 3.
10 Id.
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average purchaser for each mark would most likely be the same, that is, the letters
“CCC.”
Comparing the marks in their entireties in terms of appearance, sound,
connotation and commercial impression, we find that the marks are more similar
than dissimilar. The first du Pont factor weighs in favor of a finding of likelihood of
confusion.
D. Conditions of Sale
Applicant argues that its goods are not an impulse purchase as they are
“technologically advanced water products” offered “at a significant price level” to
discerning purchasers.11 According to Applicant, these purchasers are interested in
purified water for added health benefits and exercise more care than the average
purchaser.12 However, there is no evidence in the record to support these
arguments.13 While we recognize that prospective consumers would be expected to
exercise a reasonable degree of care regarding the products that they ingest or
purchase to improve health, see Inter IKEA Sys., 110 USPQ2d at 1744, Applicant’s
goods are unrestricted by channels of trade or classes of consumer, and are not
identified as water filtration products. Based on the identification alone, we cannot
conclude that purchasers will exercise a higher degree of care in purchasing these
goods. We find this du Pont factor neutral.

11 4 TTABVUE 5.
12 Id.
13 Applicant states in its brief that its goods cost sixty dollars, but does not refer to any
evidence in the record in support.
Serial No. 86796332
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II. Conclusion
In view of our determination that the goods are similar, that the channels of trade
and classes of consumers are identical, and that Applicant’s CCC mark is more
similar to than dissimilar from the mark , we find that consumers are likely to
experience confusion as to the source of the goods identified under the marks.
Decision: The refusal to register Applicant’s mark CCC is affirmed.