Brite and Clean, Inc.

Trademark Trial and Appeal Board

Oct 7, 2019

87384194 (T.T.A.B. Oct. 7, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 7, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Brite and Clean, Inc.
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Serial No. 87384194
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Erik M. Pelton of Erik M. Pelton & Associates PLLC for
Brite and Clean, Inc.
Colleen Dombrow, Trademark Examining Attorney, Law Office 101,
Ron Sussman, Managing Attorney.
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Before Wellington, Lykos, and Goodman,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Brite & Clean, Inc. (“Applicant”) seeks registration of the following mark:

on the Principal Register for the following goods:
Cleaning preparation; water stain removal cleaning preparations; shower
cleaning preparation; window cleaning preparation; bathroom cleaning
preparation; glass cleaning preparation; cleaning preparation in powder
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form; cleaning wipes impregnated with a cleaning preparation; none of the
foregoing for use with eyeglasses, in International Class 3.1

The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered
standard character mark CLEAN AND BRIGHT (CLEAN disclaimed) on the
Principal Register for “all-purpose cleaners” in International Class 3.2
After the refusal was made final, Applicant filed an appeal. The appeal is fully
briefed. For the following reasons, we affirm the refusal.
I. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in 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). We have considered each DuPont factor for
which there is argument and evidence of record. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns,
Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v.
GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered
each factor for which we have evidence, we focus our analysis on those factors we find

1 Application Serial No. 87384194 was filed on March 24, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging a date of first use anywhere and in commerce
of “2013.” The mark is described in the application as “consist[ing] of a light blue and blue
circle with the wording BRITE & CLEAN on top of the circle … appear[ing] in the colors light
red and red and is outlined in white and gray.” The colors have been claimed as features of
the mark.
2 Registration No. 4212597 issued on September 25, 2012; Section 8 declaration accepted.
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to be relevant.”). “[E]ach case must be decided on its own facts and the differences are
often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386,
387 (CCPA 1973); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d
1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont
factors for which there is record evidence but ‘may focus … on dispositive factors,
such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l,
Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
When analyzing these factors, the overriding concern is not only to prevent buyer
confusion as to the source of the goods, but also to protect the registrant from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
A. Weakness of the Cited Mark
Applicant argues that “Registrant’s CLEAN AND BRIGHT mark is entitled to a
narrow scope of protection due to the widespread third-party use and registrations of
marks containing the terms CLEAN and/or BRIGHT for cleaning products.”3 In
support of this argument, Applicant relies on the plain meanings of these terms in
connection with cleaning products and points to the following third-party
registrations for the following goods or services that it made of record:4
Registration
No.
Mark Goods or Services
5133875 KLEENBRITE Class 1: Chemical preparations, namely,
degreasing and cleaning solvents

3 9 TTABVUE 11.
4 Id. at 15-16; copies of registrations attached to Applicant’s December 18, 2017 response.
Serial No. 87384194
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Registration
No.
Mark Goods or Services

5030538 START BRITE
CLEANERS
Class 37: Dry cleaning services
4110111 TRIPLE ACTION
BRIGHT-
WHITECLEAN
Class 3: Laundry detergents
4109395 CLEANER WATER
FOR A BRIGHER
FUTURE
Class 35: Retail store and on-line retail
store services featuring water treatment
equipment; Wholesale distributorships
featuring water treatment equipment
services
3788695 CLEAN BRITE Class 21: Brooms; mops
3790228 AMERI-BRITE
CLEANING, LLC
Class 37: Cleaning of residential houses;
Furniture polishing; Cleaning of banks,
businesses, and offices; Cleaning of floors
1935355

Class 3: all-purpose household cleaning
preparation
1669738 CLEAN, FRESH &
BRIGHT
Class 37: cleaning and repair services for
carpets, upholstery, drapes, valances,
shades and venetian blinds
0890247 BRITE-KLENZ Class 3: Preparation for washing bottles
and for use in soaker-type bottle washers

Active third-party registrations may be relevant to show that a mark or a portion
of a mark is descriptive or suggestive. See, e.g., Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1675-76; In re Hartz Hotel Servs., Inc., 102 USPQ2d
1150, 1153-54 (TTAB 2012); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB
1991); In re Dayco Products-Eaglemotive Inc., 9 USPQ2d 1910, 1911-12 (TTAB 1988);
Plus Prods. v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983). Properly used
in this limited manner, third-party registrations are similar to dictionaries showing
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how language is generally used. See, e.g., Tektronix, Inc. v. Daktronics, Inc., 534 F.2d
915, 189 USPQ 693, 694-95 (CCPA 1976); In re J.M. Originals Inc., 6 USPQ2d 1393,
1394 (TTAB 1987); United Foods Inc. v. J.R. Simplot Co., 4 USPQ2d 1172, 1174
(TTAB 1987).
We agree with Applicant that the registered mark is inherently weak in view of
the rather obvious meanings of its composite words, CLEAN and BRIGHT, in the
context of cleaning products. CLEAN is descriptive of the goods’ purpose and BRIGHT
suggests a desired result from using the goods, i.e., make the cleaned article or
surface appear “bright.” The third-party registrations corroborate the descriptive and
suggestive meanings of these terms, including variations on their spelling, and how
these terms can be used in trademarks. See Institut National des Appellations
D’Origine v. Vintners Int’l Co. Inc., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir.
1992) (third-party registrations show the sense in which a word is used in ordinary
parlance and that a particular term has descriptive significance as applied to certain
goods or services).
However, we disagree with Applicant’s contention that the record demonstrates
“widespread third-party use” of the marks. Indeed, there is no evidence of the
aforementioned registered third-party marks being used in commerce or any other
similar mark for that matter. In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d
1738, 1745 (TTAB 2016) (“[C]itation of third-party registrations as evidence of
market weakness is unavailing because third-party registrations standing alone, are
not evidence that the registered marks are in use on a commercial scale, let alone
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that consumers have become so accustomed to seeing them in the marketplace that
they have learned to distinguish among them by minor differences.”) Thus, on the
record before us, we cannot infer the possible extent of consumer exposure to marks
similar to the registered mark or any similar mark containing the terms CLEAN and
BRIGHT (or variations on the spellings of these terms). Cf. Juice Generation, 115
USPQ2d 1674 (“considerable number” of third-party use “powerful on its face”); Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (“Evidence of third-party use of similar marks
on similar goods is relevant to show that a mark is relatively weak and entitled to
only a narrow scope of protection.”).
In sum, we find Registrant's mark is inherently weak in connection with cleaning
products. As a result, the scope of protection accorded to Registrant's mark is not as
wide as that of an arbitrary or coined strong mark. See Joseph Phelps Vineyards, LLC
v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017)
stating that likelihood of confusion fame varies along a spectrum from very strong to
very weak). However, the record does not show the registered mark to be
commercially weak based on third-party use of similar marks in connection with
similar goods.
Because Registrant’s mark has a narrower scope of protection, this necessarily
decreases the likelihood for confusion. Nevertheless, we must accept that even weak
marks are entitled to protection and confusion must be avoided amongst weak marks
as well as strong marks. See In re Max Capital Grp., 93 USPQ2d 1243, 1246 (TTAB
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2010). See also King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 109 (CCPA 1974); In re Chica Inc., 84 USPQ2d 1845, 1850 (TTAB 2007);
In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982).
B. Similar Marks
Under the first du Pont factor, we compare the involved marks “in their entireties
as to appearance, sound, connotation and commercial impression.” In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (quoting DuPont, 177 USPQ at 567); see also
Palm Bay Imps. Inc., 73 USPQ2d 1691. “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014)), aff’d mem., (Fed. Cir. Sept. 13, 2019). Accord Krim-Ko Corp. v. Coca-Cola
Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the
similarity in either form, spelling or sound alone is likely to cause confusion.”)
(Citation omitted).
Here, the wording in Applicant’s composite mark, BRITE & CLEAN, is essentially
a transposition of the same words (or the equivalent thereto) comprising the
registered mark, CLEAN AND BRIGHT. In “reverse combination” mark
circumstances, like this one, the Board found the marks to be very similar because
the same wording, albeit transposed, helps create the same or very similar overall
commercial impression and connotation. See, e.g., In re Wine Soc’y of Am. Inc., 12
USPQ2d 1139, 1142 (TTAB 1989) (affirming refusal to register THE WINE SOCIETY
OF AMERICA & Design based on registration of AMERICAN WINE SOCIETY 1967
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& Design, finding that “the transposition of words does not change the overall
commercial impression”); Bank of Am. Nat’l Trust and Sav. Ass’n v. The Am. Nat’l
Bank of St. Joseph, 201 USPQ 842, 845 (TTAB 1978) (“the words ‘BANKAMERICA’
and ‘BANK OF AMERICA’, on the one hand, and ‘AMERIBANC’, on the other, convey
the same meaning and create substantially similar commercial impressions”). That
is what we have here in this appeal. In other words, both Applicant’s mark and the
registered mark strongly convey to the consumers that the respective cleaning
products are intended to “clean” and make “bright.” In a similar case involving marks
comprised of suggestive and descriptive terms, the Board found a likelihood of
confusion existed, finding “the reversal in one mark of the essential elements of
another mark may serve as a basis for a finding of no likelihood of confusion only if
the transposed marks create distinctly different commercial impressions.” In re
Nationwide Industries, Inc., 6 USPQ2d 1882, 1884 (TTAB 1988) (Affirming refusal to
register RUST BUSTER for rust-penetrating spray lubricant based on the mark
BUST RUST for penetrating oil).
The differences between the marks are insignificant and do not overcome the
overall similarity. Applicant’s misspelling of BRITE is not very creative and
consumers will immediately understand this phonetic equivalent as an alternative
spelling of the word BRIGHT. Indeed, Applicant’s evidence of registered third-party
marks shows that this is not a novel misspelling and is often used in place of the word
“bright.” Likewise, the ampersand (which is the equivalent to and would be
pronounced as “and”) in Applicant’s mark is not distinctive. The circular, blue
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background design in Applicant’s mark is not unique and would make very little
impression. Rather, in viewing Applicant’s mark, consumers will perceive the circular
blue background as merely a decorative or ornamental background for the wording
in the mark. Moreover, because the cited mark is registered in standard characters,
it is not limited “to any particular font style, size, or color.” Trademark Rule 2.52(a).
As such, we must consider it to cover any stylization or color, including the identical,
red stylized lettering found in Applicant's mark. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011).
In sum and viewing the marks in their entireties, we find them to be extremely
similar. In making this finding, we bear in mind that marks are to be considered in
light of the fallibility of memory. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1085 (Fed. Cir. 2014). That is, consumers will not always have the luxury of a
side-by-side comparison. Midwestern Pet Foods, Inc. v. Societe des Produits Nestle
S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012). Thus, we must look to
decide whether the marks’ overall commercial impressions that will be retained in
consumers’ minds are sufficiently similar that confusion as to the source of the goods
is likely to result. Here, for reasons mentioned supra, we find the marks convey the
same commercial impression.
Accordingly, this factor weighs in favor of finding confusion likely.
C. Overlapping Goods and Same Trade Channels
With respect to the second and third du Pont factors, the similarity of the goods
and their channels of trade, we must make our determinations as to these factors
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based on the goods as they are identified in the application and cited registration. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Here, the goods are legally identical because, as identified, they are encompassing
of one another. That is, Applicant’s “cleaning preparation … [and] cleaning
preparation in powder form” goods are sufficiently broad to include Registrant’s “all-
purpose cleaner.” Aside from this overlapping of the goods, the respective goods are
also on their face very closely related because Registrant’s “all-purpose cleaner” may
be used for many of the same cleaning tasks that Applicant’s other cleaning products
are designed, e.g., cleaning preparations for “water stain removal … shower …
window … bathroom … glass cleaning and wipes impregnated with a cleaning
preparation.”
Because these goods are legally identical in part, they must be presumed to
travel in the same channels of trade and be sold to the same classes of purchasers.
See 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
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purchasers are considered to be the same); Am. Lebanese Syrian Associated Charities
Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). Channels
of trade include “the same type of distribution channel” and are not limited to
“identical stores or agents.” Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
Accordingly, these DuPont factors weigh in favor of finding a likelihood of
confusion.
D. Applicant’s Prior Registration
Applicant points out that its principal, Timothy L. Bloom, is the owner of a
registration for the mark BRITE & CLEAN WINDOWS for “window cleaning
services” in International Class 37.5
We consider Applicant’s prior registration argument under the thirteenth du Pont
factor which relates “to ‘any other established fact probative of the effect of use.”’ See
In re Inn at St. John’s, LLC, 126 USPQ2d at 1745-46. “Where an applicant owns a
prior registration that is over five years old and the mark is substantially the same
as in the applied-for application, this can weigh against finding that there is a
likelihood of confusion.” In re Inn at St. John’s, LLC, 126 USPQ2d at 1746, citing In
re Strategic Partners, Inc., 102 USPQ2d 1397 (TTAB 2012). In Strategic Partners, the
Board addressed this “unique situation” of coexistence of an applicant’s existing
registration with a cited registration for over five years, when the applicant’s applied-

5 Registration No. 4644234, issued on November 25, 2014. Applicant mentioned ownership of
this registration in its response (filed December 18, 2017) to the first Office Action, and
attached a copy to the response.
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for ANYWEAR mark is substantially similar to its existing registered ANYWEARS
mark and both are for identical goods (footwear). The Board noted that the latter
registered mark had co-existed with the cited ANYWEAR BY JOSEPH NATORI
(stylized with a design) mark for jackets, shirts, pants, stretch T-tops and stoles and
ultimately held:
Applicant’s registered mark, a mark that is substantially similar to the
applied-for mark, both covering “footwear,” has coexisted with the cited
mark for over five years. At this stage, applicant’s existing registration is
over five years old, and thus is not subject to attack by the owner of the
cited registration on a claim of priority and likelihood of confusion. Cf. In
re Sunmarks Inc., 32 USPQ2d 1470 (TTAB 1994). We find that these facts
tip the scale in favor of applicant and a finding of no likelihood of confusion.

Id. at 1399.
The circumstances of this appeal are clearly different from those in Strategic
Partners. Specifically, Mr. Bloom’s registration is not yet over five years old and it
covers window cleaning services which clearly are not identical to the goods identified
in the involved application. Compare In re Inn at St. John’s, LLC, 126 at 1745-46
(Board distinguished the circumstances of the appeal from Strategic Partners because
“Applicant’s applied-for mark — 5IVE STEAKHOUSE and design — moves closer to
the cited registration — 5IVESTEAK and design — than the mark in Applicant’s
prior registration — 5IVE RESTAURANT and design — rendering the new mark
more similar in appearance, sound, and meaning to Registrant’s mark”).
Accordingly, and in contrast to our finding in Strategic Partners, we find that Mr.
Bloom’s prior registration in this case does not help ‘tip the scale’ in making our
determination as whether there is a likelihood of confusion.
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II. Conclusion
Given that the goods, as identified in the application and cited registration are
encompassing of one another and thus legally identical, said goods will be offered to
the same classes of purchasers in the same trade channels, and Applicant’s mark,
BRITE & CLEAN (stylized with design), is very similar overall to the registered
mark, CLEAN AND BRIGHT, we find that confusion is likely. We make this ultimate
finding with the understanding that the cited mark is inherently weak and thus has
a limited scope of protection, but also bearing in mind that it is Applicant’s duty, as
the newcomer, to avoid confusion. Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002) (“This court resolves doubts about
the likelihood of confusion against the newcomer because the newcomer has the
opportunity and obligation to avoid confusion with existing marks.”); In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1691 (Fed. Cir. 1993).
Decision: For the aforementioned reasons, the refusal under Section 2(d) to register
Applicant’s mark is affirmed.