Car Wash Co., Inc.

Trademark Trial and Appeal Board

Jul 10, 2015

No. 86011364 (T.T.A.B. Jul. 10, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 10, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Car Wash Co., Inc.
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Serial Nos. 86011364 and 860113691
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Joseph S. Heino of Davis & Kuelthau SC,
for Car Wash Co., Inc.
Joanna E.H. Fiorelli, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
_____

Before Lykos, Adlin and Masiello,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
On July 16, 2013, Car Wash Co., Inc. (“Applicant”) filed two applications
seeking registration on the Principal Register for the same mark, CLEAN FREQ in
standard character format, for “car wash services” in International Class 372 and

1 Inasmuch as these appeals involve common questions of law and fact, and each has been
treated in substantially the same manner by the Applicant and by the Trademark
Examining Attorney, we have consolidated these separate appeals and are issuing a single
decision herein.
2 Application Serial No. 86011369, filed under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a). The application alleges February 24, 2013 as the date of first use anywhere and
in commerce.
Serial Nos. 86011364 and 86011369
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“[a]dministration of a customer convenience program in the nature of a customer
loyalty program which provides unlimited car washes at a discounted rate” in
International Class 35.3
Registration was refused under Section 2(d) of the Trademark Act of 1946,
15 U.S.C. § 1052(d), on the ground that Applicant’s applied-for mark so resembles
the following registered marks owned by the same entity, both for “[v]ending in the
field of vehicle fragrance and cleaning products” in International Class 35 and
“[v]ehicle washing; Automobile cleaning and car washing” in International Class 37,
that when used on or in connection with Applicant’s identified services, it is likely to
cause confusion or mistake or to deceive:
Registration No. 36773894 for the mark

Registration No. 43456875 for the mark

3 Application Serial No. 86011364 filed under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a). The application alleges February 24, 2013 as the date of first use anywhere and
in commerce.
4 Registered September 1, 2009; Sections 8 and 15 affidavits acknowledged and accepted.
The description of the mark is as follows: “The mark consists of the words ‘CLEAN FREAK’
in stylized letters with a circle above the stylized letters. The circle has two crescent moon
shapes that are concentric with and partially surround the circle. One of the crescent moon
shapes is larger than the other and partially surrounds both the circle and the smaller
crescent moon shape.” Color is not claimed as a feature of the mark.
Serial Nos. 86011364 and 86011369
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described as follows:
The mark consists of a three-dimensional configuration of a building.
The building facade is gray or orange with a partially circular entrance
and exit outlined in blue; above the entrance is a semi-circular bar that
projects horizontally from the facade; the building walls are orange
with horizontal blue wave designs; the roof of the building is blue and
arched; on one side of the entrance is a grey kiosk with a blue arched
roof; on the other side of the entrance is a gray arched lattice structure
with gray columns a blue shade structure, columns and a blue shade
structure [sic]. The color(s) orange, blue, and gray is/are claimed as a
feature of the mark.

When the refusals were made final, Applicant appealed and requested
reconsideration. After the Trademark Examining Attorney denied the Request for
Reconsideration, the appeal was resumed.
We base our determination under Section 2(d) on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). See
also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,

5 Registration No. 4345687, registered June 4, 2013.
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192 USPQ 24 (CCPA 1976). These factors, and the other relevant du Pont factors,
are discussed below. We commence our analysis with the Examining Attorney’s
refusal to register based on Registration No. 3677389.
At the outset, we compare the services as they are identified in the involved
applications and the registration, as well as the similarity or dissimilarity of
established, likely to continue trade channels. See Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014);
Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990) and Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). With regard to Application Serial
No. 86011369, it is undisputed that this application and the cited registration
involve services that are identical, at least in part, as to “car wash services” and
“car washing.” Because the services are identical in part, we must presume that
these services travel in the same channels of trade to the same classes of
consumers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012). Thus, the second and third du Pont factors weigh in favor of finding a
likelihood of confusion for Application Serial No. 86011369.
We now direct our attention to the services identified in Application Serial No.
86011364 of “[a]dministration of a customer convenience program in the nature of a
customer loyalty program which provides unlimited car washes at a discounted
rate.” Insofar as these services are not identical to Registrant’s, the Trademark
Examining Attorney must provide evidence showing that the services are related to
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support a finding of likelihood of confusion. See, e.g., In re White Rock Distilleries
Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (finding Office had failed to establish that
wine and vodka infused with caffeine are related goods). Evidence of relatedness
may include news articles and/or evidence from computer databases showing that
the relevant goods/services are used together or used by the same purchasers;
advertisements showing that the relevant goods/services are advertised together or
sold by the same manufacturer or dealer; and/or copies of prior use-based
registrations of the same mark for both applicant’s goods/services and the
goods/services listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d
1810, 1817 (TTAB 2014) (finding pepper sauce and agave related where evidence
showed both were used for the same purpose in the same recipes and thus
consumers were likely to purchase the products at the same time and in the same
stores).
To show that Applicant’s services are related to “[v]ehicle washing; Automobile
cleaning and car washing,” the Trademark Examining Attorney submitted Internet
evidence demonstrating that it is common for the same entity to offer both car
washing services as well as customer loyalty programs identified in the registration.
Note for example the following:
● Cruz Car Wash website:
You Shower Everyday… What About Your Car or Truck? NOW
THEY CAN!!!

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Unlimited Car Washes – Prices Start as Low as $ 24.99 a
Month!6

● Octopus Car Wash website:
Octopus Car Wash would like to reward its frequent customers.
What better way than to give them unlimited washes! Octopus
Car Wash is proud to introduce their Loyalty Customer Wash
program. We know that you have many different car washing
options, and are honored that you choose us for your car
washing needs. Being a member has tremendous benefits! Best
of all membership is only $21.99 a month with a one time
startup fee of $14.99.7

● Pasadena Car Wash website:

Since 1988, Pasadena Car Wash customers have enjoyed the
sparkling, clean cars and attention to details that come with the
unique Pasadena Car Wash experience….

UNLIMITED MONTHLY WASHING. SAVE NOW! Join our
loyalty club and keep your vehicle clean with Unlimited Car
Washes for just $39.958

This evidence establishes a commercial relationship between Applicant’s
“[a]dministration of a customer convenience program in the nature of a customer
loyalty program which provides unlimited car washes at a discounted rate” and
Registrant’s “[v]ehicle washing; Automobile cleaning and car washing.” Thus, with
regard to Application Serial No. 86011364, the second du Pont factor also weighs in
favor of finding a likelihood of confusion.

6 USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated November 1,
2013 (Office Action), p. 8.
7 USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated May 16, 2014
(Final Office Action), p. 22.
8 USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated May 16, 2014
(Final Office Action), pp. 35 & 40.
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We now consider the first du Pont likelihood of confusion factor which involves
an analysis of the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression. See Palm Bay Imports,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). “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).
The Examining Attorney, relying on the proposition that similarity in sound
alone may be sufficient to support a finding that the marks are confusingly similar,
contends that the mark CLEAN FREQ is the phonetic equivalent to the literal
portion CLEAN FREAK in Registration No. 3677389. See e.g., In re White Swan
Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988). Applicant however maintains that when
considered as a whole, the marks have distinct visual presentations and
connotations. While acknowledging that the first word in each mark is identical,
Applicant points to the differences in spelling between the second terms. As to
connotation and meaning, Applicant argues that the term “clean freak” in the
registered mark identifies “a person who is compelled to constantly clean or a
person who cleans obsessively” whereas the term “freq” denotes “something that is
done at or within a given regularity or frequency.”9 Applicant also points to the

9 Ex Parte Appeal Serial No. 86011364: Applicant’s Brief, pp. 6-7, 8 TTABVUE 10-11.
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concentric circle design above the wording “clean freak” in Registration No. 3677389
as obviating the similarities between the marks. Thus, Applicant argues that the
Trademark Examining Attorney has improperly dissected the marks by not
considering the design element of Registrant’s mark and by focusing only on the
shared literal portion “clean.”
Applicant’s arguments are unconvincing. Applicant’s mark and the literal
component of Registrant’s mark both begin with the same word “clean” and end
with the phonetic equivalents “freak” and “freq.” The difference in the spelling of
“freak” versus “freq” is relatively insignificant, especially given that the marks may
be pronounced in an identical manner. Because “there is no correct pronunciation of
a mark” and because “it is impossible to predict how the public will pronounce a
particular mark,” we must assume that the marks could be pronounced in the same
manner by consumers. See Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d
1825, 1835 (TTAB 2013) (quoting In re Viterra Inc., 101 USPQ2d at 1912); In re The
Belgrade Shoe Co., 411 F.2d 1352, 1353, 162 USPQ 227, 227 (CCPA 1969). As such,
in calling for the respective services of Applicant and Registrant, prospective
consumers may pronounce the literal portion of each mark in the same way.
Moreover, Applicant’s own arguments actually support a finding that the marks
engender similar meanings and commercial impressions. The record shows that
“freq” is an abbreviation for the word “frequently.”10 A “clean freak” is “someone

10 USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated May 1, 2014
(Response to Office Action), p. 12, definition of “freq” from Dictionary.com.
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who has to constantly clean; someone who obsessively cleans.”11 Thus both
Applicant’s and Registrant’s marks, when considered in relation to the services,
project the same meaning and commercial impression of frequent or obsessive
cleaning as it pertains to car washing. Moreover, consumers hearing the marks may
not perceive any difference between the second terms, and may therefore assume
that the marks have identical meanings.
The design element in Registration No. 3677389 fails to mitigate the nearly
identical sound and similar appearance of the respective literal portions of the
involved marks. Applicant is reminded of the often-recited principle that when a
mark consists of a literal portion and a design portion, the literal portion is more
likely to be impressed upon a purchaser’s memory and to be used in calling for the
goods and/or services; therefore, the literal portion is normally accorded greater
weight in determining whether marks are confusingly similar. In re Dakin’s
Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999). See also In re Viterra, Inc.,
101 USPQ2d at 1911 (“the verbal portion of a word and design mark likely will be
the dominant portion.”); CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ
198, 200 (Fed. Cir 1983); In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1267-68
(TTAB 2011). There is nothing particularly striking about the concentric circle
design such that it would mitigate the literal similarities of the marks.

USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated November 14,
2014 (Request for Reconsideration), p. 28, definition of “freq” from Merriam-Webster.com.
11 USPTO TSDR Case Viewer Application Serial No. 86011364, entry dated November 14,
2014 (Request for Reconsideration), p. 9, definition of “clean freak” from The Online Slang
Dictionary.
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Hence, in comparing Applicant’s mark as a whole to the mark in Registration
No. 3677389, we find that the marks are similar in sound, connotation and
commercial impression. This first du Pont factor therefore also weighs in favor of
finding a likelihood of confusion.
To the extent that there are any other du Pont factors which may be relevant, we
treat them as neutral.
In sum, after considering all of the evidence properly of record and arguments
pertaining to the du Pont likelihood of confusion factors, we find that there is a
likelihood of confusion between Applicant’s applied-for mark CLEAN FREQ and
the registered mark depicted in Registration No. 3677389. In view thereof, we need
not reach a determination regarding Registration No. 4345687.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed as to
Registration No. 3677389.