Charles Austin Pumps Limited

Trademark Trial and Appeal Board

Feb 1, 2013

No. 85267755 (T.T.A.B. Feb. 1, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
February 1, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Charles Austin Pumps Limited
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Serial No. 85267755
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Mark A. Stiner of Duane Morris LLP for Charles Austin Pumps Limited.

Katherine Stoides, Trademark Examining Attorney, Law Office 101 (Ronald R.
Sussman, Managing Attorney).
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Before Zervas, Kuczma and Greenbaum, Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Charles Austin Pumps Limited (applicant) has appealed from the final
refusal of the trademark examining attorney to register MEGA BLUE, in standard
characters, for “condensate pumps for use in removing condensation in building air
conditioning systems”1 in International Class 7. 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, when applied to applicant’s goods, so resembles the
previously registered mark MEGA BLUE (in standard characters, BLUE

1 Serial No. 85267755, filed March 15, 2011, based on Section 1(b) of the Trademark Act.
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disclaimed) for “silicone gasket sealant” in International Class 17,2 as to be likely to
cause confusion. We reverse.
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 the issue of
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 Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003); and In re Dixie Restaurants Inc.,
105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
We begin our analysis by comparing the marks. Palm Bay Imports Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). There is no dispute that the marks are identical.
We turn next to the similarity or dissimilarity between the goods at issue in
this appeal. In order to find that the goods are related, it is sufficient to show that
because of the conditions surrounding their marketing, or because they are
otherwise related in some manner, the goods would be encountered by the same
consumers under circumstances such that offering the goods under confusingly
similar marks would lead to the mistaken belief that they come from, or are in some
way associated with, the same source. In re Iolo Techs., LLC, 95 USPQ2d 1498
(TTAB 2010); see In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984). It is only necessary that there be a viable relationship
between the two to support a finding of likelihood of confusion. In re Concordia

2 Registration No. 1563353, issued October 31, 1989, renewed.

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International Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). The issue here,
of course, is not whether purchasers would confuse the parties’ goods, but rather
whether there is a likelihood of confusion as to the source of these goods. In re Rexel
Inc., 223 USPQ 830 (TTAB 1984).
It is applicant’s position that there is no likelihood of confusion because it
uses its mark “for pumps solely in conjunction with HVAC systems. The pumps are
a highly specialized piece of equipment that requires fitting by a trained engineer.”
Br., p. 7. Further, the pumps “have no gaskets, or sealant, and would require
neither. Rather, the pumps are self-contained systems, requiring no additional
parts or sealants. The goods will be marketed to and used by those in the heating
and ventilation (HVAC) business, given the goods are designed for use with air
conditioning systems.” Id. Applicant accordingly concludes that its “goods are to be
used exclusively by HVAC professionals on HVAC systems.” Id., p. 8.
In response to these arguments, the examining attorney contends that
because the application does not specify whether the “condensate pumps for use in
removing condensation in building air conditioning systems” contain gaskets, and
the cited registration contains no limitations on the classes of purchasers or the
channels of trade, applicant’s goods are presumed to include condensate pumps with
and without gaskets, registrant’s goods are presumed to include silicone gasket
sealant for use with condensate pumps for building air conditioning systems, and
such sealants could be sold to the same consumers and/or installers of such pumps.
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The examining attorney submitted the following evidence in support of her
argument:
•Instructions for installing a Hartell commercial condensate removal pump
“designed to collect and automatically remove the water produced from an air-
conditioner evaporative coil and/or a gas condensing furnace” that has a gasket.
The reassembly instructions advise the installer to apply a small amount of gasket
sealant (specifically suggesting that a silicone sealant would be appropriate) around
the impeller chamber.
•A screenshot from the State Supply SSC website discussing the Hoffman
specialty steam condensate pump repair kit, which includes a seal kit with gaskets.
•Screenshots from several third-party retailer websites, such as Plumber
Surplus, Garnet Midwest Inc., Grainger and Zoro Tools, which offer for sale both
condensate pumps and gasket sealants.
•Screenshots from the Nextag website, comparing prices for several
condensate pumps and, separately, for several gasket sealants, available on various
third-party websites, such as Amazon.com, Grainger and Zoro Tools.
The examining attorney’s evidence does not establish that condensate pumps
for air conditioning systems typically have gaskets. In fact, the record contains only
a few examples of condensate pumps specifically adapted for air conditioning
systems—the Hartell pump, the five Little Giant pumps displayed on the Grainger
website and the four pumps on the Nextel website, including two from Little Giant3

3 It appears that one or both of the Little Giant pumps displayed on the Nextag website are
also offered on the Grainger website. In addition, the three Little Giant pumps displayed
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--and only the Hartell pump indicates that it has a gasket. The Hoffman pump
repair kit is used on steam condensate pumps, and there is no evidence to suggest
that such condensate pumps are related to applicant’s condensate pumps for air
conditioning systems. (Indeed, they appear to be different from applicant’s pumps
for air conditioning systems as steam is typically used for heating purposes.)
The examining attorney also made of record a listing of search results from
the Penfos search engine. This evidence is of limited probative value because it
merely lists various pumps offered by various manufacturers, none of which offer
condensate pumps for building air conditioning systems and silicone gasket sealant.
In addition, the examining attorney made of record screenshots from the
TooToo and IndiaMart websites, both of which display at least one condensate
pump as well as gasket sealant. However, the companies associated with the
displayed goods appear to be located in China and India, and not in the United
States. Moreover, IndiaMart lists an overseas customer service phone number.
Neither website indicates that the displayed goods are sold in the United States. As
the record contains no evidence that consumers in the United States import
condensate pumps or gasket sealant from foreign trading companies, this evidence
is not probative of any relationship between the goods.
Additionally, the examining attorney made of record copies of various use-
based third-party registrations, none of which were discussed in her brief. Upon
our review, we do not find the registrations to be probative on this point, primarily

on the PlumberSurplus.com website also appear to be displayed on the Grainger website,
even though the PlumberSurplus.com screenshot does not specify that these pumps are for
use with air conditioning equipment.
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because they do not include condensate pumps for air conditioning systems (or for
any other use such as refrigeration, or steam systems).
The evidence also does not establish that the goods move in the same
channels of trade. The condensate pumps and sealants displayed on the third-party
websites discussed above are offered by different manufacturers under different
marks, and are found on different webpages.
Finally, there is no evidence of record to establish that the consumers of
applicant’s goods and registrant’s goods are sophisticated buyers. Even assuming
that purchasers of applicant’s goods are HVAC professionals who are sophisticated
with respect to purchasing and/or installing components of building air conditioning
systems, as applicant contends, it is settled that even sophisticated purchasers are
not immune from source confusion, especially in cases such as the instant one
involving similar marks. See In re Research Trading Corp., 793 F.2d 1276, 230
USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v. Hardman &
Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories
even of discriminating purchasers...are not infallible.”). See also In re Decombe, 9
USPQ2d 1812 (TTAB 1988). Thus, this factor is neutral.
The examining attorney bears the burden of establishing a prima facie case
that the goods of the applicant are related to the goods of the registrant. See In re
Princeton Tectonics Inc., 95 USPQ2d 1509, 1512 (TTAB 2010). The examining
attorney has provided insufficient evidence to carry this burden. Moreover, based
on the third-party retailer evidence discussed above, we find that the goods of
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applicant and registrant move in different channels of trade. We therefore conclude
that the examining attorney has not established a sufficient commercial
relationship between applicant’s “condensate pumps for use in removing
condensation in building air conditioning systems” and registrant’s “silicone gasket
sealants” such that consumers are likely to be confused as to source, even if the
same mark is used on both products.

Decision: The refusal under Section 2(d) of the Trademark Act is reversed.