Chase Products Co.

Trademark Trial and Appeal Board

Oct 20, 2000

No. 75361738 (T.T.A.B. Oct. 20, 2000)

10/20/00
Paper No. 15
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Chase Products Company
________
Serial No. 75/361,738
_______
Thomas C. McDonough of Altheimer & Gray for Chase Products
Company.
Marc J. Leipzig, Trademark Examining Attorney, Law Office
115 (Tomas Vlcek, Managing Attorney).
_______
Before Hairston, Bottorff and Rogers, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Chase Products Company has filed an application to
register the mark SPRING LINEN for “aerosol air fresheners
and all purpose disinfectants.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when used on or in connection
1 Serial No. 75/361,738 filed September 23, 1997, based upon
applicant’s bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/361,738
2
with the identified goods, so resembles the following
marks, which are registered to different entities, as to be
likely to cause confusion, mistake or deception:
FRESH LINEN for “room deodorant”;2 and
CRISP LINEN for “all purpose disinfectants
and carpet deodorizers”.3
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested.
At the outset, we note that applicant, in urging
reversal of the refusal to register, relies heavily on a
decision of the Board which was not designated for
publication in full. Decisions which are not designated
for publication in full are not citable as precedent, even
where as here, a copy of the unpublished decision is
submitted. See Trademark Trial and Appeal Board Manual of
Procedure (TBMP) §101.03 and cases cited therein. Thus, in
reaching our decision herein, we have not relied on the
unpublished decision submitted by applicant. Moreover, we
find that decision factually distinguishable from the case
at hand.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
2 Registration No. 1,224,822 issued January 25, 1983; Section 8 &
15 affidavit accepted and acknowledged.
3 Registration No. 2,081,799 issued July 22, 1997.
Ser No. 75/361,738
3
relevant to the factors bearing on the likelihood of
confusion issue. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities/dissimilarities between the marks and the
similarities/dissimilarities between the goods.
Turning first to the goods, applicant has not
seriously disputed that its aerosol air fresheners are
closely related to the goods covered by the mark FRESH
LINEN, i.e., room deodorant. Moreover, in the case of the
mark CRISP LINEN, the goods are identical in part, i.e.,
all purpose disinfectants. Consequently, if applicant’s
and the registrants’ goods were to be sold under the same
or substantially similar marks, confusion as to the source
or sponsorship of such products would be likely to occur.
With respect to the marks, applicant contends that
unlike SPRING LINEN, FRESH LINEN and CRISP LINEN have
recognized meanings. In particular, applicant argues that
one would refer to putting “fresh linen” or “crisp linen”
on one’s bed. Further, applicant argues that the word
“linen” is highly suggestive of scented products marketed
to individual consumers, such as those involved herein, and
that marks consisting of or containing “linen” are entitled
to only a narrow scope of protection. In addition to the
Ser No. 75/361,738
4
two cited registrations, applicant submitted the results of
a search of a private company’s data base of marks
consisting of the word “linen” for scented products.4 The
search revealed six such marks, two registered and one the
subject of an application which cover fragrances, and three
registered marks which cover cleaning preparations.
The Examining Attorney, on the other hand, argues that
applicant’s mark SPRING LINEN is substantially similar to
both of the cited marks, FRESH LINEN and CRISP LINEN,
because each mark consists of an adjective followed by the
word LINEN. In addition, the Examining Attorney contends
that the term SPRING LINEN is not devoid of meaning, as
argued by applicant. In this regard, the Examining
Attorney submitted four NEXIS excerpts which make reference
to “spring linen” in connection with fashions and home
furnishings for spring. Further, the Examining Attorney
argues that the third-party registrations relied on by
applicant cover goods which are unrelated to those involved
herein and therefore are not probative evidence that the
4 Third-party registrations/applications generally may not be
made of record by introducing a trademark search report wherein
the registrations/applications are listed. However, inasmuch as
the Examining Attorney has considered the
registrations/applications listed in the search report to be
properly of record, we deem this evidence to be stipulated into
the record. Accordingly, we have considered the evidence in
making our determination.
Ser No. 75/361,738
5
cited marks are entitled to only a narrow scope of
protection. The Examining Attorney contends that the word
LINEN is arbitrary as used in connection with the involved
goods and that it is the term SPRING that is weak when used
in connection with applicant’s goods. In this regard, the
Examining Attorney made of record copies of a number of
third-party registrations of marks containing the word
“spring” for cleaning preparations and air fresheners/room
deodorizers.
Notwithstanding the relatedness/identity of the goods
involved herein, in our view, applicant’s mark SPRING LINEN
differs from the cited marks FRESH LINEN and CRISP LINEN in
sound and appearance. Applicant’s mark also differs from
the cited marks in meaning, i.e., SPRING LINEN connotes
linen for use in spring, FRESH LINEN connotes linen which
is clean or freshly laundered and CRISP LINEN connotes
linen which is clean and neat or recently pressed.
In addition, the word LINEN is somewhat suggestive of
various scented products marketed to individual consumers,
including those involved herein. Further, the words FRESH
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and CRISP, in the cited marks, are suggestive of such
products.5
The case at hand is not unlike an earlier Board
decision involving an allegation of likely confusion among
consumers based on the concurrent use of HERITAGE HEARTH
and OLD HEARTH both for bread. See Bost Bakery,
Incorporated v. Roland Industries, Inc., 216 USPQ 799 (TTAB
1982). In the Bost case, third-party registrations for
marks including the term HEARTH, despite the opposer’s
argument that they were limited in number and only a few
were used for bread, were found probative of the appeal of
HEARTH “to others as a trademark element in the baked goods
field.” Id. At 801 n.6. The Board found the shared term
an “insufficient basis on which to predicate a [finding] of
likelihood of confusion.” Id.
As in the Bost case, we find that similarly suggestive
marks can coexist if they are “readily distinguishable in
sound and appearance.” Bost, supra at 801.
When we consider the suggestiveness of the cited marks
as well as the differences between SPRING LINEN and FRESH
LINEN and CRISP LINEN in sound, appearance and meaning, we
5 We judicially notice that The Random House College Dictionary
defines “fresh” as, inter alia, “not faded, worn, obliterated,
etc.”; “pure, cool, or refreshing, as air” and “crisp” as, inter
alia, “firm and fresh; not soft or wilted”; “clean and neat,
well-groomed.”
Ser No. 75/361,738
7
conclude that applicant’s intended use of SPRING LINEN for
aerosol air fresheners and all purpose disinfectants is not
likely to cause confusion with either FRESH LINEN for room
deodorant or CRISP LINEN for all purpose disinfectants and
carpet deodorizers.
Decision: The refusal of registration is reversed.
P. T. Hairston
G. F. Rogers
Administrative Trademark Judges
Trademark Trial and Appeal Board
Ser No. 75/361,738
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Bottorff, Administrative Trademark Judge, dissenting:
I would affirm each of the Trademark Examining
Attorney’s Section 2(d) refusals, and accordingly I
dissent.
I am not persuaded that the evidence of record
supports the majority’s finding that LINEN is “somewhat
suggestive” of scented products in general or of the
disinfectants and deodorizers involved in this case, or its
tacit finding that the cited registered marks are entitled
to a relatively narrow scope of protection. Rather, I find
that the evidence of record shows that LINEN is an
arbitrary term or, at most, a slightly suggestive term as
applied to the goods involved here. The third-party
registrations submitted by applicant, which are the only
evidence of record on this point, are not sufficient to
prove otherwise, inasmuch as: they cover goods, i.e.,
perfumes and laundry or cleaning preparations, which are
markedly different from applicant’s and registrants’ goods;
they are not evidence that the registered marks are in use
or that purchasers are accustomed to distinguishing between
different LINEN marks on the goods involved here; and they
are not particularly probative in this case as dictionary-
Ser No. 75/361,738
9
type evidence of the meaning of LINEN as applied to such
goods.
I also find that the arbitrary term LINEN is the
dominant feature of each of the three marks, and that it
accordingly is entitled to greater weight in our comparison
of the marks’ respective commercial impressions. The other
words in the respective marks, FRESH, CRISP and SPRING,
each are merely adjectives which are used to modify the
arbitrary term LINEN. LINEN certainly is the dominant
feature of applicant’s mark, in view of the Trademark
Examining Attorney’s evidence of numerous third-party
registrations of marks containing the word SPRING for goods
of the type involved in this case.
I do not believe that the connotations of the
respective marks are as dissimilar as the majority has
found them to be. The Trademark Examining Attorney has
submitted NEXIS
evidence showing that “spring linens”
would include bed linens, i.e., “…check out the latest in
spring linens for your bed,” and “…make your bed look good
with some new spring linens.” Upon laundering, such
“spring linens” presumably would also be “fresh linens”
and/or “crisp linens.” These terms might have different
connotations or specific meanings when they are used in
reference to linens, per se, but they have the same general
Ser No. 75/361,738
10
connotation when used on the goods involved in this case,
i.e., the arbitrary (for these goods) concept of “linen,”
be it “spring” linen, “fresh” linen, or “crisp” linen.
Although the respective marks, when viewed in their
entireties, are slightly different in terms of appearance,
sound and connotation due to the presence in each mark of a
different first word modifying LINEN, I do not believe that
those slight differences are sufficient to outweigh the
basic similarity in the overall commercial impressions of
the marks which arises from each mark’s use of the
arbitrary term LINEN as its dominant feature. Accordingly,
I find that applicant’s mark is more similar than
dissimilar to each of the cited registered marks.
Where, as here, the respective goods of applicant and
registrant are identical, a lesser degree of similarity
between the respective marks is needed to support a
determination that confusion is likely than would otherwise
be required. Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
I find that the requisite degree of similarity between
applicant’s mark and each of the cited registered marks
exists in this case. Therefore, I would affirm the
Trademark Examining Attorney’s Section 2(d) refusal as to
Ser No. 75/361,738
11
each of the cited registrations.
Charles M. Bottorff
Administrative Trademark Judge,
Trademark Trial and Appeal Board