Chief Manufacturing Inc.

Trademark Trial and Appeal Board

Nov 30, 2007

No. 78634899 (T.T.A.B. Nov. 30, 2007)

Mailed:
November 30, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Chief Manufacturing Inc.
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Serial No. 78634899
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Michael A. Bondi of Patterson, Thuente, Skaar & Christensen
for Chief Manufacturing Inc.

Christopher M. Ott, Trademark Examining Attorney, Law
Office 116 (Michael W. Baird, Managing Attorney).
_______

Before Hohein, Drost and Bergsman, Administrative Trademark
Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On May 23, 2005, Chief Manufacturing Inc. filed an
intent-to-use trademark application for the mark REACTION,
in standard character format, for goods ultimately
identified as “mechanical mounting systems, namely,
mounting racks and stands for liquid crystal displays,
plasma displays and cathode ray tubes,” in International
Class 9 (Serial No. 78634899). The Trademark Examining
Attorney finally refused registration under Section 2(d) of
the Trademark Act of 1946, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when used in connection with
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78634899
2
applicant’s goods, so resembles the mark REACTION, in typed
drawing form (now known as standard character format), for
“office furniture,” as to be likely to cause confusion.1

Evidentiary Issue
In its appeal brief, applicant submitted an excerpt
from the Staples website (www.staples.com) (Exhibit B) and
copies of five (5) third-party trademark registrations from
the U.S. Patent and Trademark Office database (Exhibit C).
The Examining Attorney objected to Exhibits B and C on the
ground the exhibits were untimely filed.
Trademark Rule 2.142(d), 37 CFR §2.142(d), provides
that the record in an application should be complete prior
to filing an appeal, and that the Board will not ordinarily
consider evidence filed with the brief. See also TBMP
§1207.01 (2nd ed. rev. 2004). In view of the foregoing, the
Examining Attorney’s objection is sustained, and Exhibits B
and C attached to applicant’s brief will not be considered
in reaching a decision on the merits of this case.

1 Registration No. 2332336, issued February 22, 2000; Sections 8
and 15 affidavits accepted and acknowledged.
Serial No. 78634899
3
Likelihood Of Confusion
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 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). In any likelihood of
confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. See In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997);
Federated Foods, Inc. v. Fort Howard Co., 544 F.2d 1098,
192 USPQ 24 (CCPA 1976).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

In this case, applicant’s mark and registrant’s mark
are identical: REACTION. This is a du Pont factor that
strongly favors finding that there is a likelihood of
confusion.
B. The similarity or dissimilarity and nature of the
goods.

In analyzing the goods at issue, we note that the when
the marks in the application and the cited registration are
Serial No. 78634899
4
identical, a lesser degree of similarity between the
applicant’s goods and the registrant’s goods is required to
support a finding of likelihood of confusion. In re Opus
One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re
Concordia International Forwarding Corp., 222 USPQ 355, 356
(TTAB 1983). In this case, applicant is seeking to
register its mark for “mechanical mounting systems, namely,
mounting racks and stands for liquid crystal displays,
plasma displays and cathode ray tubes,” and the
registrant’s mark is for “office furniture.”
The applicant argues that even though the mark
REACTION is a strong mark when applied to office furniture,
it is entitled to only a narrow scope of protection because
there are five (5) other REACTION marks registered for
various goods.2 Those registrations are listed below:
1. Registration No. 1822060 for golf clubs;
2. Registration No. 2345847 for jewelry and watches;
3. Registration No. 2450283 for cleaning
preparations for use on bowling equipment,
bowling balls, and bowling shoes; disposable
wipes impregnated with chemicals or compounds for

2 Applicant included one application. However, an application is
only evidence that an application has been filed.
Serial No. 78634899
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cleaning bowling balls, bowling bags, and bowling
shoes;
4. Registration No. 2637226 for rubber floor tile;
and,
5. Registration No. 3058575 for land vehicle parts,
namely, wheels.
However, these registrations have little probative value
because (i) none of the registrations are for products as
close to office furniture as applicant’s mechanical
mounting systems, and (ii) the third-party registrations
are not probative of actual marketplace use of the marks or
that the public is familiar with the marks. In re Vroman
Foods, Inc., 224 USPQ 242, 244 (TTAB 1984). See also Saab-
Scania Aktiebolag v. Sportomatic Corp., 26 USPQ2d 1709,
1713 (TTAB 1993) (Board discounted applicant’s third-party
registrations because they were further removed from
opposer’s products than applicant’s products).
Applicant also contends that “mechanical mounting
systems do not reasonably fall within the broadly defined
market of potentially related goods.”3 However, the
products at issue need not be similar or even competitive
to support a finding of likelihood of confusion. It is

3 Applicant’s Brief, p. 4.
Serial No. 78634899
6
sufficient if the respective goods are related in some
manner and/or that the conditions surrounding their
marketing are such that they would be encountered by the
same persons under circumstances that could, because of the
similarity of the marks used thereon, give rise to the
mistaken belief that they emanate from or are associated
with a single source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
In this regard, the Examining Attorney submitted five (5)
registrations owned by Bretford Manufacturing, Inc. and one
(1) registration owned by Wright Line LLC for both office
furniture and mounting racks for computer hardware or
television and video display mounting systems. Also, the
Examining Attorney submitted excerpts from the websites of
these two companies that display the use of the marks in
connection with the products at issue.4

4 The Examining Attorney also submitted excerpts from the Office
Depot, Staples, and Best Buy websites to prove that office supply
stores and an electronics retail store sell both office furniture
and wall mounts for monitors. We do not find this evidence
particularly persuasive because these two office supply stores
and the electronic retail store sell a wide variety of products,
and the excerpts do not show the same or similar marks used for
office furniture and wall mounts for monitors. Just because
office furniture and wall mounts for monitors are sold in the
same large store or by the same internet retailer may not, in and
of itself, be sufficient to establish that the products are
related. Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Otherwise, based on this
Serial No. 78634899
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The Office Depot and Staples websites display some
desk mounted monitor arms indicating that video display
screens may be mounted on desks. These websites and the
Bretford Manufacturing, Inc. and Wright Line LLC
registrations and websites are sufficient to make a prima
facie showing that mounting racks and stands for liquid
crystal displays, plasma displays and cathode ray tubes and
office furniture are related products.
C. The similarity or dissimilarity of likely-to-continue
trade channels.

Applicant argues that the likelihood of confusion
refusal is based on the false premise that mounting racks
and stands for liquid crystal displays, plasma displays and
cathode ray tubes and office furniture move in the same
channels of trade. According to applicant, “the goods in
the cited registration would most likely be sold through
office furniture stores. In contrast, Appellant’s goods
would not be sold through office furniture stores, but more
likely through direct marketing to installers of
audio/visual equipment in industrial or commercial
settings. If Appellant’s products were sold in a retail
setting, they would likely be sold through electronics

evidence, one could argue that office furniture or wall mounts
for monitors are related to paper, pencils, pens, staplers and
virtually any other like items simply because they are all
products that are sold in office supply stores.
Serial No. 78634899
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outlets – - not at furniture stores.”5 Unfortunately, there
is no evidence to support applicant’s arguments. Instead,
the evidence in the record supports the Examining
Attorney’s position (e.g., the excerpts from the Office
Depot, Staples, and Best Buy websites demonstrate that at
least these three retailers sell both mounting racks and
stands for liquid crystal displays, plasma displays and
cathode ray tubes and office furniture). Because there are
no restrictions or limitations in the description of goods
for the application or the cited registration, we must
assume that the goods travel in “the normal and usual
channels of trade and methods of distribution.” CBS Inc.,
v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir.
1983). See also Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on
the basis of the identification of goods set forth in the
application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to
which the sales of goods are directed”). Accordingly, both

5 Applicant’s Brief, pp. 3-4.
Serial No. 78634899
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the goods of the applicant and the registrant are presumed
to move in all normal channels of trade and be available to
all classes of potential consumers. In other words, we
must assume that both office furniture and mounting racks
and stands for liquid crystal displays, plasma displays and
cathode ray tubes may be sold in office supply and
electronics stores.
The fact that the third-party retailers display
mounting racks and stands for liquid crystal displays,
plasma displays and cathode ray tubes and office furniture
in different sections of their websites is not dispositive
of the channels of trade issue. Consumers shop for
products, not necessarily brands (i.e., a consumer goes to
a store to buy a specific product, rather than any product
by a specific manufacturer). Accordingly, consumers expect
that retailers will display related products together
(i.e., chairs with chairs, desks with desks, mounting racks
with mounting racks). However, if a consumer is putting
together an office suite, he/she may very well encounter
both a REACTION desk and a REACTION mounting rack for a
computer monitor at the same time. Under such
circumstances, a consumer may associate the REACTION brand
desk and the REACTION brand desk mounting rack with a
single source.
Serial No. 78634899
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In view of the foregoing, we find that mounting racks
and stands for liquid crystal displays, plasma displays and
cathode ray tubes and office furniture move in the same
channels of trade.
C. The conditions under which and buyers to whom sales
are made, (i.e., “impulse” vs. careful, sophisticated
purchasing).

Applicant contends that neither office furniture, nor
mounting systems are impulse purchases, but are purchased
for specific applications. These are high-priced, durable
goods that the consumers purchase only after careful
consideration.6 Again, there is no evidence in the record
to support applicant's arguments, and the evidence that is
of record does not support applicant. In the case of the
mounting racks, the Office Depot, Staples, and Best Buy
websites indicate that the mounting racks range in price
from $60 to $250 for desk and wall mounted systems to
$1,000 for a wheeled cart for a 61-inch plasma screen
monitor. Moreover, office furniture spans a wide range of
prices (e.g., office chairs range from $50 to $260,
computer desks may cost as little as $140, portable
workstation costs $90). Because there are no restrictions
or limitations in the description of goods, we must

6 Applicant’s Brief, p. 5-6.
Serial No. 78634899
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consider all potential consumers of applicant’s mounting
systems and the registrant’s office furniture in all
potential price ranges. In other words, we must consider
inexpensive and expensive products sold to both discerning
and nondiscerning customers. See In re Bercut-Vandervoort
& Co., 229 USPQ 763, 764 (TTAB 1986) (average ordinary wine
consumer must be considered in determining source
confusion).
Even assuming, arguendo, that customers for the
products at issue exercise a high degree of care, applicant
does not provide any evidence regarding the decision
process used by these careful and sophisticated consumers,
the role trademarks play in their decision making process,
or how observant and discriminating they are in practice.
The problem with applicant’s “degree of care” argument is
that there is no corroborating evidence and it is
inconsistent with both the evidence of record and the
description of goods in the application and registration
(i.e., not all mounting systems and office furniture is
expensive).
Serial No. 78634899
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D. Balancing the factors.
In weighing all the likelihood of confusion factors
present in this case, we find that because the marks are
identical and the goods are sufficiently related and move
in the same channels of trade, there is a likelihood of
confusion. To the extent that any doubt might exist as to
the correctness of this decision, we resolve such doubt
against applicant. In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687 (Fed. Cir. 1993); In re Hyper Shoppes (Ohio)
Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal to register is affirmed and
registration to applicant is refused.