Citrus Fresh Carpet Cleaning Inc.

Trademark Trial and Appeal Board

Oct 16, 2012

No. 85276151 (T.T.A.B. Oct. 16, 2012)

Mailed: 10/16/2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Citrus Fresh Carpet Cleaning Inc.
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Serial No. 85276151
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Suanne M. Ansari for Citrus Fresh Carpet Cleaning Inc.

Patty Evanko, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
_______

Before Quinn, Zervas and Shaw,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Citrus Fresh Carpet Cleaning Inc. filed an application to
register the mark shown below

(“CITRUS” disclaimed) for “cleaning of carpets, area rugs,
furniture, car interiors, tile and grout in a home or commercial
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
S.N. 85276151

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environment” in International Class 37.1 The application
includes the following statements:
The mark consists of the word CITRUS in
orange with each letter bordered in white
and outlined in black, a Palmetto Tree with
a half orange slice floating in upper left
corner above the tree, the fronds of the
tree in lime green color, with orange fruits
hanging in the tree, with a brown trunk and
lime green grass at the base of the tree,
with the word FRESH in lime green color
bordered in white and outlined in black, the
word CITRUS appears on the left side of the
tree, and the word FRESH appears on the
right side of the tree. The color(s) citrus
orange, lime green, brown, white and black
is/are claimed as a feature of the mark.

The trademark examining attorney refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the
ground that applicant’s mark, when used in connection with
applicant’s services, so resembles the previously registered
mark CITRUS FRESH (in typed form) (“CITRUS” disclaimed) for
“carpet and room deodorizer; spray deodorizing air freshener”2 in
International Class 5, as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Applicant argues that the marks convey different commercial
impressions due to their use on different goods and services.

1 Application Serial No. 85276151, filed March 24, 2011, based on
allegations of first use anywhere on June 22, 2010 and first use in
commerce on September 27, 2010.
2 Registration No. 1867431, issued December 13, 1994; renewed.
S.N. 85276151

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Applicant also contends that the goods and services are sold in
different trade channels. Applicant asserts that the cited mark
is weak and entitled to only a narrow scope of protection.
Applicant also points to the absence of any actual confusion.
The examining attorney maintains that the marks are similar
and that applicant’s services and registrant’s goods are
related. In connection with her contention that the goods and
services are related, the examining attorney introduced several
use-based third-party registrations and excerpts of third-party
websites.
Before turning to the likelihood of confusion refusal, we
direct our attention to an evidentiary matter. Applicant
submitted for the first time with its appeal brief copies of
several third-party registrations and applications for marks
that include the terms “CITRUS” and “FRESH,” or “CITRUS,” for
various cleaning and freshening products. The examining
attorney, in her brief, objected to this untimely submission.
Trademark Rule 2.142(d) provides that the record in the
application should be complete prior to the filing of an appeal.
The Board will ordinarily not consider additional evidence filed
with the Board after the appeal is filed. In re Giovanni Food
Co., 97 USPQ2d 1990, 1990-91 (TTAB 2011). See TBMP § 1207.01
(3d ed. 2011).
S.N. 85276151

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Based on the untimely submission of the evidence attached
to applicant’s appeal brief, the examining attorney’s objection
is sustained, and this evidence has not been considered in
reaching our decision.3
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). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated
by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods [and/or services] and
differences in the marks”). These factors, and any other

3 We hasten to add that even if considered, this evidence is not
persuasive of a different result in our determination of likelihood of
confusion. Absent evidence of actual use, third-party registrations
have little probative value because they are not evidence that the
marks are in use on a commercial scale or that the public has become
familiar with them. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not
aware of registrations reposing in the U.S. Patent and Trademark
Office); and Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La
Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB 2011).
S.N. 85276151

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relevant du Pont factors in the appeal now before us, will be
considered in this decision.
We turn first to the similarity between the marks. In
applicant’s response (Oct. 25, 2011) to the first Office action,
applicant stated that “applicant’s trademark and the mark shown
in the cited registration can be regarded as essentially
identical when considered apart from applicant’s design”;
applicant goes on to argue in its brief, however, that the marks
are not likely to confuse consumers due to different commercial
impressions engendered by use on different goods and services.
We must compare the marks in their entireties as to
appearance, sound, connotation and commercial impression to
determine the similarity or dissimilarity between them. Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test,
under the first du Pont factor, is not whether the marks can be
distinguished when subjected to a side-by-side comparison, but
rather whether the marks are sufficiently similar in terms of
their overall commercial impression that confusion as to the
source of the goods and services offered under the respective
marks is likely to result. The focus is on the recollection of
the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
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It is well settled that one feature of a mark may be more
significant than another, and it is not improper to give more
weight to this dominant feature in determining the commercial
impression created by the mark. In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing
improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the
marks in their entireties. Indeed, this type of analysis
appears to be unavoidable.”).
Where both words and a design comprise the mark (as in
applicant’s mark), then the words are normally accorded greater
weight because the words are likely to make an impression upon
purchasers, would be remembered by them, and would be used by
them to request the goods and/or services. CBS, Inc. v. Morrow,
708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a
composite mark comprising a design and words, the verbal portion
of the mark is the one most likely to indicate the origin of the
goods to which it is affixed”); In re Appetito Provisions Co., 3
USPQ2d 1553, 1554 (TTAB 1987); and Kabushiki Kaisha Hattori
Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985). See also
Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565,
218 USPQ 390 (Fed. Cir. 1983). In applicant’s mark, the literal
portion of the mark, namely CITRUS FRESH, is the dominant
S.N. 85276151

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portion, and is accorded greater weight over the design features
when comparing this mark to the cited mark.
Accordingly, the dominant portion of applicant’s mark is
identical to the entirety of registrant’s mark. In discussing
the dominant portion of the marks, we recognize, of course, that
the mark ultimately must be compared in their entireties. When
this comparison is made, we find that the marks are similar in
sound, appearance and meaning. The design in applicant’s mark
merely reinforces the suggestive meaning of the words CITRUS
FRESH, that is, that use of applicant’s cleaning services will
result in carpets with a fresh citrus scent; this meaning is
essentially identical to the suggestive connotation conveyed by
registrant’s mark CITRUS FRESH for carpet deodorizers. Because
of the similarities between the marks, applicant’s and
registrant’s marks engender similar overall commercial
impressions. See King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (even a weak mark
is entitled to protection against the registration of a similar
mark for closely related goods or services). The similarity
between the marks weighs in favor of a finding of likelihood of
confusion.
We next turn to consider the second du Pont factor
regarding the similarity/dissimilarity between the goods and
services. It is not necessary that the respective goods and
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services be competitive, or even that they move in the same
channels of trade to support a holding of likelihood of
confusion. It is sufficient that the respective goods and
services are related in some manner, and/or that the conditions
and activities surrounding the marketing of the goods and
services are such that they would or could be encountered by the
same persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief that
they originated from the same entity. In re Melville Corp., 18
USPQ2d 1386 (TTAB 1991). The issue, of course, is not whether
purchasers would confuse the goods and services, but rather
whether there is a likelihood of confusion as to the source of
the goods and services. In re Rexel Inc., 223 USPQ 830 (TTAB
1984). It is well settled that confusion may be likely to occur
from the use of similar marks for goods on the one hand, and
services on the other. See, e.g., In re Hyper Shoppes (Ohio),
Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re
United Services Distributors, Inc., 229 USPQ 237 (TTAB 1986).
In support of her position that applicant’s services and
registrant’s goods are related, the examining attorney submitted
several use-based third-party registrations, each covering both
types of goods and services involved herein. “Third-party
registrations which cover a number of differing goods and/or
services, and which are based on use in commerce, although not
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evidence that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, may nevertheless
have some probative value to the extent that they may serve to
suggest that such goods or services are of a type which may
emanate from a single source.” In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed.
Cir. 1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993).
The examining attorney also submitted printouts of excerpts
from third-party websites showing that some online retailers
offer both carpet cleaning services, as well as carpet products,
including deodorizers and fresheners, under the same mark.
The cumulative effect of the examining attorney’s evidence
demonstrates that entities offering carpet cleaning services
routinely offer carpet cleaning products under the same mark,
including deodorizers that consumers can use post-cleaning to
keep their carpets smelling fresh.
Insofar as the trade channels and classes of purchasers are
concerned, we note that there are no limitations in either
applicant’s recitation of services or registrant’s
identification of goods. Accordingly, we must presume that the
goods and services, as identified, are marketed in all normal
trade channels for such goods and services, and to all normal
classes of purchasers for such goods and services. In re
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Elbaum, 211 USPQ 639 (TTAB 1981). Thus, given the similarity
between carpet cleaning services on the one hand, and carpet
cleaning deodorizers and fresheners on the other, as shown by
the examining attorney’s evidence, the goods and services would
move through the same trade channels (e.g., online retailers and
carpet cleaning companies) and would be purchased by the same
classes of purchasers, including ordinary consumers.
We find that the du Pont factors of the similarity between
the goods, and the overlap in trade channels and purchasers
weigh in favor of a finding of likelihood of confusion.
Contrary to one of applicant’s arguments, the different
classification of the goods and services is irrelevant to the
analysis. The classification of goods and services by the USPTO
is a purely administrative determination and has no bearing on
the issue of likelihood of confusion. Jean Patou Inc. v. Theon
Inc., 9 F.3d 971, 29 USPQ2d 1771 (Fed. Cir. 1993); and National
Football League v. Jasper Alliance Corp., 16 USPQ2d 1212 (TTAB
1990).
The contemporaneous use of applicant’s and registrant’s
marks for a period of approximately two years without actual
confusion is entitled to little weight. See In re Majestic
Distilling Co., Inc., 65 USPQ2d at 1205 (“uncorroborated
statements of no known instances of actual confusion are of
little evidentiary value”). See also In re Bisset-Berman Corp.,
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476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-
serving testimony of applicant’s corporate president’s
unawareness of instances of actual confusion was not conclusive
that actual confusion did not exist or that there was no
likelihood of confusion). The lack of evidence of actual
confusion carries little weight, J.C. Hall Co. v. Hallmark
Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965),
especially in an ex parte context. In any event, the record is
devoid of probative evidence relating to the extent of use of
applicant’s and registrant’s marks and, thus, whether there have
been meaningful opportunities for instances of actual confusion
to have occurred in the marketplace. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000);
and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774
(TTAB 1992). Accordingly, the du Pont factor of the length of
time during and conditions under which there has been
contemporaneous use without evidence of actual confusion is
considered neutral.
In sum, the relevant du Pont factors weigh in favor of
affirming the refusal. We conclude that consumers familiar with
registrant’s carpet deodorizers sold under the mark CITRUS FRESH
would be likely to believe, upon encountering applicant’s mark
CITRUS FRESH and design for carpet cleaning services, that the
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goods and services originated with or are somehow associated
with or sponsored by the same entity.
Decision: The refusal to register is affirmed.