Consolidated Property Holdings, Inc.

Trademark Trial and Appeal Board

Nov 18, 2010

No. 77634008 (T.T.A.B. Nov. 18, 2010)

Mailed: November 18, 2010

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

In re Consolidated Property Holdings, Inc.
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Serial No. 77634008
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John M. Mueller of Taft Stettinius & Hollister for
Consolidated Property Holdings, Inc.

Andrew C. Leaser, Trademark Examining Attorney, Law Office
112 (Angela Bishop Wilson, Managing Attorney).

____________

Before Walters, Grendel and Taylor, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Consolidated Property Holdings, Inc. has filed an
application to register the standard character mark FRESH
LIVING on the Principal Register for “household chemicals,
namely, dishwashing detergents, all-purpose citrus cleaner,
dish soap, drain opener, furniture polish, glass cleaner,
grill and oven cleaner, all-purpose pine cleaner, rust and
calcium removing preparations, shower cleaner and soap scum
remover, non-disinfectant bathroom cleaner,” in
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 77634008

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International Class 3, and “air fresheners, disinfectant
bathroom cleaners, all-purpose disinfectants,” in
International Class 5.1 The application also identifies
“candles,” in International Class 4, that are not included
in the refusal to register.
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the standard character mark FRESH LIVING, previously
registered for “vacuum cleaner bags,” in International Class
7,”2 that, if used on or in connection with applicant’s
goods, it would be likely to cause confusion or mistake or
to deceive.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
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 issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee

1 Serial No. 77634008, filed December 16, 2008, based on an allegation
of a bona fide intention to use of the mark in commerce.

2 Registration No. 3301437, issued October 2, 2007, to Consolidated
Property Holdings, Inc.

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En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.
The Marks
We turn first to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial
impression. In re E. I. du Pont De Nemours & Co., 177 USPQ
at 567. In this case, the marks are essentially identical.
The fact that the registered mark merges the two words FRESH
and LIVING into one compound word, FRESHLIVING, is
immaterial. The marks have the same sound and connotation,
and nearly identical appearance and overall commercial
impressions. We also note that the test is not a side-by-
side comparison of the marks; rather, the focus is on the
recollection of the average purchaser, who normally retains
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a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).
Both applicant and the examining attorney submitted
definitions of “fresh” and “living.” The entry at Merrium-
Webster.com is representative and defines “fresh” as
“adjective … 2b. – free from taint: pure ”; and
of “living” as “noun … 3. conduct or manner of life .” The examining attorney contends
that these definitions demonstrate that the two marks have
the same connotation. Applicant contends that these
definitions demonstrate the inherent weaknesses in both
marks and, therefore, its mark may come closer to the
registered trademark.
We do not find this argument persuasive because even
weak marks are entitled to protection and there is no
question that the near identity of applicant’s mark to the
registered mark is too close regardless of the strength or
weakness of the marks.
We note that, in its brief, applicant submitted a list
of third-party registrations to show the weakness of the
terms “fresh” and “living” in connection with similar goods.
The examining attorney correctly objected to this evidence
both because it is untimely and because a mere list of
registrations is insufficient to make the registrations of
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record. We sustain the objection and we have not considered
this list in reaching our decision.
Because we find that the marks are essentially the
same, this du Pont factor weighs strongly against
registration.
The Goods
We begin our analysis of the respective goods with the
premise that, because the marks at issue are essentially
identical, the extent to which the applicant’s and
registrant’s goods must be similar or related to support a
finding of likelihood of confusion is lessened. See In re
Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). It is only
necessary that there be a viable relationship between the
two to support a finding of likelihood of confusion. See In
re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB
1983).
The question of likelihood of confusion is determined
based on the identification of goods in the applications
vis-à-vis the goods as set forth in the cited registration.
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.4
(Fed. Cir. 1993); In re Jump Designs, LLC, 80 USPQ2d 1370,
1374 (TTAB 2006). Because likelihood of confusion must be
found if there is likely to be confusion with respect to any
item that comes within the identification of goods in the
application, see Tuxedo Monopoly, Inc. v. General Mills Fun
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Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981), the
USPTO need show only that at least one of the identified
goods in each class of the application is related to the
services of the cited registration.
Applicant’s goods are various household cleaners,
disinfectants and air fresheners, as listed below:
“household chemicals, namely, dishwashing
detergents, all-purpose citrus cleaner, dish soap,
drain opener, furniture polish, glass cleaner,
grill and oven cleaner, all-purpose pine cleaner,
rust and calcium removing preparations, shower
cleaner and soap scum remover, non-disinfectant
bathroom cleaner” and “air fresheners,
disinfectant bathroom cleaners, all-purpose
disinfectants.”

Registrant’s goods are: “vacuum cleaner bags.”
The examining attorney contends that the goods are all
household cleaning products and, in support of his position
that the goods are related, he submitted excerpts from
several websites demonstrating use of the same mark in
connection with both vacuum cleaner bags and one or more of
applicant’s goods, as follows:
• www.bissell.com – cleaning products including fabric,
carpet and rug cleaners, stainless steel cleaner, wood
floor cleaner, and pet stain & odor remover;

• www.dirtdevil.com - cleaning products including carpet
and rug cleaners, and pet stain & odor remover;

• www.hoover.com – cleaning products including carpet and
rug cleaners, spot & stain cleaners, multi-surface
cleaning wipes, bare floor cleaner, spot and stain
remover, and grout cleaning solution;

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• www.oreck.com - cleaning products including carpet and
rug cleaners, mist air fresheners, furniture polish,
germicide, disinfectant and deodorant cleaning
solutions, glass cleaner, microfiber cleaning clothes,
all purpose cleaner, and odor “destroyer”;

• www.electrolux.com - cleaning products including water
and air filtration products, smooth [cook top] cleaner,
and stainless steel cleaner;

• www.kirby.com – cleaning products including carpet
shampoo, fabric cleaner, stain remover, hard [glass and
ceramic] surface cleaner, odor removal spray, and
carpet and room deodorizers.

The examining attorney also submitted copies of a
number of use-based third-party registrations which show
that various entities have adopted a single mark for both
vacuum cleaner bags and various items identified in the
application, as follows:
• ADVANCE (U.S. Reg. No. 3445264) for “detergents for
hard surface cleaning,” “cleaning and degreasing
preparations for use on floors and other hard
surfaces”;

• DAVID ORECK (U.S. Reg. No. 2944152) for “air
fresheners” and “impregnated cloths for cleaning and
polishing wide variety surfaces”;

• SC JOHNSON A FAMILY COMPANY (U.S. Reg. No. 2474552) for
“all purpose cleaning, polishing, scouring and abrasive
preparations,” “protective coatings in the nature of
furniture … polish,” “soaps, not for use on the human
body,” “laundry detergents,” “air deodorants,” and “all
purpose disinfectants”;

• SURF CITY GARAGE (U.S. Reg. No. 3255368) for “all-
purpose cleaners,” and “glass cleaners”;

• ULTRA CARE (U.S. Reg. No. 3290551) for “vacuum air
freshener tablets.”

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Applicant contends that the mere fact that both
applicant’s and registrant’s goods can be broadly identified
as household cleaners does not establish that these
particular goods are related; that, in fact, the goods are
not remotely related; that its goods are not in the field of
normal business expansion for registrant; and that applicant
has used its mark on its products for over two years without
a single instance of actual confusion. Finally, applicant
states, “[there is] no practice or custom in industry where
chemical household cleaning products and vacuum cleaner bags
are frequently offered at the same time, copackaged or
marketed together, or otherwise placed in a position to be
encountered by consumers at the same time.” (Reply Brief, p.
5.)
Applicant is correct that the mere fact that both
applicant’s and registrant’s goods may be broadly
characterized as “household cleaning product” is
insufficient to find that the goods are related. However,
we find applicant’s remaining arguments unpersuasive.
Rather, we find that the examining attorney has submitted
sufficient evidence that quite a few third parties use the
same mark on both various household cleaning products as
identified in the application and vacuum cleaner bags. The
third-party registrations are not evidence of use, but are
sufficient to support our conclusion that the goods are
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related such that, if identified by confusingly similar
marks, confusion as to source is likely.
We add, with regard to applicant’s assertion that it is
aware of no instances of actual confusion occurring as a
result of the contemporaneous use of the marks of applicant
and registrant, while a factor to be considered, the absence
or presence of actual confusion is of little probative value
where we have little evidence pertaining to the nature and
extent of the use by applicant and registrant. Moreover,
the test under Section 2(d) is not actual confusion but
likelihood of confusion. See In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201 (Fed Cir. 2003)
(“uncorroborated statements of no known instances of actual
confusion are of little evidentiary value.”). See also, In
re Kangaroos U.S.A., 223 USPQ 1025 (TTAB 1984); and In re
General Motors Corp., 23 USPQ2d 1465 (TTAB 1992).
This du Pont factor weighs against registration.
Conclusion
When we consider the record and the relevant likelihood
of confusion factors, and all of applicant's arguments
relating thereto, including those arguments not specifically
addressed herein, we conclude that in view of the
substantial similarity, i.e., virtual identity, in the
commercial impressions of applicant’s mark, FRESH LIVING,
and registrant’s mark, FRESHLIVING, their contemporaneous
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use on the related goods involved in this case is likely to
cause confusion as to the source or sponsorship of such
goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.