Cookware for Life, LLC

Trademark Trial and Appeal Board

Apr 18, 2012

No. 77967795 (T.T.A.B. Apr. 18, 2012)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: April 18, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cookware for Life, LLC
________

Serial Nos. 77967789 and 77967795
_______

Jeffrey M. Furr of Furr Law Firm for Cookware for Life,
LLC.

Jeffrey C. Coward, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_______

Before Holtzman, Cataldo and Wellington,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Cookware for Life, LLC, filed applications
to register on the Principal Register the marks shown
below:
FOR LIFE
in standard characters,1 and

1 Application Serial No. 77967789 was filed on March 24, 2010
based upon applicant’s assertion of its bona fide intent to use
the mark in commerce.
Ser. Nos. 77967789 and 77967795
2
2
both for “Pans; Kitchen utensils, namely, salad spinners,
mixing bowls and serving spoons all sold solely through
home demonstrations” in International Class 21.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s marks, as used in connection with its goods, so
resemble the following marks, previously registered on the
Principal Register:
COOKWARE FOR LIFE
in typed or standard characters (COOKWARE disclaimed) for
“cookware, namely, cast metal pots, pans, grills, and
griddles” in International Class 21;3 and

2 Application Serial No. 77967795 was filed on March 24, 2010
based upon applicant’s assertion of its bona fide intent to use
the mark in commerce. “The color(s) red, blue, white, black
is/are claimed as a feature of the mark.” “The mark consists of
the words ‘FOR LIFE’ appearing in blue, on a red circular
background that is outlined in black and with a white middle on
which appears a blue water drop.”
3 Registration No. 3036591 issued to Logan Outdoor Products LLC
on December 27, 2005. Section 8 affidavit accepted; Section 15
affidavit acknowledged.
Ser. Nos. 77967789 and 77967795
3

for “Housewares, namely cups, dishes, and containers for
food” in International Class 21,4 as to be likely to cause
confusion.
When the refusals were made final, applicant appealed.
Applicant and the examining attorney filed briefs on the
issues under appeal. The appeals involve common issues of
law and fact. Further, the records are essentially
identical. Accordingly, we decide both appeals in this
single opinion. See, for example, In re Binion, 93 USPQ2d
1531, 1533 (TTAB 2009). See also TBMP § 1214 (3d ed. 2011)
and authorities cited therein.
For purposes of the du Pont factors that are relevant
to these appeals we will consider applicant’s involved
marks and the mark

that is the subject of cited Registration No. 3248808. If
likelihood of confusion is found as to the mark and goods

4 Registration No. 3248808 issued to Masa Fuji on June 5, 2007.
“The mark consists of: A background in black with the word,
FORLIFE in white in rectangular shape with rounded corners.”

Ser. Nos. 77967789 and 77967795
4
in this registration, it is unnecessary to consider the
other cited registration.5 Conversely, if likelihood of
confusion is not found as to the mark and goods in this
registration, we would not find likelihood of confusion as
to the mark and goods in the other cited registration.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in 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 Co., 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 Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 27 (CCPA
1976). See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).

5 We note that the two cited registrations are owned by different
entities. However, we are not privy to the facts surrounding the
registration of these marks, including any agreements that may
exist between the owners thereof.

Ser. Nos. 77967789 and 77967795
5
The Goods
Turning to our consideration of the recited goods, we
must determine whether consumers are likely to mistakenly
believe that they emanate from a common source. It is not
necessary that the goods at issue be similar or
competitive, or even that they move in the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient instead that the respective goods are related
in some manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could give rise to the mistaken belief
that they originate from the same producer. See In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
In ex parte cases, we must compare applicant’s goods
as set forth in its applications with the goods as set
forth in the cited registration. In re Elbaum, 211 USPQ
639, 640 (TTAB 1981). In the present case, applicant’s
goods are identified as “Pans; Kitchen utensils, namely,
salad spinners, mixing bowls and serving spoons all sold
solely through home demonstrations,” and registrant’s goods
are identified as “Housewares, namely cups, dishes, and
containers for food.” We observe initially that
Ser. Nos. 77967789 and 77967795
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applicant’s goods appear to be related on their face to
those of registrant inasmuch as applicant’s goods are used
to prepare and serve food and registrant’s goods are used
to serve and store food.
In addition, the examining attorney submitted with his
Office actions numerous copies of use-based, third-party
registrations reciting goods of a similar type to those
identified in the involved applications and cited
registration. The following examples are illustrative:
Registration No. 3377206 for goods including
“dinnerware and dishes made of china and of
earthenware, namely … cups; pans; salad spinners;
containers for food storage”;

Registration No. 3144747 for goods including
“cooking pots and pans; cups; dishes; salad
spinners; serving spoons”;

Registration No. 3464524 for goods including
“serving spoons; household containers for food;
dishes; pans; cups”; and

Registration No. 3985486 for goods including
“cups; dishes; pans; serving spoons; salad
spinners”.

These registrations suggest, in general, that applicant’s
various items of cookware are related to registrant’s
various items of housewares. See In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB
2001). Although these registrations are not evidence that
the marks shown therein are in use or that the public is
Ser. Nos. 77967789 and 77967795
7
familiar with them, they nevertheless have probative value
to the extent that they serve to suggest that the goods
listed therein are of a kind which may emanate from a
single source. See, e.g., In re Albert Trestle & Sons Co.,
29 USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB 1988).
Based upon the goods recited in the involved
applications and the cited registration, as well as the
evidence made of record by the examining attorney, we find
that applicant’s goods are related to those provided by
registrant. The relatedness of the goods is a factor that
weighs in favor of a finding of likelihood of confusion.
Channels of Trade
Furthermore, it is settled that in making our
determination regarding the relatedness of the parties’
goods, we must look to the goods as identified in the
involved applications and cited registration. See 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
Ser. Nos. 77967789 and 77967795
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channels of trade or the class of purchasers to which the
sales of goods are directed”). See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”).
In this case, there are no restrictions in
registrant’s recitation of goods as to the channels of
trade in which the goods may be encountered, or type or
class of customer to which the services are marketed.
Thus, registrant’s goods must be presumed to move in all
normal channels of trade therefor and be available to all
classes of potential consumers, including consumers who
would encounter applicant’s goods sold through its more
narrowly defined trade channels of “home demonstrations.”
See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
In that regard, we note there is no evidence of record
to indicate whether “home demonstrations” are a usual trade
channel for such goods. We further note, however, that it
is not particularly significant whether or not applicant’s
and registrant’s goods may typically be purchased through
the same channels of trade inasmuch as the goods need not
even be purchased at the same time. A purchaser of
applicant’s food service items through a home
Ser. Nos. 77967789 and 77967795
9
demonstration, who later encounters registrant’s related
food service items in a retail store or other venue, may
well believe that there is some connection as to source if
the goods are offered under a similar mark. As a result,
even if the trade channels for registrant’s goods do not
include the trade channels in which applicant’s goods may
be encountered, this factor is, at best, neutral or only
slightly mitigates against a finding of likelihood of
confusion.
The Marks
We turn to the first du Pont factor, i.e., whether
applicant’s marks and registrant’s mark are similar or
dissimilar when viewed in their entireties in terms of
appearance, sound, connotation and overall commercial
impression. See 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 services offered under the respective marks
is likely to result.
Ser. Nos. 77967789 and 77967795
10
We discuss the similarity between the marks in
applicant’s involved applications and the cited
registration below. For the reasons discussed infra, we
find in both cases that the similarities between the marks
favor a finding of likelihood of confusion.
Application Serial No. 77967789
Applicant’s mark, FOR LIFE, is identical in sound and
similar in appearance to registrant’s mark, displayed below

in that applicant’s mark wholly incorporates the wording of
the registered mark. The presence or absence of a space
between virtually the same words is not a significant
difference. Stockpot, Inc. v. Stock Pot Restaurant, Inc.,
220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ
665 (Fed. Cir. 1984) (“There is no question that the marks
of the parties [STOCKPOT and STOCK POT] are confusingly
similar. The word marks are phonetically identical and
visually almost identical”); In re Best Western Family
Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“There
can be little doubt that the marks [BEEFMASTER and BEEF
MASTER] are practically identical”). In addition, there is
Ser. Nos. 77967789 and 77967795
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no evidence of record that the wording FOR LIFE or FORLIFE
conveys a different meaning when applied to applicant’s
goods than when applied to those of registrant. Thus, the
marks are identical in meaning or connotation.
With regard to the minor design in registrant’s mark
we must keep in mind that the literal portions of marks,
rather than design elements, are generally regarded by
consumers as the principal source-signifying portion of the
mark. See In re Appetito Provisions Co., 3 USPQ2d 1553
(TTAB 1987) (if a mark comprises both a word and a design,
then the word is normally accorded greater weight because
it would be used by purchasers to request or refer to the
services). In this case, the simple rectangular carrier
design in registrant’s mark clearly is subordinate to the
wording FOR LIFE that comprises the literal portion of both
marks.
In sum, we conclude that applicant's mark and the
registered mark are substantially similar in terms of
appearance, identical in sound and meaning, and overall
convey highly similar commercial impressions. That is to
say, the marks are likely to be viewed as variations of
each other, but pointing to the same source.
Application Serial No. 77967795
Ser. Nos. 77967789 and 77967795
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For the reasons discussed above in our consideration
of the similarity of registrant’s mark with the mark in
application Serial No. 77967789, we find that registrant’s
mark

is also highly similar to the mark, displayed below, in
application Serial No. 779677795.

The wording FOR LIFE or FORLIFE is identical in sound and
meaning or connotation in both marks, and somewhat similar
in appearance. We further find that the slight stylization
of the lettering and the addition of stylized drop of water
and simple circular carrier design to applicant’s mark are
insufficient to create a commercial impression that is
separate and distinct from that of registrant’s mark. The
drop of water in applicant’s mark, though distinctive, is
framed by the wording FOR LIFE and serves to draw the
Ser. Nos. 77967789 and 77967795
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viewer’s attention toward those words. Further, and as
discussed above, consumers will refer to applicant’s goods
by the word portion of its mark, not the design. See In re
Appetito Provisions Co., supra. In short, even with the
addition of the design of a drop of water and a circular
carrier design and stylized lettering, the similarities
between applicant’s mark and registrant’s mark in
appearance, sound, meaning and commercial impression far
outweigh the differences.
Summary
In our determination of the refusal to register, we
have considered all of the arguments and evidence submitted
by applicant and the examining attorney, including any
arguments and evidence not specifically discussed in this
decision. In these cases, the similarity of the goods and
the similarities between the marks, favor a finding of
likelihood of confusion. It is well established that one
who adopts a mark similar to the mark of another for the
same or closely related goods or services does so at his
own peril. See J & J Snack Foods Corp. v. McDonald’s
Corp., 932 F.2d 1460, 18 USPQ2d 1889 (Fed. Cir. 1991); In
re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025
(Fed Cir. 1988); and W.R. Grace & Co. v. Herbert J. Meyer
Industries, Inc., 190 USPQ 308 (TTAB 1976).
Ser. Nos. 77967789 and 77967795
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Decision: The refusal of registration is affirmed in
both cases.