Crane Co.

Trademark Trial and Appeal Board

Oct 9, 2014

No. 85268667re (T.T.A.B. Oct. 9, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 9, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Crane Co.
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Serial No. 85268667
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On Request for Reconsideration
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Gary M. Anderson and James W. Paul of Fullwider Patton LLP
for Crane Co.

N. Gretchen Ulrich, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
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Before Bucher, Shaw, and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:
The Board, in a decision dated September 4, 2014, affirmed the refusal to
register applicant’s mark AIRWEIGHS (in standard character form) on the ground
that, as used in connection with applicant’s goods, it so resembles the registered
mark AIR-WEIGH (in typed form) and the special form mark set forth below as to
be likely to cause confusion, or to cause mistake, or to deceive.

Serial No. 85268667
2
On October 3, 2014, applicant filed a request for reconsideration of the Board’s
decision. Generally, the premise underlying a request for reconsideration under
37 C.F.R. § 2.144 is that, based on the evidence of record and the prevailing
authorities, the Board erred in reaching the decision it issued. See TBMP §§ 1219.01
and 543 (2014) and the authorities cited therein. The request may not be used to
introduce additional evidence, nor should it be devoted simply to a reargument of
the points presented in the requesting party's brief on the case. See Amoco Oil Co. v.
Amerco, Inc., 201 USPQ 126 (TTAB 1978).
The marks at issue in this case are nearly identical. The Board, in its decision,
while noting that the goods at issue have different applications (aircraft versus
trucks), nonetheless noted that the goods are similar in nature and function, insofar
as they are onboard weighing devices, in the nature of sensors, that are attached to
a part of the vehicle in order to determine the vehicle’s gross weight. Moreover, the
Board noted evidence that certain companies produce weighing systems for use in
connection with both aircraft and trucks, indicating that such goods may reasonably
be expected to emanate from a single source. The Board therefore found that the
goods of Applicant and Registrant should be considered commercially related for
purposes of its analysis of likelihood of confusion under In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). The Board also
found that there is a class of relevant customers that maintain fleets of both aircraft
and trucks and could therefore be customers for the goods of both Applicant and
Registrant, while acknowledging that such customers would have a degree of
sophistication and would select the goods with an elevated degree of care.
Serial No. 85268667
3
Applicant, in its brief on appeal, argued that the “safety nature” of Applicant’s
goods leads to a contracting process that involves “testing, evaluation,” and
“specifications far in excess of many other industries.”1 The Board, in its decision,
noted an absence of “evidence of record as to any particular safety requirements,
testing, specifications, or contracting process.”2 Applicant now, in its request for
reconsideration, points to evidence of record regarding a “Cooperative Research and
Development Agreement” between Applicant and a U.S. Air Force laboratory as an
example of such special requirements.3 The testing and evaluation described
therein relate to research and development for Applicant’s product, apparently with
the intent to make Applicant’s product desirable to the Air Force. Applicant’s goods,
as identified in the application, are not limited to custom goods to be designed to the
order and specification of each customer. Accordingly, we cannot assume that
Applicant’s involvement with the Air Force laboratory during the research and
development phase of Applicant’s product is typical of the conditions under which
Applicant’s goods would be sold in the ordinary course of business.
Applicant also now reargues that the Board should find that the goods of
Applicant and Registrant are unrelated, taking into consideration the disparity in
the prices of the respective goods. The evidence shows that Registrant’s onboard
weighing devices for trucks are substantially less costly than Applicant’s onboard
weighing devices for aircraft. We are not persuaded that customers would take this

1 Applicant’s appeal brief at 7.
2 Decision at 12.
3 Request for reconsideration at 5-6.
Serial No. 85268667
4
price disparity as a sign that the goods must emanate from different sources.
Rather, it seems natural that items that are similar in type and function but
different in application (aircraft versus trucks) might very well have substantially
different prices.
The Board considered, in its original decision, all of the arguments and evidence
discussed in Applicant’s request for reconsideration. This can be seen in the fact
that the Board made certain findings in Applicant’s favor, such as the lack of
evidence of common trade channels; the sophistication of customers; and an
elevated degree of care in the selection of the goods. Applicant’s request for
reconsideration does not persuade us that the Board’s decision was in error.
Accordingly, the Board adheres to its finding that Applicant’s mark, used in
connection with Applicant’s goods, so closely resembles the cited registered marks
as to be likely to cause confusion, mistake or deception as to the source of
Applicant’s goods.
Decision: The request for reconsideration is denied. The Examining Attorney’s
refusal stands affirmed as per the Board’s order of September 4, 2014.