Crane Co.Download PDFTrademark Trial and Appeal BoardOct 9, 2014No. 85268667re (T.T.A.B. Oct. 9, 2014) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: October 9, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Crane Co. _____ Serial No. 85268667 _____ On Request for Reconsideration _____ 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. _____ 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. Copy with citationCopy as parenthetical citation