Crescent Metal Products, Inc.

Trademark Trial and Appeal Board

Mar 2, 2017

No. 86553010 (T.T.A.B. Mar. 2, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 2, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Crescent Metal Products, Inc.
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Serial No. 86553010
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Nicholas J. Gingo of Renner Otto Boisselle & Sklar, LLP,
for Crescent Metal Products, Inc.
Barney L. Charlon, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
_____

Before Cataldo, Kuczma and Heasley,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Crescent Metal Products, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark as amended, for “grease remover
paste for use on food service equipment” in International Class 3.1

1 Application Serial No. 86533010 was filed on March 4, 2015, under Section 1(a) of the
Trademark Act, based upon Applicant’s claim of first use since at least as early as December
27, 2012 and use in commerce since at least as early as March 4, 2013. The application
includes the following color statement and description of the mark:
The color(s) black, white and green is/are claimed as a feature of the mark.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with Registration No. 3206075, issued on the Principal
Register for the mark ELBOW GREASE in standard characters, for “all-purpose
cleaners” in International Class 3.2
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Applicant attached copies of portions of the evidentiary record, previously submitted
during prosecution of the involved application, to its appeal brief. Because this
evidence is already of record as part of the application file, its re-submission with
Applicant’s brief was unnecessary. See ITC Ent. Group Ltd. v. Nintendo of America
Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998) (submission of duplicative papers is a
waste of time and resources, and is a burden upon the Board).
Parties to Board cases occasionally seem to labor under the misapprehension that
attaching previously-filed evidence to a brief and citing to the attachments, rather
than to the original submissions, is a courtesy or a convenience to the Board. It is
neither. The entire record is readily available to the panel. Because we must

The mark consists of the wording “ELBOW GREEZ” outlined in black with the letters
“ELBOW” and “Z” in white and the letters “GREE” in green, and the “L” is formed by a flexed
arm with three short black lines emanating from the elbow. Intentional imperfections in the
form of black specks are purposefully placed throughout the mark.
2 Issued on February 6, 2007. Section 8 affidavit accepted. First renewal.
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determine whether such attachments are properly of record, citing to the attachments
requires us to examine the attachments and then attempt to locate the same evidence
in the record developed during prosecution of the application, requiring more time
and effort than would have been necessary if citations were directly to the prosecution
history.
II. Applicable Law
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 Co., 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
differences in the marks”). These factors, and any other relevant du Pont factors in
the proceeding now before us, will be considered in this decision.
Similarity and Dissimilarity of the Marks.

We turn first to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imports, Inc.
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v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to
find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014) (citing In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586 (TTAB 2007)).
In comparing the marks, we are mindful that the test 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 so that
confusion as to the source of the goods or services offered under the respective marks
is likely to result. San Fernando Elec. Mfg. Co. v. JFD Elec’s. Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rest’s. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992).
The mark in the cited registration is ELBOW GREASE and the mark in the
involved application is . The depiction of the letter “L” in Applicant’s
mark in the form of “a flexed arm with three short black lines emanating from the
elbow”3 is a visual stylization and design not present in the registered mark.
Nonetheless, the elbow design serves to reinforce the term “elbow grease.” Applicant’s
mark further displays the term “grease” as “GREEZ” with the letters “GREE” in the
color green. Viewed as a whole, the marks are more similar than dissimilar in
appearance, with Applicant’s mark being a stylized depiction and spelling of the term

3 Language from Applicant’s description of its involved mark.
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ELBOW GREASE that comprises the mark in the cited registration. The marks are
nearly identical in sound inasmuch as is likely to be pronounced by
consumers, who may not even see the stylized display of the mark when asking for it,
as ELBOW GREASE.
Applicant describes “elbow grease” as “an idiom alluding to vigorous use of one’s
arm in cleaning or polishing”.4 The Examining Attorney agrees with Applicant’s
characterization of the term “elbow grease” and quotes it in his brief.5 Because there
is none of record, we hereby take judicial notice of the following definition of “elbow
grease” – “strenuous physical exertion: a job requiring elbow grease,”6 which generally
agrees with Applicant’s idiomatic characterization of the term. With regard to
meaning, the cited mark clearly connotes strenuous physical exertion or vigorous use
of one’s arm in cleaning or polishing. With regard to the meaning of its mark,
Applicant argues
The use of the word GREEZ (rather than GREASE) and the contrast
between the E and the Z, suggest the additional term “EZ” or “EASY.”
Further, by depicting the letters GREE in green, Applicant’s mark
suggests the word “GREEN”, which creates the overall commercial
impression that the product being sold is environmentally friendly. This

4 4 TTABVUE 8, quoted in full below.
5 6 TTABVUE 5-6.
6 Dictionary.com Unabridged, based on The Random House Dictionary, (2017).
The Board may take judicial notice of dictionary definitions, including online dictionaries
which exist in printed format. See In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014) aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re CyberFinancial.Net Inc.,
65 USPQ2d 1789, 1791 n.3 (TTAB 2002). See also University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).

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word-play, combined with the flexed arm and the generally understood
meaning of the phrase “elbow grease” (an idiom alluding to vigorous use
of one’s arm in cleaning or polishing), creates the overall commercial
impression that the product sold under Applicant’s mark is particularly
effective, environmentally friendly, and will make the job of the
consumer easier.7

Thus, Applicant contends that in addition to the commonly understood meaning of
“elbow grease,” its mark also connotes an environmentally friendly, or “green”
product that makes cleaning easy or at least easier. We have no way of knowing on
this record whether or to what extent consumers will perceive the additional asserted
connotations of environmental friendliness and/or ease of use. However, even if these
connotations are readily apparent to consumers, Applicant acknowledges that a
meaning of its mark is “the generally understood meaning of the phrase ‘elbow
grease.’”8 As a result, we find that one of the connotations of Applicant’s mark is the
same as that engendered by the ELBOW GREASE mark in the cited registration.
Viewing both marks as a whole, we find and ELBOW GREASE to
be nearly identical in sound and far more similar than dissimilar in appearance. We
further find that the most obvious connotation of Applicant’s mark is the term “elbow
grease” that comprises the mark in the cited registration and that, even if the
additional connotations of Applicant’s mark are apparent to consumers, overall, the
marks convey similar commercial impressions.

7 4 TTABVUE 7-8.
8 Id. at 8.
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In making this determination, we have taken into consideration Applicant’s
arguments and Internet evidence of use of the term “elbow grease” by two third-
parties in connection with cleaning products:

Amazon.com;9 and

9 Applicant’s December 17, 2015 response to Office action at 6 (Exhibit A).
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Kitchendepot1.com.10
Applicant has further introduced Internet evidence of use by the following third
parties of “elbow grease” in connection with cleaning services: American Elbow
Grease Inc. (thumbtack.com); Elbow Grease Heavy House Cleaning Service
(postsouth.com); Elbow Grease Cleaning Service (elbowgrease.com); Elbow Grease
Cleaning Services (angieslist.com); Elbow Grease Cleaning (manta.com); and Elbow
Grease (care.com).11
This evidence of third-party use of “elbow grease” marks in connection with cleaning
services has little probative value, inasmuch as it does not establish that the same

10 Id. at 7 (Exhibit B).
11 Id. at 8-13 (Exhibits C-H).
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entities use the term “elbow grease” to identify both cleaning services and cleaning
products. Applicant has introduced the two above-noted examples of use by third
parties of “elbow grease” in connection with cleaning products. However, this
evidence is insufficient to persuade us that the cited ELBOW GREASE mark is
entitled to such a narrow scope of protection as to permit registration of a confusingly
similar mark for related goods. Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH v.
New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015) (third-party weakness evidence characterized as “voluminous”). Furthermore,
there is insufficient evidence by which we can determine to what extent consumers
have been exposed to these two uses of “elbow grease” in connection with cleaning
products.
Relationship of the Goods.

We turn to the du Pont factor involving the similarity or dissimilarity of Applicant’s
goods and Registrant’s goods. It is settled that in making our determination, we must
look to the goods as identified in the application vis-à-vis those recited in the cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 110 USPQ2d
at 1161; Octocom Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991
(TTAB 2011). The respective goods and/or services need only be “related in some
manner and/or if the circumstances surrounding their marketing [be] such that they
could give rise to the mistaken belief that [the goods and/or services] emanate from
the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d 1713
Serial No. 86553010
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1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). See also On-line Careline Inc. v. America Online Inc., 229 F.3d 1080,
56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984). The issue here is not whether purchasers
would confuse the goods, but rather whether there is a likelihood of confusion as to
the source of these goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB
2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In this case, the goods in the cited registration are broadly identified as “all-purpose
cleaners.” On the face of their respective identifications, the purpose of Applicant’s
more narrowly identified “grease remover paste for use on food service equipment” is
encompassed by the “all-purpose cleaners” in the cited registration, inasmuch as they
are not limited to cleaners for use in any particular industry or on any particular
surface, but rather may be used for all purposes. Simply put, all-purpose cleaners
may be used to remove grease from food service equipment.
In support of his position that the goods at issue are related, the Examining
Attorney has made of record screenshots from Registrant’s Internet webpage,
reproduced in part below, showing that its ELBOW GREASE “all-purpose cleaners”
are a “liquid water-soluble safety solvent used on anything that can be cleaned with
water. A very effective sp[r]ay and wipe, [spray] and rinse product. Dissolves fat and
grease.”12

12 February 4, 2016 final Office action at 7-8. Dychem.com.
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The Examining Attorney also introduced into the record a copy of Registrant’s
specimen of use, indicating that its “all-purpose cleaners” under the ELBOW
GREASE mark “may be used on … food processing equipment”:13

13 Id. at 19.
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This evidence further supports a finding that the broadly identified goods under the
ELBOW GREASE mark in the cited registration may be used for the more specific
purposes of cleaning food service equipment.
In additional support of his contention that the goods are related, the Examining
Attorney made of record screenshots from commercial Internet websites, of which the
following show the goods of both Applicant and Registrant identified under the same
marks:14

14 Id. at 47-60.
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(webrestaurantstore.com).
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(apterindustries.com).
These websites demonstrate that certain third parties use the same marks to identify
Applicant’s type of goods and Registrant’s type of goods.
As further evidence that Applicant’s goods are related to those of Registrant, the
Examining Attorney has submitted use-based, third-party registrations.15 Among
these, we note that the following registrations list, in their identifications, goods

15 June 17, 2015 first Office action at 7-15; February 4, 2016 final Office action at 9-46.
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related to Registrant’s “all-purpose cleaners” and goods related to Applicant’s “grease
remover paste for use on food service equipment:”
Reg. No. 4196735 – “all-purpose cleaners; degreasing preparations for
use on grease traps; degreasers for grease traps; degreasing
preparations in spray, foam and liquid form for use on ovens and
cooktops;”

Reg. No. 4437625 – “preparations for removing grease, oil and tar; all-
purpose cleaning and degreasing preparations for household, industrial
and commercial use;”

Reg. No. 4356727 – “general purpose cleaners, degreasing preparations
for use on restaurant equipment, cleaners for use on fryers, cleaners for
use on grills, cleaners for use on ovens, cleaners for use on grease traps;”

Reg. No. 3156219 – “all-purpose cleaning preparations, degreasers for
use to remove oil and grease from … cooking stove hoods, stove tops,
ovens;”

Reg. No. 3916655 – “all-purpose cleaners, specialty cleaners and
detergents for use in institutional applications and food preparation
applications, all for cleaning floors and surfaces;”

Reg. No. 4477204 – “all-purpose cleaners, kitchen degreasers, oven and
grill cleaners, all for restaurant and other commercial uses;” and

Reg. No. 4848106 – “all purpose cleaners, degreasing preparations … for
use in restaurants.”

Such third-party registrations that are based on use in commerce have some
probative value to the extent that they suggest that the listed goods are of types which
may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988). Although such registrations do not prove that the registered marks are
actually used in the marketplace on both types of goods, they at least demonstrate
that a number of companies have sought and obtained registrations of marks for use
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on both types of goods. Applicant’s contention that the goods are unrelated is not
borne out by an examination of the registrations.
Relationship of the Trade Channels and Classes of Consumers.
The only evidence relating to the trade channels through which the goods travel is
the third-party website evidence submitted by the Examining Attorney, discussed
above. This evidence shows that certain websites feature goods that are similar in
type to the goods of Applicant and Registrant. Applicant argues that its
goods are highly specialized and are directed toward individuals
purchasing products for industrial/commercial application in the food
service industry. Applicant’s mark, on the other hand, is a more general-
purpose cleaner, not specifically directed to the industrial/commercial
food service industry.16

However, as Applicant acknowledges, there are no limitations present in the
recitation of Registrant’s goods. See, e.g., Stone Lion Capital Partners, LP v. Lion
Capital LLP, 110 USPQ2d at 1161. Furthermore, the evidence discussed above
suggests that both Applicant’s goods and Registrant’s goods are available under the
same marks and may be purchased at least on commercial Internet websites. We find
the evidence sufficient to show that, in the marketplace, goods similar to those of
Applicant and Registrant are found in at least one common trade channel, namely,
the Internet, and are utilized by common consumers.

Consumer Sophistication.

16 4 TTABVUE 10.
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Applicant argues
it is apparent that Applicant’s purchasers are food service industry
personnel who look to Applicant’s product to serve a specific purpose and
function relating to their expensive, commercial-grade equipment. In
light of the expense of this equipment, and the fact that it is likely the
heart of their food service operation, it is logical to assume that these
purchasers would take great care in making their purchasing decisions.
Similarly, consumers of Registrant’s goods likely take great care in
looking to purchase an all-purpose cleaning product capable of
application and use in multiple settings and in multiple types of
cleaning situations.17

Applicant’s unsupported argument that the involved goods would be purchased by
sophisticated consumers is not persuasive. There is nothing in the identification of
goods to indicate that Registrant’s goods will be subject to sophisticated purchase.
Applicant’s goods, while purchased by individuals in the food service industry, are
not necessarily purchased solely by sophisticated food service operations but may also
be purchased by smaller, less sophisticated restaurant owners. Cf., e.g., Electronic
Design & Sales, Inc. v. Electronic Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388
(Fed. Cir. 1992) (record confirms that opposer’s services are expensive and are
purchased only by experienced corporate officials after significant study and
contractual negotiation and that the evaluation process used in selecting applicant’s
products requires significant knowledge and scrutiny); In re Digirad Corp., 45
USPQ2d 1841, 1998 (TTAB 1998) (goods including Gamma radiation sensors, signal
processors and display apparatus for use in nuclear imaging market subject to
sophisticated purchase). Even assuming the identification inherently conveys this

17 Id. at 9.
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meaning, there is nothing in the record to support a finding that the goods and
purchasing process are of such a nature that purchasers could distinguish such
similar marks for closely related goods. Also, as is frequently stated, even if
consumers are knowledgeable in a particular field, that does not necessarily mean
that they are immune from source confusion. In re Decombe, 9 USPQ2d 1812, 1814-
15 (TTAB 1988).
Balancing the factors
In view of the facts that the marks are highly similar, that the goods are related,
move in at least one identical channel of trade, and are marketed to the same
consumers, and that the sophistication and care exercised by these consumers will
not prevent source confusion, we find that a likelihood of confusion exists between
the marks and goods identified in the involved application and the mark and goods
in the cited registration.
Decision: The refusal to register Applicant’s mark under Section
2(d) of the Trademark Act is affirmed.