Delta Homes, Inc.

Trademark Trial and Appeal Board

Dec 16, 1998

No. 75043190 (T.T.A.B. Dec. 16, 1998)

Paper No. 10
DEB
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB 12/16/98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Delta Homes, Inc.
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Serial No. 75/043,190
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Charles C.Gervey, Jr. and Seth M. Nehrbass of Pravel Hewitt
Kimball & Krieger for Delta Homes, Inc.
Thomas W. Wellington, Trademark Examining Attorney, Law
Office 104 (Sidney Moskowitz, Managing Attorney).
_______
Before Cissel, Wendel and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant, Delta Homes, Inc., a Mississippi
corporation, has filed an application for registration of
the mark "DELTA" for "manufactured housing, namely, mobile
family homes with kitchen, bedrooms, and living rooms."1

1 Serial No. 75/043,190, in International Class 19, filed
January 11, 1996, alleging use since October 1, 1995.
Ser No. 75/043,190
2
The Trademark Examining Attorney issued a final
refusal to register based upon Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, "DELTA" when used on these mobile homes,
so resembles the registered mark, "DELTA STEEL BUILDING
COMPANY, DALLAS, TEXAS," as shown below, as applied to
"prefabricated steel buildings," as to be likely to cause
confusion, or to cause mistake, or to deceive.2
The Trademark Examining Attorney also issued a final
refusal to register based upon applicant’s failure to
comply with the requirement for new specimens.
Applicant has appealed the final refusals to register.
Briefs have been filed, but applicant did not request an
oral hearing. We affirm the Trademark Examining Attorney
on both of the refusals to register.

2 Registration No.712,382, issued on March 14, 1961. The
registration sets forth dates of first use of February 6, 1960;
§8 affidavit accepted and §15 affidavit filed; renewed.
Ser No. 75/043,190
3
Likelihood of confusion
In the course of rendering this decision on likelihood
of confusion, we have followed the guidance of In re E.I.
DuPont DeNemours & Co., 476 F.2d 1357, 1362, 177 USPQ 563,
567-68 (CCPA 1973), which sets forth the factors which, if
relevant, should be considered in determining likelihood of
confusion.
Applicant seeks registration for DELTA in typed form.
As seen from the special form drawing reproduced above,
registrant’s mark is a composite mark, presenting the word
DELTA in prominent fashion above the words “STEEL BUILDING
COMPANY” and “DALLAS, TEXAS.” All this is contained within
an irregular, hexagon-shaped border. Although the
respective marks must be viewed in their entireties, the
overall commercial impression one takes away from this
composite is the word DELTA. The word DELTA is the most
dominant portion of this mark because of its relatively
large size within the composite. Further, as applied to
prefabricated steel buildings, the word DELTA is arbitrary
while all the other words in the composite have a
descriptive significance. And DELTA is the single most
likely way one would verbalize this composite mark. As a
Ser No. 75/043,190
4
result, we find the marks to be similar as to sound,
meaning and overall commercial impression.
Applicant sells manufactured housing, also known as
“mobile homes” or “house trailers." As the amended
identification of goods makes clear, each unit of this
manufactured housing has a kitchen, bedrooms, and common
living areas. Applicant argues that the primary markets
for these goods are individuals or families.
Registrant’s goods are listed as “prefabricated steel
buildings.” Applicant argues these goods are not at all
closely related to the mobile homes sold by applicant.
While applicant contends that registrant’s buildings are
large square-footage buildings directed to the commercial
sector, there is no such limitation in the registration.
Accordingly, it is reasonable to presume that these
buildings might well include smaller, non-commercial
structures, such as utility sheds, carports or even metal
structures that provide a second roof over the existing
roof of a mobile home. Such prefabricated structures may
be inherently complementary to applicant’s mobile homes.
If these latter items were sold under similar marks,
consumers would logically assume the goods emanated from
the same source.
Ser No. 75/043,190
5
There is nothing in the record undercutting the
Trademark Examining Attorney’s contention that applicant’s
mobile homes may have a thin metal coating (e.g., aluminum,
steel, or some composite material) not unlike the steel
walls integral to registrant’s prefabricated buildings.
It is also conceivable that these respective goods
could actually be competing products in certain settings
requiring basic structures to be erected immediately –- for
example, on a construction site or as temporary quarters
for a small, rudimentary office.
Furthermore, the record in the file shows three firms
having valid and subsisting registrations with goods in
only two different international classes – mobile homes in
Int. Cl. 12 (in the “vehicle class”) and prefabricated
buildings in Int. Cl. 19 (non-metallic building materials).3
The three third-party registrations made of record by the
Trademark Examining Attorney, as evidence of the asserted

3 It appears as if non-metal prefabricated buildings are
correctly classified in Int. Cl. 19, but that registrant’s
prefabricated buildings of metal would be more correctly
classified in Int. Cl. 6 (“Metal Goods” including “transportable
building of metal”). In any case, this distinction under the
Nice Classification system affects neither registrant’s rights
under this registration nor our determination in the instant
case. Whatever their material composition, such prefabricated,
transportable buildings are not designed to be transported
independently on the highway as vehicles – e.g., having their own
axles, wheels, etc. -- as are the mobile homes in Int. Cl. 12.
Ser No. 75/043,190
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relatedness of the goods involved herein, indicate that
three different entities have registered their marks both
for goods of the type listed in applicant’s application and
for goods of the type recited in registrant's registration.
Third-party registrations which individually list two
different items and which are based on use in commerce are
evidence that the listed goods are of a type which may
emanate from a single source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467 (TTAB 1988) at note 6.
In examining the conditions surrounding their sale, we
find that neither of these items would be considered
inexpensive or impulse purchases. However, the
identification-of-goods clause does not restrict the
relevant buying class to professional buyers. Where the
buyers consists of both professional buyers and ordinary
consumers, the standard of care to be exercised by the
reasonably prudent purchaser will be considered to be equal
to that of the least sophisticated consumer in the class.
Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277,
at 293, 18 USPQ2d 1417, 1430 (3rd Cir.), cert. denied, 112
S. Ct. 373 (Sup. Ct. 1991). See also 3 McCarthy on
Trademarks and Unfair Competition, §23.98 at 23-191 (4th
Ser No. 75/043,190
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ed. 1997). Hence, the correct standard for all the goods
discussed herein must be that of the ordinary consumer.
For all the above reasons, we find a likelihood of
confusion between applicant’s mark and that of registrant.
Alleged abandonment by registrant
Applicant takes the position that these goods are not
related. Additionally, as a result of its investigation
during the prosecution of this application, applicant now
argues that neither registrant nor any of its possible
transferees are still in business, resulting in the
conclusion that registrant has clearly abandoned this mark.
However, inasmuch as the cited mark is still the subject of
a valid and subsisting registration, this ex parte
prosecution will not be suspended in anticipation of
applicant’s filing a cancellation petition at some point in
the future, as applicant states it will do.
Requirement for Substitute Specimens
Applicant argues that the photographs depicting
advertising signs submitted as specimens are in the nature
Ser No. 75/043,190
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of displays associated with the goods offered for sale.
Clearly the signs, with the words “DELTA HOMES, Inc., A
Division of Belmont Homes, Inc.” display the trademark
sought to be registered (“DELTA”) in a prominent manner, as
seen in the reproduction below:
However, these photographs qua specimens depict
roadside signs of the type that might be used in a rural
area by a real estate owner or developer. Behind the signs
–- informational billboards that could just as well
announce the plans for a soon-to-be-developed sub-division
-- sits a large, undeveloped track of land without a single
mobile home anywhere in sight.
Presumably signs of this exact type might well be used
at the roadside entrance to a commercial lot devoted to the
sale of mobile homes. Even in that case, however,
Ser No. 75/043,190
9
specimens picturing a mobile home sales park (or at the
least, one mobile home) in the same camera frame as the
sign may have been necessary to meet the requirements for a
service mark specimen under the Trademark Rules. That is,
it is unlikely a photograph of an empty lot would be
sufficient even if applicant were applying for a service
mark for retail mobile home dealership services.4 In any
event, the types of specimens acceptable for trademark
specimens (i.e., evidencing the use of the mark on goods,
as in the instant case), are generally less varied than is
the case with service mark specimens, and the photograph
submitted is clearly not unacceptable in the instant
trademark application.
For a trademark application under §1(a) of the
Trademark Act, specimens are required to evidence use of
the mark on or in connection with the goods in commerce.
Trademark Rule 2.56 states, in part:
The specimens shall be duplicates of the
labels, tags, or containers bearing the trademark,
or the displays associated with the goods and
bearing the trademark (or if the nature of the goods
makes use of such specimens impracticable then on

4 If the same informational matter show on this outdoor sign
had instead been submitted, for example, as a print advertisement
for retail mobile home dealership services, it would likely still
be unacceptable service mark usage absent a drawing (or picture)
of a mobile home, or if in some other way the services were more
clearly indicated thereon. See TMEP §1301.04.
Ser No. 75/043,190
10
documents associated with the goods or their
sale)....
37 C.F.R. §2.56.
Reflecting the definition of “use in commerce” in §45
of the Trademark Act, 15 U.S.C. §1127, the parenthetical
notation in this rule does permit applicant to submit
alternatives such as documents associated with the goods or
their sale as specimens where the goods are such that
placement of the mark on the goods, containers, tags,
labels or displays associated with the goods is
impracticable. However, applicant has neither submitted a
document nor argued that this is a situation in which the
nature of the goods makes use on tags, labels or displays
associated with the goods impracticable. As is the case
with auto dealerships placing their names on auto trunk
lids or tail gates, presumably the mobile home industry
practice includes the attachment of small metal name tags
(e.g., by rivet, screw, glue, etc.) to the sides or ends of
the mobile homes.
For this reason, we affirm the requirement of the
Trademark Examining Attorney for replacement specimens as
well.
Ser No. 75/043,190
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Decision: We affirm the Trademark Examining Attorney
as to his finding of likelihood of confusion and his
requirement for substitute specimens. Registration is
hereby refused.
R. F. Cissel
H. R. Wendel
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board