Donlar Corp.

Trademark Trial and Appeal Board

Nov 15, 2000

No. 75426148 (T.T.A.B. Nov. 15, 2000)

Hearing: 11/15/00 Paper No.
17
June 1, 2000 JQ
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Donlar Corporation
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Serial No. 75/426,148
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Wendy K. Marsh of Zarley, McKee, Thomte, Voorhees & Sease
for applicant.
Farah Bhatti, Trademark Examining Attorney, Law Office 115
(Tomas Vlcek, Managing Attorney).
_______
Before Simms, Hanak and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by Donlar Corporation to
register the mark MAGNET for “agricultural products, namely
a fertilizer enhancer for fruits and vegetables.”1
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act on the
ground that applicant’s mark, if applied to applicant’s

1 Application Serial No. 75/426,148, filed January 30, 1998,
alleging a bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/426,148
2
goods, would so resemble the previously registered mark
MAGNEX for “combination greening ingredient incorporated in
a fertilizer”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney submitted briefs, and
both appeared at an oral hearing.
Applicant argues that the marks neither look alike nor
sound alike. Moreover, applicant asserts that its mark
MAGNET is an ordinary word with a commonly understood
meaning3 and that, therefore, it creates a commercial
impression different from that of registrant’s mark MAGNEX
which, according to applicant, is suggestive of magnesium,
a component for creating green color in plants. Applicant
also contends that the formative “MAGN-” is weak in the
plant chemicals field, pointing to the existence of seven
third-party registrations of such marks which applicant has
made of record. Applicant further asserts that the
involved products are different, and that they are marketed
to different customers with different product needs in
different channels of trade.

2 Registration No. 902,020, issued November 10, 1970; renewed.
3 Although applicant referred to a dictionary listing of the
term, a copy of the definition was not submitted. Such evidence,
however, is proper subject matter of judicial notice.
Accordingly, as indicated below, we have considered the
dictionary definition.
Ser No. 75/426,148
3
The Examining Attorney maintains that the marks MAGNET
and MAGNEX are similar in appearance and sound, differing
by only the last letter. According to the Examining
Attorney, both marks are arbitrary and convey the same
commercial impression. The Examining Attorney discounts
applicant’s third-party registration evidence, contending
that, in any event, even weak marks are entitled to
protection against similar marks for similar goods. The
Examining Attorney also contends that the goods are similar
in that “both goods are ingredients of fertilizers, one
which is used to ‘enhance’, and the other to ‘green’
specific items, such as plants or grass.” (brief, p. 4)
The Examining Attorney has relied upon three Web pages of
third parties to illustrate the relatedness of fertilizers
and enhancers.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion
issue. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Ser No. 75/426,148
4
We first turn to compare the marks MAGNET and MAGNEX.
We find that, although the marks differ by only one letter,
the difference between the letters “T” and “X” results in
marks which are specifically different in sound, appearance
and, most significantly, in meaning. As to meaning, the
term “magnet” is defined as “something that attracts.”
Webster’s Third New International Dictionary (1993) We
agree with applicant that this term has a commonly
understood and recognized meaning which, when applied to
applicant’s goods, is somewhat suggestive of a product used
to “attract” nutrients to the fruits and vegetables being
grown. The mark MAGNEX appears to be a coined term with no
readily discernible meaning, other than it might be viewed
as somewhat suggestive of magnesium which, according to
applicant, is a chemical used to create green color in
plants. Our view is that any similarities in sound and
appearance are outweighed by the significant differences in
meaning and overall commercial impression.
Insofar as the goods are concerned, we must compare
them as identified in the involved registration and
application, that is, “combination greening ingredient
incorporated in a fertilizer” and “agricultural products,
namely a fertilizer enhancer for fruits and vegetables.”
The goods, although appearing to be related fertilizer
Ser No. 75/426,148
5
products, are nevertheless specifically different.
Registrant’s product is identified as an ingredient,
specifically designed for greening up vegetation, included
in a finished fertilizer product. Applicant’s product, on
the other hand, is identified as a finished fertilizer
product for fruits and vegetables.
While we have considered the seven third-party
registrations submitted by applicant, this evidence is of
little probative value in deciding the issue of likelihood
of confusion in this case. The registrations do not
establish that the marks shown therein are in use, much
less that consumers are so familiar with them that they are
able to distinguish among such marks by focusing on
components other than the ones shared by the marks. AMF
Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177
USPQ 268 (CCPA 1973).
In sum, in view of the specific differences between
the goods and, most especially, between the marks, we find
that the cumulative effect is that confusion is unlikely to
occur in the marketplace among consumers.
Ser No. 75/426,148
6
Decision: The refusal to register is reversed.
R. L. Simms
E. W. Hanak
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board