Easy Lock, LLC

Trademark Trial and Appeal Board

Jul 19, 2013

No. 76708780 (T.T.A.B. Jul. 19, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
July 19, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Easy Lock, LLC
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Serial No. 76708780
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Paul M. Denk for Easy Lock, LLC.

Khanh M. Le, Trademark Examining Attorney, Law Office 116 (Michael W. Baird,
Managing Attorney).
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Before Quinn, Wolfson, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Easy Lock, LLC (applicant) has appealed the final refusal of its application
for the mark EASY LOCK LLC & design (in stylized form), as set forth below,

Serial No. 76708780

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for “a symmetrical, unidirectional, single action centered cylinder, keyless and
metal deadbolt door lock assembly for right or left hand hung doors” in Class 61
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Refusal has
been based on the ground of likelihood of confusion with the marks E Z LOC (in
standard character form) for “security and fastening devices, namely, metal locks”
in Class 62 and with the mark EZLOCK (in stylized form), as set forth below,
,
for “electric locks, electronic locks, electric anti-burglar locks, magnetic card locks,
electric combination locks” in Class 9.3
As a preliminary matter, the examining attorney has objected to applicant’s
submission of a letter from a professor of English at Saint Louis University, as
being untimely. We agree. Applicant affixed the letter to its appeal brief. Evidence
submitted after an appeal is untimely and will not ordinarily be considered by the
Board. Trademark Rule 2.142(d); 37 CFR § 2.142(d). Accordingly, the objection is
sustained and the letter has not been considered. We note that even if the letter
had been considered, it would not affect the outcome herein.

1 Application Serial No. 76708780, filed August 18, 2011, based on intent-to-use pursuant to
Section 1(b) of the Trademark Act.
2 Registration No. 1857478, issued October 11, 1994, second renewal - September 18, 2004 –
owned by Brammal Inc.
3 Registration No. 3613315, issued April 28, 2009 – owned by Tong Lung Metal Industry
Co., Ltd.
Serial No. 76708780

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We consider next the substantive issue of likelihood of confusion. Our
determination of the issue of likelihood of confusion is based on an analysis of all of
the probative facts in evidence that are relevant to the factors set forth in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also,
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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
(CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531 (Fed. Cir. 1997).
We will discuss each of the cited registrations separately, starting with Reg.
No. 1857478 for the mark E Z LOC (in standard character form) for “security and
fastening devices” in Class 6.
We start our analysis by determining the similarity between the marks. In
comparing the marks we must consider the appearance, sound, connotation and
commercial impression of the marks at issue. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). To evaluate the similarities between marks, the emphasis must be
on the recollection of the average purchaser who normally retains a general, rather
than specific, impression of trademarks. In re Cynosure, Inc., 90 USPQ2d 1644,
1645 (TTAB 2009), citing Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
Serial No. 76708780

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The marks at issue are applicant’s mark, EASY LOCK LLC in the design
form set forth below:

and EZ LOC (in standard character format).
While “the similarity or dissimilarity of the marks is determined based on the
marks in their entireties… there is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties.” In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
In our consideration, more weight has been given to the dominant literal
portion of applicant’s mark, EASY LOCK. The term “LLC,” as it appears in
applicant’s mark, is not only de minimis in size, but as a designation of entity, it has
no trademark significance. See In re Packaging Specialists, Inc., 221 USPQ 917,
919 (TTAB 1984). EASY LOCK and the mark in the cited registration, EZ LOC, are
phonetic equivalents. As such, they are similar in the appearance and sound. They
also have the same connotation and commercial impression.
Further the literal portion of applicant’s mark is given more weight than the
design element therein.
In the case of a composite mark containing both words
and a design, the verbal portion of the mark is the one
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most likely to indicate the origin of the goods to which it
is affixed.
In re Viterra Inc., 671 F3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012) citing CBS Inc.
v. Morrow, 708 F.2d. 1579, 128 USPQ 198 (Fed. Cir. 1983) (internal quotations
omitted).
Accordingly, since the dominant portion of applicant’s mark and entire mark
in the cited registration are similar in appearance and sound, and have the same
connotations and commercial impressions, the first du Pont factor favors a finding
of likelihood of confusion.
Applicant argues that the terms EZ and EASY are used on a wide variety of
products. This argument is purportedly based on “a search supplied by applicant
during prosecution.” However, applicant did not submit any search results during
prosecution. Further, applicant contends that the terms EZ and EASY are
suggestive “of something that may be easy to use, and may be handled and operated
easily.” Appeal Brief, p. 10. We agree that the terms EZ and EASY are suggestive
and thus weak. Although we acknowledge that EASY and its phonetic equivalent
EZ are weak terms, the scope of protection to which the mark EZ LOC is entitled
still extends to prevent the registration of applicant’s very similar mark EASY
LOCK & design.4
We consider next the similarity of the goods. As set forth in the Dixie
Restaurants case:

4 This determination applies equally to cited Registration No. 3613315 for the mark EZ
LOCK in stylized form.
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Likelihood of confusion must be determined based on an
analysis of the mark as applied to the goods… recited in
applicant's application vis-a-vis the goods… recited in [a]
… registration, rather than what the evidence shows
the...goods to be.
In re Dixie Restaurants Inc., 41 USPQ2d at 1534, quoting Canadian Imperial Bank
v. Wells Fargo Bank, N.A. , 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987).
The goods in the cited registration are “security and fastening devices in the nature
of metal locks.” Applicant’s goods, which are “a symmetrical, unidirectional, single
action centered cylinder, keyless and metal deadbolt door lock assembly for right or
left hand hung doors,” are metal door lock assemblies. As such, applicant’s goods
are closely related, if not legally identical to the goods identified in the cited
registration, and this du Pont factor favors a finding of likelihood of confusion.
Applicant contends that the channels of trade “may be somewhat distinct.”
However, there is no evidence of record to support this contention. Moreover, as set
forth in the Elbaum case:
where the goods in a cited registration are broadly
described and there are no limitations in the
identification of goods as to their nature, type, channels of
trade or classes of purchasers, it is presumed that the
scope of the registration encompasses all goods of the
nature and type described, that the identified goods move
in all channels of trade that would be normal for such
goods, and that the goods would be purchased by all
potential customers.”
In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Therefore, since the goods in the
cited registration are closely related, if not identical, to applicant’s goods, the goods
are deemed to travel in the same channels of trade and sold to the same customers.
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Applicant also alleges that the products in the cited registration and its
products are not purchased on impulse. Applicant has not provided any evidence to
support its allegation and hence it is not persuasive. Further, even if we accept that
purchasers of door locks exercise a heightened degree of care in selecting such
goods, we are not persuaded since the fact that “the relevant class of buyers may
exercise care does not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar goods. Human memories
even of discriminating purchasers are not infallible.” In re Research and Trading
Corp., 793 F2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (internal citation omitted).
Having considered all the evidence and arguments on the relevant du Pont
factors, whether discussed herein or not, we find that applicant’s mark is likely to
cause confusion with the mark E Z LOC (in standard character form), which is the
subject of Reg. No. 1857478.
Next we will discuss the issue of likelihood of confusion between applicant’s
mark, EASY LOCK LLC & design, as set forth below:

for “a symmetrical, unidirectional, single action centered cylinder, keyless and
metal deadbolt door lock assembly for right or left hand hung doors” in Class 6 and
the mark EZLOCK (in stylized form), as set forth below:
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for “electric locks, electronic locks, electric anti-burglar locks, magnetic card locks,
electric combination locks” in Class 9, which is the subject of Registration No.
3613315.
As with the cited mark discussed supra, the literal portion of the mark in this
cited registration and the literal portion of applicant’s mark are accorded greater
weight than the stylized font and design elements because the literal portions would
be used by customers to request the goods. See In re Appetito Provisions Co., 3
USPQ2d 1553, 1554 (TTAB 1987)
While there is some difference in appearance of applicant’s mark and the
cited mark, the dominant literal portions of the marks, EASY LOCK and EZ LOCK,
are phonetic equivalents and thus are legally identical in sound. “Similarity in
either form, spelling or sound alone may be sufficient to support a finding of
likelihood of confusion.” Interstate Brands Corp. v. McKee Foods Corp., 53 USPQ2d
1910 (TTAB 2000). “Despite specific differences in spelling … the dominant factor
for consideration is the likelihood of confusion arising from the similarity in sound
of the two words when spoken.” Krim-Ko Corp. v. Coca-Cola Co ., 390 F.2d 728, 156
USPQ 523, 526 (CCPA 1968) (Found the aural similarities of the marks VEEP and
BEEP to be such that confusion would be likely). Further, the marks have the same
connotation and commercial impression.
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Accordingly, since the dominant literal portions of the marks are similar in
sound and have the same connotations and commercial impressions, the first du
Pont factor favors a finding of likelihood of confusion.
We next consider the similarity of the goods, where we again compare the
goods as set forth in applicant's application (a symmetrical, unidirectional, single
action centered cylinder, keyless and metal deadbolt door lock assembly for right or
left hand hung doors) vis-a-vis the goods in the cited registration (electric locks,
electronic locks, electric anti-burglar locks, magnetic card locks, electric
combination locks).
To establish that keyless metal deadbolt door lock assemblies are related to
electric and electronic locks, the examining attorney has submitted copies of
webpages from the following sites on which mechanical, and electric and/or
electronic keyless metal deadbolt door locks are sold:
Emteck (www.emteck.com) – products include metal
deadbolts, electronic metal deadbolts, and electronic
metal keypads.
The Lockey Keyless Lock Store
(www.lockeystore.com) – products include keyless
mechanical digital deadbolt door locks and digital keyless
electronic deadbolt door locks.
Baldwin (www.baldwinhardware.com) – products include
electronic locks, electronic deadbolts, and metal lever
locks and deadbolts.
As previously discussed, keyless metal deadbolt assemblies are identical or
related to metal locks. The evidence introduced by the examining attorney
establishes that “keyless mechanical deadbolt door locks” are also related to
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“electric or electronic keyless metal locks or deadlocks.” These goods are sold by the
same parties on the same webpages. Therefore, not only are the goods related, but
the channels of trade are identical and thus, these du Pont factors favor a finding of
likelihood of confusion.
We again acknowledge applicant’s allegation that the goods are not the type
to be the subject of impulse purchases and note that applicant has not provided any
evidence to support its contention. Further, as previously discussed, even if the
purchasers are careful in selecting goods, we are not persuaded since the fact that
“the relevant class of buyers may exercise care does not necessarily impose on that
class the responsibility of distinguishing between similar trademarks for similar
goods. In re Research and Trading Corp, 230 USPQ at 50.
Finally, applicant contends that its application should be approved since the
two registrations cited against the grant of its application are co-existing.
Applicant’s contention presumes that the prior registration of a particular mark
should be of some persuasive authority in handling later applications involving
similar marks. However, we are not privy to the record of the prior registrations
and are bound to make a decision based on the record before us. See AMF Inc. v.
American Leisure Products, Inc., 177 USPQ 268, 269 (CCPA 1973); In re
International Taste, Inc., 53 USPQ2d 1604 (TTAB 2000); and In re Sunmarks Inc.,
32 USPQ2d 1470 (TTAB 1994).
Having considered all the evidence and arguments on the relevant du Pont
factors, whether discussed herein or not, we find that applicant’s mark is likely to
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cause confusion with the mark E Z LOC (in stylized character form), which is the
subject of Reg. No. 3613315.
Decision: The refusals to register are affirmed with respect to both cited
registrations.