Ecowater Systems LLCv.HongKong Ecoaqua Co., Limited

Trademark Trial and Appeal Board

Aug 23, 2018

No. 91216806 (T.T.A.B. Aug. 23, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed:
August 23, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Ecowater Systems LLC
v.
HongKong Ecoaqua Co., Limited
_____

Opposition No. 91216806
_____

Helen Hill Minsker and Michael J. Harris of Banner & Witcoff Ltd, for Ecowater
Systems LLC.

Tommy Songfong Wang and Jonathan Fang of Wang IP Law Group, P.C.,
for HongKong Ecoaqua Co., Limited.
_____

Before Kuhlke, Shaw and Greenbaum, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Applicant, HongKong Ecoaqua Co., Limited, seeks registration of the mark
for “refrigerator water filters,” in International Class 11 on the
Principal Register.1

1 Serial No. 86129082, filed November 26, 2013, based on allegations of first use and first
use in commerce on June 15, 2011 under Section 1(a), 15 U.S.C. § 1051(a). The application
includes the following description of the mark and color claim:

Opposition No. 91216806

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Opposer, Ecowater Systems LLC, has opposed registration of Applicant’s mark
on the ground that, as applied to Applicant’s goods, the mark so resembles
Opposer’s previously used and registered marks ECOWATER, ECOWATER
SYSTEMS and ECOWATER DRINKING WATER (and design) and other
ECOWATER-formative marks for various water treatment equipment and parts,
including residential water conditioners, water purifiers, filters, bottled drinking
water, water treatment services, and distributorship services featuring water
conditioners and bottled drinking water, as to be likely to cause confusion under
2(d) of the Lanham Act, 15 U.S.C. § 1052(d). By its answer, Applicant denies the
salient allegations.
RECORD
The record includes the pleadings and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file of the application subject to the notice of
opposition.
In addition, Opposer submitted the testimony declaration of Joan Marttila with
accompanying exhibits 1 through 34.2 Applicant’s objection to Ms. Marttila’s
testimony that Opposer’s products “may be used in place of refrigerator water
filters” as improper opinion testimony, is overruled. 67 TTABVUE 6. Ms. Marttila is

The mark consists of the wording “ECOAQUA”, with “ECO” in green beneath
a green leaf, and “AQUA” in blue beneath blue water droplets. The color
white in the drawing represents background areas only and is not a feature of
the mark.

The color(s) blue and green is/are claimed as a feature of the mark.

2 39-41 TTABVUE.
Opposition No. 91216806

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testifying as a fact witness, and as Opposer’s claims and litigation manager would
have sufficient knowledge about the products Opposer offers for sale to make that
statement.
Opposer also submitted with its notices of reliance: (1) USPTO Trademark
Electronic Search System (TESS) printouts of its pleaded registrations, which show
that the registrations are subsisting and owned by Opposer;3 (2) the file histories of
the pleaded registrations;4 (3) Applicant’s responses to certain interrogatories and
requests for admission;5 (4) Opposer’s second set of requests for admissions deemed
admitted;6 (5) Applicant’s produced documents authenticated by the requests for
admission deemed admitted.7
Applicant “contests” that certain of the produced documents, HKEAC 2-12, were
authenticated. 67 TTABVUE 6. The request for admission No. 75 reads as follows:
The documents Applicant produced bearing production numbers HKEAC 1 through
ECOAQUA 12 are authentic under the Federal Rules of Evidence. 51 TTABVUE 8.
In its reply brief, Opposer explains that “[Opposer’s] Second Set of Requests for
Admissions Nos. 73-75 authenticated all of the documents Applicant produced
during discovery bearing production numbers HKEAC 1 through ECOAQA 12,
which necessarily included HKEAC 2 through 12.” 68 TTABVUE 6. We do not find

3 37 TTABVUE. Pleaded registrations may be made of record by submitting “a current copy
of information from the electronic database records of the Office showing the current status
and title of the registration.” Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d).
4 37 TTABVUE.
5 38 TTABVUE.
6 38 TTABVUE; 51 TTABVUE. The corrected Exhibit D submitted on June 14, 2017 is
accepted.
7 38 TTABVUE.
Opposition No. 91216806

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this explanation helpful. Opposer also argues that such an objection is waived as it
was not made at the time Opposer filed its notice of reliance, i.e., it is a curable
defect. It would appear that requests for admission nos. 73-75 contain a typo
referencing ECOAQA (a numbering system pertaining to a different set of Applicant
produced documents for which authentication was requested in admission requests
Nos. 70-72) rather than HKEAC. These requests were made during discovery
meaning the “defect” occurred during discovery not at trial. It is not clear whether
this defect is curable. In any event, these handful of documents (HKEAC 2-12, 38
TTABVUE 77-88) are not necessary for our determination and we do not rely on
them.
Applicant did not submit testimony, but submitted with its notices of reliance (1)
the file history for Applicant’s subject application;8 (2) documents produced by
Applicant during discovery;9 and (3) documents produced by Opposer during
discovery.10
STANDING AND PRIORITY
Because Opposer has made its pleaded registrations properly of record, Opposer
has established its standing to oppose registration of Applicant’s mark and its

8 45 TTABVUE. This was unnecessary because it is automatically part of the record by
Trademark Rule 2.122(b)(1).
9 46 TTABVUE. Produced documents require authentication, by way of admission or
testimony. In addition, a party may not submit its own discovery responses except where
they should in fairness be considered so as to make not misleading what was offered by the
receiving or inquiring party. Trademark Rule 2.120(k)(5), 37 C.F.R. § 2.120(k)(5). Opposer
has not objected to these documents and we consider them stipulated into the record. Exec.
Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1176 n.9 (TTAB 2017).
10 47-49 TTABVUE. Applicant submitted other notices of reliance (43-44 TTABVUE, 54
TTABVUE); however, these were stricken by Board order. 56 TTABVUE.
Opposition No. 91216806

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priority is not in issue. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d
1270, 111 USPQ2d 1058 (Fed. Cir. 2014); Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982); and King Candy Co., Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
THE PARTIES
Opposer was formed in 1988 and has used ECOWATER as its name and brand
since that time. Marttila Test. ¶¶ 4-6, 39 TTABVUE 4-5. Opposer is “one of the
world’s largest manufacturers of residential water treatment systems, including
filters, water treatment and conditioning equipment, and rental, repair, and
maintenance services and equipment.” Id. at ¶ 5, 39 TTABVUE 4. Opposer offers its
water treatment products and services through at least 175 authorized dealers in
the United States and through retail chains such as Costco. Id. at ¶¶ 11-12, 39
TTABVUE 6. Opposer promotes its products through the Internet, radio, yellow
pages, magazines, journals, home shows, and television advertisements. Id. ¶ 13, 39
TTABVUE 6. Opposer markets its goods in residential and commercial channels
and general consumers are the ultimate target for Opposer’s products and services.
Id. ¶ 16, 39 TTABVUE 7. In a 1988/89 advertisement using the ECOWATER brand,
Opposer’s products are described as follows:
An ECO drinking water system in your home will remove
many of the elements that could give your water an
unpleasant taste and smell. Your water will be ideal for
drinking, cooking and beverages. … A special faucet can
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be installed right at your sink so you can have all the
fresh, clean water you need at your touch. It can also be
attached directly to your icemaker or instant hot water
tap. … Check the listing on the back of this brochure for
the EcoWater dealer nearest you.
Id. Exh. 3, 39 TTABVUE 24.
Below is an advertisement from an excerpt of the online yellow pages dated
March 17, 2008:11

Opposer’s products include reverse osmosis drinking water purification systems
that include various filters to remove sediment, tastes and odors and may be placed
under the kitchen counter. Id. ¶ 19, Exh. 5, 39 TTABVUE 10, 45. The water pipes
that connect to the kitchen faucet would also connect to the refrigerator, thus
Opposer’s products may serve to filter water coming through the refrigerator. See,
e.g., Marttila Test. Exh. 24, 40 TTABVUE 61 (diagram of reverse osmosis filter

11 37 TTABVUE 199. This was submitted as a specimen of use to support a Section 8
affidavit of continuing use in Opposer’s pleaded registration no. 2145816. See also Marttila
Test. Exh. 21, 40 TTABVUE 63.
Opposition No. 91216806

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placed under the kitchen sink taking in household water and connecting to the
refrigerator). Indeed, Ms. Marttila explained that some of Opposer’s products may
be used in place of refrigerator water filters. Id. ¶ 18, 39 TTABVUE 9.
As noted above, Applicant did not submit testimony but as gleaned from its
Interrogatory responses submitted by Opposer under notice of reliance, Applicant
sells its water filters through third-party direct distributors in the United States.
Response to Interrog. No. 1, 38 TTABVUE 13. Applicant first used its mark on June
15, 2011 in connection with its refrigerator water filters. Response to Interrog. No.
8, 38 TTABVUE 15. Applicant’s sales in 2011 were 65,000 by volume and $478,700
by revenue and grew to 1,850,000 in volume and $1,243,600 by revenue in 2014.
Response to Interrog. No. 10, 38 TTABVUE 16. Its channels of trade are third-party
distributors and the target market is residential use. Response to Interrog. Nos. 13-
14, 39 TTABVUE 16. Applicant does not advertise in the United States. Response to
Interrog. No. 16, 39 TTABVUE 17.
Applicant’s specimen of use is reproduced below:
Opposition No. 91216806

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LIKELIHOOD OF CONFUSION
Our likelihood of confusion determination under Section 2(d) 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 and 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). Two key considerations are the similarities between the
marks and the similarities between the goods. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). As noted above,
Opposer pleaded and proved several registrations for the mark ECOWATER. For
purposes of our likelihood of confusion analysis, we confine our analysis to
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Opposer’s mark in pleaded and proven Registration No. 1555661, summarized
below, because if we do not find likelihood of confusion with the mark and goods in
this registration, we would not find it as to the other pleaded and proven
registrations. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Registration No. 1555661 for the typed form12 mark
ECOWATER for “water treatment equipment and parts
thereof, namely - residential water conditioners, domestic
reverse osmosis water purifiers, and filters, ion
exchangers and degasifiers for treating liquids,” in
International Class 11, issued on September 12, 1989,
Sections 8 & 15 declaration accepted and acknowledged,
renewed.13
Relatedness of Goods, Channels of Trade, Classes of Purchasers
We turn first to a consideration of the goods, channels of trade and classes of
purchasers. We must make our determinations under these factors based on the
goods as they are recited in the registration and application. See In re Elbaum, 211
USPQ 639 (TTAB 1981).
Opposer’s “water treatment equipment and parts thereof, namely … filters”
listed in Registration No. 1555661 are legally identical to Applicant’s “refrigerator
water filters” because the identification in Opposer’s registration “water treatment”
“filters” are not restricted by type and therefore the identification encompasses
“refrigerator water filters.”14

12 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings. A typed mark is the legal equivalent of a standard character mark. TMEP
§ 807.03(i) (October 2017).
13 37 TTABVUE 7-10.
14 We note that Opposer’s argument incorrectly focuses on the additional wording “for
treating liquids” in its identification of goods; however, that phrase attaches to the
preceding wording “ion exchangers and degasifiers” and the word “filters” is separated by a
Opposition No. 91216806

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Considering the channels of trade and classes of purchasers, because the goods
are legally identical and there are no limitations as to channels of trade or classes of
purchasers in either the application or Opposer’s registration, we must presume
that Applicant’s and Opposer’s goods will be sold in the same channels of trade and
will be bought by the same classes of purchasers. See In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (TTAB 2012); Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Canadian Imperial Bank v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987); Genesco Inc. v.
Martz, 66 USPQ2d 1260, 1268 (TTAB 2003); In re Smith and Mehaffey, 31 USPQ2d
1531 (TTAB 1994).
Applicant argues that the goods are not legally identical focusing on Opposer’s
argument that tied its “filters” to the phrase “for treating liquids.” However, as
explained above, the water treatment filters encompass Applicant’s goods without
being tied to the wording “for treating liquids.” Applicant also argues that Opposer
does not sell refrigerator water filters, rather Opposer only sells water treatment
equipment products “some of which have filters as part of their water treatment
system such as their Domestic Reverse Osmosis water purifiers.” App. Brief, 67
TTABVUE 14. Again, the identification in the registration does not restrict the
water treatment filters to being sold as part of a system, rather it includes “filters”
as part of a list of different items that are part of a category of goods defined as

comma from that phrase. See In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163,
1166 (TTAB 2013); TMEP § 1402.01(a).

Opposition No. 91216806

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“water treatment equipment and parts thereof,” meaning it includes “water
treatment” “filters” sold separately.
However, even if the identification in the registration is read to restrict
Opposer’s filters to those “enclosed/encapsulated as a part of Opposer’s water
treatment equipment/systems,” Applicant’s “refrigerator water filters” are closely
related to such goods. 67 TTABVUE 13. As discussed above, the record reveals that
Opposer’s actual goods do have the function of filtering refrigerator water.
Applicant admits that “free standing water filters placed on the water line used for
a refrigerator would serve the same function as a water filter built into the
refrigerator.” Response to Request for Admission No. 23, 38 TTABVUE 26.
Finally, Applicant argues that refrigerator water filters are not sold for the
identical purpose as Opposer’s water treatment equipment and parts, namely filters
because they are not complementary or meant to work together with refrigerator
water filters. 67 TTABVUE 13. However, the goods need not be complementary or
competitive to find that there is a likelihood of confusion. In re Iolo Techs., LLC, 95
USPQ2d 1498, 1499 (TTAB 2010); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366,
1368 (TTAB 2009). The issue is not whether the goods and/or services will be
confused with each other, but rather whether the public will be confused as to their
source. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not
related to, one another in kind, the same goods can be related in the mind of the
consuming public as to the origin of the goods. It is this sense of relatedness that
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matters in the likelihood of confusion analysis.”); In re Shell Oil Co., 992 F.2d 1204,
1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); Safety-Kleen Corp. v. Dresser Indus.,
Inc., 518 F.2d 1399, 1403–04, 186 USPQ 476, 480 (CCPA 1975); In re Ass’n of the
U.S. Army, 85 USPQ2d 1264, 1270 (TTAB 2007). It is sufficient that the goods
and/or services of the applicant and the registrant are related in some manner or
that the conditions surrounding their marketing are such that they are likely to be
encountered by the same persons under circumstances that, because of the marks
used in connection therewith, would lead to the mistaken belief that they originate
from the same source. See, e.g., On-line Careline Inc. v. America Online Inc., 229
F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000) (holding ON-LINE TODAY for
Internet connection services and ONLINE TODAY for an electronic publication
likely to cause confusion).
We find that Opposer’s goods, even when restricted to a water treatment system
that includes filters rather than filters sold separately, are related to Applicant’s
“refrigerator water filters” in purpose, treating household water, including
refrigerator water. Applicant’s “refrigerator water filters” could be viewed as an
extension or addition to Opposer’s line of water treatment products. In addition,
even if we do not presume overlapping channels of trade, the record establishes that
Opposer advertises widely in various media and offers its products for sale through
dealers and in large stores such as Costco. Applicant admits that it is not restricted
from offering its goods through any trade channel or to any classes of customers.
Response to Request for Admission Nos. 45-49, 38 TTABVUE 30-31. Applicant
Opposition No. 91216806

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admits that commercial enterprises, including restaurants, are among its intended
customers. Response to Request for Admission No. 33, 38 TTABVUE at 32. Opposer
sells its water treatment products in Costco, Marttila ¶ 12, 39 TTABVUE 6, and
Applicant sells its goods online in similar types of stores such as Walmart and
Sears. Response to Interrog. No. 28, 38 TTABVUE 37.
In view of the above, the du Pont factors of the similarity of the goods, the
channels of trade and classes of purchasers favor a finding of likelihood of confusion.
Purchasing Conditions
With regard to the conditions of sale, because we are bound by the description of
goods in the application and registration and because the descriptions of goods are
not restricted as to price, the goods at issue are presumed to include inexpensive as
well as expensive goods. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014). Moreover, we consider this
factor in the context of the least sophisticated purchaser. Id. (“Although the services
recited in the application also encompass sophisticated investors, Board precedent
requires the decision to be based ‘on the least sophisticated potential purchasers.’”)
(quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600
(TTAB 2011), judgment set aside on other grounds, Gen. Mills, Inc. v. Fage
Luxembourg S.A.R.L., 110 USPQ2d 1679 (nonprecedential) (TTAB 2014)). The
refrigerator water filters sold under Applicant’s mark are relatively inexpensive
products that would be purchased by ordinary purchasers and would not be
purchased with a great deal of care or require purchaser sophistication, which
Opposition No. 91216806

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increases the likelihood of confusion. Recot Inc. v. M.C. Becton, 54 USPQ2d at 1899
(“When products are relatively low-priced and subject to impulse buying, the risk of
likelihood of confusion is increased because purchasers of such products are held to
a lesser standard of purchasing care”) (citations omitted). By contrast, Opposer’s
water treatment systems sold through dealers would involve a more careful
purchasing decision, but those water treatment products sold at Costco are the
same general consumers of Applicant’s refrigerator water filters. In addition, the
identification in Opposer’s registration, encompasses items such as filters sold
separately through the same type of trade channels and to the same consumers as
Applicant. Nonetheless, these are not impulse items and we find this factor only
slightly weighs in Opposer’s favor.
Similarity of the Marks
We now consider the similarity or dissimilarity of Applicant’s mark
and Opposer’s mark ECOWATER when compared in their entireties in terms of
appearance, sound, connotation and commercial impression, keeping in mind that
“when marks would appear on virtually identical goods or services, the degree of
similarity necessary to support a conclusion of likely confusion declines.” Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed.
Cir. 1992). See also Bridgestone Americas Tire Operations LLC v. Fed. Corp., 673
F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1260 (Fed. Cir. 2011).
Opposition No. 91216806

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The marks are similar in appearance and sound in that they both begin with the
prefix ECO. The remainder of the marks WATER and AQUA while different in
appearance and sound are similar in connotation. AQUA is defined as 1. Water 2.
An aqueous solution 3. A light bluish green to light greenish blue. Marttila Test.
Exh. 15 (AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE retrieved from
www.freedictionary.com), 40 TTABVUE 37. The dictionary excerpts provided by
Opposer indicate AQUA is a word-forming element from Latin meaning water.
Marttila Test. Exh. 14 (Online Etymology Dictionary retrieved from
http://dictionary.reference.com), 40 TTABVUE 34. Applicant admits that AQUA is
the Latin word for water. Response to Request for Admission No. 35, 38 TTABVUE
29. Applicant is deemed to have admitted that AQUA connotes WATER and that it
intends for AQUA to connote WATER. Certainly, sold in the context of “refrigerator
water filters” most, if not all, consumers would understand the common Latin
combining form AQUA to mean WATER.
We further observe as to the element of appearance, because Opposer’s mark in
the registration is in standard characters, we must consider all depictions of the
marks including the same manner of depiction regardless of the font style, size, or
color. See In re Viterra Inc., 101 USPQ2d at 1910; Citigroup Inc. v. Capital City
Bank Group, Inc., 98 USPQ2d at 1259. While we do not include the design elements
of the leaf and water droplets in Applicant’s mark as a possible depiction of
Opposer’s mark, the design elements emphasize the meanings for the separate
parts of Applicant’s mark. The droplets emphasize the connotation of AQUA to
Opposition No. 91216806

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mean WATER. The leaf over the prefix ECO also simply serves to emphasize the
shared meaning of ecological or environmental.15 In general, it is the word portion of
a mark that is remembered by consumers and, as such, presents a more dominant
presence over the design elements. In re Viterra Inc., 101 USPQ2d at 1908 (quoting
CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“[T]he
verbal portion of the mark is the one most likely to indicate the origin of the goods
to which it is affixed”). We find this to hold true here, in particular, where the
design elements serve to emphasize the shared connotation.
We find the marks to be similar in appearance, sound, meaning and overall
commercial impression, and this similarity in the marks, where the goods are
legally identical or closely related, as discussed above, outweighs the dissimilarities.
This factor weighs in Opposer’s favor.
Strength of Opposer’s Mark
Applicant argues that Opposer has not established that its mark is famous.
While fame can be a strong factor in determining likelihood of confusion, it is not
required in order to find likelihood of confusion. Moreover, although this record does
not support a finding that Opposer’s mark is so famous that the fifth du Pont factor
would outweigh the other factors, based on the record we find that Opposer’s mark

15 We take judicial notice of the dictionary definition of ECO as “a combining form
representing ecology in the formation of compounds (ecosystem; ecotype); also with the
more general sense ‘environment,’ ‘nature,’ ‘natural habitat’ (ecocide; ecolaw; ecopolitics).”
Dictionary.com Based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018). The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).

Opposition No. 91216806

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is a commercially strong mark in residential water treatment. Opposer has used the
mark for approximately 30 years in connection with its residential water treatment
products, has 175 dealers offering its products throughout the United States, and
has been advertising its products through the Internet, radio, yellow pages,
magazines, journals, home shows, and television. Moreover, there is no evidence
under the sixth du Pont factor, the number and nature of similar marks in use on
similar goods, to narrow the scope of protection to be accorded to Opposer’s mark.
We find this factor to slightly favor Opposer.16
Actual Confusion
Evidence of actual confusion is not necessary to establish a likelihood of
confusion. Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1338 (Fed. Cir.
2001). While the absence of actual confusion may weigh against a finding of
likelihood of confusion, the absence of any reported instances of confusion is
meaningful only if the record indicates a reasonable opportunity for confusion to
have occurred. Barbaras Bakery, Inc. v. Barbara Landesman, 82 USPQ2d 1283,
1287 (TTAB 2007).
Applicant contends that because there are no reported instances of actual
confusion over the past approximately seven years in which the parties have been
concurrently using their marks, there is no likelihood of confusion. However, there
is little evidence of Applicant’s use of its mark, and nothing in the record upon
which to make a finding as to the extent of overlapping use in the same markets.

16 We add that even if we found this factor to be neutral that would not change the outcome.
Opposition No. 91216806

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Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). We find
this factor to be neutral.
Extent of Potential Confusion
Finally, Applicant argues that any potential confusion is de minimis, because
“Opposer has not proffered a situation (actual or hypothetical) that suggests a
customer of either party would likely confuse Applicant’s mark for
refrigerator water filters with Opposer’s ‘661 Mark ECOWATER for Water
Treatment Equipment.” 67 TTABVUE 28. In view of the legally identical or
otherwise closely related goods and the similarity of the marks, likely confusion is
not de minimis.
Balancing the Factors
We have considered all of the evidence pertaining to the relevant du Pont
factors, as well as the parties’ arguments with respect thereto (including any
evidence and arguments not specifically discussed in this opinion). In balancing the
relevant factors, we conclude that because the goods are legally identical or
otherwise closely related, the trade channels and classes of customers overlap, and
the marks are similar, confusion is likely.
Decision: The opposition is sustained.