Edgecraft Corporationv.Smith’s Consumer Products, Inc.

Trademark Trial and Appeal Board

Jul 12, 2013

No. 92054092 (T.T.A.B. Jul. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
April 24, 2013 July 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Edgecraft Corporation
v.
Smith’s Consumer Products, Inc.1
_____
Cancellation No. 92052940
Cancellation No. 92054092
Cancellation No. 92054104
_____
Jennifer Fraser of Connolly Bove Lodge & Hutz LLP for Edgecraft Corporation.

Kathryn Bennett Perkins of Rose Law Firm for Smith’s Consumer Products, Inc.
_____

Before Bucher, Bergsman and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

Edgecraft Corporation (“petitioner”) filed three petitions, each seeking to
cancel a registration of the trademark EDGEWARE, in standard character form,
belonging to Smith’s Consumer Products, Inc. (“respondent”). Upon the parties’
joint motion, the three cancellation proceedings were consolidated by an order of the

1 Respondent, formerly named Smith Abrasives, Inc., changed its name as of May 23, 2012.
The change of name has been recorded in the Assignments Branch of the Patent and
Trademark Office at Reel 4808, Frame 0704.
Cancellation Nos. 92052940; 92054092; 92054104

2

Board dated August 25, 2011. The three registrations at issue relate to the
following goods:
Reg. No. 3617203:2 Electric knife sharpeners; Electric scissor sharpeners;
Power operated sharpeners; Hand tools, namely, knife
sharpeners; hand-operated sharpening tools and
instruments; knife sharpeners; manually operated
sharpeners; sharpening rods; sharpening stones;
whetstones;

Reg. No. 3881712:3 Hand operated kitchen tools, namely, slicers, choppers
and mandolins for cutting food; and

Reg. No. 3951563:4 Hand operated kitchen tools, namely, graters.

As grounds for cancellation, petitioner has alleged priority of use and
likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d). Petitioner has alleged that it is the owner of the trademark
EDGECRAFT, which it uses and has used in the manufacture and sale of knife
sharpeners and other household tools and appliances; that it is the owner of several
U.S. registrations of the mark EDGECRAFT and of other marks that include the
designation EDGECRAFT combined with additional matter; that petitioner has
priority of use over respondent and its mark; and that respondent’s registered mark
EDGEWARE, as applied to respondent’s goods, so resembles the mark
EDGECRAFT as to be likely to cause confusion, or to cause mistake, or to deceive as
to the source of respondent’s goods. Respondent has denied the salient allegations
of the petitions for cancellation.

2 Issued May 5, 2009, based on an application filed March 12, 2008.
3 Issued November 23, 2010, based on an application filed July 28, 2009.
4 Issued April 26, 2011, based on an application filed July 28, 2009.
Cancellation Nos. 92052940; 92054092; 92054104

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In connection with the petition to cancel Reg. No. 3617203, petitioner has
pleaded ownership of the following U.S. registrations:
Reg. No. 1678267 for the mark EDGECRAFT for “electric knife sharpener”;5

Reg. No. 1870338 for the mark EDGECRAFTER for “hand operated sharpeners for
knives and other cutting tools; and hand-held tools, namely,
files”;6

Reg. No. 2810653 for the mark EDGECRAFT WORLD LEADER IN CUTTING
EDGE TECHNOLOGY for “electric sharpeners for cutting
instruments, namely, knives and scissors” and “manually
operated knives, namely, kitchen knives and hand operated
sharpeners for knives and other cutting tools”;7

Reg. No. 2625106 for the mark EDGESELECT for “electric knife sharpener”;8

Reg. No. 1831107 for the mark EDGECRAFTER DIAMOND HONE SET for
“manual files and sharpeners.”9

In connection with the petitions to cancel Reg. Nos. 3881712 and 3951563,
petitioner has pleaded ownership of the above registrations and, in addition, has
pleaded ownership of the following registrations:
Reg. No. 1832619 for the mark EDGECRAFTER for “manual files and
sharpeners”;10

Reg. No. 1868018 for the mark EDGECRAFT DIAMOND FILE SET for “hand
tools; namely, files”;11

5 Registered March 10, 1992, based on an application filed November 19, 1990; renewed.
6 Registered December 27, 1994, based on an application filed December 21, 1992; renewed.
7 Registered February 3, 2004, based on an application filed February 24, 2003. Section 15
affidavit acknowledged.
8 Registered September 24, 2002, based on an application filed May 17, 2001; renewed.
9 Registered April 19, 1994, based on an application filed July 20, 1993; renewed.
10 Registered April 26, 1994, based on an application filed July 19, 1993: renewed.
11 Registered December 20, 1994, based on an application filed July 19, 1993; renewed.
Cancellation Nos. 92052940; 92054092; 92054104

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Reg. No. 2135689 for the mark EDGECRAFT for “manual sharpeners for knives
and other cutting tools.”12

I. The record
The record includes the pleadings and, by operation of Trademark Rule
2.122, 37 C.F.R. § 2.122, the registration files for respondent’s marks. The record
also includes the testimony and evidence set forth below:13
A. Petitioner’s Evidence.
1. Testimony deposition of Samuel Weiner, petitioner’s President, with
attached exhibits.

2. Testimony deposition of Valerie Jean Gleason, petitioner’s public
relations, marketing, communications manager, with attached
exhibits.

3. Testimony deposition of Margaret Lynn Liddle, petitioner’s sales
manager.

4. Testimony deposition of Michael M. Kilyk, petitioner’s sales manager,
with attached exhibits.

5. Testimony deposition of Tracy L. Bray, former acting assistant
manager at GHR14, Lancaster, PA, with attached exhibits.

6. Testimony deposition of John Rae, Buying Director, UKDA,15 with
attached exhibits.

Petitioner also relies upon portions of the discovery depositions (and related
exhibits), submitted by stipulation of the parties, of the following persons:

12 Registered February 10, 1998, based on an application filed January 31, 1997; renewed.
13 A note on confidentiality: The parties have designated most information relating to their
customers and prospective customers as highly confidential. Accordingly, instead of
naming the parties’ customers, we will identify them by defined terms relating to their
general type of entity.
14 GHR is a gourmet housewares retailer that has offered goods of both parties.
15 UKDA is a distributor of petitioner’s goods in the United Kingdom.
Cancellation Nos. 92052940; 92054092; 92054104

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7. Daniel Lee Glidden, respondent’s Chairman and CEO.

8. Samuel Weiner, petitioner’s President.

9. Michael M. Kilyk, petitioner’s sales manager.

10. The late Daniel D. Friel, Sr., petitioner’s former Chief Executive
Officer.

11. Daniel D. Friel, Jr., petitioner’s Vice President of Operations.

12. Mark Shannon Adkison, respondent’s Vice President of Global Sales.

13. Mary Katherine DaRin, petitioner’s manager of trade shows and
special events.

14. Jon A. Holmquist, owner of Edgemaster Mobile Sharpening.

15. Geoffrey D. Rapp, Vice President of Engineering and Quality, Bettcher
Industries.

Petitioner also submitted, with its notice of reliance and rebuttal notice of
reliance, its pleaded registrations, various printed publications, selected responses
of respondent to interrogatories, requests for admission, and requests for
production, web page printouts, discovery documents produced by the parties (by
stipulation), and prosecution histories of U.S. trademark applications of third
parties.
B. Respondent’s Evidence.
1. Testimony deposition of Daniel Lee Glidden, petitioner’s President and
CEO, with attached exhibits.

2. Testimony deposition of Mark Shannon Adkison, petitioner’s Vice
President of Global Sales, with attached exhibits.

Respondent also relies upon portions of the discovery depositions (and related
exhibits), submitted by stipulation of the parties, of the following persons:
Cancellation Nos. 92052940; 92054092; 92054104

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3. Daniel Lee Glidden, respondent’s Chairman and CEO.

4. Samuel Weiner, petitioner’s President.

5. Michael M. Kilyk, petitioner’s sales manager,.

6. The late Daniel D. Friel, Sr., petitioner’s former Chief Executive
Officer.

7. Daniel D. Friel, Jr., petitioner’s Vice President of Operations.

8. Mark Shannon Adkison, respondent’s Vice President of Global Sales.

9. Mary Katherine DaRin, petitioner’s manager of trade shows and
special events.

10. Jon A. Holmquist, owner of Edgemaster Mobile Sharpening.

11. Geoffrey D. Rapp, Vice President of Engineering and Quality, Bettcher
Industries.

12. Janet Shen, owner of YE and YK Enterprise.

13. Richard Wayne Axelrod, President of The Ultimate Edge,
Incorporated.

14. Henry F. O’Dougherty, President and CEO of Darex, LLC.

Respondent also relies upon affidavits, submitted by stipulation of the parties, of
the following persons:
15. Benton Dale, President of EdgePro, Inc.
16. John R. Anton, President of Great American Tool Company, Inc.
17. Chris Jurey, Treasurer of Klawhorn Industries, Inc.
18. Morgan A. Taylor, President of Taylor Brands, LLC.
19. Daniel Sander, President of United Security Seals, Inc.
20. Clay Allison, President of Wicked Edge Precision Sharpeners.
Cancellation Nos. 92052940; 92054092; 92054104

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Respondent also submitted, with its notice of reliance, copies of U.S.
registrations owned by itself and by third parties, printed publications, selected
responses of petitioner to interrogatories, web page printouts, and discovery
documents produced by the parties (by stipulation).
Testimony depositions are cited herein as “[witness] Dep.” Discovery
depositions are cited as “[witness] DD.” Petitioner’s notice of reliance is cited as
“PNOR”; respondent’s as “RNOR.”
II. Petitioner’s motion to strike respondent’s brief.
Petitioner, in its reply brief, noted that respondent’s main brief was filed late
and requested that the Board strike it.16 Petitioner contends that its own main
brief was due on August 4, 2012 (a Saturday) and that respondent’s brief was
accordingly due 30 days later on September 3, 2012 (a federal holiday), in
accordance with 37 C.F.R. § 2.128(a)(1); that, because of the holiday, respondent’s
brief should have been filed on the next business day, September 4; but that
respondent actually filed its brief on September 5, 2012.
Respondent argues that its brief was, in fact, timely filed because Trademark
Rule 2.196, 37 C.F.R. § 2.196, which allows a party whose deadline falls on a
Saturday, Sunday or holiday to act on the next non-holiday weekday, shifted the
“due date” of petitioner’s brief to August 6, thereby shifting the date from which
respondent’s due date should be calculated. Alternatively, respondent urges that its

16 Petitioner’s reply brief at 1.
Cancellation Nos. 92052940; 92054092; 92054104

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failure to file its brief in a timely manner was the result of an error made in good
faith, without prejudice to petitioner.17
Trademark Rule 2.196 “is not applicable when the opening of an assigned
period … falls on a Saturday, Sunday or Federal holiday.” TBMP § 112.
Accordingly, it did not shift the date from which respondent’s due date should have
been calculated. Nonetheless, it is clear that respondent’s tardiness, by one day,
was the result of a miscalculation made without bad faith, and there is no
indication of prejudice to petitioner. Moreover, it serves the Board’s policy of
deciding cases on their merits and it benefits the Board in its ability to make a just
determination of the case to have the briefs of both parties before it. Accordingly,
petitioner’s motion to strike respondent’s brief on the case is denied.
III. The parties
Petitioner is a manufacturer of housewares with manufacturing facilities in
Pennsylvania. Petitioner was formed in 1984, but had its first full year of
operations in 1996. Weiner Dep. at 9. Petitioner produces and markets “electric
sharpeners, manual sharpeners, hybrid-type sharpeners ... electric food slicers,
electric kettles, electric waffle makers, electric egg cookers, … meat grinders, and
other miscellaneous products, including knives and some hardware tools, such as
files.” Weiner Dep. 10:5-11. Petitioner’s sharpeners are primarily for sharpening
knives, but it also produces sharpeners for scissors and sharpeners that can be used
to sharpen “hatchets, arrows, fishhooks. Just about anything that has an edge or a

17 Respondent’s surreply brief at 1-3.
Cancellation Nos. 92052940; 92054092; 92054104

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point on it.” Weiner Dep. 10:16-21. Petitioner sells virtually all of its products
through retailers in the United States, and directs its goods to the “gourmet,”
“sports,” and “hardware” market segments. Petitioner sells to commercial
customers, such as restaurants, hotels, and caterers, through dealers and
distributors. Weiner Dep 18:5-12. Petitioner also sells through internet retailers
and exports its goods to 70 foreign countries. Weiner Dep. 11:8-23. While petitioner
maintains that it sells all of its goods under the EDGECRAFT brand (Weiner Dep.
9:23-10:1), it is also clear from the record that the CHEF’S CHOICE brand is an
extremely important one for petitioner. According to respondent, the CHEF’S
CHOICE brand accounts for the largest market share of the knife sharpener
industry. Glidden DD 58:7-10.
Respondent is a company with a long history in the field of sharpeners for
knives and other tools. As early as 1886, respondent mined and distributed
novaculite (also known as “Arkansas stone”), an abrasive stone used to make
traditional flat knife-sharpening stones. Glidden Dep. 8:13-21. Today, under a
number of trademarks including SMITH’S and a variety of marks that include the
designation EDGE, respondent produces and markets electric and manual
sharpeners for knives and other tools. Glidden DD at 11. Respondent has described
its consumer retail market as divided into the following segments: housewares,
sporting goods, hardware, clubs, grocery, and internet. Glidden DD 164, Exhibit 43.
Respondent adopted the mark EDGEWARE particularly for use in the housewares
segment. Respondent’s customers are primarily retailers, distributors, and
Cancellation Nos. 92052940; 92054092; 92054104

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consumers. Glidden DD 31. Respondent apparently does not target the commercial
segment of the market, such as the hospitality industry or industrial customers.
Glidden Dep. 13:13-14:1. Among relevant competitors in the sharpener industry,
respondent considers itself to be “one of the larger ones.” Glidden DD 59:9.
Beginning at least as early as 2006, respondent has used various marks that
incorporate the designation EDGE, including THE EDGE EXPERTS,
EDGESPORT, EDGEWORK, DIAMOND EDGE GOURMET, CERAMIC EDGE
GOURMET, EDGE GRIP, and KNOWLEDGE; and respondent owns U.S.
registrations of many of such trademarks. Glidden Dep. at 9-10, 24-25; RNOR
Exhibit A-1.
The parties have stipulated that “they are competitors in the marketplace.”18
Indeed, the evidence shows that they are in a posture of intense direct competition.
Respondent has described petitioner as “Smith’s biggest competitor in knife
sharpeners,” (Glidden DD at 118) and described petitioner’s CHEF’S CHOICE
brand as “who we viewed as our primary competitor.” Glidden DD at 76. Petitioner
said of respondent, “out of all the competitors that we have in the marketplace,
Smith Abrasives has made the greatest effort to replicate the breadth of our
sharpeners across those three major categories [electric, manual, and hybrid
sharpeners].” Weiner Dep. at 90. Respondent has acknowledged that “In order to
grow our business in the housewares’ channel, we would either have to grow the

18 PNOR, Ex. 9 (stipulations of the parties).
Cancellation Nos. 92052940; 92054092; 92054104

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market or take share from Chef’s Choice and any other competitors.” Glidden DD
154:3-6 and 12-14; see also Glidden DD Exhibit 41 at SMITHS1621.
The parties have kept an eye on each other in recent years. After
respondent’s adoption of the EDGEWARE mark, petitioner’s President encouraged
employees to be alert to instances of confusion between the two companies’ brands.
Weiner Dep. at 66 and Exhibit 213. In 2008, respondent commissioned a formal
competitive analysis of petitioner. Glidden DD 80:20-21 and Exhibits 28 and 32. In
2010, respondent prepared an in-house competitive evaluation of petitioner.
Glidden DD 161:22-25 and Exhibit 43. Retailers were aware of the competitive
posture of the two parties. When respondent vied for the opportunity to sell
through an important mass market retailer (hereinafter, “MMR”), the retailer’s
buyer requested empirical evidence of the performance of respondent’s products as
against Chef’s Choice products. Glidden DD 168:8-11 and Exhibit 44. To be clear,
the record indicates that the competitive stance of the parties related to all
segments of the market and all marks of the parties. Unless it is specified in the
evidence, we do not assume that a competitive position between the parties involved
the EDGEWARE mark in competition with the EDGECRAFT mark, as both parties
were making vigorous use of a number of other trademarks.
The competitive environment between the parties is illustrated by several
salient incidents. In 2010, respondent persuaded GHR to carry some of
respondent’s products. In order to obtain this arrangement, respondent agreed to
reduce GHR’s inventory by “buying back” from GHR approximately 1200 Chef’s
Cancellation Nos. 92052940; 92054092; 92054104

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Choice Model CC120 electric sharpeners, thereby creating the retail space that
respondent’s goods would occupy. Adkison Dep. 13:10-14:11 and Exhibit 321.
Respondent intended to resell the sharpeners of petitioner on a clearance basis and,
after offering them to several retailers, did resell them to two online retailers.
Adkison Dep. 15:15-16; Glidden DD 183-184. Petitioner appears to have viewed
such competitive gains of respondent as detrimental to itself to some extent.
Weiner Dep. 65:11-14. Moreover, as will be discussed later, certain instances of
alleged actual confusion regarding the parties’ marks involved GHR.
There is also evidence indicating that the parties competed directly for the
opportunity to market their goods with the mass market retailer MMR, and that
while one party held the account, the other was excluded from that retailer. Friel,
Sr. DD 33:22-33:11 and Exhibit 107.
Finally, we note also that respondent’s goods have been offered on the
website (but not in the stores) of a certain middle-range housewares retailer
(hereinafter “MRHR”) that petitioner describes as one of its most important
customers; and that respondent would like to make its goods available in that
retailer’s stores. Glidden DD 159:13-20; Weiner Dep. 11:11; 12:2-3; 13:17.
IV. Standing
Petitioner has made of record its pleaded U.S. registrations by filing copies of
the registrations from the online database records of the Patent and Trademark
Office. Petitioner has also presented evidence of its use of the trademark
EDGECRAFT in connection with knife sharpeners and other household goods.
Cancellation Nos. 92052940; 92054092; 92054104

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Petitioner has thereby shown that it is not a mere intermeddler and has established
its standing to bring these proceedings. Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842 (Fed. Cir. 2000); and Lipton Industries, Inc. v. Ralston Purina
Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
V. Priority
Because this is a cancellation proceeding, priority is in issue despite the fact
that petitioner has made of record its pleaded registrations. See Brewski Beer Co. v.
Brewski Brothers, Inc., 47 USPQ2d 1281, 1284 (TTAB 1998). For purposes of
establishing a date of first use of its trademark EDGEWARE, respondent may,
under Section 7 of the Trademark Act, rely upon the filing dates of the applications
underlying its involved registrations. 15 U.S.C. § 1057(c). The earliest such date,
relating to Reg. No. 3617203, is March 12, 2008. Moreover, respondent has
admitted that it had no rights in the mark EDGEWARE prior to that date.19
Petitioner, similarly, is entitled to rely upon the filing dates of the
applications underlying its pleaded registrations, all of which predate March 12,
2008. See fn. 5 through 12, above. In particular, we note that petitioner’s earliest
registration of EDGECRAFT, relating to electric knife sharpeners, has an
underlying application filing date of November 19, 1990; and petitioner’s
registration of EDGECRAFT relating to manual sharpeners has an underlying
application date of January 31, 1997. Inasmuch as the filing dates underlying all of

19 Response to Petitioner’s First Set of Requests for Admission, No. 26 (PNOR Exhibit 4.)
Cancellation Nos. 92052940; 92054092; 92054104

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petitioner’s pleaded registrations predate March 12, 2008, petitioner has
established its priority.
VI. Likelihood of Confusion
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 as set forth in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In this case, the parties have
presented evidence and arguments relevant to nearly all of the established du Pont
factors.
A. Actual Confusion.
The centerpiece of petitioner’s case is petitioner’s contention that in the
relatively brief time between the 2008 adoption of the EDGEWARE mark and the
time of trial, a substantial amount of actual confusion occurred in the market.
Respondent criticizes at length each alleged incident of confusion and argues that
petitioner’s evidence of alleged confusion consists largely of inadmissible hearsay.20
We have reviewed petitioner’s accounts of confusion with a critical eye, not only
with respect to the problem of hearsay but also as to the witnesses’ competence to
testify regarding the incidents and as to the degree of detail with which the

20 Respondent’s brief at 39-52.
Cancellation Nos. 92052940; 92054092; 92054104

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incidents are described; and we have carefully considered respondent’s criticisms of
the accounts.21
We find the evidence of the following incidents to be lacking in sufficient
detail to be probative of actual confusion:
(i) The inquiry by a website editor as to whether petitioner was now
owned by respondent. Gleason Dep. at 12 and Exhibit 216.

(ii) Telephone inquiry by a producer/coordinator of a television show,
based upon written contact instructions that referred to both petitioner
and respondent. Weiner DD at 187.

(iii) Account of woman who entered petitioner’s booth at trade show, “asked
to look at some Edge…,” stopping in mid-sentence. Kilyk Dep. at 18.

(iv) Statement made at a trade show by Canadian customers that they had
purchased from petitioner a product that petitioner does not make.
Liddle Dep. at 11; see also DaRin DD 99-104.

(v) Inquiry on respondent’s blog regarding the “smith
electric 120.” PNOR, Exhibit 4 (Respondent’s response to second set of
requests for admission, Exhibit H).

(vi) Inquiry to respondent from online retailer regarding “new opportunity
for… Chef’s Choice.” PNOR, Exhibit 7G at SMITHS3209-3210.

We also find that the following incidents do not demonstrate actual
confusion, but rather perspicacious awareness that respondent and petitioner’s
brands are different:
(vii) Reported comments from third parties that new EDGEWARE
packaging was similar to packaging of petitioner. Liddle Dep. at 17-18.

(viii) Comments of a buyer and a sales representative of petitioner to the
effect that it was not appropriate of respondent to use the

21 Although we have found many of the incidents adduced by petitioner not to be probative
of actual confusion, in some instances we have deemed the incidents relevant to the du Pont
factors of trade channels and renown of the senior mark, as discussed later in this decision.
Cancellation Nos. 92052940; 92054092; 92054104

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EDGEWARE name because of its similarity to EDGECRAFT. Kilyk
Dep. at 11, 29, 35 and Exhibit 218.

The following incidents do not demonstrate actual confusion; rather, they
appear to be mere slips of the tongue by persons who were fully aware of the
distinction between the parties’ brands:
(ix) E-mail message from potential distributor of petitioner indicating that
he was “looking forward to getting started selling the Edgeware
products.” PNOR Exhibit 6E at EDGE2372.

(x) E-mail to respondent from marketing consultant eager to “secure the
business under Edgecraft.” PNOR Exhibit 7C at SMITHS1538.

(xi) Purchase order sent to respondent, with address of petitioner and
other inconsistent entries. Glidden Dep. at 51-52, Exhibit 317.

(xii) E-mail from Russian distributor of respondent erroneously referring to
Edgecraft. Id. at Exhibit 318.

(xiii) E-mail from military customer of respondent referring to listing of
vendor code under Edgecraft. Adkison Dep. at 12 and Exhibit 320.

(xiv) Communications mistakenly sent to petitioner from GHR relating to
return to petitioner of CHEF’S CHOICE model 120 sharpeners that
should instead be returned to respondent, which had agreed to accept
such goods as a “return to vendor.” Weiner Dep. at 71, 85-89 and
Exhibit 214.

There are, however, several incidents recounted in the record that we find to
be probative, to varying degrees, of actual confusion in the marketplace. They are
discussed below.
1. Acting Assistant Manager for GHR.
Testimony was given by a former Acting Assistant Manager GHR, a gourmet
retailer that is a customer of both petitioner and respondent, and which petitioner
refers to as one of its most important accounts and as a store that lends prestige to
Cancellation Nos. 92052940; 92054092; 92054104

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the goods offered in it. The witness was stationed in a store in Pennsylvania. She
had previously held the post of Coordinator, in which her duties were “inventory,
primarily.” Bray Dep. 11:8-9. She described her role in arranging product
demonstration events referred to as “marketplace” events:
Marketplace was to allow the vendors to come into the
store and demonstrate their products and talk about their
products, not just to associates, but then it was also open
to the public when the store was open.
Bray Dep. 12:12-16.
My role was contacting all of the vendors to have them
come in, to see who could make it, setting up the stations
once we knew who was coming in, asking, what did they
need from us, and then basically making sure that
everybody had what they needed once they were there.
Bray Dep. 13:3-9.
She described an incident in which petitioner participated in the marketplace
demonstration:
I remember setting up the station, and then the
EdgeCraft representative approached me saying, this is
not EdgeCraft. She could not demonstrate it. And it was
taken away.
Q. When you say “it,” what do you mean?
A. The other brand of knife sharpner, Edgeware
specifically.
Q. Why did you set up the demonstration with
Edgeware for the EdgeCraft representative?
A. I was not aware that Edgeware was not Edgecraft.
I saw “Edge” and pulled all of the various knife
sharpeners that had that name, thinking that it was part
of it.
Cancellation Nos. 92052940; 92054092; 92054104

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Q. When you say “thinking it was part of it,” what do
you mean?
A. I assumed Edgeware was part of EdgeCraft. It was
the same type of knife, the same company made it.
Q. Why did you assume it was the same company?
A. The name “Edge.”
…
EdgeCraft – there aren’t that many knife sharpeners out
there, and EdgeCraft is what we had carried. And when I
saw Edgeware, I assumed Edgeware was part of
EdgeCraft.
…
EdgeCraft had been in the store first, and then Edgeware
came out, and lack of knowledge, if you will, just thought
it was part of the same company.

Bray Dep. 14:21-16:12
The representative of petitioner at the marketplace demonstration was Mary
Katherine DaRin. In testimony, she identified an e-mail that she addressed to Sam
Weiner regarding the incident, which stated:
Sunday, November 7, 2010 I participated in a vendor day
at the Lancaster, Pennsylvania [GHR]. … Chef’sChoice
was the only knife sharpener represented at this vendor
event. …
When I arrived at my station the Store Manager had my
area set up with our 1520 and the Edgeware Ceramic
Edge Gourmet Sharpener. I questioned her and asked if
Smith was going to be participating in this event. She
had a puzzled look. The Store Manager believed that
Edgeware was an EdgeCraft product and thought it was a
new sharpener in our line. As the associates circled
through they asked questions about the new Edgeware
sharpener thinking that it was an addition to our line. …
… Once the difference in manufactures was pointed out to
the Store Manager she was apologetic and removed the
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Edgeware model from my demo area. Smith did not send
a representative to this event.
DaRin DD, Ex. 116.22
Respondent argues that Ms. Bray “was fairly new to the job and was not
knowledgeable about the products at issue,” and points to Ms. Bray’s excuse that
her error was due to “lack of knowledge.”23 Even assuming that Ms. Bray had
insufficient information about the products at issue, her account would nonetheless
be probative, because typical consumers have even less knowledge about specific
products. In any event, the evidence suggests that Ms. Bray had substantially more
familiarity with the field of goods at issue than most people in the marketplace.
That she was actually confused suggests strongly that consumers, who have less
information than she, are likely be confused. Morningside Group Ltd. V.
Morningside Capital Group, L.L.C., 182 F.3d 133, 51 USPQ2d 1183 (2d Cir. 1999).
2. The United Kingdom distributors.
The Buying Director of petitioner’s exclusive United Kingdom distributor
(“UKDA”) testified that in March, 2010 he attended the International Home and
Housewares Show in Chicago, a trade show of prime importance at which both
petitioner and respondent had booths in different halls of the convention area. He
arranged to have coffee with a buyer for a competing United Kingdom distributor
that operates in the field of kitchen and home products. He testified as follows:

22 We consider Ms. DaRin’s account for the objective information it contains. We give no
weight to her perceptions of the Store Manager’s state of mind or what the Store Manager
“believed” about the products.
23 Respondent’s brief at 41.
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20

[W]hen I met her,… she actually asked me why [UDKA]
were distributing this brand in the U.K. and also a U.K.
company called [UKDB]24 were distributing the same
brand.
Rae Dep. 12:12-17.
And she also questioned why they had two different
stands in two different halls because they looked very
similar.
Rae Dep. 14:3-5
She actually said to me when I met her for a coffee that
she couldn’t understand why the two companies in the
U.K., that being [UKDA] and [UKDB], were distributing
the same brand, that being Edgecraft. But then I
explained to her that it wasn’t the same brand, there was
actually another company called Edgeware who did
similar products, that being knife sharpeners, as those to
Edgecraft.
Q. Do both [UKDA] and [UKDB] distribute Edgecraft
products in the U.K.?
A. No.
Q. Who does distribute Edgecraft products in the
U.K.?
A. Edgecraft is from [UKDA]. Edgeware is from
[UKDB].
Rae Dep. 14:19-15:8. See also Exhibit 223 (an e-mail account of the same incident,
directed to Sam Weiner: “The buyer asked me why both [UKDA] and [UKDB], were
distributing Chefs Choice/Edgecraft products in the UK.”).
Mr. Rae was competent to testify as to what happened to him and the
questions that were asked of him by the second buyer (“declarant”). The declarant’s

24 “UKDB” is, according to this account, a United Kingdom distributor that distributes
EDGEWARE products. Rae Dep. 15:7-8.
Cancellation Nos. 92052940; 92054092; 92054104

21

questions are not in evidence for the purpose of proving the truth of any matter
asserted, but merely to demonstrate that they were asked. See Programmed Tax
Systems, Inc. v. Raytheon Co., 439 F. Supp. 1128, 197 USPQ 509 (S.D.N.Y. 1997);
Fun-Damental Too, Ltd. V. Gemmy Industries Corp., 111 F.3d 993, 42 USPQ2d
1348 (2d Cir. 1997). It is clear, from the nature of the declarant’s questions that she
perceived, mistakenly, that there were two distributors handling petitioner’s goods
in the United Kingdom.
The fact that Mr. Rae and the declarant distribute goods in a foreign country
does not reduce the probative value of this account, as respondent contends.25 Mr.
Rae was a customer of petitioner and his traffic in goods of petitioner was in
international commerce involving the United States, a form of commerce that is
regulable under the Trademark Act. Similarly, the declarant was a businessperson
who was engaged in commerce between the United States and the United Kingdom.
Moreover, she was engaged in a field of business in which she may have had an
interest in becoming a customer of petitioner.
3. Resale of Chef’s Choice goods to online retailer.
As explained above in Part III, in 2010 respondent “bought back” from GHR
approximately 1200 Chef’s Choice Model CC120 electric sharpeners in order to
persuade GHR to carry some of respondent’s goods. Adkison Dep. 13:10-14:11 and
Exhibit 321. In the process of finding a buyer for the Chef’s Choice sharpeners
bought back from GHR, respondent prepared a quotation document on which the

25 Respondent’s brief at 41-42.
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22

Chef’s Choice model CC120 was pictured and described along with six other
sharpening products of respondent. Glidden DD 125:4-5; 127:6-9 and Exhibit 36.
The EDGEWARE trademark appears prominently twice in logo form at the top of
the page. The quotation document was apparently used in offering the bought-back
merchandise to various retailers. Glidden DD 128:10-21. Ultimately, one of the
companies to whom the goods were sold displayed the product on its website in a
surprising format. On a web page dedicated to products of “Smith’s” with an 8-line
description of the Smith’s company, five products are presented in thumbnail
presentation. The Model CC120 is the first item, and it is identified as “Smith’s
Chef’s Choice 120 Professional Knife Sharpener.” PNOR Exhibit 6A at EDGE0011-
0013. An associated web page dedicated to this single product depicts the product
in larger format, again identifying it as “Smith’s Chef’s Choice 120 Professional
Knife Sharpener.” Id. The name “Smith’s” appears above the photograph of the
product. The product description text begins, “From your pocket knives and
hunting blades to gourmet chef’s knives and even serrated kitchen knives, Smith’s
Chef’s Choice 120 three-stage professional sharpener renews any blade’s razor-
sharp edge without destroying the temper.” Id.
Respondent argues that the online retailer’s mistaken description of the
petitioner’s product “is not an example of confusion between Edgeware and
Edgecraft”; that petitioner’s product was branded CHEF’S CHOICE and that
“’Edgecraft Corporation’ is only referred to on the bottom of the packaging”; and
that “Smith’s has never sold any EDGEWARE products to [the online retailer], so
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23

there is no reason to think that anyone confused Edgeware with Edgecraft.”
(Respondent’s brief at 46; see Glidden Dep. at 50.) The evidence indicates that the
Model CC120 package bears only an inconspicuous reference to EdgeCraft Corp. on
the back of the box. RNOR Exhibit E-09 at EDGE0001071. However, the
instruction manual for the Model CC120 bears prominent trademark presentation
of EDGECRAFT as a trademark. RNOR Exhibit E-07 at EDGE0001070.
Also relevant to this incident is an exchange of e-mails between petitioner’s
employee Michael Cunningham and Customer Service of the online retailer. Mr.
Cunningham’s message states, in part:
I noticed that on your website, that you are selling a
product with a description that includes two different
brand names into one. Both Chef’sChoice and Smith’s. I
called your customer service department to determine
what the product actually was and they confirmed that it
was from Smith’s Abrasives, not Chef’sChoice, which is
made by the EdgeCraft Corporation. Your offering also
show’s an image of the Chef’sChoice product.
[URL omitted.]
In the interest of your customers receiving what they
actually think they are getting, could I ask you to correct
the copy and image to reflect a Smith’s electric knife
sharpener….?
RNOR Exhibit E-06 at EDGE0001716.
The response from the online retailer’s Customer Service states, in part:
The vendor who we received the Chef’s Choice 120
Diamond Hone 3 state professional knife sharpener, Item
3587R, may be manufactured by Smith’s Abrasives.
We have entered an inquiry to the product specialist to
see who the manufacturer is….
Cancellation Nos. 92052940; 92054092; 92054104

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Id. at EDGE0001715.26
The pieces of this puzzle fit together only imperfectly. As a result, as
respondent notes, the evidence does not clearly demonstrate that a mistake was
caused by the similarity of the mark EDGEWARE to the mark EDGECRAFT.
Nonetheless, this incident shows a series of very troubling mistakes. Respondent’s
inclusion of the CHEF’S CHOICE model 120 on the quotation sheet, under the bold
trademark EDGEWARE and commingled with products of respondent, results in
the uncomfortable blending of the good will of respondent with the good will of
petitioner. Similarly, the online retailer’s advertisement of a “Smith’s Chef’s Choice
120 Professional Knife Sharpener” blends the good will of respondent with the good
will of petitioner. The product in question, a model 120, bears the mark
EDGECRAFT at least as a sub-brand, even though that mark is not apparent in the
photographs on the quotation sheet and the online advertisement. In the case of
the quotation sheet, that marked product was clearly associated with – and one
could say, marketed under – the trademark EDGEWARE. The message of the
online retailer to Mr. Cunningham clearly demonstrates that, as of that time, the
problem at issue had not yet been resolved, as the online retailer wrongly suggests
that the item “may be manufactured by Smith’s Abrasives.” If this incident does
not undeniably illustrate confusion as between the EDGECRAFT and EDGEWARE

26 We consider this exchange of emails without regard to the truth or falsity of any matter
asserted in them. In particular, we give no credence to Mr. Cunningham’s statement that
“I called your customer service department to determine what the product actually was and
they confirmed that it was from Smith’s Abrasives, not Chef’sChoice”; or to any suggestion
in the responsive message that the vendor may have stated that the product “may be
manufactured by Smith’s Abrasives.” Rather, we consider the fact that the exchange took
place and the fact that error as to source is apparent on the face of the communications.
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25

marks, the collection of circumstances underlying it are a near-perfect recipe for
likely confusion.
Considering all of the evidence of record on this point, we find the factor of
actual confusion in the marketplace weighs in favor of a finding of likelihood of
confusion.
B. The parties’ goods.
We next consider the similarity or dissimilarity of the goods at issue. The
three involved registrations cover different sets of goods. Each registration must be
considered separately because, even though the three cancellation proceedings have
been consolidated, each proceeding maintains its own character and we decide each
one on its own merits. TBMP § 511.
1. Respondent’s Reg. No. 3617203.
The goods identified in respondent’s Reg. No. 3617203 are essentially
identical to the goods collectively identified in petitioner’s Reg. Nos. 1678267 (for
the mark EDGECRAFT) and 2810653 (for the mark EDGECRAFT WORLD
LEADER IN CUTTING EDGE TECHNOLOGY). The registrations of both parties
cover electric knife sharpeners, hand-operated knife sharpeners, and electric
sharpeners for scissors. A number of respondent’s goods are identified broadly, such
that they include within their scope petitioner’s electric and hand-operated knife
sharpeners, to wit: “power operated sharpeners; … hand-operated sharpening tools
and instruments; … manually operated sharpeners.” Respondent’s “sharpening
rods; sharpening stones; whetstones” are types of “hand operated sharpeners for
Cancellation Nos. 92052940; 92054092; 92054104

26

knives and other cutting tools,” as identified among petitioner’s goods. We note that
in the petition against respondent’s Reg. No. 3617203, petitioner did not plead
ownership of any registration for the mark EDGECRAFT alone (without
accompanying slogan) that covers manual sharpeners or electric scissors
sharpeners. However, there is testimony that petitioner produces such goods and
there is evidence of the use of the EDGECRAFT mark on such goods. Weiner Dep.
10:16-21 and Exhibit 202 at EDGE0001072 and EDGE0001074. In light of all of
these facts, the du Pont factor relating to the similarity of the goods favors a finding
of likelihood of confusion with respect to respondent’s Reg. No. 3617203.
2. Respondent’s Reg. No. 3951563.
The goods identified in Reg. No. 3951563 are “hand operated kitchen tools,
namely, graters.” None of petitioner’s pleaded registrations includes graters within
its scope, and the evidence indicates that graters are not among the goods offered by
petitioner. Petitioner’s President described petitioner’s range of products under the
EDGECRAFT mark as follows:
We sell electric sharpeners, manual sharpeners, hybrid-
type sharpeners. We sell slicers, electric food slicers,
electric kettles, electric waffle makers, electric egg
cookers, grinders, meat grinders, and other miscellaneous
products, including knives and some hardware tools, such
as files.
Weiner Dep. 10:5-11.
The question before us is therefore whether the goods of petitioner with
respect to which it has priority of use of its EDGECRAFT mark are related in some
manner or are marketed in such a way that they would or could be encountered by
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27

the same relevant customers under circumstances that could, because of similarities
of the marks used on them, give rise to the mistaken belief that they originate from
or are in some way associated with the same producer. Edwards Lifesciences Corp.
v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB 2010); Schering Corporation v.
Alza Corporation, 207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corporation
v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978).
Petitioner argues that its products are closely related to graters; that “as a
manufacturer of household appliances, Edgecraft is constantly considering
broadening its offerings into other products”; that graters “are clearly within
Edgecraft’s zone of natural expansion”; and that “small household appliances such
as sharpeners, graters, … travel through, at least, overlapping trade channels and
to, at least, overlapping consumers ….”27 Petitioner’s President testified that
graters are sold:
… in the same type of market segments that we operate
in, in gourmet stores, department stores, Internet
accounts, mail order catalogs that cater to people that are
interested in cooking.
Weiner Dep. 16:10-14.
Again, it’s considered a food preparation item, and its
generally used to reduce a big piece of food into small
pieces. And that can be done many different ways. It
could be done by chopping either with a chopper or with a
knife. It could be done with a grater, as Smith Abrasives
and other companies sell, or it could be done by means of
diamond files, for example, or a meat grinder.
Id., pp. 17-18.

27 Petitioner’s brief at 17.
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28

Petitioner also points to Glidden DD Exhibit 316, which shows a 2011 catalog
of respondent on the cover of which a grater is depicted alongside a manual knife
sharpener and an electric knife sharpener and within which graters are
characterized as “kitchen tools,” together with text that states, “Edgeware’s
strategic expansion into food preparation kitchen tools is a natural progression
offering next-generation solutions to professional chefs and home cooks alike.”
Glidden DD, Exhibit 316 at SMITHS 91-92 (emphasis supplied). Finally, petitioner
notes that the parties have stipulated, “The parties agree they have at least some of
the same classes of consumers in common,” and “The parties agree they have at
least some of the same trade channels in common.”28
Respondent argues, “That both companies sell knife sharpeners is of little
import where, as here, the products are not marketed in a way that suggests they
come from the same source.”29 Respondent points out that petitioner does not sell
graters “and has no plans to do so,” which is confirmed by petitioner’s President:
Q. You also mentioned graters earlier. Has EdgeCraft
Corporation ever done any research on offering a grater?
A. We have done research on graters. Have been
approached by companies that were in the grater business
that talked to us about the possibility of introducing
graters on – under the EdgeCraft umbrella.
Again, based on the priorities that we had in our
business, we chose at that point not to pursue the grater

28 PNOR, Ex. 9 (stipulations of the parties). Despite petitioner’s urging, we do not read
these stipulations as an outright admission that graters travel through the same channels
of trade as petitioner’s goods, or are purchased by the same classes of consumers.
29 Respondent’s brief at 22.
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29

business. But it is one that is open for later
consideration.
Q. Do you have any definite plans right now to offer
graters in the future?
…
[objection to form omitted]

A. We do not have any specific plans right now to
introduce graters into the market.
Weiner Dep. 93:21-94:19. See also Weiner DD 29:13.
Graters may fairly be characterized as “kitchen tools”; as such they are
similar, in a general way, to the kitchen knives identified in petitioner’s Reg. No.
2810653 as well the electric food slicers, electric kettles, electric waffle makers,
electric egg cookers, and meat grinders identified by Mr. Weiner as products offered
by petitioner under the EDGECRAFT mark. Even though petitioner may have
decided not to expand its line of goods to include graters, customers for petitioner’s
goods would likely believe that a grater offered under an identical or highly similar
mark emanates from petitioner. Accordingly, with respect to respondent’s Reg. No.
3951563, the du Pont factor relating to the similarity of the goods favors a finding of
likelihood of confusion.
3. Respondent’s Reg. No. 3881712.
The goods identified in Reg. No. 3881712 are “hand operated kitchen tools,
namely, slicers, choppers and mandolins for cutting food.”30 None of petitioner’s
pleaded registrations includes slicers, choppers or mandolines within its scope.
However, petitioner’s Reg. No. 2810653 for the mark EDGECRAFT WORLD

30 The words “mandolin” and “mandoline” appear to be used interchangeably. We will use
“mandoline.”
Cancellation Nos. 92052940; 92054092; 92054104

30

LEADER IN CUTTING EDGE TECHNOLOGY covers “manually operated knives,
namely, kitchen … knives.” The evidence also indicates that petitioner sells
“electric food slicers” under the EDGECRAFT mark. Weiner Dep. 10:7. A depiction
of packaging in which petitioner offered a food slicer under the EDGECRAFT mark
as of the time of trial is of record. Weiner Dep. 38:8-10 and Ex. 202, EDGE1090.
Petitioner contends that choppers and mandolines are closely related to
petitioner’s range of goods. Petitioner’s president testified as follows:
We’re constantly looking at ways of broadening our
business. We’ve looked at many products, including some
that Smith Abrasives is currently selling. For example, a
mandoline, since we were in the, in the electric slicer
business, the function of an electric food slicer is very
similar to a mandoline. So we had researched that
market. We had developed some prototypes internally.
But, up until this point, we have not pursued that
business.
Q. Based on your experience, where are mandolines
typically sold?
A. Mandolines are typically sold in the same market
segment that our other products are sold. They’re
primarily in the housewares and gourmet market
segment, on the Internet and any type of store that caters
to people interested in cooking.
Q. Where are choppers typically sold?
A. Similar market segments that I previously
described. Also in cook stores, gourmet stores,
department stores, the Internet, generally retailers that
cater to cooking enthusiasts.
Weiner Dep. 15:6-16:7.
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31

The fact that goods such as choppers and mandolines are sold through
channels of the types described by Mr. Weiner is confirmed by respondent’s
President. See Glidden Dep. 12:3-7.
Respondent points out that petitioner does not sell mandolines or choppers
and has no plans to do so. See Weiner Dep. 92:5-93:20. In particular, petitioner’s
President testified under cross-examination as follows:
Through the process of research and development and
evaluating products, there’s always competition amongst
those products, in our opinion, which one is most
compelling for us to tackle, because we don’t have
unlimited resources. So the choices did not necessarily
preclude mandolines, but we felt there were better
opportunities for us to redirect our attention to other
products.
…
We have not established specific plans for introducing a
mandoline in the future, but it’s always been on our radar
screen that it’s a very compatible product with our electric
slicer business.
…
We have looked at that product line [choppers] and, again,
we chose to pursue products that accomplished the same
food prep type of work in different ways. Grinders, for
example, in many ways accomplish the same thing that a
chopper would. Knives will also accomplish the same
thing in a different format.
Weiner Dep. 92:12-93:15.
Respondent’s slicers, choppers and mandolines are identified as “kitchen
tools” in respondent’s registration and in this regard they are similar, in a general
way, to petitioner’s core products (knife sharpeners) as well as petitioner’s other
goods. The kitchen knives identified in petitioner’s pleaded Reg. No. 2810653 are
similar in purpose to respondent’s slicers, choppers and mandolines. Both parties
Cancellation Nos. 92052940; 92054092; 92054104

32

appear to focus on marketing such goods through housewares and gourmet
channels. The fact that petitioner has produced and marketed an electric food slicer
and has considered expanding its line of goods to include choppers and mandolines
suggests that consumers would readily believe that choppers and mandolines might
emanate from petitioner. We find that, with respect to respondent’s Reg. No.
3881712, the du Pont factor relating to the similarity of the goods favors a finding of
likelihood of confusion.
C. The parties’ trade channels.
We turn next to consider the parties’ established and likely-to-continue trade
channels. By stipulation, the parties have agreed that “they have at least some of
the same channels of trade in common” and that “they advertise through at least
some of the same media.” (Stipulation of September 30, 2011, RNOR Ex. G-02.)
Moreover, to the extent that the parties’ goods are identical (i.e., electric knife
sharpeners and hand-operated knife sharpeners), we must presume that the
parties’ goods move through the same channels of trade. See American Lebanese
Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d
1022, 1028 (TTAB 2011); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB
1994); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
Respondent testified that it sells its EDGEWARE branded products in “what
we call the Gourmet Housewares Channel, that would include retailers from
[MRHR], [three other retailers omitted],31 and then up to [GHR].”32 Respondent sells

31 The record does not contain sufficient information about the three omitted retailers to
allow us to characterize them.
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33

directly to retailers; through independent sales representatives; and to distributors
in the United States and abroad.33 There is also evidence that respondent sells its
goods to Amazon.com for marketing on the internet. Glidden Dep. 29:14 and
Exhibit 307.
Petitioner, similarly, states that it sells its product to retailers in the
“gourmet market” segment, and describes GHR as one of its most important
accounts and MRHR as its biggest customer. Weiner Dep. 11:11; 12:2-3; 13:17.
Petitioner also sells to internet retailers, including Amazon, and exports its
products to approximately 70 countries. Id. 11:18-23. Unlike respondent, petitioner
also markets its goods to “sports market” retailers and to “hardware market”
retailers. Id. 11:13-17.34 (Respondent sells to the sports and hardware markets,
but under marks other than EDGEWARE.)
The parties also market their respective goods at some of the same trade
shows. Respondent displays EDGEWARE products at the International Home and
Housewares Show (Chicago); Atlanta International Gift and Home Furnishings
Market, Ace Hardware Show, TruServ Hardware Show, and the Gourmet
Housewares Show (San Francisco). Glidden Dep. 22:24-23:2 and Exhibit 303. The
record indicates that petitioner’s personnel attend the same shows. Kilyk Dep.
15:16-23; Gleason Dep. 9:2-8; Liddle Dep. 7:25-8:2. We note that the mistake

32 Glidden Dep. 12:3-7.
33 Id., 11:11-14.
34 While respondent contends that its EDGEWARE branded goods are not sold into the
sports and hardware markets, the record is clear that respondent sells similar goods under
different brands into those markets.
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34

recounted in the Rae Deposition related, in part, to the fact that both petitioner
and respondent had booths at the same trade show.
The record also indicates that both parties have advertised their products in
the publications Kitchenware News, HomeWorld, Fine Cooking, and Housewares
Executive. Glidden Dep. 20:3-10 and Exhibit 302; Glidden DD at 67; Weiner Dep. at
19; PNOR Ex. 2F at EDGE326-8.
Respondent argues that, in an important respect, the trade channels of the
parties are not the same. Respondent maintains that its EDGEWARE products are
offered exclusively in the gourmet housewares trade channel, while petitioner’s
EDGECRAFT line of goods is “generally found in sporting goods stores.”35
Respondent argues that the products offered by petitioner in the housewares
channel are actually branded CHEF’S CHOICE and are not branded EDGECRAFT;
that only 10% of petitioner’s products have the mark EDGECRAFT prominently
displayed on the packaging (citing Weiner Dep. at 236);36 and that respondent’s
personnel had no knowledge of the existence of EDGECRAFT branded goods in the
housewares channel (citing Glidden Dep. at 35 and Adkison DD at 85-86).
The record is replete with evidence showing the importance of the CHEF’S
CHOICE mark to petitioner. Respondent implies that the CHEF’S CHOICE brand
is, in the housewares market, greatly more important to petitioner than the
EDGECRAFT brand. We need not make a finding as to that point because, even if
CHEF’S CHOICE were the primary brand on all of petitioner’s products in the

35 Respondent’s brief at 52.
36 Id. at 13.
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35

housewares market, the evidence indicates that the trademark EDGECRAFT
usually appears on the CHEF’S CHOICE package, albeit in a subsidiary role.
Respondent’s suggestion that EDGECRAFT is relegated to use as a trade name, not
a trademark, in the housewares channel is not supported by the record, although
there are examples of packages and promotional materials on which EDGECRAFT
does appear to be merely a trade name. Nonetheless, petitioner has submitted
numerous samples of packaging artwork for CHEF’S CHOICE products which were
in use on packages at the time of trial, showing the designation EDGECRAFT
displayed in the manner of a trademark, rather than a trade name. Weiner Dep.
38:6-19 and Exhibit 202. These examples include packaging for the CHEF’S
CHOICE Diamond Hone Sharpener, which displays, on the panel opposite the front
face of the box, the designation EDGECRAFT in distinctive lettering that is larger
than all other lettering on the panel (EDGE1073); similar displays on the CHEF’S
CHOICE manual knife sharpener, models 450, 440 and 430 (EDGE1074-1076); and
the CHEF’S CHOICE EdgeCrafter diamond sharpening steel, sharpening stone,
and diamond rod sharpener, on the backs of which EDGECRAFT is presented in
distinctive lettering larger than all text other than the primary trademarks
(EDGE1079-1084). Accordingly, the EDGECRAFT mark is found in the housewares
market by virtue of its display on the packaging of goods that are marketed under
the primary trademark CHEF’S CHOICE.
Going beyond this, petitioner has submitted evidence that it has marketed
some of its products in housewares channels in a manner such that it is clear that
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36

EDGECRAFT is the primary trademark. Weiner Dep. 39:5-40:16 and Exhibit 203.
Exhibit 203 includes depictions of the EDGECRAFT Hybrid 21 knife sharpener,
EDGECRAFT models 10, 30, 35 and 42 knife sharpeners, and EDGECRAFT model
609E food slicer. Petitioner’s president testified that the Model 35 has been
marketed in the housewares section of a certain mass market retailer; the model 30
and model 10 in a certain club store; and the model 10 in the housewares section of
another club store. Weiner Dep. 39-12-40:16.
On the present record, there is no doubt that the CHEF’S CHOICE brand
was present in the housewares channels of interest to respondent. Respondent’s
President referred to CHEF’S CHOICE as the “primary brand” of knife sharpeners
in the housewares channel (Glidden Dep. 34:11-12), and made of record
photographs showing displays of CHEF’S CHOICE products in stores including
GHR and another gourmet housewares retailer, MRHR, MMR and two other
kitchen goods retailers. Glidden Dep. 36-41 and Exhibits 309 and 310. In several of
these photographs, the CHEF’S CHOICE product is displayed in close proximity to
an EDGEWARE product. Glidden Dep. Exhibit 309 at SMITHS982-983 and
Exhibit 310 at SMITHS5208, 5214 and 5216 (GHR displays).
Since petitioner regularly displayed the EDGECRAFT mark, as a trademark,
on its CHEF’S CHOICE products, the EDGECRAFT mark was present in the
housewares market. Accordingly, even if respondent’s EDGEWARE products were
present in the housewares channel and nowhere else, it would be sharing that
channel with the EDGECRAFT mark.
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We note, as relevant to the factor of trade channels, evidence of incidents
demonstrating that certain persons in the trade were familiar with both petitioner
and respondent, and with their respective EDGECRAFT and EDGEWARE marks.
We note in particular an inquiry from a website editor as to whether petitioner was
owned by respondent (Gleason Dep. at 12 and Exhibit 216); an inquiry by a
producer/coordinator of a television show (Weiner DD at 187); reported comments
from third parties that new EDGEWARE packaging was similar to packaging of
petitioner (Liddle Dep. at 17-18); comments of a customer of petitioner to the effect
that it was not appropriate of respondent to use the EDGEWARE name because of
its similarity to EDGECRAFT. Kilyk Dep. at 11, 29, 35 and Exhibit 218. Such
evidence gives deeper significance to the similarity between the trade channels of
the parties, as it shows that the marks of both parties were, in many cases,
successfully reaching the same people and making an impression on them.
Considering all of the foregoing, the du Pont factor relating to established
trade channels weighs in favor of a finding of likelihood of confusion.
D. Customers and Conditions of Sale.
Both parties clearly intend that their marked products will ultimately reach
the types of consumers that shop in housewares stores, the housewares
departments of stores, and stores that offer gourmet kitchen goods.37 Such
consumers would encounter the parties’ goods not only in the retail store
environment, but also in the context of online retailers. There is no substantial

37 Respondent’s brief at 38; petitioner’s brief at 11-12.
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evidence to indicate that such consumers have an elevated degree of sophistication.
However, respondent argues that consumers for the parties’ goods exercise extra
care because the goods are expensive.38 This contention is not borne out by the
evidence because some of the parties’ goods are relatively simple in nature and
inexpensive (e.g., a rod sharpener). Some of petitioner’s goods are priced under $20.
Weiner DD at 52. Some of respondent’s goods are priced under $10. Glidden DD at
49. While some of the parties’ other goods are quite expensive (e.g., higher-end
electric sharpeners), there is the potential for impulse purchasing of the goods of
either party.
Both parties also consider their customers to include professional distributors
and buyers for retail establishments. Respondent correctly points out that such
buyers are sophisticated by virtue of their understanding of the marketplace and
their professional interest in the specific field of housewares. While we do not
assume that any type of customer is immune to trademark confusion, such
professional customers would ordinarily be more resistant to confusion than typical
consumers. See Morningside Group Ltd. V. Morningside Capital Group, L.L.C., 182
F.3d 133, 51 USPQ2d 1183 (2d Cir. 1999).
Petitioner also markets its goods to dealers who in turn sell to commercial
customers, such as restaurants, hotels, and caterers. Weiner Dep. 18:5-12.
Respondent apparently does not intentionally target commercial customers for its

38 Respondent’s brief at 37.
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EDGEWARE products. Accordingly, for purposes of our analysis this customer base
is not significant.
Because of the wide range of customer types and marketing environments,
we consider this du Pont factor to be neutral.
E. Renown of the senior mark.
Petitioner contends that it is “the leading branded company in the knife
sharpener marketplace,” and the record shows that its sales and advertising
expenditures are very substantial.39 Although petitioner has submitted voluminous
evidence relating to recognition of its mark in the marketplace, such evidence is not
of a type or quality as to allow us to find that the strength of the reputation of the
mark would have a perceptible impact on the likelihood of confusion.
We do, however, note evidence of several specific incidents in which
individuals doing business with respondent (business which apparently had nothing
to do with petitioner) accidentally interjected references to the designation
EDGECRAFT into their communications. This type of slip of the tongue at least
illustrates an awareness of petitioner among persons in the relevant trade. (As we
discuss later, we do not consider such slips of the tongue to be evidence of
trademark confusion.) In particular, we note such communications involving a
marketing consultant to respondent (PNOR Exhibit 7C at SMITHS1538); a
customer issuing a purchase order to respondent (Glidden Dep. at 51-52, Exhibit
317); a Russian distributor of respondent (Id. at Exhibit 318); and a military

39 Petitioner’s brief at 8.
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customer of respondent (Adkison Dep. at 12 and Exhibit 320). Such evidence
suggests that among the most relevant segment of the market (i.e., customers of
respondent and those doing business with respondent), petitioner’s mark is known
and readily comes to mind. For this reason, we find that the du Pont factor relating
to the marketplace strength of the senior mark weighs in favor of a finding of
likelihood of confusion.
F. Similar marks in the marketplace.
Respondent argues that there is a multitude of third-party marks that
include the designation EDGE in use in the sharpener/kitchen tools industry; and
that accordingly the designation EDGE “should not be accorded significant weight
in the likelihood of confusion analysis.”40 Respondent has shown that trademarks
incorporating the following designations have been registered and are in actual use
in the United States in connection with sharpening devices:41
EDGEMAKER
EDGEMASTER
EDGE WORLD
EDGE PRO
EDGE MATE
EDGE KING
EDGE-VISION
THE ULTIMATE EDGE
ADVANT-EDGE
DURA-EDGE
REDI-EDGE
WICKED EDGE

40 Respondent’s brief at 17.
41 RNOR Exhibit A-2; Depositions of Rapp, Shen, Axelrod, Holmquist, and O’Dougherty;
Affidavits of Dale, Anthon, Jurey, Taylor, Sander and Allison.
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41

Among these third-party marks, we give reduced weight to the marks EDGE
KING, which is used on a sharpener marketed to the meat processing industry
(Rapp Dep. at 11); and EDGE-VISION, which is used on a component of a
sharpener for use on woodworking tools (O’Dougherty Dep. at 16). Neither of these
marks is likely to have an impact on the housewares market, which is, according to
respondent, the only segment of the market to which it directs its EDGEWARE
mark. The remaining marks illustrate, to varying degrees, that there is a weakness
of source-indicating power inherent in the designation EDGE in the field of
sharpening devices. A proliferation in the relevant market of trademarks that
include the designation EDGE may have the effect of conditioning customers to
distinguish between such trademarks on the basis of other distinguishing elements.
We do bear in mind, however, that marks such as THE ULTIMATE EDGE,
ADVANT-EDGE, DURA EDGE, REDI-EDGE, AND WICKED EDGE, in which the
component EDGE is not positioned as the initial element of the mark, are
substantially different from the marks EDGECRAFT and EDGEWARE. We also
bear in mind that revenues attributed to several of the third-party marks (notably,
EDGE KING, EDGE WORLD and EDGEMASTER) are extremely small;42 such low
volume of use in the marketplace would, of course, reduce the diluting impact of
such marks on the source-indicating strength of petitioner’s mark. We also give due
consideration to the diluting effect of respondent’s use, beginning in 2006, of EDGE
marks including THE EDGE EXPERTS, EDGESPORT, EDGEWORK, DIAMOND

42 See Rapp Dep. at 11; Shen Dep. at 31-32; Holmquist Dep. at 36-37.
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EDGE GOURMET, CERAMIC EDGE GOURMET, EDGE GRIP, and
KNOWLEDGE. Glidden Dep. at 9-10, 24-25; RNOR Ex. A-1.
Finally, we note that the term EDGE is highly suggestive in the context of
sharpening implements, inasmuch as it describes an ultimate purpose of the goods,
i.e., to improve the cutting edge of a knife or other cutting tool. This suggestiveness
is the likely cause of the proliferation of EDGE- formative marks in the
marketplace.
Overall, the number of similar marks in the marketplace weighs against a
finding of likelihood of confusion.
G. The Similarity or Dissimilarity of the Marks.
We next consider whether the marks at issue are sufficiently similar in terms
of appearance, sound, meaning, and overall commercial impression to result in
confusion, mistake or deception among likely customers. The marks at issue,
EDGECRAFT and EDGEWARE, are manifestly not identical. It is equally obvious
that each of the marks has, as its initial element, the designation EDGE, which in
the contexts of the two marks has the identical appearance, pronunciation, and
suggestive meaning. It has been observed that the initial element of a mark may be
more strongly impressed upon the minds of relevant customers, giving it some
dominance as to the overall commercial impression created by the mark. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005); Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988). We note that the mistake recounted in the Bray Deposition and
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43

the slips of the tongue discussed above in Part VI(E) were likely precipitated by the
common initial element EDGE- in the two marks at issue. Marks that have an
initial element in common are also more likely to appear in close proximity in
alphabetical listings. See, for example, Weiner Dep. Exhibit 200: in the alphabetical
index of the 2011 Show Directory of the International Home and Housewares Show,
EDGEWARE is listed directly below the entry for EDGECRAFT CORP.
As petitioner notes, both marks consist of two syllables rendered as a single
word. In form, each mark is a coinage formed from the combination of two actual
words, making them more similar than would be the case if one of the marks
consisted of an actual word combined with a coined designation.
Clearly, the syllables -CRAFT and -WARE are largely different, although
they share the single vowel A, which lends some similarity in appearance and
possibly some phonetic similarity. We do not agree with petitioner’s argument that
“craft” and “ware” are essentially synonyms, as it is based upon a very strained
interpretation of dictionary evidence suggesting that “A ‘ware’ is… a ‘product[ ] of…
craft…’”43 However, both “craft” and “ware” are words of relatively low
distinctiveness in the context of commercial goods; certainly neither word carries a
meaning that is arbitrary in the context of the parties’ goods. Accordingly, in each
case the second syllable brings relatively little distinctiveness to the mark as a
whole. Even though the term “craft” is different in meaning from “ware,” neither

43 Petitioner’s brief at 15 and fn13.
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44

word substantially alters the suggestive meaning of the term EDGE, so that the two
marks are somewhat similar in overall commercial impression.
We find that when the parties’ marks are compared in their entireties, they
are more similar than dissimilar in appearance, sound, meaning and commercial
impression.
H. Balancing the factors.
The evidence shows petitioner and respondent to be in direct competition
under circumstances in which their goods and their marks are almost constantly in
close proximity to one another, and travel through the same trade channels to be
offered, as alternatives to one another, to the same customers at numerous tiers of
the market. The evidence suggests a readiness among members of the trade to
mistakenly perceive a connection between petitioner and respondent, and there
have been some reported incidents of actual confusion or mistake relating to the
EDGECRAFT and EDGEWARE marks. Where confusion has occurred among
members of the trade, it is likely that consumers, too, will be susceptible to mistake
and confusion relating to the marks. Although not all of the specific goods on which
petitioner and respondent have used or registered their marks are identical, all of
them are sufficiently similar in nature, in the trade channels through which they
move, and in the customers to whom they are directed, that customers would
readily believe that they could emanate from a single source if marketed under
similar marks. Our analysis of the du Pont factors indicates that, with respect to
all of the goods at issue, respondent’s mark, as used in connection with the
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45

identified goods, so closely resembles petitioner’s earlier used and registered marks
as to be likely to cause confusion, mistake or deception as to the source of
respondent’s goods.
VII. Respondent’s defense of laches.
Respondent argues that, even if petitioner were able to demonstrate that
there is a likelihood of confusion between the parties’ marks, respondent has a
complete defense of laches based on the prejudice it suffered from petitioner’s
unjustified delay in bringing the present cancellation proceedings.44 Laches is
available as a defense in cancellation proceedings. 15 U.S.C. §1069. In order to
prevail on a defense of laches, respondent is required “to establish that there was
undue or unreasonable delay [by petitioner] in asserting its rights, and prejudice to
[respondent] resulting from the delay.” Bridgestone/Firestone Research Inc. v.
Automobile Club de l'Ouest de la France, 245 F.3d 1359, 58 USPQ2d 1460, 1462-63
(Fed. Cir. 2001). See Lincoln Logs Ltd. v. Lincoln Pre-Cut Log Homes Inc., 971 F.2d
732, 23 USPQ2d 1701 (Fed. Cir. 1992).
For purposes of establishing a date of notice from which petitioner’s delay can
be measured, a petitioner must be shown to have had actual knowledge or
constructive notice of a registrant's trademark use. In the absence of actual notice,
the date of registration is the date from which laches runs in the context of a
cancellation proceeding, because registration of a mark provides constructive notice
of use of the mark. Teledyne Technologies, Inc. v. Western Skyways, Inc., 78

44 Respondent’s brief at 52-54.
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USPQ2d 1203, 1210 (TTAB 2006), aff'd unpublished op., Appeal Nos. 2006-1366, -
1367 (Fed. Cir. Dec. 6, 2006). The relevant dates of registration and of the filing of
each of the three consolidated proceedings are set forth below:
PROCEEDING REG. NO. REGISTRATION DATE PROCEEDING FILING DATE
92052940 3617203 May 5, 2009 August 2, 2010
92054092 3951563 April 26, 2011 June 10, 2011
92054104 3881712 November 23, 2010 June 10, 2011
For purposes of demonstrating that petitioner had actual notice earlier than
the constructive notice dates, respondent states that “Petitioner’s president picked
up a brochure promoting EDGEWARE in March of 2008 along with business cards
from two of Smith’s employees,” citing Weiner DD at 265-266 and Exhibit 100.
Respondent argues:
As a result of Petitioner’s undue and unexcused delay,
Smith’s suffered both economic and evidentiary prejudice.
Smith’s has invested valuable and extensive time in
registering and developing its trademark and has spent
hundreds of thousands of dollars in promoting the
EDGEWARE brand. (See, e.g., Glidden Ex. 304 (showing
EDGEWARE marketing and promotion expenses).)
Petitioner set idly by for two years while it was on notice
that Smith’s was developing and promoting products
under its trademark.45
Petitioner, for its part, characterizes respondent’s adoption of the
EDGEWARE mark as a “slow, but purposeful encroachment upon the EDGECRAFT
Mark”; and argues that petitioner acted promptly as soon as it realized that

45 Respondent’s brief at 54.
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respondent was “migrating” to use of EDGEWARE as a “stand-alone brand,” a
realization that occurred in November 2009.46
As evidence that petitioner had notice of respondent’s use of the mark
EDGEWARE as early as March, 2008, respondent points to testimony of petitioner’s
president, stating that he was in possession, as of that date, of a product catalogue
of 2008 that bore on its cover in large lettering the designation “EDGEWARETM”
and the wording “INNOVATIVE KNIFE & SCISSORS SHARPENERS FOR HOME &
KITCHEN.” Weiner DD Exhibit 100. Only the cover of the catalogue is included in
Exhibit 100. In the upper left corner, the cover bears a SMITH’S logo; a large
photograph of an appliance with the mark SMITH’S on it occupies the center of the
cover. (Exhibit 100 also includes an image of a CD marked “2009 MEDIA KIT”; the
CD is not marked EDGEWARE, and the content of the CD was not made of record
with the deposition.) With respect to this catalogue, another similar catalogue of
2009, and the CD, Mr. Weiner testified as follows:
Q. Would you agree with me that as of March 2009,
you were aware that Smith had started using this
Edgeware brand?
[Objection]
A. We had some inkling, but we were very confused
about the direction in which Smith was going, because in
the instance of this [2009] catalog, although it said
Edgeware on the catalog, the product said Smith’s. And
the heading on the catalog said Smith’s.
So it wasn’t clear to us where the company was going with
that mark.
…

46 Petitioner’s reply brief at 12-13.
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I don’t recall what it [the CD] contained. But I recall my
reaction to it, it was a very confusing picture to us. We
didn’t know what this Edgeware thing name was, what its
goal was, the product was marked as Smith’s. The
catalog was marked as Smith’s. And this name Edgeware
appeared on it and it wasn’t clear to us what the meaning
of it was.

Weiner DD 262:12-263:5; 267:7-17.
With respect to the catalogues, petitioner argues:
This claimed “use” of the EDGEWARE Mark would not be
sufficient to support a registration for knife sharpeners
because the mark is not being used on the goods or its
packaging, … and was not sufficient to give Edgecraft
notice that its competitor was using the EDGEWARE
Mark in an infringing manner on its goods.

Edgecraft’s first realization that Smith was migrating to
the EDGEWARE stand-alone brand on its knife
sharpeners is shown in a November 2009 e-mail reporting
that “[a]pparently beginning in January [Smith] will have
new packaging under the EdgeWare brand instead of
Smith – this will be in answer to gourmet accounts that
were resistant to putting in the Smith brand in the
gourmet accounts.” [Citing PNOR Exhibit 6D at
EDGE0001494; footnote omitted.] Shortly after Edgecraft
learned of this intent by Smith to use the EDGEWARE
Mark alone, it acted promptly to address the issue and
sent a letter in January 2010 demanding Smith cease use
of the EDGEWARE Mark. [Citing PNOR Exhibit 6E at
EDGE0001988-1992.]

Petitioner’s reply brief at 12-13. Petitioner also states that “instances of confusion
began with the standalone brand.” Id. at 11.
The evidence adduced by respondent cannot effectively demonstrate an early
awareness of petitioner with respect to graters, slicers, choppers, or mandolines,
because there is no reference to such goods in the evidence. Accordingly, with
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respect to Reg. Nos. 3881712 and 3951563, the evidence cannot alter the date from
which laches runs from the respective issue dates of those registrations (April 26,
2011 and November 23, 2010). The cancellation proceedings against those
registrations were filed less than 2 months and less than 7 months after
registration, respectively. We find no unreasonable delay with respect to those two
proceedings.
Regarding Reg. No. 3617203, which relates to various sharpeners, the
evidence adduced by respondent is germane. However, considering that
respondent’s mark is not identical to petitioner’s mark, and considering the gradual
shift from using EDGEWARE as a cobrand with SMITH’S to using EDGEWARE on
a standalone basis, it was not unreasonable for petitioner to take a “wait and see”
approach for the relatively short period of time between March of 2008 and its
cease-and-desist letter of January 2010 and subsequent filing of the cancellation
proceeding in August of 2010. There having been no unreasonable delay on
petitioner’s part, we find that respondent has failed to prove its asserted defense of
laches.
VIII. Conclusion.
We have considered all of the evidence of record and all arguments of the
parties relevant to the issues before us, including those not specifically discussed
herein. Our analysis of the du Pont factors leads us to find, with respect to each of
respondent’s three registrations at issue, that respondent’s mark, as used in
connection with the identified goods, so closely resembles petitioner’s earlier used
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and registered marks as to be likely to cause confusion, mistake or deception as to
the source of respondent’s goods.
Decision: The consolidated petitions for cancellation are granted.
Concurrence By:
Bergsman, Administrative Trademark Judge, concurring:
I agree with the majority that there is a likelihood of confusion.
However, with respect to the laches affirmative defense, the instances of
actual confusion indicate that confusion is inevitable. When confusion is inevitable,
the defendant cannot prevail on its affirmative defense of laches. The laches
defense, if successful, will serve as a bar against a petition for cancellation
grounded on likelihood of confusion unless confusion is inevitable. See Jansen
Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Christian
Broadcasting Network, Inc. v. ABS-CBN-International, 84 USPQ2d 1560, 1572
(TTAB 2007); Reflange Inc. v. R-Con International, 17 USPQ2d 1125, 1131 (TTAB
1990) (equitable defenses such as laches and acquiescence would not preclude a
judgment for plaintiff if it is determined that confusion is inevitable); Feed Flavors
Inc. v. Kemin Industries, Inc., 214 USPQ 360, 364 (TTAB 1982).