Free-Flow Packaging International, Inc.

Trademark Trial and Appeal Board

Sep 12, 2008

No. 78878112 (T.T.A.B. Sep. 12, 2008)

Mailed:
Sept. 12, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Free-Flow Packaging International, Inc.
________

Serial No. 78878112
_______

Edward S. Wright, Esq. for Free-Flow Packaging
International, Inc.

Linda A. Powell, Trademark Examining Attorney, Law Office
117 (Loretta C. Beck, Managing Attorney).
_______

Before Grendel, Zervas and Kuhlke, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Free-Flow Packaging International, Inc., applicant
herein, seeks registration on the Principal Register of the
mark MINI PAK’R (in standard character form; MINI
disclaimed) for Class 7 goods identified in the application
as “machines for manufacturing and dispensing packing
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78878112
2
material, namely machines for inflating and sealing air-
filled cushioning materials.”1
The Trademark Examining Attorney has issued a final
refusal to register applicant’s mark, on the ground that
the mark, as applied to the goods identified in the
application, so resembles the mark MINIPACK, previously
registered (in standard character form) for Class 7 goods
identified in the registration as “packing machine for
packaging objects in thermoshrinkable films”2 as to be
likely to cause confusion, to cause mistake, or to deceive.
Trademark Act Section 2(d), 15 U.S.C. §1052(d).
Applicant has appealed the final refusal. After
careful consideration of the evidence of record and the
arguments presented, we reverse the refusal to register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.

1 Serial No. 78878112, filed on May 5, 1006. The application is
based on intent-to-use, under Trademark Act Section 1(b), 15
U.S.C. §1051(b).

2 Registration No. 1248818, issued on August 23, 1983.
Registered and renewed.

Ser. No. 78878112
3
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
The first du Pont factor requires us to determine the
similarity or dissimilarity of the marks when viewed in
their entireties in terms of appearance, sound, connotation
and commercial impression. Palm Bay Imports, Inc., supra.
We find that the marks are similar in terms of appearance,
despite the fact that applicant’s mark is presented as two
words while the registered mark is presented as one
compound word, and despite the fact that applicant’s mark
includes the apostrophe and the letter “R” at the end.
These points of dissimilarity are outweighed by the
presence in both marks of word MINI followed by the term
PACK or PAK. We next find that the marks are similar in
terms of sound, sharing the same first three syllables and
differing only as to the extra “R” syllable at the end of
applicant’s mark. We next find that the marks are similar
in terms of connotation, in that they both refer to
packing. The PACK in the registered mark is used as a noun
or a verb, while the PAK’R in applicant’s mark, obviously a
mere misspelling of PACKER, is a noun referring to the
Ser. No. 78878112
4
machine doing the packing. However, this slight difference
in meaning is outweighed by the fact that both marks have
to do with packing. The word MINI means the same thing in
both marks, i.e., small. Finally, we find that the marks
are similar in terms of commercial impression in that they
both begin with MINI and end with some form of the word
“pack,” i.e., PACK and PAK’R. The misspelling of “packer”
as PAK’R in applicant’s mark is not enough to render the
marks dissimilar in terms of their commercial impressions.
As applied to the goods in this case, however, we find that
both marks are somewhat suggestive.
For these reasons, we find that applicant’s mark and
the cited registered mark are similar, and that the first
du Pont factor accordingly weighs in favor of a finding of
likelihood of confusion.
The second du Pont factor requires us to determine the
similarity or dissimilarity of the goods as identified in
the application and in the cited registration. It is not
necessary that the goods be identical or even competitive
in order to find that the goods are related for purposes of
our likelihood of confusion analysis. That is, the issue
is not whether consumers would confuse the goods
themselves, but rather whether they would be confused as to
the source of the goods. See In re Rexel Inc., 223 USPQ
Ser. No. 78878112
5
830 (TTAB 1984). It is sufficient that the goods be
related in some manner, or that the circumstances
surrounding their use be such, that they would be likely to
be encountered by the same persons in situations that would
give rise, because of the marks used thereon, to a mistaken
belief that they originate from or are in some way
associated with the same source or that there is an
association or connection between the sources of the
respective goods. See In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991); and In re
International Telephone & Telegraph Corp., 197 USPQ 910
(TTAB 1978).
In this case, we find that the evidence of record
fails to establish that applicant’s “machines for
manufacturing and dispensing packing material, namely
machines for inflating and sealing air-filled cushioning
materials,” are sufficiently related to registrant’s
“packing machine for packaging objects in thermoshrinkable
films,” to support a finding of likelihood of confusion.
Registrant’s goods essentially are shrink wrap machines
which are used to shrink wrap individual products.
Applicant’s goods are machines which manufacture and
dispense air-filled cushioning materials for packaging.
Ser. No. 78878112
6
The Trademark Examining Attorney has submitted Internet
evidence suggesting that these end-products, i.e., shrink
wrap film and air-cushioned packaging, can be manufactured
and/or marketed by a single source. For example:
1. www.packagingutah.com – Product categories
include: Anti-static peanuts, bubble, foam; cushioning
foam, peanuts; void fill pillows; and polypropylene
including shrink wrap/tools.

2. www.bubbleandfoampackaging.com – “We offer bubble
wrap rolls for large wrapping and void fill applications,
anti-static bubble wrap for packaging sensitive electronic
equipment, bubble bags and bubble mailers for small
delicate items. In addition to bubble packaging we have a
full line of foam packaging products.” Also – “Shrink Wrap
– Industrial shrink film and shrink wrap supplies. We
offer shrink film for DVD shrink wrap applications, food
shrink wrap applications, marine shrink wrap, and shrink
wrap heat guns.”

3. www.ipspackaging.com – product categories include
shrink wrap and shrink film, shrink wrap packaging. Also
shrink wrap heat guns, shrink wrap machines. Also bubble
wrap, bubble lined mailers, bubble bags, foam packaging.

4. www.thomasnet.com – Production Packaging
Equipment, Inc. – “distributor of air pillow packaging
machinery and void filling packaging equipment for
protective packaging applications. Additional products
include bagging, heat sealing, shrink wrap, blister
sealing…”

However, applicant’s and registrant’s goods are not
these end-products (shrink wrap film and air-cushioning
products), but rather the machines which produce the end-
products. There is no evidence that both types of machines
Ser. No. 78878112
7
are manufactured or marketed by a single source.3 We find
that the second du Pont factor weighs against a finding of
likelihood of confusion.
The third du Pont factor requires us to consider the
similarity or dissimilarity of the trade channels in which
the respective goods are marketed. As noted above, the
Trademark Examining Attorney has presented evidence which
suggests that the end-product materials, i.e., shrink wrap
film and air-filled cushioning, can be marketed together on
the same Internet websites. However, these Internet
websites fail to establish that the goods at issue here,
i.e., the machines used to manufacture and dispense these
end-products, are marketed in the same trade channels. The
Trademark Examining Attorney argues that these machines
would be used together in the packaging process by the same
persons, i.e., the workers in a company’s shipping
department, but there is no actual evidence supporting this
argument. We find that the third du Pont factor weighs
against a finding of likelihood of confusion.
The fourth du Pont factor requires us to consider
evidence pertaining to the conditions of purchase. In this
case, there is no evidence showing how much these machines

3 Even with respect to the relatedness of the end-products, the
evidence of record is de minimis.
Ser. No. 78878112
8
cost, or the care with which they are purchased. However,
applicant’s machines and registrant’s machines appear to be
highly specialized machines for specialized tasks, which
likely would be purchased by knowledgable purchasers. We
find that the fourth du Pont factor weighs against a
finding of likelihood of confusion, or at least is neutral
in our analysis.
Considering all of the evidence as it pertains to the
relevant du Pont factors, we find that the record fails to
support a finding of likelihood of confusion. The marks
are similar, but suggestive. The evidence does not suffice
to show that applicant’s and registrant’s machines (as
opposed to the end-products made by the machines) are
manufactured by a single source, or that they are marketed
in the same trade channels to the same purchasers. The
machines are likely to be purchased with a degree of care.
On this record, we conclude that there is no likelihood of
confusion.

Decision: The refusal to register is reversed.