Glacier Northwest, Inc.

Trademark Trial and Appeal Board

Sep 23, 2002

No. 75672578 (T.T.A.B. Sep. 23, 2002)

Mailed:
September 23, 2002
Paper No. 16
DEB
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Glacier Northwest, Inc.
________
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
_______
William O. Ferron, Jr. and David W.C. Chen of Seed
Intellectual Property Law Group, PLLC for Glacier Northwest,
Inc.
Idi Aisha Clarke, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______
Before Hanak, Hohein and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Glacier Northwest, Inc. 1 seeks registration on the
Principal Register for the mark GLACIER NORTHWEST for
“concrete additives sold in bulk” in International Class 1;2
1 Although the two first-filed applications involved herein
(March 1999) were filed by Lone Star Northwest, Inc., applicant’s
change of name to Glacier Northwest, Inc. was correctly recorded
with the Assignment Division of the United States Patent and
Trademark Office at Reel 2105, Frame 0605.
2 Application Serial No. 75/672,578, filed on March 31, 1999,
is based upon applicant’s allegation of use of the mark in
interstate commerce at least as early as November 1, 1998. In
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
- 2 -
for the mark GLACIER NORTHWEST for “building materials,
namely stone, gravel, sand and concrete all sold in bulk,”
in International Class 19;3 for the mark GLACIER NORTHWEST
and design, as shown below, for “concrete additives,” in
International Class 1;4 and for the mark GLACIER NORTHWEST
response to the requirement of the Trademark Examining Attorney to
disclaim the word NORTHWEST, applicant instead submitted a claim
of acquired distinctiveness for the entire composite mark under
Section 2(f) of the Act, which showing was accepted by the
Trademark Examining Attorney.
3 Application Serial No. 75/672,573, filed on March 31, 1999,
is based upon applicant’s allegation of use of the mark in
interstate commerce at least as early as November 1, 1998. In
response to the requirement of the Trademark Examining Attorney to
disclaim the word NORTHWEST, applicant instead submitted a claim
of acquired distinctiveness for the entire composite mark under
Section 2(f) of the Act, which showing was ultimately accepted by
the Trademark Examining Attorney.
4 Application Serial No. 75/878,230, filed on December 21,
1999, is based upon applicant’s allegation of a bona fide
intention to use the mark in commerce. An amendment to allege use
was filed in June 2001, alleging first use in commerce as of
October 1, 1999.
Despite the Trademark Examining Attorney’s initially
requiring a disclaimer of the word NORTHWEST, this requirement was
withdrawn prior to the appeal of this case, and that in spite of
the fact that no Section 2(f) affidavit was ever submitted with
specific regard to the mark which is the subject of the ‘230
application.
We also note that as sometimes happens during the prosecution
of trademark applications through the examining operation, goods
were correctly moved from one application to another (having
identical marks) based upon the Trademark Examining Attorney’s
applying the Nice International Classification system. As they
stand at the moment of appeal, there is a certain symmetry to
these four applications. The two applications filed in March 1999
have typed drawings for goods in classes 1 and 19. Similarly, the
two applications filed in December 1999 have special form drawings
for the same goods in classes 1 and 19.
Applicant assumed that this ‘230 application is for a
slightly different mark (having a special form drawing) but for
the same goods as the earlier ‘578 application. Yet, of all four
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and design, as shown below, for “building materials, namely
gravel, sand and concrete, all sold in bulk,” in
International Class 195:
6
of these applications, this is the only one where neither the
Trademark Examining Attorney nor applicant chose to modify the
identification of goods with the phrase “ … sold in bulk.”
Nonetheless, as in the other three applications, the acceptable
specimen of record in this application is a photograph depicting
the same large concrete truck. Furthermore, in its brief on this
application, applicant argues similarly about the “… large volume
with which such additives are typically purchased.” (brief, p. 7).
Hence, the author of this opinion is comfortable, in this
decision, treating this identification of goods as if it too were
modified by the language “sold in bulk,” rather than presuming
that the goods in this application alone are a completely
different product that includes small retail quantities of
additive used by the weekend, do-it-yourself handyperson.
5 Application Serial No. 75/878,231, filed on December 21,
1999, is based upon applicant’s allegation of a bona fide
intention to use the mark in commerce. An amendment to allege use
was filed in June 2001, alleging first use in commerce as of
October 1, 1999.
Despite the Trademark Examining Attorney’s initially
requiring a disclaimer of the word NORTHWEST, this requirement was
withdrawn prior to the appeal of this case, and that in spite of
the fact that no Section 2(f) affidavit was ever submitted with
specific regard to the mark which is the subject of the ‘231
application.
6 This special form drawing is described in the application
papers as “… the words GLACIER NORTHWEST, below a letter G. Four
angular designs and one elongated member extend outwardly from the
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Registration was refused in each of these four
applications under Section 2(d) of the Trademark Act, 15
U.S.C. §1052(d), on the ground that applicant’s marks, when
applied to its listed goods, so resembles the mark GLACIER,
which is registered for “manufactured stone,”7 as to be
likely to cause confusion, to cause mistake or to deceive.
The prosecution histories of these four applications,
while not identical, follow the same general pattern.
Accordingly, given the similarity in the issues before us in
connection with each application, the four cases have been
consolidated and this single opinion has been issued for all
four cases.
Applicant has appealed the refusals to register. Both
applicant and the Trademark Examining Attorney have fully
briefed these appeals. We reverse the refusals to register
with regard to all four applications.
In the course of rendering this decision, we have
followed the guidance of In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 1362, 177 USPQ 563, 567-68 (CCPA 1973).
The du Pont case sets forth each factor that should be
considered, if relevant information is of record, in
determining likelihood of confusion.
G, with the elongated member forming part of the letter A in
GLACIER.”
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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We will consider first the similarity or dissimilarity
and nature of the goods as described in the applications –
concrete, concrete additives,8 stone, gravel and sand, all
sold in bulk – and in connection with registrant’s use of
its mark on manufactured stone. Without additional details,
upon consideration of registrant’s listed goods, we assume
that registrant’s “manufactured stone” includes an array of
interior and exterior uses (inter alia, structural walling,
garden landscaping and interior flooring). The Trademark
Examining Attorney argues that applicant’s building
materials and registrant’s manufactured stone are “highly
related” goods because, as shown by copies of certain third-
party registrations which she has made of record, several
merchants and manufacturers have in each instance registered
the same mark for construction materials, such as concrete
additives, as well as for manufactured stone. By contrast,
applicant argues that its goods are all sold in large volumes
to construction professionals having significant technical
expertise.
Of the third-party registrations submitted by the
Trademark Examining Attorney, several are irrelevant to our
determination herein as the registrations are based upon
7 Reg. No. 1,100,766, issued on August 29, 1978, Section 8
affidavit accepted and Section 15 affidavit acknowledged; renewed.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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Section 44 of the Act rather than being based upon use in
commerce. Of the remaining ones, we note that none of the
use-based third-party registrations establishes that the
same companies offer for sale the raw components for poured
concrete sold in bulk as well as items of manufactured
stone. Rather, in every case, judging by the context of the
entire registration, these marks are registered for retail
quantities of concrete-making components that may well be
purchased by the do-it-yourself homeowner or weekend
handyperson.
In point of fact, all of applicant’s goods appear to be
ingredients for poured concrete sold in bulk, meaning that
they are sold to manufacturers or construction
professionals, and are then delivered from a central mix
plant to a proximate construction site on a large commercial
truck. Thus, there are significant differences between
applicant’s concrete, stone, gravel and sand sold in bulk or
even specialized, construction chemicals designed to alter
the properties of various concrete products and
applications, and registrant’s manufactured stone. We
acknowledge that it is possible that registrant’s
manufactured stones may have been made using components like
8 See footnote 4 for a discussion of the one exception to the
explicit characterization of the goods as being “sold in bulk.”
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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small stones, gravel, sand and concrete as well as premium
admixtures such as retarding agents or accelerators.
However, it also appears as if the only common purchasers of
both types of products herein would be construction
professionals. Hence, we believe that when selecting
concrete, stone, gravel, sand and/or concrete additives sold
in bulk for large construction projects, construction
professionals would exercise a very high level of care.
This finding as to significant differences in the
nature of the respective goods leads us to conclude that two
other related du Pont factors also favor a reversal herein.
Namely, to the extent that the registrant’s goods are
available in, for example, large home-improvement centers,
hardware stores or similar retail outlets, there appears to
be dissimilarity in the established, likely-to-continue
trade channels. In all four applications, the recurring
specimen for applicant’s goods is a photograph of a large
truck-mounted cement mixer. Moreover, as to the conditions
under which and buyers to whom sales are made, the only
common purchaser of registrant’s and applicant’s goods would
clearly not involve “impulse” purchasers. Rather, this
would involve purchasing decisions by careful, sophisticated
contractors.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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We turn next to consider the similarity or
dissimilarity of the marks as to overall commercial
impressions. In this regard, the Trademark Examining
Attorney argues that the dominant and most distinctive
portion of applicant’s marks is GLACIER – the entirety of
the cited mark. Furthermore, she argues that GLACIER
NORTHWEST is not a unitary mark, but rather, that
“[c]onsumers may even be led to believe that GLACIER
NORTHWEST is merely a regional division of the owner of the
cited mark GLACIER, or that the parties are otherwise
related.” (Trademark Examining Attorney’s appeal brief, p.
4).
Applicant argues in response that GLACIER NORTHWEST is
a “unitary term” in each of its marks, and that there is no
basis for the position of the Trademark Examining Attorney
that the word NORTHWEST is subordinate matter to the lead
word, GLACIER.
The Trademark Examining Attorney’s position seems to be
that a potential consumer located in California who is
acquainted with registrant’s manufactured stone, upon
finding applicant’s bulk products for poured concrete
located in the “Pacific Northwest,” will assume that the
word “Northwest” simply identifies a regional division of
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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registrant. Consistent with this approach, she initially
asked for a disclaimer of the arguably descriptive word,
NORTHWEST. However, as noted earlier, in each of these
applications, applicant clearly refused to disclaim this
matter. As to the two Section 1(a) applications filed on
March 31, 1999 (Serial Nos. 75/672,573 and 75/672,578),
applicant choose instead to counter this requirement with a
supporting declaration claiming acquired distinctiveness for
the combined term, GLACIER NORTHWEST.9
Despite her initial reluctance, the Trademark Examining
Attorney’s ultimately withdrawing on the requirement for a
disclaimer in all the applications, and her apparent
acceptance in the two used-based applications of applicant’s
showing of acquired distinctiveness for the two words
GLACIER NORTHWEST together, appears seriously to undercut
her conclusions as to the relative strengths of the
respective components of this combined term.10 Hence, in
9 The declaration of Allen Hamblen, vice president and general
manager of applicant’s Washington Division, claims annual gross
sales under the GLACIER NORTHWEST mark of approximately $200
million per year.
10 We agree with the Trademark Examining Attorney that applicant
has failed to demonstrate that this composite (“Glacier
Northwest”) creates a “unitary mark.” Hence, it seems so basic as
not to require citation that if applicant had admitted the
descriptive nature of the word NORTHWEST in any of these four
applications by disclaiming that word, the Trademark Examining
Attorney would have retained a compelling argument – namely, that
the word GLACIER is the stronger component within the composite
mark. On the other hand, we note that in the two use-based
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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spite of the apparent similarities as to appearance, sound
and meaning between GLACIER and GLACIER NORTHWEST, on this
record, we find that there are significant differences as to
overall commercial impressions between registrant’s mark and
applicant’s marks.
We turn next to the du Pont factor that focuses on the
number and nature of similar marks in use on similar goods.
In each of these cases, after receiving a final refusal,
applicant argued (e.g., in several cases, along with its
request for reconsideration) that the term GLACIER is
“diluted” on the federal register, and in support thereof,
submitted copies of very limited data on more than a hundred
federal trademark registrations drawn from
www.trademarks.com in which registrations the marks contain
the word GLACIER. In denying the request for
reconsideration, the Trademark Examining Attorney mentioned
neither the form nor the content of these third-party
registrations. It was not until the time of her appeal
brief that the Trademark Examining Attorney objected to the
applications having typewritten marks, the Trademark Examining
Attorney expressly withdrew the disclaimer requirement in response
to applicant’s strong showing of acquired distinctiveness for the
two words combined into a single composite. Hence, the strength
of the junior party’s mark in the marketplace clearly lies in
these two equal and undifferentiated components within the
composite.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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form of this data because it did not contain critical
bibliographic data (such as the goods or services covered by
each registration) and was not drawn directly from the
records of the United States Patent and Trademark Office.
In its reply briefs filed in several of these cases,
applicant argues that we should consider this data despite
its source and format because the Trademark Examining
Attorney failed to object when issuing earlier actions. In
the alternative, the reply brief has attached detailed
copies of federal trademark registrations correctly drawn
from www.uspto.gov.
Clearly, if the Trademark Examining Attorney had
objected earlier to the form of the submission, applicant
could have corrected this informality prior to filing its
appeal briefs. Accordingly, although applicant did not
comply with the established rules as to the form and timing
for the submission of the evidentiary record in an
application, we find that the Trademark Examining Attorney
waived her objections by not raising them in response to the
request for reconsideration. Hence, we have considered
these listings of third-party registrations, along with the
later-submitted bibliographic data, as evidence of record in
reaching our decision.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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However, we do not agree with applicant that these
third-party registrations are persuasive of the fact that
the term GLACIER is “diluted” on the federal register and
hence weak as to registrant’s or applicant’s goods. This is
true because the majority of these registrations are for
totally dissimilar goods, such as bottled water, other
beverages or food items, travel-related services, etc. On
yet the other hand, there are two third parties having
subsisting registrations for the word GLACIER for,
respectively, vinyl siding and ceramic tiles, both of which,
like registrant’s goods, fall into the general category of
building materials. Hence, this du Pont factor, if given
full consideration, appears to be somewhere between a
neutral factor and one slightly favoring the position of
applicant herein.
In summary, we find that the goods are not closely
related, that their channels of trade are different, that
the mutual customers are sophisticated and would make
purchases of concrete products in bulk with a high degree of
care, and that based upon this entire record, the respective
marks create overall different commercial impressions.
Decision: The refusals to register are reversed.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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Hohein, Administrative Trademark Judge, concurring in part
and dissenting in part:
I agree that, in light of the limiting language “sold
in bulk” in the identifications of goods for three of
applicant’s four applications, the refusals to register in
view of the cited registration for the mark GLACIER for
“manufactured stone” should be reversed, inasmuch as in
those cases the channels of trade and methods of
distribution of applicant’s bulk products would appear to be
different from those for registrant’s goods and the only
common purchasers would seem to be “construction
professionals,” who would be expected to “exercise a very
high level of care” in their selection of building
materials. However, as further explained below, because the
restriction “sold in bulk” is lacking in the identification
of goods for applicant’s application for the mark GLACIER
NORTHWEST and design for “concrete additives,” and because
the cited registration is not limited to depiction of the
subject mark in any particular special form which is
sufficiently dissimilar to applicant's above-referenced
mark, I would affirm the refusal to register in such case.
Specifically, turning first to consideration of the
respective goods, it is a well established rule of law that
the issue of likelihood of confusion must be determined on
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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the basis of the goods as they are set forth in the involved
application and the cited registration, and not in light of
what the specimens or other evidence shows such goods to
actually be. See, e.g., CBS Inc. v. Morrow, 708 F.2d 1579,
218 USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula
Payne Products Co. v. Johnson Publishing Co., Inc., 473 F.2d
901, 177 USPQ 76, 77 (CCPA 1973). In fact, such proposition
is so well settled that, as stated in Octocom Systems Inc.
v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990):
The authority is legion that the question of
registrability of an applicant's mark must be
decided on the basis of the identification of
goods set forth in the application regardless of
what the record may reveal as to the particular
nature of an applicant's goods, the particular
channels of trade or the class of purchasers to
which sales of the goods are directed.
Thus, where applicant’s and registrant’s goods are
broadly described as to their nature and type, it is
presumed in each instance that in scope the application and
registration encompass not only all goods of the nature and
type described therein, but that the identified goods move
in all channels of trade which would be normal for those
goods and that they would be purchased by all potential
buyers thereof. See, e.g., In re Elbaum, 211 USPQ 639, 640
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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(TTAB 1981). Moreover, as the Examining Attorney correctly
points out, it is well settled that goods need not be
identical or even competitive in nature in order to support
a finding of likelihood of confusion. It is sufficient,
instead, that the goods are related in some manner and/or
that the circumstances surrounding their marketing are such
that they would be likely to be encountered by the same
persons under situations that would give rise, because of
the marks employed in connection therewith, to the mistaken
belief that they originate from or are in some way
associated with the same entity or provider. See, e.g.,
Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-96
(TTAB 1978) and In re International Telephone & Telegraph
Corp., 197 USPQ 910, 911 (TTAB 1978).
Accordingly, absent the limitation “sold in bulk,”
applicant’s goods must be considered, like registrant’s
goods, to be suitable for sale not only by the truckload to
construction professionals such as building contractors, but
the respective goods would also be found in what the
majority characterizes as “large home-improvement centers,
hardware stores or similar retail outlets” for purchase by
“do-it-yourself homeowner[s] or weekend handyperson[s].” It
is obvious, furthermore, that manufactured stone and
concrete, as well as concrete additives, would often be used
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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together or in close proximity for a variety of home
improvement projects. However, unlike the expertise
acquired by construction professionals, the ordinary retail
consumers of applicant’s and registrant’s goods, who do not
frequently buy such products, would not be familiar with the
marks used by various suppliers of building materials and
the products commonly used in connection therewith, nor
would they be inclined to exercise the same higher degree of
care in their purchasing decisions. A weekend do-it-
yourselfer, desiring for example to install a spa, porch,
patio, walkway or other decorative home improvement, could
therefore reasonably believe that, if sold under the same or
similar marks, such basic building materials as manufactured
stone, on the one hand, and concrete additives (including
those for natural and artificial stone concrete), on the
other hand, emanate from or are associated with or sponsored
by the same source.
Turning, then, to consideration of the specific marks
at issue, the majority acknowledges “the apparent
similarities as to appearance, sound and meaning between
GLACIER AND GLACIER NORTHWEST.” It must be kept in mind,
however, that registrant’s mark is in typed form rather than
displayed in any distinguishing special form. The
significance thereof, of course, is that not only is the
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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word “GLACIER” identical in sound and meaning in both
applicant's “GLACIER NORTHWEST” and design mark and
registrant's “GLACIER” mark, but such word must also be
considered to be identical in appearance in both marks
rather than, due to its stylized lettering, being
distinctively displayed only in applicant’s mark. As
stated, for instance, in Squirtco v. Tomy Corp., supra at
939 (italics in original):
[T]he argument concerning a difference in
type style is not viable where one party asserts
rights in no particular display. By presenting
its mark merely in a typed drawing, a difference
cannot legally be asserted by that party. ....
Thus, ... the displays must be considered the
same.
Here, because registrant’s “GLACIER” mark is in typed
form, it consequently may be displayed in any reasonable
format, including the same bold or block style of lettering
as that utilized by applicant in its mark. See, e.g., INB
National Bank v. Metrohost Inc., 22 USPQ2d 1585, 1588 (TTAB
1992), citing Phillips Petroleum Co. v. C. J. Webb, Inc. 442
F.2d 1376, 170 USPQ 35, 36 (CCPA 1971). While, unlike
registrant’s mark, applicant’s mark also includes a star
design which, in addition to encompassing a stylized letter
“G,” has an elongated point which forms part of the letter
“A” in the word “GLACIER,” such design simply does not
sufficiently distinguish applicant’s mark. This is
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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especially so given the well recognized principle that, as
properly noted by the Examining Attorney, where a mark
consists of both a word portion and a design portion, it is
generally the word portion which is more likely to be
impressed upon a consumer’s memory and to be used in calling
for and/or asking about the goods. See, e.g., In re
Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB
1987).
In view thereof, I agree with the Examining Attorney
that, when viewed in its entirety, the dominant portion of
applicant’s “GLACIER NORTHWEST” and design mark is the word
“GLACIER.” As the Examining Attorney accurately observes,
such word is substantially “the largest and most prominent
term in the mark.” I concur with the Examining Attorney
that, overall, the word “NORTHWEST” is plainly subordinate
matter and, to the extent that it would even be noticed, it
would most likely be regarded by ordinary consumers as
suggesting a regional area rather than serving, in
conjunction with the word “GLACIER,” as an indicator of
source.1
1 While I agree with the Examining Attorney that applicant has
failed to demonstrate that either of its marks is unitary, I
disagree, especially as to applicant’s “GLACIER NORTHWEST” and
design mark, with the majority’s view that the Examining Attorney
lacks a compelling argument that “the word GLACIER is the stronger
component within the composite mark.” Plainly, as shown in each
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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Consequently, for the above reasons I would find that
when considered in their entireties, applicant’s and
registrant’s marks are substantially identical in commercial
impression and that their contemporaneous use in connection
with such closely related building materials as concrete
additives and manufactured stone would be likely to cause
confusion as to the origin or affiliation of the respective
goods. To the extent, moreover, that ordinary retail
consumers would notice the differences in applicant’s
“GLACIER NORTHWEST” and design mark for its concrete
additives, they would most likely regard it as designating a
new or expanded product line from the same entity that
produces registrant’s “GLACIER” manufactured stone and vice
versa.
Finally, as to applicant’s contention that the term
“GLACIER” is diluted on the federal register due to its
widespread use by third parties, I would observe that the
third-party registrations upon which applicant purports to
rely in support of its position do not constitute proof of
any actual use of the registered marks and, thus, fail to
establish that the purchasing public, having become
of the specimens of use, the word “GLACIER” predominates over the
word “NORTHWEST” and is thus the stronger component.
Serial Nos. 75/672,578, 75/672,573, 75/878,230 & 75/878,231
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conditioned to encountering certain goods and services
thereunder, is able to distinguish the source thereof based
upon differences in the elements of such marks other than
the word “GLACIER.”2 See, e.g., Smith Bros. Mfg. Co. v.
Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA
1973); AMF Inc. v. American Leisure Products, Inc., 474 F.2d
1403, 177 USPQ 268, 269 (CCPA 1973); and In re Hub
Distributing, Inc., 218 USPQ 284, 285-86 (TTAB 1983). The
number and nature of any similar marks in use on the same or
similar goods is simply not a relevant du Pont factor
herein.
2 The copies thereof, submitted by applicant in the present case
with its reply brief, are plainly untimely under Trademark Rule
2.142(d) and should not be given consideration. Instead, what is
of record, due to the waiver of the objection raised by the
Examining Attorney, is a mere listing of third-party registrations
as to the subject mark, the International Class involved and
whether the registration is subsisting. Clearly, given the
absence of information as to the specific goods or services
covered by each registration, the list of third-party
registrations essentially is of no probative value.