Headed Reinforcement CorporationDownload PDFTrademark Trial and Appeal BoardMar 21, 2019No. 87233162 (T.T.A.B. Mar. 21, 2019) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: March 21, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Headed Reinforcement Corporation _____ Serial No. 87233162 _____ Morland C. Fischer of Law Offices of Morland C. Fischer for Headed Reinforcement Corporation Meredith Debus, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Zervas, Greenbaum, and Lynch, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: I. Background Headed Reinforcement Corporation (“Applicant”) seeks registration on the Principal Register of the mark HEADLOCK in standard characters for: A metal anchoring device to be attached to one end of a steel reinforcement bar (i.e., rebar) to withstand tensile loads and thereby hold the reinforcement bar in place when the reinforcement bar is embedded within a concrete Serial No. 87233162 - 2 - structure, namely, a building, a bridge, or a roadway in International Class 6.1 The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark HEADLOK in standard characters for “Metal threaded fasteners and metal screws” in International Class 6. Once the Examining Attorney made the refusal final, Applicant requested reconsideration and appealed. The Examining Attorney denied the request for reconsideration.2 For the reasons set forth below, we affirm the refusal to register. II. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry 1 Application Serial No. 87233162 is based on Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), and has a filing date of November 10, 2016. 2 5 & 6 TTABVUE. Serial No. 87233162 - 3 - mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. Similarity of the Marks We first turn to the du Pont factor comparing the applied-for and cited marks, which we consider “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). The test assesses not whether the marks can be distinguished in a side-by-side comparison, but rather whether their commercial impressions are so similar that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). The marks HEADLOCK and HEADLOK look nearly identical, with just the minor variation in spelling. See Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460 (CCPA 1962) (TINTZ merely a phonetic spelling of “tints”). HEADLOCK and HEADLOK sound the same, and convey the same connotation and commercial impression. In its Brief, “[t]he applicant acknowledges that its trademark and the registered mark are similar.”3 This du Pont factor weighs heavily in favor of a likelihood of confusion determination. 3 8 TTABVUE 3 (Applicant’s Brief). Serial No. 87233162 - 4 - B. The Relatedness of the Goods “[L]ikelihood of confusion can be found ‘if the respective goods are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Coach Servs. 101 USPQ2d at 1722 (internal citations omitted). In analyzing the second du Pont factor, we look to the identifications in the application and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The Examining Attorney argues that Registrant’s broadly identified “metal threaded fasteners” encompass Applicant’s particular type of metal anchoring devices. See, e.g., In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and commercial furniture.’”); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (“Registrant’s goods are broadly identified as computer programs recorded on magnetic disks, without any limitation as to the kind of programs or the field of use. Therefore, we must assume that registrant’s goods encompass all such computer programs including those which are for data integration and transfer.”). The record includes a definition of a “fastener” as “[a] device, such as a clip, pin, or clasp that attaches Serial No. 87233162 - 5 - something firmly to something else.”4 “Anchor” is defined as “something that serves to hold an object firmly.”5 The Portland Bolt & Manufacturing Company website has a “Bolt Glossary” defining “anchor bolt” consistently with Applicant’s goods, and further defines “bolt” as “[a] headed and externally threaded fastener designed to be assembled with a nut.”6 Evidence in the record demonstrates that “anchors” are a type of “fastener,” and these terms sometimes are used interchangeably. Also, they frequently are offered under the same mark. For example, the Fastener Mart website lists “Anchors” in its menu, and has a page titled “Understanding Anchors” with the subheading “Fastener Tech Data.”7 The Ace Hardware website, the Fastenal website, the Minerallac Company website, and the Lawson Products website show “Anchors” as a subcategory of “Fasteners.”8 Powers Fastening Innovations’ website promotes “Mechanical Anchors & Fasteners,”9 while FastenMSC titles its product page “Anchors and Fasteners.”10 Similarly, the TorMaxx Company website promotes “Anchors and Fasteners,”11 and on its “Anchors & Fasteners” page, Acme Construction Supply Co., Inc. describes how its “complete line of fastening products” “includes anchors and 4 February 24, 2017 Office Action at 8 (freedictionary.com). 5 December 15, 2017 Office Action at 8 (merriam-webster.com). 6 July 25, 2018 Denial of Reconsideration at 19-20 (portlandbolt.com) (emphasis added). 7 December 15, 2017 Office Action at 15 (fastenermart.com). 8 Id. at 10 (acehardware.com), 26 (fastenal.com), 28 (minerallac.com), 27 (lawsonproducts.com). 9 Id. at 55 (powers.com). 10 Id. at 56 (fastenmsc.com). 11 Id. at 61 (thetormaxxcompany.com). Serial No. 87233162 - 6 - fasteners of all types and finishes.”12 The American Fastener website states, “We are a leading provider of anchor fasteners,” and shows anchors as a subcategory of fasteners.13 As another example, the Grainger website lists on its menu “Fasteners / Anchors,” and states, “Anchors help fasten material for a secure hold.” The RenoDirect website, under “Products,” groups “Anchors, Fasteners and Screws.”14 The Pentair website uses the tagline “Electrical & Fastening Solutions,” and promotes “Lenton Terminator Mechanical Anchors” that include those for “Reinforcing Steel Connections.”15 The record includes numerous similar examples.16 Even with regard to anchoring devices specifically used in connection with concrete, the record contains similar evidence. For example, the Concrete Fasteners, Inc. website links to a page for “Concrete Anchors/Fasteners.”17 And the Elco website has pages for “Concrete Anchors” and “Metal Fastening.”18 The webpage of Concrete Fastening Systems Inc. has an article titled “Choosing the Best Anchor to Fasten Concrete”19 that includes the statement, “A specific concrete anchor or fastener may not work in all applications.”20 The same site promotes products “For 12 Id. at 62 (thetormaxxcompany.com). 13 Id. at 11 (americanfastener.com). 14 Id. at 59 (renodirect.ca). 15 Id. at 23 (erico.com). 16 July 25, 2018 Denial of Reconsideration at 13, 21-29, 31. 17 Id. at 30 (concretefasteners.com). 18 December 15, 2017 Office Action at 57-58 (elcoconstruction.com). 19 February 24, 2017 Office Action at 14 (confast.com). 20 Id. at 15. Serial No. 87233162 - 7 - Anchoring/Fastening into Concrete.”21 An article on the Star Sales website is captioned, “Power Fasteners: A Look at Their Mechanical and Chemical Concrete Anchors,” and reports that the company Power Fasteners develops “high-quality fasteners that meet a wide range of solutions” including “Mechanical Concrete Anchors.”22 The Hanes Supply, Inc. online catalog index contains “Section 26 Fasteners/Concrete Anchors.”23 The Engineers Edge website displays an article about “Concrete Foundation Anchor Bolts Design” that notes that “Cast-in-place anchor bolts are the strongest type of fastener.”24 This marketplace evidence overwhelmingly shows the relatedness of the goods at issue, including consumer exposure to the same mark for goods such as Applicant’s and Registrant’s. The Examining Attorney also introduced ten use-based third-party registrations listing both metal fasteners and anchors under the same mark.25 Third-party registrations based on use in commerce that cover the same sorts of goods suggest that they may emanate from the same source. In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). This evidence corroborates the relatedness of Applicant’s and Registrant’s goods. 21 December 15, 2017 Office Action at 25 (confast.com). 22 July 25, 2018 Denial of Reconsideration at 7-8 (hilti.com). 23 Id. at 9 (handesupply.com). 24 Id. at 11 (engineersedge.com). 25 December 15, 2017 Office Action at 29-52. Serial No. 87233162 - 8 - Applicant argues against relatedness with an improper attempt to limit the identification in the cited registration by pointing to Registrant’s specimen and characterizing Registrant’s “metal threaded fasteners and metal screws” as “nothing more than tiny and inexpensive connectors commonly purchases [sic] at a hardware store or a home improvement store.”26 However, we rely on the identification of goods set forth in the registration regardless of extrinsic evidence of the particular nature of goods, the particular channels of trade or the class of purchasers to which sales of the goods are actually directed. Octocom Syst., 16 USPQ2d at 1787. Registrant’s goods are broadly described, and therefore encompass all the goods of the nature and type described therein, and we do not limit its fasteners and screws to those that are “tiny and inexpensive.” See, e.g., Hughes Furniture, 114 USPQ2d at 1137; Linkvest, 24 USPQ2d at 1716. For the same reason, we consider Applicant’s goods as identified in the application, without regard to the extrinsic evidence it proffers about their actual nature. Regardless of whether Applicant’s anchoring device is a type of metal threaded fastener directly encompassed by the cited registration, which it claims it is not, the evidence strongly shows the relatedness of such fasteners to a wide variety of anchoring devices including those identified by Applicant. This factor weighs in favor of a likelihood of confusion determination. 26 8 TTABVUE 4 (Applicant’s Brief). Serial No. 87233162 - 9 - C. Trade Channels and Classes of Consumers Turning to the trade channels and consumers, while we note that Applicant’s identification restricts its goods to use in connection with “a building, a bridge, or a roadway,” we reject Applicant’s argument that the trade channels for its identified goods should be more narrowly limited to “massive construction and engineering projects,” such as “a high rise.”27 In accordance with the language in the identification, we must presume that the goods travel in all the usual channels of trade for such goods and are available to all potential classes of ordinary consumers for those goods, and the trade channels cannot be differentiated based on evidence that they actually are more limited than what appears on the face of the identifications. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding that where the identification is unrestricted, “we must deem the goods to travel in all appropriate trade channels to all potential purchasers of such goods”). See also Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013). Thus, Applicant’s anchoring devices include those, for example, that might be used in a project for any building, not just massive buildings. The third-party marketplace relatedness evidence discussed above demonstrates that anchoring devices for use in concrete with projects such as those identified are featured together on the same websites as metal threaded fasteners and screws, and would be encountered by some of the same consumers, such as building contractors. The trade channels and classes 27 8 TTABVUE 4 (Applicant’s Brief). Serial No. 87233162 - 10 - of consumers overlap. Thus, this factor weighs in favor of a likelihood of confusion determination. Decision: Based on the similarity of the marks, the related goods that travel in overlapping trade channels to some of the same classes of consumers, confusion is likely. The refusal to register Applicant’s mark is affirmed. Copy with citationCopy as parenthetical citation