HTC Sweden AB

Trademark Trial and Appeal Board

Sep 12, 2013

No. 77217638 (T.T.A.B. Sep. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
September 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re HTC Sweden AB
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Serial No. 77217638
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Jeffrey H. Kaufman of Oblon Spivak McClelland Maier & Neustadt LLP for HTC
Sweden AB.1

Janet H. Lee, Trademark Examining Attorney, Law Office 102 (Karen M. Strzyz,
Managing Attorney).2
_____

Before Kuhlke, Shaw and Hightower, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, HTC Sweden AB, filed an application to register on the Principal
Register the mark shown below for goods ultimately identified as “Accessories for
floor polishing machines, namely, polishing pads with microscopic diamond pieces
which pads are used with a power cleaning and polishing machine, for commercial
and industrial use on hard surfaces such as terrazzo, polished concrete, marble,

1 The prosecution and briefing were handled by applicant’s prior attorneys, Andrea J.
Mealey and Patrick J. Concannon of Edwards Wildman Palmer LLP, formerly, Edwards
Angell Palmer & Dodge LLP.

2 Examining attorney Nancy Clarke handled initial prosecution of the application, which
was subsequently assigned to examining attorney Janet H. Lee.
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stone, and tile, not for use with liquid or chemical cleaners,” in International Class
7.3
4
During prosecution of the application, applicant deleted the following goods
from its application as originally filed: “floor cleaning and polishing products for
commercial and industrial use,” in International Class 3.
Registration has been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), on the ground that applicant’s mark, when used with its identified
goods, so resembles the registered mark TWISTER in typed form5 for “janitorial
supplies, namely, industrial cleaner sold for commercial cleaning,” in International
Class 3,6 as to be likely to cause confusion, mistake or deception.7

3 Application Serial No. 77217638, filed on June 28, 2007, based on allegation of first use on
November 2, 2006 and first use in commerce on November 17, 2006, under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a).

4 Applicant’s mark is hereinafter referred to as TWISTER and design.

5 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings.

6 Registration No. 2745469, issued on August 5, 2003, Section 8 declaration accepted,
renewed.

7 The prosecution history of this application is long and involved and included other
refusals that were satisfied and withdrawn. In particular, two other marks in prior
registrations had been cited against applicant but were subsequently withdrawn as a bar to
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When the refusal was made final, applicant appealed and briefs have been
filed.8
When the question is likelihood of confusion, we analyze the facts as they
relate to the relevant factors set out in In re E. I. Du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods or services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
COMPARISON OF THE MARKS/STRENGTH OF THE MARKS
We first turn to consider the marks TWISTER and design and TWISTER and
compare them “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imports 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. While we view the marks in their entireties,
“there is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark… .” In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In general the word portion of a
mark dominates over the design portion inasmuch as the word portion “is the one

registration: Reg. No. 1100799 for the typed mark TWISTER for mops, issued on August
29, 1978 and Reg. No. 1888518 for the typed mark TWISTER for “cleaning implements,
namely, brushes and pads for cleaning the inside of glass walls of an aquarium,” issued on
April 11, 1995.

8 Due to various requests for reconsideration and remands, applicant was afforded and
availed itself of the opportunity to submit supplemental appeal and reply briefs.
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most likely to indicate the origin of the goods to which it is affixed.” CBS Inc. v.
Morrow, 708 USPQ2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983). “It is the word
portion of the marks which is most likely to be impressed upon a customer’s
memory as it is used by prospective purchasers when asking for applicant’s and
registrant’s goods.” In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1596 (TTAB
2001) citing In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). In
addition, in this case the design element consists of a stylized twister9 which serves
to support and underscore the meaning and commercial impression of the word
TWISTER. Thus, we find the dominant portion of applicant’s mark is the word
TWISTER in block lettering and is identical in appearance, sound, connotation and
commercial impression to the entirety of registrant’s typed form mark TWISTER.
Citigroup Inc. v. Capital City Bank Group Inc., 98 USPQ2d 1253, 1258-59 (Fed. Cir.
2011) (minimal stylization in [applicant’s] mark cannot serve to distinguish the
marks, inasmuch as we must consider applicant’s mark “regardless of font style,
size, or color.”). We further note, as shown in the specimen of use below, applicant
also displays the word TWISTER by itself in addition to combined with the design
element. Cf. CBS Inc. v. Morrow, 218USPQ at 200 (that the word portion of a mark
is dominant is “particularly true when a mark appears in textual material, such as

9 Twister is defined as “a tornado, waterspout or dust devil in which the rotatory ascending
movement of a column of air is esp. apparent.” Merriam-Webster’s Collegiate Dictionary
(10th ed. 1999). The Board may take judicial notice of dictionary definitions. In re Red
Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also University of Notre Dame du
Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).

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catalog descriptions, in which it is often impossible or impractical to include the
design feature of the mark.).

Applicant argues that the design element is sufficiently fanciful such that it
does not constitute the mere design equivalent of the word TWISTER. In support of
this proposition, applicant relies on In re Serac, Inc., 218 USPQ 340 (TTAB 1983) a
case concerning the doctrine of equivalents. In that case, the Board was comparing
a stylized design of a ram’s head without wording and the word mark RAM’S
HEAD. Here, we are not finding a similarity between applicant’s design element
and registrant’s word mark, we are simply finding that it does not change the
commercial impression sufficiently to obviate the identical nature of the words in
the marks. We recognize, in the context of the applied-for goods, i.e., polishing
pads, the design may also evoke the meaning polishing pads; however, displayed
with the word TWISTER there is no doubt that the design also evokes the meaning
twister.
In view of the above, we find that applicant’s mark TWISTER with design, is
highly similar to registrant’s mark TWISTER.
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THIRD-PARTY USES OF TWISTER AND TWIST
Applicant argues that the words TWISTER and TWIST are used by third
parties to identify cleaning products to such an extent that “the relevant consumers
are conditioned to differentiate between the numerous ‘TWISTER’ and ‘TWIST’
marks in the cleaning supplies field” and “would not be likely to believe that
cleaning machine pads bearing the Applicant’s distinctive TWISTER logo emanate
from, or are sponsored by or associated with, the owner of TWISTER as applied to
liquid cleaning solutions.” App. Supp. Brief p. 9. In support of this argument,
applicant submitted printouts from 8 third-party websites for: TEXAS TWISTER
for truck-mounted carpet cleaning equipment (www.namcomfg.com); THE TURBO
TWISTER and TWISTER with twister design for a cleaning machine for concrete
surfaces (http://amclean.com);10 HYDRO TWISTER for a concrete surface cleaner
that connects to a pressure washer (www.hydroteksystems.com); TWISTER
SWEEPER for a cordless rechargeable vacuum (www.amazon.com and
www.tradekey.com); TWISTER 2 MOP for a mop
(www.everythingrubbermaidstore.com);11 TWISTER for magnetic cleaners for
aquarium cleaning (www.google.com);12 FANTOM TWISTER for an upright vacuum

10 This appears to be the mark in the now cancelled Reg. No. 1846514 discussed infra.

11 This appears to be one of the prior cited registrations, Reg. No. 1100799 for the mark
TWISTER for mops.

12 This appears to be one of the prior cited registrations Reg. No. 1888518 for the mark
TWISTER for aquarium cleaners.

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cleaner (www.shopwiki.com); and ZEP TWISTER for a protective lubricating spray
(www.tedjgross.com). February 22, 2011 Request for Remand Exh. A.13
Applicant also submitted examples of three third-party uses of the word
TWIST in connection with mops and sponges which we have considered but find
less probative on this point in view of the difference in the words TWIST and
TWISTER due to the connotation of tornado of the word twister. Id. Exh. B. See
also App. Response (October 21, 2008) Exh. 1 (Application Serial No. 78952580 for
the mark TWIST and design for various all-purpose cleaners)14 and App. Response
(June 9, 2009) Exh. 2 (TWIST ‘N MOP and PRO TWIST for mops (same owner),
TWIST ‘N CLEAN for mops, MAXITWIST for buckets, brooms, mops, TWIST and
design for cleaning pads, cloths, mitts, sponges, and KWIK TWIST for mops).
The website printouts while probative are limited in probative value in that
we cannot know the extent to which these products have been exposed to potential
purchasers. In addition, for the most part, the TWISTER marks in use include
other word elements that arguably distinguish the marks (ZEP TWISTER,
FANTOM TWISTER, TEXAS TWISTER), at least more than a twister suggestive
design.

13 It is unclear if the examining attorney considered this evidence, as it is not addressed in
the subsequent Office Actions or her brief. Inasmuch as the request for remand was
granted, albeit the order only references applicant’s proposed amendment to its
identification, and further examination was conducted, we have considered this evidence.

14 A third-party application has no probative value other than as evidence that the
application was filed. In re Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1270 n. 8
(TTAB 2009).
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Applicant also submitted two third-party registrations that include the word
TWISTER: Reg. No. 2135205 for the mark TWISTER for “vacuum cleaners and
parts therefor”; and Reg. No. 2779665 for the mark HYDRO TWISTER for “rotary
surface cleaner that uses pressurized water to clean surfaces such as but not limited
to concrete.” App. Resp. (January 25, 2010) Exh. 2. The record also includes the
canceled registration for CONCRETE CLEANING SYSTEMS THE TWISTER for
“floor cleaning attachments for pressure washers used in the cleaning of concrete
and other hard floor surfaces.”15 App. Resp. (June 9, 2009) Exh. 3 (Reg. No.
1846514 for TWISTER with tornado design issued on July 26, 1994 and cancelled
on May 1, 2005). Applicant argues that these registrations, along with the prior
cited registrations Reg. Nos. 1100799 and 1888518, coexisted with the cited
registration and support the proposition that applicant’s mark may also reside on
the register without conflict. It is well-established that the Board is not bound by
prior decisions in examination, each case must be decided on its own merits based
on the evidence of record, and “the issuance of a registration(s) by an Examining
Attorney cannot control the result of another case.” In re Sunmarks, Inc., 32
USPQ2d 1470, 1472 (TTAB 1994). See also In re Davey Products Pty Ltd., 92
USPQ2d 1198, 1206 (TTAB 2009) quoting In re Thomas 79 USPQ2d 1021, 1028
(TTAB 2006) (“[W]e will not compound the problem of the registration of a
confusingly similar mark by permitting such a mark to register again.”). However,

15 While a cancelled registration does not “provide constructive notice of anything,” it is
admissible and we have considered it for whatever probative value it may have relevant to
this factor. Nike Inc. v. Maher, 100 USPQ2d 1018, 1021 (TTAB 2011), quoting, Action
Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989).
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although not evidence of use under the sixth du Pont factor, these third-party
registrations add to applicant’s other evidence supporting applicant’s argument that
the words “twist” and “twister” are weak in this field. In re Hartz Hotel Servs., Inc.,
102 USPQ2d 1150, 1153-54 (TTAB 2012).
Specifically, applicant contends that the “word ‘twister’ as a trademark
element identifying a cleaning product, whether as a liquid cleaner or a cleaning
pad used with a machine, is highly suggestive of the very motion that such products
undergo when they are used to clean.” App. Supp. Br. p. 10. Applicant supports its
position with dictionary definitions arguing that “the primary definition of ‘twister’
[is] ‘one that twists’” and “the definition of ‘twist’ is ‘to cause to move in a turning
motion’. The turning motion inherent in ‘twisting’ is an integral part of cleaning –
the turning causes friction that rubs or polishes away grime.” Id. See also
February 22, 2011 Request for Remand Exh. C Merriam-Webster Dictionary
(www.merriam-webster.com). Thus, applicant asserts that the word twister “is
highly suggestive of the very motion that such products undergo when they are used
to clean.” Id. While the word “twister” has the added connotation of tornado, it
does retain the twisting motion meaning and is somewhat suggestive of the manner
in which the product cleans.
However, taking into consideration the suggestiveness of the mark in relation
to cleaning products and the evidence of some third-party usage, we conclude that
this record does not support narrowing the scope of protection to such an extent that
a suggestive design element is sufficient to distinguish the marks. Moreover, even
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weak marks receive protection against likely confusion. King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
COMPARISON OF THE GOODS/CHANNELS OF TRADE
Thus, we turn to consider the du Pont factors of the relatedness of the goods
and channels of trade. We base our evaluation on the goods as they are identified in
the registration and application. In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems,
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). It is settled that it is not necessary that the respective goods be identical
or even competitive in order to find that they 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 Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The goods need
only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source. See On-
line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir.
2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984); and In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991). Finally,
we note that the more similar the marks at issue, the less similar the goods or
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services need to be to support a finding of likelihood of confusion. In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
The examining attorney argues that the goods are “both for janitorial use”
and the record shows they frequently emanate from the same source. In support of
her position, the examining attorney submitted evidence in the form of third-party
registrations and web pages to demonstrate that applicant’s and registrant’s types
of goods sometimes emanate from the same source, are commonly offered together
such that they are closely related, and travel in the same channels of trade. The
third-party registrations include Reg. No. 1395458 for the mark GOLDEN STAR for
“buffing pads for use with power driven floor cleaning and polishing machines” and
“cleaners”; Reg. No. 2018883 for the mark BONA for “cleaning solutions” and
“polishing pads”; Reg. No. 3076262 for the mark AMSAN for “industrial cleaning
solvents, all-purpose cleaning preparations” and “polishing pads for floor polishing
machines”; and Reg. No. 3334711 for the mark MOMAR for “all purpose cleaning
preparations” and “pads for floor polishing and floor scrubbing machines.” Third-
party registrations that individually cover different items and that are based on use
in commerce serve to suggest that the listed goods and services are of a type that
may emanate from a single source. See In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1786 (TTAB 1993).
The web pages include, 3M offering heavy duty all-purpose cleaners and
degreasers and polishing pads under the mark 3M,16 Lapmaster selling abrasive

16 Office Action (April 21, 2008) p. 9-11.

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powders and polishing pads under the mark LAPMASTER,17 Eagle Solutions selling
industrial strength degreasers for use on vinyl tile, terrazzo, marble floors and
various pads for polishing concrete under the mark EAGLE SOLUTIONS.18 Other
website excerpts offer support to show how the trade channels overlap in that
cleaning solutions and cleaning or polishing pads are sold on the same website
offering cleaning supplies. See, e.g., Mid Atlantic Industrial Supply & Brokerage
offering cleaning solutions and polishing pads,19 Benman Industries Inc. offering
rinse cleaners and floor polishing pads,20 and DDN Industries, Inc. offering 3M
industrial cleaners and 3M floor pads for use with rotary or automatic equipment.21
Four examples include diamond embedded polishing pads and cleaning
preparations.22
In addition, the printout from applicant’s website further supports the
relatedness of these types of goods showing the same mark used in connection with
the cleaning pads and “cleaning compound,” the goods deleted from the current
application, namely, “floor cleaning and polishing products for commercial and
industrial use.” App. Response (March 28, 2008) (“TWISTER is a new cleaning

17 Id. p. 12.

18 Id. pp. 41-43. See also Office Action (December 9, 2008) (www.cleanfreak.com) and Office
Action (May 12, 2010) (www.stonetechprofessional.com).

19 Office Action pp. 15-16 (April 21, 2008) (www.midatlanticindustrialsupply.com).

20 Office Action p. 30-31 (December 9, 2008) (www.benmanind.com).

21 Id. pp. 38-40. See also p. 44-59 (jansansupplies.com, scottissue.com; supplyhero.com) and
Office Action pp. 46-48 (December 10, 2010) (www.braxton-bragg.com).

22 Office Action (December 10, 2010) (Prep/Master, VIC International Corporation, Braxton-
Bragg and Polidevil).
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technology. TWISTER consists of pads prepared with billions of microscopic
diamonds in combination with a specially prepared cleaning compound – TWISTER
CLEANER. … [and] has janitorial systems as a product range.” www.htc-
america.com). See also Office Action pp. 2-13 (December 10, 2010) (www.htc-
floorsystems.com HTC webpages offering polishing pads and cleaning preparations).
An example of applicant’s use in connection with the cleaning preparations is shown
below.
23
The record establishes that these types of goods are often offered by the same
entity and can be complementary.
Applicant argues that the examining attorney “improperly confused two
separate DuPont factors” when she stated “Applicant’s goods are related to the
registrant’s goods because it is common for goods such as those of the applicant and
those of the cited registrant to travel in the same or similar channels of trade.” We
see no error that warrants reversal. To the extent there is a semantic conflation of
the two factors, the record speaks for itself and clearly supports a finding that these
types of goods often emanate from the same source and consumers are accustomed
to seeing such goods offered from the same source.

23 Specimen of use attached to March 28, 2008 response.
Serial No. 77217638

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Applicant argues that its goods operate mechanically and are not used with
chemical cleaners, therefore, the evidence of companies that offer both pads and
cleaners are not relevant because those pads are not identified as being used
without chemicals. While applicant’s identification does limit its pads as “not for
use with liquid or chemical cleaners,” the third-party registrations are not limited
and would include pads for use without cleaners. In addition, there are examples in
the record of diamond pads and cleaners sold by the same company. Moreover, even
if the evidence does not support that the goods are complementary in the sense that
they are used together, the evidence remains relevant to show that consumers are
exposed to the same company offering the same goods, pads and cleaners, even if
the pads are not used with cleaners. Even applicant offers cleaners under the same
mark as shown by the original identification of goods (“floor cleaning and polishing
products for commercial and industrial use”) and specimens of use, as shown above.
Finally, although the pads as identified are not used with cleaners, they are used on
the same type of floors, as a competitive alternative to pads used with chemicals.
See HTC web page at Office Action p. 9 (December 10, 2010) (“Twister, developed by
HTC Sweden, is a revolutionary cleaning system which clean and polish floors
mechanically instead of using chemicals. … the Twister method has been evaluated
in a comparison with two other methods; Polish and Wax. … the Twister method
has a substantially lower environmental impact than any of the more traditional
floor care methods.”)
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Applicant’s various arguments with respect to the goods simply point out the
differences between the goods, but do not rebut the evidence of record showing the
related nature of these types of goods. Further, because there are no limitations as
to channels of trade or classes of purchasers in the descriptions of goods in the
application and cited registration, it is presumed that applicant’s and registrant’s
goods move in all channels of trade normal for those goods, and that they are
available to all classes of purchasers for those goods. See Paula Payne Products Co.
v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co. v.
Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A.,
24 USPQ2d 1716, 1716 (TTAB 1992). As demonstrated by the record, such trade
channels include online stores that sell various types of commercial cleaning
supplies.
Taking the record as a whole we find ample support to conclude that the
goods are sufficiently related and are offered in the same trade channels such that
confusion is likely when the goods are sold under similar marks.
PURCHASING CONDITIONS
Applicant argues that in this case, purchaser confusion is mitigated by the
“nature of commercial and industrial cleaning products [in] that the class of
consumers of such products tends to be suppliers and purchasing agents who buy in
bulk” and these goods are not “bought on impulse but only after lengthy, careful
deliberation.” App. Supp. Br. pp. 6-7. Applicant posits that applicant’s consumers
would have to “check to make sure that a polishing pad is compatible with their
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machines [which] results as a practical matter in the businesses exerting special
care in the purchasing decision.” App. Supp. Br. p. 7. The applicant’s and
registrant’s identifications are limited to commercial/industrial use and as
identified applicant’s goods are for use with machines.24 However, there is nothing
in the record on which to base a finding that the purchase of applicant’s polishing
pads is a “lengthy, careful deliberation.” It may be that the purchaser of the
janitorial supplies will exercise more care than the average purchaser stopping at
the market to pick up household cleaning supplies, but not to such an extent to
outweigh the other relevant du Pont factors in this case.
ACTUAL CONFUSION
Although not raised in its briefs, during prosecution applicant argued that
there have been no known instances of actual confusion despite its use in commerce
since November 2006. Applicant supports this argument by pointing to the alleged
use dates in its application and the cited registration. See App. Resp. (June 9, 2009)
Exhs. 5 and 6. The contemporaneous use of applicant’s and registrant’s marks for a
period of approximately three years (at the time of applicant’s response) without
actual confusion is entitled to little weight. See Majestic Distilling Co., Inc., 65
USPQ2d at 1205 (“uncorroborated statements of no known instances of actual
confusion are of little evidentiary value”). See also In re Bisset-Berman Corp., 476
F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony of

24 To this extent, the examining attorney is incorrect in her statement that we include
general consumers in our analysis because the respective goods are offered on the Internet.
We restrict our analysis to the goods as identified and the restriction for commercial and
industrial use limits the class of purchasers to those purchasing for commercial and
industrial use – this is, as applicant notes, a channel of trade restriction.
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applicant’s corporate president’s unawareness of instances of actual confusion was
not conclusive that actual confusion did not exist or that there was no likelihood of
confusion). The lack of evidence of actual confusion carries little weight, J.C. Hall
Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965),
especially in an ex parte context. In any event, there is not sufficient evidence
relating to the extent of use of registrant’s marks and, thus, whether there have
been meaningful opportunities for instances of actual confusion to have occurred in
the marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1847 (Fed. Cir. 2000); and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d
1768, 1774 (TTAB 1992). Accordingly, the du Pont factor of the length of time
during and conditions under which there has been contemporaneous use without
evidence of actual confusion is considered neutral.
CONCLUSION
In conclusion, because the marks are similar, the goods are related, and the
channels of trade and consumers are the same or overlapping, confusion is likely
between applicant’s mark TWISTER and design and the mark TWISTER in the
cited registration. Finally, to the extent that any of the points argued by applicant
cast doubt on our ultimate conclusion on the issue of likelihood of confusion, we
resolve that doubt, as we must, in favor of the prior registrant. In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal to register based on a likelihood of confusion under
Section 2(d) of the Trademark Act is affirmed.