Jason Troy

Trademark Trial and Appeal Board

Jul 18, 2013

No. 85362551 (T.T.A.B. Jul. 18, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
July 18, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Troy
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Serial No. 85362551
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Anastassios Triantaphyllis of Triantaphyllis Law Firm for Jason M. Troy.

Elissa Garber Kon, Trademark Examining Attorney, Law Office 106 (Mary I.
Sparrow, Managing Attorney).
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Before Holtzman, Taylor, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Jason M. Troy filed an application to register the mark OOPS! STEAM
CLEANING in standard character form on the Principal Register for “Air duct
cleaning services; Carpet cleaning; Cleaning of upholstery, tile and grout; Rug
cleaning.”1 The trademark examining attorney refused registration under § 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, as
used in connection with applicant’s services, so resembles the registered mark

1 Application Serial No. 85362551, filed under Trademark Act § 1(a), 15 U.S.C. §1051(a), on
July 3, 2011, with a claim of first use and first use in commerce of September 2006.
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OOPS! as to be likely to cause confusion, or to cause mistake, or to deceive. The
cited mark is registered on the Principal Register in standard character form for:
Cleaning preparations used to remove dried paint, tar,
lipstick, shoe polish, ink, oil, grease and the like; cleaning
preparations in the nature of liquid solvents; cleaning
preparations in the nature of liquid solvents sold in
aerosol dispensers; cleaning preparations in the nature of
liquid solvents sold in spray bottles; pre-moistened
towelettes impregnated with cleaning preparations in the
nature of liquid solvents.”2
When the refusal was made final, applicant filed a notice of appeal with a request
for reconsideration. On reconsideration, the examining attorney maintained her
refusal and this appeal ensued. Applicant and the examining attorney have
submitted briefs.
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. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods and services at issue. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case, applicant and the
examining attorney have also submitted evidence and arguments regarding the
channels of trade, classes of customers, the degree of care taken by customers, and
absence of actual confusion.

2 Reg. No. 3727402, issued on December 22, 2009.
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(a) The marks.
We address first the similarity or dissimilarity of the marks as to appearance,
sound, connotation and commercial impression. Du Pont, 177 USPQ at 567.
Applicant’s mark is OOPS! STEAM CLEANING and the registered mark is OOPS!.
Applicant is correct in urging us to consider the marks in their entireties in
reaching our ultimate conclusion, but there is nothing improper in giving more or
less weight to a particular feature of a mark for rational reasons. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The dominant
portion of applicant’s mark is clearly OOPS!, because the remainder of the wording
is the generic name of applicant’s services and has no inherent source-indicating
power. See, for example, the article “Carpet Cleaning – D I Y Steam Cleaning Vs.
Professional Steam Cleaning.”3
Applicant contends that its entire mark is not identical to the registrant’s
mark and that the fact that two marks share a common leading term does not
necessarily indicate likely confusion.4 However, the examples and authorities cited
in supported of applicant are distinguishable. In Washington Speakers Bureau, Inc.
v. Leading Authorities, Inc., 49 USPQ2d 1893 (E.D. Va. 1990), the common term at
issue was WASHINGTON SPEAKERS which, in the context of the plaintiff’s
services (arranging lectures in the Washington, DC area) was descriptive of the
services and, accordingly, a weak source indicator. That is not the case before us;

3 Found at , submitted with the Office action of July 14, 2012.
4 Applicant’s brief at 7.
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OOPS! is clearly not descriptive of the services and goods at issue and is, in fact, a
relatively strong mark.
Similarly, TMEP §1207.01(b)(iii), cited by applicant, states that one reason
for not finding confusing similarity between marks that share a common element is
the “descriptiveness or the commonness of the use” of the common element. Again,
OOPS! is not descriptive, and there is no evidence that it is commonly used as a
trademark. The other reason cited by this section of the TMEP is that “the marks
in their entireties convey significantly different commercial impressions.” Id. In
the case before us, the additional matter in applicant’s mark, STEAM CLEANING,
is the generic name for applicant’s services and does not give the mark a
“significantly different commercial impression” from that of the registrant’s mark.
It would be neither improper nor unexpected for registrant to use its mark in close
conjunction with the expression STEAM CLEANING, because registrant’s “liquid
solvents” include within their scope solvents for use in the process of steam
cleaning.
In all important respects, we find the applicant’s mark highly similar in
appearance, sound, significance and overall commercial impression to the cited
registered mark. Accordingly, this du Pont factor favors a finding of likelihood of
confusion.
(b) The services and goods at issue.
We turn next to the respective services and goods of applicant and registrant,
in order to determine whether they are sufficiently related to give rise to potential
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confusion. Applicant argues that it does not sell goods of the type identified in the
registration and does not offer such goods in connection with its cleaning services.5
Applicant also points out that there is no per se rule indicating that confusion is
likely as between services, on one hand, and goods related to those services on the
other.6 However, it is equally true that likelihood of confusion may arise where
confusingly similar marks are used on goods and for services involving those goods.
See Steelcase, Inc. v. Steelcare, Inc., 219 USPQ 433 (TTAB 1983); J. Thomas
McCarthy, Trademarks and Unfair Competition (4th ed.) § 24:25.
The examining attorney argues that applicant’s services and registrant’s
goods “are competitive alternatives that serve similar purposes,” and points to the
“consumer options of do-it-yourself cleaning of upholstery and carpets, and other
flooring… versus hiring of professionals to perform cleaning services.”7 The
examining attorney has submitted examples8 of internet articles discussing these
options, including “Cleaning Your Carpet? Here Are Tips on Using a Professional
vs. Doing It Yourself”;9 “Carpet Cleaning – D I Y Steam Cleaning Vs. Professional
Steam Cleaning”;10 “Do It Yourself Upholstery Cleaning.”11 One such article
explains:

5 Applicant’s brief at 9.
6 Id. at 10.
7 Examining attorney’s brief at 7.
8 Submitted with the Office action of July 14, 2012.
9 Found at .
10 Found at .
11 Found at .
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Because of the nature of upholstery, many people turn to
professionals. … Stanley Steamer is just one company
that uses the steam method to clean upholstery.
…
Just as there are many different professional companies
to choose from, there are also plenty of upholstery
cleaning products in the stores. These fabric cleaning
products are much less expensive than the
professionals….

“Best Upholstery Cleaning Products for Sofas, Rugs, and Car Upholstery,” at
.

Another article states:
Q. I have several chairs and sofas that need the arms
cleaned…. Should I rent one of the cleaners at the
supermarket or hire a professional?
A. … The chemicals used with DIY rental machines and
by pros are similar, says Brian Walters, a sales
manager….
“Upholstery cleaning: DIY or pro?” at .
The examining attorney also argues that registrant’s goods are
complementary to applicant’s services, in the sense that the goods can be used in
connection with the services and that the goods and services “enhance one another
because consumers can buy home cleaning products from cleaning services and
cleaning services recommend using their products for cleaning maintenance in
between professional cleanings.”12 This type of relationship is illustrated by
advertisements of Sears, which offers cleaning of carpets, air ducts, upholstery, and

12 Examining attorney’s brief at 9.
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tile, and also offers cleaning products “designed to keep your carpet looking its best
between professional cleanings.”13
The examining attorney also argues that applicant’s services and registrant’s
goods are of types that may emanate from the same source, and has submitted at
least nine use-based, third-party registrations, each of which identifies both services
of the type offered by applicant and goods of the type offered by registrant.14 Among
these are the following:
Reg. No. 3142464 for “shampoos for… rugs, … all-purpose cleaning
preparations” and “cleaning services for carpets, rugs,
textiles and air ducts.”

Reg. No. 3019689 for “cleaning solutions and cleaning compounds for
cleaning and restoration of rugs, carpet, upholstery,
drapery materials…” and “Cleaning, preserving and
general overall maintenance of floor coverings,
upholstery, furnishings and other household, commercial
and institutional surfaces….”

Reg. No. 4031046 for “Cleaning agents and preparations” and “Air duct
cleaning services; Carpet and rug cleaning….”

Such third-party registrations that are based on use in commerce may have some
probative value to the extent that they serve to suggest that the listed goods and
services may emanate from the same source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988).
We find the examining attorney’s characterization of the degree of
relatedness between applicant’s services and the registrant’s goods to be apt and

13 See advertisements at , submitted with Office action of July 14, 2012.
14 See Office actions of October 20, 2011 and January 26, 2013.
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supported by the evidence. Accordingly, the du Pont factor of the similarity or
dissimilarity of applicant’s services and registrant’s goods favors a finding of
likelihood of confusion.
(c) The channels of trade.
Applicant argues that its services and the goods of registrant travel through
different trade channels, making confusion unlikely. Applicant states that
“Applicant’s services are advertised and sold in different manner than [sic]
(telephone book, flyer or internet advertising). Registrant’s goods that are sold in
stores.”15 The examining attorney accurately points out that neither the application
nor the registration contains any limitation as to trade channels. Accordingly, we
must assume that the services and goods move through all normal trade channels
for such services and goods. Octocom Syst. Inc. v. Houston Computers Svcs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); 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). The examining attorney has sought to
demonstrate that cleaning services sometimes sell their own cleaning preparations
to consumers for home use, but the evidence is sparse. It shows that Sears provides
both the services and the cleaning products (); and that
recommendations as to cleaning products of others are offered by Ayoub Carpet
Service (). There is evidence of a line of cleaning products under the

15 Applicant’s brief at 11.
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mark “Stanley Steemer” (), but there is no reliable evidence of
a cleaning service under that mark.16 On this record, we cannot find that cleaning
services are a normal channel of trade for retail cleaning products. Neither is there
persuasive evidence that other trade channels are shared by applicant and
registrant. Accordingly, the du Pont factor of established and likely to continue
trade channels favors a finding that confusion is unlikely.
(d) Customers and conditions of sales.
Applicant argues:
The relevant purchasers of Registrant’s goods and
Applicant’s services are sufficiently sophisticated to
preclude confusion. … Applicant’s steam cleaning services
are relatively expensive. Thus given the expensive nature
of Applicant’s services, it is unlikely that a consumer
would be confused as to the source of Applicant’s
services.”17
The examining attorney responds:
There is no evidence in the record that the applicant’s
steam cleaning services are any more expensive than any
other steam cleaning services traditionally marketed to
homeowners. … The website evidence in the record
clearly suggests that steam cleaning services are offered
to average homeowners, and many of the websites discuss
pricing specials, including the applicant’s own website.18
There is nothing in applicant’s recitation of services or in the registration
limiting the services or goods to “high-end” products or indicating that they are
marketed to any particular type of customer. Accordingly, we assume that the

16 All submitted with Office action of July 14, 2012.
17 Applicant’s brief at 11-12.
18 Examining attorney’s brief at 10.
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goods and services include all types of the goods and services identified, at all
normal price levels, and are offered to all classes of purchases for such services and
goods. Octocom, 16 USPQ2d at 1787; Paula Payne Products, 177 USPQ at 77-78.
Registrant’s goods are of a type that might be sold at every tier of the market,
i.e., not only to commercial and industrial customers but also to individual
consumers. The same can be said of applicant’s services. The articles relating to
“do it yourself” carpet cleaning, discussed above, clearly indicate that ordinary
consumers contemplate purchasing the services of a professional cleaning company.
There is no reason to expect consumers to bring a heightened degree of care or
sophistication to the selection of either cleaning products or cleaning services.
Moreover, consumer cleaning products are sufficiently inexpensive to be impulse
purchases; as consumers who purchase such products are also relevant customers
for applicant’s services, the low degree of care exercised in the context of registrant’s
goods could increase the likelihood of confusion as between applicant’s services and
registrant’s goods.
Because the relevant customers for the goods and services at issue overlap,
and because there is no reason to expect that they exercise a heightened degree of
care, the du Pont factor relating to relevant customers and conditions of sale weighs
in favor of a finding of likelihood of confusion.

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(e) Lack of actual confusion.
Finally, applicant argues that it has been using its mark for six years and it
is not aware of any confusion involving the marks of applicant and registrant.19 In
an ex parte context, where we have no input from the registrant, applicant’s
uncorroborated statement of no known instances of actual confusion are of little
evidentiary value. In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2003); In re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ
528, 529 (CCPA 1973). In any event, the record lacks evidence to indicate that
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 neutral.
Conclusion.
Having considered all of the evidence and arguments of record and all
relevant du Pont factors, including those not specifically discussed herein, we find
that applicant’s mark, as applied to applicant’s services, so closely resembles the
cited registered mark as to be likely to cause confusion, mistake or deception as to
the source of applicant’s services.
Decision: The refusal to register the mark is affirmed.

19 Applicant’s brief at 12.