Joseph Craine

Trademark Trial and Appeal Board

May 8, 2017

No. 86259999 (T.T.A.B. May. 8, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 8, 2017
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Joseph Craine
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Serial No. 86259999
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Arnold S. Weintraub of The Weintraub Group, P.L.C.
for Joseph Craine.

Ellen J. G. Perkins, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
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Before Zervas, Bergsman, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
Joseph Craine (“Applicant”) seeks registration on the Principal Register of the
mark ALFA AUTOMATION in standard characters for “Assembly lines, namely, a
series of machines for assembling picture frames in successive stages; Industrial
robots for assembling picture frames; Power tools, namely, double bladed mitre saws
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and mitre saw parts, used in the production of picture frames” in International Class
7.1 Applicant has disclaimed the exclusive right to use the word “Automation.”
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 following
registered marks owned by different entities:
with the wording TOOLS disclaimed, for
“accessories for power operated rotary tools, namely,
general purpose twist drills, taps, dies, drill bits, router
bits, burrs, burr bits, wood bits, concrete drills, quick
change bits, cone bits, end mills; and reciprocating saw
blades and saber saw blades” in International Class 7 and
“hand tools and accessories therefor, namely, quick change
screwdrivers, tool bits for hand drills, screwdrivers, bits for
quick change screwdrivers, and bit blocks for holding quick
change screwdriver bits” in International Class 8;2 and
for “Power operated industrial robots;
conveyors; power operated crushing machines used to
crush waste material in the plastic industry; industrial
presses, namely, adaptable presses for use in the plastics

1 Application Serial No. 86259999 was filed April 23, 2014 based on an intent to use under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). We note that during prosecution,
Applicant attempted to amend the mark to add a design element that it characterized as a
picture frame, Sept. 6, 2015 Request for Reconsideration at 1-2, but the Examining Attorney
denied the amendment as a material alteration, Sept. 28, 2015 Office Action. Applicant did
not challenge the denial of the drawing amendment, and thus the issue is not before us on
appeal. Therefore, Applicant’s characterization of the mark in its Brief as “Alfa Automation
within a picture frame” (4 TTABVUE 2) is incorrect.
2 Registration No. 2194484 issued October 13, 1998 and has been renewed.
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industry and insert machines for inserting parts in molds
in the plastic industry” in International Class 7.3
After the Examining Attorney made the refusal final, Applicant appealed. We
affirm the refusal.
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a 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.2d
1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”).
We focus our analysis primarily on Registration No. 2606907 for the mark
that identifies, inter alia, power-operated industrial robots. If we
find no likelihood of confusion as to the mark and goods in this registration, then it
follows there would be no likelihood of confusion as to the other cited registration, for

3 Registration No. 2606907 issued August 13, 2002 and has been renewed. It includes a
description of the mark, stating, “The mark consists of two stylized depictions of the word
‘ALFA’.”
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which the mark is comparably similar and the goods do not directly overlap with
Applicant’s goods. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2008) (confining likelihood of confusion analysis to one of multiple cited registrations
deemed closest to the applied-for mark).
A. The Goods, Trade Channels, and Classes of Consumers
The subject application includes “Industrial robots for assembling picture frames”
among its identified goods, and the cited registration identifies, inter alia, “power
operated industrial robots.” While Applicant’s industrial robots are restricted to those
that assemble picture frames, Registrant’s identification contains no limitation as to
the function the industrial robots perform. Therefore, the identification in the cited
registration is broad enough to encompass power-operated industrial robots that
perform any function, including assembling picture frames. Similarly, although
Registrant’s industrial robots are characterized as power-operated, Applicant’s
identification contains no restriction in that regard and therefore encompasses
power-operated industrial robots that assemble picture frames. See 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.’”). Thus, the goods overlap in part.
Applicant first argues that this factor weighs against likely confusion by singling
out and contrasting particular, more disparate items from the identifications.
However, we need not assess the relatedness of these items because likelihood of
confusion applies as to all goods in the class if there is likelihood of confusion
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involving any item in the identification of goods in that class. Tuxedo Monopoly, Inc.
v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); see also
In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015) (“it is sufficient for
finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
application.”). As noted above, the industrial robots Applicant has identified overlap
with Registrant’s goods, so if likelihood of confusion is found as to those items, it
applies to the entire class.
Second, Applicant contends that his industrial robots perform the specific function
of assembling picture frames and therefore are distinct from robots that perform
other types of functions, such as those involving, for example, aerospace components,
automotive components, and household fixtures. Yet, Registrant’s identification
broadly identifies “power operated industrial robots” that are presumed to perform
all types of functions. See, e.g., Southwestern Mgmt., Inc. v. Ocinomled, Ltd, 115
USPQ2d 1007, 1025 (TTAB 2015) (With a broad identification of services, “we must
presume that the services encompass all services of the type identified”); 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.”). Accordingly, the more specific function of
Applicant’s industrial robots cannot distinguish them from Registrant’s robots. This
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is because the scope of the registered mark and the scope of the registration that
Applicant seeks are defined by the description of goods in the registration and
application and not by the actual use of the marks. See Octocom Syst. Inc. v. Houston
Computers Svcs. 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.”).
Turning to the trade channels and consumers, because Applicant’s and
Registrant’s recitations of goods overlap in part, we presume that the goods also move
in overlapping channels of trade and are available to overlapping classes of potential
consumers. See Inter IKEA Sys. B.V. v. Akea, 110 USPQ2d 1734, 1743 (TTAB 2014);
L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1971 (“Because the goods of both
parties are at least overlapping, we must presume that the purchasers and channels
of trade would at least overlap.”); see also Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding that where an
identification is unrestricted, “we must deem the goods to travel in all appropriate
trade channels to all potential purchasers of such goods”).
B. Similarity of the Marks
Turning to the comparison of the applied-for and cited marks, we consider them
“in their entireties as to appearance, sound, connotation and commercial impression.”
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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). The test assesses not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall 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. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Laboratories Inc. v. Lichter, 102
USPQ2d 1546, 1551 (TTAB 2012). We also bear in mind that, given the overlap in
the goods, “… the degree of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1701 (Fed. Cir. 1992).
The cited mark consists of two different stylized depictions of the word ALFA. The
one on the right appears in much larger, linear lettering, while the one on the left
shows the first letter, A, on top of the others. Applicant characterizes this cited mark
as ALFA in stylized form.4 The wording ALFA from the cited mark is identical to the
dominant word ALFA in Applicant’s mark. As the first word in Applicant’s mark, we
find that ALFA “is most likely to be impressed upon the mind of a purchaser and
remembered.” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
(TTAB 1988). AUTOMATION, the second word in Applicant’s mark, is disclaimed as
descriptive, diminishing its significance in the comparison of marks because

4 4 TTABVUE 2 (Applicant’s Brief).
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consumers would be unlikely to focus on the descriptive term to distinguish source.5
See In re Dixie Restaurants, Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34
(Fed. Cir. 1997); In re National Data Corp., 753 F.2d 1056, 1060, 224 USPQ 749, 752
(Fed. Cir. 1985). The shared word ALFA creates a significant visual resemblance
between the two marks, especially considering that Applicant’s standard character
mark could appear in the same font used in Registrant’s stylized word mark. See In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012) (holding that
the specific font style of a mark cannot serve as the basis to distinguish it from a mark
in standard character form). The shared word also renders the marks phonetically
similar, an important consideration in the analysis, because consumers would use
ALFA in both marks to “call for” the goods. See Viterra, 101 USPQ2d at 1911. While
the registered mark depicts the word ALFA twice, and Applicant’s mark includes the
additional word AUTOMATION, we find the marks overall to be similar.
We further find the connotation and commercial impression of both marks to be
very close. Applicant notes that ALFA “represents the first letter of the Greek
Alphabet” and makes no argument that the meaning of the term differs between the
two marks.6 We find ALFA to be arbitrary in regard to the relevant goods. In the
context of the overlapping industrial robots, the connotation of ALFA and ALFA
AUTOMATION is essentially the same. In Applicant’s mark, because
AUTOMATION would be understood as a descriptive reference to the automated

5 Aug. 13, 2014 Office Action at 8 (dictionary definition of “automation” as “a system that
uses machines to do work instead of people, or the process of changing to such a system”).
6 4 TTABVUE 3 (Applicant’s Brief).
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nature of industrial robots, it does not alter the meaning of ALFA, and does not
contribute significantly to the overall commercial impression of the mark. Rather, in
terms of the meaning and impression of the mark, ALFA stands out, thereby
increasing the similarity with Registrant’s mark.
Given the resemblance in sound, appearance, connotation and commercial
impression, we find the two marks very similar.
C. Sophisticated Purchasing
In its Brief, Applicant asserts, without supporting evidence, “that purchasers of
associated tools for use on picture frame assembly lines, are sophisticated purchasers
who are not likely to be confused with those used for other purposes.”7 While we
recognize that the inherent nature of industrial robots makes it likely that “customers
would bring an increased degree of care to the selection of the goods[,] there is no
evidence that the customers themselves are particularly sophisticated purchasers or
that they are in some other manner immune from trademark confusion.” See Harry
Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1442 (TTAB 2014); see
also In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)
(“That the relevant class of buyers may exercise care does not necessarily impose on
that class the responsibility of distinguishing between similar trademarks for similar
goods.”). Nevertheless, by virtue of the nature of the goods, we find that consumers

7 4 TTABVUE 5 (Applicant’s Brief).
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for industrial robots will exercise at least some degree of purchaser care and this du
Pont factor weighs against likelihood of confusion.
D. Number and Nature of Similar Marks for Similar Goods
Applicant’s Brief includes a passing argument that ALFA should be considered
weak because it allegedly “has been used in well over 4,000 filings before the
USPTO.”8 The Examining Attorney rightly objects that Applicant “has not provided
any evidence of third party U.S. Registrations or other evidence showing use of the
term ALFA in connection with the goods at issue.”9 Applicant failed to introduce the
registrations or other evidence on which is seeks to rely, and “[a]ttorney argument is
no substitute for evidence.” Enzo Biochem Inc. v. Gen Probe Inc., 424 F.3d 1276, 76
USPQ2d 1616, 1622 (Fed. Cir. 2005). Thus, we find this factor neutral.
Conclusion
The overall similarity of the marks for overlapping goods that move in the same
channels of trade to the same classes of customers renders confusion likely,
regardless of consumer care in purchasing the goods. See HRL Associates, Inc. v.
Weiss Associates, Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, Weiss Associates,
Inc. v. HRL Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1841-42 (Fed. Cir. 1990)
(similarities of goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods).
Decision: The refusal to register Applicant’s mark is affirmed.

8 4 TTABVUE 3 (Applicant’s Brief).
9 6 TTABVUE 7 (Examining Attorney’s Brief).