Kaeser Kompressoren SEDownload PDFTrademark Trial and Appeal BoardSep 18, 2017No. 79147498 (T.T.A.B. Sep. 18, 2017) Copy Citation Mailed: September 18, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Kaeser Kompressoren SE _____ Serial Nos. 79147498, 79147499, and 791482341 _____ Stewart J. Bellus and Sara M. Dorchak of Collard & Roe PC for Kaeser Kompressoren SE. Jeanie H. Lee, Trademark Examining Attorney, Law Office 105, Jennifer Williston, Managing Attorney. _____ Before Mermelstein, Wolfson and Shaw, Administrative Trademark Judges. Opinion by Wolfson, Administrative Trademark Judge: Kaeser Kompressoren SE (“Applicant”) seeks registration on the Principal Register of the marks OMEGA (in standard characters),2 OMEGA PROFIL (in 1 The Board granted the Examining Attorney’s request for consolidation of the appeals on May 23, 2017, following Applicant’s filing of its appeal briefs in the cases. References to the record are to the record in Serial No. 79147498 unless otherwise indicated. 2 Application Serial No. 79147499 for the mark OMEGA was filed on March 14, 2014, under Section 66(a) of the Trademark Act, 15 U.S.C. 1141(f), requesting extension of protection on the basis of International Reg. No. 1204518, filed March 14, 2014. This Opinion is not a Precedent of the TTAB Serial Nos. 79147498, 79147499, and 79148234 - 2 - standard characters),3 and 4 for the following goods in International Class 7: Machines and mechanical apparatus for the generation of compressed air, vacuum and air flow, namely, compressed air machines, vacuum pump machines, and air suction machines; Compressors being machines, namely, air compressors, axial flow compressors, centrifugal compressors, compressors as parts of machines and engines, compressors for dehumidifying machines, compressors for machines, electric compressors, gas compressors, reciprocating compressors, refrigerator compressors, rotary compressors; Blowing machines blowers [sic] for the compression, exhaustion and transport of gases, namely, axial flow blowers, centrifugal blowers, rotary blowers, power operated blowers, electric fans [sic] ventilators and blowers for machines and engines; air suction machines; Machine housings, namely, housings for compressed air machines, vacuum pump machines, compressors, blowing machines, and air suction machines, except for food processing machines; Parts for compressed air machines, namely, central screw compressor units or central reciprocating compressor units. The Trademark Examining Attorney refused registration of Applicant’s marks under Trademark Act Section 2(d); 15 U.S.C. § 1052(d), based on two registrations owned by the same entity, Omega Engineering, Inc.: 3 Application Serial No. 79147498 for the mark OMEGA PROFIL was filed on March 14, 2014, under Section 66(a) of the Trademark Act, 15 U.S.C. 1141(f), requesting extension of protection on the basis of International Reg. No. 1204517, filed March 14, 2014. The English translation of “profil” in the mark is “profile.” 4 Application Serial No. 79148234 for the mark OMEGA and design was filed on March 14, 2014, under Section 66(a) of the Trademark Act, 15 U.S.C. 1141(f), requesting extension of protection on the basis of International Reg. No. 1206480, filed March 14, 2014. Serial Nos. 79147498, 79147499, and 79148234 - 3 - • Registration No. 2276934 for the mark for a wide variety of goods in International Classes 1, 2, 7, 9, 11 and 16; in particular, electric motors for fluid flow pumps, motor valves; carboy drum pumps, centrifugal pumps, chemical dosing pumps, gear pumps, hand pumps, magnetic drive centrifugal pumps, peristaltic pumps, [and] rubber impeller pumps in International Class 7;5 and • Registration No. 2412722 for the mark OMEGA.COM (typed drawing)6 for a wide variety of goods and services in International Classes 2, 7, 9, 11, 16 and 42; in particular, crimpers; mechanically operated hand-held punches, machine-held punches and hole saws, and punch tools and saw tools therefore [sic]; panel punches, and saws for meters and connectors; mechanically operated hand-held or machine-held wire strippers and wire stripper tools therefor; fluidised sand bath machines; temperature controlled, mechanically operated circulating bath machines; air blowers; stirring machines; pumps, namely, carboy drum pumps, chemical dosing pumps, drum pumps, gear pumps, hand pumps, rubber impeller pumps, fluid pumps, peristaltic pumps, fluid pump motors, vacuum pumps, hand-operated vacuum pumps, centrifugal pumps, gear pumps, rubber impeller pumps, drum pumps, and hand-held portable transfer pumps, sealed magnetic centrifugal pumps, hand pneumatic control valves, pneumatic valves for controlling pneumatically operated machines, actuated valves, ball valves, diaphragm valves, check valves -held [sic] dispensing pumps, diaphragm type injector motor pumps, injection pumps, chemical dosing pumps; valves being parts of machines, namely, pneumatic control valves, pneumatic valves for controlling pneumatically operated machines, actuated valves, ball valves, diaphragm valves, check valves; hand-held 5 Reg. No. 2276934, issued September 14, 1999; renewed. 6 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. Serial Nos. 79147498, 79147499, and 79148234 - 4 - mechanically operated pH/conductivity meter tools; mechanically operated electrode holders; motors for machines; tubing, being parts of machines; electric motors; mixing machines; transducers for distance, displacement, and angular velocity; machine couplings in International Class 7.7 After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board and filed a request for reconsideration. The request was denied, and appeal proceedings were resumed. Both Applicant and the Examining Attorney filed briefs.8 We affirm the refusals to register. Likelihood of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all of the probative facts in evidence that are relevant to the factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We have considered each du Pont factor that is relevant and for which there is evidence of record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). In 7 Reg. No. 2412722, issued December 12, 2000; renewed. 8 Trademark Rule 2.126, 37 CFR § 2.126, requires all submissions made to the Board to be filed in at least 11-point type and be double-spaced. Applicant’s brief is single-spaced. While we have considered Applicant’s brief in this instance, Applicant is apprised that it is within the sole discretion of the Board whether to disregard or accept any improper filings. See Trademark Trial and Appeal Board Manual (TBMP) § 106.03. Serial Nos. 79147498, 79147499, and 79148234 - 5 - any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944, 1945-46 (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 services] and differences in the marks.”); see also In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015). A. The Similarity or Dissimilarity of the Marks. We turn first to the du Pont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E.I. du Pont, 177 USPQ at 567. “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1905 (TTAB 2007); see also San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Geigy Chem. Serial Nos. 79147498, 79147499, and 79148234 - 6 - Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012). Applicant is seeking to register the marks OMEGA, OMEGA PROFIL, and . The cited marks are OMEGA.COM and . 1. OMEGA Serial No. 79147499 We first compare Applicant’s OMEGA mark to Registrant’s OMEGA.COM mark and find them to be nearly identical in appearance, sound, meaning and commercial impression. Because a comparison of the marks is determined based on the marks in their entireties, our analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981). The “touchstone of this factor is consideration of the marks in total.” Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millenium Sports, S.L.U., 707 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015). Nonetheless, one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark. In re Nat’l Data, 224 USPQ at 751 (“There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular Serial Nos. 79147498, 79147499, and 79148234 - 7 - feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.”). Applying these principles, we find that the term OMEGA forms the dominant part of Registrant’s mark OMEGA.COM. Whereas the “.COM” suffix is commonly known as a top-level domain designation usually used in trademarks by companies to announce their presence on the Internet,9 the term OMEGA is the 24th and last letter of the Greek alphabet, and is thus arbitrary when applied to the goods.10 Accordingly, purchasers of Registrant’s goods are likely to focus on the OMEGA portion of the mark. Applicant’s mark consists entirely of the term OMEGA. Registrant’s mark would be perceived as a trademark in the form of a domain name for a company named “Omega,” and Applicant’s mark OMEGA would be perceived as an alternate brand for that same company’s goods. Overall, the marks are similar in appearance, pronunciation, connotation and commercial impression. Comparing Applicant’s mark with Registrant’s design registration, we again find the similarity of the marks outweighs their differences. The design element is subordinate to the literal portion, which is the word OMEGA. When a mark comprises both a literal portion and a design, the wording is normally accorded greater weight 9 According to The American Heritage New Dictionary of Cultural Literacy, Third Ed., “.com” is “part of the Internet address of many companies and organizations. It indicates that the site is commercial, as opposed to educational or governmental.” The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). 10 From the online Merriam-Webster dictionary at https://www.merriam-webster.com/ dictionary/omega, accessed September 15, 2017. The term is also defined as “the extreme or final part : end.” Serial Nos. 79147498, 79147499, and 79148234 - 8 - because the literal portion of a mark is far more likely to be impressed upon a purchaser’s memory and to be used when requesting the goods. Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)); In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (“In the case of a composite mark containing both words and a design, ‘the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed.’”) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)). The design in Registrant’s mark consists of a stylized Greek omega symbol coupled with a stylized 3-bar design that could represent the English letter “E,” or the Greek letter epsilon (Ε ε), or the Greek letter xi (Ξ ξ). Although three bars can be observed in the design (possibly forming another letter), the omega symbol is larger and in the front position. In addition to being more visually prominent than the background “E,” the omega symbol also reinforces the perception of OMEGA as a source indicator. Accordingly, this cited registration is also similar in sight, sound, meaning and commercial impression to Applicant’s OMEGA mark. Applicant argues that the term OMEGA is diluted, or so weak that the additional elements in the Registrant’s marks sufficiently distinguishes them. We disagree. In support of its position, Applicant submitted copies of the results of three searches it conducted of the Trademark Electronic Search System (TESS) database for OMEGA Serial Nos. 79147498, 79147499, and 79148234 - 9 - marks.11 The copies are listings of marks, not full printouts of the registrations. The first listing is of 100 live and dead applications and registrations (out of 2486 records) of marks in which the term OMEGA was found in the “Word Mark” field either as a word or as part of a word (e.g., CRYOMEGA12). The second listing is of 100 live registrations (out of 1335 records) of marks containing the term OMEGA either as a word or as part of a word. The third listing is of 57 live and dead registrations (out of 57 records) of marks in International Class 7 containing the term OMEGA either as a word or as part of a word. In her brief, the Examining Attorney objected to our consideration of the listings. However, the Examining Attorney did not object to the listings in her denial of Applicant’s request for reconsideration, and further discussed in her brief the list of 57 registrations, noting that 29 of them were marked as “dead.”13 Regardless of the admissibility of the lists, they have virtually no probative value, and we do not take judicial notice of the underlying registrations. See, e.g., In re Jonathan Drew Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011) (“the Board’s well-established practice is not to take judicial notice of registrations that reside in the USPTO”); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1293 (TTAB 1986); see also TBMP § 1208.02. (“[T]he Board will not consider more than the information provided by the applicant. Thus, if the applicant has provided only a list of registration numbers 11 November 18, 2016 Response to Office Action, TSDR 2-9. 12 Reg. No. 4847528. 13 Denial of request for reconsideration, 7 TTABVUE 3. Serial Nos. 79147498, 79147499, and 79148234 - 10 - and/or marks, the list will have very limited probative value.”). The probative value of the list of 57 registrations (the most relevant listing) is further reduced by the fact that five of the listed marks do not contain the term OMEGA at all, two of the marks are the cited registrations, and twenty-nine are marked “dead.” A cancelled or expired registration is not evidence of anything except that it issued. See Action Temp. Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989); TBMP § 704.03(b)(1)(B) (June 2017). As to the remainder, we are not privy to the records of any of these registrations, no information as to the goods or services involved is included, and additional design elements, if any, do not appear as part of the marks in the “Word Mark” column.14 Accordingly, the lists do not evidence dilution or weakness of the term OMEGA. In addition to the lists, Applicant submitted copies of 12 third-party registrations for various goods in International Class 7 for OMEGA or marks that include OMEGA as part of the mark.15 Applicant has not shown by these registrations that the term OMEGA has a descriptive or suggestive meaning and would therefore be considered conceptually weak for goods in International Class 7. None of the registrations is for goods that bear any relation to the goods at issue in this case, but rather cover 14 We hasten to add that the two other lists suffer from the same infirmities as the list of 57, and in addition refer to pending applications. Third-party applications are evidence only of the fact that they have been filed. Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003). 15 November 18, 2016 Response to Office Action, TSDR 10-25. Although reference is made in the briefs to 13 copies, Reg. No. 1980557 was submitted twice. Serial Nos. 79147498, 79147499, and 79148234 - 11 - unrelated goods, such as tools for automobiles,16 printing plates,17 electric juice extractors18 and coffee grinders.19 One of the registrations has been cancelled.20 Moreover, Applicant has not shown that any of the marks are in use on a commercial scale. Absent evidence of actual use, third-party registrations generally have little probative value in assessing the market strength of a mark because they are not evidence that the marks are in use on a commercial scale or that the public has become familiar with them. Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not aware of registrations reposing in the U.S. Patent and Trademark Office); Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB 2011). See also Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however, registration evidence may not be given any weight.”). Cf. Juice Generation, Inc. v. GS Enters. LLC, 115 USPQ2d 1671, 1673 n.1 (Fed. Cir. 2015) (at least twenty-six relevant third-party uses or registrations of record). 16 Reg. No. 1848979 for the mark OMEGA LIFT EQUIPMENT. 17 Reg. No. 2096291 for the mark OMEGA. 18 Reg. No. 1844118 for the mark OMEGA. 19 Reg. No. 4434326 for the mark OMEGA. Only one, Reg. No. 4531251 for the mark OMEGA for “dispersion mills,” would suggest functions similar to compressors or blowers, but such functions are specifically excluded in the identification: “machines and machine arrangements for grinding, dispersing and emulsifying for industrial and laboratory applications, namely, dispersion mills and replacement parts therefore, excluding such machine parts that can be used in machines and devices for the production of compressed air, vacuum and air flow.” 20 Reg. No. 3045796 for the mark OMEGA. Serial Nos. 79147498, 79147499, and 79148234 - 12 - “[I]n any event, the Board is not bound by the actions of examining attorneys in allowing those marks for registration. It has been said many times that each case must be decided on its own facts.” In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010); see also In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030 (TTAB 2016) (“Suffice it to say that the Board is not bound by examination actions taken (or not taken) by an examining attorney.”). We find the first du Pont factor favors a finding of likelihood of confusion with respect to Applicant’s OMEGA mark, Serial No. 79147499. 2. OMEGA PROFIL Serial No. 79147498 In considering Applicant’s OMEGA PROFIL mark, we again find the mark to be similar to Registrant’s OMEGA.COM and OMEGA and design marks. Both word marks start with the term OMEGA as its dominant element. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered.”). As noted supra, the term OMEGA is also the dominant portion of Registrant’s design Serial Nos. 79147498, 79147499, and 79148234 - 13 - mark as it is the only literal portion of the mark and the design element reinforces the connotation of the word OMEGA. Although Applicant’s mark terminates in an unusual term, “profil,” Applicant has clarified that the term is translated as “profile,” which is a common English word meaning “a representation of something in outline; especially : a human head or face represented or seen in a side view;”21 it can also mean “degree or level of public exposure” as in “trying to keep a low profile [or] a job with a high profile” or “a set of data often in graphic form portraying the significant features of something” such as “a corporation’s earnings profile.”22 Given these connotations, the mark OMEGA PROFIL suggests a portrayal or representation of an “omega” quality (a fanciful concept) that underscores the prominence of the first word, OMEGA, in Applicant’s mark. Due to this shared element, the marks are similar in sight, sound, meaning and overall commercial impression. We find the first du Pont factor favors a finding of likelihood of confusion with respect to Applicant’s OMEGA PROFIL mark, Serial No. 79147498. 3. OMEGA and design, Serial No. 79148234 Applicant’s design mark features an image that has not been described in the application. It is reminiscent of propellers, fans, turbines, or gears. The Examining Attorney refers to the design as “two fans.”23 Regardless of how 21 At https://www.merriam-webster.com/dictionary/profile, accessed September 6, 2017. 22 Id. 23 13 TTABVUE 7. Serial Nos. 79147498, 79147499, and 79148234 - 14 - it is described, the design is suggestive of those goods in the identification that are designed to rotate or turn, such as “rotary compressors” and “rotary blowers.” Registrant’s marks are OMEGA.COM and . Each of these marks is dominated by the term OMEGA and none of the additional elements in either mark of the cited registrations sufficiently distinguishes it from Applicant’s mark. In the mark OMEGA.COM, the “.com” portion is not source-identifying and imbues the mark with the character of a domain name. Prospective purchasers would be likely to mistakenly believe that Applicant’s OMEGA and design mark identifies goods that come from the OMEGA entity identified by the domain name. Regarding the design features, while they change somewhat the appearance of the marks, this factor is outweighed by the similarity in sound, connotation and commercial impression due to the presence of the shared term OMEGA in each mark. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (Presence of an additional term in a mark “does not necessarily eliminate the likelihood of confusion if some terms are identical.”) (citing China Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d 1123 (Fed. Cir. 2007)). Similarity in any one of these factors may be a sufficient basis upon which to conclude that confusion would be likely, and any difference in the sound and appearance of the marks at issue in this case is more than overcome by their similarity in connotation and commercial impression. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to support a holding that the marks are confusingly similar.’”) (citing Trak, Inc. v. Traq Serial Nos. 79147498, 79147499, and 79148234 - 15 - Inc., 212 USPQ 846, 850 (TTAB 1981)); see also In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). We find the first du Pont factor favors a finding of likelihood of confusion with respect to Applicant’s OMEGA and design mark, Serial No. 79148234. The first du Pont factor favors a finding of likelihood of confusion with respect to Applicant’s design mark. B. The Relatedness of the Goods We turn next to a comparison of the goods. We make our determination regarding the similarity of the goods, channels of trade and classes of purchasers based on the goods as they are identified in the involved application and cited registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys. Inc. v. Hous. Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 17893, 1787 (Fed. Cir. 1990). See also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). Under this du Pont factor, the Examining Attorney need not prove, and we need not find, similarity as to each and every item listed in the description of goods. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any item encompassed by the identification of goods. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d at 1409; Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014). Serial Nos. 79147498, 79147499, and 79148234 - 16 - Applicant’s goods include “vacuum pump machines” and Registrant’s goods include “hand pumps, vacuum pumps and hand-operated vacuum pumps.” Applicant’s “vacuum pump machines” are essentially identical to Registrant’s “vacuum pumps.” And “vacuum pump machines” encompass Registrant’s more narrowly worded “hand-operated vacuum pumps.” Conversely, Registrant’s “hand- pumps” encompass “vacuum pump machines” that are hand-operated. Moreover, the goods of Reg. No. 2412722 include “air blowers,” which encompass Applicant’s more narrowly worded types of blowers (axial flow blowers, centrifugal blowers, rotary blowers, power operated blowers). To this extent, the goods are partially identical and in part legally identical. Applicant argues that its goods are designed for purposes different from those to which Registrant’s goods are put, in that Applicant’s goods “are suitable for applications such as pneumatic conveying, waste water treatment, air knives, vacuum, and soil remediation. In contrast, the products and services of the Registrant are used to measure, control, and/or regulate a variety of components (including temperature, humidity, pressure, etc.).”24 However, there are no such limitations in the identifications of the goods, and an applicant may not restrict the scope of the goods covered in its application or in a cited registration by argument or extrinsic evidence. In re Midwest Gaming & Ent. LLC, 106 USPQ2d 1163, 1165 (TTAB 2013), In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008), In re Bercut- Vandervoort & Co., 229 USPQ2d 763, 764 (TTAB 1986). Any specific differences 24 Appeal Brief, 9 TTABVUE 7. Serial Nos. 79147498, 79147499, and 79148234 - 17 - between the actual nature of the goods (and none have been shown to exist) are irrelevant in our analysis because none of the identifications of goods includes any limitations in trade channels, classes of purchasers, prices, or intended purpose of the goods. On the other hand, the Examining Attorney has submitted evidence of third-party registrations and websites showing that many of the goods of the application and cited registrations are related. For example, Gardner Denver Ltd. advertises “compressors and pumps,” including air compressors, “regenerative, reciprocating, rotary lobe and centrifugal” blowers, and vacuum pumps.25 Gardner Denver’s advertising explains on its website that a blower “is a rotary, positive displacement type of machine used to move gas and air and is used in a variety of methods,”26 thereby equating blowers, such as Applicant’s, which transport gases, with air blowers, such as are listed in Registrant’s registration for the OMEGA.COM mark.27 Republic Manufacturing provides “air movement technology solutions,” including pumps and blowers.28 They also sell motors.29 25 At http://www.gardnerdenver.com/product_types/blowers/, January 25, 2017, Denial of request for reconsideration, 6 TTABVUE 3-8 and 7 TTABVUE 7-21, see also May 20, 2016 Office Action, TSDR 4, 6. 26 7 TTABVUE 7. Emphasis supplied. 27 We do not take the advertising as proof that gas and air blowers are, in fact, used for the same purpose, only that the advertising shows that relevant purchasers may have been exposed to advertising equating the two. Moreover, Webster’s Dictionary defines a “blower” as “a device for producing a current of air or gas.” At https://www.merriam-webster.com, accessed September 13, 2017. 28 At https://republic-mfg.com/, January 25, 2017, Denial of request for reconsideration, 6 TTABVUE 9-14. 29 Id. Serial Nos. 79147498, 79147499, and 79148234 - 18 - Tuthill Vacuum & Blower Systems sells “pumps, motors, blowers and plastics” as well as remanufactured vacuum pumps and blowers.30 It advertises: Tuthill Vacuum & Blower Systems, manufacturer of Kinney® vacuum pumps and M-D Pneumatics™ blowers & vacuum boosters, is a leader in the design and manufacture of high performance, reliable positive displacement blowers, mechanical vacuum pumps, vacuum boosters and engineered systems ready to install and run.31 In addition, the Examining Attorney has submitted copies of third-party registrations for marks registered in connection with goods found in both Applicant’s application and Registrant’s registrations. For example, FILTER MINDER is registered for inter alia, “industrial machinery, namely,…vacuum pumps…vacuum compressors, and vacuum blowers.”32 BLUELINE is registered for, inter alia, “vacuum pumps, and parts and fittings therefor;…pumps and compressors for delivering and recovering gas.”33 BOM-EV is registered for, inter alia, “compressed air machines; compressed air pumps; electric compressors; electric motors, not for land vehicles; fans for motors and engines; power-operated blowers; pumps as parts of machines, motors and engines; pumps for machines; vacuum pumps.”34 Third-party registrations which individually cover a number of different items and which are based on use in commerce serve to suggest that the listed goods and/or services are 30 At http:/ /www.tuthillvacuumblower. com/, January 25, 2017, Denial of request for reconsideration, 5 TTABVUE 2-6, 15. 31 At http:/ /www.tuthillvacuumblower. com/, January 25, 2017, Denial of request for reconsideration, 5 TTABVUE 2-6. 32 Reg. No. 4554184; attached to June 26, 2014 Office Action, TSDR 27. 33 Reg. No. 4532431; attached to June 26, 2014 Office Action, TSDR 58. 34 Reg. No. 4555037; attached to June 26, 2014 Office Action, TSDR 66. Serial Nos. 79147498, 79147499, and 79148234 - 19 - of a type which may emanate from a single source. In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988)); see also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993). We find the goods are in-part identical and otherwise commercially related. The second du Pont factor favors a finding of likelihood of confusion. C. Channels of Trade and Classes of Consumers Because the goods are identical and legally identical in part, and neither Applicant’s application nor the cited registration contain any limitations on the channels of trade or classes of purchasers for any of the overlapping items, we must presume that the channels of trade and classes of purchasers for these goods are the same. See Stone Lion Capital Partners, 110 USPQ2d at 1161; In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). See also Viterra, 101 USPQ2d at 1908 (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). Applicant argues that the goods “are offered to consumers who are entirely different than the consumers who would purchase Applicant’s products”35 and “would not be encountered by the same people in any level of production or marketing.”36 35 9 TTABVUE 7. 36 Id., 10. Serial Nos. 79147498, 79147499, and 79148234 - 20 - However, Applicant provides no corroborating evidence from which we may affirm Applicant’s contentions. On the other hand, the Examining Attorney has submitted evidence showing that companies sell the goods of both Applicant and Registrant under the same mark. The third du Pont factor, the similarity or dissimilarity of established, likely to continue trade channels, and the similarity of classes of consumers, also favors a finding of likelihood of confusion. D. Conditions of Sale Because the goods as listed in Applicant’s application and the cited registrations include specialized machines and their parts, the average purchaser of these goods likely has some expertise in the mechanics of such machines. However, we must base our decision “on the least sophisticated potential purchasers” at issue. Stone Lion Capital Partners, 110 USPQ2d at 1163. Not all the items listed in the identifications of either Applicant’s application or the cited registrations would necessarily be purchased by sophisticated purchasers. For example, Applicant’s “power operated blowers” and Registrant’s “air blowers” are broad enough to include leaf blowers used by household gardeners. To that extent, the purchasers would not be sophisticated or particularly discerning consumers. Further, even sophisticated purchasers can be confused as to source where similar marks are used on closely related goods. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 Serial Nos. 79147498, 79147499, and 79148234 - 21 - F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)) (“Human memories even of discriminating purchasers … are not infallible.”). Accordingly, this du Pont factor is neutral or slightly favors Applicant. Summary We have considered all of the arguments and evidence of record as they pertain to the du Pont likelihood of confusion factors. To the extent that any other du Pont factors for which no evidence was presented by Applicant or the Examining Attorney may nonetheless be applicable, we treat them as neutral. Applicant’s marks OMEGA, OMEGA PROFIL, and are similar in sight, sound, meaning and commercial impression to Registrant’s OMEGA.COM and marks due to the shared term OMEGA in the marks. The goods are partially identical, and the channels of trade and classes of purchasers overlap. The fact that some purchasers may exercise care in their purchases does not change our conclusion. On balance, we find that consumers familiar with Registrant’s goods offered under the marks OMEGA.COM and would be likely to believe, upon encountering Applicant’s goods offered under its marks OMEGA, OMEGA PROFIL, and that the goods originate from the same entity. Decision: The refusals to register application Serial Nos. 79147498, 79147499, and 79148234 under Trademark Act Section 2(d) are affirmed. Copy with citationCopy as parenthetical citation