Kispiox Forest Products Ltd.

Trademark Trial and Appeal Board

Aug 30, 1999

No. 75164644 (T.T.A.B. Aug. 30, 1999)

Paper No. 12
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 30, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Kispiox Forest Products Ltd.
________
Serial No. 75/164,644
_______
William H. Pavitt, Jr. of Beehler & Pavitt for Kispiox
Forest Products Ltd.
Thomas W. Wellington, Trademark Examining Attorney, Law
Office 112 (Janice O’Lear, Managing Attorney).
_______
Before Cissel, Hohein and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Kispiox Forest
Products Ltd., a Canadian corporation, to register the mark
shown below for “lumber, namely finished boards for use in
construction.”1
Ser No. 75/164,644
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when applied to the
identified goods, so resembles the mark KFP, which is
registered for “timber logs,”2 as to be likely to cause
confusion.
Applicant has appealed. Briefs have been filed, but
no oral hearing was requested.
Turning first to the marks, it is essentially the
Examining Attorney’s position that the marks create the
same commercial impression. The Examining Attorney points
out that the literal portions of the marks are identical.
In his analysis, the literal portion is the dominant

1 Application Serial No. 75/164,644, filed September 12, 1996,
claiming first use and first use in commerce of May 1996.
Ser No. 75/164,644
3
element in applicant’s mark because this is the portion
which would be impressed on the purchaser’s memory and be
used in calling for the goods.
Applicant, however, contends that in a side-by-side
comparison, the marks are very different because of the
“three pyramid” design in its mark.
We agree with the Examining Attorney that the marks
create substantially similar commercial impressions. As
noted by the Examining Attorney, the dominant feature of
applicant’s mark is the literal portion, “KFP,” which is
the portion that purchasers will remember and use in
calling for the goods. In re Appetito Provisions Co.,
Inc., 3 USPQ2d 1553, 1554 (TTAB 1987). The literal
component of applicant’s mark is identical to the
registered mark. Also, it is well established that the
test to be applied in determining likelihood of confusion
is not whether the marks are distinguishable upon
side-by-side comparison, but rather whether they so
resemble one another as to be likely to cause confusion.
This requires us to consider both the fallibility of memory
over a period of time and the fact that the average
purchaser retains a general, rather than a specific

2 Registration No. 1,616,756 issued October 9, 1990; Sections
8 & 15 affidavit filed.
Ser No. 75/164,644
4
impression of marks. See Sealed Air Corporation v. Scott
Paper Company, 190 USPQ 106 (TTAB 1975).
Turning then to the goods, it is the Examining
Attorney’s position that lumber and timber logs are closely
related goods which travel in the same channels of trade.
In support of his position, the Examining Attorney made of
record thirteen third-party registrations wherein a single
mark has been registered by the same entity for both types
of goods.3 According to the Examining Attorney, “[t]his is
evidence that consumers are accustomed to viewing the same
mark used in connection with timber goods, e.g., logs and
lumber, e.g., boards.” (Brief, p. 5).
Applicant, however, maintains that the involved goods
travel in different channels of trade to different
purchasers. In this regard, applicant submitted the
declaration of its president, Barry L. Tyrer. Mr. Tyrer
states that he has been involved with the forest products
industry, and in particular, the production and marketing
of lumber products, since about 1966; that lumber is a
finished product sold at wholesale to construction
companies or retail lumberyards; that purchasers of lumber

3 We note that five of these registrations issued under Section
44(e) of the Trademark Act and, thus, are entitled to little
probative weight with respect to the asserted relatedness of the
involved goods.
Ser No. 75/164,644
5
are usually parties engaged in construction or retailing of
lumber; that, in contrast, purchasers of timber logs are
ordinarily sawmill operators, paper pulp manufacturers, or
vendors to sawmills or other operators who utilize
unfinished logs. Further, Mr. Tyrer states that purchasers
of lumber will typically encounter the product at building
sites or at retail lumberyards, whereas logs are typically
sold in booms or rafts in the water in preparation for
towing to the sawmill, or at a commercial dryland facility
where they are stacked.
At the outset, we note that while lumber is made from
logs, the goods are nonetheless different. Also, while the
third-party registrations made of record by the Examining
Attorney are probative of the fact that the involved goods
may emanate from the same sources, they do not establish
that such goods travel in the same channels of trade and
are bought by the same purchasers. This is not a case
where all of the involved goods are bought by ordinary
purchasers. Rather, it is clear from the declaration of
applicant’s president, Mr. Tyrer, that timber logs, in
particular, are bought by a specialized class of purchasers
which is substantially different from the purchasers of
Ser No. 75/164,644
6
lumber.4 Further, as indicated in the declaration, the
channels of trade for lumber and timber logs are entirely
different. The Examining Attorney has offered no evidence
to the contrary regarding the purchasers of the involved
goods and the channels of trade in which they move.
In sum, since lumber and timber logs are different,
and since these goods travel in distinct channels of trade
to substantially different purchasers, notwithstanding any
similarities in the marks, confusion is not likely. See,
for example, Electronic Design & Sales Inc. v. Electronic
Data Systems Corp., 21 USPQ2d 1388 (TTAB 1992) [Applicant’s
use of E.D.S. for battery chargers and power supplies which
are incorporated into medical instruments and devices is
not likely to cause confusion with opposer’s mark EDS for
computer services sold to customers in the medical field
since goods/services are different and purchasers are
substantially different and usually sophisticated].

4 We recognize the some of the persons who purchase timber logs
for sawmills and paper pulp manufacturers may well buy lumber at
lumberyards or hardware stores for use in home remodeling or
other projects. We believe that the number of persons who fall
Ser No. 75/164,644
7
Decision: The refusal to register is reversed.
R. F. Cissel
G. D. Hohein
P. T. Hairston
Administrative Trademark Judges
Trademark Trial and Appeal Board

into this category is extremely small, and they are sophisticated
with respect to the marketing of these goods.
Ser No. 75/164,644
8