Kolp in Mfg. Inc.

Trademark Trial and Appeal Board

Jan 17, 2002

No. 75827982 (T.T.A.B. Jan. 17, 2002)

1/17/02

Paper No. 13
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Kolpin Manufacturing Inc.
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Serial No. 75/827,982
_______

Gerald E. Helget of Rider Bennett Egan & Arundel for Kolpin
Manufacturing Inc.

Tarah K. Hardy, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Seeherman, Rogers and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

Kolpin Manufacturing Inc. (applicant) has filed an
application to register the mark HOT SEAT (in typed form)
for goods ultimately identified as “insulated cushions for
fishing, hunting and outdoor use to insulate the buttocks
from and conform to irregular surfaces” in International
Class 20.1

1 Serial No. 75/827,982 filed on October 20, 1999. The
application claims a date of first use and first use in commerce
of December 30, 1998.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/827,982
2
The Examining Attorney has refused to register
applicant’s mark under Section 2(d) of the Trademark Act,
15 U.S.C. § 1052(d), because of the registration of the
mark HOT SEATS (in typed form) for “furniture, namely,
fireside benches” in International Class 20.2
After the Examining Attorney made the refusal final,
this appeal followed. Both applicant and the Examining
Attorney filed briefs. An oral hearing was not requested.
We reverse.
The Examining Attorney points out that applicant’s
mark is merely the singular form of the registered mark.
In addition, while acknowledging that the goods are not
identical, the Examining Attorney argues that cushions and
benches are sold under the same marks and are highly
related. In addition, she has submitted evidence that
trademarks for benches and cushions were registered under
the same mark. Also, the Examining Attorney maintains that
the evidence “proves that benches and seat cushions are
related enough to prove a likelihood of confusion.”
Examining Attorney’s Final Refusal at 3.
Applicant, on the other hand, submits that the goods
must be considered based on the goods set forth in the
application and registration. Applicant argues that its

2 Registration No. 2,196,905 issued October 20, 1998.
Ser No. 75/827,982
3
goods would be sold in hunting and fishing specialty stores
while registrant’s goods would be sold in furniture stores.
In addition, applicant points out that its goods are
designed to be used on irregular surfaces while “[b]y
definition, a fireside bench is furniture that presents a
regular, flat surface to any cushions that might be used.”
Applicant’s Br. at 5 (emphasis in original).3
In a case involving a refusal under Section 2(d), 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, 1361, 177 USPQ 563, 567 (CCPA 1973). In considering
the evidence of record on these factors, we must keep in
mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
The first question we address is whether applicant’s
and registrant’s marks, when compared in their entireties,
are similar in sound, appearance, or meaning such that they
create similar overall commercial impressions. In this

3 Applicant also twice argues that “[a]s shown by the attached
printout from the TESS search system, the mark HOT SEAT has been
registered for use on a number of goods.” Applicant’s Br. at 5;
Response dated July 31, 2000 at 4. No printout is in the
application file.
Ser No. 75/827,982
4
case, the marks are virtually identical because applicant’s
mark is merely the singular of the registered mark HOT
SEATS.
Therefore, we now look at the other relevant du Pont
factors concerning the nature of applicant’s and
registrant’s goods, their channels of trade, and
prospective purchasers. The Examining Attorney has argued
that “benches and seat cushions are related enough to prove
a likelihood of confusion.” If applicant’s goods were
identified only as “seat cushions” and if registrant’s
goods were identified only as “benches,” we agree that this
would likely be a different case. However, applicant
correctly points out that we are bound to determine the
question of likelihood of confusion based on the
identification of the goods in the application and the
registration. In re Dixie Restaurants, 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Canadian Imperial Bank
of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1493, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987); Paula Payne Products v.
Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973).
The limited identifications of goods are important in
this case. Both applicant and registrant limit their goods
significantly. Registrant’s identification of goods is
Ser No. 75/827,982
5
limited to “furniture, namely, fireside benches.”
Applicant’s identification of goods is very narrow, i.e.
“insulated cushions for fishing, hunting and outdoor use to
insulate the buttocks from and conform to irregular
surfaces.” Applicant’s identification of goods shows that
its cushions are insulated; for hunting, fishing, and
outdoor use; and designed to conform to irregular surfaces.
In other words, they are not designed to be used with
furniture. They are designed to be used outdoors when
furniture is not available. Hunters, fisherman, and others
interested in outdoor activity would be potential
purchasers and the cushions would be sold in hunting and
fishing stores and sporting goods sections of other stores.
Registrant’s fireside benches are clearly furniture and
they would be marketed to those interested in purchasing
furniture in furniture stores and furniture sections of
stores. Therefore, applicant’s and registrant’s goods
would not be sold in the same channels of trade, the
prospective customers would be different, and it is highly
unlikely that they would be used together.
We also note that “hot seat” is a unitary term that
means “the electric chair (slang)” and “a situation of
Ser No. 75/827,982
6
stress, embarrassment, or uneasiness.”4 In addition, this
unitary term would have additional very suggestive
connotations when applied to both applicant’s and
registrant’s goods. Registrant’s fireside benches would be
“hot seats” when they are close to a roaring fire, and
applicant’s insulated seat cushions for hunting, fishing,
and outdoor use would also be a “hot seat” on a cold day in
the field. The suggestiveness of the marks makes it less
likely that potential purchasers familiar with registrant’s
fireside benches who subsequently encountered applicant’s
insulated cushions for hunting, fishing, and outdoor use
would assume that there is any relationship or association
with registrant.
Therefore, because of the suggestiveness of the marks
and the significant differences in the goods, their
channels of trade, and their prospective purchasers, we
conclude that there is no likelihood of confusion.
Decision: The refusal to register is reversed.

4 Webster’s II New Riverside University Dictionary (1984). We
take judicial notice of this dictionary definition. 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).