Leslie Weinstein

Trademark Trial and Appeal Board

Jun 8, 1998

No. 74622150 (T.T.A.B. Jun. 8, 1998)

Paper No. 16
HANAK/MD
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Leslie Weinstein
________
Serial No. 74/622,150
_______
James M. Slominski of Hornberger & Criswell for Leslie
Weinstein.
Thomas Wellington, Trademark Examining Attorney, Law Office
104 (Sidney L. Moskowitz, Managing Attorney)
_______
Before Hanak, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Leslie Weinstein (applicant) seeks registration of TRUE
LOCK in typed capital letters for “locking metal fasteners.”
The application was filed on January 17, 1995 with a claimed
first use date of January 10, 1995.
The Examining Attorney refused registration pursuant to
Section 2(d) of the Lanham Trademark Act on the basis that
applicant’s mark, as applied to locking metal fasteners, is
likely to cause confusion with the mark TRU-LOK, previously
Ser No. 74/622,150
2
registered in typed capital letters for “metal screws.”
Registration No. 1,485,024.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request a hearing.
In any likelihood of confusion analysis, two key
considerations are the similarities of the goods and the
similarities of the marks. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976)(“The fundamental inquiry mandated by Section 2(d) goes
to the cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks.”). Considering first the goods, we note that by
definition, a “screw” is a type of “fastener.” The term
“screw” is defined as follows: “A cylindrical fastener that
is usually pointed, that has a head with a slot or recess,
that is helically or spirally threaded, and that is designed
for insertion into material by rotating (as with a
screwdriver).” Webster’s Third New International Dictionary
Unabridged (1976). Moreover, the Examining Attorney has
made of record excerpts of articles from the NEXIS database
wherein the terms “screws” and “fasteners” are used
interchangeably. Thus, applicant’s chosen description of
goods (locking metal fasteners) is broad enough to include
the goods of the registration (metal screws).
Ser No. 74/622,150
3
We note that applicant has never argued that his goods
as described in his application and the registrant’s goods
as described in the registration are not extremely similar
(if not identical). Rather, applicant argues that his
actual goods are different from registrant’s actual goods.
At page 2 of his rely brief, applicant makes the following
comments: “The file history for the TRU-LOK mark makes it
clear that the registrant uses that mark in the drywall
industry…In contrast, the applicant uses his mark in the
high technology aerospace and military industries wherein
specialty fasteners are required.” Even if we assume for
the sake of argument that applicant’s statement regarding
registrant’s actual goods is correct, what applicant fails
to appreciate is that in a proceeding such as this, “the
question of likelihood of confusion must be determined based
on an analysis of the mark as applied to the goods and/or
services recited in applicant’s application vis-a-vis the
goods and/or services recited in [the cited] registration,
rather than what the evidence shows the goods and/or
services to be.” Canadian Imperial Bank v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987).
In this case, the goods as recited in the cited registration
are included within the broader description of goods set
forth in the application. Thus, the goods are legally
identical.
Ser No. 74/622,150
4
Turning to a consideration of the marks, it must be
kept in mind that “when marks would appear on virtually
identical goods or services, the degree of similarity [of
the marks] necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). In this case, the marks are identical in
terms of pronunciation and connotation. Both marks connote
that the metal fasteners (including metal screws) will
securely hold parts in place. Moreover, in terms of visual
appearance, the marks are similar.
Under such circumstances, we find that the use of TRUE
LOCK and TRU-LOK on legally identical goods is likely to
result in confusion.
Decision: The refusal to register is affirmed.
E. W. Hanak
P. T. Hairston
C. E. Walters
Administrative Trademark
Judges, Trademark Trial
and Appeal Board