Lloyd Design Corp.

Trademark Trial and Appeal Board

Mar 27, 2017

No. 86615713 (T.T.A.B. Mar. 27, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: March 27, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Lloyd Design Corp.
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Serial No. 86615713
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Lloyd Design Corp., pro se.

Erica Jeung Dickey, Trademark Examining Attorney, Law Office 112,
Angela Bishop Wilson, Managing Attorney.
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Before Cataldo, Lykos and Greenbaum,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
Lloyd Design Corp. (“Applicant”) seeks to register on the Principal Register the
mark ULTIMAT in standard characters for “[f]loor mats for vehicles” in International
Class 27.1
The Trademark Examining Attorney refused registration of Applicant’s mark
pursuant to Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the registered mark ULTIMAT in

1 Application Serial No. 86615713, filed April 30, 2015, under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a).
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standard characters on the Principal Register for “[f]loor protection, namely, floor
mats” in International Class 27,2 that, when used on or in connection with Applicant’s
identified goods, it is likely to cause confusion or mistake or to deceive.3
The appeal is now briefed.4 For the reasons set forth below, we affirm the Section
2(d) refusal.
I. Applicable Law
We base our determination under Section 2(d) on 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) (“du Pont”). See
also In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976). These factors and others are discussed below. See M2 Software, Inc. v.

2 Registration No. 3995503, registered July 19, 2011; Sections 8 and 15 accepted and
acknowledged.
3 The Examining Attorney also refused registration under Section 2(d) based on Registration
No. 1863648 owned by Covercraft Industries LLC (“Covercraft”) for the mark ULTIMAT on
the Principal Register for “molded dashboard cover for vehicles” in International Class 12.
Applicant submitted concurrently with its appeal brief a consent agreement between
Applicant and Covercraft. The Examining Attorney noted in her appeal brief that the
agreement was persuasive and has withdrawn the refusal to register based on Registration
No. 1863648. See du Pont, 177 USPQ at 568 (“when those most familiar with use in the
marketplace and most interested in precluding confusion enter agreements designed to avoid
it, the scales of evidence are clearly tilted.”).
4 A notice of abandonment was issued for Applicant’s failure to respond to the final refusal;
however, the application was eventually revived upon Petition to the Director.
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M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (even within du
Pont list, only factors that are “relevant and of record” need be considered).
A. The Marks

Commencing with the first du Pont factor, it is undisputed that Applicant’s and
Registrant’s marks are identical in sight and sound. See Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (the first du Pont likelihood of confusion factor involves an
analysis of the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression). And given the nature
of the involved goods, both marks engender the same connotation and commercial
impression of a pun on the word “ultimate” indicating a superlative floor mat.
Compare In re Sydel Lingerie Co., Inc., 197 USPQ 629 (TTAB 1977) (no likelihood of
confusion found between BOTTOMS UP for ladies’ and children’s underwear and
BOTTOMS UP for men’s suits, coats and trousers). Thus, because the marks are
identical in appearance, sound, connotation and commercial impression, the first du
Pont factor weighs heavily in favor of finding a likelihood of confusion. See, e.g., In re
i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015).
B. The Goods and Trade Channels
Next we discuss the second and third du Pont factors – a comparison of the goods
and established, likely-to-continue channels of trade, bearing in mind that
Applicant’s and Registrant’s respective goods must be compared as they are identified
in the application and the cited registration. See Stone Lion Capital Partners, LP v.
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Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990).
Registrant’s broadly worded identification of “[f]loor protection, namely, floor
mats” encompasses Applicant’s more narrowly identified “floor mats for vehicles.” As
such, Applicant’s goods are legally identical with regard to the cited registration. See,
e.g., 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.’”). The fact
that Applicant limited its identification of goods to floor mats used in vehicles does
not distinguish the goods since Registrant’s floor mats could in theory also include
floor mats for vehicles.
Because the goods are legally identical and unrestricted as to trade channels, we
must also presume that Applicant’s and Registrant’s identical products travel in the
same ordinary trade and distribution channels and will be marketed to the same
potential consumers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (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); In re Yawata Iron & Steel Co., 403 F.2d 752, 159
USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of
trade and classes of purchasers are considered to be the same); American Lebanese
Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d
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1022, 1028 (TTAB 2011). Accordingly, the second and third du Pont factors also both
weigh in favor of finding a likelihood of confusion.
II. Conclusion
After considering all of the evidence of record and arguments pertaining to the
du Pont likelihood of confusion factors, the first, second and third du Pont factors
discussed above favor a finding of likelihood of confusion. We treat as neutral any
du Pont factors for which there is no evidence of record.5 We therefore find that there
is a likelihood of confusion between Applicant’s and Registrant’s identical marks
ULTIMAT for the legally identical goods identified therein.
Decision: The Section 2(d) refusal is affirmed.

5 Applicant urges the Board to consider the absence of actual confusion. The lack of evidence
of actual confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960,
144 USPQ 435, 438 (CCPA 1965). The issue before us is the likelihood of confusion, not actual
confusion. Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (actual confusion not required).