Lockwin & Associates, Inc.

Trademark Trial and Appeal Board

Aug 30, 2016

No. 86423474 (T.T.A.B. Aug. 30, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: August 30, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Lockwin & Associates, Inc.
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Serial No. 86423474
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Steven H. Washam of Washam PLLC,
for Lockwin & Associates, Inc.

Alison F. Pollack, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Wellington, Ritchie, and Goodman,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Lockwin & Associates, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark HG and design,1 as shown below, for “flatware, non-electric can
openers; non-electric fruit peelers; non-electric vegetable peelers,” in International
Class 8:

1 Application Serial No. 86423474 was filed on October 14, 2014, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark.

Serial No. 86423474
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The mark contains a description which states: The mark consists of the letters H and
G, the crossbar of the letter H joining the cross stroke of the letter G in a stylized
fashion, all enclosed within an oval shape.
The Trademark Examining Attorney refused registration of Applicant’s mark
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 previously
registered mark, HG COLLECTION,2 in standard character format, for the goods
named below as to be likely to cause confusion, mistake, or to deceive:
International Class 8: Hand-operated garden tools, namely, trowels, shovels,
rakes, clippers, shears, cultivators, weeders, and transplanters; household
knives; flatware; spoons.

International Class 21: Bathroom accessories, namely, soap dishes, tumblers,
toothbrush holders, liquid soap dispensers sold empty, lotion pump dispensers,
and waste paper baskets; vases; candle holders; decorative ornaments and
figurines made of ceramic, china, crystal, porcelain, and glass, not for use on
Christmas trees; bar mops; dinnerware, drinkware and serveware, namely,
water glasses, drinking glasses, champagne flutes, martini glasses, wine
goblets, cocktail glasses, tumblers, drinking cups, serving trays, serving spoons

2 Registration No. 3857633 issued October 5, 2010. The cited registration contains other goods
in other classes, not relevant to this refusal.
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and forks, platters, and soup tureens; canisters and canister sets; cookware,
namely, pots and pans; household utensils, namely, barbecue forks and tongs,
spatulas, forks and spoons for food preparation, mixing spoons, garlic presses,
cheese spreaders, vegetable brushes, strainers, and turners, wood chopping
blocks and wood chopping boards for kitchen use, ice buckets, kitchen ladles,
meal trays, mugs, napkin holders, napkin rings not of precious metal, non-
electric griddles, non-electric pressure cookers, non-metal piggybanks, oil-
feeding cans, pepper grinders, pie servers, pitchers, plates, portable beverage
coolers, portable beverage dispensers, preserve glasses, rolling pins, salad
bowls, salt and pepper grinders and mills, salt and pepper shakers, salt cellars
in the nature of shakers, saucepans, saucers, scoops, shaving brush stands,
slotted spoons, soap boxes, soap containers, soap containers and holders, soap
dishes, soap dispensers, soap holders, spice racks, sponge holders, mixing
spoons, steamer baskets, tea balls not of precious metal, tea kettles, teapots
not of precious metal, thermal insulated containers for food or beverages, trash
cans, trivets, vases, wastepaper baskets, watering cans, wine bottle cradles,
wine buckets; cutting boards.

When the refusal was made final, Applicant filed a request for reconsideration
and an appeal. When the request for reconsideration was denied, the appeal was
resumed. For the reasons discussed below, we affirm the refusal to register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
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We consider the du Pont factors for which arguments or evidence were presented. The
other factors, we consider to be neutral.
Goods/Channels of Trade
We consider first the relatedness of the goods. Both the application and the cited
registration identify “flatware.” The goods are therefore identical-in-part and legally
identical. The Examining Attorney also submitted copies of use-based third-party
registrations that include goods of the type named in the application on the one hand,
and goods of the type named in the cited registration on the other hand. These include
KITCHENDAO, Registration No. 4606434 (including flatware as identified by both;
and knives, vases, spatulas, and rolling pins as identified by Registrant); NEW STAR
FOODSERVICE, Registration No. 4662083, (including flatware as identified by both;
non-electric can openers as identified by Applicant; and cutting boards, pitchers, and
salt and pepper shakers as identified by Registrant); and the design mark shown
below, Registration No. 4676049 (including fruit and vegetable peelers, as identified
by Applicant; and cutting boards, and garlic press as identified by Registrant):

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Copies of use-based, third-party registrations may serve to suggest that the goods
are of a type which may emanate from a single source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993). Applicant noted in its brief,
“Applicant does not dispute the relatedness of Applicant’s goods to Registrant’s
goods.” 10 TTABVUE 17.
Because the goods described in the application and in the cited registration are in
part identical, we must presume that the channels of trade and classes of purchasers
are the same for those goods, i.e., flatware. 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). With respect to the non-
identical but closely related goods, the Examining Attorney submitted web evidence
showing the goods being sold together on such websites as Cuisinart.com; Oxo.com;
Calphalon.com; and Hsn.com. We therefore find that these du Pont factors involving
the relatedness of the goods and their trade channels weigh heavily in favor of finding
a likelihood of consumer confusion.
The Similarity/Dissimilarity of the Marks
We consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). In comparing the marks, we are mindful that the test is not whether the marks
can be distinguished when subjected to a side-by-side comparison, but rather whether
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the marks are sufficiently similar in terms of their overall commercial impression so
that confusion as to the source of the goods offered under the respective marks is
likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc.,
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., No. 92-1086 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Winnebago Industries, Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975). Indeed, when, as here, the goods at issue are
identical in part, the degree of similarity between the marks which is required to
support a finding of likelihood of confusion is less than if the goods were not identical.
In re Viterra Inc., 101 USPQ2d at 1912.
The mark in the cited registration is HG COLLECTION, where the term
“COLLECTION” is disclaimed and descriptive of a “collection” of home goods.3 See In
re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“That a
particular feature is descriptive or generic with respect to the involved goods or
services is one commonly accepted rationale for giving less weight to a portion of a
mark.”). Applicant’s mark is HG with a design including, as Applicant describes it, a
“stylized” display. While we recognize that Applicant’s mark includes a design
element, we note, nonetheless that in the cases of marks consisting of words and a

3 Applicant’s arguments as to the “fame” of the mark in the cited registration are unavailing.
There is no issue that the mark is inherently distinctive, nor has any evidence been
introduced to show commercial weakness.
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design, the words are normally given greater weight because they would be used by
consumers to request products. In re Viterra Inc., 101 USPQ2d at 1911, citing CBS
Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983).
With this in mind, we find that, on their face, the marks as a whole are similar in
sight and sound, and may be similar in commercial impression to the extent they are
perceived as initials or acronyms.
We find that this du Pont factor, too, weighs in favor of finding a likelihood of
confusion.
II. Conclusion on Likelihood of Confusion
On balance, after considering all of the arguments and evidence of record as they
pertain to the relevant du Pont factors, we find that the goods are in part legally
identical and would travel through some of the same channels of trade to some of the
same consumers, and that the marks, when viewed in their entireties, are also similar
in sight, sound, connotation and commercial impression. Accordingly, we find a
likelihood of confusion between the mark HG and design for which Applicant seeks
registration, and the mark in the cited registration, HG COLLECTION.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.