LTG Lufttechnische GmbH

Trademark Trial and Appeal Board

Dec 18, 1998

No. 74720971 (T.T.A.B. Dec. 18, 1998)

Hearing: Paper No. 16
March 3, 1998 HANAK/md
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re LTG Lufttechnische Gesellschaft mit beschraenkter
Haftung
________
Serial No. 74/720,971
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David Toren of Anderson, Kill & Olick for LTG
Lufttechnische Gesellschaft mit beschraenkter Haftung.
Jeffery D. Frazier, Trademark Examining Attorney, Law
Office 104 (Sidney Moskowitz, Managing Attorney)
_______
Before Cissel, Hanak and Hairston, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
LTG Lufttechnische Gesellschaft mit beschrankter
Haftung (applicant) seeks registration of COOL WAVE and
design in the form shown below for “air-conditioning units,
cooling units for room cooling, namely fans and air
conditioners, fan heaters, wherein the air flow is
generated electrically and the heat with hot water,
ventilation units namely ventilating fans and oscillating
Ser No. 74/720,971
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fans for private, commercial or industrial use; oscillating
fans for producing pulsating air streams, air humidifying
and air dehumidifying units for ventilation units and air
conditioning units; ventilating louvers for ventilation
ducts, air conditioners, cooling units and heating units.”
The intent-to-use application was filed on August 25, 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 applicant’s goods, is
likely to cause confusion with the mark COOL WAVE,
previously registered in typed capital letters for
“combination window and floor fans.” Reg. No. 1,631,499.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs and were present at a hearing held on March 3, 1998.
Ser No. 74/720,971
3
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 certain of
applicant’s goods are legally identical to registrant’s
goods. Applicant’s goods include “fans.” The term “fans”
is broad enough to encompass the specific type of fans set
forth in the registration, namely, “combination window and
floor fans.” Indeed, no where in its brief did applicant
even discuss its goods or registrant’s goods. Applicant
never argued that certain of its goods (fans) were not
legally identical to registrant’s goods.
Turning to a consideration of the marks, we note at
the outset 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). Marks are typically compared in terms of
Ser No. 74/720,971
4
visual appearance, pronunciation and connotation or
meaning.
In terms of pronunciation, the marks are absolutely
identical. Obviously, applicant’s mark would not be
pronounced as “COOL WAVE and design.”
Moreover, in terms of connotation or meaning, again
the marks are absolutely identical. Both indicate that the
products (including fans) will deliver a “cool wave,”
presumably of air.
Finally, we acknowledge that in terms of appearance,
there are some differences between applicant’s mark which
includes a design and registrant’s mark which does not.
However, it must be remembered that the cited registration
depicts COOL WAVE in typed capital letters. This means
that registrant is free to depict its mark COOL WAVE in all
normal matters of presentation, including placing the word
COOL above the word WAVE (as does applicant) and utilizing
lower case block letters for the mark (as does applicant).
Phillips Petroleum v. C. J. Webb, 442 F.2d 1376, 170 USPQ
35, 36 (CCPA 1971); INB National Bank v. Metrohost, 22
USPQ2d 1585, 1588 (TTAB 1992). If registrant so depicted
its mark, as it is free to do, then registrant’s mark and
applicant’s mark would be somewhat similar in appearance.
Ser No. 74/720,971
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In sum, we find that because the marks are absolutely
identical in terms of pronunciation and connotation and are
at least somewhat similar in terms of appearance, that
their use on legally identical goods is likely to result in
confusion.
Decision: The refusal to register is affirmed.
R. F. Cissel
E. W. Hanak
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial and
Appeal Board.
Ser No. 74/720,971
6