Natco Products CorporationDownload PDFTrademark Trial and Appeal BoardJan 31, 2013No. 85435007 (T.T.A.B. Jan. 31, 2013) Copy Citation THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: January 31, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Natco Products Corporation _____ Serial No. 85435007 _____ Mark E. Tetreault of Barlow Josephs & Holmes, Ltd., for Natco Products Corporation Karen K. Bush, Trademark Examining Attorney, Law Office 108, Andrew Lawrence, Managing Attorney). _____ Before Bucher, Grendel and Masiello, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: Natco Products Corporation (“applicant”) seeks registration on the Principal Register of the mark THERMALIGHT (in standard character format) for “curtain fabric; curtains,” in International Class 24.1 The examining attorney has refused registration of applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having determined that reg- istration would lead to a likelihood of confusion in view of the goods recited in Reg. 1 Application Serial No. 85435007 was filed on September 29, 2011, based on applicant’s allegation of a bona fide intention to use the mark in commerce. Serial No. 85435007 2 No. 2088572 for the mark THERMALITE (in standard character format) for “interi- or window shutters,” in International Class 20.2 After the examining attorney made the refusal final, applicant appealed to this Board. We affirm the refusal to register. As a preliminary matter, we note that applicant attached for the first time in this prosecution a copy of registrant’s website with applicant’s appeal brief. Inas- much as the record in an application must be complete prior to the filing of an ap- peal, and the examining attorney has timely objected, we have not considered this untimely evidence. 37 C.F.R. Section 2.142(d); TBMP §§ 1203.02(e), 1207.01; In re Quantum Foods Inc., 94 USPQ2d 1375, 1377 n.2 (TTAB 2010); and In re Fitch IBCA Inc., 64 USPQ2d 1058, 1059 n.2 (TTAB 2002).3 Our determination under Trademark Act § 2(d) is based upon an analysis of the probative facts in evidence that are relevant to the factors bearing on a likeli- hood of confusion. See In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Ma- jestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental in- quiry mandated by Section 2(d) goes to the cumulative effect of differences in the 2 Registration No. 2088572 issued on August 19, 1997; renewed. 3 We hasten to add that even if we had considered this untimely evidence, it would not have changed the result herein. Serial No. 85435007 3 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); see also In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). A. Comparison of the Marks Applicant has applied to register the mark THERMALIGHT. The regis- tered mark is THERMALITE. These respective marks are substantially identical as to sight; they are phonetically identical; they have the same connotation; and they create the same commercial impression. As noted by the examining attorney, applicant apparently concedes this issue inasmuch as applicant’s brief fails to ad- dress the factor focusing on the similarity of the marks. Hence, this critical du Pont factor weighs in favor of a finding of a likelihood of confusion. B. Relationship of the Goods We next turn our attention to the relationship of the goods as identified in the registration and application. Octocom Systems, Inc. v. Houston Computers Ser- vices Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also Hewlett- Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). It is settled that it is not necessary that the respective goods be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis. That is, the issue is not whether consumers would confuse the goods themselves, but rather whether they would be confused as to the source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The goods need only be suf- ficiently related that consumers would be likely to assume, upon encountering the Serial No. 85435007 4 goods under similar marks, that the goods originate from, are sponsored or author- ized by, or are otherwise connected to the same source. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); and In re Mel- ville Corp., 18 USPQ2d 1386 (TTAB 1991). The goods identified in the application are “curtain fabric; curtains.” The goods identified in the cited registration are “interior window shutters.” As argued by the examining attorney, copies of use-based, third-party regis- trations may serve to suggest that the goods are of a type which may emanate from a single source under the same trademark. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Hence, the examining attorney introduced into the record the following representative registra- tions demonstrating the close relationship between these two types of window treatments, namely curtains and interior window shutters: A BACKDROP FOR LIVING for, inter alia, “ … drapery hardware, namely, traverse rods, poles, curtain hooks, curtain rods and finials; window blinds and window shades, and interior window shutters” in International Class 20; “ … window treatments, namely, draperies, curtains, fabric valances, and fabric tie-backs” in International Class 24;4 3 DAY BLINDS for, inter alia, “non-metal window shutters made of wood or polymer; non-metal, non-fabric valances” in Int. Class 19; “fabric window coverings and treatments, namely, sheers and valances” in International Class 24;5 4 Registration No. 3848125 issued on September 14, 2010. 5 Registration No. 3846927 issued on September 14, 2010. Issued under the provisions of § 2(f) of the Trademark Act. No claim is made to the exclusive right to use the word “Blinds” apart from the mark as shown. Serial No. 85435007 5 for, inter alia, “non-metal window shutters made of wood or polymer; non-metal, non-fabric valances” in Int. Class 19; “fabric window coverings and treatments, namely, sheers and valances” in International Class 24;6 BLINDS SOLUTIONS for, inter alia, “window coverings, namely, window shades, pleated shades, … custom window blinds; window screens; interior window shutters; curtain rods, drapery rods, and replacement parts thereof; metal curtain rings” in Interna- tional Class 20;7 for, inter alia, “ … interior non-metal window shutters … in International Class 19; “ … fabric window blinds …” in International Class 20;8 KATHY IRELAND DESIGN IT YOURSELF for, inter alia, “ … window blinds; window shades; interior window shutters” in International Class 20; “fabrics for the manufacture of furnishings; tapestries of textile; textile wall coverings; bed linens; table linens; fab- ric window coverings and treatments, namely, curtains, draperies, sheers, swags and valances” in Int. Class 24;9 HomePerfection for, inter alia, “ … indoor window blinds ; interior window shutters … window blinds ; window shades …” in Interna- tional Class 20; “ … curtain fabric; curtain loops of textile material; cur- tains; curtains made of textile fabrics; draperies ; eider- downs ; fabric window coverings and treatments, namely curtains, draperies, sheers, swags and valances; fabric window coverings and treatments, namely, curtains, dra- peries, sheers, swags, valances …” in International Class 24;10 6 Registration No. 3842057 issued on August 31, 2010. The mark consists of two concentric circles, the center circle being filled-in except for three characters, which consist of part of the number “3,” and a lowercase letter “d” and letter “b.” 7 Registration No. 3920194 issued on February 15, 2011. No claim is made to the exclusive right to use the word “Blinds” apart from the mark as shown. 8 Registration No. 3882179 issued on November 30, 2010. No claim is made to the exclusive right to use the words “Windows & Doors” apart from the mark as shown. 9 Registration No. 3592950 issued on March 17, 2009. No claim is made to the exclusive right to use the phrase “Design It Yourself” apart from the mark as shown. 10 Registration No. 3241598 issued on May 15, 2007. Serial No. 85435007 6 TOTAL WINDOW for, inter alia, “window blinds, window shades, interior win- dow shutters and screens” in International Class 20; and “fabric window coverings and treatments, namely, draper- ies, curtains and valances” in International Class 24;11 Similarly, the examining attorney provided various websites showing that customers are able routinely to purchase curtains from the same retailers that offer under the same marks interior shutters, shades and other window coverings: [Discusses “Window Treatments” in the broad categories of blinds, draperies and shutters]12 - o O o - Blinds by Smith+Noble -- as well as Curtains, Shades, and other Window Treatments -- have been crafted to practically and beautifully satis- fy your needs. Natural Wood (or bamboo) Blinds as well as Wood Shutters help reduce noise, improve insulation and increase your home's value. Our wide variety of shades -- from lovely Honeycomb Shades, designer Roman Shades and beautiful Bamboo Shades -- help both beautify your home as well as make it more energy efficient. Other types of living room and kitchen window improvements, such as our roller shades and fashionable roman shades, add beauty at a low cost. Our custom-made Window Coverings and Drapery Hardware also give you light and privacy control, and our Blinds, Shades and Curtains are all available in the latest high-tech fabric, bamboo, natural woven woods or grasses. Along with exceptional quality and beauty, all Smith+Noble Window Treatments, whether they're faux wood blinds or panels, come with something extraordinarily rare in custom products: a Satisfaction Guarantee. If you spot a problem within 30 days of receiving your or- der, whether they involve curtains or mini blinds, please notify Customer Service immediately. Whether you need a new set of Roman Shades for your dining room or some privacy-controlling Wood Blinds, Smith+Noble will help you get the perfect Window Treatments to satis- fy your home-improvement needs. Please take a moment to browse through our extensive selection of Interior Shutters to help beautify your home and keep light out, or Kitch- en Curtains to help enhance the look of your kitchen and soften the lighting inside. Our wide variety of Interior Shutters are far superior to other brands of Plantation Shutters on the market today, and you won't find a better selection of Window Treatments anywhere else for the prices we offer. We're sure that our selection of Mini Blinds, Shades, Curtains, Drapery and other Window Treatments will enhance the look of your home. 13 - o O o - 11 Registration No. 3561184 issued on January 13, 2009. No claim is made to the exclusive right to use the word “Window” apart from the mark as shown. 12 http://1800draperiesandblinds.com/ 13 http://www.smithandnoble.com/ Serial No. 85435007 7 14 - o O o - 15 14 http://www.bestdressedwindowsintown.com/ 15 http://www.budgetblinds.com/ Serial No. 85435007 8 - o O o - 16 - o O o - Innovative Window Treatments: Blinds |·Shades·| Drapery·| Curtains·| Plantation Shutters 17 - o O o - The photos included in these web pages show curtains being marketed alongside shutters. In some cases there are drapery materials or curtains on windows also having shutters. In other settings, it is clear that shutters may be an alternative to fabric curtains or other types of shades or blinds. Applicant should be clear that the question before us is not whether regis- trant actually sells curtains. The issue is whether a consumer who is acquainted with THERMALITE brand interior window shutters, upon encountering appli- cant’s THERMALIGHT brand curtains, would mistakenly believe that both of these respective window treatment products share a single source. Despite applicant’s claims to the contrary, we find from the evidence of record that the respective goods are closely-related window treatments that often move through overlapping channels of trade to the same ordinary consumers shopping in 16 http://www.blindsgalore.com/ 17 http://www.innovativewindowfashions.com/ Serial No. 85435007 9 the same retail locations, whether they be brick-and-mortar stores, home design centers, or online merchants. Not surprisingly, the record shows that these goods have either complementary or competitive uses in different settings. They may be purchased alone, at the same time for different rooms, or in combination for the same room. Under such circumstances, goods have generally been found to be suffi- ciently related such that confusion would be likely if they are marketed under the same or similar marks. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567, 223 USPQ 1289, 1290 (Fed. Cir. 1984); Gen. Mills Inc. v. Fage Dairy Processing Indus., 100 USPQ2d 1584, 1597-98 (TTAB 2012). If prospective purchas- ers were to encounter curtains in the same stores in which interior window shutters are being offered under highly similar trademarks, they would be likely to mistak- enly believe such goods to be part of a line of window treatment products offered by a single entity. Although applicant argues that the “goods and services of the Applicant and Registrant are of the type which are purchased by sophisticated consumers,” we are not convinced that is always necessarily the case, or that even sophisticated con- sumers will readily recognize the miniscule differences between THERMALIGHT and THERMALITE. Accordingly, these related du Pont factors all weigh in favor of a finding of likelihood of confusion. Serial No. 85435007 10 C. Balancing the factors In view of the facts that the respective marks look alike, sound alike, have the same connotation and engender similar overall commercial impressions; that the respective goods are closely-related types of window treatments – they may well be competitive at times and complementary at others; and that they move through overlapping trade channels to the same classes of ordinary consumers; we have no doubt but that applicant’s registration of the mark THERMALIGHT for “curtain fabric; curtains” is likely to cause confusion. Decision: The refusal under Trademark Act § 2(d) to register applicant’s mark THERMALIGHT is hereby affirmed. Copy with citationCopy as parenthetical citation