Nature’s Rest, Inc.

Trademark Trial and Appeal Board

Aug 10, 2006

No. 76572106 (T.T.A.B. Aug. 10, 2006)

Mailed:
10 August 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Nature’s Rest, Inc.
________

Serial No. 76572106
_______

Brian M. Mattson, Esq. for Nature’s Rest, Inc.

Tracy L. Fletcher, Trademark Examining Attorney, Law Office
115 (Tomas V. Vlcek, Managing Attorney).
_______

Before Bucher, Grendel, and Drost, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On January 20, 2004, Nature’s Rest, Inc. (applicant)
applied to register the mark SUPERLOFT (standard character
drawing) on the Principal Register for “latex pillows” in
Class 20. The application (Ser. No. 76572106) contains an
allegation of a date of first use anywhere and in commerce
of January 2003. The examining attorney has finally
refused to register applicant’s mark on the ground that,
when the mark is used on or in connection with the
identified goods, it so resembles the registered mark,
SUPRA-LOFT (typed or standard character drawing) for “bed
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 76572106
2
pillow[s]” in Class 20 as to be likely to cause confusion,
to cause mistake or to deceive. 15 U.S.C. § 1052(d).1
Applicant has appealed this final refusal.
When we are considering a refusal on the ground of
likelihood of confusion, we view the evidence as it relates
to the relevant factors set out in In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed.
Cir. 2003). See also In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); and Recot,
Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed.
Cir. 2000). In many likelihood of confusion cases, “[t]he
fundamental inquiry mandated by § 2(d) goes to the
cumulative effect of differences in the 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).
We begin by comparing the similarities and
dissimilarities of the marks in this case. Applicant’s
mark is SUPERLOFT and registrant’s mark is SUPRA-LOFT. The
marks differ in that applicant’s fourth and fifth letters
are “ER” while registrant’s letters are “RA.” The only
other difference is the presence of a hyphen in the

1 Registration No. 2,051,887, issued April 15, 1997; Section 8
and 15 affidavits accepted or acknowledged.
Ser No. 76572106
3
registrant’s mark while applicant spells its mark as one
word. Applicant argues that the “marks are not visually
similar” and that its “mark, in its entirety, can be
differentiated both visually and phonetically from the
cited mark in its entirety.” Brief at 6. However, the
difference between marks spelled as one word or two is
minimal. Seaguard Corp. v. Seaward International, Inc.,
223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are
“essentially identical”). See also Stockpot, Inc. v. Stock
Pot Restaurant, Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d,
737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (“There is no
question that the marks of the parties [STOCKPOT and STOCK
POT] are confusingly similar. The word marks are
phonetically identical and visually almost identical”).
Also, the presence of a hyphen in applicant’s mark does not
significantly change the appearance of the mark. In re
General Electric Co., 180 USPQ 542, 544 (TTAB 1973)
(“Notwithstanding the hyphen in applicant's mark, it is
fair to assume that applicant's insulating material would
ordinarily be called for and referred to by the designation
‘REX’”). See also Phillips Petroleum Co. v. C.J. Webb,
Inc., 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971) (“The
addition of the extra 6 and the hyphen has already been
held not to avoid confusion”) and In re Champion
Ser No. 76572106
4
International Corp., 196 USPQ 48, 49 (TTAB 1977) (“[N]o
distinction, vague or otherwise, can be drawn between
‘CHECK MATE’ with or without a hyphen between the words so
that for purposes herein they are identical”). Similarly,
in this case, the presence of a hyphen or the absence of a
space in the marks does not distinguish the marks’
appearances.
The other difference between the marks is the
difference in their fourth and fifth letters. While both
marks contain the letter “R,” their positions are reversed
and the vowel is different. Concerning the marks’
appearance, the slight difference in spelling might not
even be noticed by many prospective purchasers. Certainly,
a “[s]ide by side comparison is not the test.” Grandpa
Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477 F.2d 586,
177 USPQ 573, 574 (CCPA 1973). We must also take into
consideration “the fallibility of memory over a period of
time and the fact that purchasers normally retain a general
rather than a specific recollection of trademarks.”
Roffler Industries, Inc. v. KMS Research Laboratories, 213
USPQ 258, 263 (TTAB 1982). To many consumers, the marks
SUPRA-LOFT and SUPERLOFT would be hard to remember and
distinguish by their slight differences.
Ser No. 76572106
5
Regarding the meanings of the marks, the examining
attorney has asked and we take judicial notice of two
dictionary definitions of “Super” and “Supra” from The
Random House Dictionary of the English Language
(unabridged) (2d ed. 1987).2 “Super” is defined as a noun
as “an article of a superior quality, grade, size, etc.”
and as a prefix it “has the basic meaning ‘above, beyond.’”
“Supra” is similarly defined as a “prefix meaning ‘above,
over.’” Therefore, both words can have similar meanings of
“above.” In addition, the examining attorney also included
an entry from The Original Roget’s Thesaurus of English
Words (Americanized Version) in which “super-” and “supra-”
are listed as synonyms for “Superior.” Therefore, the
difference in meaning between SUPRA-LOFT and SUPERLOFT
would be minimal.3 Many consumers would view them as very
similar.

2 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
3 “Loft” is defined as “the thickness of an item, such as a down
comforter, that is filed with compressible insulating material.”
See First Office Action. It is a descriptive term for a feature
of pillows. See, e.g., In Style, Spring 2004 (“The feathers
provide firmness, while the down gives pillows softness and
loft”) and New York Times, May 13, 2004 (“How about the
difference between overstuffed low fill-power and understuffed
high fill-power? They might seem the same at first, Mr. Shingler
said, but the cheaper pillow would lose loft after just a few
days”).
Ser No. 76572106
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Applicant does argue that the cited mark “is not
phonetically the same as the present mark ‘SUPERLOFT.’
Namely, ‘Supra’ is pronounced ‘sϋ-pra’ and “Super” is
phonetically pronounced ‘soo-pîr.’ These terms do not
provide substantial phonetic similarity.” Brief at 6. We
note that “Supra” can also be pronounced with an initial
“soo” sound. The Random House Dictionary of the English
Language (unabridged) (2d ed. 1987). While the marks
SUPRA-LOFT and SUPERLOFT might not be pronounced
identically, their pronunciations would be similar.
Indeed, it might take some effort to distinguish the two
marks if they were being pronounced in the same context.
Finally, the commercial impressions of the marks SUPRA-LOFT
and SUPERLOFT would not be significantly different because
the differences between the marks are so minor.
Ultimately, we conclude that the marks are similar.
We emphasize that while we have discussed the marks’
individual differences, we have based our conclusion on the
marks as a whole. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“[T]here is
nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties. Indeed,
Ser No. 76572106
7
this type of analysis appears to be unavoidable”). In this
case, the similarities of the marks’ pronunciations,
appearances, meanings, and commercial impressions outweigh
the relatively minor differences between the marks.
The next important factor that we consider is the
relatedness of the goods. Applicant’s goods are “latex
pillows” while registrant’s goods are “bed pillows.”
Obviously, both goods are pillows. The examining attorney
has included evidence to demonstrate that “latex pillows”
include “bed pillows.” See, e.g., www.abed.com (“Superior
Latex Foam Bed Pillow”); www.foamsweetfoam.com (Bed Pillows
– The Latex Pillow is a natural, biodegradable material…”);
and www.greenfeet.com (“Natural Latex Pillow … this Natural
Latex Pillow will provide years of comfort for rejuvenating
nights sleep”). Registrant’s bed pillows and applicant’s
latex pillows would overlap to the extent that both would
include latex bed pillows. When goods are identical, marks
do not have to be as close to support a conclusion that
confusion is likely. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701
(Fed. Cir. 1992) (“When marks would appear on virtually
identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion
declines”).
Ser No. 76572106
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We now address applicant’s remaining arguments.
First, with its reply brief, applicant attaches a
dictionary definition of the term “Super” from The American
Heritage® Dictionary of the English Language, Fourth
Edition (2000). We will take judicial notice of this
definition. Applicant also includes printouts that show
the prices for some pillows are significantly less than its
latex pillows. We will not consider this untimely
evidence. 37 CFR 2.142(d). We also add that neither
applicant’s nor registrant’s identification limits the
goods to any particular price range so we must assume that
applicant and registrant are sources of both expensive and
inexpensive pillows. Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which the sales of goods are directed”). Therefore, the
actual price of applicant’s and registrant’s goods does not
support an argument that there is no likelihood of
confusion in this case.
Ser No. 76572106
9
Also attached to applicant’s reply brief was a list of
registration and application numbers with the identified
mark. Again, the submission of this evidence is untimely.
In addition, a list of marks without additional information
is of little probative value. In re Carolina Apparel, 48
USPQ2d 1542, 1542 n.2 (TTAB 1998) (“The Board does not take
judicial notice of third-party registrations, and the mere
listing of them is insufficient to make them of record”).
See also In re First Draft Inc., 76 USPQ2d 1183, 1192 (TTAB
2005) (“Submission of the TARR printout with its appeal
brief, however, is an untimely submission of this
evidence”) and In re Duofold, Inc., 184 USPQ 638, 640 (TTAB
1974) (“[T]he submission of a list of registrations is
insufficient to make them of record”). Furthermore, even
if actual copies of the registrations were attached, these
registrations would not be “evidence of what happens in the
market place or that customers are familiar with them."
AMF Inc. v. American Leisure Prods., Inc., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973). However, we do add that the
other evidence of record does show that both marks would
have some suggestive or laudatory significance.
Applicant also argues that the “purchasers of ‘latex
pillows’ are reasonably sophisticated purchasers. The
purchase of ‘latex pillows is not an impulse purchase…
Ser No. 76572106
10
Accordingly, the purchasers would not be confused nor would
consumers assume that ‘SUPERLOFT’ for latex pillows and
‘SUPRA-LOFT’ for bed pillows derive from the same source.”
Brief at 6. The examining attorney points out that latex
pillows can be purchased for well less than $100 (examples
range from $45 to $79). There is no significant evidence
of the sophistication of these purchasers. Indeed, in view
of the fact that the goods overlap, even sophisticated
purchasers would have difficulty distinguishing applicant’s
and registrant’s marks. In re Research and Trading Corp.,
793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), quoting,
Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434
F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)(“Human memories
even of discriminating purchasers … are not infallible").
See also In re Total Quality Group Inc., 51 USPQ2d 1474,
1477 (TTAB 1999) (“[E]ven careful purchasers are not immune
from source confusion”).
We conclude by determining that confusion is likely
here. The marks SUPERLOFT and SUPRA-LOFT are very similar
and the goods overlap to the extent that they both would
include latex bed pillows and are otherwise closely
related. Under these circumstances, even considering that
the marks have suggestive qualities, consumers are likely
Ser No. 76572106
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to believe that the goods sold under these marks originate
from the same source.
Decision: The examining attorney’s refusal to
register applicant’s mark SUPERLOFT for latex pillows under
Section 2(d) of the Trademark Act is affirmed.