Pro-Tek Chemical, Inc.

Trademark Trial and Appeal Board

Mar 15, 2013

No. 85227983 (T.T.A.B. Mar. 15, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
March 15, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Pro-Tek Chemical, Inc.
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Serial No. 85227983
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Scott D. Swanson of Dykas & Shaver LLP for Pro-Tek Chemical, Inc.

Cimmerian Coleman, Trademark Examining Attorney, Law Office 102 (Karen
M. Strzyz, Managing Attorney).
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Before Seeherman, Adlin, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Pro-Tek Chemical, Inc. seeks registration on the Principal Register for the
mark TITAN ORANGE for “all-purpose cleaning preparations; degreasing
preparations not used in manufacturing process for floors and surfaces.”1
Registration has been refused pursuant to Section 2(d) of the Trademark Act,
15 U.S.C. §1052(d), in light of two registrations owned by two separate entities.

1 Serial No. 85227983, filed January 27, 2011, pursuant to Section 1(a) of the
Trademark Act, asserting first use and first use in commerce on January 1, 2001. In
the initial application papers, the goods were identified as: “all-purpose cleaning
preparations; and degreasing preparations for household use.” The identification was
later amended pursuant to the examining attorney’s suggestion.
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The first is for TITAN in standard characters for “all-purpose cleaning
preparations for household applications”2; the second is for TITAN in typed
drawing form for “degreasers for industrial and commercial use.”3 The
examining attorney asserts that applicant's mark so resembles these registered
marks that, as used in connection with applicant's identified goods, it is likely
to cause confusion or mistake or to deceive. The examining attorney issued a
final refusal of registration, which applicant has appealed.
We affirm the refusals.
As a preliminary matter, applicant attached an entry from Wikipedia
regarding “limonene” to its reply brief. This evidence is manifestly untimely.
“The record in the application should be complete prior to the filing of an
appeal. The Trademark Trial and Appeal Board will ordinarily not consider
additional evidence … after the appeal is filed.” Trademark Rule 2.142 (d).
Further, the Board will not take judicial notice of entries from Wikipedia. See
In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB 2007), for
discussion of the reliability of statements made in Wikipedia entries.
Accordingly, we will not consider the evidence. However, even if we did
consider this evidence, it would not affect the outcome of this case.

2 Reg. No. 3356331, issued on December 18, 2007, owned by Steel City Vacuum.
3 Reg. No. 2711523, issued on April 29, 2003, §§ 8 & 15 affidavit accepted and
acknowledged, currently owned by Ecolab USA Inc., original owner Kay Chemical
Group; assignment recorded on February 15, 2012.
In 2003, Trademark Rule 2.52(a) was amended to refer to “typed” drawings” as
“standard character” drawings.

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Our determination of the issue of likelihood of confusion is based on an
analysis of all of 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 Co., 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 and/or services. 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).
We begin our review with an analysis of the likelihood of confusion
between the mark in the application, TITAN ORANGE for “all-purpose cleaning
preparations; degreasing preparations not used in manufacturing process for
floors and surfaces” and cited Reg. No. 3356331 for the mark TITAN for “all-
purpose cleaning preparations for household applications.”
We start by evaluating the second du Pont factor, the similarity and
nature of the goods. It is noted that applicant did not discuss this factor in its
brief.
As set forth in the Dixie Restaurants case,
“Likelihood of confusion must be determined based on
an analysis of the mark as applied to the … services
recited in applicant's application vis-a-vis the …
services recited in [a] … registration, rather than what
the evidence shows the...services to be.”
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In re Dixie Restaurants Inc., 41 USPQ2d at 1534, quoting Canadian Imperial
Bank v. Wells Fargo Bank, N.A. , 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed.
Cir. 1987). This statement applies equally to goods.
Applicant’s goods include “all-purpose cleaning preparations.” Because
there is no limitation on applicant’s “all-purpose cleaning preparations,” the
identification is deemed to encompass the “all-purpose cleaning preparations
for household applications” identified in the cited registration. Accordingly, we
find that under the second du Pont factor, applicant’s goods are in part legally
identical to the goods identified in cited Reg. No. 3356331. In view thereof, we
need not consider the relatedness of applicant’s degreasing preparations and
the registrant’s goods. See Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must
be found if there is likely to be confusion with respect to any item that comes
within the identification of goods in the application).
Goods that are legally identical are presumed to travel in the same
channels of trade, and be sold to the same class of purchasers. In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
Applicant contends that the purchasers of cleaning and/or degreasing
preparations are sophisticated purchasers who do not purchase the products
on impulse; and that the goods “are not inexpensive items bought on a whim.”
Applicant has submitted no evidence supporting its contentions. Further,
cleaning and degreasing preparations for household application are items
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purchased and used by the public at large; the buyers cannot be considered
sophisticated purchasers.
Therefore, the du Pont factors of the similarity of the goods and channels
of trade favor a finding of likelihood of confusion. The factor of the conditions
of purchase either favors a finding of likelihood of confusion or is neutral.
We turn next to the first du Pont factor, the similarity of the marks. We
keep in mind that when marks would appear on virtually identical goods or
services, as in the case here, the degree of similarity 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).
In comparing the marks we must consider the appearance, sound,
connotation and commercial impression of the marks at issue. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Both applicant’s mark and the
mark in the cited registration contain the term TITAN, to which applicant has
added the word, “ORANGE,” which is descriptive and has been disclaimed.
Indeed, applicant has acknowledged that its product “uses an orange peel
extract as the active ingredient in Applicant’s cleaning product.” Reply Brief, p.
1.4 Because ORANGE is descriptive, consumers will look to the word TITAN in
applicant’s mark as the source-identifying element. It is a well-established

4 Although in its reply brief applicant argues that the word ORANGE is suggestive
because “[a]pplicant’s cleaner and degreaser is not made of oranges, orange peels, or
anything that makes the term ORANGE anything less than suggestive,” Reply Brief, p.
1, that is belied by applicant’s statement that the active ingredient comes from orange
peel.
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principle that, in articulating reasons for reaching a conclusion on the issue of
likelihood of confusion, there 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 a consideration of the marks in their
entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). Here, we find that the dominant portion of applicant’s mark is the
term TITAN, which is entitled to greater weight in our comparison of the marks.
Given that the word TITAN is identical in both marks, and ORANGE will
be viewed as describing a characteristic of the goods, when the marks are
compared in their entireties, they are similar in appearance, sound,
connotation and commercial impression. See Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1845 (Fed. Cir. 2000) (likelihood of confusion
between LASER and LASERSWING, both for golf clubs; the addition of
descriptive term SWING insufficient to distinguish the marks).
In reaching this conclusion, we have considered applicant’s argument
that the term Titan is weak because it is “used in an abundance of cleaning
and degreasing terms both on the federal register as well as found through a
standard Google search.” Appeal Brief, p. 5.5 Applicant bases this contention
on the inclusion of marks containing the word TITAN for cleaning and
degreasing products on third-party websites, and on a listing from the USPTO’s
TESS database showing only the mark, application or registration number and

5 Applicant’s submissions, although obtained through a Google search, are not a
search results summary, but consist of webpages from various websites.
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the status of the application/registration, e.g., whether the application or the
registration is live or dead.
The list does not show the goods and/or services covered by the
registrations. Therefore, it has extremely limited probative value, since we
cannot determine whether the marks are for goods and services similar to
those of applicant and registrant. In re Jump Designs LLC, 80 USPQ2d 1370,
1372 (TTAB 2006), citing Conde Nast Publications, Inc. v. American Greetings
Corp., 329 F.2d 1012, 141 USPQ 249, 252 (CCPA 1964). In this connection,
even complete copies of third-party registrations covering goods and/or
services far removed from the goods of applicant and registrant would be
irrelevant to the present likelihood of confusion analysis. Id.
We have, however, considered two registrations which were on the TESS
list, because they were discussed by the examining attorney in her appeal brief:
Reg. No. 3610393 for the mark TITANTUFF for “commercial industrial cleaning
supplies, namely, multi-purpose cleansers, glass cleaning preparations, carpet
and upholstery cleaning preparation, drain cleaners and openers,” and Reg.
No. 2783453 for the mark TITAN for “cleaning preparations for use by installers
of automotive glass, to remove adhesives and other residue from newly
installed glass and from hands.”6 The examining attorney treated these
registrations as insufficient to show that the mark TITAN is weak. Examining
Attorney’s Brief, p. 5. We agree.

6 A third-party application, submitted by applicant with its request for reconsideration
filed August 25, 2011, is evidence only of the fact that it was filed.
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Where there is no evidence of actual use, third-party registrations are
entitled to little weight in determining likelihood of confusion. Moreover, two
registrations for commercial cleaners are not sufficient to show that TITAN has
a particular significance with respect to all-purpose cleaning preparations for
household applications. We recognize that TITAN has a dictionary meaning of
“one that is gigantic in size or power; one that stands out for greatness of
achievement.”7 Therefore, at most, we consider TITAN to have a slightly
suggestive significance, and it certainly is not so highly suggestive that the
cited registration would have a limited scope of protection.
Applicant also bases its assertion that the mark TITAN is weak on third-
party use on websites for the following cleaning products that were revealed in
a Google search performed by applicant:
• “Clayton Titan Blue Photo System Cleaner” (a
concentrated liquid cleaner for removing silver and
other deposited chemicals from black and white
developer tanks, racks, and roller assemblies in
automatic processors);
• “Titan Bug Prep” from Western Carwash Solutions;
• “Titan Industrial Chemicals, LLC” (described as
offering quality products and competitive prices for
municipalities, schools, and other major
businesses);

7 We take judicial notice of the definition of “titan” from Merriam-Webster’s Collegiate
Dictionary 10th edition. The Board may take judicial notice of dictionary definitions,
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

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• “Titan Green” from Brilliant Windows – Bright Ideas
for Window Cleaners;
• “Super Fast Titan Heavy Duty Cleaner Degreaser”
(heavy duty concentrated cleaner and degreaser
especially formulated to remove grease, oil and
grime from engine parts, machinery, whitewall
tires, etc.) and “Titan Heavy Duty Alkaline
Degreaser” (concentrated product designed to help
remove grease, oil, tire marks, and heavy oils from
concrete and other hard washable surfaces);
• “Titan BSD Butyl degreaser” (industrial cleaner and
degreaser);
• “Titan” degreaser – institutional product from Kess
Industrial Products; and
• “Titan Engine Degreaser” -car engine cleaner.
Response dated August 25, 2011.
However, the webpages do not show that the term TITAN is entitled to a
limited scope of protection for all-purpose cleaning preparations for household
applications. The extent of use and channels of trade are not apparent from
the evidence of record. “The probative value of third-party trademarks depends
entirely upon their usage.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 73 USPQ2d at 1693. See also Han Beauty, Inc. v.
Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001).
Accordingly, while we have considered this evidence of third-party use, it is not
sufficient for us to find that the cited registration is weak.
Applicant has also alleged that the mark in the cited registration is not
famous. The issue of fame was neither raised nor addressed by the examining
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attorney. Since there is no evidence regarding this factor, we treat it as
neutral.
Having considered all the evidence and argument on the relevant du Pont
factors, we find that applicant’s mark TITAN ORANGE for “all-purpose cleaning
preparations; degreasing preparations not used in manufacturing process for
floors and surfaces” is likely to cause confusion with the cited registration for
the mark TITAN for “all-purpose cleaning preparations for household
applications.”
We continue our review with an analysis of the likelihood of confusion
between applicant’s mark and cited Reg. No. 2711523 for the mark TITAN for
“degreasers for industrial and commercial use.” Our above discussion of the
first du Pont factor applies to the marks at issue in this analysis and
accordingly, for the reasons set forth therein, we reiterate our finding that the
mark TITAN ORANGE is similar to the mark TITAN.
We turn next to the second du Pont factor, the similarity and nature of
the goods. As previously noted, applicant did not discuss this factor in its
brief.
The goods in cited Reg. No. 2711523 are “degreasers for industrial and
commercial use.” Applicant’s goods include “degreasing preparations not used
in manufacturing process for floors and surfaces.” The limitation in the
identification does not affect the purpose of applicant’s degreasing
preparations. Because applicant’s goods, as identified, encompass degreasing
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preparations for industrial and commercial use, its goods are legally identical
to the degreasers in the cited registration.
Further, the examining attorney has shown that a single product may
function both as an all-purpose cleaner and a degreaser, examples of which
include: “Adirondack Green All-Purpose Cleaner/Degreaser” and “3M All
Purpose Cleaner and Degreaser.”8 Thus, applicant’s identified all-purpose
cleaner is closely related to the degreasing preparations in the cited
registration. Accordingly, applicant’s goods are legally identical in part and
closely related in part to the goods in cited Reg. No. 2711523.
To the extent that the goods are legally identical to the goods in the cited
registration, they are presumed to travel in the same channels of trade, and be
sold to the same class of purchasers.
Applicant contends that the purchasers of cleaning and/or degreasing
preparations are sophisticated purchasers who do not purchase the products
on impulse; and that the goods “are not inexpensive items bought on a whim.”
We agree that cleaning and/or degreasing products for industrial and
commercial use are unlikely to be impulse purchases and the purchasers
thereof are likely to be sophisticated. However, even sophisticated purchasers
may be confused when similar marks are used with respect to the same goods.
In re Cynosure Inc., 90 USPQ2d 1644, 1647 (TTAB 2009). See also In re
Research and Trading Corp., 793 F2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986).
In this case, because the additional word ORANGE in applicant’s mark

8 Attachments to Office action dated February 25, 2011.
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describes an ingredient in the product, even sophisticated and careful
purchasers who note the presence of the word ORANGE are not likely to view it
as indicating a different source for degreasers sold under the mark TITAN per
se; rather, they are likely to view TITAN ORANGE as a variation of the TITAN
mark, adopted by the same source for its degreasers containing this ingredient.
As previously discussed, applicant submitted evidence regarding third-
party use of marks containing the word TITAN for commercial and industrial
cleaning and degreasing products, which may affect the strength of the word
TITAN in the field of cleaning products. However, even if we treat the cited
registration as being entitled to a lesser scope of protection, it still extends to
the use of this very similar mark for legally identical goods. Even a weak mark
is entitled to protection against the registration of a similar mark for closely
related goods or services. See King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
Having considered all the evidence and argument on the relevant du Pont
factors, we find that applicant’s mark TITAN ORANGE for “all-purpose cleaning
preparations; degreasing preparations not used in manufacturing process for
floors and surfaces” is likely to cause confusion with the cited registration for
the mark TITAN for “degreasers for industrial and commercial use.”
Decision: The refusal to register on the basis of the two cited registrations
is affirmed.