Professional Home Supply, LLC

Trademark Trial and Appeal Board

Aug 31, 2018

No. 87371339 (T.T.A.B. Aug. 31, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: August 31, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Professional Home Supply, LLC
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Serial No. 87371339
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Christopher Ditico, Esq.,
for Professional Home Supply, LLC.
Andrea Cornwell, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Kuhlke, Taylor and Greenbaum,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Professional Home Supply, LLC (“Applicant”) seeks registration on the Principal
Register of the mark Q (in standard characters) for “Faucets; Hand showers; Shower
heads; Sinks; Toilets” in International Class 11.1

1 Application Serial No. 87371339 was filed on March 15, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 87371339
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the mark in U.S. Registration No. 4355006, FOREST Q
(in standard characters) for “Filters for drinking water; Filters for fluids, namely, for
water and area-water solutions; Filters made of fiber for water filtration; Flush
levers; Portable toilets; Toilet accessories, namely, handles that are affixed to toilet
seats; Toilet accessories, namely, plastic handles that are affixed to toilet seats; Toilet
bowls; Toilet conversion kits for converting a single-flush toilet into a dual-flush
toilet; Toilet seat adaptors for children in the nature of a plastic device that is
specially adapted to rest on a toilet seat; Toilet seats; Toilet tanks; Toilets” in
International Class 11.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities

2 Registered June 18, 2013.
Serial No. 87371339
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between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The 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”). These factors, and any other relevant du Pont factors
in the proceeding now before us, will be considered in this decision.
A. Relatedness of the Goods/Channels of Trade
We first consider the second and third du Pont factors regarding the relatedness
of the goods and channels of trade. The goods are identical insofar as they both
include “toilets.” The remaining goods identified in Applicant’s application, i.e.,
faucets, hand showers, shower heads and sinks, are complementary and related to
the “toilets” identified in the cited registration, all being plumbing fixtures that may
be used together in a bathroom. Even so, given the in-part identical “toilets” we need
not discuss the similarity of all of Applicant’s goods because it is sufficient for a
finding of likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
application. In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Nonetheless, we note that to support the relatedness of the non-identical goods,
the Examining Attorney made of record web pages from the websites of various
entities, e.g., Kohler, American Standard, Toto, Delta, and Alya, showing the same
mark used in connection with both toilets and/or faucets, hand showers, shower heads
Serial No. 87371339
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and sinks.3 The record also includes twenty-five use-based third-party registrations,
e.g., Registration No. 4246263 [JACOB DELAFON], Registration No. 3945127
[DELACORA], Registration No. 4638008 [ELBERON], Registration No. 4864508
[AQUAMOON] and Registration No. 5006989 [LUXIER] that cover these types of
goods under the same mark,4 suggesting that they may emanate from the same
source. Aquamar, 115 USPQ26 at 1126 n.5; In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988). We thus find the goods identical or closely related for
purposes of our likelihood of confusion analysis.
Furthermore, because the goods are identical in-part, the channels of trade and
classes of purchasers for such goods are considered to be the same. In re Yawata Iron
& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); Am. Lebanese Syrian
Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028
(TTAB 2011). See also 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). As such the channels of trade and classes of purchasers at a
minimum overlap.

3 June 13, 2017 Office Action, TSDR 8-28; August 4, 2017 Office Action, TSDR 9-24 and 177-
186. The TSDR citations are to the downloadable .pdf format.
4 August 4, 2017 Office Action, TSDR 78-80, 84-86, 98-100, 112-114 and 126-128.
Serial No. 87371339
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Accordingly, we find that the du Pont factors of the relatedness of the goods,
channels of trade and classes of purchasers strongly favor a finding of likelihood of
confusion.
B. Sophistication of the Purchasers
Applicant argues that confusion is unlikely because consumers of the respective
goods are sophisticated and exercise care in their purchasing decisions, because they
are purchasing products that must be compatible with their interior design scheme
and existing plumbing, and often require professional installation. We agree that the
nature of both Applicant’s and Registrant’s goods leads us to conclude that consumers
will exercise some degree of care with regard to compatibility, fit and installation.
However, we do not believe that the degree of care exercised by these consumers rises
to a level that would distinguish the marks. That is, even knowledgeable and careful
purchasers can be confused as to source, especially where, as here, very similar marks
are used in connection with in-part identical and complementary and related goods.
See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)
(citing Carlisle Chem. 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 Refreshment Mach. Inc. v. Reed Indus., Inc., 196
USPQ 840, 843 (TTAB 1977) (selling to a sophisticated purchaser does not
automatically eliminate the likelihood of confusion because “[i]t must also be shown
how the purchasers react to trademarks, how observant and discriminating they are
in practice, or that the decision to purchase involves such careful consideration over
Serial No. 87371339
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a long period of time that even subtle differences are likely to result in recognition
that different marks are involved”).
Even so, we find that this du Pont factor somewhat favors Applicant.
C. The Marks
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks, keeping in mind that where, as here, the goods are in-
part identical, the degree of similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity between the goods. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enter. Inc. v. Rind, 85 USPQ2d 1104,
1108 (TTAB 2007).
We compare the marks, as we must, in their entireties in terms of sound,
appearance, meaning and commercial impression. See Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin En 1722, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005).
However, there is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of the mark, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). That is, “[t]he proper test
is not a side-by-side comparison of the marks, but instead ‘whether the marks are
sufficiently similar in terms of their commercial impression’ such that persons who
encounter the marks would be likely to assume a connection between the parties.”
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Coach Servs. Inc., 101 USPQ2d at 1721. See also San Fernando Elec. Mfg. Co. v. JFD
Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests.
Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353
(Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who
retains a general rather than specific impression of the marks. L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975). Here, the average customer includes members of
the general public seeking toilets and related plumbing fixtures.
On comparison, Applicant’s mark Q and the cited mark FOREST Q are similar in
appearance and sound to the extent that they each include the letter “Q” as the sole
or a distinct portion of the mark. As to connotation, in the context of the goods, on
this record the letter “Q” appears to be arbitrary. Thus, as least with respect to the
identical goods, consumers would likely to perceive the letter “Q” in both marks as
having the same arbitrary meaning and commercial impression. Contrary to
Applicant’s contention, we do not find that the addition of the word FOREST to the
cited mark distinguishes the two marks. Rather, it merely modifies the letter “Q” in
FOREST Q and supplements the overall connotation “Q” conveys, being perhaps
suggestive of a line a toilets with a forest motif or a more rugged finish. Thus,
consumers will likely perceive Applicant’s mark as a variant mark identifying a
different line of Registrant’s products.
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In making our finding, we are simply unpersuaded by Applicant’s contention that
the term FOREST dominates the cited mark. Although we are familiar with the
jurisprudence that consumers are more likely to focus on the first portion or word in
a trademark (see, e.g., Palm Bay, 73 USPQ2d at 1692), it is likewise true that
likelihood of confusion is not necessarily avoided between otherwise confusingly
similar marks merely by adding or deleting other distinctive matter. If an important
portion of both marks is the same, then the marks may be confusingly similar
notwithstanding some differences. See. e.g., Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1266, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (finding that, even
though applicant's mark PACKARD TECHNOLOGIES, with “TECHNOLOGIES”
disclaimed, does not incorporate every feature of opposer’s HEWLETT PACKARD
marks, a similar overall commercial impression is created); In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (holding VANTAGE TITAN for MRI
diagnostic apparatus, and TITAN for medical ultrasound device, likely to cause
confusion, noting that the marks are more similar than they are different and that
the addition of applicant's “product mark,” VANTAGE, to the registered mark would
not avoid confusion); In re U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (holding
CAREER IMAGE (stylized) for clothing and retail women's clothing store services,
and CREST CAREER IMAGES (stylized) for uniforms, likely to cause confusion,
noting that CAREER IMAGE would be perceived by consumers as a shortened form
of CREST CAREER IMAGES). We find the situation here similar as FOREST merely
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modifies or enhances the commercial impression engendered by the “Q” portion of
Registrant’s mark.
While as Applicant points out, there are differences between the marks in terms
of appearance and sound when viewed on a side-by-side basis, we find that in their
entireties, Applicant’s mark Q and Registrant’s mark FOREST Q are substantially
similar in appearance, sound and connotation and convey a substantially similar
commercial impression due to the shared letter “Q.”
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
D. Other Arguments
Applicant introduced various third-party registrations including the letters A,
C and M for goods identical or related to the toilets and plumbing fixtures at issue,
arguing that the coexistence of these registrations “illustrate the PTO’s willingness
to emphasize other distinguishing factors when comparing marks that share single
letter usage.” The registrations follow:
Registration No. Mark
4107328

4508575

Serial No. 87371339
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Registration No. Mark
5098607

4833833

5033590

5072376

5253855

3945298

4733689

4521931

4987207

Serial No. 87371339
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Registration No. Mark
5280183

We find these registrations have little probative value in our decision. First, none
include the letter “Q,” alone or in combination with other matter, as do the marks at
issue in this appeal, leading us to conclude that the cited registration is the only one
comprising or including the letter “Q” registered for toilets and/or related plumbing
fixtures. Also, unlike in this case, all of the marks in the third-party registrations
include distinct stylized initials, such that none resemble one another. Here, because
both Applicant’s mark and the cited mark are in standard characters, they may be
presented in any style, regardless of font, size, or color. See Viterra 101 USPQ2d at
1909. Thus, Applicant’s mark could be displayed in lettering the same as or
significantly resembling that of the cited mark.
Lastly, both Applicant and the Examining Attorney have relied on a number of
prior decisions to bolster their positions with regard to a finding, or not, of likelihood
of confusion in this case. While our decision is made within the confines of established
statutes, rules and case precedent, it is axiomatic that each case must be decided on
its own facts. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001) (“Even if some prior registrations had some characteristics similar to
[Applicant’s] application, the PTO’s allowance of such prior registrations does not
bind the Board or this court.”); and In re Merrill Lynch, Pierce, Fenner & Smith Inc.,
Serial No. 87371339
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828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987). We are therefore obligated
and have assessed the registrability of Applicant’s mark on its own merits and have
carefully considered the arguments and evidence of record in this case, even if not
specifically addressed in the decision.
E. Conclusion
We conclude that confusion is likely between Applicant’s Q mark for “faucets;
hand showers; shower heads; sinks and toilets” and the cited FOREST Q mark for,
inter alia, “toilets.” We conclude so principally due to the substantial similarities in
the marks, the in-part identical and otherwise related and complementary nature of
the goods, and the presumed overlap in trade channels and purchasers, which is not
outweighed by any care exercised by consumers during the purchasing process.
Decision: The refusal to register Applicant’s mark Q under Section 2(d) of the
Trademark Act is affirmed.