Scag Power Equipment Co., Inc.

Trademark Trial and Appeal Board

Jan 16, 1998

No. 74648197 (T.T.A.B. Jan. 16, 1998)

THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB JAN 16, 98
Paper No. 9
PTH
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Scag Power Equipment, Inc.
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Serial No. 74/648,197
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Fred Wiviott of Michael, Best & Friedrich for Scag Power
Equipment, Inc.
Cindy B. Greenbaum, Trademark Examining Attorney, Law Office
104 (Sidney Moskowitz, Managing Attorney).
_______
Before Simms, Seeherman and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Scag Power Equipment,
Inc. to register the mark TURF RUNNER for “commercial lawn
mowers.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the ground
that applicant’s mark, when applied to its goods, so

1 Application Serial No. 74/648,197 filed March 17, 1995;
alleging a bona fide intention to use the mark in commerce. The
term “TURF” has been disclaimed apart from the mark as shown.
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resembles the mark TURF RUNNER which is registered for
“spraying machines,”2 as to be likely to cause confusion.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested.3 We affirm the refusal to
register.
At the outset, we note that applicant and registrant’s
marks are identical. The Board has stated in the past that
“[i]f the marks are the same or almost so, it is only
necessary that there be a viable relationship between the
goods or services in order to support a holding of
likelihood of confusion.” In re Concordia International
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
In the present case, we find that the record supports
the Examining Attorney’s position that commercial lawn
mowers and spraying equipment are related goods. Both goods
are lawn equipment. Moreover, the Examining Attorney has
made of record a number of registrations which indicate that
entities have registered a single mark for lawn mowers and
spraying equipment. Although some of the registrations are

2 Registration No. 1,904,120 issued July 11, 1995. The term
“TURF” has been disclaimed apart from the mark as shown.
3 Applicant submitted as an exhibit to its brief a corporate
profile of registrant taken from the LEXIS/NEXIS data base.
Applicant relies on this information in asserting that
registrant’s mark is not famous. However, the exhibit is
untimely as provided by Trademark Rule 2.142(a) and, thus, has
not been considered. We hasten to add that even if considered,
the exhibit is not persuasive of a different result in this case.
A mark need not be famous in order to be entitled to protection
under Section 2(d) of the Trademark Act. In re Great Lakes
Canning, Inc., 227 USPQ 483 (TTAB 1985).
Ser No. 74/648,197
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for house marks of companies which market a variety of lawn
and agricultural products and other kinds of goods, there
are several which serve to suggest that the listed goods are
of a type which emanate from a single source. In re Mucky
Duck Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988). For
example, COUNTRY COTTAGE and design has been registered for
power operated sprayers for insecticides and lawn mowers;
TROY-BILT has been registered for lawn mowers, electric
powered sprayers, and gasoline powered sprayers; GOLDEN STAR
has been registered for power-operated and push-type lawn
mowers and power-operated sprayers for watering plants;
JACOBSEN has been registered for powered and riding lawn
mowers and sprayers; and VAL-TEST and design has been
registered for sprayers and lawn mowers. Further, some of
the customers of registrant’s spraying equipment (i.e., lawn
maintenance companies) would also be customers of
applicant’s commercial lawn mowers.
We find therefore that commercial lawn mowers and
spraying equipment are sufficiently related that if sold
under the identical mark, confusion as to origin or
sponsorship of the goods is likely to occur.
Applicant contends that the cited mark is weak and
entitled to a limited scope of protection because it
consists of two highly suggestive words, each of which is
frequently used in marks for lawn care products. In support
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of its contention, applicant submitted a list of
registrations of marks which include TURF or RUNNER. The
submission of a mere list of third-party registrations is
generally insufficient to make the registrations of record.
In re Duofold Inc., 184 USPQ 638 (TTAB 1974). However, the
Examining Attorney did not object to the mere listing of the
registrations, and therefore, we have considered the
registrations. In any event, even if marks which contain
TURF and/or RUNNER are considered weak marks, even weak
marks are entitled to protection where confusion is likely.
Here, applicant’s mark is identical to registrant’s mark and
the goods are related.
As to applicant’s remaining argument, even
sophisticated purchasers are not immune from source
confusion, especially in cases like the present one where
related goods are marketed under identical marks.
In view of the foregoing, we conclude that purchasers
familiar with registrant’s spraying machines sold under the
mark TURF RUNNER would be likely to believe, upon
encountering the identical mark for commercial lawn mowers,
that the goods originated with or were somehow associated
with the same source.
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Decision: The refusal to register under Section 2(d)
is affirmed.
R. L. Simms
E. J. Seeherman
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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