Scrub Daddy, Inc.

Trademark Trial and Appeal Board

Apr 4, 2019

EX (T.T.A.B. Apr. 4, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 4, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Scrub Daddy, Inc.
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Serial No. 87462707
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Norman E. Lehrer of Norman E. Lehrer PC,
for Scrub Daddy, Inc.
Elizabeth A. O’Brien, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
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Before Wellington, Kuczma and Dunn,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Scrub Daddy, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark THE SUNFLOWER (in standard characters) for
Sponge holders; Sponges for household purposes; Cleaning
brushes for household use; Cleaning sponges; Scrub
sponges; Scrubbing brushes in International Class 21.1

1 Application Serial No. 87462707 was filed on May 24, 2017, and is based on Applicant’s
claim of a bona fide intent to use the mark in commerce.
Serial No. 87462707
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The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two
registered marks (owned by the same entity):
SUNFLOWER (in standard character form) for “silicone wine stoppers” in Class
20, and “reusable self-sealing lids for household use; reusable self-sealing lids
for bowls, cups, drinks, containers and the storage of food; sealing lids for
cooking use” in Class 21;2

GOLDEN SUNFLOWER (in standard character form) for “reusable self-sealing
lids for household use; reusable self-sealing lids for bowls, cups, drinks,
containers and the storage of food; reusable sealing lids for cooking use for use
with pots, pans and baking dishes; reusable self-sealing covers in the nature of
lids for cups, drinks and beverage containers” in Class 21.3

After the refusal was made final, Applicant appealed. The appeal is fully briefed.
I. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in 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
between the goods. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944, 1945-
46 (Fed. Cir. 2004); 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

2 Registration No. 4574623 issued on July 29, 2014.
3 Registration No. 4861925 issued on December 1, 2015.
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differences in the marks.”). We discuss below these and other relevant factors. See
M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed.
Cir. 2006) (even within du Pont list, only factors that are “relevant and of record”
need be considered); In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
For purposes of our likelihood of confusion analysis in this appeal, we focus solely
on the cited registered SUNFLOWER mark vis-à-vis Applicant’s mark. It does not
have the additional term GOLDEN and, as discussed infra is nearly identical to
Applicant’s mark, and it covers essentially the same goods as those listed in the
GOLDEN SUNFLOWER registration.
A. The similarity or dissimilarity of the marks
Under this factor, we compare Applicant’s mark THE SUNFLOWER and the cited
mark SUNFLOWER “in their entireties as to appearance, sound, connotation and
commercial impression.” In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (quoting du Pont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005).
The marks here, THE SUNFLOWER and SUNFLOWER are nearly identical,
differing only by Applicant’s addition of the initial term THE. The word “the” in
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Applicant’s mark is a definite article merely serving to specify or particularize the
noun it precedes, which in this case happens to be the same as the registered mark,
SUNFLOWER. As the Examining Attorney has pointed out, “the” generally does not
affect a likelihood of confusion analysis because it has little, to no, source-identifying
significance. See In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009) (the word
“the” in THE WAVE merely emphasizes the word “wave”); In re The Place Inc., 76
USPQ2d 1467, 1468 (TTAB 2005) (definite article "THE" is a non-distinctive term
that adds no source-indicating significance to the mark as a whole); In re Computer
Store, Inc., 211 USPQ 72, 74-75 (TTAB 1981) (THE COMPUTER STORE is the
common descriptive name for computer-related services); In re Narwood Prods., Inc.,
223 USPQ 1034, 1035 n.2 (TTAB 1984) (noting the insignificance of the word “the” in
comparison of THE MUSIC MAKERS and MUSICMAKERS); Conde Nast Publ’ns
Inc. v. Redbook Publ’g Co., 217 USPQ 356, 357 (TTAB 1983) (“the” cannot serve as an
indication of origin even if applicant’s magazine was the only magazine for young
women).
Applicant cites to the Shen Mfg. Co. v. Ritz Hotel, 393 F.3d 1238, 73 USPQ2d 1350
(Fed. Cir. 2004) decision, arguing that “in some cases, [the word ‘the’] can be
significant enough to distinguish over a similar mark.”4 In Shen Mfg. Co., however,
the court noted that “‘the’ [in that case] has elevated significance because of the well-
known manner in which people refer to [one of the parties] as ‘The Ritz’ or ‘The Ritz
Hotel,’ but not as ‘Ritz’ or ‘Ritz Hotel.’” Id. at 1356. The court also noted meaningful

4 4 TTABVUE 3.
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additional differences in the marks as well as the goods, and these differences further
helped distinguish the overall commercial impressions of the involved marks.
Applicant does not point to any circumstances, like those discussed in Shen Mfg.
Co., for us to find that the term THE, as used in Applicant’s mark, creates a
distinctive quality to Applicant’s mark. Ultimately, we find it is merely a definite
article that places emphasis on the second term, SUNFLOWER, which is identical to
the registered mark.
Moreover, SUNFLOWER has no significance in connection with any of the
involved goods. Thus, both marks will likely be understood as an arbitrary reference
to the type of flower.
Accordingly, when viewed in their entireties, we find the marks to be nearly
identical in appearance, sound, connotation and commercial impression. This du Pont
factor supports a finding of a likelihood of confusion.
B. Relatedness of the Goods and Channels of Trade
With regard to the goods and channels of trade, we must make our determinations
under these factors based on the goods as they are identified in the application and
the cited registration. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534
(Fed. Cir. 1997); see also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v.
Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
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The second du Pont factor “considers whether the consuming public may perceive
[the respective [goods or] services of the parties] as related enough to cause confusion
about the source or origin of the … [goods or] services.” In re St. Helena Hosp., 774
F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard, 62
USPQ2d at 1004).
The goods identified in the application are essentially household cleaning sponges
and brushes. The registered marks cover reusable self-sealing lids for various types
of household containers.
Although the goods identified in the application are not identical to the goods in
the registration, identity is not required to support a finding of likelihood of confusion.
Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722
(Fed. Cir. 2012) (“[I]t is not necessary that the products of the parties be similar or
even competitive to support a finding of likelihood of confusion.”) (quoting 7-Eleven
Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see also On-line Careline Inc.
v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000) (the
services [or goods] need not be identical or even competitive to find a likelihood of
confusion). Rather, “likelihood of confusion can be found ‘if the respective products
are related in some manner and/or if the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that they emanate from the
same source.”’ Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven, 83 USPQ2d at
1724). The issue is whether there is a likelihood of confusion as to the source of the
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goods, not whether purchasers would confuse the goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In addition, under this du Pont factor, the Examining Attorney need not prove,
and we need not find, similarity between Applicant’s identified goods and each
product listed in the identification of goods in the registrations. It is sufficient for a
refusal based on likelihood of confusion that relatedness is established for any item
encompassed by the identification of goods in a particular class in the registrations.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
The Examining Attorney submitted a number of printouts from several different
third-party commercial websites demonstrating that a single entity is likely to
provide or feature household sponges and brushes, as well as re-sealable lids for
household use like those identified in the registration, all under the same mark. For
example, Kuhn Rikon (www.kuhnrikonshop.com) sells various types of household
cleaning sponges and brushes, as well as reusable lids for household containers, all
under the Kuhn Rikon brand.5 Tupperware also sells these same goods on its website
(www.tupperware.com) under its house brand.6 Another entity, Norwex
(www.norwex.biz), offers silicone lids for food containers and cleaning sponges.7 The
kitchen supply and accessory maker, OXO (www.oxo.com) also provides a wide

5 April 12, 2018 Office Action, TSDR 13-19.
6 Id., TSDR 43-49.
7 Id., TSDR 20-22.
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variety of household cleaning brushes and different styles and sizes of reusable lids
for household containers.8 See, e.g., In re C.H. Hanson Co., 116 USPQ2d 1351, 1355-
56 (TTAB 2015); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).
The Examining Attorney also made of record 6 use-based, third-party
registrations from the USPTO’s electronic database to show that it is common for a
single entity to register the same mark for household sponges or brushes and reusable
lids for household containers that are the same as, or very similar to, those at issue.9
While third-party registrations are not evidence that the marks shown therein are in
commercial use, or that the public is familiar with them, such registrations that
individually cover a number of different items and are based on use in commerce may
have some probative value to the extent that they serve to suggest that the listed
goods are of a type which may emanate from a single source. See In re Aquamar, Inc.,
115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988); see also In re Anderson, 101 USPQ2d 1912, 1919 (TTAB
2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
Based upon the identifications of goods in the application and registrations, and
the evidence of record, we find the household cleaning sponges and brushes, like those
identified in the application, are related to re-sealable lids for household use, like the
goods identified in the registration, and that they may emanate from a common
source.

8 August 1, 2017 Office Action, TSDR 8-9.
9 April 12, 2018 Office Action, TSDR 48-66.
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In addition to the relatedness evidence from commercial websites discussed above,
the Examining Attorney submitted screenshots from the online retail houseware
websites for Joseph Joseph,10 Ikea,11 Pampered Chef,12 and Sur La Table13 which
show that these entities feature household and kitchen supplies that include goods
like those listed in the involved application and cited registrations. This evidence
confirms that the involved goods are the type that will travel in the same channels of
trade and are offered to the same classes of consumers. See Anderson, 101 USPQ2d
at 1920. The relevant classes of consumers for the identified goods include anyone
seeking to purchase household kitchen supplies and devices.
In sum, the similarities of the goods, their channels of trade, and classes of
consumers weigh in favor of a finding of likelihood of confusion.
II. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the marks are extremely similar, and the identified
goods are related and move through the same channels of trade to the same classes
of purchasers. We therefore find that Applicant’s mark, THE SUNFLOWER, is likely
to cause confusion with the cited mark, SUNFLOWER, when used on or in connection
with the goods identified in the application.
Decision: The refusal to register Applicant’s mark THE SUNFLOWER is affirmed.

10 August 1, 2017 Office Action, TSDR 13-15.
11 April 12, 2018 Office Action, TSDR 2-14.
12 Id., TSDR 25-34.
13 Id., TSDR 35-42.