Spectrum Distributors, Inc., assignee of Industrial Design & Mfg., Inc.

Trademark Trial and Appeal Board

Jan 25, 2002

No. 75197291re (T.T.A.B. Jan. 25, 2002)

1/25/02
Hearing: Paper No. 25
November 19, 1999 HRW

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Spectrum Distributors, Inc., assignee of
Industrial Design & Mfg., Inc.1
________

Serial No. 75/197,291
_______

Request for Reconsideration
_______

C. Frederick Koenig III of Volpe and Koenig, P.C.
for applicant.

Won T. Oh, Trademark Examining Attorney, Law Office 104
(Sidney Moskowitz, Managing Attorney).
_______

Before Hanak, Wendel and Bottorff, Administrative Trademark
Judges.

Opinion by Wendel, Administrative Trademark Judge:

The Board, in its decision of May 15, 2000, affirmed
the refusal under Section 2(d) to register applicant’s mark
PRO-LINE DECK EQUIPMENT and design for “swimming pool deck
equipment made primarily of metal for commercial and

1 The caption of this proceeding has been amended to reflect the
assignment of the application to Spectrum Distributors, Inc.,
which assignment has been duly recorded by the Office.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/197,291
2
institutional pool complexes, namely, starting platforms
and anchors, lifeguard stands and anchors, diving board
stands and anchors, ladders, pool steps, and pool railings”
on the ground of likelihood of confusion with the
registered mark PROLINE and design2 for the various swimming
pool items listed in the registration.
Applicant, on June 7, 2000, filed a request for
reconsideration of the decision.3
Applicant’s major contention is that the Board has
failed to give adequate weight to the statements of Mr.
Herrick with respect to the differences in purchasers for
the swimming pool deck equipment of applicant and the
maintenance accessories and supplies of registrant.
Applicant further argues that the Board has held applicant
to the wrong standard of proof, by the Board’s statement
that “we find the evidence of record less than convincing
that there is the division of purchasers claimed by
applicant.”
We find no reason to reverse our findings on the issue
of division of purchasers. In the first place, there is no

2 Registration No. 1,864,126; Section 8 & 15 affidavits accepted
and acknowledged, respectively.
3 We note that applicant simultaneously filed a petition to the
Commissioner to permit the submission of additional evidence with
respect to this case. The petition was denied on March 28, 2001
and at a later date the file was returned to the Board for
consideration of the request for reconsideration.
Ser No. 75/197,291
3
limitation in the identification of goods in the
registration so as to restrict the sale of registrant’s
maintenance accessories and supplies to residential pool
owners. Mr. Herrick has acknowledged as much by his
statement that these are “the type of items purchased by
maintenance staff.” (Supplemental Declaration, par. 5).
There clearly would be a maintenance staff in connection
with commercial and institutional pool complexes.
Furthermore, despite applicant’s arguments that its
deck equipment would only be purchased well before the
start-up of a commercial or institutional pool, we see no
reason why items such as ladders or pool steps could not be
purchased at other than the initial construction stage, if
nothing else than for repair or replacement purposes. On
the other hand, we see no reason why those in charge at the
initial construction stages might not be in the market for
items such as the decorative pool fountains or the pool
lights of registrant. In view of these potentially
overlapping needs and markets for the goods, we do not find
the unsupported statement of Mr. Herrick that there are
“different types of consumers for the different types of
products” sufficient to establish a clear line of
demarcation between the purchasers of the goods of
applicant and registrant. As stated in our decision, the
Ser No. 75/197,291
4
circumstances here cannot be likened to those in Electronic
Design & Sales Inc. v. Electronic Data Systems Corp., 954
F.2d 713, 21 USPQ2d 1388 (Fed. Cir. 1992). Moreover, in
making this determination we were not holding applicant to
a standard higher than a preponderance of the evidence,
despite our unfortunate choice of the word “convincing” in
our decision.
Accordingly, in view of the evidence made of record
by the Examining Attorney that goods similar to both
applicant’s and registrant’s might be purchased from the
same swimming pool supply company, we find confusion likely
when marks as similar in commercial impression as
applicant’s and registrant’s are used in connection with
the respective swimming pool goods.
Thus, the request for reconsideration is denied and
the decision of the Board affirming the refusal under
Section 2(d) stands.

Ser No. 75/197,291
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