Strata Safety Products, LLC

Trademark Trial and Appeal Board

Apr 6, 2017

No. 86325072 (T.T.A.B. Apr. 6, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: April 6, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Strata Safety Products, LLC
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Serial No. 86325072
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Ansel M. Schwartz of Ansel M. Schwartz,
for Strata Safety Products, LLC
James Blake Lovelace, Trademark Examining Attorney, Law Office 119,
Brett J. Golden, Managing Attorney.
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Before Quinn, Cataldo and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Strata Safety Products, LLC (“Applicant”) seeks registration on the Principal
Register of the mark RIG GUARD (in standard characters, RIG disclaimed) for
a wireless, battery powered toxic and combustible gas
detection system having gas sensors for shale gas drilling
rigs that continuously monitor methane (CH4), hydrogen
sulfide (H2S), oxygen (O2) and carbon monoxide (CO)
levels on the rig and which activates alarms at a
monitoring station of the system when any of the CH4,
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H2S, O2 and CO exceed a predetermined level (in
International Class 9).1
The Trademark Examining Attorney refused registration of the application under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s
mark so resembles the registered mark RIGUARD (standard characters), which
registration includes, among other goods, “gas sensors.”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. Applicable Law
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 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., Inc., 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 Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

1 Application Serial No. 86325072 was filed on July 1, 2014, 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).

2 Registration No. 3860899 for goods in Classes 6, 9, 11, 19, 20, 42. The goods in Class 9
include “gas, dust, solids, humidity, vibration sensors.” Registered on October 12, 2010 under
Trademark Act Section 66(a), 15 U.S.C. § 1141f(a), based on International Registration No.
1018482, with a priority claim of January 31, 2009.

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USPQ 24, 29 (CCPA 1976). We discuss each of the du Pont factors as to which
Applicant or the Examining Attorney submitted argument or evidence. To the extent
that any other du Pont factors for which no evidence was presented may nonetheless
be applicable, we treat them as neutral.
A. The similarities or dissimilarities between the marks in their
entireties, in terms of appearance, sound, connotation and commercial
impression
We turn first to the du Pont factor focusing on the similarity or dissimilarity of
the marks in their entireties as to appearance, sound, connotation and commercial
impression. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). “The 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.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
Applicant’s mark is RIG GUARD and Registrant’s mark is RIGUARD. The marks
are nearly identical in appearance, with the only difference being that Registrant has
telescoped the letter “G” in the words RIG and GUARD. Moreover, the marks are
identical in sound and commercial impression and have similar connotations, i.e., a
device fitted to prevent injury or damage to, in this case, an oil rig.
Although Applicant argues that the marks are different in appearance because of
the missing letter “G” in Registrant’s mark, we find that the overall visual similarity
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is unaffected by these slight differences. Applicant’s argument regarding different or
potentially different pronunciations of the two marks also is unavailing. It is well-
settled that there is no “correct” pronunciation of a trademark because it is impossible
to predict how the public will pronounce a particular mark. Therefore, a supposedly
“correct” pronunciation of a mark cannot be relied on as a basis for finding two marks
to be dissimilar in terms of sound. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1912 (Fed. Cir. 2012) (upholding the Board’s affirmance of a Section
2(d) refusal to register XCEED for agricultural seed based on a likelihood of confusion
with the registered mark X-SEED and design, SEED disclaimed, for identical goods).
We find this du Pont factor favors a finding of likelihood of confusion.
B. Relatedness of the Goods and Channels of Trade
Given that the marks RIG GUARD and RIGUARD are extremely similar, “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.” E.I. du Pont de Nemours & Co.
v. Sunlyra Int’l Inc., 35 USPQ2d 1787, 1790 (TTAB 1995) (citing In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983)).
Likelihood of confusion may be found based on any item that comes within the
identification of goods in the involved application or registration. In re La Peregrina
Ltd., 86 USPQ2d 1645 (TTAB 2008) (citing Tuxedo Monopoly, Inc. v. General Mills
Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). The Examining
Attorney has focused on the similarity of the cited registration’s gas sensors with
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Applicant’s “wireless, battery powered toxic and combustible gas detection system
having gas sensors for shale gas drilling rigs,” and we will therefore do the same.
We note that the goods on their face are very closely related as Registrant’s gas
sensors would comprise all or part of a gas detection system. Simply put, the broadly
identified “gas sensors” in the cited registration must be presumed to include
Applicant’s more specifically identified “gas sensors for shale gas drilling rigs that
continuously monitor methane (CH4), hydrogen sulfide (H2S), oxygen (O2) and
carbon monoxide (CO) levels.” The Examining Attorney submitted the following
information regarding gas detectors and/or gas sensors:
A gas detector is a device that detects the presence of gases in an area,
often as part of a safety system. … This type of device is used widely in
industry and can be found in locations such as on oil rigs … Before
modern electronic sensors, early detection methods relied on less precise
detectors.3 Wikidpedia.com.

The Examining Attorney submitted Internet evidence of third parties who offer
oil and gas detector systems, gas detectors, and gas sensors for a variety of oil and
gas applications, including for use with oil rigs, with some companies offering both
fixed and portable systems for permanent or temporary installations.4 This evidence
also shows that gas detection systems include sensors. For example, the website
www.conspec-controls.com states that its “Rig Guard System is an innovative and
unique solar-powered gas detection system for continuous monitoring of combustible
and toxic gases at active drill sites. …The Rig Guard’s sensors will detect toxic gases

3 January 25, 2016 Response to Office Action p. 6-7.
4 August 16, 2016 Office Action, pp. 2-8; January 25, 2016 Office Action pp. 13-24; October
14, 2014 Office Action pp. 10-21.
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… as an early indicator of hazardous conditions in and around the site.”5 On another
page of this website, it states that its gas detectors integrate seamlessly with a range
of gas sensors to detect combustible and toxic gases.6 The website www.detcon.com
advertises a [s]tand-alone Gas Detection Safety System [that] features
environmentally bulletproof CXT sensors for detecting toxic and combustible gases.”7
The Internet evidence also shows that gas detectors and gas sensors can be
interchangeable. For example, the website www.gemsensors.com states that it
“manufactures a wide array of sensors (e.g., gas pressure sensors, gas pressure
switches and level sensors)” and offers “reliable pressure sensing for the oil & gas
sensor industry;”8 www.crowcon.com discusses effective gas detection in the oil and
gas industry and states that it has developed “IRmax a flammable gas detector;”9
www.stellartech.com offers “Upstream Oil and Gas Sensors for “Drilling
Rigs/Workover Rigs;”10 and www.dexterresearch.com touts the “World’s Best Gas
Detectors” and states that “… Dexter Research’s infrared gas sensors are used in
home, office and health safety systems to detect dangerous gases that impact oxygen
levels and other gas leaks.” This website explains that “[a] Dexter IR gas detector is

5 It appears that there is some relationship between Conspec and Applicant. The website
states that “Conspec partnered with Rockwell Automation … to design and build this new
gas monitoring system,” and “is working with Strata Safety Products LLC [Applicant] to
provide installation, on-site training and 24/7 field service.” August 16, 2016 Office Action, p.
11.
6 August 16, 2016 Office Action pp. 11-12.
7 October 14, 2014 Office Action pp. 10, 12.
8 January 25, 2016 Office Action pp. 16-17.
9 January 25, 2016 Office Action pp. 18-19.
10 August 16, 2016 Office Action p. 3.
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essentially an infrared sensor that is sensitive to changes in temperature as small as
0.1 degree.”11
This evidence demonstrates that gas sensors are a component of gas detection
systems and that in some cases gas detectors and gas sensors may be synonymous
terms for goods that perform essentially the same function, namely, detecting toxic
gases and indicating hazardous conditions from those gases. Thus, the respective
goods have overlapping, if not interchangeable, functions and purposes.
Applicant argues that its goods and the Registrant’s goods are used for different
purposes since Applicant’s goods are for use with gas drilling rigs while Registrant’s
goods are gas sensors for general use. Applicant also argues that its goods are being
sold in different channels of trade.
As our primary reviewing court has often stated, the question of likelihood of
confusion is determined on the basis of the identification of goods set forth in the
application and registration, without limitations or restrictions as to the actual
nature of the goods, their channels of trade and/or classes of purchasers that are not
reflected therein. See Octocom Systems Inc. v. Houston Computers Services Inc., 918
F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In this case, Applicant has
read impermissible limitations into the registration as there are no limitations on the
use or purpose of Registrant’s gas sensors in the identification of goods. Similarly,
there are no limitations on the channels of trade in the registration or on the classes
of purchasers. Nor do we find anything inherent in the nature of Registrant’s gas

11 August 16, 2016 Office Action pp. 7-8.
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sensors which would limit those goods to particular types of purchasers. Thus, we
must presume that the channels of trade for the respective goods are the same and
further, that the goods are offered to all potential purchasers. We find these du Pont
factors favor a finding of likelihood of confusion.
C. The conditions under which and buyers to whom sales are made.
Turning to the du Pont factor focusing on the conditions under which and buyers
to whom sales are made, Applicant argues that the purchasers of the respective goods
are sophisticated and knowledgeable purchasers who would exercise care in their
purchasing decisions since the goods are “required to be special ordered,” customized
to the rig, and the goods deal with “life and death” if gases are not properly sensed on
a rig.12 Although there is no evidence in the record to suggest any special degree of
sophistication among purchasers of Applicant’s goods and services, given the nature
of the goods, it is clear that purchasers of Applicant’s goods are knowledgeable.
However, even assuming that Applicant’s and Registrant’s goods may involve a
careful purchase, it is well-settled that even careful or sophisticated purchasers who
are knowledgeable as to the goods are not necessarily knowledgeable in the field of
trademarks or immune to source confusion arising from the use of confusingly similar
marks on or in connection with goods. See In re Research Trading Corp., 793 F.2d
1276, 230 USPQ 49, 50 (Fed. Cir. 1986) citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human

12 7 TTABVUE 4.
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memories even of discriminating purchasers … are not infallible.”). We find that the
similarity between the marks and the goods outweighs any presumed sophisticated
purchasing decision. See HRL Associates, Inc. v. Weiss Associates, Inc., 12 USPQ2d
1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL Associates, Inc., 902 F.2d 1546,
14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh
sophisticated purchasers, careful purchasing decision, and expensive goods).
Accordingly, this du Pont factor is neutral.
After careful consideration of the record evidence and arguments, in view of the
applicable du Pont factors, we conclude that Applicant’s mark RIG GUARD is likely
to cause confusion with the cited registration for the mark RIGUARD under Section
2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s mark is affirmed.