T.F. & J.H. Braime (Holdings) Plc.

Trademark Trial and Appeal Board

Dec 1, 2015

No. 86119248 (T.T.A.B. Dec. 1, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: December 1, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re T.F. & J.H. Braime (Holdings) Plc.
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Serial No. 86119248
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R. Scott Kimsey of Klein, Denatale, Goldner,
for T.F. & J.H. Braime (Holdings) Plc.
Kelley L. Wells, Trademark Examining Attorney, Law Office 118,
Thomas G. Howell, Managing Attorney.
_____

Before Quinn, Cataldo and Lykos,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
T.F. & J.H. Braime (Holdings) Plc (“Applicant”) seeks registration on the
Principal Register of the mark JUMBO (in standard characters) for
Motors and engines except for land vehicles; parts of engines and
motors, namely, pumps and compressors; machine coupling and
transmission components except for land vehicles; belts for machines;
lift belts; power transmission belts for machines; loading belts for
machines; engine belts; components for material handling machines;
elevator buckets; elevator belting; elevator belting splices; forged
conveyor chains; flights for conveyor chains, namely, guides and
guards; sprockets for chain conveyors; bucket elevator parts, namely,
stackable buckets; elevator parts namely, shaft mounting assembly for
rotational sensor, namely, an assembly for mounting a rotational
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sensor to an end of a rotating shaft whereby the position of the sensor
is maintained stationary relative to a cooperating rotating spindle of
the assembly, for use in sensing rotational movement in elevators;
conveyors; conveying chains for conveyors; drive chains for conveyors;
elevator chains, being parts of machines; lift chains, being parts of
machines; sprockets for machines; apparatus for raising and lowering
trailers; belting for machines; conveyor belting; conveyor and elevator
machinery and component parts for movement of commodities,
minerals, food/food products, farm produce, harvests, grain and goods
on conveyors or elevators; with the exception that none of the
aforementioned goods relates to use of a vacuum for lifting or gripping
loads

in International Class 7; and
Level indicators; electric sensors; safety and monitoring apparatus and
instruments, namely, smoke sensors, dust sensors, speed sensors, and
load sensors; electric bearing sensors; electric pulley alignment
sensors; electric motion alignment sensors; machine bearing
temperature monitors; conveyor belt alignment apparatus and
instruments; electric safety switches; alarms; junction boxes; electric
inductive sensors; electric speed switches; fire-extinguishing
apparatus; computer hardware and firmware; computer software for
control of conveyor machinery and/or elevators; software downloadable
from the Internet for control and remote monitoring of conveyor
machinery and/or elevators; electronic and electrical sensors and
controls for shaft speed sensing, belt alignment sensing, bearing
temperature sensing, material level sensing, process temperature
sensing for use with elevators and/or conveyor machinery; current
collectors, namely, photovoltaic cells, for machines or trailers;
apparatus, instruments, indicators and controllers for speed and/or
load and/or temperature control of elevators and conveyors,
particularly for movement of commodities, minerals, food/food
products, farm produce, harvests, grain and goods; with the exception
that none of the aforementioned goods relates to use of a vacuum for
lifting or gripping loads

in International Class 9.1

1 Application Serial No. 86119248 was filed on November 14, 2013, under Section 44(e) of
the Trademark Act, based upon Applicant’s ownership of United Kingdom Registration No.
UK0003005850, issued on October 18, 2103.
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The Trademark Examining Attorney has refused registration of Applicant’s
mark as to both classes of goods under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based upon Registration No. 2632021 for the mark JUMBO (in typed or
standard characters)2 for
Mechanically and manually actuated transport and handling machines
for lifting or gripping of loads with the aid of vacuum, namely, vacuum-
tube lifters, lifting hoists, handling balance’s [sic] and replacement
parts therefor, namely, vacuum pumps, flowers, ejectors, suction pads,
check valves, flow resistors, pressure and vacuum switches, non-return
valves, swivel connectors, vacuum hoses, bellows, vacuum pumps and
blowers, vacuum reservoirs, mechanical vacuum seals, filters,
mechanically operated valves, sectional beams for pneumatic or
vacuum lines, hose connectors and rotary connectors, mounting
elements and connectors for plungers for suction pads

in International Class 7.3
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We reverse the refusal to register as to both classes.
I. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.

2 Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R. § 2.52, was amended to
replace the term “typed” drawing with “standard character” drawing. A mark depicted as a
typed drawing is the legal equivalent of a standard character mark.

3 Registration No. 2632021 issued on October 8, 2002. Section 8 affidavit accepted; Section
15 affidavit acknowledged. First renewal.
Serial No. 86119248
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2003). We discuss the du Pont factors for which Applicant and the Examining
Attorney have presented evidence and arguments.
Similarities and Dissimilarities of the Marks
Regarding the first factor, the similarity of the marks, there is no dispute but
that the marks are identical. The fact that the marks are identical results in this
factor strongly supporting the Examining Attorney’s position. In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“Without a doubt the word
portion of the two marks are identical, have the same connotation, and give the
same commercial impression. The identity of the words, connotation, and
commercial impression weighs heavily against the applicant.”). Furthermore, “even
when goods or services are not competitive or intrinsically related, the use of
identical marks can lead to an assumption that there is a common source.” Id. at
1689.
Relationship of the Goods
The Examining Attorney correctly observes in her brief that where the marks at
issue are identical, as is the case herein, the respective goods “need not be as close
to support a finding of likelihood of confusion as might apply where differences exist
between the marks.” In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001);
Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70, 78 (TTAB 1981). See also
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992), cert. denied, 506 U.S. 1034 (1994).
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We turn then to the du Pont factor involving the similarity or dissimilarity of
Applicant’s goods and Registrant’s goods. It is settled that in making our
determination, we must look to the goods as identified in the application vis-à-vis
those recited in the cited registration. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). It is
not necessary that the respective goods be competitive, or even that they move in
the same channels of trade to support a holding of likelihood of confusion. It is
sufficient that the respective goods are related in some manner, or that the
conditions and activities surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under circumstances that could
give rise to the mistaken belief that they originate from the same producer. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713,
1722 (Fed. Cir. 2012); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Nonetheless, it is the Examining Attorney’s burden to establish that the
involved goods are related to support a finding of likelihood of confusion. See, e.g., In
re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (finding Office
had failed to establish that wine and vodka infused with caffeine are related goods).
Evidence of relatedness may include news articles and/or evidence from computer
databases showing that the relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant goods are advertised together
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or sold by the same manufacturer or dealer; and/or copies of prior use-based third-
party registrations of marks listing both goods of the type identified in the
applicant’s application and the cited registration. See, e.g., In re Davia, 110 USPQ2d
1810, 1817 (TTAB 2014).
Applicant acknowledges that “the goods of both Appellant and Registrant are
used in industrial settings.”4 Applicant further argues that
Here, the goods of Appellant and Registrant are different, in that the
Registrant’s goods are all for vacuum-assist technology and equipment,
whereas the Appellant’s identification of goods and services explicitly
exclude vacuum-assist and related goods.5

None of the goods and services shown in connection with the
Registrant’s JUMBO mark are [sic] for other than use with vacuum-
related equipment, for which Appellant specifically makes an exception
in its description of goods and services. None of Appellant’s goods
constitute a machine using vacuum assist.6

Applicant’s argument reflects a misunderstanding of the second du Pont factor
analysis. The language “with the exception that none of the aforementioned goods
relates to use of a vacuum for lifting or gripping loads” is precatory language, and
not binding on consumers when they encounter Applicant’s mark. See In re
I.Am.Symbolic, LLC, 116 USPQ2d 1406, 1410 (TTAB 2015). Cf. M2 Software Inc. v.
M2 Communications Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (based
on restrictions to specific industries in both of the identifications of goods in
Opposer’s registration and Applicant’s application, the goods are unrelated and

4 7 TTABVUE 7.
5 Id.
6 Id.
Serial No. 86119248
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travel in different trade channels to different purchasers) (emphasis added).
Purchasers are unlikely to know of the assertion in a registration issued to
Applicant that Applicant’s goods are limited to those excluding vacuum assist.
Accordingly, although the subject application’s identification of goods specifically
excludes the mechanism by which Registrant’s goods function, i.e., “use of a vacuum
for lifting or gripping loads,” this will not prevent confusion because consumers will
not be aware of the existence of this exclusionary language in the application. The
question is whether the goods are sufficiently related such that, if identical marks
are used thereon, consumers will believe that the products emanate from a single
source. Thus, the exclusionary language adopted by Applicant is insufficient to
traverse a finding that the goods are related.
Furthermore, while the burden is upon the Examining Attorney to show a
relatedness of the goods in both Class 7 and Class 9 identified in the involved
application, it is not necessary for the Examining Attorney to prove likelihood of
confusion with respect to each of the goods identified in each class of Applicant’s
application; if there is likelihood of confusion with respect to any of Applicant’s
identified goods in a particular class, the refusal of registration must be affirmed as
to all goods in that class. See Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
The Examining Attorney argues
The identification of goods and the evidence of record show that the
goods of both parties are used for the transport and handling of
products. The applicant’s goods and the registrant’s goods are both for
industrial use. The applicant’s goods include conveyor systems,
Serial No. 86119248
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conveyor system components and goods used in association with
conveyor systems. The evidence of record shows that registrant’s goods
could be used in concert with conveyor systems.7

In support of the refusal to register, the Examining Attorney introduced into the
record printed copies of advertisements from Registrant’s Internet website for goods
under various marks, used for a variety of automation, handling and clamping
purposes.8 The portion of the Examining Attorney’s evidence discussing goods under
Registrant’s JUMBO mark is reproduced below.9

7 9 TTABVUE 8.
8 September 30, 2014 Office Action at 6-11.
9 Id. at 7.
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The remaining portions of Registrant’s webpage that were made of record by the
Examining Attorney discuss goods under other designations not pertinent to the
instant refusal to register.10 In addition, the Examining Attorney introduced into
the record advertisements from the Internet website of a company named 4B
Components, Ltd, and also mentions companies named 4B Group and 4B USA –
North & South America.11 These advertisements discuss a product called JUMBO
CC-S, a heavy-duty plastic agricultural and industrial elevator bucket, used to lift
and move grains, feed, fertilizer and other rough or abrasive materials. However,
the record is silent as to the nature of the relationship between 4B Components,
Ltd. or the other entities mentioned on the advertisements and Applicant. As a
result, we can give this evidence little, if any, probative weight.
As identified, Registrant’s goods are transport and handling machines utilizing
vacuum technology to lift and grip loads, and replacement parts therefor.
Applicant’s goods in Class 7 include motors, engines, pumps, conveyors and
elevators, the latter used “for movement of commodities, minerals, food/food
products, farm produce, harvests, grain and goods on conveyors or elevators.”
Applicant’s goods in Class 9 include various sensors, computer and electronic
devices used with Applicant’s Class 7 goods.
The Examining Attorney argues that both Applicant’s goods and Registrant’s
goods are for industrial use and are related to the extent they are used to handle

10 These include JumboFlex, JumboFlex 50, VacuMaster, FXP, FMP, SBX, SPZ, SSP and
VEE.
11 Id. at 12-13.
Serial No. 86119248
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and transport products. We first note Applicant’s acknowledgment that its goods
and those of Registrant are used for industrial purposes is insufficient to support a
finding that their goods are related inasmuch as the term “industrial use” does not
appear in either identification of goods and is a very broad term that includes
widely disparate industries that may not be related to one another.
The evidence reproduced above indicates that Registrant’s goods under the
JUMBO mark are used to lift and handle workpieces using vacuum technology. No
definition of “workpieces” is of record; therefore we hereby take judicial notice of the
following definition of “workpiece” – a piece of work being machined.12 Thus, it
appears that Registrant’s goods are used to lift and move items being machined in
manufacturing processes. However, this definition does not provide any additional
explanation of a possible relationship between the goods that is not provided by
their respective identifications. Furthermore, the evidence does not support the
Examining Attorney’s contention that Registrant’s goods under its JUMBO mark
utilize conveyors or otherwise may be used in concert therewith.13 As such, the very
limited record before us fails to establish a relationship between Registrant’s goods
and those identified in either Class 7 or 9 of the involved application.

12 Dictionary.com Unabridged, based upon the Random House Dictionary, (2015).
The Board may take judicial notice of dictionary definitions, including online dictionaries
which exist in printed format. See In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014); In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002). See
also University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ
594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
13 The evidence of record does suggest that certain of Registrant’s goods identified by
designations or marks other than JUMBO may utilize conveyors or be used in connection
therewith.
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Turning to the identifications themselves, we note that Applicant’s goods in
Class 7 include “components for material handling machines” and “conveyor and
elevator machinery and component parts for movement of commodities, minerals,
food/food products, farm produce, harvests, grain and goods on conveyors or
elevators.” There may be some relationship between these goods in Class 7 and
Registrant’s “mechanically and manually actuated transport and handling
machines for lifting or gripping of loads with the aid of vacuum” to the extent that
both may be used to move various items. However, on this sparse record we have
insufficient evidence to support a finding that these goods are related. Similarly,
there is no evidence that Applicant’s sensors, computer software or other Class 9
products are related to Registrant’s goods, nor are they related as identified. As a
result, this du Pont factor supports a finding of no likelihood of confusion.
Channels of Trade and Classes of Purchasers
As discussed above, there is insufficient evidence that Applicant’s goods in Class
7 and 9 are related to the goods identified in the cited registration. Similarly, there
is no evidence that these goods travel in the same channels of trade or may be
purchased by the same classes of purchasers. This du Pont factor also supports a
finding of no likelihood of confusion.
Sophistication of Purchasers
Applicant argues that
The difference between vacuum-assisted movement/transport and
movement/transport not assisted by vacuum is a difference that is
readily appreciated by sophisticated industrial purchasers in the
marketplace. Purchasing agents in the industry are well aware of
Serial No. 86119248
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differences among the various pieces of equipment that they buy, and
they exercise care in making purchasing decisions. Purchasers seeking
vacuum-assisted devices will not confuse the present goods with those
types of devices, and will not be confused as to the source of the
vacuum and non-vacuum materials. When ordering replacement parts
for machinery, purchasers are once again sophisticated and well aware
of which parts will or will not work with their machinery, the source of
those parts, and distinctions between sources.14

Even if we accept, in considering the fourth du Pont factor, Applicant’s assertion
that the involved goods may be the subjects of sophisticated purchases, careful
purchasers nonetheless may be confused by identical marks. As stated by our
primary reviewing court, “[t]hat the relevant class of buyers may exercise care does
not necessarily impose on that class the responsibility of distinguishing between
similar trademarks for similar goods. ‘Human memories even of discriminating
purchasers ... are not infallible.’” In re Research and Trading Corp., 793 F.2d 1276,
230 USPQ 49, 50 (Fed. Cir. 1986) (quoting Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)).
Therefore, the fact that the purchasers may exercise care before purchasing these
goods does not mean there can be no likelihood of confusion. We note the absence of
evidence on this point. Nonetheless, the goods as identified include motors, sensors,
material handling and transport equipment used for various industrial applications.
Thus, based solely upon the respective identifications of goods, we find these goods
may be subject to careful purchase by sophisticated consumers. As such, this du
Pont factor weighs somewhat in favor of a finding of no likelihood of confusion.

14 7 TTABVUE 7.
Serial No. 86119248
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Conclusion
We have considered all of the du Pont factors for which Applicant and the
Examining Attorney have introduced evidence and arguments. The rest we treat as
neutral. After considering all of the evidence of record, including any evidence not
specifically discussed herein, and arguments pertaining to the du Pont likelihood of
confusion factors, we find the marks are identical; however, there is no evidence
that the goods or their channels of trade and classes of consumers are related.
Further, as identified the goods would involve careful purchase made by purchasers
sophisticated in their fields. In view thereof, we find that Applicant’s mark, if used
in association with the goods identified in the application, is not likely to cause
confusion with the registered mark used in connection with the goods recited in the
registration.15
Decision: The refusal to register Applicant’s mark is reversed.

15 We observe, nonetheless, that on a different record, such as may be adduced in an inter
partes proceeding, we may come to a different result.