Thermal Engineering Corporationv.Rec Tec Industries, LLC

Trademark Trial and Appeal Board

Jan 9, 2019

91225798 (T.T.A.B. Jan. 9, 2019)

Mailed: January 9, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Thermal Engineering Corporation
v.
Rec Tec Industries, LLC
_____

Opposition No. 91225798
_____

B. Craig Killough and John William Fletcher of Barnwell Whaley Patterson & Helms,
LLC, for Thermal Engineering Corporation.

James H. Johnson, Christopher J. Chan, and Ann G. Fort of Eversheds Sutherland
(US) LLP, for Rec Tec Industries, LLC.
_____

Before Zervas, Greenbaum, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Rec Tec Industries, LLC seeks registration on the Principal Register of
the mark REC TEC GRILLS, in standard characters and with “TEC GRILLS”
disclaimed, for the following goods:
• Wood pellets being fuel, in International Class 4;
• Barbecue grills and grilling accessories, namely,
searing grates, grill covers, and customized shelving
to be attached to grills, in International Class 11;
and
This Opinion Is Not a
Precedent of the TTAB
Opposition No. 91225798
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• Non-stick grilling mats made of fiberglass-coated
mesh, in International Class 27.1
Thermal Engineering Corporation (“Opposer”) opposes registration, asserting
priority and a likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d). Opposer pleaded the following three registrations in its Amended Notice of
Opposition (5 TTABVUE):
• TEC (in standard characters)2 and 3 for
“Barbecue grills; Outdoor cookers for curing and cooking food;
Radiant burner units for stoves, ovens and heaters; Commercial
cooking, baking, curing and drying ovens; Grill accessories,
namely, rotisseries, deep fryers for use with grills, steamers for
use with grills, smokers for use with grills and griddles for use
with grills,” in International Class 11; and
• for “radiant burner units for stoves and
heaters” in International Classes 7 and 11.4
Applicant denied the salient allegations in the notice of opposition.
I. Evidentiary Objections
Applicant submits with its brief three separate appendices, totaling 60 pages with
exhibits, moving to strike all of Opposer’s rebuttal evidence as improper rebuttal (or
alternatively, portions of the rebuttal testimony), and certain witnesses and all

1 Application Serial No. 86413280 was filed October 2, 2014, alleging first use anywhere and
in commerce as of May 6, 2009 pursuant to Trademark Act Section 1(a), 15 U.S.C. § 1051(a).
2 Registration No. 5010811, issued August 2, 2016.
3 Registration No. 4976468, issued June 14, 2016. The description of the mark states: “The
mark consists of capital letters ‘TEC’ with a vertical line to the left of the capital letters and
a horizontal line underneath the capital letters with a zig zag line on top of the horizontal
line.” Color is not claimed as a feature of the mark.
4 Registration No. 750564, issued June 4, 1963; renewed multiple times.
Opposition No. 91225798
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testimony regarding actual confusion for failure to disclose during discovery. 35
TTABVUE 53-113. Opposer opposes the motions. 38-39 TTABVUE.
After careful consideration, we deny the motions to strike. Although we have not
relied on any of Opposer’s rebuttal evidence in reaching our decision, it specifically
pertains to evidence submitted by Applicant and so does not constitute improper
rebuttal. With respect to the actual confusion testimony, all of Opposer’s witnesses
were identified during discovery as having information about confusion: three in
Opposer’s initial disclosures (W.H. “Bill” Best, Rachael Best, and Greig McCully, 35
TTABVUE 69-70) and three more (Christopher Meikrantz, Joseph Kearse, and
Edward Scarborough) in Opposer’s second supplemental answer to Applicant’s
Interrogatory No. 26, 39 TTABVUE 20-22, which Applicant does not address.5 All of
Opposer’s witnesses also were disclosed in Opposer’s pretrial disclosures, see 35
TTABVUE 101-04, but none was disclosed for the first time there. Although Opposer
did not supplement its initial disclosures as required, its trial witnesses and the
subject of their testimony all were disclosed during discovery. Cf., e.g., Galaxy Metal
Gear Inc. v. Direct Access Tech. Inc., 91 USPQ2d 1859, 1861-62 (TTAB 2009)
(admitting discovery deposition but noting that better practice is to supplement
initial disclosures). We therefore consider Opposer’s testimony for whatever
probative value it may have.

5 “Identify each person who has any personal knowledge of any facts tending to support or
rebut any of your claims and allegations in this proceeding, including a description of each
person’s area of knowledge.” 39 TTABVUE 20. Discovery closed on Sunday, March 12, 2017,
and the response was timely served by email on Monday, March 13, 2017.
Opposition No. 91225798
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II. Record
The record consists of the pleadings and, without any action by the parties, the
file of the involved application. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).
The record also comprises the evidence summarized below.
A. Opposer’s Evidence
Opposer made its three pleaded registrations of record pursuant to Trademark
Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1), by submitting them via current printouts
from the USPTO’s Trademark Electronic Search System (TESS) database attached
to the Amended Notice of Opposition, 5 TTABVUE 11-13.6 In addition, Opposer filed
an Amended Notice of Reliance on the following evidence:7
• Applicant’s responses to Opposer’s interrogatories and admissions in
response to certain requests for admission (Exhibits E and G, 19 TTABVUE
22-74).8
• Internet printouts from Opposer’s website (Exhibit I,19 TTABVUE 76-77)
and third-party sites selling and reviewing barbecue grills (Exhibits J-M,
19 TTABVUE 78-111).
• TESS printouts of third-party registrations consisting of or comprising TEC
(Exhibit N, 19 TTABVUE 112-82).
Opposer also submitted testimony declarations from the following witnesses:
• W.H. “Bill” Best, a shareholder and officer of Opposer, with Exhibits A-X
(11 TTABVUE) and Exhibit Y, designated confidential (12 TTABVUE).

6 It was unnecessary for Opposer to resubmit printouts of the subject application and its
registrations by notice of reliance.
7 Opposer submitted the Amended Notice of Reliance in response to Applicant’s motion to
strike its original notice, and the Board accepted the amended notice. 20 TTABVUE.
8 Denials of requests for admission cannot be submitted by notice of reliance. Trademark Rule
2.120(k)(3), 37 C.F.R. § 2.120(k)(3); see also, e.g., Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118
USPQ2d 1392, 1395 n.9 (TTAB 2016).
Opposition No. 91225798
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• Christopher Meikrantz, general manager of Fireside Outdoor Kitchens &
Grills, which sells Opposer’s grills (13 TTABVUE).
• Joseph Kearse, who has worked for Opposer and operates a business selling
Opposer’s grills online, with Exhibits A-B (14 TTABVUE).9
• Greig McCully, an owner of Fireside Outdoor Kitchens & Grills (15
TTABVUE).
• Edward Scarborough, a former employee of Applicant now in sales for
Fireside Outdoor Kitchens & Grills (16 TTABVUE).
Opposer filed as rebuttal evidence a Second Notice of Reliance on printouts from
eBay.com (Exhibit P, 33 TTABVUE 9-19). Opposer also submitted rebuttal
declarations from Rachael Kearse Best, Opposer’s co-owner (29 TTABVUE);
Mr. McCully (31 TTABVUE); Mr. Best (30 TTABVUE), with Exhibit O; and
Mr. Kearse, with Exhibits Q and R (32 TTABVUE).
B. Applicant’s Evidence
Applicant submitted six Notices of Reliance on the following documents:
• TESS printouts and copies of certificates of third-party registrations
consisting of or comprising TEC, TEK, or TECH (Notice of Reliance A, 21
TTABVUE).
• Internet printouts showing third-party use of TEC-, TEK-, and TECH-
formative marks (Notice of Reliance B, 22 TTABVUE).
• Internet printouts of definitions and examples of use of the term “tech”
(Notice of Reliance C, 23 TTABVUE).
• Internet printouts from the websites of the parties and third parties (Notice
of Reliance D, 24 TTABVUE).
• Printouts of TESS search results (Notice of Reliance E, 25 TTABVUE).
• Opposer’s responses to certain of Applicant’s interrogatories and
admissions to requests for admission (Notice of Reliance F, 26 TTABVUE).

9 Applicant’s co-owner Ronald L. Cundy testified that Ms. Best is Mr. Kearse’s sister and
Mr. Best is Mr. Kearse’s brother-in-law. Cundy Dec. at ¶ 45, 27 TTABVUE 11-12.
Opposition No. 91225798
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Applicant also submitted testimony declarations from its co-owners Ronald L. Cundy
(27 TTABVUE), with Exhibits 1-15, and Raymond E. Carnes (28 TTABVUE).
III. Opposer’s Standing and Priority
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); see also, e.g., Bell’s Brewery, Inc. v. Innovation
Brewing, 125 USPQ2d 1340, 1344 (TTAB 2017). Opposer’s standing to oppose
registration of Applicant’s mark is established by its pleaded registrations, which the
record shows to be valid and subsisting, and owned by Opposer. See, e.g.,
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000); N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501
(TTAB 2015). Also, priority is not at issue with respect to the marks and goods
identified in Opposer’s pleaded registrations, which are of record.
Because Opposer has established its standing and priority as to its pleaded marks,
we turn to the question of likelihood of confusion.
IV. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). Opposer bears the burden of proving its claim of
Opposition No. 91225798
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likelihood of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d
at 1848.10
We focus our likelihood of confusion analysis on Opposer’s pleaded mark TEC in
standard characters, Registration No. 5010811. If we find that there is a likelihood of
confusion between this mark and Applicant’s mark, there is no need for us to consider
the likelihood of confusion with Opposer’s other pleaded marks. Conversely, if we find
there is no likelihood of confusion with this mark, we would find no likelihood of
confusion with Opposer’s other pleaded marks. See In re Max Capital Grp. Ltd., 93
USPQ2d 1243, 1245 (TTAB 2010).
Although registration is opposed as to all applied-for goods, Opposer did not
address the goods identified in International Class 4 (“wood pellets being fuel”) at all
and has not met its burden to prove by a preponderance of the evidence that confusion
is likely as to those goods. We dismiss the opposition as to the Class 4 goods.
We proceed to consider the goods in the application identified in International
Classes 11 and 27, that is, “barbecue grills and grilling accessories, namely, searing
grates, grill covers, and customized shelving to be attached to grills” and “non-stick
grilling mats made of fiberglass-coated mesh.” We address in turn each of the du Pont
factors bearing on our decision for which the parties submitted evidence or argument.

10 Applicant asserted numerous affirmative defenses in its amended answer but, because they
were not pursued at trial, they are waived. See, e.g., Tao Licensing, LLC v. Bender Consulting
Ltd., 125 USPQ2d 1043, 1046 (TTAB 2017).
Opposition No. 91225798
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A. Similarity of the Goods, Customers, and Channels of Trade
We begin with the second and third du Pont factors, assessing the similarity or
dissimilarity of the parties’ goods and their trade channels. Our decision must be
based on the identification of goods in the pleaded registration and subject
application. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1162 (Fed. Cir. 2014). That is because the goods recited in an
application determine the scope of the benefit of registration. Id. A likelihood of
confusion may be found with respect to a particular class based on any item within
the identification for that class. Bond v. Taylor, 119 USPQ2d 1049, 1052-53 (TTAB
2016).
Both the subject application and Opposer’s Registration No. 5010811 identify the
identical goods “barbecue grills” in International Class 11. With respect to the goods
in International Class 27, Opposer argued that “non-stick grilling mats made of
fiberglass-coated mesh” are “closely related, if not also legally identical, to goods in
Opposer’s registrations and to goods sold in commerce by Opposer under the TEC
trademark,”11 but cited no supporting evidence of relatedness. Opposer’s Brief at 7,
34 TTABVUE 13. Although Applicant did not dispute Opposer’s assertion, its
Class 27 goods are not legally identical to Opposer’s identified goods.12 Nor do they
“fall within the scope of Opposer’s grill accessories, namely, rotisseries, deep fryers
for use with grills, steamers for use with grills, smokers for use with grills and

11 Opposer relied on its registrations and did not plead common-law rights in the TEC mark.
12 The presumptions that apply to identical goods are discussed more fully below.
Opposition No. 91225798
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griddles for use with grills.” Id. Nonetheless, we find that Applicant’s grilling mats
are inherently closely related and complementary to barbecue grills.
Because Applicant’s goods and the goods identified in Opposer’s registration are
identical in part, we must presume that those goods – i.e., “barbecue grills” – move in
the same channels of trade and are available to the same classes of customers. See In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Harry
Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1437 (TTAB 2014).
The second and third du Pont factors weigh heavily in support of a finding that
confusion is likely, and Applicant does not argue otherwise.
B. Strength of Opposer’s Mark
The fifth du Pont factor is the fame of the prior mark, and the sixth factor is the
number and nature of similar marks in use for similar goods or services. They
determine the strength of Opposer’s mark. In determining strength of a mark, we
consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive,
LLC, 110 USPQ2d 1458, 1476 (TTAB 2014); see also In re Chippendales USA Inc.,
622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is
measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”).
1. Conceptual and Commercial Strength
Opposer’s mark TEC, derived from Thermal Engineering Corporation, has been
used on barbecue grills for 35 years, as discussed below. Opposer also asserts that its
mark is famous. A famous mark has extensive public recognition and renown. Bose
Opposition No. 91225798
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Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir.
2002); Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d
1453, 1456 (Fed. Cir. 1992).
Fame may be measured indirectly by the volume of sales of and advertising
expenditures for the goods identified by the mark at issue, “the length of time those
indicia of commercial awareness have been evident,” widespread critical assessments
and notice by independent sources of the products identified by the marks, as well as
the general reputation of the products. Bose, 63 USPQ2d at 1305-06, 1309. Raw
numbers alone may be misleading, however. Thus, some context in which to place
raw statistics may be necessary, for example, market share or sales or advertising
figures for comparable types of goods. Bose, 63 USPQ2d at 1309; see also Omaha
Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686,
1690 (Fed. Cir. 2018) (“Market share is but one way of contextualizing ad
expenditures or sales figures.”). Because of the extreme deference that we accord a
famous mark in terms of the wide latitude of legal protection it receives, and the
dominant role fame plays in the likelihood of confusion analysis, it is the duty of the
party asserting that its mark is famous to clearly prove it. Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012).
Opposer submitted evidence that it has used the mark TEC in association with
barbeque grills since at least 1983. Declaration of W.H. “Bill” Best at 3 ¶ 12, 11
TTABVUE 4. Although Opposer provided no information regarding its sales,
advertising, or market share, it did submit evidence of critical assessment and media
coverage. This includes:
Opposition No. 91225798
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• The May 2004 edition of “SmartMoney” magazine positively reviewed and
gave a “SmartMoney Award” to a TEC grill. Best Dec. at 7 ¶ 30 & Exhibit
S, 11 TTABVUE 8, 49-50;
• Hearth and Home Magazine’s 2005 Vesta awards for “Best New Gas
Barbeque” and “Best in Show for Outdoor Room Products.” Id. at 7 ¶ 31, 11
TTABVUE 8;
• The National Restaurant Association’s 2006 “Kitchen Innovations Award.”
Id. at 7 ¶ 32 & Exhibit U, 11 TTABVUE 8, 52;
• In June 2006, the show “Modern Marvels” aired an interview with Mr. Best
regarding barbeque grills and barbequing for a program titled “BBQ
Tech.”13 Id. at 6-7 ¶ 29 & Exhibit R, 11 TTABVUE 7-8, 48;
• A “Popular Science Magazine” article in July 2006 featured a TEC grill. Id.
at 7 ¶ 33 & Exhibit V, 11 TTABVUE 8, 53; and
• Mr. Best was interviewed in a September 2008 article from “Casual Living”
magazine titled “Grill innovator never gives up.” Id. at 7 ¶ 34 & Exhibit W,
11 TTABVUE 8, 54-55.
In the likelihood of confusion analysis, fame varies along a spectrum from very
strong to very weak. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857
F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). The Board generally considers
evidence related to fame of a mark up to the time of trial. See, e.g., ProMark Brands
Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1250 (TTAB 2015). Here, however, the
evidence on which Opposer relies to support its assertion of fame is all at least a
decade old, raising a question as to current strength, particularly in the absence of
any sales or advertising data. Cf., e.g., Harry Winston, 111 USPQ2d at 1438-40

13 In its brief, Applicant makes assertions regarding this program and lists links to the
History Channel and YouTube webpages. Applicant’s Brief at 18 n.2, 35 TTABVUE 26. Links
are insufficient to make Internet materials of record. In order for the Board to consider the
content of this program, it would need to be submitted on CD-ROM or DVD. See, e.g., In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1195 n.21 (TTAB 2018); Hunter Indus., Inc.
v. Toro Co., 110 USPQ2d 1651, 654-55 (TTAB 2014); Trademark Trial and Appeal Board
Manual of Procedure (TBMP) § 106.03 (2018).
Opposition No. 91225798
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(finding HARRY WINSTON famous for jewelry on evidence including “‘sales in the
billions, advertising and marketing expenditures in the millions, and editorial
mentions valued in the millions over an eighty year period’”); Interlogo AG v.
Abrams/Gentile Entm’t Inc., 63 USPQ2d 1862, 1864 (TTAB 2002) (finding LEGO
famous for toys based on sales exceeding $1 billion and advertising exceeding $100
million, both over a 10-year period, and market studies demonstrating that two-
thirds of U.S. households with children aged 14 years and younger owned at least one
LEGO toy).
As for the conceptual strength of TEC in association with barbeque grills, Opposer
submitted testimony that “‘TEC’ is an acronym for Thermal Engineering Corporation,
the source of TEC grills.” Best Dec. at 3 ¶ 11, 11 TTABVUE 4. Nevertheless, evidence
submitted by both parties indicates that the phonetically identical term “tech” is used
descriptively in association with barbeque grills as a shorthand for “technology.” See
definitions of “tech” from Dictionary.com including the noun “technology,” Applicant’s
Notice of Reliance C, Exhibit C2, 23 TTABVUE 15 (based on the Random House
Dictionary (2017); Cundy Dec. at ¶ 7, 27 TTABVUE 3 (stating that Applicant chose
“TEC” as part of its corporate name “because it referred to the SMART GRILL
TECHNOLOGY incorporated in our grills and rhymed with ‘REC.’”). Indeed,
Applicant was required to disclaim “TECH GRILLS” as merely descriptive of its goods
during examination.14
Examples of media use of the phrase “BBQ tech” include the following excerpts:

14 January 23, 2015 Office Action.
Opposition No. 91225798
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• The “Modern Marvels” episode titled “BBQ Tech.” Best Dec. at 6-7 ¶ 29 &
Exhibit R, 11 TTABVUE 7-8, 48:

• An article on Maxim.com discussing “BBQ Tech.” Applicant’s Notice of
Reliance C, Exhibit C4, 23 TTABVUE 25-28:

Opposition No. 91225798
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• A page on the titanfireproducts.com website titled “Titanfire® BBQ Tech.”
Applicant’s Notice of Reliance C, Exhibit C7, 23 TTABVUE 45-46:

• An article on Gizmodo.com titled “Grill Like a God With the Best BBQ
Tech.” Applicant’s Notice of Reliance C, Exhibit C6, 23 TTABVUE 37-44.
We discuss this issue further in the next section.
2. Third-Party Registration and Use of Similar Marks
Third-party registrations may be relevant to show the sense in which a mark is
used in ordinary parlance; that is, an element common to both parties’ marks may
have a normally understood and well-recognized descriptive or suggestive meaning,
leading to the conclusion that that term is inherently relatively weak. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); see also In re Morinaga Nyugyo
Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (“[T]hird-party
registrations are relevant evidence of the inherent or conceptual strength of a mark
or term because they are probative of how terms are used in connection with the goods
Opposition No. 91225798
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or services identified in the registrations.”). Evidence of use of similar marks by third
parties for the same or similar goods, in turn, is relevant to a mark’s commercial
strength. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir.
2017); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1674 (Fed. Cir. 2015).
Here, the record demonstrates that TEC and similar formatives signifying
“technology” have a suggestive meaning in association with barbeque grills, as
discussed above. Applicant also argues that Opposer’s mark has been weakened and
diluted by third-party use of similar marks for barbecue grills and similar or related
goods. Applicant introduced evidence that third parties have both registered and used
marks incorporating TEC, TEK, and TECH in association with barbecue grills and
accessories. The more probative use-based third-party registrations are:15
Mark Registration No.
21 TTABVUE
Cite
Selected Class 11
Goods
BBQTEK 3340018 95-97 Barbecue grills
3521237 22-24
Barbecues; barbecue
grills
AURELIO TECH
(TECH disclaimed)
5009381 44-47, 113-16 Barbecues and grills
(TECH disclaimed)
5154820 52-55, 160-63 Barbecues

15 Pending applications are evidence only that they were filed; they are not evidence of use of
the marks. Therefore, they are omitted from this chart. See, e.g., WeaponX Performance
Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1042 n.21 (TTAB 2018).
Opposition No. 91225798
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With respect to use by third parties, Applicant submitted with its Notice of
Reliance B evidence of use online of TECH and TEK by third parties, not for barbecue
grills but for barbecue accessories, including the following:
• BBK Tek (see first registration in list above) for barbecue parts including
cooking grids, heat plates, and control knobs, Exhibit B5, 22 TTABVUE 21-
24 (from grillspot.com); Exhibit B6, 22 TTABVUE 25-34 (from ebay.com).
• GRILL TEK for barbecue accessories including, among others, grill fans,
brushes, and marinating trays, Exhibit B6, 22 TTABVUE 25-34 (from
ebay.com).
• INNOO TECH for barbecue accessories including grill mats and gloves,
Exhibit B7, 22 TTABVUE 35-61 (from innootech.com).
• ROASTER TECH INC. for a smokeless barbecue table, Exhibit B14, 22
TTAVUE 74-76 (from roastertech.com).
Applicant’s evidence “falls short of the ubiquitous or considerable use of the mark
components present in [applicant’s] cited cases.” In re i.am.symbolic, 123 USPQ2d at
1751 (quotations omitted); cf. Jack Wolfskin, 116 USPQ2d at 1136 (discussing
“voluminous evidence” of registration and use of paw print design elements); Juice
Generation, 115 USPQ2d at 1674 (referencing evidence of “a fair number” of third-
party uses). Nonetheless, we give this evidence probative weight as indicating that
formatives of TECH, TEK, and, in one instance, TEC (in the mark ) are
registered and used by third parties for barbecue grills and accessories.
3. Conclusion as to Strength
Considering the record as a whole, and particularly that Opposer provided no
information regarding its sales, advertising, or market share, we find that Opposer’s
TEC mark is not famous and entitled to only a limited scope of protection under the
Opposition No. 91225798
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fifth and sixth du Pont factors. But that is not to say that it merits no protection,
especially for identical and closely related goods:
Confusion is confusion. The likelihood thereof is to be
avoided, as much between “weak” marks as between
“strong” marks, or as between a “weak” and a “strong”
mark. Similarly, the statute, by providing remedies to
trademark owners, enables those owners to protect their
marks. It is through such owner-action that the public is
protected from confusion.
King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109
(CCPA 1974); see also Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163,
1173 (TTAB 2011) (“Nevertheless, we are mindful that even a weak mark is entitled
to protection against the registration of a very similar mark for closely related
goods.”); Anthony’s Pizza & Pasta Int’l Inc. v. Anthony’s Pizza Holding Co., 95
USPQ2d 1271, 1283 (TTAB 2009). Opposer remains entitled to the presumptions
flowing from its registration under Trademark Act Section 7(b), 15 U.S.C. § 1057(b).
C. Similarity of the Marks
In a likelihood of confusion analysis, we compare the marks in their entireties for
similarities and dissimilarities in appearance, sound, connotation and overall
commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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, 101 USPQ2d at 1721 (quotation omitted).
Opposition No. 91225798
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We bear in mind our findings regarding the limited strength of Opposer’s mark as
we turn to the first du Pont factor, the similarity of the parties’ marks. Yet we are
also mindful that where, as here, the marks are used in association with goods that
are identical in part, the degree of similarity between them necessary to support a
determination that confusion is likely declines. Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Opposer’s mark is TEC, while Applicant’s mark is REC TEC GRILLS, with TEC
GRILLS disclaimed. Because GRILLS is the generic name for both parties’ goods,
consumers are likely to focus on what we find to be the more distinctive portion of
Applicant’s mark, REC TEC; the word GRILLS in Applicant’s mark is entitled to very
little weight. Opposer’s entire mark TEC is the second term in Applicant’s mark. The
fact that Applicant has disclaimed TEC does not remove it from the mark or impact
consumer perception. Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565,
218 USPQ 390, 395 (Fed. Cir. 1983) (stating that “disclaimers are not helpful in
preventing likelihood of confusion in the mind of the consumer, because he is unaware
of their existence”); see also Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73
USPQ2d 1350 (Fed. Cir. 2004) (stating that disclaimed elements of a mark are
relevant to assessment of similarity “because confusion is evaluated from the
perspective of the purchasing public, which is not aware that certain words or phrases
have been disclaimed”); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed.
Cir. 1985) (“The public is unaware of what words have been disclaimed during
prosecution of the trademark application at the PTO.”).
Opposition No. 91225798
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While there is no rule that likelihood of confusion automatically applies where one
mark encompasses another, in this case, the fact that Applicant’s mark subsumes
Opposer’s entire mark increases the similarity between the two. See, e.g., Wella Corp.
v. Cal. Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA
CONCEPT marks substantially similar to prior mark CONCEPT); In re Toshiba Med.
Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (VANTAGE TITAN confusingly
similar to registered mark TITAN); In re Riddle, 225 USPQ 630, 632 (TTAB 1985)
(RICHARD PETTY’S ACCUTUNE for automotive service centers confusingly similar
to ACCU-TUNE).
We disagree with Applicant that its entire mark is unitary such that consumers
“will simply view TEC as the transitionary component of the three syllable REC TEC
GRILLS mark.” Applicant’s Brief at 20, 35 TTABVUE 28. Rather, it is at least as
likely that consumers familiar with Opposer’s prior use of its TEC mark in association
with barbecue grills will view REC TEC GRILLS as a variation or line extension of
Opposer’s goods when used with Applicant’s identical goods. In part, this is because
the first term in Applicant’s mark, REC, also has a descriptive or suggestive meaning
in association with barbecue grills which somewhat diminishes its impact: an
abbreviation for “recreation.”16 That the first two terms in Applicant’s mark rhyme
does not alter the significance of TEC in Applicant’s mark. Cf. In re Ginc UK Ltd., 90

16 See Dictionary.com (https://www.dictionary.com/browse/rec), based on the RANDOM HOUSE
UNABRIDGED DICTIONARY (2018). Nonetheless, like Opposer’s mark TEC, derived from its
corporate name, Applicant submitted testimony that REC was chosen to represent the names
of the founders’ children, Ross, Ella, and Colden. Cundy Dec. at ¶ 7, 27 TTABVUE 3.
Opposition No. 91225798
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USPQ2d 1472, 1477 (TTAB 2007) (finding that rhyming quality and visual similarity
of ZOGGS TOGGS “does not infuse TOGGS with any separate and distinct meaning”).
Applicant also argues that Opposer’s mark is pronounced “T-E-C.” See Applicant’s
Brief at 18, 35 TTABVUE 26. It does not affect our analysis whether Opposer’s mark
TEC is pronounced as a one-syllable acronym “TEC,” or as the initialism “T-E-C.”
“[T]here is no correct pronunciation of a trademark, and consumers may pronounce a
mark differently than intended by the brand owner.” Viterra, 101 USPQ2d at 1912.
Although there are differences between the marks in appearance and
pronunciation, we find them to convey similar meanings and overall commercial
impressions. Even according Opposer’s mark TEC only a narrow scope of protection,
considering the marks in their entireties, we find that persons encountering them
used on identical or closely related and complementary goods would be likely to
assume a connection between the parties. The first du Pont factor supports a finding
that confusion is likely.
D. Evidence of Actual Confusion
The parties vigorously dispute the seventh du Pont factor, the nature and extent
of any actual confusion. In our proceedings, “[a]ctual confusion is entitled to great
weight but only if properly proven.” Georgia-Pacific Corp. v. Great Plains Bag Co.,
614 F.2d 757, 204 USPQ 697, 701 (CCPA 1980). Properly introducing instances of
actual confusion into the record and persuading the trier of fact as to the probative
value of such evidence is Opposer’s burden. See Couch/Braunsdorf Affinity, 110
USPQ2d at 1479.
Opposition No. 91225798
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Opposer submitted evidence it contends shows that Applicant’s use of its mark
has created actual consumer confusion. In general terms, this evidence includes:
• Testimony of three witnesses employed by Fireside Outdoor Kitchens &
Grills in Augusta, Georgia, where Applicant is based: Christopher
Meikrantz, 13 TTABVUE; Greig McCully, who also is an owner of the store,
15 & 31 TTABVUE; and Edward Scarborough, 16 TTABVUE.17 This
retailer sells Opposer’s goods but not Applicant’s, which are sold directly to
consumers. Cundy Dec. at ¶¶ 23-24, 27 TTABVUE 7.
• Testimony from another witness, Joseph Kearse, who operates an online
business selling Opposer’s grills at tecgrillsonline.com. 14 & 32 TTABVUE.
• A non-party grill review post from the website outdoorigrill.com titled “Tec
Outdoor Grills” interspersed with images of Applicant’s goods as well as
Opposer’s. Best Dec. ¶ 15 & Exhibit D, 11 TTABVUE 5, 16-19; see also
Opposer’s Amended Notice of Reliance, Exhibit L, 19 TTABVUE 87-108.
1. Testimony of Grill Store Employees
We first address the testimony from the Fireside Outdoor Kitchens & Grills
employees. Each testified that they commonly encounter customer confusion based
on the word TEC in the parties’ marks. Examples of their testimony include:
• “Fireside Outdoor Kitchens & Grills sells many brands of grills. Customers
do not confuse TEC grills with any brand of grills other than REC TEC.
Consumers do not confuse REC TEC grills with any brand of grills other
than TEC.” McCully Dec. at ¶ 11, 15 TTABVUE 3.
• “On average, I would say that confusion is expressed by a customer about
four times a week.” Meikrantz Dec. at ¶ 12, 13 TTABVUE 4.
• “On substantially a daily basis, particularly during our busy times of year,
customers in our store express confusion between REC TEC grills and TEC
grills. Customers will examine TEC grills in our showroom and mention
that they have a friend or relative who has a REC TEC grill while we are
discussing TEC grills. Many consumers do not grasp that a TEC grill is not
the same as a REC TEC grill. This confusion arises due to the similar
branding of these grills.” McCully Dec. at ¶ 10, 15 TTABVUE 3.

17 Mr. Scarborough previously worked for, and apparently was fired by, Applicant. Cundy
Dec. at ¶ 40, 27 TTABVUE 10.
Opposition No. 91225798
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• “One common situation we experience at Fireside Outdoor Kitchens &
Grills is when the husband buys a REC TEC grill on-line, and the wife
comes into our store and says they have a TEC grill, and she wants to buy
accessories for the grill.” Meikrantz Dec. at ¶ 14, 13 TTABVUE 4.
• “On October 8, 2015, Fireside Outdoor Kitchens & Grills donated a TEC
grill to the Duck’s Unlimited Banquet in Augusta. When the auctioneer at
the charity banquet identified the grill prior to taking bids, he repeatedly
referred to the grill as a REC TEC grill.” McCully Dec. at ¶ 12, 15
TTABVUE 4.
• “On another occasion, Vera Kilpatrick, a television personality who
presents a cooking show that is syndicated on stations in the southeast, was
a guest presenter at a cooking demonstration held by Fireside Outdoor
Kitchens & Grills at their store in Augusta. I was cooking with a TEC grill
during the cooking demonstration. Vera Kilpatrick referred to the grill that
I was using as a REC TEC grill. She subsequently referred customers to
our store to buy REC TEC grills, even though we do not sell REC TEC grills
at Fireside Outdoor Kitchens & Grills because she was confused.” McCully
Dec. at ¶ 13, 15 TTABVUE 4.
Messrs. McCully, Meikrantz, and Scarborough are not neutral witnesses because
Fireside Outdoor Kitchens & Grills is a dealer for Opposer’s goods and we discount
the probative weight of their testimony accordingly. Also, this testimony is hearsay
to the extent that the witnesses state their conclusions about the beliefs or reasons
for the actions of third parties – for example, that Vera Kilpatrick referred to a TEC
grill as a REC TEC grill “because she was confused.” Id. at 15 TTABVUE 4. As we
have recognized previously: “Without direct testimony from these individuals, there
is insufficient information to ascertain what they were thinking, or what caused the
purported confusion.” Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464,
1475 (TTAB 2016); see also Couch/Braunsdorf Affinity, 110 USPQ2d at 1480
(concluding that “we do not believe this highly generalized testimony provides us with
enough circumstantial guarantees of trustworthiness to warrant attributing any
probative value” to alleged instances of actual confusion relayed by customer service
Opposition No. 91225798
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representatives); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1327
(TTAB 1992) (finding testimony concerning consumer calls not persuasive where “we
do not have the benefit of the testimony of the allegedly confused individuals from
which to determine what may have been responsible for such confusion”).
Nonetheless, certain of these statements fall under exceptions to the rule against
hearsay and carry some minimal persuasive value. We give some weight to how the
witnesses hear shoppers use the parties’ marks on a daily basis under FED. R. EVID.
803(1) as a present sense impression. Also, the public statements by the auctioneer
and television personality referring to TEC grills as REC TEC grills18 are admissible
under FED. R. EVID. 803(3) as a statement of the declarant’s then-existing state of
mind. See Dan Foam ApS v. Sleep Innovations Inc., 106 USPQ2d 1939, 1943 (TTAB
2013). This testimony does not convey confusion of consumers, but may constitute
some evidence that the parties’ marks are similar.
2. Testimony of Mr. Kearse
Opposer also submitted testimony from Joseph Kearse, who has done computer
work for Opposer and, in 2008, created the tecgrillsonline.com website to sell
Opposer’s goods. Kearse Dec. at ¶¶ 5-6, 14 TTABVUE 2-3. Mr. Kearse has sold
Opposer’s grills and accessories through this site for the past decade. Id. at ¶¶ 7-8,
14 TTABVUE 3. Mr. Kearse testified that although his marketing is Internet-based,
more than 90% of his customers who buy TEC grills call and talk to him over the

18 Mr. Meikrantz also testified regarding these misstatements, albeit in less detail. See
Meikrantz Dec. at ¶¶ 20-21, 13 TTABVUE 5-6.
Opposition No. 91225798
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phone, and he averages about eight calls per day from customers seeking grills and
accessories. Id. at ¶¶ 11-12, 14 TTABVUE 3. He testified that:
Approximately a year ago, I started getting calls about
REC TEC grills from people who assumed I knew what
they were talking about. When I ask what type of grill the
customer has or is looking for, some callers say that they
want a TEC grill, but as the conversation continues, I learn
that they are inquiring about a REC TEC grill, and not a
TEC grill. Other callers say that they have a TEC grill, but
it will turn out that they want parts or accessories for a
REC TEC grill that they own.
Id. at ¶ 13, 14 TTABVUE 4. This statement conveying what Mr. Kearse has heard
customers say to him is admissible under Fed. R. Evid. 803(1).
Mr. Kearse also testified that, after the number of customers entering the term
REC TEC on the Google.com search engine and then visiting his website rose to 43%,
he “eventually entered ‘REC’ as a negative keyword to my Google Ad Account to
exclude the mistaken REC TEC hits on my website.” Kearse Dec. at ¶¶ 15-16, 14
TTABVUE 4-5. Applicant responds that Mr. Kearse’s testimony does not show
consumer confusion and that he actually benefited from reverse confusion, “enjoying
a free ride attracting Rec Tec’s customers to his website.” Applicant’s Brief at 37, 35
TTABVUE 45.
Because Mr. Kearse sells Opposer’s goods exclusively, he too is not a neutral
witness, and we discount his testimony accordingly. Moreover, as with the employees
of Fireside Outdoor Kitchens & Grills, Mr. Kearse’s testimony does not carry the
probative weight we accord direct testimony from consumers who have experienced
confusion.
Opposition No. 91225798
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3. Online Grill Review
The last purported actual confusion evidence we address is the grill review post
on the website outdoorigrill.com. The first page submitted follows:

Best Dec. ¶ 15 & Exhibit D, 11 TTABVUE 5, 16. Although the main text on this page
refers to Opposer’s goods and the tecgrillsonline.com website, the picture is of one of
Applicant’s grills.
Ronald L. Cundy, Applicant’s co-owner, testified that this review was
automatically generated, “cut-and-pasted together from multiple existing related and
unrelated webpages to create the illusion of new content.” Cundy Dec. at ¶ 50, 27
TTABVUE 12. Mr. Cundy avers no firsthand knowledge of how this post was
prepared or even how it was “mapped to original source locations,” but does submit
Opposition No. 91225798
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additional website excerpts displaying the same text, with his comments. Id. at ¶ 51
& Exhibit 15, 27 TTABVUE 13, 120-41. Applicant also correctly points out in its brief
that some of the content of this site is nonsensical. See Applicant’s Brief at 36, 35
TTABVUE 44. For example, the second sentence of the review reads: “While
traditional grills make meat tough and dry, TEC Expert advice on outdoor kitchens,
gas grills, smokers, pizza ovens and BBQ gear.” 11 TTABVUE 16. Thus, this review
has no probative value.
4. Conclusion as to Actual Confusion
We find that none of the evidence submitted by Opposer proves that actual
consumer confusion has occurred. As noted above, at best, all of the evidence
discussed in this section lends minor support to our finding that the parties’ marks
are similar. See Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469, 471 (TTAB 1975)
(“While a single instance is insufficient as evidence from which to conclude that
applicant’s mark has consistently caused confusion, the single instance of confusion
is at least ‘illustrative of a situation showing how and why confusion is likely.’”
(quoting Libbey-Owens-Ford Glass Co. v. Thermoproof Glass Co., 156 USPQ 510
(CCPA 1968)). “A showing of actual confusion would of course be highly probative, if
not conclusive, of a high likelihood of confusion.” In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). “However, evidence of actual
confusion is notoriously difficult to come by and, in any event, such evidence is not
required in order to establish likelihood of confusion.” Time Warner Entm’t Co. v.
Jones, 65 USPQ2d 1650, 1662 (TTAB 2002). The seventh and eighth du Pont factors
are neutral.
Opposition No. 91225798
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E. Conditions of Purchase and Consumer Sophistication
Finally, we consider the fourth du Pont factor, assessing the “conditions under
which and buyers to whom sales are made i.e., ‘impulse’ vs. careful, sophisticated
purchasing.” 177 USPQ at 567. Each party’s identification of goods includes
“barbecue grills,” which is presumed to encompass all types of barbecue grills, in all
forms and price points, sold through all normal channels of trade. Mini Melts, 118
USPQ2d at 1471. Although the actual goods currently offered by the parties are
expensive, the identified goods include bargain grills that may be purchased at mass-
market retailers relatively cheaply and with little care. See Cundy Dec. at ¶ 21, 27
TTABVUE 6 (stating that “entry-level gas and charcoal grills may be purchased for
as little as $100 or less”). We therefore find the fourth du Pont factor to be neutral.
F. Conclusion as to Likelihood of Confusion
We have carefully considered all arguments and evidence properly of record,
including those not specifically discussed herein, as they pertain to the relevant
likelihood of confusion factors. To the extent that any other du Pont factors for which
no evidence was presented by Applicant or Opposer nonetheless may be applicable,
we treat them as neutral.
We have found that the parties’ identified goods, customers, and channels of trade
are identical in part; that Applicant’s mark is similar to Opposer’s mark TEC, even
according that mark a limited scope of protection; and that the remaining du Pont
factors are neutral. Considering the record as a whole, we find that Opposer has
carried its burden to establish by a preponderance of the evidence that Applicant’s
mark REC TEC GRILLS is likely to cause consumer confusion with Opposer’s mark
Opposition No. 91225798
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TEC when used in association with the goods identified in the application in
International Classes 11 and 27.
Decision: The opposition to registration of application Serial No. 86413280 is
sustained as to the goods identified International Classes 11 and 27 and dismissed
as to those in International Class 4.