Thor Tech, Inc.

Trademark Trial and Appeal Board

Jan 26, 2015

No. 85667188 (T.T.A.B. Jan. 26, 2015)

This Opinion is a
Precedent of the TTAB

Mailed: January 26, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Thor Tech, Inc.
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Serial No. 85667188
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B. Joseph Schaeff of Dinsmore & Shohl LLP for Thor Tech, Inc.

Bridgett G. Smith, Trademark Examining Attorney, Law Office 115 (John Lincoski,
Managing Attorney).
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Before Bucher, Bergsman and Adlin, Administrative Trademark Judges.
Opinion by Bergsman, Administrative Trademark Judge:
Thor Tech, Inc. (“Applicant”) filed an intent-to-use application to register the
mark TERRAIN, in standard character form, for “recreational vehicles, namely,
towable trailers,” in Class 12. The Trademark Examining Attorney refused to
register applicant’s mark under Section 2(d) of the Trademark Act of 1946,
15 U.S.C. § 1052(d), on the ground that applicant’s mark so resembles the mark
TERRAIN, in standard character form, for “motor land vehicles, namely, trucks,” in
Class 12, as to be likely to cause confusion.1 We reverse.

1 Registration No. 3707074, issued on November 3, 2009. The registrant is General Motors
LLC.
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Our determination under Section 2(d) is based upon an analysis of all of the
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). 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 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 differences in the marks”). These and other du Pont factors relevant in
the proceeding now before us have been considered.
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
The marks are identical. However, the identity of the marks alone is not
sufficient to establish likelihood of confusion in the absence of probative evidence
that the goods are related. If that were the case, then the Registrant would have
rights in gross, and that is against the principles of trademark law. “In every case
turning on likelihood of confusion, it is the duty of the examiner, the board and this
court to find, upon consideration of all the evidence, whether or not confusion
appears likely.” Electronic Design & Sales Inc. v. Electronic Data Systems Corp., 954
F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992), quoting In re E. I. du Pont
de Nemours & Co., 177 USPQ at 568.
Serial No. 85667188
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B. The similarity or dissimilarity and nature of the goods.
Applicant is seeking to register its mark for “recreational vehicles, namely,
towable trailers.” A “recreational vehicle” is defined as “a large vehicle that often
has a bathroom, kitchen, and beds for use during travel and camping.”2
According to WOODALL’S RV BUYER’S GUIDE (1998), “[t]owable RVs are just
that – units that are transported by hitching them to truck, van or car. All towable
RVs offer the benefit of freeing the tow vehicle for other uses after the unit has been
moved and set-up at its campsite.”3
Probably the single most-popular class of towable RV is
the Travel Trailer. Spanning 13 to 35 feet long, travel
trailers are designed to be towed by cars, vans, and
pickup trucks with only the addition of a frame or bumper
mounted hitch. Single axles are common, but dual and
even triple axles may be found on larger units to help
carry the load.
Most travel trailers are equipped with electric and water
capacities on board as well as toilet facilities. Self-
contained (independent of hookups) operation is possible
with most travel trailers, and all may be connected to
facilities at RV parks and campgrounds for extended
stays.4

2 MERRIAM-WEBSTER (merriam-webster.com). The Board may take judicial notice of
dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213
USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including
online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull
GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). We take judicial notice of the definition of
recreational vehicle submitted with the Examining Attorney’s brief.
3 June 17, 2013 response to Office Action.
4 Id.
Serial No. 85667188
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The silhouette of a towable travel trailer presented in WOODALL’S RV BUYER’S
GUIDE is displayed below.5

The goods in the cited registration are “trucks.” A “truck” is defined as “any of
various heavy motor vehicles designed for carrying or pulling loads.”6
The Trademark Examining Attorney submitted copies of seven third-party
registrations of marks for goods including both “trucks” and “trailers” as evidence
that trucks and trailers may emanate from the same source.7 However, five of the
seven registrations list trailers that are not recreational vehicle towable trailers.
For example, the following third-party registrations have no probative value in this
case because the specially-designed trailers listed in the respective descriptions of
goods are so different from recreational vehicles:
1. Registration No. 3406922 for the mark CHALLENGER and design for trucks
and garbage hauling trailers;
2. Registration No. 4006290 for the mark A ALTEC GREEN FLEET and design
for, inter alia, trucks, namely, mobile hydraulic equipment for utility industries to

5 Id.
6 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000)
(Trademark Examining Attorney’s Brief, p. 6 (unnumbered)).
7 November 1, 2012 Office Action.
Serial No. 85667188
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support personnel at high altitudes, cargo trailers used to transport poles, and
trailers with hotline insulator washers; and
3. Registration No. 3302346 for the mark FETERL for “vehicles, namely, field
service lubrication trailers and trucks.”
Arguably, reading the following identifications of goods broadly, as we must,8 the
following two third-party, use-based registrations serve to suggest that trucks,
conversion kits, trailer hitches and trailers may emanate from the same source:
Mark Reg. No. Goods9
HABITAT 3821672 for a long list of parts for automobile conversions; trucks; recreational vehicles, namely, towable trailers
EZ
EZEGIDE
and
design
4122881 for trailer couplings; trailer hitches; trailers; trucks

In rebuttal to the two probative registrations the Examining Attorney placed in
the record, Applicant submitted copies of fifty (50) sets of third-party registrations

8 We note that Applicant impermissibly resorted to extrinsic evidence to support its
argument that these marks are actually used for (i) a conversion kit where a hard top
replacement for a Jeep Wrangler folds into a tent, and (ii) tractor trailers designed for
heavy construction, respectively. A registration certificate operates as “prima facie evidence
of the validity of the registered mark and * * * of the [registrant’s] exclusive right to use
the registered mark in commerce on or in connection with the goods * * * specified in the
[registration] certificate, subject to any conditions or limitations stated in the certificate.”
Trademark Act §§ 7(b) and 33(a), 15 U.S.C. §§ 1057(b) and 1115(a). Therefore, we evaluate
the usages encompassed by a registration’s statement of goods and cannot countenance an
applicant’s attempt to show that a registrant’s actual usage is narrower than the statement
of goods in the registration. See generally Stone Lion Capital Partners v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); In re Dixie Rests., Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534-1535 (Fed. Cir. 1997); Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000).
9 We have not included the entire description of goods for each registration. We have listed
only the relevant goods in these registrations that arguably encompass the goods at issue in
the involved application and cited registration.
Serial No. 85667188
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for the same or similar marks registered for automobiles, trucks or sport utility
vehicles on the one hand and recreational vehicles, travel trailers, and/or motor
homes on the other, which are owned by different entities.10 Significantly, seven
sets of third-party registrations (shown below) appear to be owned, respectively, by
the Registrant of the cited registration and Applicant or one of Applicant’s related
companies. Further, the registrations listed below are illustrative of what is shown
by the other sets of third-party registrations (i.e., that the same or very similar
marks have been registered for trucks, SUVs or automobiles and recreational
vehicles, travel trailers or motor homes).
Land Vehicles Mark Recreational trailers
trucks11 SILVERADO recreational vehicles,
namely, towable trailers12
automobiles, trucks, sport
utility vehicles and vans13
COLORADO travel trailers and fifth
wheel trailers14
sport utility vehicles15 TRAILBLAZER travel trailers, fifth wheel
trailers and camper
trailers16
sport utility vehicles 17 DENALI travel trailers and fifth
wheel trailers18

10 June 17, 2013 response to Office Action.
11 Registration No. 1039220 owned by General Motors.
12 Registration No. 4080540 owned by Heartland Recreational Vehicles. LLC, of Elkhart,
IN.
13 Registration No. 2813324 owned by General Motors.
14 Registration No. 2765394 owned by Thor Tech, Inc., applicant herein.
15 Registration No. 2257873 owned by General Motors.
16 Registration No. 2629101 owned by Thor Tech, Inc., applicant herein.
17 Registration No. 2224539 owned by General Motors.
18 Registration No. 2968796 owned by Thor Tech, Inc., applicant herein.
Serial No. 85667188
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Land Vehicles Mark Recreational trailers
automobiles, trucks, sport
utility vehicles, and vans19
AVALANCHE fifth wheel trailers20
land motor vehicles, namely
automobiles and structural
parts therefore21
STRATUS recreational vehicles,
namely, travel trailers22
motor vehicles, namely
trucks, engines therefor, and
structural parts thereof23
TAHOE recreational vehicles,
namely travel trailers and
fifth wheels 24

The existence of almost fifty pairs of substantially identical marks for land
motor vehicles and for towable recreational vehicle trailers on the federal
Trademark Register suggests to us that businesses in these two industries believe
that their respective goods are distinct enough that confusion between even
identical marks is unlikely. We have previously relied on similar evidence as
weighing against confusion. In Keebler Company v. Associated Biscuits Limited, 207
USPQ 1034 (TTAB 1980), we said:
… In this sense, the registrations tend to define fields of
use and, conversely, the boundaries of use and protection
surrounding the marks and marks comprising the same
word … for their various products. The mutual respect
and restraint exhibited toward each other by the owners
of the plethora of marks, evidenced by their coexistence on
the Register, are akin to the opinion manifested by
knowledgeable businessmen … .

19 Registration No. 2866966 owned by General Motors.
20 Registration No. 3871181 owned by Thor Tech, Inc., applicant herein.
21 Registration No. 2000194 owned by DaimlerChrysler.
22 Registration No. 2594862 owned by Bison of Elkhart, IN.
23 Registration No. 1880529 owned by General Motors.
24 Registration No. 2282368 owned by MVP RV, Inc.
Serial No. 85667188
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Id. at 1038. While Keebler involved numerous third-party registrations
incorporating the word “Club,” the Board noted that “[t]he pattern of registrations
does, however, exemplify long-standing and extensive practice within the Patent
and Trademark Office and, necessarily, equally long-standing beliefs … of business
people that the uses of those marks would be feasible and helpful in their
businesses.” Id. The inference that we draw from the “pattern of registrations” is
applicable in this case.
The Examining Attorney argues, however, that because a towable trailer is
towed by a car or truck, “there is an overlap in the nature of the goods.”25 “Evidence
of complementary use may be given more or less weight depending on the nature of
the goods.” In re Martin’s Famous Pastry Shoppe, Inc. 748 F.2d 1565, 223 USPQ
1289, 1290 (Fed. Cir. 1984). While the complementary nature of goods can support a
conclusion that they are related for likelihood of confusion purposes, the record here
does not support such a finding.
Under the circumstances presented in this ex parte appeal, we find that
Applicant’s evidence of dozens of third-party registrations for the same or very
similar marks owned by different entities for vehicles and recreational vehicle
trailers rebuts the relevant, two third-party registrations made of record by the
Trademark Examining Attorney.26 We cannot conclude on this evidentiary record

25 Trademark Examining Attorney’s Brief, pp. 5-6 (unnumbered).
26 Further, the record before us indicates that the nature of the goods is different. Unlike
trucks, recreational trailers do not have engines and are designed for use as a temporary
place to live while traveling or camping, typically coming equipped with beds and toilet
facilities. See WOODALL’S RV BUYER’S GUIDE, attached to the June 17, 2013 response to
Office Action.
Serial No. 85667188
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that consumers would assume a common source for the goods despite their
complementary nature. To the contrary, the third-party registrations of record
suggest that consumers are aware that they are offered by different companies
under the same or similar marks.
Accordingly, we find that the similarity of the goods factor weighs against
likelihood of confusion.
C. Established, likely-to-continue channels of trade.
To show that trucks and “recreational vehicles, namely, towable trailers” move
in the same channels of trade, the Trademark Examining Attorney submitted
reprints from Internet websites of companies purportedly selling both products. As
we noted with the third-party registration evidence, much of the Internet evidence
was not focused on recreational vehicle trailers, rather it included trailers of many
other types or of an unspecified nature. For example, none of the Internet websites
attached to the November 1, 2012 Office Action included recreational vehicle
trailers. Three of the nine websites that the Trademark Examining Attorney
included in her December 17, 2012 Office Action show the same company selling
trucks and recreational vehicle trailers:27
1. Moore’s Auto (mooresauto.com) located in Towanda, Pennsylvania
advertises the sale of automobiles and recreational vehicles;

27 Sparta Chevrolet & Trailer Sales (spartachevytrailers.com) located in an unidentified
part of West Michigan advertises “new and used vehicles as well as horse trailers.” Because
Sparta Chevrolet & Trailer Sales does not advertise the sale of recreational vehicles in
general and towable trailers in particular, this website evidence has limited probative
value.
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2. Oak Lake RV Sales & Service (oaklakerv.com) located in Kerrick,
Minnesota advertises the sale of “new and used motor homes, 5th wheels,
travel trailers, truck campers & folding campers, pontoons, boats, and other
watercrafts, cars, SUVs, trucks, snowmobiles and more”; and
3. Haylett Auto & RV Home (haylettautoandrv.com) located in
Coldwater, Michigan advertises the sale of “a new camper, trailer, or
automobile.” (Although the Haylett Auto & RV Home does not reference truck
sales, we will assume arguendo that the company would sell any previously-
owned truck that it took back in a trade.).

These companies are not manufacturers. At best, this evidence shows that two
small retailers who sell a wide variety of vehicles also sell used trucks and
recreational vehicle towable trailers and another such retailer sells automobiles
(and presumably trucks) and recreational vehicles. While trucks and recreational
towable trailers may occasionally be sold by the same retailers, we cannot overlook
the facts that the products are, at least on this record, noncompetitive, differ
completely in utility, have nothing in common with respect to their essential
characteristics or sales appeal, and, as discussed below, are expensive. Accordingly,
we cannot find on this record that the channels of trade and circumstances under
which trucks and recreational vehicle towable trailers are sold are sufficiently
similar so as to be likely to give rise to the mistaken belief that the trucks and
trailers emanate from a single source when sold under the same mark.
In view thereof, we find that the channels of trade factor does not weigh in favor
of a likelihood of confusion.
Serial No. 85667188
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D. Degree of consumer care.
The nature of the products and the conditions of sale can be influential factors in
determining the degree of consumer care. While neither applicant nor the
Trademark Examining Attorney presented any evidence regarding the degree of
consumer care, applicant did present evidence that several of the trucks bearing the
marks in the table above are expensive items. Registrant’s TERRAIN is a sport
utility vehicle that has a manufacturer’s suggested retail price of $26,235.28
Chevrolet SILVERADO pick-up trucks have a manufacturer’s suggested retail price
ranging from $23,590 to $40,885 depending on the model.29 A 2012 Chevrolet
COLORADO pick-up truck had a manufacturer’s suggested retail price of $17,475.30
There is also evidence in the record that recreational vehicle towable trailers are
expensive as well. The Moore’s Auto website (mooresauto.com) advertises for sale a
2010 Jayco Jay Flight towable trailer for $7,995, and a 2005 Jayco Jay Flight
towable trailer for $13,995.31 Haylett Auto & RV advertise the sale of a 2012 Forest
River Rockwood Signature towable trailer for $23,800.32 We infer from this evidence
that purchasers of both types of goods would exercise a high degree of care in
making their purchasing decisions. Trucks and recreational vehicle towable trailers
are not everyday purchases. They are special purchases. A consumer can be
expected to pay particular attention to such purchases, and indeed would likely

28 June 17, 2013 response to Office Action.
29 Id.
30 Id.
31 December 17, 2012 Office Action.
32 December 17, 2012 Office Action.
Serial No. 85667188
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make a careful personal examination of the item before buying. These types of
products, at these prices, are not the kinds of products which we think reasonably
prudent purchasers would buy, or without researching the product to some degree.
Rather, these are items that will be purchased with care and deliberation. See
Tiffany & Co. v. Classic Motor Carriages Inc., 10 USPQ2d 1835, 1841 (TTAB 1989)
(automobiles would be purchased only upon careful consideration). In making
purchasing decisions regarding expensive products such as these, “the reasonably
prudent person standard is elevated to the standard of the ‘discriminating
purchaser.’” Weiss Associates, Inc. v. HRL Associates, Inc., 902 F.2d 1546, 14
USPQ2d 1840, 1841 (Fed. Cir. 1990).
We find that the degree of consumer care weighs against a likelihood of
confusion.
E. Balancing the factors.
Despite the fact that the marks are identical, the difference in the nature of the
goods and their channels of trade and the high degree of consumer care likely to be
exercised by the relevant consumers supports the conclusion that applicant’s mark
TERRAIN for “recreational vehicles, namely, towable trailers” is not likely to cause
confusion with the mark TERRAIN for “motor land vehicles, namely, trucks.”
Decision: The refusal to register is reversed.