Thunderbolt Products, Inc.

Trademark Trial and Appeal Board

Dec 17, 2009

No. 76694257 (T.T.A.B. Dec. 17, 2009)

Mailed:
17 December 2009
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Thunderbolt Products, Inc.
________

Serial No. 76694257
_______

Myron Amer of Myron Amer, P.C. for Thunderbolt Products,
Inc.

Kathleen Lorenzo, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
_______

Before Quinn, Drost, and Cataldo, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On November 17, 2008, Thunderbolt Products, Inc.
(applicant) filed an intent-to-use application to register
the mark GREEN THUNDER in standard character form on the
Principal Register for goods ultimately identified as floor
and carpet care products, namely, cleaners for household
use on floors and carpets, and not including use on vehicle
engines in Class 3. Serial No. 76694257. In its reply
brief, applicant responded to the examining attorney’s
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 76694257
2
requirement for a disclaimer by submitting a disclaimer of
the word “Green,” which the examining attorney has now
accepted.
The examining attorney has refused to register
applicant’s mark on the ground that it is confusingly
similar under Section 2(d) of the Trademark Act (15 U.S.C.
§ 1052(d)) with a registration (No. 1855066, issued
September 20, 1994 (renewed)) owned by Malco Products, Inc.
for the mark RED THUNDER (typed) for biodegradable cleaner
and degreaser for use on engines and interior and exterior
surfaces of vehicles in Class 3.
After the examining attorney made the refusal final,
applicant appealed to this board.
In a case involving a refusal under Section 2(d), we
analyze the facts as they relate to the relevant factors
set out in 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) and Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000). In
considering the evidence of record on these factors, we
must keep in mind that “[t]he fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
Ser No. 76694257
3
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
We begin by examining applicant’s and registrant’s
goods to determine if they are related.
It is a well settled principle of trademark law that
it is not necessary that the goods of the parties be
similar or competitive, or even that they move in the
same channels of trade to support a holding of
likelihood of confusion. It is sufficient for
purposes herein that the respective goods of the
parties are related in some manner, and/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 because of the similarity of the marks used
therewith, give rise to the mistaken belief that they
originate from or are in some way associated with the
same producer.

In re Int’l Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978). See also Shen Mfg. Co. v. Ritz Hotel Ltd.,
393 F.3d 1238, 73 USPQ2d 1350, 1356 (Fed. Cir. 2004).
Applicant’s goods are floor and carpet care products,
namely, cleaners for household use on floors and carpets,
and not including use on vehicle engines. Registrant’s
goods are biodegradable cleaners and degreasers for use on
engines and interior and exterior surfaces of vehicles. We
must consider the goods as they are identified in
applicant’s and registrant’s identification of goods.
Octocom Systems, Inc. v. Houston Computers Services Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The
Ser No. 76694257
4
authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the
sales of goods are directed”). See also Paula Payne
Products v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76,
77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”).
While applicant has limited its goods to exclude “use
on vehicle engines,”1 the examining attorney points out that
“this narrowing of the identification excludes use on
vehicle engines but did not address the similarity of the
floor and carpet care products with cleaners for use on
interior surfaces of vehicles.” Brief at unnumbered p. 7.
Applicant’s goods include cleaners for household use on
carpets and registrant similarly includes cleaners for use
on interior surfaces of vehicles, which would include
vehicle carpets. The examining attorney has included an

1 It is not clear what this negative limitation accomplishes
inasmuch as there is no evidence that a vehicle engine would have
a floor or carpet.
Ser No. 76694257
5
article that explains the similarity of cleaners for house
and automobile carpets:
Auto Carpet Cleaning Is Not Very Different From
Traditional Carpet Cleaning…
In fact, auto carpets are very similar to your
traditional carpets that are usually found covering
floors of homes as well as office buildings…
The good news is that if it can be considered
good news that most carpet cleaning solutions that
work for home carpets are also effective when used for
auto carpet cleaning.
www.linkroll.com

Both applicant and registrant include cleaners in
their identification of goods. Applicant’s goods are
limited to cleaners for carpets and floors, while
registrant’s cleaners are for use, inter alia, on interior
surfaces of vehicles. These cleaners must be read to
include cleaners for vehicle carpets. Interestingly, an
advertisement for “Malco Red Thunder Biodegradable Cleaner”
describes it as “a highly concentrated, non-caustic and
aluminum-safe all purpose cleaner… Great as an engine
degreaser/cleaner, whit[ewall] cleaner, and carpet and
upholstery cleaner.” www.chadssupplylic.coom (emphasis
added). Clearly, registrant intends its goods to be used
on carpets. Furthermore, while registrant’s goods are
limited to biodegradable cleaners, inasmuch as applicant’s
goods are simply identified as “cleaners,” they would
Ser No. 76694257
6
include “biodegradable” cleaners.2 See also
www.scotlabs.com (Hurricane Citrus All-Purpose Cleaner –
“Environmentally safe, contains biodegradable
surfactants”). Indeed, applicant’s witness has indicated
that “the product is considered to be environmentally safe
because of the non-use of phosphates and nonylpherol
ethoxylate surfactants.” Kroll dec., ¶ 2.
Other evidence shows cleaners for carpets are the same
cleaners used on vehicles. See www.greenprofs.com (“MEAN
GREEN is gentle enough for cleaning clothes, upholstery,
and carpet but strong enough for heavy duty projects like
cleaning engines and construction equipment.” Directions
for use on/for “Carpeting Cleaning and Stains,” “Automotive
Chrome Wire Wheels,” and “Vinyl Tops and Upholstery”);
www.4uproducts.com (4U Household Cleaner - “4U truly is the
wonder cleaner for household use. 4U replaces many of your
‘around the house’ cleaners all in one product… Common
uses: … Engines, Carpets … Whether you’re on the road or at
home, 4U always works”); www.envirosafe2000.com (“ESS All
Purpose Cleaner/Degreaser is Great for: Carpet &

2 “To biodegrade” is defined as “to decay and become absorbed by
the environment.” The Random House Dictionary of the English
Language (unabridged) (2d ed. 1987). We take judicial notice of
this and the other subsequently referenced definitions. Univ. of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser No. 76694257
7
Upholstery … Cars & Trucks”). See also Liberty
Technologies Ad (“Quick’N Kleen is a cleaner, degreaser,
lubricant, laundry pre-spot, carpet stain-remover and much
more… Removes: … Grease … From: Clothes, Walls, Boats,
Grout … Carpets, Stucco, Floors, Engines”). This evidence
shows that household cleaners for carpets can be used on
vehicles and that vehicle carpets can be cleaned by the
same products that clean household carpets.
To the extent that these products would not be the
same, there is additional evidence that cleaners for
carpets and cleaners for vehicles come from the same
source. See, e.g., Registration3 No. 3224612 (carpet
cleaners and cleaning preparations for automobiles); No.
3313015 (cleaning preparations for use on marine vehicles
and carpet cleaners);4 No. 3547979 (“cleaning, polishing,
scouring and abrasive preparations for households,
kitchens, baths and vehicles, in particular carpet, oven,
window, car and toilet cleaning preparations”); and

3 Third-party registrations “may serve to suggest that such goods
or services are of a type which may emanate from a single
source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
(TTAB 1988).
4 Applicant attempts to distinguish some of the examining
attorney’s evidence such as this one by arguing that a “marine
vehicle, i.e., a boat has an engine but it is not a vehicle in
the context used by the registrant.” Brief at unnumbered p. 3.
However, to the extent that registrant’s goods refer to vehicles
without limitation, we would have to consider “marine vehicles”
within the scope of the identification of goods.
Ser No. 76694257
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www.cleaning-usa.com (“With our unique powerful formulas,
we present you with quality cleaning products… Household
Cleaning Products… Carpet Spot Formula … Automotive
Cleaning Products … Works Great on Auto’s – Vinyl, door
panels, upholstery, head liners, carpets”). Therefore,
these products are interchangeable or at least closely
related.
Furthermore, based on the evidence that shows that
cleaners for vehicles and carpets can be the same product
and that these cleaners are advertised as having numerous
uses, we conclude that the purchasers and channels of trade
for these products would be in part identical. See, e.g.,
Liberty Technologies ad (“We spray Quick’N Kleen™ on
anything that [it] can be sprayed on! It removes paint and
graffiti and is a wonderful overall cleaning product”).
See also Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB
2003) (“Given the in-part identical and in-part related
nature of the parties’ goods, and the lack of any
restrictions in the identifications thereof as to trade
channels and purchasers, these clothing items could be
offered and sold to the same classes of purchasers through
the same channels of trade”).
We now move on to the du Pont factor that “requires
examination of ‘the similarity or dissimilarity of the
Ser No. 76694257
9
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 marks in this case are
GREEN THUNDER and RED THUNDER. Both marks are in typed or
standard character form so we must assume that the marks
can be displayed in the same or very similar style. In re
Cox Enterprises Inc., 82 USPQ2d 1040, 1044 (TTAB 2007)(“We
must also consider that applicant’s mark, presented in
typed or standard character form, is not limited to any
special form or style as displayed on its goods”). Thus,
the marks are similar because they both contain the
identical second word “Thunder” and the first word is a
color. They differ inasmuch as the identified color is
different, “Green” and “Red.”
Regarding the term “green,” applicant has now
disclaimed this term. Its declarant has stated that its
“product is considered to be environmentally safe.” The
examining attorney has included a definition of “green” as
“Beneficial to the environment.” www.bartleby.com.
Therefore, the term “green” would describe the fact that
applicant’s products are environmentally safe. Disclaimed
matter is often “less significant in creating the mark’s
Ser No. 76694257
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commercial impression.” In re Code Consultants, Inc., 60
USPQ2d 1699, 1702 (TTAB 2001). See also M2 Software Inc.
v. M2 Communications Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1948-49 (Fed. Cir. 2006) (“When comparing the similarity of
marks, a disclaimed term, here ‘COMMUNICATIONS,’ may be
given little weight, but it may not be ignored”);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000), quoting, In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)
(“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little
weight in reaching a conclusion on the likelihood of
confusion’”).
Regarding the term “Red,” the examining attorney has
included an advertisement for these goods and points out
that the “the goods are red.” Brief at 5, n.1.5 While the
examining attorney argues that the term “red” is
“descriptive of a feature of the goods” (Brief at 5), we do
not need to reach this conclusion. Instead the evidence
shows that the term “red” is at least very suggestive of a

5 We also note that registrant describes its goods as having a
“[s]uper cinnamon scent.” www.chadssupplyllc.com. The color
“red” may also suggest a cinnamon scent. Random House Dictionary
of the English Language (Cinnamon – “1. the aromatic inner bark
of any of several Indian trees… 8. reddish brown or yellowish
brown yellow”).
Ser No. 76694257
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feature of registrant’s goods and, therefore, it would have
less trademark significance than the term “Thunder.”
Regarding the common term “Thunder,” we find that it
would be the dominant term in the marks. Applicant argues
that “[a]s a variation of THUNDER, use is commonly made of
the word THUNDERBOLT, which in RANDOMHOUSE WEBSTER’S
College Dictionary at page 1392 is defined as ‘3. a … thing
that acts with destructiveness … suddenness,’ an attribute
of applicant’s product as chemically constituted.” Brief
at 7. We point out that applicant has not submitted
evidence regarding any common use of the term “thunderbolt”
and, more importantly, applicant is seeking to register the
term “thunder”6 not “thunderbolt.” We find that the term
“thunder” is more likely to be the dominant term in the
marks because it is arbitrary or perhaps slightly
suggestive of a feature of the goods.
The Federal Circuit has held that: “there is nothing
improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties. Indeed,

6 Thunder is defined, inter alia, as “a loud, resounding,
explosive noise produced by the explosive expansion of air heated
by a lightning discharge.” Random House Dictionary of the
English Language.
Ser No. 76694257
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this type of analysis appears to be unavoidable.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). While we have considered the individual
elements of the marks, we must ultimately view the marks in
their entireties to determine if they are similar. We
conclude that the marks RED THUNDER and GREEN THUNDER are
similar in sound and appearance. They are dominated by the
identical term “thunder” and the difference created by the
use of a different color as the first word in the marks
would not result in marks that are dissimilar because
consumers will focus on the term “Thunder” and not
distinguish the sources of the products by the different
color as the first term. “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). Regarding their meanings and commercial
impressions, we find that their meanings at least would be
somewhat different inasmuch as “red” may be associated with
the color of the product while “green” would describe a
product that is environmentally safe or beneficial for the
environment. However, this slight difference in meaning
may help customers distinguish the version of the products
Ser No. 76694257
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but not the sources of the products because many consumers
are likely to view GREEN THUNDER cleaner as an
environmentally friendlier or safer version of the RED
THUNDER cleaner and assume that the products come from the
same source. Thus, we find that the marks in their
entireties are similar in sound, appearance, meaning, and
commercial impression.
Ultimately, we conclude that the marks GREEN THUNDER
and RED THUNDER are similar and the goods, channels of
trade, and purchasers are overlapping or at least closely
related or similar. As a result, we hold that there is a
likelihood of confusion in this case.
Registration No. 2779076
While we have affirmed the examining attorney’s
refusal to register on the ground of likelihood of
confusion because of Registration No. 1855066, we note that
the examining attorney has also cited a second registration
(No. 2779076) as a bar to registration. This registration
is for the mark BLUE THUNDER (typed) for all-purpose
degreasing cleaning preparations, not for use in or on
vehicles or vehicle engines in Class 3. The registration,
owned by Stearns Packaging Corporation, issued November 4,
2003 and it contains a disclaimer of the term “Blue.”
However, the registration is more than six years ago and
Ser No. 76694257
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USPTO records do not indicate that any Affidavit under
Section 8 has been filed. 15 U.S.C. § 1058. Therefore,
unless an affidavit is properly filed, this registration
will be cancelled at the end of the six-month grace period.
Under such circumstances, if this were the only cited
registration, the board would normally suspend action on
the appeal. TBMP § 1213 (2d ed. rev. 2004). However,
since we have another registration (the ‘066 registration)
that has been cited against applicant’s mark, in order to
avoid unnecessarily delaying this case, we have decided the
likelihood of confusion issue regarding the ‘066
registration and, for the sake of completeness, we will
also consider the ‘076 registration.
We conclude that, for much the same reasons that we
held that there was a likelihood of confusion with the RED
THUNDER mark, we similarly hold that applicant’s mark is
likely to cause confusion as a result of the BLUE THUNDER
mark.7 Here too, the term “Thunder” would dominate the
marks. The term “Blue” is disclaimed and the examining
attorney points out that it is the color of the goods.

7 The examining attorney points out that the “Registrants co-
exist on the Principal Register because the junior registrant
limited its identification of goods to ‘All-purpose degreasing
preparations not for use in or on vehicles or vehicle engines,’
specifically excluding all of the senior registrant’s goods.”
Brief at 6 n.3 (parentheticals omitted).
Ser No. 76694257
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Brief at 5; www.hansonchemical.com. Again, purchasers are
likely to believe that applicant’s goods are an
environmentally friendly version of registrant’s goods.
Therefore, when the marks GREEN THUNDER and BLUE THUNDER
are compared in their entireties, we find that they are
similar in sound, appearance, meaning, and commercial
impression.
Furthermore, applicant’s cleaners for household use on
floors and carpets are related, if not overlapping, with
the ‘076 registrant’s all-purpose degreasers. See, e.g.,
www.meangreenprofs.com (“Mean Green is a unique blend of
non-toxic, biodegradable detergents that form a powerful,
extra heavy-duty cleaner and degreaser… for cleaning
clothes, upholstery, and carpet); www.4uproducts.com (“4U
is the wonder cleaner and degreaser for household use…
Common Uses… Carpets, Floors, Fixtures, Ovens”); and
www.envirosafe2000.com (“ESS All Purpose Cleaner/Degreaser
is Great for: Carpet & Upholstery, Leather & Silk…”).
Therefore, we find that these goods are closely related if
not overlapping. Similarly, purchasers of all-purpose
cleaners and cleaners for carpet and floors would overlap
because they would include ordinary purchaser who are
interested in cleaning their homes.
Ser No. 76694257
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If this registration remains active, we similarly
conclude that there would be a likelihood of confusion. We
add that in the event that a Section 8 affidavit is not
filed and the ‘076 registration is cancelled, this refusal
would obviously no longer be viable.
Conclusion
Decision: To the extent that the BLUE THUNDER
registration (No. 2779076) remains an active registration,
the examining attorney’s refusal to register applicant’s
mark because of this registration is affirmed. Similarly,
the refusal to register applicant’s mark GREEN THUNDER
under Section 2(d) of the Trademark Act in view of
Registration No. 1855066 for the mark RED THUNDER is also
affirmed.