True Value Company

Trademark Trial and Appeal Board

Jun 16, 2008

No. 78774555 (T.T.A.B. Jun. 16, 2008)

Mailed: June 16, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re True Value Company
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Serial Nos. 78774555 and 787777301
______

Danielle I. Mattessich and Christopher Schulte of Merchant
& Gould P.C. for True Value Company.

Debra Lee, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Zervas, Cataldo and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

True Value Company has appealed from the final refusal
of the trademark examining attorney to register (i) the
mark FOUR SEASONS COURTYARD (Serial No. 78774555, in
standard character form); and (ii) the mark

1 On January 24, 2008, the Board granted the examining attorney’s
motion to consolidate the appeals in application Serial Nos.
78774555 and 78777730.
THIS OPINION IS
NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 78774555 and 78777730
2

(Serial No. 78777730),2 both on the Principal Register and
both for goods ultimately identified as “portable propane
heaters and kerosene heaters for home use; low voltage
electric lighting fixtures and solar powered lighting
fixtures” in International Class 11.
The examining attorney has refused registration of
both applications pursuant to Section 2(d) of the Trademark
Act, 15 U.S.C. 1052(d), on the ground that applicant’s
marks so resembles the following two previously registered
marks as to be likely to cause confusion or mistake, or to
deceive:
(a) Registration No. 2653916 (issued November 26,
2002 to International Development Corporation)
for the mark FOUR SEASONS SOLAR LIGHT (in typed
form) for “solar powered lighting fixtures for
domestic use” in International Class 11, with
SOLAR LIGHT disclaimed; and

(b) Registration No. 1468188 (issued September 8,
1987 to Seasons-4, Inc.; renewed November 29,
2007) for the mark

2 Both application Serial Nos. 78774555 and 78777730 were filed
on December 21, 2005, and claim a bona fide intent to use the
mark in commerce under Trademark Act § 1(b), 15 U.S.C. § 1051(b).
Serial No. 78774555 and 78777730
3

for “gas and electric heaters, and air
conditioners, and air and water chillers for
commercial, industrial and supermarket use and
parts therefor” in International Class 11.

When the refusals were made final, applicant filed
these appeals and requested reconsideration. The examining
attorney denied the requests for reconsideration and the
appeals were resumed. Both applicant and the examining
attorney have filed briefs. Upon careful consideration of
the arguments advanced by applicant and the examining
attorney, we conclude that both of applicant's marks are
likely to be confused with both of the cited marks and
affirm the refusals to register.
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. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
Serial No. 78774555 and 78777730
4
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
The Goods
We consider the du Pont factor regarding the
similarity or dissimilarity and nature of the goods as
described in the applications and registrations, beginning
with the FOUR SEASONS SOLAR LIGHT registration.
Registrant’s goods are “solar powered lighting fixtures for
domestic use,” and applicant's “solar powered lighting
fixtures” include “solar powered lighting fixtures for
domestic use.” Thus, with regard to this registration, we
consider the goods to be in part identical.
As for the SEASONS-4 and design registration,
applicant and the examining attorney disagree on the scope
of registrant’s identification of goods. According to
applicant, the phrase “for commercial, industrial and
supermarket use” applies to each of the items listed before
this phrase, namely “gas and electric heaters, and air
conditioners, and air and water chillers.” The examining
attorney disagrees, arguing that the phrase “for
commercial, industrial and supermarket use” applies only to
Serial No. 78774555 and 78777730
5
“air and water chillers.” In support of its argument,
applicant has submitted several of registrant’s web pages
which indicate that its goods, including its heaters and
air conditioners, are for commercial, industrial and
supermarket use, but are silent regarding other uses. We
consider the goods as they are identified in the
identification of goods in the registration and not as
described in applicant's evidence. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 515 USPQ2d 1842, 1846 (Fed. Cir.
2000) (“[T]he identification of goods/services statement in
the registration, not the goods/services actually used by
the registrant, frames the issue”). Applicant may not
restrict the scope of registrant's identification of goods
by extrinsic evidence. See In re Bercut-Vandervoort & Co.,
229 USPQ 763 (TTAB 1986). Thus, we do not further consider
applicant's argument regarding actual use of the mark on
particular goods.
We do consider that it is not necessary that the goods
be similar or competitive, or even that they move in the
same channels of trade to support a holding of likelihood
of confusion. Rather, it is sufficient for purposes herein
that the respective goods are related in some manner,
and/or that the conditions and activities surrounding the
marketing of the goods or services are such that they would
Serial No. 78774555 and 78777730
6
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 International Telephone & Telegraph
Corp., 197 USPQ 910 (TTAB 1978). The examining attorney
has submitted evidence which establishes that gas heaters
for home use, which includes portable propane heaters, are
related to gas heaters for commercial or industrial use.3
Specifically, the examining attorney has submitted with her
denial of applicant's request for reconsideration several
webpages from manufacturers and distributors of heaters
that offer both home gas heaters on one hand and commercial
or industrial gas heaters on the other. Some of the
webpages demonstrate that both home and commercial and/or
industrial heaters are sold under the same mark. One
webpage demonstrates that certain heaters may be used
either in the home or in commercial spaces. See webpage
from amazon.com offers a “Dayton U37 Electric Convection
Heater” stating, “Warm up any space in your home or
workplace with the Dayton U37 portable electric convection
heater. With two heat settings, this high-performance unit

3 Applicant maintains that this evidence is de minimis. We
disagree – the evidence of record is sufficient to establish a
Serial No. 78774555 and 78777730
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provides rapid warming that [i]s perfect for supplementary
garage or shop heating as well as primary heating for areas
under 200 square feet.” In view of this evidence, we find
that even if registrant’s goods are limited to “industrial,
commercial and supermarket use,” as applicant contends, the
examining attorney has established that the goods are
related to each other. Of course, if they are not so
limited, applicant's goods are identical in part to
registrant’s goods because registrant’s “gas heaters” would
encompass portable propane heaters for home use.
The du Pont factor regarding the goods is resolved in
favor of finding a likelihood of confusion in connection
with both registrations.
Trade Channels
As for the du Pont factor regarding the similarity or
dissimilarity of established, likely to continue trade
channels, we agree with the examining attorney that
applicant's trade channels are the same as or similar to
registrants’ trade channels. First, with respect to the
trade channels for the FOUR SEASONS SOLAR LIGHT
registration, because applicant's and registrant’s goods
are in part identical, the trade channels are also in part
identical. With respect to the trade channels for the

relationship between applicant's and registrant's goods.
Serial No. 78774555 and 78777730
8
SEASONS-4 registration, even if we assume that all of
registrant’s goods are limited to commercial, industrial
and supermarket uses, we find that the trade channels
overlap. The examining attorney’s evidence, although not
extensive, sufficiently establishes that some heaters may
be used in both the home and in commercial spaces, and that
the same retailers sell home, commercial and industrial
heaters. See webpages of record from
gasoutdoorpatioheaters.com, northstarflameless.com,
desalint.com, schaefer.com and air-n-water.com.
The du Pont factor regarding trade channels hence is
resolved in favor of finding a likelihood of confusion in
connection with both registrations.
The Marks
Turning then to a consideration of the marks, we must
determine whether applicant's marks and registrants’ marks,
when compared in their entireties, are similar or
dissimilar in terms of sound, appearance, connotation and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). Although the marks must be
considered in their entireties, it is well settled that one
feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant
Serial No. 78774555 and 78777730
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feature in determining the commercial impression created by
the mark. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985). Furthermore, the test is
not whether the marks can be distinguished when subjected
to a side-by-side comparison, but rather whether the marks
are sufficiently similar in terms of their commercial
impression that confusion as to the source of the goods
offered under the respective marks is likely to result.
The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific
impression of trademarks. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975). Finally, when marks
appear on identical goods, the degree of similarity
necessary to support a conclusion of likelihood of
confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 824, 23 USPQ2d 1698 (Fed.
Cir. 1992).
Registration No. 2653916 – FOUR SEASONS SOLAR LIGHT
FOUR SEASONS is the portion of registrant’s mark that
conveys the strongest impression because SOLAR LIGHT is
merely descriptive or even generic for registrant’s goods.
While SOLAR LIGHT is not ignored, the fact is, that
consumers are more likely to rely on the nondescriptive
portion of the mark, that is, the words FOUR SEASONS, as an
Serial No. 78774555 and 78777730
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indication of source. See In re National Data Corp., supra
at 751 (“That a particular feature is descriptive or
generic with respect to the involved goods or services is
one commonly accepted rationale for giving less weight to a
portion of a mark”). As such, FOUR SEASONS is the dominant
term in registrant’s mark.
FOUR SEASONS is also the dominant portion of
applicant's design mark. COURTYARD is visually less
prominent, appearing in much smaller lettering than FOUR
SEASONS and under FOUR SEASONS. Additionally, it is the
wording FOUR SEASONS itself, rather than the design in the
mark, that is more likely to have a greater impact on
purchasers and be remembered by them. See CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)
(“in a composite mark comprising a design and words, the
verbal portion of the mark is the one most likely to
indicate the origin of the goods to which it is affixed”).
The word portion of a composite word and design mark is
generally accorded greater weight because it would be used
to request the goods. See In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987). This is particularly true where,
as here, the design element does not significantly add to
or change the commercial impression created by the wording
Serial No. 78774555 and 78777730
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FOUR SEASONS.4 In fact, applicant's design, which is a
representation of the four seasons of a year, although more
prominent than the wording in the mark, merely serves to
reinforce the meaning and commercial impression conveyed by
FOUR SEASONS.
Similarly, in applicant's word mark, FOUR SEASONS
dominates over COURTYARD. As the examining attorney
contends at unnumbered p. 6 of her brief, the connotation
of COURTYARD is that the goods are intended for outdoor
use, such as in a courtyard, or that of a COURTYARD line of
FOUR SEASONS brand goods. Thus, we give greater weight to
the FOUR SEASONS component of applicant's mark.
When we compare applicant's two marks with
registrant's mark in their entireties, giving appropriate
weight to the features thereof, we find that applicant's
marks are highly similar in sound, connotation and overall
commercial impression to registrant’s FOUR SEASONS SOLAR
LIGHT mark due to their shared term FOUR SEASONS, and that
any differences in the marks are far outweighed by the
similarities in the marks.

4 Applicant has pointed out that applicant's mark displays
partial images while registrant’s mark displays complete images
of the items depicted in the marks. This distinction is of no
moment because consumers will not make a side by side comparison
Serial No. 78774555 and 78777730
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Registration No. 1468188 – SEASONS-4 AND DESIGN
Much of the foregoing also holds true for the SEASONS-
4 mark. The word portion of this mark is the dominant term
of registrant’s mark because it is the term that consumers
will use to call for the goods. SEASONS-4 certainly is a
reference to the four seasons of the year and consumers
would perceive it as such. To the extent there is any
ambiguity, the design component of the mark, which includes
depictions of the sun, a snowflake, a leaf and a flower,
focuses the consumer on the “four seasons” connotation of
the mark. We point out too that both marks include
depictions of the exact same four elements; flower, sun,
snowflake and leaf. In view of these similarities in the
marks, we find that applicant's marks taken as a whole are
similar to registrant’s SEASONS-4 mark taken as a whole in
appearance, connotation and commercial impression.5
We find, therefore, that when applicant's marks and
the cited SEASONS-4 mark are considered in their
entireties, they are similar in sound, appearance,
connotation, and commercial impression.

of the marks and will not likely recall these subtle differences
in the marks.
5 Applicant's argument regarding “reverse combinations of the
same words” is not persuasive because FOUR SEASONS and SEASONS-4
do not create distinctly different commercial impressions. The
connotation of applicant's marks to the consumer is not “a patio
Serial No. 78774555 and 78777730
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Third Party Uses and the Strength of Registrants’ Marks
In support of its contention that FOUR SEASONS is
“diluted” and “not strong,” applicant has introduced into
the record numerous U.S. registrations for marks containing
the term FOUR SEASONS.6 However, “third-party applications
and registrations are not evidence that the marks shown
therein are in use, or that the public is familiar with
them.” In re 1st USA Realty Professionals Inc., 84 USPQ2d
1581, 1586 (TTAB 2007). Also, most of the registrations
are for goods which are unrelated to registrants’ goods.
Thus, such registrations have limited probative value.
Applicant has also made of record hundreds of pages
from what appears to be a trademark search report. This
document contains listings of federal and state trademark
registrations and information from a variety of sources
such as “Name Protect,” “Dun & Bradstreet” and “US Business
Directory.” Trademark search reports from a third party
have limited probative value. However, even if we were to
consider the search report, we would not be persuaded that
third parties are using FOUR SEASONS or that registrants’
marks are weak. Specifically, the federal and state

for use all year round” but rather is of an outdoor line of FOUR
SEASONS brand goods.
6 We do not consider those registrations which are for dissimilar
marks, e.g., the registration for SEASONMAKER.
Serial No. 78774555 and 78777730
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registrations in the search report do not establish use of
a trademark and therefore have limited probative value.
Faultless Starch Co. v. Sales Producers Assoc., Inc., 530
F.2d 1400, 189 USPQ 141 (CCPA 1976). So do the listings of
marks and business names; alone, they do not reveal the
extent of the use made by the listed third-party
businesses; some of the businesses may never have gotten
off the ground, or may have gone out of business; and some
of the businesses may be small enterprises, in remote
locations, that have affected only a minuscule portion of
the general purchasing public for the goods involved in
this appeal. See Lloyd's Food Products Inc. v. Eli's Inc.,
987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); In re
Broadway Chicken Inc., 38 USPQ2d 1559 (TTAB 1996); Carl
Karcher Enterprises Inc. v. Stars Restaurants Corp., 35
USPQ2d 1125 (TTAB 1995). With regards to the remaining
information in the search reports such as the Internet
addresses and webpages, they too have limited probative
value because there is no evidence that the websites are
still active and because many of the products or services
which are the subjects of the webpages are unrelated to
those set forth in applicant's and registrants’
identifications of goods.
Serial No. 78774555 and 78777730
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In view of the foregoing, we find that applicant has
not established that registrants’ marks are weak or that
FOUR SEASONS is commonly used by third parties for similar
goods and/or services. To the extent that the registered
marks suggest a characteristic or feature of the identified
goods, namely, that they are suitable for outdoor use in
all four seasons, the scope of protection to be afforded
such marks is sufficient to prevent the registration of
highly similar marks for goods that are identical in part
or otherwise related.
Conclusion
Upon consideration of the relevant du Pont factors
discussed above, as well as the evidence of record and the
arguments of the examining attorney and applicant, we
conclude that when purchasers who are familiar with
registrants’ marks for its claimed goods encounter
applicant's similar marks on related or partially identical
goods, they are likely to be confused. Also, to the extent
that we have any doubts, we have resolved them, as we must,
in favor of the prior registrants. See In re Hyper Shoppes
(Ohio) Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988);
In re Pneumatiques, Caoutchouc Manufacture et Plastiques
Kleber-Colombes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973).
Serial No. 78774555 and 78777730
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Decision: The refusals to register under Section 2(d)
of the Trademark Act are affirmed for both applications.