Truth Hardware Corp.

Trademark Trial and Appeal Board

Oct 31, 2013

No. 85072009 (T.T.A.B. Oct. 31, 2013)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: October 31, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Truth Hardware Corp.
________

Serial No. 85072009
_______

Tye Biasco of Patterson Thuente Christensen Pedersen PA for
Truth Hardware Corp.

Ramona Ortiga Palmer, Trademark Examining Attorney, Law
Office 117 (Brett J. Golden, Managing Attorney).
_______

Before Quinn, Cataldo and Gorowitz,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Truth Hardware Corp., filed an application
to register in standard characters on the Principal
Register the mark SENTRY for, as amended,
door handle set kits comprising metal handles,
hinges, locks, and latches; door hardware,
namely, metal handles, hinges, locks, and latches
sold exclusively to window manufacturers and door
manufacturers

Ex Parte Appeal No. 85072009

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in International Class 6.1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as used in connection with its goods, so
resembles the marks shown below, previously registered on
the Principal Register by the same entity: SENTRY SECURITY
FASTENERS INC. in standard characters reciting, inter alia,
metal door frames, keys for locks, cylinders for
locks, locks not including combination locks,
door closers and door kick plates; metal locking
mechanisms and their structural components; and
metal window frames, all for wholesale and
institutional construction distribution

in International Class 6,2 and the mark shown below

reciting, inter alia,
anchoring systems, namely metal fastening
anchors; metal hardware, namely rivets, screws,
threaded inserts for metal screws and metal
bolts, threaded rods and nuts; metal door frames
and hardware, namely keys for locks, cylinders
for locks, hinges, locks, hinge plates, door
closers and door kick plates; metal fasteners,

1 Application Serial No. 85072009 was filed on June 25, 2010,
seeking registration on the Principal Register under Section 1(b)
of the Trademark Act, asserting a bona fide intent to use the
mark in commerce in connection with the recited goods.

2 Registration No. 3193830 issued on January 2, 2007 with a
disclaimer of SECURITY FASTENERS INC. The registration also
recites goods in International Class 7. Section 8 affidavit
accepted; Section 15 affidavit acknowledged.

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namely screws, bolts, pins, anchors, studs, and
rods; metal locking mechanisms and their
structural components namely locks, keys, and
accessories, electrical connectors; and metal
window frames, all for wholesale and
institutional construction distribution

in International Class 6,3 as to be likely to cause
confusion, mistake or deception. When the refusal was made
final, applicant appealed.
Likelihood of Confusion
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, 567 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis two key, though not exclusive,
considerations are the similarities 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, 27 (CCPA 1976). See also In re Dixie

3 Registration No. 3131545 issued on August 22, 2006. Color is
not claimed as a feature of the mark. The mark consists of the
word "SENTRY" in block letters that feature a design of nuts and
bolts. The registration also recites goods in International
Class 7. Section 8 affidavit accepted; Section 15 affidavit
acknowledged.

Ex Parte Appeal No. 85072009

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Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed.
Cir. 1997).
Registration No. 3131545
For purposes of the du Pont factors that are relevant
to this appeal we will consider applicant’s involved mark
and the mark that is the subject of cited Registration No.
3131545 inasmuch as the mark protected thereby is more
similar to the mark in the involved application than the
mark in cited Registration No. 3193830.
The Marks
We first turn our attention to a comparison of the
marks. In determining the similarity or dissimilarity of
the marks, we must compare the 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 (Fed. Cir. 2005). 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 their entireties that confusion as to the source
of the goods offered under the respective marks is likely
to result.
In this case, applicant’s mark, SENTRY, is similar to
the registered mark,
Ex Parte Appeal No. 85072009

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in that the marks consist of wording that is identical in
sound and highly similar in appearance. In addition,
because applicant’s mark is displayed in standard
characters, we must consider that it may be presented in
the same or similar stylization found in registrant’s mark.
See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1909 (Fed. Cir. 2012). See also Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847-48 (Fed. Cir.
2000). In addition, because both marks consist of the term
“sentry,” the term would have the same meaning or
connotation as applied to applicant’s and registrant’s
respective goods, many of which relate to the security of
property or real estate.
As a result, we find that, when viewed in their
entireties, the marks SENTRY and are
very similar and, overall, convey highly similar commercial
impressions. That is to say, the marks appear to be
variations of each other that nonetheless point to a common
source. As such, this du Pont factor favors a finding of
likelihood of confusion.
Ex Parte Appeal No. 85072009

6
The Goods, Channels of Trade and Classes of Purchasers
We turn now to our consideration of the identified
goods, the channels of trade in which they are encountered
and the classes of purchasers to which they are marketed.
We begin by noting that it is not necessary that the goods
at issue 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 instead that the
respective goods 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, give rise to the mistaken
belief that they originate from the same producer. See In
re International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
We begin our analysis by addressing applicant’s
arguments relating to the recited trade channel limitations
in the respective identifications of goods. As noted
above, applicant’s goods are identified as
door handle set kits comprising metal handles,
hinges, locks, and latches; door hardware,
namely, metal handles, hinges, locks, and latches
sold exclusively to window manufacturers and door
manufacturers

and registrant’s goods are identified as
Ex Parte Appeal No. 85072009

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anchoring systems, namely metal fastening
anchors; metal hardware, namely rivets, screws,
threaded inserts for metal screws and metal
bolts, threaded rods and nuts; metal door frames
and hardware, namely keys for locks, cylinders
for locks, hinges, locks, hinge plates, door
closers and door kick plates; metal fasteners,
namely screws, bolts, pins, anchors, studs, and
rods; metal locking mechanisms and their
structural components namely locks, keys, and
accessories, electrical connectors; and metal
window frames, all for wholesale and
institutional construction distribution.

Applicant argues that because of the language “sold
exclusively to window manufacturers and door manufacturers”
in the application and “all for wholesale and institutional
construction distribution” in the cited registration, the
“goods are marketed through expressly and mutually
exclusive channels of trade and are directed to different
consumers.”4 Applicant asserts that, as a result, “it is
unlikely that the goods would be encountered by the same
purchasers under circumstances that could give rise to the
mistaken belief that the goods come from a common source.”5
In this regard, applicant argues that all of
registrant’s identified goods must be limited to a specific
trade channel and class of purchasers, i.e., “wholesale and
institutional construction distribution.” Applicant argues

4 Applicant’s brief, p. 7.

5 Id.

Ex Parte Appeal No. 85072009

8
that this restriction to registrant’s trade channels and
purchasers, when combined with applicant’s restriction of
its own trade channels and purchasers to “window
manufacturers and door manufacturers,” distinguishes
applicant’s and registrant’s trade channels and purchasers,
and suffices to eliminate any likelihood of confusion among
purchasers of the respective goods.
Applicant’s argument is unavailing.
In the cited registration’s identification of goods,
the wording “metal window frames, all for wholesale and
institutional construction distribution” is separated by a
semicolon from the numerous goods recited beforehand.
Similarly, in the involved application, the wording “door
hardware, namely, metal handles, hinges, locks, and latches
sold exclusively to window manufacturers and door
manufacturers” is separated by a semicolon from the “door
handle set kits comprising metal handles, hinges, locks,
and latches” recited beforehand.
Under standard examination practice and for purposes
of a Section 2(d) refusal, the semicolons in registrant’s
identification of goods separate the recited goods into
discrete categories which are not connected to nor
dependent on the “metal window frames, all for wholesale
and institutional construction distribution” set out by a
Ex Parte Appeal No. 85072009

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semicolon at the end of the recitation, notwithstanding the
presence of the term “all” preceding the language at the
end thereof.6 In a similar fashion, the semicolon in
applicant’s identification of goods separates “door handle
set kits comprising metal handles, hinges, locks, and
latches” into a discrete category of goods which is neither
connected to nor dependent on the “door hardware, namely,
metal handles, hinges, locks, and latches sold exclusively
to window manufacturers and door manufacturers” that
follows. Both applicant’s and registrant’s goods that are
separately set out in the respective identifications by
means of semicolons, stand alone and independently as a

6 See Trademark Manual of Examining Procedure (TMEP) (April 2013)
at Section 1402.01(a), “General Guidelines for Acceptable
Identifications of Goods or Services”:

Semicolons should generally be used to separate
distinct categories of goods or services within a
single class. For example, “cleaners, namely, glass
cleaners, oven cleaners, and carpet cleaners;
deodorizers for pets” is an acceptable identification
in Class 3. In this example, the word “cleaners”
names the category covering “glass cleaners, oven
cleaners, and carpet cleaners.” The semicolon prior
to “deodorizers for pets” indicates that the
deodorizers are a separate category of goods from the
cleaners. See In re Midwest Gaming & Entm’t LLC, 106
USPQ2d 1163, 1166 (TTAB 2013) (finding that, because a
semicolon separated the two relevant clauses in
registrant’s identification, its “restaurant and bar
services” is a discrete category of services that
stands alone and independently as a basis for
likelihood-of-confusion analysis, and is not connected
to nor dependent on the services set out on the other
side of the semicolon).

Ex Parte Appeal No. 85072009

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basis for our likelihood of confusion findings under the
second and third du Pont factors. See In re Midwest Gaming
& Entertainment LLC, 106 USPQ2d at 1166.
We further observe that, in this case, applicant
amended its identification of goods to recite the stated
trade channel limitations in a communication filed on
November 3, 2011. The examining attorney, in her
subsequent Office action issued on December 7, 2011,
discussed the trade channel limitations in registrant’s
cited registrations, and clearly indicated that the
limitations recited therein did not apply to the goods
separated therefrom by semicolons. Thus, applicant was on
notice of the Office’s policy regarding semicolons in
identifications of goods since that time and did not seek
to either further amend its own identification of goods or
seek a limitation of the goods in the cited registrations
pursuant to Trademark Act Section 18, 15 U.S.C. § 1068.
While we do not know whether registrant intended the trade
channel limitations in its identification of goods to apply
to all the goods recited therein, we must determine the
similarities between the goods, and their trade channels,
based upon the wording of their respective identifications
and not inferences regarding registrant’s, or for that
matter, applicant’s, intentions.
Ex Parte Appeal No. 85072009

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Therefore, we must view the goods not specifically
limited as to their trade channels as traveling in all the
channels of trade appropriate for such goods. See In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). With the foregoing
in mind, we turn then to our consideration of the
similarities between the goods identified in the involved
application and cited registration.
In support of the refusal to register, the examining
attorney has made of record evidence from the following
commercial internet websites indicating that the entities
operating these sites market certain goods identified in
the involved application and cited registration under the
same marks:7
kwikset.com offers locks and door handle sets;

consumer.schlage.com offers locks and door handle
sets;

homedepot.com offers locks and door handle sets,
and displays a latch as part of a lock and door
knob:

lowes.com offers locks and door handle sets, and
displays a latch as a component of a door handle;

houseofantiquehardware.com offers door knobs,
kick plates, hinges, and keys;

7 The internet evidence was attached as exhibits to the examining
attorney’s May 3, 2011 and July 16, 2012 Office actions.

Ex Parte Appeal No. 85072009

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knobsandhardware.com/door-hardware offers door
hinges, handles, kick plates, and locks, and
displays a latch as a component of door handles;

ebuilderdirect.com offers door levers, locks, and
hinges, and displays a latch as a component of a
door lever and a lock;

thehardwarehut.com/door_levers offers door
levers, locks, kick plates and hinges;

handlesets.com/door-kick-plates offers kick
plates, door levers, hinges, locks, and
deadbolts, and displays a latch as a component of
door levers, door knobs, and deadbolts.

Such evidence shows that these entities are using a single
mark to identify applicant’s types of goods as well as
those of registrant.
In addition, the examining attorney has made of record
numerous use-based third-party registrations, of which the
following show that various entities have adopted a single
mark for goods identified in the involved application and
cited registration:8
Registration No. 2160065 for door hardware of
metal, namely, keys and key cylinders, locksets,
door knobs, door handles, metal plates, latch
strikes, and working trim for exterior and
interior doors;

Registration No. 3550227 for metal door hardware,
namely, frames, jambs, kick plates, metal glass
door mounting clamps and equipment in the nature
of railings, mounting posts and connectors and
separators stand-offs, cap assemblies consisting
of railing systems, namely, caps, railings,

8 The third-party registration evidence was attached as exhibits
to the examining attorney’s December 7, 2011 Office action.
Ex Parte Appeal No. 85072009

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mounting posts and connectors, hinges, door
handles;

Registration No. 3106168 for metal door hardware,
namely, door knobs, door levers, and door lever
sets, consisting primarily of door handles, and
fastening hardware, door handles and door handle
sets consisting primarily of door handles, keys
and fastening hardware, door hinges and latches,
locks, deadbolts, keys and key blanks;

Registration No. 3518495 for door hardware,
namely, keys and key cylinders; metal door bolts;
metal door latches; metal door trim; metal
hinges; metal keys for locks; metal locking
mechanisms; metal locks; metal locks and keys
therefor; metal sash fasteners for windows; metal
sash locks; metal security lock cylinders; small
items of metal hardware, namely, high security
locks and sheet metal plates; metal lock sets
comprised of locks and keys therefor; locks and
keys and parts thereof, namely, escutcheon plates
and trim; metal door hardware, namely, door locks
comprised of deadbolts, levers, knobs, keys,
cylinders and handle sets, and door knobs;

Registration No. 4051572 for door hardware,
namely, metal door locks, metal door handles,
metal latches, metal bolts, metal hinges, metal
side lights, metal panic bars, metal deadbolts,
and metal glazing channels; and

Registration No. 3955052 for door hardware, made
primarily of metal, namely, door handles, door
knobs, door levers, locks and latches.

Third-party registrations which individually cover a number
of different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993). Taken as a whole, the internet and third-party
Ex Parte Appeal No. 85072009

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registration evidence of record establishes that
applicant’s goods are related to the goods identified in
the cited registration, and further may be identified under
the same mark. As a result, this du Pont factor favors a
finding of likelihood of confusion.
With regard to the channels of trade in which the
goods are encountered, we look as we must to the goods as
identified in the involved application and cited
registration. See Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990). See also Paula Payne Products v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973).
As discussed above, the goods identified by applicant
and registrant which are separated by semicolons from the
identifications having restricted trade channels must be
presumed to move in all channels of trade normal for such
goods, and to be purchased by all of the usual consumers
for such goods. In re Elbaum, 211 USPQ at 640, citing
Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA
1958). Here, the examining attorney’s evidence clearly
shows that these non-limited goods are related in function,
and may be marketed and sold together, notwithstanding that
certain other goods identified by applicant and registrant
are subject to trade channel limitations. Further, the
Ex Parte Appeal No. 85072009

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examining attorney’s internet evidence shows that these
goods may be marketed to and purchased by the public at
large.
We observe in addition that even if we were to
construe the respective identifications of goods to recite
trade channel restrictions relating to all of the goods,
there is no evidence of record that these trade channels
are mutually exclusive. That is to say, there is no
evidence that goods marketed to “window manufacturers and
door manufacturers” move in trade channels that are so
distinct from those in which goods marketed for “wholesale
and institutional construction distribution” are
encountered that they will never be encountered together.
In any event, the ultimate consumers of goods marketed to
window and door manufacturers on one hand and distributed
to wholesale and institutional construction firms on the
other could view the marks on all of the identified goods.
Finally, and as noted above, it is not necessary for the
goods to be directly competitive or move in the same trade
channels to support a finding of likelihood of confusion.
See In re International Telephone & Telegraph Corp., 197
USPQ at 911.
Ex Parte Appeal No. 85072009

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As a result, the du Pont factors of the channels of
trade and classes of consumers favor a finding of
likelihood of confusion.
Sophistication of Purchasers
Further as discussed above, the goods found to be
related in the application and the cited registration do
not include any limitation on the customers to whom the
respective goods are sold so we must consider the relevant
purchasers to include all of the usual customers for the
recited goods. See In re Elbaum, 211 USPQ at 640.
The consumers of these goods would include both
contractors, distributors and other building professionals
as well as homeowners and “do it yourselfers.” While some
of these customers are undoubtedly sophisticated in such
matters, the potential purchasers for these goods also
include those of no more than an ordinary level of
sophistication.
Even if we accept, in considering the fourth du Pont
factor, applicant’s assertion that the involved goods may
be the subject of sophisticated purchases, even careful
purchasers are likely to be confused by highly similar
marks used in connection with related goods. As stated by
our primary reviewing court, “[t]hat the relevant class of
buyers may exercise care does not necessarily impose on
Ex Parte Appeal No. 85072009

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that class the responsibility of distinguishing between
similar trademarks for similar goods. ‘Human memories even
of discriminating purchasers ... are not infallible.’” In
re Research and Trading Corp., 793 F.2d 1276, 230 USPQ 49,
50 (Fed. Cir. 1986), quoting Carlisle Chemical Works, Inc.
v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112
(CCPA 1970).
Therefore, even if purchasers of the identified goods
may exercise care before purchasing these goods does not
mean there can be no likelihood of confusion. In the
present case, the similarity between the marks and the
similarity between the goods as identified outweigh any
sophisticated purchasing decision. See HRL Associates,
Inc. v. Weiss Associates, Inc., 12 USPQ2d 1819 (TTAB 1989),
aff’d, Weiss Associates, Inc. v. HRL Associates, Inc., 902
F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of
goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods). As such, this
du Pont factor is, at best, neutral or slightly favors a
finding of likelihood of confusion.
Summary
In light of the foregoing, we conclude that consumers
familiar with registrant’s goods sold under its SENTRY and
design mark would be likely to believe, upon encountering
Ex Parte Appeal No. 85072009

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applicant’s goods sold under its mark, that the goods
originate with or are associated with or sponsored by the
same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant and not, as urged by applicant, in its favor.
See In re Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6
USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289 (Fed. Cir.
1984). In view of our findings above, it is not necessary
to address the examining attorney’s refusal to register
under Section 2(d) based upon Registration No. 3193830.
Decision: The refusal under Section 2(d) of the Act
is affirmed as to cited Registration No. 3131545.