Tyco Fire Products, LP and ADT Services AGv.Buckeye Fire Equipment Company

Trademark Trial and Appeal Board

Aug 1, 2012

No. 91192716 (T.T.A.B. Aug. 1, 2012)

Mailed:
August 1, 2012
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Tyco Fire Products, LP1 and ADT Services AG
v.
Buckeye Fire Equipment Company
________

Opposition No. 91192716
against Serial No. 77693791
_______

Brooks R. Bruneau of Porzio Bromberg & Newman, PC, for Tyco
Fire Products, LP and ADT Services AG.

Kathryn A. Gromlovits of Shumaker Loop & Kendrick, LLP, for
Buckeye Fire Equipment Company.
_______

Before Bucher, Grendel and Lykos, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark KITCHEN GUARD (in standard character format)
for “fire extinguishers” in International Class 9.2

1 Although the original Notice of Opposition was filed by
Ansul, LLC and ADT Services AG, the records show that Ansul, LLC
merged with assignee, Tyco Fire Products, LP, on December 25,
2009. See Reel 4177/Frame 0921.
2 Application Serial No. 77693791 was filed on March 18, 2009,
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce. No claim is made to the exclusive right to
use the word “Kitchen” apart from the mark as shown.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91192716
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Tyco Fire Products, LP and ADT Services AG opposed the
registration of applicant’s mark on the grounds of priority
of use and likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). Opposers’ allegations,
in connection with their Section 2(d) claim, include the
following:
9. The “KITCHEN GUARD” trademark sought to
be registered by Applicant is nearly
identical in appearance, sound and
commercial impression to Opposer’s K Marks,
namely its “K-GUARD,” “KITCHEN ONE” [marks]
…3 registered for portable fire
extinguishers … .

10. Applicant has adopted a combination of
Opposer’s K Marks, namely using “Guard”
from U.S. Registration No. 2398376 (K-
GUARD) … and combined “Guard” with the term
“Kitchen,” also used by Opposer in its
registered marks.

11. Consequently, Applicant’s KITCHEN
GUARD trademark and associated goods would
be viewed by consumers as emanating from
Opposer by either erroneously believing it
to be an existing trademark of Opposer, or
a new trademark that is part of the series
of Opposer’s K marks.

12. Applicant’s KITCHEN GUARD trademark is
confusingly and deceptively similar to

3 Opposers originally filed this Notice of Opposition
claiming four marks (e.g.,
KITCHEN ONE and K-GUARD,
KITCHEN KNIGHT and KITCHEN
KNIGHT & design, as shown at
right, the latter two owned by
ADT Services AG). However,
based on discovery in the case, opposers have elected to move to
final decision based only upon the K-GUARD and KITCHEN ONE
trademarks now owned solely by Tyco Fire Products.
Opposition No. 91192716
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Opposer’s previously used and duly
registered K Marks.

13. The goods identified in the “KITCHEN
GUARD” Application Serial No. 77693791 are
legally identical to the fire extinguisher
goods offered by Opposer under its K Marks
… [such] that consumers are likely to
believe that Applicant’s goods originate
with Opposer’s goods, or vice versa.

14. The potential consumers for
Applicant’s goods are the consumers of
Opposer’s goods.

15. Due to the confusing similarity
between Applicant’s “KITCHEN GUARD”
trademark and Opposer’s K Marks, which were
previously used and duly registered, the
identical nature … of the parties’ goods,
and the overlapping of consumers who are
likely to believe that Applicant’s goods
originate with Opposer or vice versa, there
would be resulting likelihood of confusion
in the marketplace and damage to Opposer.
Because of this very strong similarity of
the marks and the identical … nature of the
goods, registration of “KITCHEN GUARD” by
Applicant is likely to cause a belief by
consumers that Applicant’s goods are
endorsed by, sponsored by, or approved by
Opposer, all causing damage to Opposer.

Opposers’ pleaded ownership of the following relevant
federal trademark registrations:
K-GUARD for “portable fire extinguishers” in
International Class 9;4 and
KITCHEN ONE for “portable fire extinguishers” in
International Class 9.5

4 Registration No. 2398376 issued on October 24, 2000;
renewed.
5 Registration No. 2870427 issued on August 3, 2004; Section 8
affidavit accepted and Section 15 affidavit acknowledged. No
Opposition No. 91192716
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Applicant filed an answer to the notice of opposition,
by which it denied the allegations essential to opposers’
Section 2(d) claim. Only opposers presented any evidence at
trial, but the case has been fully briefed.
We have considered all of the evidence of record and
all of the parties’ arguments. Based on the evidence
discussed below, and for the reasons discussed below, we
hereby sustain the opposition.6
PRELIMINARY MATTER
Applicant’s testimonial deposition of its
representative, William Vegso, taken on July 20, 2011, was
neither submitted to the Board nor served on opposers’
counsel until November 8, 2011. Given that it was not filed
with the Board or served on opposers in a prompt manner, we
have not considered this transcript or the attachments
thereto. 37 CFR § 2.125(a); TBMP § 703.01(m) (3rd ed. rev.
2012). We do note that its contents appear to be largely
duplicative of Mr. Vegso’s earlier confidential testimony
deposition of September 22, 2010, that opposers made of

claim is made to the exclusive right to use the word “Kitchen”
apart from the mark as shown.
6 Although the original notice of opposition contained
allegations of a likelihood of dilution by blurring (¶¶ 16 and
17), this basis for opposition has presumably been dropped during
the course of this proceeding.
Opposition No. 91192716
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record. We hasten to add that even if we had made it part
of the record, it would not have changed the outcome herein.
THE EVIDENCE OF RECORD
During its main testimony period, opposer submitted the
following evidence:
(1) the testimony deposition of James Cox, Senior
Manager, Marketing Communications for Tyco Fire
Protection Products, a division of opposer, Tyco
Fire Products, LP, and exhibit thereto, namely
Nos. Opp-1 to Opp-11, TTABVue Entry #23;
(2) the testimony deposition of Mark Neumann, Director
of Product Management for Standard Products at
Ansul, a division of Tyco Fire Products, LP, and
exhibit thereto, namely Nos. Opp-12 to Opp-13,
TTABVue Entry #23;
(3) opposers’ first Notice of Reliance (filed on May
12, 2011) on opposers’ claimed registrations (1st
NOR Exs. A-D), on an Examiners Amendment retrieved
from the United States Patent and Trademark Office
database (1st NOR Exs. E), on certain of
applicant’s discovery responses (1st NOR Exs. F-H),
and Post Registration documents related to the
maintenance of Tyco Fire Products, LP.’s K-GUARD
Opposition No. 91192716
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and KITCHEN ONE registrations (1st NOR Exs. I-J),
TTABVue Entry #21; and,
(4) opposers’ second Notice of Reliance (filed on May
16, 2011) on the “Confidential” testimony
deposition of William Vegso, Rule 30(b)(6)
representative of applicant, dated September 22,
2010, TTABVue Entry #22.
INITIAL FINDINGS OF FACT
The evidence of record establishes the following
pertinent facts regarding the parties.
Opposer
Opposer, Tyco Fire Products, LP, (“Tyco Fire”) is a
fire suppression and building products company that
includes the division Tyco Fire Protection Products. (Cox
Test., at 5; Neumann Test. at 3-4). Although ADT Services
AG (“ADT”) remains in the caption as an opposer, since the
results of plaintiffs’ discovery, the relevant plaintiff has
been Tyco Fire, and specifically its Tyco Fire Protection
Products division. Among the Tyco Fire products sold
nationwide are two very similar portable fire
extinguishers designed to be used in kitchen grease fires
Opposition No. 91192716
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(Neumann Test. at 4-5, 10; Cox Test. at 11-19), sold under
the marks K-GUARD and KITCHEN ONE.
Applicant
Applicant, Buckeye Fire Equipment Company (“Buckeye”), is
a competitor of Tyco Fire (Neumann Test. at 5-7), and filed
the involved intent-to-use application to register the mark
KITCHEN GUARD in connection with fire extinguishers. Both
the involved product and its chosen source-identifier were
developed by William Vegso. Prior to working for applicant,
Mr. Vegso was employed by Pyro-Chem when Tyco International
purchased Pyro-Chem and made it a division of Ansul, Inc.
(See Applicant’s Responses Nos. 3-6 to Opposers’ First Set
of Requests for Admission, 1st NOR — Exhibit H; Vegso Dep.
Tr. at 8, 2nd NOR, Ex. K). At the time applicant conducted
a trademark search for the KITCHEN GUARD trademark, Mr.
Vegso was aware of Opposers’ K-GUARD and KITCHEN ONE marks.
(see Applicant’s Responses Nos. 7, 12 to Opposers’ First
Set of Requests for Admission, 1st NOR — Exhibit H; Vegso
Dep. Tr. at 29-30, 2nd NOR, Ex. K).
Applicant’s product line includes fire extinguishers and
fire extinguisher systems for commercial kitchens. (See
Applicant’s Response Nos. 13 to Opposers’ First Set of
Requests for Admission, 1st NOR — Exhibit H). Applicant
Opposition No. 91192716
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advertises its fire extinguisher products generally as
appropriate for commercial buildings that house law firms,
retail stores, restaurants, etc. (Vegso Dep. Tr. at 59, 2nd
NOR, Exhibit K). Through its wholly-owned and controlled
subsidiary, Shield Fire Protection,
applicant has allegedly sold a fire
extinguisher product for consumers
to use for kitchen fires in the
home, touting the use of the same
wet chemical agent that protects
deep fat fryers in commercial
kitchens (Vegso Dep. Tr. at 13-15,
46, 65-66, 72-74; Vegso Dep. Tr.,
and Ex. 3 “Product Catalog” at
Bates BUK 0009, Ex. 4 “Aerosol
Can”). On its
trade dress,
applicant
states that
KITCHEN GUARD
is a “Kitchen
Cooking Oil
and Grease
Opposition No. 91192716
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7

Fire Suppressant” that was
“Developed from the same proven wet
chemical agent used in restaurant
fire suppression systems.” (See
Exhibit 4, page 2 of Vegso Dep. Tr.
at 2nd NOR Exhibit K).
OPPOSERS’ BURDEN
To prevail in this opposition proceeding, opposers must
establish (1) their standing to oppose and (2) at least one
statutory ground of opposition to registration of
applicant’s mark. See Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); and
Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1726 (TTAB 2010).
OPPOSERS’ STANDING
Tyco Fire has properly made its pleaded registrations
of record, which establish that the registrations are in
effect and are owned by opposer, Tyco Fire. (1st NOR —
Exhibits A-B, I-J). In view thereof, and because Tyco Fire
has established that its pleaded Section 2(d) claim is not
frivolous, we find that opposer, Tyco Fire, has a real

7 This image was drawn from applicant’s website,
http://www.shieldprotects.com/kguard.html as accessed on
September 20, 2010. Vegso Ex. 25.
Opposition No. 91192716
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interest in the outcome of this proceeding and thus a
reasonable basis for believing that it would be damaged by
the issuance to applicant of the registration applicant
seeks. Accordingly, we find that opposer, Tyco Fire, has
established its standing to oppose registration of
applicant’s mark. See Cunningham v. Laser Golf Corp.,
55 USPQ2d 1842, 1844. See also Lipton Industries, Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
OPPOSER’S SECTION 2(d) CLAIM
Trademark Act Section 2(d) bars registration of an
applicant’s mark if it “ … so resembles a mark registered in
the Patent and Trademark Office … as to be likely, when used
on or in connection with the goods of the applicant, to
cause confusion, or to cause mistake, or to deceive.” Thus,
in order to prevail on its Section 2(d) claim, opposer, Tyco
Fire, must establish (1) its priority of use of its pleaded
mark(s) and/or its ownership of registration(s) of its
pleaded mark(s), and (2) the existence of a likelihood of
confusion between applicant’s mark and opposers’ pleaded
mark(s).
As noted above, opposer bases its Section 2(d) claim on
its ownership of registrations of the marks K-GUARD and
Opposition No. 91192716
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KITCHEN ONE used in connection with portable fire
extinguishers.
Priority
As noted earlier, opposer, Tyco Fire, has properly made
of record its two pleaded registrations, which establish
that the registrations are in effect and are owned by
opposer. Accordingly, Section 2(d) priority is not at issue
in this case as to the marks and the goods covered by those
registrations, and opposer therefore is not required to
prove actual priority of use with respect to those marks and
services. See King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); and Miss
Universe L.P. v. Community Marketing Inc., 82 USPQ2d 1562,
1566 (TTAB 2007).
Likelihood of Confusion
Accordingly, we turn to a consideration of the question
of likelihood of confusion. Our determination of likelihood
of confusion is based upon our analysis of all of the
probative facts in evidence that are relevant to the factors
bearing on this issue. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
Opposition No. 91192716
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The salient question to be determined is whether there
is a likelihood that the relevant purchasing and/or using
public will be misled to believe that the goods offered
under the involved marks originate from a common source.
See J.C. Hall Company v. Hallmark Cards, Incorporated,
340 F.2d 960, 144 USPQ 435 (CCPA 1965); and The State
Historical Society of Wisconsin v. Ringling Bros.-Barnum &
Bailey Combined Shows, Inc., 190 USPQ 25 (TTAB 1976).
Opposer must establish by a preponderance of the evidence
that there is a likelihood of confusion. Crash Dummy Movie
LLC v. Mattel Inc., 601 F.3d 1387, 94 USPQ2d 1315, 1316
(Fed. Cir. 2010). The relevant du Pont factors in the
proceeding now before us are discussed below.
Goods and services
Our inquiry into this du Pont factor is whether the
goods are so related such that a consumer may believe the
marks indicate that the goods emanate from a single source.
See On-line Careline Inc. v. America Online Inc., 229 F.3d
1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); and In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001).
As to the parties’ respective goods, the evidence shows that
opposers’ marks are registered in connection with portable
Opposition No. 91192716
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fire extinguishers. Applicant is seeking registration for
fire extinguishers. Applicant’s “fire extinguishers”
encompass opposer’s registered “portable fire
extinguishers,” and therefore the parties’ goods are legally
identical.
In arguing that the Board should consider the context
of the actual marketplace, applicant argues in its brief (at
14-15, citations and footnotes omitted):
Here, Buckeye’s goods are listed as “fire
extinguishers” and Tyco’s goods are listed as
“portable fire extinguishers.” …. [T]he goods
associated with Buckeye’s KITCHEN GUARD mark are
very different from the goods connected to Tyco’s
KITCHEN ONE and K-GUARD marks. The goods
associated with the KITCHEN GUARD mark are
residential-use, small, lightweight, disposable
aerosol cans that are sold in retail stores like
Home Depot or Lowes for a price range of about
$10 to $20 to homeowners. … On the other hand,
Tyco’s goods are industrial-grade large, multi-
liter, refillable fire extinguishers that are only
sold through distributors for several hundred
dollars each for use in industrial and commercial
establishments such as schools, hospitals, and
restaurants.

However, in making a determination under this du Pont
factor, it is not necessary that the respective goods be
identical or even competitive in order to find that they are
related for purposes of our likelihood of confusion
analysis. Specifically, it is not relevant whether any
member of the relevant purchasing public would confuse a
Opposition No. 91192716
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small aerosol can with a large stainless steel industrial-
grade extinguisher having a gauge, a set pin and a hose.
Rather, the issue is whether there is a likelihood of
confusion as to the source of the goods. The goods need
only be sufficiently related that the relevant consumers or
users would be likely to assume, upon encountering the goods
offered under the respective marks at issue, that the goods
originate from, are sponsored or authorized by, or are
otherwise connected to the same source. See Black & Decker
Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1492 (TTAB
2007); and In re Wilson, 57 USPQ2d 1863, 1866-67 (TTAB
2001).
In reality, most of opposers’ fire extinguishers may
well be found in restaurants and other similar commercial
establishments, while most of applicant’s KITCHEN GUARD
fire extinguishers may well be found in residential
settings.
Nonetheless, as seen above, applicant emphasizes that
its KITCHEN GUARD product has a similar wet chemical agent
to the ones used in Tyco Fire’s involved portable fire
extinguishers, and that they are designed to extinguish the
same types of cooking oil and kitchen grease fires.
Additionally, both types of products are characterized as
backup or follow-up measures, even if the commercial kitchen
Opposition No. 91192716
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has an automatic, pre-engineered fire suppression system (of
the types also marketed by Tyco Fire and Buckeye).
Hence, given the facts of this case, the record
supports the conclusion that consumers encountering
applicant’s KITCHEN GUARD mark very well may believe that
it is a product associated with or sponsored by Tyco Fire
because the respective fire extinguishers offered by
applicant and Tyco Fire are meant as backup in
extinguishing the same types of cooking and grease fires.
Applicant has attempted to recast the standard of
review on this factor. In effect, applicant would have us
consider its identification of goods as if it were “small,
disposable fire extinguisher in an aerosol can.” However,
to do so would be to suspend our legal precedent that this
determination must be made based upon the goods as
identified in the application papers, when compared with
the goods identified in opposers’ pleaded registrations.
Cunningham v. Laser Golf Corp., 55 USPQ 2d 1842 (Fed. Cir.
2000).
Applicant points to the dissimilarity in the goods
based on the addition of the word “portable” in Tyco
Fire’s identifications of goods, arguing that this
dissimilarity is determinative. That is, applicant argues
that in order to be classified as “portable,” opposers’
Opposition No. 91192716
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involved fire extinguishers must pass rigorous testing by
Underwriters Laboratories to be “UL listed” under UL 711,
for example. By contrast, its disposable KITCHEN GUARD
aerosol cans cannot be “UL listed” under this standard.
Nonetheless, in touting its aerosol product, applicant
repeatedly makes reference in its catalogues, websites and
product trade dress to official sounding approvals, e.g.,
“Tested to UL 711A,” “recommended by the National Fire
Protection Association for tackling cooking oil fires in
commercial kitchens,” etc.
On the total record, we find that applicant’s argument
is entitled to little or no probative value under this
du Pont factor. In addition to the fact that applicant is
intentionally blurring the difference in the products’
respective fire suppression capabilities in the event of a
kitchen fire, nothing in the record shows that opposers’
potential customers or users, including restaurateurs who
might be aware of these differences in suppressing fires
would attribute any source-distinguishing significance to
such details.
While it is clear there are more stringent testing
requirements for a fire extinguisher required by fire
codes to be placed prominently in a commercial kitchen
than is the case for a disposable aerosol can in a
residence, we construe the “portable” in Tyco Fire’s
Opposition No. 91192716
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identifications of goods less as a term of art and more as
a way of distinguishing them from larger, built-in,
automatic fire suppression systems in restaurant kitchens,
for example. Accordingly, we construe opposers’
“portable fire extinguishers” as a subset of applicant’s
“fire extinguishers.”
The record shows that applicant’s entry into the fire
extinguisher market ties in very closely with the market for
kitchen fire suppressants. We find that that the relevant
purchasing public, who in this case would include restaurant
owners seeking additional fire protection, are likely to
assume that opposer, Tyco Fire, has expanded from
industrial-grade fire extinguishers to disposable fire
extinguishers for residential-use, much as Buckeye has done
with its KITCHEN GUARD product. Thus, even though Buckeye
has allegedly been assiduous in creating a wall between its
Shield Fire Protection division and Buckeye’s traditional
market for industrial-grade fire suppression equipment, we
find nonetheless that when one focuses on protection for
kitchen fires, the “fire extinguishers” of Buckeye’s Shield
Division and Tyco Fire’s claimed goods are legally closely
related.
Additionally, even if we were to assume that opposers’
“portable fire extinguishers” are not legally encompassed
Opposition No. 91192716
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within the “fire extinguishers” identified in applicant’s
involved application, we still find as a factual matter, for
all of the reasons stated above, that “portable fire
extinguishers” and “fire extinguishers” are at the very
least closely related for purposes of this du Pont factor.
This case is easily distinguishable from various cases
cited by applicant. In many of the cases where tribunals
found goods and/or services were not related, the only claim
or proof was that both were deemed to be within broadly-
defined categories. For example:
• Electrical:

In an ex parte refusal, the examiner, with
absolutely no evidence as to trade channels,
purchasers or even fields of application, relied
solely on the fact that the goods of both
applicant and registrant were all electrical in
character. However, while the summary opinion is
brief, we learn that applicant’s goods were
electrical fixtures whereas the goods identified
in the cited registration were electronic devices
used in the communication field. In re EMCO,
Inc., 177 USPQ 415, 415-16 (TTAB 1973).

Automotive batteries sold at retail and household
electrical lighting fixtures sold at wholesale
are not related goods. Pep Boys-Manny, Moe &
Jack v. Edwin F. Guth Co., 197 F.2d 527, 528, 94
USPQ 158, 159-60 (CCPA 1952).

Opposition No. 91192716
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• Computers:

This is a case cited by applicant that stands for
the startling proposition that a relationship
does not exist between listed goods and services
simply because each involves the use of
computers. Electronic Data Systems Corp. v. EDSA
Micro Corp., 23 USPQ2d 1460, 1463-64 (TTAB 1992).

• Electronic testing equipment in the aviation industry:

This is an infringement action (not one for
registration) where the Court found purchasers
would exercise a very high degree of care inasmuch
as plaintiff’s products cost in the tens of
thousands of dollars while defendant’s product
costs between two and five million dollars.
Furthermore, the Court found a substantial
difference between the functions of the respective
products (e.g., both electronic testing equipment
in aviation industry, but one for testing
equipment to monitor the mechanical performance of
propulsion systems vs. testing software) and a
seeming disjunction between their respective
purchasers (e.g., military versus civilian
aircraft). Atec, Inc. v. Societe Nationale
Industrialle Aerospatiale, 798 F.Supp. 411, 413,
24 USPQ2d 1951, 1953-54 (S.D. Tex. 1992).

• Color control:

The Court found that merely because both involved
products had some application to color control was
insufficient to find the goods related given the
obvious difference in the goods. Sal Iannelli,
Inc. v. Wasser, 411 F.2d 1350, 162 USPQ 260, 261
(CCPA 1969).

• Facilities engineering / planning:

The record contained absolutely no evidence that
restaurants having an interest in registrant’s
financial services would assume a connection with
applicant’s engineering services designed for
manufacturing facilities. In re Planprint Co.,
229 USPQ 621, 623-24 (TTAB 1986)

Opposition No. 91192716
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• Medical / health care:

Applicant cites to Astra Pharmaceutical Products,
Inc. v. Beckman Instruments, Inc., 718 F.2d 1201,
220 USPQ 786, 791 (1st Cir. 1983). In Astra, for
example, the Beckman analyzer was a highly
technical instrument costing between $35,000 and
$60,000. However, there are also significant
facts distinguishing this case from the case at
bar. For example, that case was an infringement
case, where Astra functioned as Astra
Pharmaceutical’s house mark, but Beckman’s product
mark was always used closely with the BECKMAN
house mark. This type of reasoning may be
relevant to a likelihood of confusion decision in
an infringement case, but cannot be considered in
a registration determination. Finally, there were
also found to be distinct channels of trade,
inasmuch as one set of goods went to the
hospital’s pharmacy while the other went to the
hospital’s chemistry labs.

All the above tribunals were faced with likelihood of
confusion determinations based on broadly-defined categories
in cases where the plaintiff or the Trademark Examining
Attorney failed to provide proof of the relationships of the
goods and/or services. Additionally, some of these case
involved additional factors, such as distinct channels of
trade, an absence of any common descriptive characteristics
between the allegedly-related goods or services, expensive
goods/services prompting the added care of quite
sophisticated purchasers, etc.
We find in this case, by contrast, that applicant’s
goods are fairly inexpensive and might well be purchased
with a low standard of care, they have substantially the
same purpose as opposers’ goods, there is a potential
Opposition No. 91192716
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overlap in the customer/user base, and opposers have
provided clear evidence of a relationship between the
respective goods.
For all of these reasons, we find that the parties’
respective goods are at a minimum related sufficiently, if
not identical, to support a finding that this du Pont factor
favors a conclusion that confusion is likely.
Similarity of Trade Channels and Purchasers.
Under this du Pont factor, we determine the similarity
or dissimilarity of the trade channels in which, and the
classes of purchasers to whom, opposers’ and applicant’s
respective goods are or would be marketed.
As to trade channels, applicant argues that its Shield
Fire Protection subsidiary operates in a totally different
trade channel from those of opposers. However, we have to
assume that the respective goods will be offered in all
appropriate trade channels for such goods, and we find ample
evidence that there will not be a complete disjunction in
the trade channels and purchasers/users of the respective
goods.
Because there are no limitations or restrictions as to
trade channels or classes of purchasers in applicant’s and
opposers’ respective identifications of goods, we presume
Opposition No. 91192716
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that the goods are or would be marketed in all normal trade
channels for such services and to all normal classes of
purchasers of such services, regardless of what any evidence
might show to be differences in the actual trade channels
and purchasers for applicant’s and opposers’ goods. See
Packard Press Inc. v. Hewlett-Packard Co., 56 USPQ2d 1351,
1355. Accordingly, given that the KITCHEN GUARD
application seeks registration in connection with “fire
extinguishers” without restriction, and Tyco Fire’s
registrations both list the goods as “portable fire
extinguishers,” also without restriction, the Board must
presume the channels of trade and classes of purchasers for
applicant’s and Tyco Fire’s goods are the same. Genesco,
Inc. v. Martz, 66 USPQ2d 1260 (TTAB 2003); and In re Smith
& Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
However, based on applicant’s approach to this
litigation, we set aside for the moment the fact that there
are no restrictions on channels of trade in the application
or in the cited registrations. Ignoring this critical fact,
applicant has asserted throughout this appeal that in
actuality, the respective goods currently being sold under
its mark and opposers’ cited marks are sold to a different
class of consumers in completely separate channels of
trade.
Opposition No. 91192716
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Nonetheless, applicant’s marketing strategy
consistently links its KITCHEN GUARD product to opposers’
class of commercial kitchen fire protection products. As
seen above, applicant touts its KITCHEN GUARD product as a
“wet fire suppressant spray, suitable for tackling
residential cooking oil and grease fires, it incorporates
the same agent that protects deep fat fryers in commercial
kitchens.” (See Exhibit 3 to Vegso Dep. Tr., Bates No.
BUK0009; at 8 supra). At the same time that applicant is
asking us to evaluate the relatedness of the goods by
looking to extrinsic evidence, applicant is also asking us
to turn a blind eye to the way in which it promotes the
sales of its KITCHEN GUARD product. Namely, that we
ignore completely applicant’s repeated statements to
consumers that the KITCHEN GUARD product is similar to the
type of product Tyco Fire markets under the K-GUARD and
KITCHEN ONE marks, thereby amplifying the potential for
consumer confusion as to the source or origin of this
disposable product.
To be most clear about our findings herein, nothing
in the record would lead us to believe that Tyco Fire
sells aerosol products. As to the channels of trade for
Tyco Fire, substantially all of its involved products would
appear to flow through distributor within the fire equipment
Opposition No. 91192716
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industry. Although it seems one might be able to order a
portable fire extinguisher over the Internet from opposer,
Tyco Fire, we have no reason to believe that Tyco Fire, is
directly targeting the retail market. In fact, the majority
of its products are not appropriate for use by residential
consumers.
Conversely, for purposes of this du Pont factor, should
we consider the extrinsic evidence as to the current reality
of applicant’s marketing plans, we find in this case that
the purchasers of applicant’s “aerosol product” also include
the restaurant owner who may decide to increase the fire
protection in her restaurant by purchasing quantities of
applicant’s inexpensive product at the local home
improvement store.
In short, the fact that there are no limitations or
restrictions as to trade channels or classes of purchasers
in applicant’s and opposers’ respective identifications of
goods supports a conclusion that a likelihood of confusion
exists. Additionally, to the extent that applicant’s sales
pitch for a disposable fire extinguisher might well appeal
to businesspersons such as restaurateurs in need of
increased fire protection, that too supports a finding of
likelihood of confusion.
Opposition No. 91192716
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Conditions of Purchase/Use
Under this du Pont factor, we consider the conditions
under which the parties’ goods are purchased, including the
sophistication of consumers and the care exercised in
purchasing the goods. We find that the ultimate consumers
to whom applicant markets its goods are not likely to be
knowledgeable or careful purchasers. This stands in sharp
contrast to the facts in Dynamics Research Carp. v. Langenau
Mfg. Co., 704 F.2d 1575, 217 USPQ 649, 650 (Fed. Cir. 1983),
a case cited by applicant, where the respective goods were
quite distinct, were directed to sophisticated purchasing
agents in large corporations and government agencies, and
any overlap in customers would be de minimis. As to
conditions of purchase, the instant case is also quite
different from the facts of Electronic Data Systems Corp.,
23 USPQ2d at 1463-64, and Astra v. Beckman, 220 USPQ at 791,
cited again by applicant in its discussion of this
particular du Pont factor.
Furthermore, within commercial kitchens, all the
involved fire extinguishers will be placed in clear view and
in plain sight in a cooking environment. Cox Test. at 27.
Tyco Fire’s involved products are intended to be used by
kitchen personnel or whoever else is working near the fire –
not necessarily trained firefighting personnel. Id. at 10,
Opposition No. 91192716
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26. In this context, we conclude that neither deliberation
nor sophistication would be the norm.
For these reasons, we find that the du Pont factor
focusing on the conditions of purchase and/or use, weighs in
favor of a conclusion that a likelihood of confusion exists.
Similarity of the Marks
Under this du Pont factor, we determine the similarity
or dissimilarity of applicant’s mark and opposers’ marks
when they are viewed in their entireties in terms of
appearance, sound, connotation and commercial impression.
See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
The test under this du Pont factor 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 overall commercial impressions as to be
likely to cause confusion when used on or in connection with
the goods at issue. This necessarily requires us to take
into account the fallibility of memory over time and the
fact that the average purchaser retains a general rather
than a specific impression of trademarks. See Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1660 (TTAB
Opposition No. 91192716
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2002); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1468 (TTAB 1988); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975).
Although the marks at issue must be considered in their
entireties, it is well-settled that one feature of a mark
may be found to be more significant than another in terms of
the mark’s function as a source-indicator, and it is not
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark,
and in comparing the marks at issue under this du Pont
factor. See In re Chatam International Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1946 (Fed. Cir. 2004). “Indeed, this type
of analysis appears to be unavoidable.” In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
We begin with a comparison of applicant’s mark and Tyco
Fire’s K-GUARD mark. On its website Tyco Fire refers to
its K-GUARD fire extinguisher as its “K-GUARD Kitchen-
Class Fire Extinguisher”:
Opposition No. 91192716
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In comparing Tyco Fire’s K-GUARD with applicant’s
KITCHEN GUARD, it is clear that both marks share in common
the inherently distinctive term “Guard” as the terminal
word. While both parties seem to agree that the word
“Guard” might well be seen as somewhat suggestive for these
goods, we see no support in the record that it should be
found merely descriptive or commercially weak for these
goods.
Turning then to the leading portions of both marks,
applicant claims that the letter “K” in the K-GUARD mark
stands for the “K” class of fire extinguishers.
Opposition No. 91192716
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Under the codes and standards of the National Fire
Protection Association (NFPA), Class K fire extinguishers
are for use on Class K fires – fires in cooking appliances
that involve combustible cooking media (vegetable or animal
oils and fats). The parties agree that grease fires
originating with deep, fat fryers or cooking oil fires are
referred to as “K” class fires in the fire prevention and
suppression industry.
When this particularized class of fires was given the
“K” designation within the United States, it was clear that
the danger of grease and cooking oil fires centered on
locations commonly known as “kitchens.” Even if the record
is not clear that this was the reason the letter “K” was
chosen, these wet chemical extinguishers are definitely
designed to address the special cooking appliance fire
hazards found in a commercial kitchen setting. Currently,
then, it is not surprising that the involved extinguishers
may sometimes be listed throughout the industry as “Class
‘K’ Kitchen Extinguishers.” In fact, as seen above, Tyco
Fire refers regularly to its “K-GUARD® Kitchen Class Fire
Extinguishers.”
When comparing in their entireties the marks KITCHEN
GUARD and K-GUARD, we agree with applicant that they have
obvious differences as to appearance and sound. On the
Opposition No. 91192716
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other hand, we find that it is likely that many consumers
knowledgeable about Class K fire extinguishers would
naturally associate “K” class with the word “kitchen.” For
such consumers or users of the product, K-GUARD and KITCHEN
GUARD would have identical connotations and create
substantially identical commercial impressions. In fact, as
Tyco Fire noted in its brief, on at least one occasion in
the record, applicant itself abbreviated the term “Kitchen”
to simply the letter “K.”8
Although opposers also make the case that the overall
similarities between the KITCHEN ONE and KITCHEN GUARD
marks as to sound and appearance outweigh any differences
in connotation, we confine our analysis to the issue of
likelihood of confusion between applicant’s mark and the
cited registration for K-GUARD. Inasmuch as we have found
that confusion is likely between those marks, there is no
need for us to consider the likelihood of confusion with the
cited mark for KITCHEN ONE. See In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Hence, considering opposers’ most relevant mark and
applicant’s mark in their entireties, we find them to be

8 As seen in footnote 7, supra, the full URL for this page of
applicant’s Shield Fire Protection division’s website abbreviated
its own KITCHEN GUARD mark as “KGUARD.”

Opposition No. 91192716
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similar. The finding under this du Pont factor supports a
conclusion that a likelihood of confusion exists.
The Number and Nature of Similar Marks in Use on Similar Goods
Although applicant points to case law in support of our
finding opposers’ marks to be commercially weak (see Sure-
Fit Products Co. v. Saltzson Drapery Co., 254 F.2d 158,
117 USPQ 295 (CCPA 1958)), we find in the record no evidence
of the use of similar marks on similar goods. At best
for applicant, this is a neutral factor.
Conclusion on Likelihood of Confusion
After finding that opposers have established their
standing to oppose and their priority, we have considered
all of the evidence of record as it pertains to the relevant
du Pont factors (including any evidence not specifically
discussed in this opinion), and we conclude, based upon a
preponderance of the evidence, that a likelihood of
confusion exists. For the reasons discussed above, we find
that the parties’ marks are similar and that the parties’
goods are sufficiently related that source confusion is
likely to result from use of these similar marks in
connection with such goods. The evidence of record
pertaining to the other du Pont factors, on balance, also
leads to the conclusion that confusion is likely. To the
Opposition No. 91192716
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extent that any evidence in the record might weigh in
applicant’s favor, we find that it is clearly outweighed by
all of the evidence in the record which supports the
ultimate conclusion that a likelihood of confusion exists.
Decision: Opposers are entitled to prevail in this
proceeding under their Section 2(d) likelihood of confusion
ground of opposition, the opposition is sustained, and
registration to applicant is hereby refused.