Winchester Industries, Inc.

Trademark Trial and Appeal Board

Jun 15, 1998

No. 75014927 (T.T.A.B. Jun. 15, 1998)

Paper No. 10
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 6/15/98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Winchester Industries, Inc.
________
Serial No. 75/014,927
_______
Diane R. Meyers of Eckert Seamans Cherin & Mellott for
Winchester Industries, Inc.
Matthew C. Kline, Trademark Examining Attorney, Law Office
104 (Sidney Moskowitz, Managing Attorney).
_______
Before Hanak, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
Winchester Industries, Inc. has filed an intent-to-use
application to register the mark QUATTRO IV SECURITY SYSTEMS
(SECURITY SYSTEMS has been disclaimed) for “metal window
locks.”1
Registration has been finally refused by the Trademark
Examining Attorney under Section 2(d) of the Trademark Act,
15 U.S.C. §1052(d), on the ground that use of applicant’s
Ser No. 75/014,927
2
mark for the identified goods would be likely to cause
confusion with the mark KABA QUATTRO registered for “metal
locks and keys and parts and fittings for all the aforesaid
goods.”2
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm.
At the outset, we note that applicant submitted five
exhibits with its appeal brief. These exhibits include a
Dun & Bradstreet report about registrant; a copy of an
amendment filed by registrant in connection with the
application which issued into the cited registration; a
listing from a private company’s database of third-party
marks which include the word QUATTRO; print-outs of
information concerning other registrations owned by
registrant; and information about applicant obtained from
the NEXIS database. The Examining Attorney objected to
these exhibits as untimely. Trademark Rule 2.142(d)
provides that the record in an application should be
complete prior to the filing of an appeal and that the Board
will ordinarily not consider evidence filed after the appeal
is filed. Thus, the Examining Attorney’s objection is well
taken, and the exhibits have not been considered. We hasten
to add that even if considered, the exhibits are not

1 Application Serial No. 75/014,927 filed November 3, 1995.
Ser No. 75/014,927
3
persuasive of a different result in this case. First, the
issue of likelihood of confusion must be determined on the
basis of the goods set forth in applicant’s application and
those in the cited registration, rather than on what any
evidence may show those goods to be. Canadian Imperial Bank
of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813 (Fed. Cir. 1987). Second, search reports are of
limited probative value as they are not evidence of use of
the marks listed therein. An additional reason the search
report here would not have been useful to our analysis is
that no information is given with respect to the goods
and/or services offered under the third-party marks.
Turning first to the goods, the Examining Attorney
maintains that because the identification of goods in the
cited registration is broadly worded (metal locks), it must
be presumed to encompass applicant’s goods (metal window
locks) and, thus, the goods of applicant and registrant are
legally identical. Applicant, however, contends that the
wording “metal locks and keys” in the cited registration
means locks which are operated with keys; that these kinds
of locks are seldom used in conjunction with windows; and
thus registrant’s goods do not encompass applicant’s goods.
In this case, we simply have no basis on which to read
the identification of goods in the cited registration in the

2 Registration No. 1,776,233 issued June 15, 1993.
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4
manner urged by applicant. As previously noted, it is well
settled that the question of likelihood of confusion must be
determined on the basis of the goods set forth in
applicant’s application and those in the cited registration.
Registrant’s goods are broadly identified as metal locks
without any limitation as to area of use. Thus, we agree
with the Examining Attorney that registrant’s metal locks
encompass metal window locks, and that when so viewed, the
goods of applicant and registrant are legally identical.3
Turning next to a consideration of the marks, we begin
our analysis of whether confusion is likely by keeping in
mind two propositions set forth by the Court of Appeals for
the Federal Circuit. First, “when marks appear on virtually
identical goods, the degree of similarity between the
involved marks necessary to support a conclusion of likely
confusion declines.” See Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Second, in articulating reasons for
reaching a conclusion on the issue of likelihood of
confusion, “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

3 We should add that, even if we were to accept applicant’s
contentions regarding the goods, we would nonetheless find that
the goods are closely related.
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5
entireties.” In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
In comparing registrant’s mark KABA QUATTRO with
applicant’s mark QUATTRO IV SECURITY SYSTEMS, we find the
commercial impressions engendered by the marks to be
sufficiently similar that, when the marks are used in
connection with the identified goods, consumers are likely
to be confused. In the present case, applicant’s mark is
dominated by QUATTRO IV which is very similar to
registrant’s mark KABA QUATTRO. Applicant has disclaimed
exclusive rights to use SECURITY SYSTEMS, thereby
acknowledging the descriptiveness of this phrase. Customers
and prospective customers could mistakenly believe, due to
the substantially similar commercial impressions formed by
the marks, that QUATTRO IV SECURITY SYSTEMS metal window
locks are part of a line of such goods from the maker of
KABA QUATTRO metal locks, especially in light of the
arbitrary nature of the respective marks as applied to the
goods. In finding that the marks are similar, we have kept
in mind the normal fallibility of human memory over time and
the fact that the average consumer retains a general, rather
than a specific impression of trademarks encountered in the
marketplace.
In sum, we conclude that consumers familiar with
registrant’s mark KABA QUATTRO for metal locks and keys and
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parts and fittings for all the aforesaid goods would be
likely to believe, upon encountering applicant’s mark
QUATTRO IV SECURITY SYSTEMS for metal window locks, that the
goods originated with or were somehow associated with or
sponsored by the same entity.
Finally, it is well settled that, if there is any doubt
on the issue of likelihood of confusion, that doubt must be
resolved against the newcomer and in favor of the prior user
and registrant. In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.
E. W. Hanak
P. T. Hairston
C. E. Walters
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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