Cabot Safety Intermediate Corporation

Trademark Trial and Appeal Board

Jan 12, 2009

No. 78903884 (T.T.A.B. Jan. 12, 2009)

Oral Hearing: 12/9/08 Mailed: 1/12/2009
THIS OPINION
IS NOT A PRECEDENT OF THE
T.T.A.B.

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cabot Safety Intermediate Corporation
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Serial No. 78903884

_______

P. Jay Hines of Cantor Colburn LLP, for Cabot Safety
Intermediate Corporation.

Michael A. Wiener, Trademark Examining Attorney, Law
Office 108 (Andrew Lawrence, Managing Attorney).
_______

Before Seeherman, Taylor, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Cabot Safety Intermediate Corporation filed an
application to register the mark SEAHAWK in standard
character format for “protective eyewear; safety
eyewear; safety goggles; and parts and components
thereof,” in International Class 9.1 The trademark
examining attorney refused registration of the mark

1 Application Serial No. 78903884, filed June 8, 2006,
pursuant to Section 1(b) of the Trademark Act, 15 USC
§1051(b), alleging a bona fide intent to use in commerce.
Serial No. 78903884

under Section 2(d) of the Trademark Act of 1946, 15
U.S.C. §1052(d), on the ground that applicant’s mark
so resembles the mark SEAHAWK, registered for “optical
instruments, namely, binoculars,” in International
Class 9,2 that when used in connection with applicant’s
identified goods, it will be likely to cause
confusion, mistake, or to deceive. Upon final refusal
of registration, applicant filed a timely appeal.
Both applicant and the examining attorney filed
briefs. At applicant’s request, the Board held a
hearing on December 9, 2008. The hearing was presided
over by this panel. After careful consideration of
the arguments and evidence of record, we affirm the
refusal to register.
We base our determination under Section 2(d) on
an analysis of all of the probative evidence of record
bearing on a likelihood of confusion. 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
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
goods or services. See Federated Foods, Inc. v. Fort

2 Registration No. 1400222, issued July 8, 1986, based on
first use and first use in commerce of October 31, 1953.
Sections 8 and 15 affidavits accepted and acknowledged.
Renewed.
2
Serial No. 78903884

Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)
(“The fundamental inquiry mandated by §2(d) goes to
the cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks”). We consider each of the factors as to which
applicant or the examining attorney presented
arguments or evidence.

The Marks
We consider and compare the appearance, sound,
connotation and commercial impression of the marks in
their entireties. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). The
marks are identical. Accordingly, they have the same
appearance and sound. In the context of the goods,
they also have the same connotation and commercial
impression.
The examining attorney argues that the term
SEAHAWK is arbitrary when applied to registrant’s
recital of goods. In support of this argument, the
examining attorney asks us to take judicial notice of
an encyclopedia article regarding the “sea hawk” bird.3
Since hawks are known for their excellent vision

3 TBMP §1208.04 (2d ed. rev. 2004) (“The Board may take
judicial notice of dictionary definitions . . . . The Board
may also take judicial notice of encyclopedia entries,
standard reference works, and of commonly known facts.”)
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Serial No. 78903884

though,4 we consider the term instead suggestive as
applied to both registrant’s and applicant’s goods.
Nevertheless, the mark is inherently distinctive.
With regard to market strength, applicant
attempted to introduce with its brief some third-party
registrations that comprise in whole or in part the
term “SEAHAWK.” The examining attorney objected to
the evidence as having been improperly submitted for
the first time on appeal. 37 CFR §2.142(d). Since
the registrations were not otherwise made of record,
we sustain the objection. Furthermore, even a
suggestive/weak mark is protectable. See Giant Food
Inc. v. Roos and Mastacco, Inc., 218 USPQ 521 (TTAB
1982) (even owner of weak mark is entitled to
protection from likelihood of confusion).
In view of the foregoing, the first du Pont
factor weighs heavily in favor of finding a likelihood
of confusion.

The Goods and Channels of Trade

Preliminarily, we note that the more similar the
marks at issue, the less similar the goods need to be
for the Board to find a likelihood of confusion. In

4 In this connection, we take judicial notice of the
definition of “hawk-eyed” as “having very keen eyesight.”
American Heritage Dictionary of the English Language (4th
ed. 2000). See University of Notre Dame du Lac v. J.C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982),
aff’d 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
4
Serial No. 78903884

re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Moreover, goods or services need not be identical or
even competitive in order to support a finding of
likelihood of confusion. Rather, it is enough that
goods or services are related in some manner or that
some circumstances surrounding their marketing are
such that they would be likely to be seen by the same
persons under circumstances which could give rise,
because of the marks used or intended to be used
therewith, to a mistaken belief that they originate
from or are in some way associated with the same
producer or that there is an association between the
producers of each parties’ goods or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney submitted over a dozen
third-party registrations that include both goods
identified in the cited registration (binoculars) on
the one hand and goods identified in the application
(safety goggles and/or protective eyewear) on the
other. Applicant objected to some but not all of
these third-party registrations, and we find that they
serve to suggest that the goods are of a type which
may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
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Serial No. 78903884

Additionally, the examining attorney submitted
evidence of various websites that offer for sale both
binoculars and safety goggles in close proximity.
Moreover, the examining attorney submitted evidence of
third-party manufacturers of binoculars and safety
goggles, who use the same mark on both, further
suggesting that consumers would expect such goods to
emanate from a single source. We find the evidence
submitted by the examining attorney to be highly
probative that the goods listed in the application and
the cited registration are related.
The evidence shows that the goods identified in
both the application and the cited registration are
optical devices that are available to consumers from
some of the same manufacturers and through some of the
same channels of trade. Since the identifications of
goods in the application and the cited registration do
not contain any limitations, both applicant’s and
registrant’s goods are likely to travel through the
same trade channels and be purchased by the same
classes of purchasers. See Squirtco v. Tomy
Corporation, 697 F.2d 1038, 216 USPQ 937 (Fed. Cir.
1983). Accordingly, the second and third du Pont
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Serial No. 78903884

factors weigh in favor of finding a likelihood of
confusion.
Consumer Sophistication
Applicant argues that its consumers are
sophisticated and would recognize the difference
between the SEAHAWK mark as used by registrant for
binoculars and the SEAHAWK mark as used by applicant
for protective eyewear; safety eyewear; safety
goggles; and parts and components thereof. As
discussed above, the goods identified by both
applicant and registrant are optical devices,
available to consumers from some of the same
manufacturers and through some of the same channels of
trade.
Applicant argues that employers who may be
required by law to provide protective eyewear, such as
that identified by applicant, would be presumed to
exercise a higher degree of care in their purchase
than would ordinary consumers, citing Haydon Switch &
Instr., Inc. v. Rexnord, Inc., 4 USPQ2d 1510, 1517
(D.Conn. 1987); G.H. Mumm & Cie v. Desnoes & Geddes,
Ltd., 917 F.2d 1292, 16 USPQ2d 1635, 1638 (Fed. Cir.
1990); Cliffs Notes, Inc. v. Bantam Doubleday Dell
Publi’g Group, Inc., 886 F.2d 490, 496, 12 USPQ2d
7
Serial No. 78903884

1289, 1293 (2d Cir. 1989); Barre-Nat’l, Inc. v. Barr
Labs, Inc., 773 F.Supp. 735, 21 USPQ2d 1755, 1761
(D.N.J. 1991); and Checkpoint Systems, Inc. v. Check
Point Software Technologies, Inc., 269 F.3d 270, 60
USPQ2d 1609, 1618 (3d Cir. 2001). However, the
applicable standard of care is that of the least
sophisticated consumer. Alfacell Corp. v. Anticancer,
Inc., 71 USPQ2d 1301, 1306 (TTAB 2004). The record
shows binoculars being offered for sale for as little
as $19.93, and protective eyewear being offered at
$9.69. Moreover, with identical marks and related
goods, even a careful, sophisticated consumer of
optical devices is not likely to note the difference
of source. Cunningham v. Laser Golf Corp., 222 F.3d
943, 948-949 (Fed. Cir. 2000). Accordingly, the
fourth du Pont factor weighs in favor of finding a
likelihood of confusion.
Balancing the Factors
Considering all of the evidence of record as it
pertains to the du Pont factors, we conclude that the
marks are identical; the goods are related; and they
are likely to be sold through the same channels of
trade to the same classes of generally unsophisticated
purchasers. Accordingly, we find a likelihood of
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Serial No. 78903884

confusion between applicant’s mark and the cited
registration.
Decision: The refusal to register is affirmed.
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