EMC Natural Gas, Inc.

Trademark Trial and Appeal Board

Dec 22, 2014

No. 85742445 (T.T.A.B. Dec. 22, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 22, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re EMC Natural Gas, Inc.
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Serial No. 85742445
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Nigamnarayan Acharya and Jeffrey D. Cunningham of Seyfarth Shaw LLP for
EMC Natural Gas, Inc.

Jennifer D. Richardson, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____

Before Kuhlke, Shaw, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
EMC Natural Gas, Inc. (“Applicant”), doing business as Coweta-Fayette EMC, has
filed an application1 to register on the Principal Register the mark TRUE
NATURAL GAS in standard characters for “utility services, namely, transmission
of natural gas,” in International Class 39. Applicant has disclaimed the exclusive
right to use NATURAL GAS apart from the mark as shown.

1 Application Serial No. 85742445, filed October 1, 2012, on the basis of Applicant’s asserted
bona fide intent to use the mark in commerce, under Trademark Act § 1(b), 15 U.S.C.
§ 1051(b).
Serial No. 85742445
2
The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as
used in connection with Applicant’s services, so resembles the two marks, shown
below, which are registered in typed form for the goods indicated in the name of the
same owner:
TRU-GAS Natural gas, liquefied petroleum gas for use as a
fuel, and gasoline, in International Class 4.2

TRU GAS Liquid propane gas for use with gas appliances, in
International Class 4.3

When the refusal was made final, Applicant filed a notice of appeal and a request
for reconsideration. Upon the Examining Attorney’s denial of the request for
reconsideration, this appeal resumed. Applicant and the Examining Attorney filed
briefs and Applicant filed a reply brief.
(a) Evidentiary matter.
The Examining Attorney, in her brief, has attached dictionary definitions of the
words “provide,” “provider,” “produce,” and “producer,” and asks that the Board take
judicial notice of them. Applicant objects to the admission of such evidence as
untimely.4
Under Fed. R. Evid. 201, “The [Board] may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the [Board’s]

2 Reg. No. 1429782 issued February 24, 1987; renewed.
3 Reg. No. 2932543 issued March 15, 2005. Section 8 affidavit accepted; Section 15 affidavit
acknowledged. No claim is made to the exclusive right to use GAS apart from the mark as
shown.
4 Reply brief at 2, 10 TTABVUE at 3.
Serial No. 85742445
3
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Dictionary definitions are a type
of matter that can be “accurately and readily determined from sources whose
accuracy cannot reasonably be questioned,” and are a type of matter of which the
Board will often, sua sponte, take judicial notice.5 There is nothing surprising in the
proffered definitions; indeed, the words defined are within the standard vocabulary
of nearly all speakers of English. Inasmuch as the dictionary definitions may cast
some objective light on the evidence before the Board, it is helpful to our
deliberations. Accordingly, we will consider the dictionary definitions provided by
the Examining Attorney.
(b) Refusal under Section 2(d).
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence that is relevant to the factors bearing on the issue of likelihood
of confusion as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods and services at issue. See Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In the present case, Applicant and
the Examining Attorney also have presented arguments relating to classes of

5 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or
have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).

Serial No. 85742445
4
customers, conditions of sale, trade channels, lack of actual confusion, and extent of
potential confusion.
We will confine our analysis to the issue of likelihood of confusion between
Applicant's mark and the mark in Reg. No. 1429782, because the goods identified in
that registration are clearly more closely related to Applicant’s services than are the
goods in the other cited registration. If confusion is likely between Applicant's mark
and the mark in Reg. No. 1429782, there is no need for us to consider the likelihood
of confusion with the other cited mark, while if there is no likelihood of confusion
with the mark in Reg. No. 1429782, then there would be no likelihood of confusion
with the other cited mark. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243,
1245 (TTAB 2010). Moreover, we will limit our focus to the goods of Registrant
identified as “natural gas,” inasmuch as this is the only type of fuel mentioned in
the recitation of Applicant’s services. If we find likelihood of confusion as between
Applicant’s use of its mark in connection with its services and Registrant’s mark as
applied to any of the goods identified in the registration, then registration of
Applicant’s mark will be refused. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v.
TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
(i) The marks.
We first consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
Serial No. 85742445
5
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In doing so, we bear in mind that “The
proper test is not a side-by-side comparison of the marks, but instead ‘whether the
marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012). The proper focus is on the recollection of the
average customer, who retains a general rather than specific impression of the
marks. Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The Examining Attorney contends that TRUE is the dominant component of
Applicant’s mark TRUE NATURAL GAS and that TRU- is the dominant component
of Registrant’s mark TRU-GAS. Applicant contends that the Examining Attorney’s
approach impermissibly dissects the marks, and that the other words in the marks,
NATURAL GAS and -GAS, respectively, “have trademark significance, which
results in them creating a disparate appearance, sound, and meaning.”6
We agree with the Examining Attorney that the components TRUE and TRU-
have stronger source-identifying potential than the other elements of the marks and
are likely to make a stronger impression on customers, because NATURAL GAS
and -GAS are generic with respect to the services and goods with which the marks
are used and, alone, neither has source-indicating capacity. Taking this view of the
marks is not impermissible “dissection” of the marks. “[I]n articulating reasons for

6 Applicant’s brief at 2, 7 TTABVUE at 7; Reply brief at 2, 10 TTABVUE at 3.
Serial No. 85742445
6
reaching a conclusion on the issue 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 entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). We do not
disregard the generic terms NATURAL GAS and -GAS in our consideration of the
marks; rather, we consider the impression they are likely to have within the context
of the marks in their entireties.
When the marks are viewed in the context of the goods and services with which
they are used, customers are likely to perceive NATURAL GAS and -GAS to be
identical in meaning for a number of reasons. Registrant’s goods are identified in
the registration as “natural gas” (as are the goods transmitted by means of
Applicant’s services). Further, “gas” is defined to mean “natural gas” in appropriate
contexts:
c : a combustible gaseous mixture (as for fuel or illumination) -- see LIQUEFIED PETROLEUM GAS, MANUFACTURED
GAS, NATURAL GAS.

937 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993).7 Thus, in the
relevant commercial contexts, customers will likely interpret -GAS, as it appears in
Registrant’s mark, to have either the same meaning as NATURAL GAS, as it
appears in Applicant’s mark, or a meaning sufficiently broad as to encompass
NATURAL GAS.

7 We take judicial notice of this dictionary definition.

Serial No. 85742445
7
Turning to the formatives TRUE and TRU-, the Examining Attorney has
submitted Internet evidence to indicate that these terms have the same meaning. A
web page from states:
TRU Definition / TRU Means
The definition of TRU is “True”

The meaning of TRU
TRU means “True”8

The entry for “tru dat” from DICTIONARY OF AMERICAN SLANG AND COLLOQUIAL
EXPRESSIONS (4th ed. 2007) states:
Tru dat definition

sent.
That’s true.; I agree. : Tru dat. I know just what you mean.9

We find the above evidence sufficient to indicate that customers would likely
perceive TRUE and TRU- as having similar – and perhaps identical – meanings.
Considering all of this together, we find that TRUE NATURAL GAS and TRU-GAS
are extremely similar in meaning.
In appearance and sound, the two marks at issue are similar to the extent that
they begin with the similar terms TRUE and TRU- and end with the identical term
GAS. Nonetheless, we acknowledge the differences in appearance and sound arising
from the additional word NATURAL in Applicant’s mark and the hyphen in
Registrant’s mark. Overall, we find that the similarities between the marks in
appearance, sound, and especially meaning outweigh the differences, and that the

8 Office Action of November 18, 2013 at 15-16.
9 Definition found at Dictionary.com, Office Action of November 18, 2013 at 18.
Serial No. 85742445
8
two marks have highly similar commercial impressions. Accordingly, we find that
the du Pont factor of the similarity or dissimilarity of the marks weighs in favor of a
finding of likelihood of confusion.
(ii) The goods and services.
Next we address the similarity or dissimilarity of Applicant’s services and
Registrant’s goods. Applicant argues as follows:
The examiner has not shown that Applicant’s services
“compete” with Registrant’s [goods] in any way …. The
barrier to entry to providing liquefied natural gas or
propane is substantial because significant resources are
required to process these products. Applicant’s services
have nothing to do with liquefied gas as a fuel or gasoline.
Likewise, Registrant’s goods have nothing to do with
transmission of gases …. The examiner has not shown a
single entity that is involved in both the services of
transmitting gases and the sales of the gas itself. …
Accordingly, the services identified by Applicant’s Mark
and the goods identified by Registrant have different
functions, have different purposes and may not be
substituted for one another, so there is not a likelihood of
confusion ….
It is well settled that goods or services need not be similar or competitive in
character to support a holding of likelihood of confusion. It is sufficient if the goods
or services are related in some manner such that they would be encountered by the
same persons under circumstances that could, because of the similarity of the
marks used with them, give rise to the mistaken belief that they originate from or
are in some way associated with the same producer. Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); Schering Corp. v. Alza Corp.,
207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corp. v. Anixter Bros. Inc., 201
USPQ 851, 854 (TTAB 1978). We cannot accept Applicant’s contention that
Serial No. 85742445
9
Registrant’s natural gas has “nothing to do with transmission of gases.” After all,
the service of “transmission of natural gas” is one of the ways in which a purchaser
of “natural gas” receives delivery of the purchased goods.
In order to demonstrate a commercial relationship between natural gas
transmission services and the offering of natural gas as a product, the Examining
Attorney has submitted internet web pages of DTE Energy, showing that this
company “is engaged in the … transmission, distribution and sale of natural gas to
approximately 1.2 million customers in Michigan” and also “operates approximately
200 wells” for production of natural gas from shale formations.10 The evidence also
shows that Oneok Partners sells processed natural gas to “companies that market
or consume natural gas”; and also operates extensive interstate “natural gas
transmission pipelines.”11 The other internet evidence either does not refer directly
to natural gas12 or provides too little information to persuasively show that a single
company performs both transmission and production of natural gas.13
The Examining Attorney has also submitted a number of use-based, third-party
registrations that individually cover both natural gas as a product and the service of

10 Office Action of January 31, 2013 at 43-46.
11 Office Action of November 18, 2013 at 26-27.
12 We acknowledge that the Examining Attorney has submitted evidence showing that
Dominion Transmission, Inc. provides natural gas transmission and also produces natural
gas liquids, a product that apparently encompasses Registrant’s “liquefied petroleum gas”
(January 31, 2013 Office Action at 41-42); and that West Texas Gas is a utility company
providing “natural gas transmission services” and also produces and sells gasoline.
(November 18, 2013 Office Action at 28-29). As noted above, we have chosen not to address
Registrant’s goods identified as liquefied petroleum gas and gasoline.
13 The dictionary definitions of “provide,” “provider,” “produce,” and “producer” do not
persuade us to give as broad an interpretation to the evidence as the Examining Attorney
urges.
Serial No. 85742445
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transmitting or distributing natural gas. Among these, we note in particular Reg.
Nos. 4328712,14 2058942, 2478312, 3419002, 3431018, 4099287, and 4173711.15
Applicant correctly points out that such registrations “are not evidence of what
happens in the market place or that consumers are familiar with them.”16 However,
such third-party registrations may have some probative value to the extent that
they serve to suggest that the listed goods and services are of types that may
emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988).
The Examining Attorney’s internet evidence and third-party registration
evidence, considered together with the fact that Registrant’s goods (natural gas) are
the very goods that are delivered to customers by means of Applicant’s services
(natural gas utility services), are sufficient to persuade us that Applicant’s services
are commercially related to Registrant’s goods. We believe that if consumers were to
hear of a natural gas producer that uses a trademark similar to the service mark of
the utility through which they obtain their natural gas, they would readily believe
that there is a relationship between the two. Accordingly, we find that the du Pont
factor of the similarity or dissimilarity of the goods and services at issue favors a
finding of likelihood of confusion.

14 Office Action of November 18, 2013 at 39-41.
15 Office Action of January 31, 2013 at 11-38.
16 Reply brief at 2-3, 10 TTABVUE at 3-4.
Serial No. 85742445
11
(iii) Customers and conditions of sale.
Applicant contends that the customers of Applicant and Registrant are
sophisticated and careful:
Applicant’s consumers and Registrant’s consumers are
likely to use care when purchasing Applicant’s services
and Registrant’s goods…. None of these goods or services
are purchased on impulse. Natural gas, liquefied natural
gas and propane are purchased carefully by sophisticated
purchasers, namely, corporate resellers in the case of
liquefied gases and consumers in the case of natural gas.
… Applicant’s Services and Registrant’s goods are not
purchased by the public but rather are purchased by
buyers that are looking for an end use. Applicant’s
purchasers or consumers will be consumers looking for
natural gas, whereas Registrant’s goods will be purchased
by reseller entities in the case of liquefied products and
propane consumers, which is a distinct niche from natural
gas markets.17
For purposes of an orderly analysis of the relevant customers, it is not helpful to
conflate the class of customers who would purchase natural gas (which would
include ordinary consumers) with the very different class of customers that would
purchase liquefied natural gas. We focus our attention on customers of natural gas
only, who are customers of both Registrant (which offers natural gas under its
mark) and Applicant (which delivers the gas to the customers).18 There is no
evidence of record to support Applicant’s contention that Registrant’s goods are
offered only to resellers and not to the ultimate users of natural gas. Neither the
application nor the cited registration contains any limitation as to the classes of

17 Applicant’s brief at 7, 7 TTABVUE at 12.
18 There is no evidence to suggest that the customer classes for Applicant’s natural gas
transmission services are distinct from the customer classes for Registrant’s natural gas.
Serial No. 85742445
12
customers to whom the respective goods and services are offered. Accordingly, it is
presumed that the goods and services at issue are available to all normal classes of
potential customers for such goods and services. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014). Such
customers would include ordinary consumers; and as the Examining Attorney
correctly points out, the standard of care to be considered “is that of the least
sophisticated potential purchaser.”19 Id.
Applicant’s contention that the relevant customers are careful and sophisticated
is unsupported by any evidence and is, moreover, counterintuitive. Ordinary
consumers who need natural gas for home heating purposes do not necessarily have
any special degree of knowledge about the product, and consumers dealing with a
public utility often have no alternative source for the desired service and product.
We find the factor of customers and conditions of sale to be neutral.
(iv) Trade channels.
Applicant argues that the separateness of the trade channels of Applicant and
Registrant “dispel[s] any opportunity for confusion.” Applicant argues:
Applicant deals directly with end consumers of natural
gas, whereas Registrant’s goods are sold to dealerships
and wholesale buyers of gas. Applicant’s natural services
are advertised and marketed by traditional media directly
by Applicant to its consumers, whereas Registrant’s goods
are sold through propane outlets.20

19 Examining Attorney’s brief, 9 TTABVUE at 19.
20 Applicant’s brief at 8, 7 TTABVUE at 13.
Serial No. 85742445
13
The Examining Attorney, for his part, argues that “the identifications set forth
in the application and registrations have no restrictions as to nature, type, channels
of trade, or classes of purchasers. Therefore, it is presumed that these goods and
services ‘travel in the same channels of trade to the same class of purchasers.’”21 We
question whether the services of Applicant are sufficiently similar in nature to the
goods of Registrant to justify such a presumption in this case.
Aside from the arguments of Applicant and the Examining Attorney, there is no
evidence of record relating to actual trade channels of the goods and services at
issue. However, we note that Applicant’s services are, as identified, a trade channel
through which Registrant’s goods travel, in that Applicant literally delivers to the
end consumer goods of the type offered by Registrant, namely natural gas. This
degree of commercial overlap provides at least some opportunity for end consumers
to be exposed to the mark and goods of Registrant in close proximity to the mark
and services of Applicant. Accordingly, we find that the du Pont factor of trade
channels weighs in favor of a finding of likelihood of confusion.
(v) Lack of confusion; Extent of potential confusion.
Applicant points out that it has used its mark “continuously for at least the last
sixteen years and so has Registrant,” without any incidence of confusion.22
Applicant has submitted no evidence to support this contention. In any event,
uncorroborated statements of no known instances of actual confusion are of little

21 Examining Attorney’s brief, 9 TTABVUE at 19-20, citing In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
22 Applicant’s brief at 9, 7 TTABVUE at 14.
Serial No. 85742445
14
evidentiary value. In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2003). This is particularly true in this ex parte proceeding in
which we do not have the benefit of Registrant’s input as to any instances of
confusion.
Applicant also argues that if there is to be confusion, it “is likely to be fleeting and
de minimis,” suggesting that the overlap in customers is too small to give rise to
more than a negligible level of potential confusion.23 We disagree. Because of the
nature of the goods and services at issue, i.e., natural gas versus the transmission of
natural gas, the overlap between the customers for Applicant’s service and the
customers for Registrant’s goods is likely to be substantial. Accordingly, we find the
du Pont factors of the lack of confusion and the extent of potential confusion to be
neutral in our analysis.
(vi) Conclusion.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein,24 and all relevant du Pont factors. We find that
Applicant’s mark is likely to cause confusion, mistake or deception as to the source
of Applicant’s services.
Decision: The refusal to register is affirmed.

23 Id. at 9-10, 7 TTABVUE at 14-15.
24 In view of our determination, we find it unnecessary to consider Reg. No. 2932543 as a
basis for refusing registration under Section 2(d).