This Opinion is not a
Precedent of the TTAB
Oral Hearing: June 14, 2018 Mailed: August 15, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Keystone Steel Buildings, LLC
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Serial Nos. 87075735 and 871105141
_____
Antonio G. Vann of Dunlap Bennett & Ludwig,
for Keystone Steel Buildings, LLC.
Deborah Meiners, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
_____
Before Zervas, Cataldo and Coggins,
Administrative Trademark Judges.
Opinion by Zervas, Administrative Trademark Judge:
Keystone Steel Buildings, LLC (“Applicant”) filed applications on the Principal
Register to register the mark KEYSTONE STEEL BUILDINGS (in standard
1 The Board consolidated the appeals for both applications on December 22, 2017.
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character form) and the mark (“the combination mark”),
for “prefabricated metal buildings” in International Class 6.2 Applicant disclaimed
the wording STEEL BUILDINGS in both applications pursuant to the Examining
Attorney’s requirement.
The Examining Attorney refused registration of Applicant’s marks under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 3357685
for the standard character mark KEYSTONE SERIES for goods including:
“non-metal buildings, namely, storage buildings, garages
and multi-function out buildings; non-metal buildings,
namely, storage buildings, garages and multi-function out
buildings sold in kit form” in International Class 19.3
The registration contains a disclaimer of the term SERIES.
After the Examining Attorney issued a Final Office Action, Applicant appealed
and filed a request for reconsideration in each application, which the Examining
Attorney denied. Proceedings were resumed and Applicant and the Examining
Attorney filed briefs. The Board then conducted an oral hearing. We affirm the
refusals to register.
2 Both Application Serial Nos. 87075735 (standard character mark) and 87110514
(combination mark), were filed on July 20, 2016 pursuant to Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), and claim first use and first use in commerce on February 22, 1999.
3 Registered December 18, 2007 and renewed August 22, 2017. Additional goods and services
are identified in the registration.
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I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973) (“du Pont”); see also Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005)
(“Palm Bay Imps.”); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in
mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the
cumulative effect of differences in the essential characteristics of the goods and
differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976). “Not all of the [du Pont] factors are relevant to
every case, and only factors of significance to the particular mark need be considered.”
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719
(Fed. Cir. 2012) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1259 (Fed. Cir 2010)).
A. Strength of Registrant’s Mark
We turn first to the du Pont factor involving the number and nature of similar
marks in use on similar goods. Evidence of extensive registration and use by others
of a term on the same or very similar goods can be “powerful” evidence of weakness.
See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice
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Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir.
2015). “The weaker [the registrant’s] mark, the closer an applicant’s mark can come
without causing a likelihood of confusion and thereby invading what amounts to its
comparatively narrower range of protection.” Id. at 1676 (internal citations omitted).
Applicant submitted approximately two dozen third-party registrations
containing or comprising the term KEYSTONE or a similar variant on the Principal
Register:4
• KEYSTONE, Reg. No. 1405476, hardware for electrical and electronic
devices, namely, standoffs, spacers, fuse clips, alligator clips, headers,
binding post strips, captive panel screws, shaft couplings, handles, nuts,
bolts, plugs, washers, bushings, binding posts, mounting brackets, eyelets,
stakes, and grommets;
• KEYSTONE, Reg. No. 1572890, manually operated butterfly valves;
• KEYSTONE, Reg. No. 3168266, prefabricated metal bridges;
• KEYSTONE, Reg. No. 3327266, gate hardware, namely, metal gate
latches;
• KEYSTONE, Reg. No. 3355631, wire fence;
• KEYSTONE FASTENERS (& design), Reg. No. 1900324, collated nails for
automated nail gun machines;
• KEYSTONE ELECTRONICS, Reg. No. 2505715, panel hardware, namely,
metal handles for electrical panels, metal thumb screws, metal shoulder
screws, and metal captive screws;
• KEYSTONE ADVANTAGE, Reg. No. 3332010, gate hardware, namely,
metal gate latches;
4 August 25, 2017 Resp., Exh. A, TSDR 12-43. Page references herein to the application record
refer to the downloadable .pdf version of the United States Patent and Trademark Office
(USPTO) Trademark Status & Document Retrieval (TSDR) system. References to the briefs
refer to the Board’s TTABVUE docket system.
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• KEYSTONE LG (& design), Reg. No. 2722679, metal fence wire netting;
• KEYSTONE PROFILES, Reg. No. 3592924, steel in the form of bars,
rounds, flats, rods, squares, hexagons, rectangulars, octagons, coil and
custom shapes and extrusions;
• KEYSTONE PROFILES PRECISION COLD DRAWN PRODUCTS (&
design), Reg. No. 3592923, steel in the form of bars, rounds, flats, rods,
squares, hexagons, rectangulars, octagons, coil and custom shapes and
extrusions;
• KEYSTONE, Reg. No. 3289408, portland and masonry cement;
• KEYSTONE, Reg. No. 3885091, non-structural building materials,
namely, granite used in decorative surface applications for countertops;
• KEYSTONE (& design), Reg. No. 3065698, modular concrete blocks and
pins used to construct earth retaining walls;
• KEE-STONE, Reg. No. 4809613, building material, namely, modified
bitumen roofing membranes and modified bitumen membranes for use on
the sides of houses and buildings; roofing membranes; single ply roofing
membrane;
• KEYSTONE HARDSCAPES, Reg. No. 4765365, modular concrete blocks
used to construct earth retaining walls; modular concrete blocks and
pavers used in landscaping applications; paving blocks, not of metal;
paving stones; patio stones;
• KEYSTONE STANDARD, Reg. No. 4760071, modular concrete blocks used
to construct earth retaining walls; modular concrete blocks used in
landscaping applications;
• KEYSTONE STANDARD, Reg. No. 4759926, modular concrete blocks used
in landscaping applications;
• KEYSTONE COMPAC, Reg. No. 4759925, modular concrete blocks used
to construct earth retaining walls; modular concrete blocks used in
landscaping applications;
• KEYSTONE GARDEN WALL, Reg. No. 4115898, modular concrete blocks
used to construct earth retaining walls; modular concrete blocks used in
landscaping applications;
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• KEYSTONE ESSENTIALS, Reg. No. 3940899, modular concrete blocks
used to construct earth retaining walls; modular concrete blocks used in
landscaping applications;
• KEYSTONE RETAINING WALL SYSTEMS, Reg. No. 2468614, modular
concrete blocks used to construct earth retaining walls;
• KEYSTONE CENTURY WALL, Reg. No. 2979499, modular concrete
blocks used to construct earth retaining walls;
• KEYSTONE 133 ELITE, Reg. No. 3304138, modular concrete blocks used
to construct earth retaining walls; and
• K (& design), Reg. No. 3055148, modular concrete blocks and pins used to
construct earth retaining walls.
Ten registrations are owned by a single entity and another three are owned by
different single entity. Four registrations have been cancelled.5 None of the
registrations concern non-metal buildings, and many concern unrelated goods such
as fasteners and modular concrete blocks. There is no evidence of third-party use of
these marks or of similar marks. Cf., Jack Wolfskin and Juice Generation (each case
involving of third-party use evidence). Absent evidence of actual use, third-party
registrations generally have little probative value in assessing the market strength
of a mark because they are not evidence that the marks are in use on a commercial
scale or that the public has become familiar with them. See Palm Bay Imps., 73
USPQ2d at 1693 (“The probative value of third-party trademarks depends entirely
upon their usage.”); In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738,
1745 (TTAB 2016), (“But Applicant’s citation of third-party registrations as evidence
of market weakness is unavailing because third-party registrations, standing alone,
5 The cancelled registrations are Registration Nos. 1572890, 3332010, 3885091 and 3940899.
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are not evidence that the registered marks are in use on a commercial scale, let alone
that consumers have become so accustomed to seeing them in the marketplace that
they have learned to distinguish among them by minor differences.”). See also Smith
Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the
purchasing public is not aware of registrations reposing in the USPTO). In addition,
the coexistence of similar marks in third-party registrations does not justify
registering a mark that is likely to cause confusion with previously registered marks.
AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268 (CCPA 1973). In
sum, the third-party registrations are not particularly pertinent and do not persuade
us of any commercial weakness of registrant’s mark for its identified goods.
In addition to commercial strength, however, a mark may be evaluated based on
its conceptual strength. See In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d
1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual
strength (distinctiveness) and its marketplace strength (secondary meaning).”). The
online version of The American Heritage Dictionary of the English Language (5th ed.
2018) defines “keystone” as “1. Architecture [-] A wedge-shaped stone at the top of an
arch, often larger or more ornamented than the other voussoirs. Also called
headstone. 2. The central supporting element of a whole.”6 SERIES in the mark would
6 https://ahdictionary.com/word/search.html?q=keystone. 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, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including
online dictionaries that exist in printed format or regular fixed editions. In re Red Bull
GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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be readily understood to refer to a product line.7 Applicant offers no comment
regarding any inherent weakness of the mark in its brief.8 We find that “keystone” in
the context of registrant’s goods is slightly suggestive in that it suggests the central
supporting element or critical element.
In sum, we find that Applicant has not demonstrated any particular commercial
or inherent weakness in the term “keystone” or the mark KEYSTONE SERIES for
registrant’s goods and that registrant’s mark is entitled at least to a normal scope of
protection. The du Pont factor regarding the strength of the cited mark is therefore
neutral in our analysis.
B. The Similarity of the Marks
We now compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay Imps., 73 USPQ2d at 1692.
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 terms of
their overall commercial impression that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph
Learning LLC, 101 USPQ2d at 1721. Under actual marketing conditions, consumers
7 See definition of “series” from merriam-webster.com, “a number of things or events of the
same class coming one after another in spatial or temporal succession
. February 2, 2017 Resp, TSDR 21.
8 Applicant introduced a webpage from netstate.com which identifies “the Keystone State” as
the nickname for the State of Pennsylvania. Because registrant’s mark is not KEYSTONE
STATE SERIES but is KEYSTONE SERIES, the reference to Pennsylvania is not one
purchasers are likely to give to KEYSTONE in registrant’s mark. We note too that the
webpage states that Pennsylvania’s nickname “refers to this necessary [architectural]
element.” February 2, 2017 Resp., Exh. C, TSDR 25.
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do not necessarily have the luxury of making side-by-side comparisons between
marks, and must rely upon their imperfect recollections. Dassler KG v. Roller Derby
Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. In re Assoc. of the U.S. Army, 85 USPQ2d 1264 (TTAB 2007); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
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 a consideration of the marks in their entireties. In re Nat’l Data Corp., 224
USPQ at 751.
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We first consider Applicant’s standard character mark. In terms of wording,
Applicant’s and registrant’s marks are similar because they both include KEYSTONE
as the first word. They differ in that they each include different additional wording –
STEEL BUILDINGS in Applicant’s mark and SERIES in the registrant’s mark. We
consider the term KEYSTONE to be the dominant part of both marks. It occupies the
same place - first - in each mark, and the first term in a mark often, as in this case,
dominates its overall impression. Palm Bay Imps., 73 USPQ2d at 1692 (“The presence
of this strong distinctive term as the first word in both parties’ marks renders the
marks similar, especially in light of the largely laudatory (and hence non-source
identifying) significance of ROYALE.”); Presto Prods., Inc. v. Nice-Pak Prods. Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”). See also
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992) (upon encountering the marks, consumers must first notice the
identical lead word).
KEYSTONE also conceptually dominates the weaker additional element in each
mark. We found above that KEYSTONE is slightly suggestive of registrant’s goods in
view of a dictionary definition of “keystone,” namely, “something on which associated
things depend for support.” Because there is no evidence that Applicant’s goods
include a wedge-shaped piece at the crown of an arch (and we have no reason to
believe that such goods could include such a piece), we find that KEYSTONE in
Applicant’s standard character mark has the same meaning as KEYSTONE in
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registrant’s mark. The additional terms in the marks, SERIES and STEEL
BUILDINGS, do not affect the meaning of, and do not dictate different meanings for,
KEYSTONE in these two marks.
The marks are also visually and aurally similar in that they both begin with the
dominant term KEYSTONE. While they differ in appearance and sound to the extent
that both Applicant’s and registrant’s marks have additional words, the first term of
these marks is dominant and the remaining wording is conceptually and visually
subordinate. When the marks are considered in their entireties, we find KEYSTONE
STEEL BUILDINGS and KEYSTONE SERIES to be similar in their appearance,
sound, meaning and commercial impression. They are identical in their distinctive
first word and differ only in the appended descriptive words.
Turning next to Applicant’s combination mark, we find this mark to be similar to
registrant’s mark for many of the same reasons mentioned above. The marks are
visually and aurally similar in view of their shared initial term KEYSTONE, and the
other terms in the marks remain subordinate to the term KEYSTONE in view of their
mere descriptiveness or genericness. The design component in the combination mark
is not remarkable and emphasizes the wording in the mark, particularly the keystone
design component and the shape of a building. The design element of the combination
mark is not one that would be articulated, separate and apart from the term
KEYSTONE. However, because of the keystone design element, we find that the
meaning of the Applicant’s combination mark for some consumers is slightly different
from that of registrant’s mark, referring to an architectural element. On balance, the
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marks are more similar than dissimilar to one another in meaning and commercial
impression.
This du Pont factor regarding the similarity of the marks weighs in favor of a
finding that confusion is likely for both of Applicant’s marks.
C. The Similarity of the Goods, Trade Channels and Purchasers
We next consider whether the goods as identified in the application and cited
registration are related. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as identified in
involved application and cited registration compared); Octocom Sys., Inc. v. Hous.
Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also,
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir.
2002). The test is not whether consumers would be likely to confuse the goods, but
rather whether they would be likely to be confused as to their source. In re Anderson,
101 USPQ2d 1912, 1919 (TTAB 2012). Therefore, to support a finding of likelihood of
confusion, it is not necessary that the goods be identical or even competitive. It is
sufficient that the goods are related in some manner, or that the circumstances
surrounding their marketing are such that they would be encountered by the same
persons in situations that would give rise, because of the marks, to a mistaken belief
that they originate from the same source, or that there is an association or connection
between the sources. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
We first note that Applicant’s and registrant’s goods have the same purpose; to
house the contents of their buildings. They hence compete with one another in certain
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settings, for example, on a construction site, as a storage building, or as temporary
quarters for a small, rudimentary office.
In addition, the Examining Attorney offered the following evidence to demonstrate
that the goods are commercially related to each other:
● McGuire’s Buildings website showing the same source for steel and non-metal
pre-fabricated buildings.9
9 October 4, 2016 Office Action, TSDR 10.
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● Eagle Ridge Buildings website offering Bennett Buildings steel and wood
portable buildings.10
10 October 4, 2016 Office Action, TSDR 17. Applicant’s argument against the probity of this
website because there are separate pages for wooden buildings and steel buildings (12
TTABVUE 8-9) is not well taken; Bennet Buildings offers both types of buildings, as set forth
on the duplicated webpage.
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● American Storage Buildings website showing a single source fabricating metal
and non-metal buildings for purchase, including buildings for storage.11
11 February 25, 2017 Office Action, TSDR 8.
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● Leonard USA website showing a single source manufacturing metal and non-
metal barns and barn style sheds.12
12 February 25, 2017 Office Action, TSDR 29.
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● Morgan Buildings website showing a single source offering both steel and wood
storage sheds.13
13 February 25, 2017 Office Action, TSDR 31.
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● Alan’s Factory Outlet website showing a single source providing steel buildings
and wooden and vinyl buildings.14
and
15
14 September 18, 2017 Office Action, TSDR 9.
15 Id. at 10.
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● Banner Buildings website showing a single source providing “Frame Tech
Buildings” (which are steel buildings) and wood buildings, on a single webpage.16
Applicant disputes the probity of the Examining Attorney’s evidence, arguing that
some of the Examining Attorney’s website evidence is not probative because metal
building goods appear on a different webpage than non-metal building goods.17
According to Applicant, the display of metal and non-metal buildings on different
webpages on the same websites “suggests that the metal feature of Applicant’s goods
is a distinct feature distinguishable from the cited registered goods, which have non-
metal features. This evidence also suggests that consumers pay close attention to
whether the goods are metal vs. non-metal”; and that “the various websites submitted
by the Examining Attorney actually illustrate[ ] that non-metal and metal structures
as marketed as separate product types under separate pages.”18 Several webpages
offer or discuss metal and non-metal buildings on the same webpages, and others do
16 September 18, 2017 Office Action, TSDR 24.
17 12 TTABVUE 9, 11-12.
18 12 TTABVUE 11-12.
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not distinguish the composition of the buildings and contain links to webpages for
“garages” or “sheds.” The fact that such goods may not always be displayed on the
same webpage does not decrease the probative value of that webpage. Thus, we are
not persuaded by Applicant’s conclusions based on the manner which certain
merchants arrange their webpages.
Applicant also argues that pre-fabricated buildings are classified in a different
class than nonmetal buildings.19 This argument is irrelevant; the fact that the Office
classifies goods in different classes does not establish that the goods are unrelated
under Section 2(d). See TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
§1207.01(d)(v) (Oct. 2017). The determination concerning the proper classification of
goods is a purely administrative determination unrelated to the determination of
likelihood of confusion. Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 29 USPQ2d 1771,
1774 (Fed. Cir. 1993) (“classification is wholly irrelevant to the issue of registrability
under section 1052(d), which makes no reference to classification.”).
We find the Examining Attorney’s evidence to support a finding that the goods are
related.
Turning to the trade channels and purchasers, Applicant makes no argument in
its brief with regard to trade channels and purchasers while the Examining Attorney
argues that the website evidence establishes that the goods are sold or provided
through the same trade channels.20 Because there are no limitations as to channels
19 12 TTABVUE 12.
20 14 TTABVUE 12.
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of trade or classes of purchasers in the application, we must presume that Applicant’s
goods will be sold in all ordinary channels of trade and will be offered to all ordinary
classes of purchasers for these goods. See Hewlett-Packard Co. v. Packard Press Inc.,
62 USPQ2d at 1005. The record reflects that registrant’s goods at least may be
purchased through the retailer Home Depot, suggesting that they are available to the
general public in addition to businesses.21 The nature of Applicant’s goods also
suggests that they too are available to members of the general public as well as
businesses. Similarly, as discussed above, the Internet evidence placed into the record
by the Examining Attorney shows that these goods often move in the same channels
of trade.
We therefore find that the du Pont factors regarding the similarity of the goods,
trade channels and purchasers (who are both businesses and the general consumer)
weigh in favor of a finding of likelihood of confusion.
D. Conditions of Purchase
Applicant states that “the purchase of prefabricated building structures is [a]n
expensive item, requiring the relevant purchaser to answer a host of questions
involving structure size, structure color, structure make-up, and the delivery of the
structure. These decisions require careful thought, making confusion highly
unlikely.”22 We agree, and find that neither Applicant’s nor registrant’s goods would
21 February 2, 2017 Resp., Exh. D, TSDR 27, stating “Tuff Shed proudly offers … The
Keystone Series® buildings exclusively at nearly 1,250 Home Depot® stores in select markets
throughout the United States.”
22 12 TTABVUE 14.
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be considered inexpensive or impulse purchases. The webpage from 888tuffshed.com
lists prices for registrant’s sheds as ranging from $999.00 to $2,684.00,23 and
presumably, being made of metal, Applicant’s goods are at least as expensive for
comparably sized buildings. We find instructive the Federal Circuit’s guidance in In
re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49 (Fed. Cir. 1986), involving
similar marks and similar goods, where the court stated:
That the relevant class of buyers may exercise care does
not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar
goods. “Human memories even of discriminating
purchasers ... are not infallible.” Carlisle Chemical Works,
Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406, 168
USPQ 110, 112 (CCPA 1970). Sophistication of buyers and
purchaser care are relevant considerations, but are not
controlling on this factual record.
Id. at 50. We similarly find that sophistication of buyers and purchaser care are
relevant considerations, but are not controlling on this factual record.
E. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Applicant’s marks
and registrant’s mark are similar, and Applicant has not established any substantial
weakness in registrant’s mark as a whole. The goods are related and travel through
the same trade channels to the same purchasers. The conditions of purchase favor
Applicant but are not controlling on this factual record. We therefore find that the
standard character mark KEYSTONE STEEL BUILDINGS and combination mark
23 February 2, 2017 Resp., Exh. D, TSDR 29.
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for “prefabricated metal buildings” are likely to cause
confusion with the registered mark KEYSTONE SERIES for “non-metal buildings,
namely, storage buildings, garages and multi-function out buildings; non-metal
buildings, namely, storage buildings, garages and multi-function out buildings sold
in kit form.”
Decision: The refusals to register under Section 2(d) are affirmed.
