Kinedyne Corporation

Trademark Trial and Appeal Board

Oct 5, 2005

No. 78168051 (T.T.A.B. Oct. 5, 2005)

Mailed: October 5, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Kinedyne Corporation
________

Serial No. 78168051
________

Kathleen G. Mellon of Young & Basile, P.C. for Kinedyne
Corporation.

Elissa Garber Kon, Trademark Examining Attorney, Law Office
106 (Mary Sparrow, Managing Attorney).
_______

Before Walters, Chapman, and Holtzman, Administrative
Trademark Judges.

Opinion by Chapman, Administrative Trademark Judge:
Kinedyne Corporation (a Delaware corporation) filed an
application on December 17, 2002, to register on the
Principal Register the mark shown below

for goods amended to read: “woven flexible strapping for
restraint and securment of cargo and individuals in
wheelchairs during transit by vans, busses, trucks and
trains” in International Class 22. The application is
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78168051
2
based on applicant’s claimed date of first use and first
use in commerce of March 30, 2001. Applicant disclaimed
the word “web.”
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when applied to its identified goods, so
resembles the registered mark shown below

for “rope” in International Class 22,1 as to be likely to
cause confusion, mistake or deception.
When the refusal was made final, applicant appealed.
Briefs have been filed, but applicant did not request an
oral hearing.
We affirm the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, however,
two key considerations are the similarities between the

1 Registration No. 1433950, issued March 24, 1987, Section 8
affidavit accepted, Section 15 affidavit acknowledged. The word
“ropes” is disclaimed.
Ser. No. 78168051
3
marks and the similarities between the goods. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Turning first to a consideration of the involved
marks, it is well settled that marks must be considered in
their entireties as to the similarities and dissimilarities
thereof. However, our primary reviewing court has held
that in articulating reasons for reaching a conclusion on
the question 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 or
portion of a mark. That is, one feature of a mark may have
more significance than another. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1845 (Fed. Cir.
2000); Sweats Fashions Inc. v. Pannill Knitting Co., 833
F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); and In re
National Data Corporation, 753 F.2d 1056, 224 USPQ 749, 752
(Fed. Cir. 1985).
In this case, both applicant’s mark and registrant’s
mark share the term RHINO (as well as a design of a
rhinoceros and a rhinoceros head, respectively). The word
RHINO is the dominant feature of both the cited
Ser. No. 78168051
4
registrant’s mark, and applicant’s mark. The addition of
the generic word “ropes” to registrant’s mark does not
detract from the dominance of the word RHINO in the
commercial impression created by registrant’s mark, and
does not serve to distinguish the registered mark from
applicant’s mark. Likewise, the presence of the
descriptive word “web” in applicant’s mark, does not
detract from the dominance of the word RHINO in the
commercial impression created by applicant’s mark, and does
not serve to distinguish applicant’s mark from the
registered mark. In addition, the pictorial representation
of a “rhinocerous/rhinocerous head” emphasizes the
dominance of the term RHINO in each mark. While
applicant’s mark includes the word “web” and registrant’s
mark includes the word “ropes,” we nonetheless find these
marks are similar in sound and appearance.
There is nothing in the record to show that the term
“RHINO” is anything other than arbitrary in relation to the
involved goods. Applicant argued in its brief (p. 5) that
the cited registered mark is “a weak mark under the
‘crowded field’ doctrine which recognizes the term RHINO is
commonly used to suggest strength”; and that applicant
“found over 600 marks with the term RHINO on the Trademark
Office database.” However, as the Examining Attorney
Ser. No. 78168051
5
correctly points out, applicant’s allegation is unsupported
by any evidence that the term RHINO is weak, particularly
with regard to the goods involved herein. Given the
arbitrary nature of the term (and the designs) with respect
to both applicant’s and registrant’s identified goods, and
the dominance that the term has in both marks, it not only
connotes essentially the same thing for both applicant’s
and registrant’s goods (perhaps “strength” or “toughness”),
but the marks create a similar commercial impression.
As explained earlier, the differences in the marks do
not serve to distinguish the marks here in issue. That is,
purchasers are unlikely to remember the specific
differences between the marks, focusing more on the word
RHINO, due to the recollection of the average purchaser,
who normally retains a general, rather than a specific,
impression of the many trademarks encountered. Purchasers
seeing the marks at separate times may not recall these
differences between the marks. See Grandpa Pidgeon’s of
Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ 573
(CCPA 1973); and Spoons Restaurants Inc. v. Morrison Inc.,
23 USPQ2d 1735 (TTAB 1991), aff’d unpub’d (Fed. Cir., June
5, 1992).
We find that applicant’s mark RHINO WEB and design and
registrant’s mark RHINO ROPES and design, when considered
Ser. No. 78168051
6
in their entireties, are similar in appearance, sound and
connotation. Also, the commercial impression of each mark
is of an animal, arbitrary in relation to the goods, as
each mark begins with the word “RHINO” and the design
element in each mark reinforces this impression. See In re
Azteca Restaurant Enterprises Inc., 50 USPQ2d 1209 (TTAB
1999).
Turning to the similarities/dissimilarities and the
nature of the involved goods, the Board must determine the
issue of likelihood of confusion on the basis of the goods
as identified in the application and the registration, and
in the absence of any specific limitations therein, on the
basis of all normal and usual channels of trade and methods
of distribution for such goods. See Octocom Systems Inc.
v. Houston Computer Services, Inc., 918 F.2d 937, 16 USPQ2d
1783 (Fed. Cir. 1990); Canadian Imperial Bank of Commerce
v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed.
Cir. 1987); and Squirtco v. Tomy Corp., 697 F.2d 1034, 216
USPQ 937 (Fed. Cir. 1983).
Further, it is well settled that goods need not be
identical or even competitive to support a finding of
likelihood of confusion, it being sufficient instead that
the goods are related in some manner or that the
circumstances surrounding their marketing are such that
Ser. No. 78168051
7
they would likely be encountered by the same persons under
circumstances that could give rise to the mistaken belief
that they emanate from or are associated with the same
source. See 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).
In support of her position that these goods are
related, the Examining Attorney submitted copies of some
third-party registrations, based on use in commerce, to
show that both ropes and strapping may be offered under the
same mark by the same entity. (See, for example,
Registration No. 1387448 for, inter alia, “ropes, straps,
slings, tie downs and cords”; Registration No. 1453234 for
“rope, webbing, twine, tow ropes and tow straps”; and
Registration No. 1833702 for, inter alia, “…cargo control
systems, namely, ropes and webbed or rubber tie-down
straps.”)
When considering the third-party registrations
submitted by the Examining Attorney, it is settled that
third-party registrations are not evidence of commercial
use of the marks shown therein, or that the public is
familiar with them. Nonetheless, third-party registrations
which individually cover a number of different items and
which are based on use in commerce have some probative
Ser. No. 78168051
8
value to the extent they suggest that the listed goods
emanate from a single source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); and In re Mucky
Duck Mustard Co., Inc., 6 USPQ2d 1467, footnote 6 (TTAB
1988).
The Examining Attorney also submitted evidence in the
form of several pages from various Internet websites
showing that both ropes and straps are used for securing
cargo during transport. See, for example, the following:
NC DMV
Section 3.3: Securing Cargo
…
Cargo Tiedown
Proper tiedown equipment must be used,
including ropes, straps, chains and
tensioning devices….
www.dmv.dot.state.nc.us;

KEEPER Cargo Control Made Easy
Cam Buckle Tie-Downs
Tie-Downs are the fastest, easiest and
safest way to secure your cargo.
Unlike rope and twine, they work
without having to tie knots. …
www.keepercorp.com;

AZtrucks.com
Hide-A-Hook Cargo Tie-Downs
…
Unique hook design allows easy use of
straps or ropes…just hook one end to
the Hide-A-Hook, and secure your cargo
with the other. …
www.aztrucks.com; and

Ser. No. 78168051
9
New Haven Moving Equipment
…
Ropes, Webbing & Strapping
…
www.newhaven-usa.com.

Applicant argues that the nature of the goods is
“different” (brief, p. 7); and that “a visitation to the
registrant’s website confirms that in fact it is selling
only various types of rope (cordage) for marine and home
use” (brief, p. 8). There is no limitation in the
registrant’s identification of goods “rope” as to uses
thereof. Applicant’s identification is limited to woven
flexible strapping “for restraint and securment of cargo
and individuals in wheelchairs during transit by vans,
busses, trucks and trains.” However, we find a reasonable
reading of applicant’s identification of goods as
identifying two separate items -- strapping for securing
cargo, and strapping for securing individuals in
wheelchairs. Clearly, the record shows that both strapping
and rope are used to secure cargo.
Based on this record, we find that the Examining
Attorney has presented a prima facie case that applicant’s
woven flexible strapping and registrant’s rope, are related
Ser. No. 78168051
10
within the meaning of Section 2(d) the Trademark Act, as
interpreted by the Courts and the Board.2
Regarding the channels of trade and conditions of sale
du Pont factors, while applicant’s identification is
restricted in terms of uses to strapping used for securing
cargo or used for securing individuals in wheelchairs
during transport, the channels of trade are not limited in
the registration.
Registrant’s identification of goods (“rope”) is
broadly worded and it is not restricted as to either trade
channels or purchasers. Thus, registrant’s goods may be
sold through all the normal trade channels and to all the
usual classes of consumers for such goods. See Octocom
Systems Inc. v. Houston Computer Services, Inc., supra;
Canadian Imperial Bank of Commerce v. Wells Fargo Bank,
supra; and In re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB
1994).
Applicant has not established either that these
products are purchased with care or that the purchasers are
sophisticated. Assuming arguendo that the purchase of

2 In applicant’s brief (p. 9), it acknowledges the following:
“The examiner also attached information from the Internet to both
of her Office Actions to show that both rope and webbing are used
to secure cargo. The Applicant acknowledges that this may be
true but this does not mean the goods will be associated as
coming from the same source ….”
Ser. No. 78168051
11
applicant’s identified woven flexible strapping would be
made with some degree of care, nonetheless, we find that,
this factor does not negate a finding of likelihood of
confusion. Further, assuming arguendo that the purchasers
of these goods are sophisticated, this does not mean that
such consumers are immune from confusion as to the origin
of the respective goods, especially when sold under very
similar marks. See Wincharger Corporation v. Rinco, Inc.,
297 F.2d 261, 132 USPQ 289 (CCPA 1962); In re Total Quality
Group Inc., 51 USPQ2d 1474 (TTAB 1999); and In re Decombe,
9 USPQ2d 1812 (TTAB 1988). That is, even relatively
sophisticated purchasers of these woven flexible strapping
and rope products could believe that these goods come from
the same source, if offered under the involved
substantially similar and arbitrary marks. See Weiss
Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14
USPQ2d 1840 (Fed. Cir. 1990); and Aries Systems Corp. v.
World Book Inc., 23 USPQ2d 1742, footnote 17 (TTAB 1992).
In this case, applicant’s goods and those of
registrant could be encountered by consumers in
circumstances that would give rise to the belief that both
parties’ goods come from or are associated with the same
source. See Dan Robbins & Associates, Inc. v. Questor
Corporation, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979).
Ser. No. 78168051
12
Applicant’s statement (reply brief, p. 2) that it “is
unaware of any instance of confusion/association” is not
persuasive. There is no information in the record as to
the nature and extent of sales by either applicant or
registrant. And there is no input from the registrant. In
any event, the test is likelihood of confusion, not actual
confusion. See Weiss Associates Inc. v. HRL Associates
Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.