North American Marketing, Inc.

Trademark Trial and Appeal Board

Jun 23, 2020

87794974 (T.T.A.B. Jun. 23, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: June 23, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re North American Marketing, Inc.
_____

Serial No. 87794974
_____

Julie R. Fenstermaker of Benesch Friedlander Coplan & Aronoff LLP,
for North American Marketing, Inc.
Brittany Lee-Richardson, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Managing Attorney.
_____

Before Ritchie, Shaw and Goodman,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
North American Marketing, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark NUTEK, in standard characters, for:
Manually operated metal and metal alloy valves for the
controlling of liquids, fluids and gases; parts and
accessories for manually and mechanically operated metal
and metal alloy valves for the controlling of fluids, liquids,
and gases, namely, tubing slips and spiders, welding
fittings and flanges and tube connectors including return
bend, terminal, corner, t and elbow fittings, all of the
foregoing being metal and metal alloy; manually operated
metal and metal alloy valves; hand operated metal or metal
alloy pressure controllers for valves, in International Class
6;
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Valves as machine components; valves being parts of and
for incorporation in industrial machinery, in International
Class 7;
Fluid flow controlling devices, namely, automatic pressure
relief valves and automatic pressure regulating valves;
valves controlled by pressure for controlling and regulating
the flow of oil, gas, liquid or fluid not being parts of
plumbing, heating, cooling installations or machines;
pressure controllers and valves, namely, remote controlled
and automatic pressure controllers and valves for
controlling the pressure of fluids, liquids and gases and
pressure gauges; automatic valves for regulating the flow
of fluids, liquids and gases; educational computer software
featuring instruction in curriculum course content and
outdoor education; educational computer software
featuring instruction in valve installation, operation and
repair; educational computer and electronic games software
downloadable from a global computer network featuring
instruction in curriculum course content and outdoor
education; downloadable application for mobile devices,
namely, mobile phones, smartphones, tablets, and laptops,
featuring educational computer and electronic games
available via the internet featuring instruction in
curriculum course content and outdoor education;
downloadable applications for mobile devices, namely,
mobile phones, smartphones, tablets, and laptops being
educational software featuring instruction in curriculum
course content and outdoor education available via the
internet; downloadable applications for mobile devices,
namely, mobile phones, smartphones, tablets, and laptops
being educational software featuring instruction in
mechanical and automated flow control devices, valve
installation, operation and repair, available via the
internet; educational computer and electronic game
software downloaded via the internet featuring instruction
in curriculum course content and outdoor education;
manually and mechanically operated metal and metal alloy
pressure controllers for valves, in International Class 9;
Retail store services featuring valves; wholesale store
services featuring valves; online retail store services
featuring valves; catalogue ordering services featuring
valves; online catalogue ordering services featuring valves;
distributorship services in the field of valves; advertising
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the goods and services of others, namely, valves; commercial
resale, namely, retail store, online retail store, wholesale
store, catalogue ordering and online catalogue ordering
services featuring valves, in International Class 35;
Manufacture of valves for regulating the flow of fluids,
liquids and gases to the order and specification of others;
machine shop services, namely, machining parts for others,
in International Class 40; and
Design and development of valves; testing and inspection
of valves, in International Class 42.1
The Examining Attorney partially 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 the goods and services as indicated above, so resembles the following
marks, each of which is owned by a different entity:
• NUTEC, in typed format,2 for “electronic measuring instruments, namely,
flow transmitters and switches, liquid level transmitters and switches, and
materials interface sensors,” in International Class 9;3
• for “apparatus for testing air quality by measuring
volatile organic compounds in the air,” in International Class 9;4 and

1 Application Serial No. 87794974 was filed on February 12, 2018, under Section 1(b) of the
Trademark Act, based upon Applicant’s claim of a bona fide intent to use the mark in
commerce. The partial refusal to register under Section 2(d), 15 U.S.C. § 1052(d), discussed
above, does not apply to the goods and services shown in italics. See Denial of Request for
Reconsideration of July 18, 2019; TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE § 1202.05 (June 2019) (“TBMP”).
2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012).
3 Registration No. 2537203 issued February 5, 2002; renewed.
4 Registration No. 4825392 issued October 6, 2015.
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• NUTEK INTERNATIONAL, in standard character format with
INTERNATIONAL disclaimed, for, in relevant part, “Commercial laundry
equipment, namely, components and apparatus in the nature of ozone
sterilization units for use with commercial washing machines designed to
reduce energy, chemical, and water usage; ozone sanitizing apparatus for
water; apparatus to control and convey ozonated water to washing
machines,” in International Class 11.5
When the refusal was made final, Applicant appealed and requested
reconsideration. After the request for reconsideration was denied, the appeal
resumed. We affirm the partial refusal to register the mark.
I. Preliminary Matters
The Examining Attorney objects to evidence attached to Applicant’s brief,
including copies of four third-party registrations and one pending application for
marks identified as NUTEC, NUTEK, NUTECH, MUTEK, and FUTEK for a variety
of goods.6 Applicant did not respond to the objection. Because the evidence, including
the registrations and application, were not previously submitted, the Examining
Attorney’s objection is sustained and the evidence is not considered. Trademark Rule
2.142(d) (“The record in the application should be complete prior to the filing of an
appeal. Evidence should not be filed with the Board after the filing of a notice of
appeal.”); TBMP § 1207.01.

5 Registration No. 5426614 issued March 20, 2018.
6 Examining Attorney’s Br., p. 4, 21 TTABVUE 4.
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II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth 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 Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the goods and the similarities between the marks. See Federated Foods, Inc. v. Fort
Howard Paper 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 discuss each DuPont
factor for which there is evidence or argument.
Strength of the cited marks
We first assess the strength of the cited marks considering both their conceptual
strength based on the nature of the marks and their commercial strength based on
the marketplace recognition value of the marks, if any. 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).”).
Applicant argues that a number of similar sounding marks have registered, and
therefore, “when the USPTO allows registration of multiple, similar marks in
connection with similar goods, such action evidences the USPTO’s recognition that
consumer confusion is unlikely between the marks and that such marks are entitled
Serial No. 87794974
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only to a relatively narrow scope of protection and can peacefully co-exist.”7 We have
not considered the untimely registrations or application submitted with Applicant’s
brief, however, we note that in addition to the three cited marks, above, the
Examining Attorney previously cited the following three marks before withdrawing
the refusals based on them:8
• NUTEC (Registration No. 2710940) in typed format for “Machines, namely,
positioning tables for correctly positioning goods or work pieces or laser
beams in three axial directions,” in International Class 7; and
• NUTEK (Registration No. 5073719) and N NUTEK (Registration No.
5389878) [both commonly owned] in standard characters for “Consumer
electronics, namely, accessories for audio and video equipment, namely,
antennas, radios, FM transmitters, boomboxes, soundbars, DVD players,
headphones, earphones, microphones, television remote controls; stereo
equipment, namely, audio speakers, namely, home and auto speakers,
bookshelf speakers, public address speakers, trolly speakers, compact
speakers; alarm clocks; cell phone battery and power chargers; power
inverters; tablet computers; televisions,” in International Class 9.
Thus, there are six NUTEC, NUTEK, or NUTECH formative marks properly of
record, owned by five different entities, for various goods in classes 7, 9, and 11. The
probative value of these registrations is limited however because they are registered

7 Applicant’s Br., p. 11, 19 TTABVUE 12.
8 Office Action of May 31, 2018, pp. 2-16.
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for disparate goods, even though some of the classes may overlap. Moreover, no
evidence regarding their use was made of record. A registration is not evidence of use
of a mark. Hilson Research Inc. v. Soc. For Human Resource Mgmt., 27 USPQ2d 1423
(TTAB 1993). Nevertheless, we consider the strength of the cited marks in light of
these registrations.
Turning first to conceptual strength, “[t]hird-party registrations can be used in
the manner of a dictionary definition to illustrate how a term is perceived in the trade,
industry, or ordinary parlance.” RxD Media, LLC v. Application Dev. LLC, 125
USPQ2d 1801, 1812 (TTAB 2018) (citing Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015)). The registrations suggest
no particular meaning to these marks beyond the suggestion of a shortened and
phonetic spelling of the phrase “new technology.” As such, the cited marks have some
inherent weakness, but we must treat the marks at worst as “highly suggestive”
because they are registered on the Principal Register without a disclaimer of or claim
of acquired distinctiveness as to the common portions.
Regarding commercial strength, we have no evidence of third-party use of these
marks, however, a mark’s commercial strength may be curtailed by third-party
registration and use of similar marks with similar goods or services. Jack Wolfskin
Austrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U.,
797 F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015); Juice Generation, 115 USPQ2d at
1674-75. But six registrations alone are insufficient to establish that NUTEC,
NUTEK or NUTECH formative marks are so “ubiquitous” or “considerable” that we
Serial No. 87794974
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can conclude that these marks are commercially weak terms, particularly when the
marks are registered for disparate goods. See Jack Wolfskin, 116 USPQ2d at 1136
(discussing “voluminous evidence” of registration and use of paw print design
elements); Juice Generation, 115 USPQ2d at 1674 & n.1 (referring to evidence of 26
third-party marks as “a considerable number”).
In sum, we find that the three cited NUTEC, NUTECH, and NUTEK
INTERNATIONAL marks have some inherent conceptual weakness but they are not
commercially weak, particularly since they all are registered for different goods. At
most, the cited marks are entitled to a slightly narrower scope of protection.
Moreover, even weak marks are entitled to protection against confusion. See Max
Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
The similarity or dissimilarity of the marks in their entireties in terms
of appearance, sound, connotation and commercial impression.
We next turn to the DuPont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in
any one of these elements may be sufficient to find the marks confusingly similar.” In
re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola
Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the
similarity in either form, spelling or sound alone is likely to cause confusion.”)
(citation omitted).
Serial No. 87794974
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NUTEK is the entirety of the applied-for mark. NUTEC and NUTECH are the
only terms in the marks in Registration Nos. 2537203 and 4825392, respectively. The
identical term NUTEK appears in both the applied-for mark and Registration No.
5426614.
With regard to sound, we note that the first portion, or only portion, of each mark
is likely to be pronounced the same. That is, although there is no correct way to
pronounce a mark, the terms NUTEC, NUTECH or NUTEK would likely be
pronounced in a similar way. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1911 (Fed. Cir. 2012) (“[T]here is no correct pronunciation of a trademark, and
consumers may pronounce a mark differently than intended by the brand owner.”).
The term INTERNATIONAL in Registration No. 5426614, NUTEK
INTERNATIONAL, provides some difference in sound, but it is clearly not the
dominant portion of the cited mark. It is descriptive, disclaimed, and comes at the
end of the mark. Given the propensity of consumers to shorten marks when spoken,
INTERNATIONAL does little to distinguish the respective marks. In re Abcor Dev.
Corp., 588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring) (“[U]sers
of language have a universal habit of shortening full names – from haste or laziness
or just economy of words. Examples are: automobile to auto; telephone to phone;
necktie to tie; gasoline service station to gas station.”); In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1188 (TTAB 2018) (recognizing consumers’ “propensity to
shorten marks when ordering them orally”).
Serial No. 87794974
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With regard to appearance, each of the mark also begins with same NU–prefix
followed by various spellings of “tech,” e.g., TEC, TECH, or TEK. Thus, the marks
also look quite similar, because there is only one or two letter’s difference between
the dominant portion of the cited marks and the entirety of Applicant’s mark. With
regard to connotation and commercial impression, as discussed above, all of the
marks suggest “new technology” or the shortened form, “new tech.” We assume that
some consumers will not notice the minor differences between the marks, especially
when we keep in mind that “[t]he 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 Services, 101 USPQ2d at 1721
(quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901,
1905 (TTAB 2007)).
Regarding the design element in Registration No. 4825392, ,
Applicant argues that the “oscillograph depiction . . . creates a distinct commercial
impression.”9 We do not find the design to be sufficiently distinctive so as to outweigh
the dominance of the term NUTECH so as to distinguish the marks. It is well settled
that when evaluating similarities of marks, if one of the marks comprises both a word
portion and a design, the word portion is normally accorded greater weight in
determining whether the marks are similar because it would be more likely to be

9 Applicant’s Br., p. 8, 19 TTABVUE 9.
Serial No. 87794974
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impressed upon a purchaser’s memory and used by purchasers to request the goods
or services. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983);
In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1267-68 (TTAB 2011); In re Dakin’s
Miniatures Inc., 59 USPQ2d 1593, 1596 (TTAB 1999). Thus, although we consider
the marks in their entirety, we give less weight to the design element in the ’392
registration. There is nothing improper in giving more or less weight 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., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985).
When we view the marks in their entireties, we find the marks look similar. They
also would sound similar to consumers calling for the goods or services with which
they are used. See In re Viterra, 101 USPQ2d at 1911. Regarding connotation and
commercial impression, the slight variations in spelling do not impact the similar
connotation suggested by all of the marks. We therefore find the connotation and
commercial impression to be similar as well.
For the foregoing reasons, we find that the marks are similar. This DuPont factor
favors a finding of likelihood of confusion.
The nature and similarity or dissimilarity of the goods and services,
the established, likely-to-continue trade channels, and the classes of
purchasers.
We next consider the similarity of Applicant’s goods and services with the goods
in the cited registrations. They need not be identical or even competitive to find a
likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080,
1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322,
Serial No. 87794974
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1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). The goods and services need only be
“related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that [they] emanate from the
same source.” Coach Services, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler,
83 USPQ2d 1715, 1724 (TTAB 2007)).
Applicant’s goods are variety of valves and pressure controllers for controlling
liquids, fluids and gases, and its services are for the design, development, testing,
inspection, and sale of valves.
To support the refusal, the Examining Attorney introduced more than thirty
excerpts from third-party web pages showing that Applicant’s goods and services and
the goods in the three cited registrations are of a type that emanate from the same
source and travel through the same channels of trade to the same consumers. The
following examples are most relevant:
• TSI.com: demonstrates that a single entity makes valves for air control,
pressure controllers, valve pressure gauges, air quality meters, gas
measuring instruments and air measuring devices under the same name
and that such goods travel through the same channels of trade;10
• Vaisala.com: demonstrates that a single entity makes and retails pressure
gauges, sensors and transmitters under the same name and that such goods
travel through the same channels of trade;11

10 Office Action of May 31, 2018, pp. 17-26, 73-76.
11 Id. at 27-47.
Serial No. 87794974
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• Johnsoncontrols.com: demonstrates that a single entity makes and
retails fluid valves and actuators for HVAC systems, as well as air quality
sensors, under the same name and that such goods travel through the same
channels of trade;12
• Fluke.com: demonstrates that a single entity makes and retails pressure
relief valves, as well as air quality meters under the same name and that
such goods travel through the same channels of trade;13
• Honeywell.com: demonstrates that a single entity makes flow switches,
valves and air quality monitors under the same name;14
• Wika.us: demonstrates that a single entity makes pressure gauges, valves,
flow transmitters, and air quality apparatuses under the same name;15
• Testo.com: demonstrates that a single entity makes valves, flow probes,
and air quality meters under the same name;16
• Akronbrass.com: demonstrates that a single entity makes valves, valve
controllers, and pressure meters under the same name;17

12 Id. at 48-62, 66-72.
13 Id. at 77-82.
14 Final Office Action of Dec. 28, 2018, pp. 14-37.
15 Denial of Request for Reconsideration of July 18, 2019, pp. 2-13.
16 Id. at 51-76.
17 Id. at 84-87.
Serial No. 87794974
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• Homedepot.com: demonstrates that plumbing valves for washing
machines are sold alongside washing machines and parts therefor, such as
connecting hoses and washing machine pans;18
• Acehardware.com: demonstrates that plumbing valves for washing
machines are sold in hardware stores;19
• Familyhandyman.com: provides information on “do-it-yourself” domestic
washing machine repair;20
• Sfgate.com: provides information on repairing water connections to
domestic washing machines;21 and
• Appliancepartpros.com: establishes that some appliance-part vendors
encourage “do-it-yourself” repairs of appliances, including washing
machines.22
The Examining Attorney also introduced copies of third-party registrations
covering some of the same types of goods or services identified in the involved
application and cited registrations. Third-party registrations that cover a number of
different goods or services may have some probative value to the extent that they may
serve to suggest that the goods or services are of a type that may emanate from a
single source, if the registrations are based on use in commerce.23 Hewlett-Packard

18 Id. at 123-41.
19 Id. at 142-45.
20 Id. at 146-54.
21 Id. at 154-58.
22 Id. at 158-63.
23 We have not considered the third-party registrations that are not based on use in
Serial No. 87794974
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Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)
(evidence that “a single company sells the goods and services of both parties, if
presented, is relevant to the relatedness analysis”); In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988). The
following eleven third-party registrations are relevant:
• Reg. No. 1540189, MASONEILAN for, inter alia, “automatic control valves
and parts therefor, namely, process control valves, single port globe valves,
double port globe valves, cage guided globe valves, angle valves, eccentric
rotary plug valves, butterfly valves, ball valves, spring diaphragm
actuators, piston actuators, pneumatic valve positioners, electropneumatic
valve positioners, current to pressure transducers, rotary electric switches,
liquid level controllers, liquid level transmitters, pressure controllers,
temperature controllers, pressure reducing regulators, back pressure
regulators, excess pressure regulators, and parts therefor,” in International
Class 9;24
• Reg. No. 4110526, EMERSON CLIMATE TECHNOLOGIES for, inter alia,
“manually operated metal valves,” in International Class 6, and a variety
of regulators, transmitters, sensors and automatic valves, in International
Class 9;25
• Reg. No. 3037074, QVF for, inter alia, “laboratory equipment, namely, . . .
measurement and control devices, namely, flow transmitters, . . .
pneumatic control valves, . . . valves, pressure regulating valves, control
valves, by-pass valves and couplings used in laboratory equipment,
laboratory glassware, fittings therefore; and apparatus for use therewith,
namely, pipelines, filters, vessels, stirrers, heat exchangers, coil type
boilers, liquid coolers, vent condensers, column sections, column packing,
column supports, feed pipes, distributors, separators, seals, adaptors, filter
plates, covers, pumps, gas chromatography apparatus and parts thereof,”

commerce, such as those registered under Section 66 of the Trademark Act, 15 U.S.C.
§ 1141f(a), or those registered solely under Section 44 of the Trademark Act, 15 U.S.C.
§ 1126(e), and for which no Section 8 or Section 71 affidavits or declarations of continuing
use have been filed, 15 U.S.C. § 1058. They have very little, if any, persuasive value. See
Calypso Tech., Inc. v. Calypso Capital Mgmt., LP, 100 USPQ2d 1213, 1221 n.15 (TTAB 2011);
In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1583 (TTAB 2007); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
24 Office Action of December 28, 2018, pp. 50-51.
25 Id. at 52-56.
Serial No. 87794974
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in International Class 9; and “scientific and technological services in
process design, mechanical design, hazard and operability studies and
validation all in the fields of chemical and/or pharmaceutical and/or
industrial applications,” in International Class 42;26
• Reg. No. 4156492, TWEET ZILLA for, inter alia, “Automatic liquid-flow
control machines and instruments; Automatic liquid-level control machines
and instruments; . . . Automatic pressure control machines and
instruments; Automatic valves; Control valves for regulating the flow of
gases and liquids; . . . Electronic valves for controlling gas or fluids; Flow
switches for monitoring and controlling the flow of gases or liquids; Level
switches and level indicators for monitoring and controlling liquids in tanks
and vessels; Level switches for monitoring and controlling liquids in tanks
and vessels; . . . Valves for controlling and regulating the flow of gases or
liquids not being parts of plumbing, heating, cooling installations or
machines,” in International Class 9;27
• Reg. No. 5133948, XYLEM for, inter alia, a variety of manually operated
valves, in International Class 6; “venting, steam, water supply, and
tempering valves as machine parts,” in International Class 7; “flow meters,
. . . safety controls and valves, . . . electrical switches, namely, flow switches,
float operated switches and snap switches; . . . flow and level
instrumentation for the monitoring and control of fluids-namely,
differential pressure units, recorders, indicators, switches, controllers,
transmitters,” in International Class 9; and “Instrumentation testing and
design services for others, . . . engineering services; . . . product
development for others; . . . performance testing on measuring
instruments,” in International Class 42;28
• Reg. No. 5350286, TOPWORX for, inter alia, “electronic controllers for
valves” and various switches and sensors for “monitoring, controlling, and
switching hydraulic or pneumatic systems,” in International Class 9;29
• Reg. No. 5623597, CHELIC for, inter alia, “valves being parts of machines,”
in International Class 7; and “flow switches for monitoring and controlling
the flow of gases or liquids; pressure gauges; flow meters,” in International
Class 9;30
• Reg. No. 5022934, EVOQUA WATER TECHNOLOGIES and design for,
inter alia, “valves . . . being parts of machines for water and wastewater

26 Id. at 57-60.
27 Id. at 64-66.
28 Id. at 67-74.
29 Id. at 80-82.
30 Id. at 83-85.
Serial No. 87794974
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treatment and purification,” in International Class 7; “Electrical and
electronic controls . . . for use in controlling, detecting, analyzing,
transmitting, and monitoring water and wastewater treatment and
purification units,” in International Class 9; and “Design services in the
field of water and wastewater treatment and purification facilities and
research,” in International Class 42;31
• Reg. No. 4735498, SONTAY for, inter alia, “Surveying and signalling
instruments, namely, electronic sensors for sensing air velocity, wind speed
and direction, temperature, humidity, pressure, flow, gas leaks, smoke, air
quality, light level, liquid level, occupancy or motion, and electronic
switches, controllers and valves responsive thereto; . . . flow switches for
monitoring and controlling the flow of gases or liquids; wireless electronic
sensors; flow meters,” in International Class 9;32
• Reg. No. 4755172, PULSAFEEDER and design for, inter alia, “Automatic
valves for controlling the flow of gases or liquids; . . . Control valves for
regulating the flow of gases and liquids; . . . Flow meters; Flow switches for
monitoring and controlling the flow of gases or liquids; . . . Pressure relief
valves for controlling the flow of gases or liquids,” in International Class
9;33 and
• Reg. No. 5123723, AVERY-HARDOLL for, inter alia, “Automatic valves for
controlling the flow of gases or liquids; . . . Control valves for regulating the
flow of gases and liquids; . . . Flow meters; Flow switches for monitoring
and controlling the flow of gases or liquids; . . . Pressure relief valves for
controlling the flow of gases or liquids” in International Class 9.34

1. Registration Nos. 2537203 and 4825392
As recited above, NUTEC is registered for “electronic measuring instruments,
namely, flow transmitters and switches, liquid level transmitters and switches, and
materials interface sensors,” in International Class 9. is registered
for “apparatus for testing air quality by measuring volatile organic compounds in the

31 Id. at 99-102.
32 Denial of Request Reconsideration of July 18, 2019, pp. 95-97.
33 Id. at 106-08.
34 Id. at 109-11.
Serial No. 87794974
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air,” in International Class 9. The Examining Attorney argues that Applicant’s goods
and the goods in these registrations are related because they are all used to regulate
the flow of liquids and gases:
[T]hey have a similar purpose of managing the flow of
liquids and gases. For instance, Applicant’s goods include
valves for controlling and regulating the flow of liquid in
piping and the registered goods in 4825392 include flow
switches and liquid level switches, which control and
monitor the flow of liquid; thus, both sets of goods are for
controlling liquid flow. As another example, the applied-for
pressure gauges are for monitoring pressure and
encompass the registered flow transmitters and switches
intended for monitoring the flow.35
The Examining Attorney further argues “the record evidence clearly demonstrates
that the applied-for services are related to the registered goods and services.”36
Applicant argues that the goods in the ’203 registration are not similar to its goods
because the flow transmitters and switches in the cited registration “are not
comparable to valves or pressure controllers.”37 Instead, they are “external
components that are attached to larger pieces of machinery. . . . i.e. Applicant’s goods
are internal devices and the cited goods are external monitors that can be attached
and reattached to various types of equipment.”38 Regarding the goods in the ’392
registration, Applicant argues that the goods, apparatus for testing air quality by
measuring volatile organic compounds in the air, “have nothing to do with controlling

35 Examining Attorney’s Br., p. 17, 21 TTABVUE 17.
36 Id. at 22, 21 TTABVUE 22.
37 Applicant’s Br., p. 6, 19 TTABVUE 7.
38 Id.
Serial No. 87794974
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gas or fluids.”39 Applicant does not argue that it services are not related to the goods
in the cited registrations.
Applicant’s arguments are unpersuasive. The issue is not whether the goods or
services will be confused with each other, but rather whether the public will be
confused as to their source. See Recot v. Becton, 54 USPQ2d at 1898 (“[E]ven if the
goods in question are different from, and thus not related to, one another in kind, the
same goods can be related in the mind of the consuming public as to the origin of the
goods. It is this sense of relatedness that matters in the likelihood of confusion
analysis.”). The Internet web page excerpts establish that valves such as Applicant’s
and the flow and liquid level transmitters and switches, as well as apparatus for
testing air quality in the cited registrations, often are manufactured and sold by the
same company. Similarly, the third-party registrations establish that these valves,
flow and liquid level transmitters and switches, and apparatus for testing air quality,
are often produced and sold under the same mark. In addition, a number of the web
pages offer the respective goods for sale under the same mark, and the third-party
registrations include design and engineering services provided in connection with the
identified goods. This establishes that Applicant’s sales services, in International
Class 35, and “design and development of valves,” in International Class 42, are
related to the goods in the ’203 and ’392 registrations. This evidence also establishes
that the goods and services travel in the same channels of trade to the same classes
of purchasers. In re Viterra, 101 USPQ2d at 1908.

39 Id.
Serial No. 87794974
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These DuPont factors favor a finding of likelihood of confusion as to these marks.
2. Registration No. 5426614
NUTEK INTERNATIONAL is registered for, in relevant part, “Commercial
laundry equipment, namely, components and apparatus in the nature of ozone
sterilization units for use with commercial washing machines designed to reduce
energy, chemical, and water usage; ozone sanitizing apparatus for water; apparatus
to control and convey ozonated water to washing machines,” in International Class
11.
The Examining Attorney argues that Applicant’s “applied-for valves are related
to the registered ‘apparatus to control and convey ozonated water to washing
machines’ because the registered goods are broad and encompass Applicant’s various
valves, as valves are intended to control and convey water.”40 In support, the
Examining Attorney relies on the “evidence of record from Ace Hardware, AKRON,
Appliance Parts, Clean Alert, Family Handyman, Merriam-Webster, SF Gate, and
The Home Depot demonstrat[ing] that the applied-for and registered goods are
related, encompassing, travel through the same trade channels, and are of a kind that
are generally inexpensive and found in common, every day consumer trade
channels.”41 For its part, Applicant argues “there is simply no chance that consumers
buying accessories for their washing machines will be confused by Applicant’s mark

40 Examining Attorney’s Br., p. 20, 21 TTABVUE 20.
41 Id.
Serial No. 87794974
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that doesn’t contain the term “INTERNATIONAL” and is used primarily in
connection with valves and packaging.”42
We are unpersuaded by the Examining Attorney’s contention that the goods are
related merely because Applicant’s goods could control and convey water. That is, it
is not enough to say that valves and washing machines are related simply because
washing machines include valves. Moreover, the evidence of record relating to valves
used in connection with washing machines discusses domestic washing machines, not
commercial machines. The mere fact that stores such as Home Depot or Ace
Hardware sell valves for hooking up washing machines does suffice to establish that
Applicant’s valves are related to ozone sterilization units for commercial laundry
equipment. Simply put, the evidence does not establish that consumers could think
that valves or services related to valves could “emanate from the same source” as
ozone sterilization units. Coach Services, 101 USPQ2d at 1722. For the same reason,
we find the channels of trade and classes of consumers to be different.
These DuPont factors do not favor a finding of likelihood of confusion as to this
mark.
Consumer sophistication
Applicant argues, without evidence, that the sophistication of registrants’
consumers reduces the likelihood of confusion. Although the nature of the goods in
the cited registrations suggests that consumers of these goods would be more
sophisticated than the average consumer, this does not result in a finding that

42 Applicant’s Br., p. 9, 19 TTABVUE 10.
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confusion is unlikely, especially in this case where the marks are identical or nearly
identical in pronunciation. “[E]ven careful purchasers who do notice the difference in
the marks will not ascribe it to differences in the source of the goods, but will see the
marks as variations of each other, pointing to a single source.” In re I-Coat Co., LLC,
126 USPQ2d 1730, 1739 (TTAB 2018).
This DuPont factor is neutral.
Conclusion
Having considered all the evidence and arguments on the relevant DuPont factors,
we conclude that there is a likelihood of confusion between Applicant’s mark,
NUTEK, for the goods and services identified above, and the cited marks, NUTEC
and , for the identified goods. The marks are identical in
pronunciation, and the goods and services are related and all travel in the same
channels of trade to the same classes of consumers. These findings easily outweigh
any slight conceptual weakness in the two cited marks.
We further conclude, however, that there is not a likelihood of confusion between
Applicant’s mark and NUTEK INTERNATIONAL for the goods identified in that
registration. Although the marks are similar in pronunciation, the goods and services
have not been shown to be sufficiently related. Nor have the goods been shown to
travel in the same channels of trade to the same classes of consumers.

Serial No. 87794974
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Decision: The Section 2(d) partial refusal to register Applicant’s mark as to the
goods and services discussed above is affirmed. Application Serial No. 87794974 will
proceed for the following goods and services for which registration was not refused:
Educational computer software featuring instruction in
curriculum course content and outdoor education;
educational computer software featuring instruction in
valve installation, operation and repair; educational
computer and electronic games software downloadable
from a global computer network featuring instruction in
curriculum course content and outdoor education;
downloadable application for mobile devices, namely,
mobile phones, smartphones, tablets, and laptops,
featuring educational computer and electronic games
available via the internet featuring instruction in
curriculum course content and outdoor education;
downloadable applications for mobile devices, namely,
mobile phones, smartphones, tablets, and laptops being
educational software featuring instruction in curriculum
course content and outdoor education available via the
internet; downloadable applications for mobile devices,
namely, mobile phones, smartphones, tablets, and laptops
being educational software featuring instruction in
mechanical and automated flow control devices, valve
installation, operation and repair, available via the
internet; educational computer and electronic game
software downloaded via the internet featuring instruction
in curriculum course content and outdoor education, in
International Class 9;
Advertising the goods and services of others, namely,
valves, in International Class 35; and
Manufacture of valves for regulating the flow of fluids,
liquids and gases to the order and specification of others;
machine shop services, namely, machining parts for others,
in International Class 40.