Porpoise Pool & Patio, Inc.

Trademark Trial and Appeal Board

Nov 21, 2002

No. 75832078 (T.T.A.B. Nov. 21, 2002)

Mailed: November 21, 2002
Paper No. 12
ejs
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Porpoise Pool & Patio, Inc.
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Serial No. 75/832,078
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H. William Larson of Larson & Larson, P.A. for Porpoise
Pool & Patio, Inc.
Brian D. Brown, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
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Before Cissel, Seeherman and Hohein, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Porpoise Pool & Patio, Inc. has appealed from the
final refusal of the Trademark Examining Attorney to
register SUNCOAST GOLD as a trademark for “swimming pool
chlorine.”1 Registration has been refused pursuant to
1 Application Serial No. 75/832,078, filed October 26, 1999, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/832,078
2
Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on
the ground that applicant’s mark so resembles the mark
SUNCOAST, previously registered in Class 20 for “outdoor
pools and patio furniture”2 that, if used on applicant’s
identified goods, it is likely to cause confusion or
mistake or to deceive.
Applicant and the Examining Attorney have filed
briefs. An oral hearing was not requested.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are 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). As applicant has
acknowledged, in any likelihood of confusion analysis, two
key considerations are the similarities between the marks
and the similarities between the goods. Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976).
With respect to the goods, the complementary nature of
outdoor pools and swimming pool chlorine is obvious. The
chlorine is designed for use in such pools. If a similar
mark is used on both, consumers are likely to think that
2 Registration No. 1,878,683, issued February 14, 1995; Section
8 affidavit accepted; Section 15 affidavit received.
Ser No. 75/832,078
3
the maker of the outdoor pools has sponsored or approved
the chlorine for use in its pools. The Examining Attorney
has also submitted evidence that such goods may be sold by
a single party under a single mark. Third-party
registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Although the Examining Attorney has submitted only three
such registrations, they serve to reinforce the relatedness
of the goods.
Moreover, as applicant has acknowledged at page 4 of
its brief, the goods or services of the parties need not be
identical or even competitive in order to determine that
there is a likelihood of confusion. It is sufficient that
the goods or services of the applicant and the registrant
are related in some manner or that the circumstances
surrounding their marketing are such that they are likely
to be encountered by the same persons under circumstances
that would give rise, because of the marks used thereon, to
the mistaken belief that they originate from or are in some
way associated with the same producer.
Ser No. 75/832,078
4
The marks are very similar. The cited mark is
SUNCOAST; applicant’s mark is SUNCOAST GOLD. Obviously the
words SUNCOAST in both marks are identical in appearance,
pronunciation and connotation. The addition of the word
GOLD in applicant’s mark is not sufficient to distinguish
them. Again, as applicant has pointed out, a likelihood of
confusion is not avoided between otherwise confusingly
similar marks merely by adding or deleting matter that is
descriptive or suggestive of the named goods or services.
Brief, p. 9. In this case, the word GOLD has a laudatory
suggestiveness, indicating the superior nature of the
product. As such, it is the word SUNCOAST in applicant’s
mark which is the dominant element, and the commercial
impressions of the marks must be considered to be
substantially the same.
Applicant also has acknowledged that its goods are a
low-cost product, costing “just a few dollars.” Response
filed April 28, 2000. Purchasers of such products are not
likely to undergo extensive deliberations with respect to
whether the additional word GOLD in applicant’s mark
identifies a different source from the source of SUNCOAST
outdoor pools, even if they were to note the inclusion of
this word. As applicant has also recognized, the test of
likelihood of confusion is not whether the marks can be
Ser No. 75/832,078
5
distinguished when subjected to a side-by-side comparison.
Brief, p. 7.
Applicant also argues that applicant’s goods would be
sold in different sections of retail stores from the goods
identified in the cited registration. Even if that were
true, it does not avoid a likelihood of confusion. Because
swimming pool chlorine is used in outdoor pools, the
consumers for the products are the same, and they will
encounter both goods and marks even if they are in
different sections of a retail store or in a pool supply
store and a pool showroom.
Nor are we persuaded that confusion is not likely by
applicant’s argument that the registrant’s goods are
expensive, particularly as compared with applicant’s goods.
The fact that outdoor pools are purchased with care and
deliberation does not mean that the purchase of chlorine
for those pools would involve a similar degree of care. On
the contrary, because of the inexpensive nature of this
product, chlorine is not likely to be purchased with care.
Moreover, in view of the similarity of the marks, and the
complementary nature of the goods, even careful purchasers
would be likely to assume that they emanate from the same
source.
Ser No. 75/832,078
6
Finally, applicant points to the fact that two
registrations were issued to it despite the existence of
the cited registration. Those registrations are for
SUNCOAST CHEMICALS COMPANY and SUNCOAST CHEMICAL CO. for
chemicals used in the treatment of swimming pools.3 We do
not know what occurred when the applications for those
marks were examined, but we do note that the marks are
different from the mark at issue here. In any event, we
are not bound by decisions of Examining Attorneys in other
files.
Decision: The refusal of registration is affirmed.
3 Registrations Nos. 2,002,324 and 2,136,462.