Profile Products LLC

Trademark Trial and Appeal Board

Jul 6, 2001

No. 75464982 (T.T.A.B. Jul. 6, 2001)

7/6/01 Paper No. 16
PNS/RS
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Profile Products LLC
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Serial No. 75/464,982
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Maria Franek Angileri of Brooks & Kushman, PC for Profil
Products LLC.
Darryl M. Spruill, Trademark Examining Attorney, Law Off
101 (Jerry Price, Managing Attorney).
_______
Before Simms, Hohein and Holtzman, Administrative Tradem
Judges.
Opinion by Simms, Administrative Trademark Judge:
Profile Products LLC (applicant), a Delaware
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register the mark PROFIL
for natural, non-chemical soil conditioners for use by h
gardeners to improve water and oxygen retention in the
soil.1 The Examining Attorney has refused registration
under Section 2(d) of the Act, 15 U.S.C. §1052(d), on th
1 Application Serial No. 75/464,982, filed April 9, 1998, bas
upon allegations of use and use in commerce since January 199
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T T A Be
ice
ark
E
ome
e
ed
5.
Ser. No. 75/464,982
2
basis of Reg. No. 1,781,991, issued July 13, 1993 (Section
8 affidavit accepted) for the mark PROFILE for chemicals
used in agriculture, horticulture and forestry; namely, a
tree growth regulator. Applicant and the Examining
Attorney have submitted briefs but no oral hearing was
requested.
We affirm.
Noting that the respective marks are identical, the
Examining Attorney contends that applicant’s soil
conditioners and registrant’s chemicals in the nature of
tree growth regulators are closely related goods sold in
the same channels of trade to the same classes of
purchasers. In this regard, the Examining Attorney notes
that there are no restrictions concerning the trade
channels or classes of purchasers of the respective goods
(except that registrant’s goods are sold in the fields of
agriculture, horticulture and forestry).2 It is the
Examining Attorney’s position that all these goods may be
sold in such places as nurseries, home and garden centers,
and through catalogs. The Examining Attorney has also made
of record use-based third-party registrations covering soil
2 The Examining Attorney notes the following definition of
“horticulture” from The America Heritage Dictionary of the
English Language (3rd ed.); “The science or art of cultivating
fruits, vegetables, flowers, or ornamental plants; the
cultivation of a garden.”
Ser. No. 75/464,982
3
conditioners, soil amendments and chemicals for
horticultural and agricultural use, arguing that such
registrations suggest that the goods of applicant and
registrant may emanate from a single source. The Examining
Attorney contends that whether the product conditions the
soil to increase plant and tree growth or whether it tends
to limit it, these goods are related and are sold in the
same channels of trade to the same classes of purchasers.
Applicant, on the other hand, argues that its soil
conditioners and registrant’s tree growth regulators are
not competitive products and are sold for different
purposes. In this regard, applicant has made of record
material apparently obtained from registrant’s Web site
indicating that registrant’s chemicals are used to regulate
tree growth to reduce terminal growth and pruning.
Applicant also argues that these goods will be sold in
different channels of trade, registrant’s goods to utility,
highway, railroad and forestry industries for the purpose
of vegetation management, whereas applicant’s goods are
sold in lawn and garden centers and in the landscaping,
golf course and athletic field maintenance industries.
Applicant also notes, from registrant’s material, that
registrant’s goods apparently require the use of expensive
Ser. No. 75/464,982
4
specialized equipment for the application of the tree
growth regulator.3
Our determination under Section 2(d) is based on an
analysis of all the probative facts in evidence that are
relevant to the factors bearing on the likelihood-of-
confusion issue. In re E.I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). In the analysis of
likelihood of confusion presented by the case, key
considerations are the identity of the marks, the related
nature of the goods and the similar classes of consumers
for these goods. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F2d 1098, 192 USPQ 24, 29 (CCPA 1976).
As the Examining Attorney has noted, where the
respective marks are identical, the relationship between
the goods or services need not be as close to support a
finding of likelihood of confusion as might apply where
there are greater differences between the marks. In re
Concordia International Forwarding Corp., 222 USPQ 355, 356
(TTAB 1983). Also, if there is no limitation as to the
nature of the goods, the channels of trade or classes of
purchasers of those goods, we may presume that the goods
are of all types described in the application and
3 In response to this argument, the Examining Attorney notes,
also from registrant’s material, that registrant’s tree growth
Ser. No. 75/464,982
5
registration and move in all normal channels of trade and
are available to all potential purchasers of those goods or
services. Canadian Imperial Bank of Commerce, N.A. v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987) and In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Also, as the Examining Attorney has pointed out, the goods
of applicant and registrant need not be identical or
directly competitive in order to find a likelihood of
confusion. They need only be related in such a manner, or
the conditions surrounding their marketing be such, that
they could be encountered by the same purchasers under
circumstances that could give rise to the mistaken belief
that the goods come from a common source. In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984) and In re International Telephone &
Telegraph Corp., 197 USPQ 910 (TTAB 1978).
While it is true that applicant’s soil conditioners
and registrant’s tree growth regulators are different
products apparently sold for different purposes, these
goods may be sold in the same channels of trade (such as
lawn and garden centers, home centers, nurseries, etc.) to
the same class of purchasers (home gardeners). We also
observe that these goods, sold under identical marks, are
regulators can be inexpensively applied by the use of trowels.
Ser. No. 75/464,982
6
not likely to be expensive items. This factor, too, tends
to increase the likelihood of confusion.
In sum, we find that purchasers, aware of registrant’s
PROFILE tree growth regulator, who then encounter
applicant’s PROFILE soil conditioners, are likely to
believe that these products come from the same source.
Decision: The refusal of registration is affirmed.