QCA Spas, Inc.

Trademark Trial and Appeal Board

Aug 4, 2005

No. 78295396 (T.T.A.B. Aug. 4, 2005)

Mailed: August 4, 2005
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re QCA Spas, Inc.
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Serial No. 78295396
_______

Timothy J. Zarley of Zarley Law Firm, P.L.C. for QCA Spas, Inc.

William H. Dawe III, Trademark Examining Attorney, Law Office 108
(Andrew Lawrence, Managing Attorney).
_______

Before Hohein, Bucher and Grendel, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

QCA Spas, Inc. has filed an application to register on
the Principal Register the mark "SPA BREEZE" for "chemicals for
treating spas, namely, chlorine, water shock chemicals, water
clarifiers, [and] bromine tablets" in International Class 1.1
Registration has been finally 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 goods, so resembles the
mark "POOL BREEZE," which is registered on the Principal Register
for "pool care chemicals for swimming pools, namely[,] chlorine,

1 Ser. No. 78295396, filed on September 3, 2003, which is based on an
allegation of a date of first use of such mark anywhere and in
commerce of September 1, 2003. The word "SPA" is disclaimed.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 78295396
2
water stabilizers, water clarifiers, water shock chemicals, metal
removing agents, and water testing kits comprised of reagents
and/or test strips" in International Class 1,2 as to be likely to
cause confusion, or to cause mistake, or to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity or
dissimilarity in the goods at issue and the similarity or
dissimilarity of the respective marks in their entireties.3
Turning first to consideration of the respective goods,
applicant asserts in its initial brief that there is a
"significant difference" between its "chemicals for treating
spas" and registrant's "pool care chemicals for swimming pools"
in that "[a]pplicant's mark is directed toward a separate and

2 Reg. No. 1,939,190, issued on December 5, 1995, which sets forth a
date of first use anywhere and in commerce of October 1, 1992;
combined affidavit §§8 and 15. The word "POOL" is disclaimed.

3 The court, in particular, pointed out that: "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."
192 USPQ at 29.
Ser. No. 78295396
3
distinct group of consumers, namely[,] those owning spas, while
the registered mark is directed toward consumers owning swimming
pools." Applicant maintains, in light thereof, that the
Examining Attorney has offered no evidence to demonstrate that
the respective goods would be considered commercially related in
the minds of such consumers, arguing that:
To establish a likelihood of confusion,
the Examining Attorney must do more than
simply state that "the goods are related
because they are chemicals that are related
to pools and spas". Rather, to establish
likelihood of confusion one must show
"something more" than that the marks are used
on related goods. In re Coors Brewing Co.,
343 F.3d 1340, 1345[, 68 USPQ2d 1059, 1063]
(Fed. Cir. 2003) (overturning Board's holding
that food product and restaurant service were
related). Here, the Examining Attorney has
provided no evidence to support his
conclusion that consumers are likely to
conclude that spa chemicals and pool
chemicals with marks different in appearance
and sound, emanate from the same source.
.... Nor has the Examining Attorney provided
any evidence that the registrant's customers
would be prospective consumers of Applicant's
goods.

The Examining Attorney, on the other hand, insists in
his brief that "there is every indication that the same consumer
would encounter the applicant's goods ... in the same trade
channels as the registrant's goods." As support for such
statement, the Examining Attorney notes that he has made of
record copies of "third-party registrations of marks used in
connection with the same or similar goods as those of applicant
and registrant in this case." Such copies, the Examining
Attorney maintains, "have probative value to the extent that they

Ser. No. 78295396
4
serve to suggest that the goods listed therein, namely[,] water
clarifiers, shock treatment chemicals and/or chlorine for both
swimming pools and spas, are of a kind that may emanate from a
single source" and thus evidence that "the applicant's goods and
those of the registrant are related."
While the Examining Attorney has made no mention of
applicant's contention that the record must show "something more"
in order to support a finding that the goods at issue are
commercially related, we note that applicant's reliance on In re
Coors Brewing Co., supra, is misplaced. Such case, which
involved beer and restaurant services, is clearly limited by its
facts to, among other things, a determination that there was not
"substantial evidence" to support the finding by the Board
majority that the judicially imposed requirement, originally set
forth in Jacobs v. International Multifoods Corp., 668 F.2d 1234,
212 USPQ 641, 642 (CCPA 1982), that "[t]o establish likelihood of
confusion a party must show something more than that similar or
even identical marks are used for food products and for
restaurant services" had been met. Here, in sharp contrast, this
appeal involves applicant's "chemicals for treating spas, namely,
chlorine, water shock chemicals, water clarifiers, [and] bromine
tablets," on the one hand, and registrant's "pool care chemicals
for swimming pools, namely[,] chlorine, water stabilizers, water
clarifiers, water shock chemicals, metal removing agents, and
water testing kits comprised of reagents and/or test strips", on
the other. As the Examining Attorney accurately observes in his
brief, applicant's goods and registrant's goods not only "are
Ser. No. 78295396
5
chemicals," but, even though the former are for treating spas
while the latter are for use in swimming pools, "[a]t least to
the extent that applicant's identification of goods contains
chlorine, water clarifiers and water shock chemicals, its goods
are identical to those of the registrant."
Moreover, and in any event, it is well established that
the goods at issue need not be identical or even competitive in
nature in order to support a finding of likelihood of confusion.
Instead, it is sufficient that the respective goods are related
in some manner and/or that the circumstances surrounding their
marketing are such that they would be likely to be encountered by
the same persons under situations that would give rise, because
of the marks employed in connection therewith, to the mistaken
belief that they originate from or are in some way associated
with the same producer or provider. See, e.g., Monsanto Co. v.
Enviro-Chem Corp., 199 USPQ 590, 595-96 (TTAB 1978) and In re
International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978). Here, contrary to applicant's assertion, there is
evidence in the record which, as the Examining Attorney
emphasizes, is sufficient to demonstrate that applicant's goods
are commercially related to those of registrant, such that their
marketing under the marks at issue would be likely to cause
confusion as to origin or affiliation.
Specifically, as alluded to by the Examining Attorney,
it is settled that while use-based third-party registrations are
not proof that the different marks shown therein are in use or
that the public is familiar with them, it nevertheless is the
Ser. No. 78295396
6
case that such registrations are evidence in that they may have
some probative value to the extent that they serve to suggest
that the various goods listed therein are of the kinds which may
emanate from a single source. See, e.g., In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n.6 (TTAB 1988),
aff’d as not citable precedent, No. 88-1444 (Fed. Cir. Nov. 14,
1988). In this case, the Examining Attorney has made of record a
dozen use-based third-party registrations pertaining to marks for
various chemical products for both pools and spas. Included in
the goods listed therein are the following: "liquid chlorine as
used in swimming pools, spas, and the like"; "chemicals for
swimming pools and spas, namely, clarifiers, peroxide shocks, ...
and pH balancers, and stabilizers"; "chlorine for use in swimming
pools and spas"; "water treatment chemicals for spas ... and
pools--namely, clarifier and algae inhibitor[s] ..."; "chemicals
for swimming pools and spas, namely, clarifiers, peroxide shocks
... and bromine removers"; "non-chlorine chemical shock treatment
for swimming pools and spas"; "water purifying or treatment
chemicals for swimming pools and spas, namely, chlorine"; "water
treatment chemicals for swimming pools and spas, namely,
stabilizers ... and shock treatment chemicals"; "chemical
preparation for use as a chlorine reducer, pH stabilizer ... and
water clarifier in swimming pools ... and spas"; and "non-
chlorine water purification compounds for pools, spas, fountains
and drinking water."
Ser. No. 78295396
7
Such registrations thus evidence that various chemical
water treatment products for swimming pools are commercially
related to their counterpart products for spas in that purchasers
thereof, including such ordinary consumers as homeowners, would
be accustomed to finding the respective goods marketed under the
same marks through the same or similar channels of trade.4 We
note in this regard that it would not be uncommon for homeowners,
for example, to have at their residences both a swimming pool for
exercising and swimming and a spa for relaxing and soaking.
Plainly, homeowners would need water treatment chemicals for use
therewith and it is clear that, except for the fact that
applicant's goods are directed for use in spas while registrant's
goods are sold for use in swimming pools, that the nature and use
of the respective goods are essentially the same. Accordingly,
the goods at issue herein must be considered commercially related
in that they would be sold through the same or similar channels
of trade to the same classes of purchasers, such that the sale

4 Applicant, with its reply brief, has attached a copy of registrant's
webpage as well as a copy of pages from applicant's website.
Applicant maintains that such evidence shows that registrant, on the
one hand, "sells only products sold for swimming pools and does not
sell any products for spas," while applicant, on the other hand,
"sells only spas and spa chemicals and does not sell any type of pool
chemicals." According to applicant, such evidence therefore
establishes that "the Applicant and Registrant are selling their goods
in different channels of trade and the cross-over of consumers would
be de minimus." The evidence attached to applicant's reply brief,
however, is untimely under Trademark Rule 2.142(d) and will not be
further considered inasmuch as the Examining Attorney has had no
opportunity to refute such. Nonetheless, we note that even if such
evidence were to be treated as being properly of record, it would not
establish that goods of the kinds marketed by applicant and those of
the types sold by registrant do not generally travel in the same
channels of trade to different classes of purchasers or that customers
do not cross shop different retailers for such products.

Ser. No. 78295396
8
and/or advertising thereof under the same or similar marks would
be likely to cause confusion as to source or sponsorship.
Turning, then, to consideration of the marks at issue,
applicant argues that, when considered in their entireties, the
marks "SPA BREEZE" and "POOL BREEZE" are not similar in sound,
appearance or meaning. Applicant, in particular, faults the
Examining Attorney in stressing the fact that the respective
marks share a word which is preceded by a descriptive term,
asserting in its initial brief that:
In rejecting Applicant's mark, the
Examining Attorney found the term "Breeze" to
be the dominant portion of the mark, and
giving greater weight to this term concluded
that Applicant's mark and the registered mark
are very similar. .... In this manner, the
Examining Attorney has improperly dissected
the marks. Rather, the Examining Attorney
has only considered the similar commercial
impression of part of the marks--the shared
word "Breeze"--before concluding that the
marks were similar. ....

Moreover, although the Examining
Attorney noted that it is proper to give
greater weight to the term "Breeze" on the
ground that the Applicant merely dropped the
descriptive term "pool" and added the
descriptive term "spa," such analysis still
fails to consider the sound or appearance of
the marks as a whole. By indicating that
more weight is given to a particular
component of the mark, this does not excuse
consideration of the other components of the
mark as a whole. .... The ultimate
conclusion of similarity or dissimilarity of
the marks must rest on consideration of the
marks in their entirety.

Applicant additionally maintains that "it is well
established that where marks, similar wholly or in part, are used
by third parties in the same field, the owner's mark tends to be
Ser. No. 78295396
9
weak as an indicator of a single source; it is therefore entitled
to a narrow scope of protection." As applicant correctly notes:
Third[-]party registrations may be used
effectively to show that a mark is inherently
weak, by showing that different entities have
adopted and registered marks in a particular
field, and that the PTO has allowed the
registration of marks over one another
despite the fact that they have some points
of similarity. Clinton Detergent Co. v.
Proctor & Gamble Co., [302 F.2d 745,] 133
USPQ 520 (CCPA 1962). For instance, when a
PTO trademark application is refused because
of a prior registration, the Applicant can
effectively argue that its mark is no more
likely to cause confusion with the registered
mark than the registered mark is likely to be
confused with one or more other registered
marks, all of which include the common
element. [Citations omitted.]

Here, applicant points out, it has made of record information
concerning the following third-party registrations: (i) Reg. No.
2,693,895 for the mark "OCEAN BREEZE for "pool chemicals"; (ii)
Reg. No 2,388,290 for the mark "WESTERNBREEZE" for "preparations
and chemical reagents for use in biological and life sciences
research"; (iii) Reg. No. 2,123,122 for the mark "CRYSTAL BREEZE"
for "electronic air and water purification units for domestic
use"; and (iv) Reg. No. 1,823,870 for the mark "CATCH THE BREEZE"
for "aerated water." Applicant insists that "[t]he fact that
'BREEZE' is part of several federal registrations for related
goods ... demonstrates that 'BREEZE' has weak trademark
significance in the field" and that, accordingly, "applicant's
use of 'BREEZE' is no more likely to cause confusion with [the
cited registrant's mark] ... than these marks are likely to cause
confusion with other previously existing 'BREEZE' registrations."
Ser. No. 78295396
10
The Examining Attorney, on the other hand, contends in
his brief that while he "cannot ignore a disclaimed portion of a
mark and must view marks in their entireties, one feature of a
mark may be more significant in creating a commercial
impression." See, e.g., Tektronix, Inc. v. Daktronics, Inc., 534
F.2d 915, 189 USPQ 693 (CCPA 1976). Here, as evidenced by the
disclaimers thereof, the Examining Attorney maintains because the
terms "SPA" and "POOL" are descriptive of the respective goods of
applicant and the cited registrant, "the term BREEZE is clearly
the dominant portion of the applicant's mark" and is likewise the
dominant portion of the cited registrant's mark. Thus, the
Examining Attorney argues that, "[a]side from the less
significant portions of the marks, namely, the disclaimed
descriptive terms 'SPA' and 'POOL', the marks ... are identical
in sound, meaning and appearance." Further, the Examining
Attorney urges that because such marks "are highly similar in
overall commercial impression, the applicant's mark is likely to
cause confusion with the registrant's mark." In particular, the
Examining Attorney insists that "[p]otential consumers of the
applicant's and registrant's goods are likely to view the terms
'SPA' and 'POOL' as a means to distinguish which 'BREEZE'
chemicals are intended for use in spas and which ones are
intended for use in swimming pools."
As to the third-party registrations relied on by
applicant, the Examining Attorney notes among other things that
such registrations are entitled to little weight on the issue of
likelihood of confusion, correctly pointing out that third-party
Ser. No. 78295396
11
registrations are not evidence of what happens in the marketplace
or that the consuming public is familiar with the use of those
marks. See, e.g., Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 463 (CCPA 1973); AMF Inc. v. American
Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA
1973); and In re Hub Distributing, Inc., 218 USPQ 284, 285-86
(TTAB 1983). The Examining Attorney, citing In re National
Novice Hockey League, Inc., 222 USPQ 638, 641 (TTAB 1984), also
properly observes that inasmuch as "it has long been held that
each case must be decided on its own merits, previous decisions
by examining attorneys in approving marks are without evidentiary
value and are not binding upon the agency or the board."
Moreover, and in any event, the Examining Attorney accurately
asserts that "the term BREEZE is not a weak term for pool and spa
chemicals in International Class 1" because, "[o]ther than the
cited registration herein ..., the only other registered mark for
pool or spa chemicals is ... Registration [No.] 2693895 [for the
mark] OCEAN BREEZE for pool chemicals." The Examining Attorney
thus concludes that, with respect to water treatment chemicals
for swimming pools and spas, "the applicant's argument that the
term BREEZE is weak is without merit."
We agree with the Examining Attorney that, overall, the
marks "SPA BREEZE" and "POOL BREEZE" are so substantially similar
as to be likely to cause confusion, mistake or deception when
used in connection with commercially related water treatment
chemicals for, respectively, spas and swimming pools. As our
principal reviewing court has noted, while the marks at issue are
Ser. No. 78295396
12
to be considered in their entireties, including any descriptive
or generic terms, it is also the case that, in articulating
reasons for reaching a conclusion on the issue 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 of a mark, provided [that] the ultimate
conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, according to the court,
"that a particular feature is descriptive or generic with respect
to the involved goods ... is one commonly accepted rationale for
giving less weight to a portion of a mark ...." Id.
Here, we concur with Examining Attorney that the
dominant and distinguishing element of both applicant's "SPA
BREEZE" mark and the cited registrant's "POOL BREEZE" mark is the
arbitrary or fanciful word "BREEZE," given the lack of source-
indicative significance inherent in, respectively, the
generically descriptive terms "SPA" and "POOL." Although,
concededly, such terms do not look or sound alike and they do not
have the same meaning since a spa is obviously not a swimming
pool, overall the marks are not only structurally identical, in
that the terms "SPA" and "POOL" precede the source-indicative
word "BREEZE," but such marks engender a substantially similar
overall commercial impression when used in connection with,
respectively, "chemicals for treating spas" and "pool care
chemicals for swimming pools." As the Examining Attorney
persuasively argues in his brief, "consumers are highly unlikely
Ser. No. 78295396
13
to differentiate" as to source or sponsorship the applicant's
"SPA BREEZE" chemicals for treating the water in a spa and the
cited registrant's "POOL BREEZE" chemicals for care of the water
in a swimming pool. Instead, as the Examining Attorney further
points out, "consumers are likely to believe that the
registrant's [or applicant's] company markets two different lines
of BREEZE chemical products, one designed specifically for spas
and one designed specifically for pools."
Finally, while we disagree with applicant, for the
reasons set forth by the Examining Attorney, that the marks at
issue are weak and thus should be entitled to only a narrow scope
of protection, it is still the case that the record shows that
there is a subsisting third-party registration for the mark
"OCEAN BREEZE" for "pool chemicals." Although the goods set
forth in such registration are of course identical to those of
the cited registrant and are commercially related to those of
applicant, the mark which is the subject thereof is different
than those at issue herein. The mark "OCEAN BREEZE" denotes a
breeze off the ocean, a connotation which is absent from the
marks "SPA BREEZE" and "POOL BREEZE." Furthermore, the term
"OCEAN," in stark contrast to the terms "SPA" and "POOL," is not
generically descriptive of the use of water treatment chemicals,
such that the marks "SPA BREEZE" and "POOL BREEZE" are far more
similar to each other than either of such marks is to the mark
"OCEAN BREEZE." Consequently, the overall commercial impression
conveyed by the mark "OCEAN BREEZE" differs significantly from
the substantially similar commercial impression which is
Ser. No. 78295396
14
engendered by the marks "SPA BREEZE" and "POOL BREEZE" at issue
herein. Nonetheless, to the extent that the coexistence of a
third party's registration for the mark "OCEAN BREEZE" for "pool
chemicals" with the cited registrant's registration for the mark
"POOL BREEZE" for "pool care chemicals for swimming pools" may
serve to create any possible doubt as to whether applicant's mark
"SPA BREEZE" for "chemicals for treating spas" is likely to cause
confusion with the latter, we resolve such doubt, as we must, in
favor of the cited registrant. See, e.g., In re Martin's Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed.
Cir. 1984); and In re Pneumatiques Caoutchouc Manufacture et
Plastiques Kelber-Columbes, 487 F.2d 918, 179 USPQ 729, 729 (CCPA
1973).
Accordingly, we conclude that consumers who are
familiar or otherwise acquainted with the cited registrant's
"POOL BREEZE" mark for "pool care chemicals for swimming pools"
would be likely to believe, upon encountering applicant's
substantially similar mark "SPA BREEZE" for "chemicals for
treating spas," that such commercially related products emanate
from, or are otherwise sponsored by or affiliated with, the same
source. In particular, as previously noted, consumers would be
likely to regard applicant's "SPA BREEZE" goods as part of a line
of water treatment chemicals for spas and swimming pools which
originates from or is sponsored by the same source as markets the
cited registrant's "POOL BREEZE" goods.
Decision: The refusal under Section 2(d) is affirmed.