Reynolds Metal Companyv.Wilkinson Manufactur-ing Company

Trademark Trial and Appeal Board

Jul 20, 2000

No. 91098123 (T.T.A.B. Jul. 20, 2000)

Hearing: Paper No. 44
January 13, 2000 PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 20, 00
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Reynolds Metal Company
v.
Wilkinson Manufacturing Company
_____
Opposition No. 98,123
to application Serial No. 74/581,682
filed on October 3, 1994
_____
Alfred J. Mangels for Reynolds Metal Company.
Jill R. Ackerman and D. Nick Caporale of Baird, Holm,
McEachen, Pedersen, Hamann & Strasheim for Wilkinson
Manufacturing Company.
______
Before Hairston, Walters and Holtzman, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Wilkinson
Manufacturing Company (Wilkinson) to register the mark
DELTAPAK for “oriented polystyrene containers with a tamper-
resistant locking device used for food.”1

1 Serial No. 74/581,682, filed October 3, 1994, which alleges a
bona fide intention to use the mark in commerce.
Opposition No. 98,123
2
Registration has been opposed by Reynolds Metal Company
(Reynolds) under Section 2(d) of the Trademark Act on the
ground that Wilkinson’s mark, when used in connection with
the identified goods, so resembles Reynolds’ previously
registered and used mark DEL-PAK for “plastic containers and
plastic lids therefor for use in foodservice operations,”2
as to be likely to cause confusion, mistake or deception.
Wilkinson, in its answer, denied the salient
allegations of the opposition and asserted a counterclaim
under Section 18 of the Trademark Act to restrict the
identification of goods in Reynolds’ registration. The
counterclaim, as now amended, is a contingent one and seeks
to limit the goods in Reynolds’ registration to
“polypropylene and polyethylene containers and lids therefor
for use in food service operations,” i.e., to replace the
references to “plastic” in the current identification of
goods with references to “polypropylene and polyethylene.”
Reynolds has filed an answer to the amended
counterclaim wherein it admits that it uses the DEL-PAK mark
only in connection with polypropylene and polyethylene
containers and lids. However, Reynolds asserts that the
restriction which Wilkinson seeks is not commercially
significant in that its entry would not avoid a likelihood
of confusion.

2 Registration No. 1,564,584 issued November 7, 1989; Sections 8
Opposition No. 98,123
3
We turn first to the evidentiary disputes that have
arisen between the parties. As regards Reynolds’ objection
to certain of the testimony of Wilkinson’s witness Raymond
Salinas, on the ground that Wilkinson failed to adequately
qualify Mr. Salinas, we note that Reynolds did not raise
this objection during the course of Mr. Salinas’ testimony
deposition. Inasmuch as this ground of objection may have
been obviated during Mr. Salinas’ testimony deposition,
(i.e., Wilkinson may have offered more information about his
background), we find that Reynolds has waived this
objection. See Fed. R. Civ. P. 32(d)(3)(A). In any event,
it appears to us that sufficient information was offered
concerning Mr. Salinas’ background that he was competent to
testify to the matters in question.
Reynolds also has objected to Wilkinson’s exhibit no.
52, which contains information concerning Wilkinson’s sales,
on the ground that such information is not relevant because
Wilkinson’s application is based on a bona fide intention to
use the mark in commerce. Notwithstanding that the
application is an intent-to-use application, where as here,
the applicant has begun use of its mark, information
concerning sales is relevant because it may show whether
there has been an opportunity for actual confusion to occur.

& 15 declaration filed.
Opposition No. 98,123
4
In view thereof, Reynolds objection to Wilkinson’s exhibit
no. 52 is not well taken.
Finally, after the filing of briefs herein, Reynolds
filed a motion to supplement the record with a copy of U.S.
Patent No. 5,507,406 which covers a “Tamperproof/Tamper-
evident Container.” In the alternative, Reynolds requests
that we take judicial notice of the patent. Reynolds
maintains that information in the patent contraverts certain
arguments made by Wilkinson in its brief. Wilkinson, on the
other hand, argues that Reynolds’ motion to supplement the
record is untimely. Inasmuch as Reynolds’ time for taking
testimony has closed, it will not now be allowed to
supplement the record. Moreover, the Board does not take
judicial notice of patents. We should point out, however,
that arguments made in a brief, unless supported by properly
filed evidence, are entitled to no weight.
The record consists of the pleadings; the files of the
involved application and registration; and testimony
depositions, with exhibits, filed by both parties. Reynolds
submitted by way of notice of reliance a status and title
copy of it’s pleaded registration; dictionary excerpts; and
Wilkinson’s responses to certain discovery requests.
Wilkinson submitted by way of notice of reliance a
dictionary excerpt; Reynolds’ responses to certain of
Opposition No. 98,123
5
Wilkinson’s discovery requests; and the affidavit of Armel
MacDonald.3
According to the record, Reynolds first used the mark
DEL-PAK in connection with plastic containers and plastic
lids therefor for foodservice operations in January 1989.
Reynolds’ containers range in size from 8 oz. capacity to 54
oz. capacity. Reynolds’ containers and lids are made from
polypropylene and polyethylene which are transparent plastic
materials. The products are also available in opaque form
in which the plastic contains a coloring material.
Reynolds products are promoted and sold to customers in
the restaurant, hotel, supermarket and related foodservice
industry. Reynolds sells its products through distributors.
Between 1989 and 1995 Reynolds’ sales totaled approximately
$60,000,000. The average selling price for a case of DEL-
PAK containers or lids is around $20.00, and 500 units are
in each case.
Reynolds spends hundreds of thousands of dollars
annually in advertising and promoting its products. It
distributes product catalogs and flyers to distributors, and
places advertisements in trade publications.
Although an intent-to-use application, the record shows
that Wilkinson began using the mark DELTAPAK for an oriented
polystyrene (plastic) food container in February 1995.

3 The parties agreed to the submission of this affidavit in lieu
Opposition No. 98,123
6
Wilkinson’s product features a one-step tamper-evident
locking device which prevents anyone from opening the lid
and tampering with the contents of the container.
According to Mr. Salinas, Wilkinson considered a number
of marks in connection with its product, but decided on
DELTAPAK because “Delta Project” was the in-house name used
to identify Wilkinson’s project for developing the
containers.
Wilkinson’s products are sold nationwide to warehouse
clubs such as Price-Costco, Sam’s Club, foodservice
distributors and large supermarket chains. Wilkinson’s
products are promoted for displaying foods with limited
shelf life such as cookies, candy and doughnuts. The
containers range in size from 8 oz. capacity to 128 oz.
capacity. Approximately $6,000,000.00 worth of DELTAPAK
containers were sold between February 1995 and October 1999.
As indicated above, Reynolds made of record a status
and title copy of its registration for the mark DEL-PAK.
Thus, there is no issue with respect to Reynolds’ priority.
King Candy Co., Inc. v. Eunice King’s Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108 (CCPA 1974).
We turn then to the issue of likelihood of confusion.
Turning first to a consideration of the marks, we find
that they are substantially similar in sound, appearance and

of a testimony deposition.
Opposition No. 98,123
7
commercial impression; the only difference between the marks
being the additional letters “TA” in Wilkinson’s mark. We
recognize that Reynolds admitted that it selected the mark
DEL-PAK because it was suggestive of the idea of a “deli” or
delicatessen. In view of this admission, Wilkinson argues
that DEL-PAK and DELTAPAK have different connotations.
However, there is no evidence in the record that in the
foodservice industry DEL means or suggests “deli” or
delicatessen,” such that DEL-PAK and DELTAPAK would have
different connotations to purchasers of the involved goods.
The only evidence we have in the record with respect to the
meaning of DEL are three dictionary excerpts which show that
DEL, inter alia, is short for “delta.”4 While we cannot say
that it is generally known that DEL is short for “delta,” to
those purchasers who are aware of this, the marks would have
identical connotations. In finding that the respective
marks herein are substantially similar, we have kept in mind
the normal fallibility of human memory over time and the
fact that the average purchaser retains a general rather
than a specific impression of trademarks encountered in the
marketplace. Because of the similarities between the marks
herein, the question then is whether the goods are related

4 These excerpts were taken from Webster’s Third New
International Dictionary (1986); Random House Unabridged
Dictionary (2 ed. 1993); and Random House Webster’s College
Dictionary (1995).
Opposition No. 98,123
8
such that when sold under the respective marks, confusion is
likely.
We must consider first the goods as set forth in
Wilkinson’s application and Reynolds’ registration.
Wilkinson’s goods are set forth as “oriented polystyrene
Opposition No. 98,123
9
containers with tamper-evident locking device used for food”
and Reynolds’s goods are set forth as “plastic containers
and plastic lids therefor for use in foodservice
operations.” Wilkinson argues that its goods are different
from those of Reynolds’ because of the tamper-evident
locking device. However, in determining whether goods are
related for purposes of likelihood of confusion, it is not a
question of whether the goods have identical features or are
identical in appearance. Rather, it is the underlying
nature of the goods and their use or purpose that must be
considered. The identification of goods in both Wilkinson’s
application and Reynolds’ registration indicate that the
goods of both parties are plastic containers and lids for
use with foods, in particular, for food packaging. Also,
because neither the application nor the cited registration
contains any limitations as to channels of trade or classes
of purchasers, we must presume, for purposes herein, that
the parties sell their goods in all of the usual trade
channels for plastic containers and lids for foods, to all
of the normal classes of customers. Accordingly, we can
draw no legal distinction between the parties’ goods, trade
channels, and classes of customers, but rather must consider
them to be the same. In point of fact, we note that both
parties sell their goods to food service distributors and
supermarkets.
Opposition No. 98,123
10
With respect to the classes of purchasers of these
goods, we should note that although some of the purchasers
of the involved goods may well be sophisticated, others may
not be particularly knowledgeable. Both parties’ goods
could be sold to neighborhood bakeries, “mom and pop”
stores, and small delicatessens and cafes. The owners of
these types of establishments would not be considered
sophisticated purchasers.
Further, as to the lack of evidence of any known
instances of actual confusion, it must be remembered that
evidence of actual confusion is hard to come by and the test
under Section 2(d) of the Trademark Act is not actual
confusion but likelihood of confusion.
In view of the foregoing, we conclude that purchasers
familiar with Reynolds’ plastic containers and lids for food
use sold under the mark DELPAK would be likely to believe,
upon encountering Wilkinson’s mark DELTA-PAK for oriented
polystyrene containers with a tamper-resistant locking
device also for food use, that the goods originate with the
same source.
Finally, we turn to Wilkinson’s counterclaim to
restrict Reynolds’ registration to “polypropylene and
polyethylene containers and lids therefor for use in food
service operations.” In this case, we agree with Reynolds
that this restriction, which relates only to the specific
Opposition No. 98,123
11
plastic materials used in manufacturing its containers and
lids, would not avoid the likelihood of confusion. There is
no evidence that polyethylene and polypropylene, on the one
hand, and oriented polystyrene, on the other hand, are
sufficiently different kinds of plastics such that they
would be likely to emanate from distinct sources. Neither
is there evidence that the relevant purchasers of the types
of containers involved herein would be aware that
polyethylene and polypropylene, and oriented polystyrene are
specifically different kinds of plastic or that these
plastics are likely to emanate from distinct sources. In
view thereof, and because the proposed restriction does not
relate to the use or purpose of the goods, the channels of
trade, or the purchasers, it is not a commercially
significant restriction. In short, the actual market
conditions would be the same even with the restriction to
Reynolds’ identification of goods.
Opposition No. 98,123
12
Decision: The opposition is sustained and the
counterclaim is dismissed.
P. T. Hairston
C. E. Walters
T. E. Holtzman
Administrative Trademark Judges
Trademark Trial and Appeal Board