Rug Doctor, L.P.v.Mohawk Brands, Inc.

Trademark Trial and Appeal Board

Nov 30, 2007

No. 91156097 (T.T.A.B. Nov. 30, 2007)

Mailed:
November 30, 2007
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Rug Doctor, L.P.
v.
Mohawk Brands, Inc.
________

Opposition Nos. 91156097 & 91159628
against Serial Nos. 78087483 & 78153433
_______

Matthew J. Himich and Mark Sableman of Thompson Coburn LLP
for Rug Doctor, L.P.

Michael D. Hobbs, Jr. and Auma N. Reggy of Troutman Sanders
LLP for Mohawk Brands, Inc.
_______

Before Quinn, Bucher and Mermelstein, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Mohawk Brands, Inc. seeks registration on the
Principal Register of the mark FOREVER FRESH for goods
identified in the application, as amended, as follows:
“carpet containing or treated with odor-
freshening chemicals” in International Class
27.1

1 Application Serial No. 78087483 was filed by Mohawk Carpet
Corporation on October 9, 2001 claiming a bona fide intention to
use the mark in commerce. In an amendment to allege use executed
on May 30, 2002, applicant alleged first use anywhere and first
use in commerce at least as early as October 9, 2001.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition Nos. 91156097 & 91159628
- 2 -
Applicant also seeks registration on the Principal Register
of the mark MOHAWK FOREVER FRESH for goods identified in
the application as simply “carpets,” also in International
Class 27.2
Rug Doctor, L.P. has opposed these applications on the
ground of priority of use and likelihood of confusion,
alleging that applicant’s marks, when used in connection
with the identified goods, so resemble its EVERFRESH mark,
which is the subject of two registrations, as follows:
EVERFRESH for “rug and room deodorizer” in International
Class 5;3 and

2 Application Serial No. 78153433 was filed by Mohawk Carpet
Corporation on August 12, 2002 claiming a bona fide intention to
use the mark in commerce. In amendments to allege use executed
on November 26, 2002 (in the name of Mohawk Brands, Inc.) and
again on February 12, 2003 (in the name of Mohawk Carpet
Corporation), applicant alleged first use anywhere and first use
in commerce at least as early as September 15, 2002.

3 Registration No. 1219651 issued to Blue Lustre Home Care
Products, Inc. on December 14, 1982 based upon an application
filed on February 13, 1980 claiming first use anywhere and first
use in commerce at least as early as January 18, 1980; renewed.
According to the records of the Assignment Services Division of
the United States Patent and Trademark Office, this registration
was assigned to Rug Doctor, L.P., as of November 14, 2001,
recorded at Reel 2406, Frame 0652.

Opposition Nos. 91156097 & 91159628
- 3 -
EVERFRESH for “cleaning preparations for use on rugs,
carpets, upholstery and all purpose cleaning”
in International Class 3.4

as to be likely to cause confusion, to cause mistake or to
deceive under Section 2(d) of the Lanham Act.
Applicant, in its answers, has denied the salient
allegations in both of the above-captioned opposition
proceedings. The cases are both now ready for decision,
and given the related nature of the records and the issues
involved, these two proceedings have been consolidated for
decision in this single opinion, which shall be entered in
the proceeding files of both oppositions.
By operation of the rules, the records include the
pleadings and the files of both opposed applications.
Opposer, as part of its case-in-chief, filed a Notice
of Reliance with the United States Patent and Trademark
Office on October 20, 2005, listing status and title copies
of its claimed registrations and the transcript from the
Rule 30(b)(6) deposition of applicant’s principal, Edward
H. Williams, Senior Vice President of Marketing for the

4 Registration No. 2398515 issued to Rug Doctor, L.P. on
October 24, 2000 based upon an application filed on October 14,
1998 later claiming first use anywhere and first use in commerce
at least as early as April 11, 2000; Section 8 affidavit (six-
year) accepted and Section 15 affidavit acknowledged.

Opposition Nos. 91156097 & 91159628
- 4 -
Residential Carpet Division of Mohawk Industries, dated
September 9, 2005, and related documents. Opposer also
submitted the transcript of the testimony deposition of Tim
Davidian, Secretary/Treasurer of opposer with
responsibility for financial and legal matters, with
exhibits.
Applicant, as part of its case-in-chief, filed a
Notice of Reliance with the United States Patent and
Trademark Office on December 15, 2005, listing applicant’s
First Request for Admissions to opposer and opposer’s
Responses thereto; applicant’s First Continuing
Interrogatories to opposer and opposer’s Responses thereto;
the transcript from the Rule 30(b)(6) discovery deposition
of opposer’s principal, Tim Davidian, dated September 2,
2005, and related documents referenced therein; a copy of
this Board’s earlier decision denying a motion for summary
judgment in an opposition filed against a third party by
Rug Doctor;5 third-party registrations having marks with
variations on “Everfresh”; and newspaper articles in

5 Opposition No. 91153928 was brought against Application
Serial No. 76268469 for the mark FOREVER FRESH
ODOR ELIMINATOR, as shown to the right, for goods
identified as “all purpose odor neutralizing
preparation for general use in eliminating odors
from the air” in Int. Cl. 5. On July 13, 2007, this opposition
was sustained under Section 2(d) of the Lanham Act.

Opposition Nos. 91156097 & 91159628
- 5 -
general circulation printed from the LEXIS/NEXIS
computerized library. A week later, applicant filed its
second notice of reliance on status and title copies of two
federal trademark registrations it allegedly owned,6 and
third-party registrations having marks with variations on
“Everfresh.” Finally, applicant submitted the transcripts
of the testimony depositions of Ashland, Inc.’s witness,
Michele Judith Wyatt, trade marketing manager for
Ashland/Valvoline’s Eagle One brands, and of Dean Brian
Truitt, II, Ever-Fresh Products, LLC.’s president and CEO.
The parties have fully briefed the issues before us.
Factual Findings
Opposer is a leading manufacturer of carpet cleaning
machines for both the professional and the do-it-yourself
carpet cleaning markets, having been in this business since
1972. Opposer has an 85% share of the do-it-yourself
rental market in the United States for carpet cleaning
machines. Rug Doctor has placed its rental carpet cleaning
machines in all of Lowes Companies, Inc.’s stores and many

6 Applicant submitted copies of registrations for FOREVER
FRESH6 and MOHAWK FOREVER FRESH6 for carpeting. We note that
these registrations were inadvertently-issued and as such have
been cancelled and returned to their earlier status as pending
applications, namely, the two applications involved herein.

Opposition Nos. 91156097 & 91159628
- 6 -
of The Home Depot, Inc.’s stores. Rug Doctor also sells
related cleaning and deodorizing products at retail,
including the EVERFRESH brand of products. Davidian Dep. at
6 - 8.
EVERFRESH deodorizing products were introduced into the
marketplace in 1980 by Blue Lustre Home Care
Products, Inc. Sold from 1980 until 1996,
the Blue Lustre EVERFRESH product was a rug
deodorizing product in the form of a powder
that was sprinkled onto carpet and then vacuumed. Id. at
8 - 11.
Then in 1996, Opposer bought substantially all of the
assets of Blue Lustre Home Care Products, including rights
to the EVERFRESH mark (Registration No. 1219615). Around
2000, Opposer expanded the products sold under the EVERFRESH
mark to include a new liquid cleaning product marketed in
spray bottles for direct application onto carpeting
(Registration No. 2398515). These new EVERFRESH cleaning
products included a stain remover/odor
eliminator product (at right) and a
carpet cleaner and a fabric refresher.
Id. at 11 - 18; Exhibit 7. These
products are used in locations where
Opposition Nos. 91156097 & 91159628
- 7 -
fibrous materials are found (e.g., the home, automobiles,
bathrooms, etc.). In cleaning and deodorizing rugs,
carpets and other fibrous materials, these
EVERFRESH brand products are designed to
remove odors from the air surrounding the
carpet. Davidian Dep. at 15 - 21. The
prospective consumer for opposer’s EVERFRESH
carpet cleaner product would be a person
needing to clean a rug or carpet.

Opposer’s EVERFRESH “in-line” white-label carpet
cleaner products are sold next to similar deodorizing and
cleaning products in supermarkets, drug stores, hardware
stores, and home improvement centers across the nation.
The bottles of these products sell at retail from $4.00 to
$14.00, depending upon the type and size of the product.
Rug Doctor has a current sales relationship with
several flooring and carpeting stores through its carpet
cleaner rental program, including The Home Depot, Inc. and
Lowes Companies, Inc. Davidian Dep. at 22.
Rug Doctor has a trademark monitoring policy that
includes bringing oppositions against the registration of
marks that it believes would create a likelihood of
confusion with its EVERFRESH trademark, such as its
Opposition Nos. 91156097 & 91159628
- 8 -
successful objections to Ashland Oil Company’s registration
of EVERFRESH as applied to an automobile vent system air
freshener.7 We also note Rug Doctor’s successful
objection to World Wide Sales, Inc.’s application for the
mark for “all purpose odor neutralizing preparation for
general use in eliminating odors from the air.”8
Applicant (or “Mohawk”) is the second largest flooring
manufacturer in the world with products such as carpets,
rugs, hardwood flooring and tile. The involved carpet has
been combined with odor-freshening chemicals to deal with
organic odors such as pet odors, food spill odors, etc.
Williams Dep. at 27 – 28. Mohawk has a contract with
Fabricushion to supply the enzyme chemical used in its
FOREVER FRESH / MOHAWK FOREVER FRESH carpet, and has a
license to use the ODOR-EATER designation with its FOREVER
FRESH / MOHAWK FOREVER FRESH carpet products. Id. at 30 –
31. Although both applications were filed as intent-to-use
applications, Mohawk has since filed amendments to allege
use of the mark FOREVER FRESH since at least as early as

7 In view of the stipulation filed August 3, 2005, Opposition
No. 91159180 was dismissed with prejudice. See also Davidian
Dep. at 24 – 25.

8 See footnote 5 supra.

Opposition Nos. 91156097 & 91159628
- 9 -
October 9, 2001 and use of the mark MOHAWK FOREVER FRESH
since at least as early as September 15, 2002.
Mohawk sells its FOREVER FRESH / MOHAWK FOREVER FRESH
carpet in independent carpet stores and in home centers,
such as those of the Lowes Companies, Inc. and The Home
Depot, Inc. Id. at 9, 62. Copies of warranty
documentation and other point of sale labels for the
involved carpet are contained in the record, such as the
following:

Opposition Nos. 91156097 & 91159628
- 10 -
ANALYSIS
Standing

Opposer’s standing is a threshold inquiry made by the
Board in every inter partes case. In Ritchie v. Simpson,
170 F.3d 1092, 50 USPQ2d 1023, 1029 (Fed. Cir. 1999), the
Federal Circuit has enunciated a liberal threshold for
determining standing, i.e., the opposer must have: (1) a
legitimate personal interest in the opposition, and (2) a
reasonable basis for the belief of damage. See also
Jewelers Vigilance Committee Inc. v. Ullenberg Corp.,
823 F.2d 490, 2 USPQ2d 2021, 2023 (Fed. Cir. 1987); and
Lipton Industries, Inc. v. Ralston Purina Company, 670 F.2d
1024, 213 USPQ 185 (CCPA 1982). Rug Doctor alleges in its
Notice of Opposition that it will be damaged if Mohawk
Brands, Inc. were to be granted registrations for
Applicant’s FOREVER FRESH / MOHAWK FOREVER FRESH marks, and
has submitted evidence of opposer’s ownership of its
EVERFRESH registrations. We consider this evidence as
sufficient to establish opposer’s interest and, therefore,
standing, in these proceedings.
Opposition Nos. 91156097 & 91159628
- 11 -
Priority

Because opposer has established that it owns valid and
subsisting registrations of its pleaded mark, priority is
not an issue. See King Candy Company v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974); and
Carl Karcher Enterprises Inc. v. Stars Restaurants Corp.,
35 USPQ2d 1125 (TTAB 1995).
Likelihood of Confusion

We turn, then, to the issue of likelihood of confusion
under Section 2(d) of the Trademark Act. Specifically, the
focus of our determination is on the issue of whether
applicant’s FOREVER FRESH and MOHAWK FOREVER FRESH marks,
when used in connection with carpets, and specifically
carpet containing or treated with odor-freshening
chemicals, so resemble opposer’s EVERFRESH mark in the
claimed registrations as to be likely to cause confusion,
to cause mistake or to deceive as to source or sponsorship.
Our determination must be based upon our analysis of
all of the probative facts in evidence that are relevant to
the factors bearing on the issue of likelihood of
confusion. See In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
Opposition Nos. 91156097 & 91159628
- 12 -
1201 (Fed. Cir. 2003). In considering the evidence of
record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976). See also In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We examine first the du Pont factor focusing on the
relatedness of the goods as described in the applications
and in the claimed registrations.
With respect to the goods, it is well established that
the goods of the parties need not be similar or
competitive, or even that they move in the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient that the respective goods of the parties are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods are such
that they would or could be encountered by the same persons
under circumstances that could, because of the similarity
of the marks, give rise to the mistaken belief that they
originate from the same source. See In re International
Opposition Nos. 91156097 & 91159628
- 13 -
Telephone & Telephone Corp., 197 USPQ 910, 911 (TTAB 1978).
The issue is not whether purchasers would confuse the
goods, but rather whether there is a likelihood of
confusion as to the source of the goods. In re Rexel Inc.,
223 USPQ 830 (TTAB 1984).
Mohawk argues that it sells carpets – albeit, the
involved carpets are treated with odor-freshening
chemicals. Mohawk points out that Rug Doctor has never
made carpets, has no plans to make carpets, and does not
view carpet manufacturers as its competitors. Rather,
opposer makes deodorizers, fabric cleaning products and
carpet-cleaning equipment.
Although opposer agrees that these goods are not
competitive, it argues that base products and cleaning or
restoration products and services especially designed for
use on, or with, the base products must be deemed to be
related. For example, opposer points to cases such as
Christian Dior, S.A.R.L. v. Miss Dior of Flatbush, 173 USPQ
416 (E.D.N.Y. 1972) [clothing goods and dry cleaning
stores]; and Steelcase Inc. v. Steelcare Inc., 219 USPQ 433
(TTAB 1983) [furniture and furniture refinishing].
Similarly, opposer argues that these respective goods
are functionally identical because they serve the same
Opposition Nos. 91156097 & 91159628
- 14 -
function. That is, “[b]oth Mohawk’s and Rug Doctor’s
products are designed to give consumers an odor-free and
stain-free carpet that will result in a ‘fresh’ smelling
and feeling room.” Opposer’s brief, p. 15. Furthermore,
opposer contends that it would not be at all unreasonable
for a consumer to conclude that the maker of the EVERFRESH
carpet deodorizers and stain removers could also have been
involved in creating the ingredients in Mohawk’s
manufacturer-applied, odor-protected carpet.
In fact, an ODOR EATERS product is imbedded in Mohawk’s
carpet, and ODOR EATERS is the brand name of one of
opposer’s competitors in the field of carpet deodorizing
products. Applicant’s own usage is evidence that Combe
International, a provider of carpet cleaning products, has
expanded into the field of carpets through Combe’s
relationship with Mohawk. If this dual usage is true of
ODOR EATERS, it could also be true of EVERFRESH. Given Rug
Doctor’s long standing, dominant presence in the field of
carpet cleaning machines and related goods and services,
opposer argues that it is likely that a customer will
expect Rug Doctor to associate with or sponsor carpet
manufacturers, such as Mohawk, for new carpet manufacturing
technologies, involving odor elimination.
Opposition Nos. 91156097 & 91159628
- 15 -
Accordingly, we find that applicant’s and registrant’s
goods are commercially-related products. The consumer
viewing these products in the marketplace are likely to
conclude that suppliers of carpet cleaners and deodorizers
are affiliated with carpet manufacturers. Given how common
it is in the current marketplace for national brands to
move into functionally-related markets through logical
brand extensions, it is the perception of this possibility
more than the reality of the senior user’s actual business
plan that creates the relationship. 3 J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24:19 (4th ed.
2001).9 As seen above, Mohawk adds to this perception in
the manner it touts its relationship with ODOR-EATERS
through its point-of-sale materials.
Accordingly, on balance we find that the du Pont
factor favors the position of opposer that the respective
goods are related.
As to channels of trade, Mohawk’s applications and Rug
Doctor’s registrations contain no restrictions as to the

9 If consumers believe, even though falsely, that the natural
tendency of producers of the type of goods marketed by the prior
user is to expand into the market for the type of goods marketed
by the subsequent user, confusion may be likely. On the other
hand, the actual intentions of the prior user with respect to
future expansion will not ordinarily affect the likelihood that
prospective purchasers are confused. McCarthy §24.19.
Opposition Nos. 91156097 & 91159628
- 16 -
channels of trade or methods of distribution. Thus, the
parties’ goods may be sold in all channels of trade
appropriate for such goods. Sheraton Corp. of Am. v.
Sheffield Watch, Inc., 480 F.2d 1400, 1401, 178 USPQ 468,
469 (CCPA 1973); In re Cont’l Graphics Corp., 52 USPQ2d
1374, 1376-77 (TTAB 1999). Furthermore, “[i]t is proper to
construe applicant’s description of its goods in the manner
most favorable to opposer.” CBS Inc. v. Morrow, 708 F.2d
1579, 1581, 218 USPQ 198, 199-200 (Fed. Cir. 1983).
Indeed, the evidence indicates overlapping channels of
trade. While Rug Doctor’s products and Mohawk’s products
are not always sold in the same places, Rug Doctor and
Mohawk do use some of the same channels of trade. For
example, Rug Doctor has a current sales relationship with
several flooring and carpeting stores, including specialty
carpet stores, through its carpet cleaner rental program.
These could well be the same independent floor-covering
dealers through which Mohawk sells its carpets. However,
admittedly, only a small share of opposer’s sales of
EVERFRESH cleaning and deodorizing products have been made
to customers through independent carpet stores. In
addition to its “in-line” white-label carpet cleaner
products (as shown above), Rug Doctor has also indicated
Opposition Nos. 91156097 & 91159628
- 17 -
its intention to use the EVERFRESH neck label on some of its
red-label carpet cleaner products sold on rental machine
racks. In this event, the EVERFRESH mark will appear in
hundreds of Lowes and Home Depot stores that also sell
Mohawk carpets. Indeed, as Rug Doctor continues to expand
its EVERFRESH line, it is likely that the overlapping
channels of trade will expand greatly.
In short, opposer argues that inasmuch as its products
are currently sold in the same stores as Mohawk’s carpets,
and inasmuch as Rug Doctor continues to expand its use of
EVERFRESH, that mark will appear in hundreds or thousands of
stores that also sell Mohawk’s carpets. Thus, the channels
of trade here have a small amount of overlap currently, but
this overlap is certain to grow significantly in the years
ahead, and this factor must be considered as weighing in
favor of Rug Doctor and a likelihood of confusion.
As to the du Pont factor focusing on the conditions
under which and buyers to whom sales are made, we have seen
above that both Rug Doctor’s and Mohawk’s goods are sold to
the same consumer group — those who want to eliminate odors
from their homes. Opposer’s products are relatively
inexpensive products. Whether purchasing carpets or carpet
cleaners and deodorizers, there is no evidence that this
Opposition Nos. 91156097 & 91159628
- 18 -
consumer group has any special level of expertise or
sophistication. Furthermore, Mohawk’s carpet brand, FOREVER
FRESH, will be hidden after the carpet is installed,
encouraging a high degree of customer fuzziness in
recalling the exact secondary mark used on the underside of
the carpet. Hence, any purported sophistication of carpet
consumers does not dispel the likelihood of confusion in
this particular post-sale confusion context. See Lois
Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d
867, 875, 230 USPQ 831, 837-38 (2d Cir. 1986). On balance,
we find that this factor also favors opposer.
We turn next to examine the similarity or
dissimilarity of the parties’ marks in their entireties as
to appearance, sound, connotation and commercial
impression. See Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). As to each of these methods
for comparison, opposer argues that the parties’ marks are
confusingly similar.
While we must consider the similarity or dissimilarity
of the marks when viewed in their entireties, “there is
nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
Opposition Nos. 91156097 & 91159628
- 19 -
of the 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).
Applicant’s mark, FOREVER FRESH, incorporates opposer’s
EVERFRESH mark in its entirety. We agree with opposer that
the most obvious difference is the prefix “for-.” However,
from the standpoint of connotation and commercial
impression, this prefix is largely superfluous, as it does
not change the meaning or suggestion of applicant’s mark.
As to meaning, in the context of these two marks, the words
“ever” and “forever” are synonyms. The ordinary meaning of
the term “ever” is “always” and the meaning of “forever” is
“for a limitless time.”10 Accordingly, the connotation of
opposer’s “Everfresh” mark is that the deodorizing product
will “always stay fresh.” This is substantially the same
connotation as the “stay fresh for a limitless time”
meaning of applicant’s “Forever Fresh.” Accordingly, we
agree with opposer that, as used in connection with
deodorizers and carpets – especially carpet containing or
treated with odor-freshening chemicals – these two

10 WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1985.
Opposition Nos. 91156097 & 91159628
- 20 -
formulations convey quite the same connotations and
commercial impressions.
Finally, as to appearance and sound, the first part of
both marks contains the identical root, “ever,” and the
second part of both marks contains the identical term
“fresh.” We concur with opposer’s position that applicant,
as the junior user, cannot simply sidestep this conclusion
by repeatedly arguing that the alliteration it created with
the addition of the prefix “for” in FOREVER FRESH
distinguishes its mark from opposer’s EVERFRESH. As for the
MOHAWK FOREVER FRESH mark, we find that this is a case where
the addition of a house mark adds to the likelihood of
confusion rather than diminishing it. Key West Fragrance &
Cosmetic Factory, Inc. v. The Mennen Co., 216 USPQ 168, 171
(TTAB 1982).
As to the du Pont factor focusing on the strength of
opposer’s mark, opposer and its predecessor in interest
have been using its mark for more than twenty-seven years.
While opposer has sold millions of dollars worth of its
product over the years, we cannot be sure what share of the
market for such goods this represents. There is certainly
insufficient information in this record to determine that
Opposition Nos. 91156097 & 91159628
- 21 -
this mark is well-known when used in connection with the
claimed goods. Accordingly, this is a neutral factor.
As to the du Pont factor focusing on the number and
nature of similar marks in use on similar goods, applicant
argues that the weakness of opposer’s mark may well be the
most important factor in our likelihood of confusion
analysis. In support of this conclusion, applicant has
presented information about those third-party registrations
that it contends are relevant to our analysis:11
EVER-FRESH for “tobacco pouches” in
International Class 34;12

for “aerated whipped cream” in
International Class 1;13
EVER-FRESH for “sour dressing of the type
derived from vegetable fat rather
than cream; non-dairy, vegetable-
derived liquid creamer and non-dairy
vegetable derived liquid adapted to
be whipped for use a food topping;

11 Registrations that have been cancelled or expired have
absolutely no evidentiary value, such as Registration Nos.
0804890, 2270675, 2034243 and 2316254.

12 Registration No. 0664599 issued on July 22, 1958; second
renewal.

13 Registration No. 0891011 issued on May 12, 1970; second
renewal; owned by ConAgra Brands, Inc.

Opposition Nos. 91156097 & 91159628
- 22 -
half and half; cream containing
vanilla, sugar and stabilizer in
which cream whipping gas is dissolved
under pressure for use as a food
topping” in International Class 29;14
EVERFRESH for “bacteriostatic chemicals for use
in the treatment of textiles, paper,
leather and other industrial goods”
in International Class 1;15

for “frozen vegetables, namely, corn”
in International Class 29;16

for “fruit juice drinks containing
water” in International Class 32;17
EVERFRESH for “food preservative; namely, a
replacement for sulfites” in
International Class 1;18

for “packaged minerals for use in
controlling humidity in residential
and commercial refrigerators and
coolers” in International Class 1;19

14 Registration No. 1121087 issued on June 26, 1979; renewed;
owned by ConAgra Brands, Inc.

15 Registration No. 1191932 issued on March 16, 1982; renewed.

16 Registration No. 1294712 issued on September 11, 1984;
renewed.
17 Registration No. 1642216 issued on April 23, 1991; renewed.

18 Registration No. 1749151 issued on January 26, 1993;
renewed.

19 Registration No. 1768349 issued on May 4, 1993; renewed.

Opposition Nos. 91156097 & 91159628
- 23 -
EVERFRESH for “spa water management system,
namely, ozone generators and ion
purifiers sold as part of a spa in
combination with pre-filters” in
International Class 11;20
EVERFRESH for “refrigeration/air conditioning
units for providing heated or cooled
air to a cargo container using
controlled atmosphere” in
International Class 11;21
EVERFRESH for “fruit juices and fruit drinks”
in International Class 32;22
EVERFRESH MAKEUP for “cosmetics, namely, foundation
makeup” in International Class 3;23
EVER FRESH
CONCEALER
for “cosmetics, namely, concealer” in
International Class 3;24
EVERFRESH for “packages of paper for containing
liquid food products and paper blanks
for forming such packages” in
International Class 16;25
EVER-FRESH SYSTEM for “non-medicated premoistened
disposable infant care wipes, tissues
and towelettes in Int. Class 3;
“heated dispensing unit for

20 Registration No. 2200343 issued on October 27, 1998;
Section 8 affidavit (six-year) accepted and Section 15 affidavit
acknowledged.

21 Registration No. 2522623 issued on December 25, 2001.

22 Registration No. 2555295 issued on April 2, 2002.

23 Registration No. 2759946 issued to L’Oreal USA Creative on
September 2, 2003. No claim is made to the word “makeup” apart
from the mark as shown.

24 Registration No. 2780810 issued to L’Oreal USA Creative,
Inc. on November 4, 2003. No claim is made to the word
“concealer” apart from the mark as shown.

25 Registration No. 2820267 issued on March 2, 2004.

Opposition Nos. 91156097 & 91159628
- 24 -
premoistened wipes, tissues and
towelettes” in International Class
11;26 and
EVERFRESH for “fire suppressant composition and
food nutrient supplements for live
and cut trees” in International Class
1.27

Applicant also contends that this showing is supported
by uses of the EVERFRESH mark in exercpts from LEXIS/NEXIS
computerized library of news articles published in the
United States:28
… Landmark Products Corp. … has introduced a
home version of a popular commercial kitchen
tool called the Everfresh FoodSaver. The
unit, which contains a blend of natural
nontoxic minerals, absorbs excess humidity
and odors, making an optimal environment for
storing foods. That means foods will stay
fresh longer, vegetables will be crisper,
and at the same time unwanted odors will be
trapped within the unit so your butter will
not smell like fish again ….29

EverFresh USA: Oxygen absorber that
eliminates odor from packaged food, prevents

26 Registration No. 2954666 issued on May 24, 2005.

27 Registration No. 3124543 issued on August 1, 2006.

28 Applicant also submitted an article from the Walkato Times,
which we have not considered inasmuch as it appears to be a
newspaper in New Zealand.

29 Plain Dealer [Cleveland], April 13, 1994. We note that
this article appears to show an expansion from commercial to
residential markets by the owner of Registration No. 1768349,
above, at footnote 20.

Opposition Nos. 91156097 & 91159628
- 25 -
mold growth and keeps freshness without
preservatives.30

Litter type: Hoffman prefers clumping cat
litter. She recommends Everfresh litter
with activated charcoal.31

Applicant’s search for the term “everfresh” within ten
words of “cleaning or cleaner or deodorizer” resulted in
three hits spanning a period of ten years drawn from all
NEXIS news sources. In context, each one appears to be
suggestive of the product. Two are used in connection with
food packaging and the third with cat litter. In spite of
the sixteen third-party registrations shown above (several
of which are owned by the same enterprises), we find none
of the marks claim use in connection with carpets, carpet
cleaners or deodorizers. Furthermore, these third-party
registrations made of record by applicant are not evidence,
under the sixth du Pont factor (“the number and nature of
similar marks in use on similar goods”), that the marks
depicted therein are in use or that they are familiar to
purchasers. See Olde Tyme Foods Inc. v. Roundy’s Inc.,
961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir. 1992). Rather,

30 Packaging Digest, January 1, 2003. This article contains a
listing of 450 exhibitors at a packaging show at the Anaheim
Convention Center, of which EverFresh USA, of Placentia, CA, is
one exhibitor.

31 Chicago Tribune, January 30, 2005.

Opposition Nos. 91156097 & 91159628
- 26 -
combined with the several uses in the Nexis exercepts, they
show the suggestive nature of this term in a variety of
contexts where maintaining freshness is highly desirable.
Taking into account all of this evidence, we find this
factor is neutral for opposer, at worst.
As to the absence of any clear evidence of actual
confusion, we also find this too to be a neutral factor in
the instant case. In addition to the fact these are not
competing goods and the overlap in channels of trade has
been somewhat limited to date, it was not until quite
recently that applicant actually began to use its mark. We
have absolutely no information about the extent of
applicant’s promotion and actual sales of carpets under
this mark. Moreover, given the relatively inexpensive
nature of opposer’s cleaning and deodorizing materials,
consumers would be unlikely to go to the trouble of
reporting any confusion. Finally, actual confusion need
not be shown as the test is the likelihood of confusion.
In summary, Mohawk seeks registration of two marks we
find to be confusingly similar to Rug Doctor’s registered
mark in connection with related goods. This is especially
true in the post-sale context in the years after a consumer
purchases Mohawk’s FOREVER FRESH brand carpets.
Opposition Nos. 91156097 & 91159628
- 27 -
Accordingly, we find a likelihood of confusion in both
applications herein.
Decision: Both oppositions are sustained on the basis
of likelihood of confusion under Section 2(d) of the Lanham
Act and registration to applicant of both of its marks is
refused.