Source Global Enterprises, Inc.Download PDFTrademark Trial and Appeal BoardMay 13, 2009No. 78951566 (T.T.A.B. May. 13, 2009) Copy Citation Mailed: May 13, 2009 jtw UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Source Global Enterprises, Inc. ________ Serial No. 78951566 _______ Howard F. Mandelbaum of Levine & Mandelbaum for Source Global Enterprises, Inc. Leigh A. Lowry, Trademark Examining Attorney, Law Office 115 (Tomas V. Vlcek, Managing Attorney). _______ Before Zervas, Walsh and Bergsman, Administrative Trademark Judges. Opinion by Walsh, Administrative Trademark Judge: Source Global Enterprises, Inc. (applicant) has applied to register the mark RESOLUTION in standard characters on the Principal Register for goods identified as “curtain rods, curtain rod hooks, curtain rod THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 78951566 2 connectors, curtain rod finials, and holdback arms” in International Class 20.1 The Examining Attorney has issued a final refusal under Trademark Act Section 2(d), 15 U.S.C. 1052(d), on the grounds that applicant’s mark is likely to be confused with the identical mark, RESOLUTION, in typed form in Registration No. 2757312 for goods identified as “furniture” in International Class 20. The registration issued on August 26, 2003. The registration claims first use of the mark anywhere and first use of the mark in commerce in September 2002. Applicant has appealed. Applicant and the Examining Attorney have filed briefs. We affirm. Likelihood of Confusion Section 2(d) of the Trademark Act precludes registration of an applicant’s mark “which so resembles a mark registered in the Patent and Trademark Office… as to be likely, when used on or in connection with the goods of the applicant, to cause confusion…” 15 U.S.C. § 1052(d). The opinion in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1977) sets forth the 1 Application Serial No. 78951566, filed August 14, 2006, based on a statement of a bona fide intention to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b). Serial No. 78951566 3 factors to consider in determining likelihood of confusion. Here, as is often the case, the crucial factors are the similarity of the marks and the similarity of the goods in the application and the cited registration. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)(“The 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.”). The Marks In comparing the marks we must consider the appearance, sound, connotation and commercial impression of the marks at issue. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In this case applicant concedes that the marks are identical. Therefore, we conclude that the marks are not only similar but identical. This fact not only weighs in favor of finding a likelihood of confusion, but furthermore, “… in a situation such as this, where both parties are using the identical designation…, the relationship between the goods on which the parties use their marks need not be as great or as close as in the situation where the marks are not identical or strikingly similar. Cf. AMF Incorporated v. Sleekcraft Serial No. 78951566 4 Boats et al., 204 USPQ 808 (CA 9, 1979) and Fotomat Corporation v. Ace Corporation, 208 USPQ 92 (DC, Calif. 1980).” Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70, 78 (TTAB 1981). The Goods Applicant states, “Applicant is relying solely on the differences in the goods in support of this appeal.” Applicant’s Brief at 3. The goods in the application and the cited registration need not be identical to find a likelihood of confusion under Trademark Act Section 2(d). They need only be related in such a way that the circumstances surrounding their marketing would result in relevant consumers mistakenly believing that the goods originate from or are associated with the same source. On- Line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The goods identified in the application are “curtain rods, curtain rod hooks, curtain rod connectors, curtain rod finials, and holdback arms.” The goods identified in the cited registration are “furniture.” The Examining Attorney argues that the respective goods are closely related because both are for decorating. The Examining Attorney also presents evidence to support Serial No. 78951566 5 the conclusion that the goods are related. First, the Examining Attorney submitted numerous use-based, third- party registrations showing the same mark registered for both types of goods, for example: Registration No. 2562335 for the mark ALEXANDER JULIAN AT HOME for “kitchen and bathroom medicine cabinets, decorative pillows, hampers, wall shelves; drapery hardware, namely, drapery rods and non-metal drapery rings, hooks and holdbacks; decorative accent furniture made of wicker, rattan and bamboo; outdoor furniture; ornamental lawn statues made of plastic and/or wood; picture frames, furniture, furniture mirrors; wood handles for kitchen cabinet doors and kitchen cabinets” (emphasis added); Registration No. 3019046 for the mark POSTOBELLO for “furniture and home furnishings and accessories, namely, chairs, sofas, benches, tables, desks, bedroom furniture, children's furniture, ottomans, bookcases, shelves, cabinets, drawers, mirrors, drapery hardware, namely, namely traverse rods, poles, curtain hooks, curtain rods and finials, drawer pulls made of plastic or wood, jewelry boxes not of metal, picture frames and pillows” (emphasis added); Registration No. 3021595 for the mark OP for “drapery hardware, namely, traverse rods, poles, curtain hooks, curtain rods and finials, hampers, outdoor furniture, picture frames, pillows, sleeping bags” (emphasis added); Registration No. 2900604 for the mark TRADING SPACES for “picture frames; decorative shelves; mirrors; throw pillows with interchangeable covers and sizes; window shades; window accents, namely, curtain rods, brackets for hanging rods, decorative accessories for the ends of rods, finials, window shutters and fabric tie backs; furniture; valences” (emphasis added); Serial No. 78951566 6 Registration No. 2915115 for the mark ROOM RAVES for “furniture and room decor items, namely, picture frames, beanbag chairs, small dressers, hanging mirrors, decorative bead curtains, sleeping bags and pillows therefore, folding chairs, fold-out sleeping chairs and sofas, decorative pillows, bath pillows, non-metal key chains, non-metal closet hooks, non-metal plant hooks, toy boxes, plastic tubs, curtain rods, and decorative rod-ends for curtain rods” (emphasis added); Registration No. 2921599 for the mark GOLDSTICKS for “home furnishing, namely shelves, chests, cabinets, drawers, dressers, night stands, bed frames, desks, and entertainment centers; decorative home accessories, namely picture frames, mirrors, window finials, curtain rods, corks for bottles, and jewelry boxes not of metal; decorative furniture hardware, namely wood handles and wood knobs for drawers, dressers and cabinets” (emphasis added); and Registration No. 3197235 for the mark RL for “furniture, namely, armchairs, armoires, bed frames, beds, benches, bookcases, buffets, cabinets, chairs, chaise lounges, chests of drawers, coat stands, computer workstations comprised of desk and shelving, couches, credenzas, curtain rods, desks, dining room tables, divans, dog beds, entertainment centers, fixed towel dispensers not of metal, foot stools, hutches, kitchen cabinets, love seats, mirrors, night stands, ottomans, saw horses, screens, seats, shelving, sofas, venetian blinds” (emphasis added). Attachments to Office Action of January 17, 2007. The Examining Attorney has also provided copies of Internet pages with examples of sources which provide both types of goods, including: Restoration Hardware which offers both furniture and curtain rods and related Serial No. 78951566 7 hardware; Pottery Barn which offers both furniture and curtain rods and related hardware; Crate&Barrel which offers both furniture, curtain rods and related hardware; and both K Mart and JC Penney which offer both furniture and curtain rods and related hardware, and other goods. Attachments to Office Action of May 5, 2008. Applicant refers to this evidence and argues, “Applicant respectfully submits that commonality of source is not necessarily evidence that goods are related in such a way as to create a likelihood of confusion.” Applicant’s Brief at 3. Applicant continues, “Moreover, department stores, variety stores and discounters often sell products which are not closely related.” Id. (citation omitted). In its reply brief applicant also takes issue with the Examining Attorney’s statement that the respective goods are related because “both are for decorating.” Reply Brief at 1. Applicant argues that the primary purpose of furniture is “to perform a function other than decorating.” Id. In the reply brief, applicant argues further with regard to the third-party registrations the Examining Attorney cited: “However, in most of the Examining Attorney’s citations, ‘furniture’ is not used as a noun for a category of products, but instead serves as an adjective Serial No. 78951566 8 to describe curtain rods and curtain rod hardware.” Id. at 1-2. Applicant points to the POSTOBELLO, OP and TRADING SPACES registrations as examples of this circumstance. We first note that use-based, third-party registrations are probative of the fact that the goods in the application and the cited registration are the types of goods which may emanate from the same source. In re TSI Brands Inc., 67 USPQ2d 1657, 1659 (TTAB 2002); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). We reject applicant’s argument that “commonality of source” is not significant. These registrations show that the same mark has been registered for both types of goods, and therefore, that these goods may emanate from a single source. Furthermore, we reject applicant’s arguments regarding the use of “furniture” as an adjective in the third-party registrations. In the case of each of the registrations we cited above, we have provided the entire identification of goods. In each instance, including the three registrations applicant references, the registrations include both furniture, and most often specific types of furniture, as well as curtain rods and other related hardware. The facts, as disclosed in these identifications, flatly contradict applicant’s argument. Serial No. 78951566 9 The only reasonable construction of these registrations is that they cover both types of goods. As to the Internet evidence, we concur with applicant in observing that the fact that the respective goods may be sold through mass merchandisers, like K Mart and JC Penney, is not probative of the relationship between the two types of goods. Accordingly, we decline to rely on the evidence related to those two sources. However, the evidence from the other sources, such as Restoration Hardware, Pottery Barn and Crate&Barrel, differs significantly. There is no indication that these sources are mass merchandisers, but rather that their product lines are concentrated in household furnishings, including furniture and accessories such as curtain rods and related hardware. This evidence is probative and shows not only that the respective goods are related, but also that the channels of trade for the respective goods are the same or overlapping. Furthermore, we reject the false distinction applicant suggests between the funtional and decorative. In fact, both furniture and drapery rods and related hardware may serve both a funtional and a decorative purpose. We concur in the point the Examining Attorney obviously intended with her argument, that is, that purchasers may coordinate furniture and drapery items, including curtain rods and Serial No. 78951566 10 related hardware, to achieve a decorative purpose, a consistent or compatible look in a room or other space. This provides further support for the conclusion that these goods are related. Therefore, we conclude that the goods identified in the application and the cited registration are related and that they travel in the same or overlapping channels of trade to the same potential purchasers. Other Factors Although applicant states that it is relying on differences in the goods to make its case here, applicant also makes brief arguments regarding many other du Pont factors seriatim. The Examining Attorney correctly points out that applicant makes these arguments without presenting any evidence related to these factors. For example, applicant argues, “furniture is usually purchased after considerable attention and at substantial expense. Neither furniture nor drapery hardware is purchased on impulse.” Applicant’s Brief at 6. While we have no evidence as to the cost of applicant’s goods or the cost of the “furniture” identified in the cited registration, we concede that these are not impulse items comparable to chewing gum. However, both types of goods could vary in cost significantly, and both types of goods Serial No. 78951566 11 could be purchased by the general public. Accordingly, we conclude that the likelihood of confusion would not be diminished based on considerations related to this factor - - in particular, in a case like this one where the marks are identical. Applicant also argues that there has been no actual confusion. We have no evidence that applicant has used the RESOLUTION mark to date, and certainly no evidence that there has been any real opportunity for actual confusion. Accordingly, we conclude that this factor is not relelvant in this case. Applicant also asserts that “… a search of the records of the Patent and Trademark Office shows that there are 154 live marks which include the term ‘Resolution.’” Whatever applicant’s purpose may be in offering this assertion, applicant did not provide any evidence to support this assertion. Accordingly, the assertion, by itself, has no probative value with regard to any of the du Pont factors. As to the cursory references applicant makes with regard to additional du Pont factors, suffice it to say that applicant has not provided either persuasive evidence or argument to show that any of the du Pont factors, other than the marks and the goods and channels of trade for the goods, are significant in this case. Serial No. 78951566 12 Other Arguments Applicant has provided a copy of third-party Registration No. 2411081 for the mark RESOLUTION for “windows” in International Class 19. Applicant also observes that this registration issued before the cited registration issued. Applicant also provided copies of numerous third-party registrations covering both windows and furniture. On the basis of this evidence, applicant argues, “This is but one of many examples wherein a single trademark registrant may be the source of different types of products, each of which could be covered by separately owned registrations of identical marks.” Id. at 4. We reject applicant’s arguments based on this evidence. These arguments relate to a different case than the one before us. It is axiomatic that we must consider each case based on its unique facts and record. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (The Board must decide each case on its own merits. In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1127, 227 USPQ 417, 424 (Fed. Cir. 1985). Even if some prior registrations had some characteristics similar to Nett Designs’ application, the PTO's allowance of such prior registrations does not bind the Board or this Court.”). Serial No. 78951566 13 Conclusion After considering all evidence and arguments bearing on the du Pont factors, including those not specifically discussed here, we conclude that there is a likelihood of confusion between applicant’s RESOLUTION mark when used in connection with “curtain rods, curtain rod hooks, curtain rod connectors, curtain rod finials, and holdback arms” and the cited RESOLUTION mark when used in connection with “furniture.” Decision: We affirm the refusal under Trademark Act Section 2(d). Copy with citationCopy as parenthetical citation