Spohn Global Enterprises LLC

Trademark Trial and Appeal Board

Jan 20, 2021

87826140 (T.T.A.B. Jan. 20, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: January 14, 2021 Mailed: January 20, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Spohn Global Enterprises LLC
_____

Serial No. 87826140
_____

Walter W. Richardson of Whitham & Cook, P.C.,
for Spohn Global Enterprises LLC.
Brian Pino, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
_____

Before Zervas, Shaw and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Spohn Global Enterprises LLC, applied to register the standard
character mark THERMO TIKI on the Principal Register for “Gas patio heaters” in
International Class 11.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used

1 Application Serial No. 87826140 was filed on March 8, 2018 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a) based on Applicant’s allegation of use anywhere and in
commerce of May 30, 2013, with a disclaimer of the term “THERMO.”
Serial No. 87826140
- 2 -
in connection with the identified goods, so resembles the registered standard
character mark TIKI for “Wood burning firepits; landscape lighting fixtures; LED
landscape lighting fixtures; LED lighting fixtures; lighting fixtures for decks and
patios,” in International Class 11 (“the Registration”)2 as to be likely to cause
confusion.
When the refusal was made final, Applicant appealed and filed a request for
reconsideration, which was denied. The appeal is fully briefed and an oral hearing
was held on January 14, 2021. We affirm the refusal.
I. Applicable Law
The fundamental purpose of Trademark Act Section 2(d) is to prevent confusion
as to source, and to protect registrants from damage caused by registration of
confusingly similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,
224 USPQ 327, 331 (1985). Our analysis is based on all of the probative evidence of
record. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”). In making our determination, we consider each DuPont
factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned
to each DuPont factor depending on the evidence presented. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he

2 Registration No. 5757889, in the name of Lamplight Farms Incorporated “(Registrant”),
registered July 23, 2002; renewed.
Serial No. 87826140
- 3 -
various evidentiary factors may play more or less weighty roles in any particular
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“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.”).
A. Similarity or Dissimilarity of the Marks

We begin with the first DuPont factor, which considers the “similarities or
dissimilarities of the marks in their entireties as to appearance, sound, connotation
and commercial impression.” In re Detroit Athletic Co., 903 F.3d 1296, 128 USPQ2d
1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” In re
Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 Fed. App’x. 516 (Fed. Cir. 2019).
The test is not whether the marks can be distinguished in a side -by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods offered under the respective marks is
likely to result. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Our focus is on the recollection of the
Serial No. 87826140
- 4 -
average purchaser, who normally retains a general rather than a specific impression
of trademarks. See Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ
687, 688 (CCPA 1969) (many consumers “may have but dim recollections from having
previously seen or heard one or the other of the involved marks.”); Inter IKEA Sys.
B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014).
The Examining Attorney argues that the marks are confusingly similar because
they have the same general commercial impression.3 According to the Examining
Attorney, TIKI is the dominant term in Applicant’s mark because THERMO is merely
descriptive of a feature of the goods, Applicant disclaimed the term in its original
application filing, and the dominant term in Applicant’s mark is identical to
Registrant’s mark which is registered on the Principal Register without a disclaimer.4
Applicant argues that THERMO is the dominant term in its mark because it “is
the first word in its mark and is therefore the most likely to be impressed upon the
consumer as the distinctive commercial element.”5 While acknowledging its
disclaimer, Applicant asserts that the disclaimed wording still forms part of the mark
and cannot be ignored, since the purchasing public is not aware that certain words or
phrase have been disclaimed. Applicant points to the Federal Circuit decisions of In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012), and Detroit
Athletic, 128 USPQ2d at 1047, as supporting its argument that the term THERMO

3 8 TTABVUE 6 (Examining Attorney’s Brief).
4 Id. at 8, 11 n. 2, 12.
5 6 TTABVUE 4-5 (Applicant’s Brief).
Serial No. 87826140
- 5 -
is dominant in its mark.
As a further basis for contending that THERMO is dominant in its mark,
Applicant argues that
In the context of Applicant’s Mark and the goods it is used in connection
with, TIKI is a weak element and denotes a style of décor. Applicant’s
mark is used in connection with “gas patio heaters,” to be used for
outdoor entertaining. Many hotels advertise “tiki bars” and “tiki
culture” is a fixture of the bar and hospitality industry. “Tiki” can also
be seen used in connection with firepits whose sellers call them “tiki
firepits”.

This use of the “tiki” term can also be seen in the identification of the
goods and services for both Trademark Registration 5766995, for use in
connection with “Bar services featuring tiki cocktails”, and U.S.
Trademark Registration No. 5284375, for use in connection with rental
of bar furniture, in the nature of a portable tiki bar”.

…

As reflected by the submitted evidence, TIKI connotes fun times, travel,
and leisure to property owners who have patios (i.e., customers of gas
patio heaters). Customers shopping for a gas patio heater already have
been fully experiencing “tiki” in its common usage, and in the context of
patio heaters is [sic] neither arbitrary nor fanciful.6

Applicant adds that it is “not attempting to attack the Registration …. Rather, by
demonstrating that in the context of Applicant’s mark ‘TIKI’ is no stronger than
‘THERMO,’ Applicant stresses that the greater weight should be given to THERMO
due to its being the first word in the mark.”7
Applicant’s arguments are unavailing for several reasons. First, the decisions
cited by Applicant in support of its argument that there is no likelihood of confusion

6 Id. at 5 (citations omitted).
7 Id. at 5-6.
Serial No. 87826140
- 6 -
are not apt. In Viterra, the applicant argued that the “X” element in the registrant’s
X-Seed and Design mark was the dominant portion of the mark because of the
registrant’s use of a hyphen. The Court, however, found that that the entire literal
portion (X-Seed) was the dominant element in the mark, not just the first syllable.
Viterra, 101 USPQ2d at 1911. In Detroit Athletic, the Court found the first two words,
“DETROIT ATHLETIC,” in the both applicant’s DETROIT ATHLETIC CO. and the
registrant’s DETROIT ATHLETIC CLUB dominant due to the ir structural similarity
and because the other wording in the marks, “CO.” and “CLUB” respectively, were
merely descriptive of the business for the entities owning the marks and were
disclaimed. In the present case, the marks are not structurally similar, and Applicant
has incorporated the entirety of Registrant’s mark and simply added an apparently
descriptive adjective to it. See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1260 (Fed. Cir. 2010) (“[T]he presence of an additional term in the mark does not
necessarily eliminate the likelihood of confusion if some terms are identical.”).
Second, the evidence Applicant relies on to demonstrate that TIKI is a weak term
has limited probative value. Registration No. 5284375 for the mark ISLAND TIME
PARTY RENTALS and for services including “rental of bar furniture, in the nature
of a portable tiki bar,” and LATITUDE29 for services including “bar services
featuring tiki cocktails” identify completely different marks and services unrelated to
Applicant’s gas patio heaters.8 However, according to Applicant, because TRADEMARK
MANUAL OF EXAMINING PROCEDURE (TMEP) § 1402.01 states that the identification of

8 January 28, 2020 Response to Office Action, TSDR 15-17.
Serial No. 87826140
- 7 -
goods in an application “should set forth common names, using terminology that is
generally understood,” these registrations show that “‘tiki’ is not an arbitrary portion
of [its] mark, as in the context of these goods and services the term is generally
understood.”9
We disagree. A “tiki bar” is a “restaurant or bar decorated in a simulated
Polynesian theme that usually serves exotic cocktails.”10 Thus, the term “tiki” may be
a generally understood term in the context of “tiki bars” or “tiki cocktails,” but the
evidence does not show that it understood to be a weak term with respect to gas patio
heaters. Applicant’s Internet evidence consisting of printouts from the webpages of
five third-party bars and restaurants providing “tiki bars,”11 and a Wikipedia article
describing “Tiki culture” as “a motif of exotically decorated bars and restaurants
catering to an escapist longing for travel to tropical regions of the South Pacific[,]
featuring mock tiki carvings and complex, alluringly named alcoholic drinks”12 is
similarly off-point and does not show that the term “TIKI” is weak in relation to gas
patio heaters.
Applicant urges that it is merely pointing out “that in the context of Applicant’s
mark ‘TIKI’ is no stronger than ‘THERMO,’” and not attempting to collaterally attack

9 6 TTABVUE 6 (Applicant’s Brief).
10 https://www.merriam-webster.com/dictionary/tiki%20bar (accessed January 18, 2021). The
Board may take judicial notice of dictionary definitions from online sources when the
definitions themselves are derived from dictionaries that exist in printed form or have regular
fixed editions. See In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013); In
re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
11 January 28, 2020 Response to Office Action, TSDR 7-12.
12 March 2, 2020 Request for Reconsideration, TSDR 6-29.
Serial No. 87826140
- 8 -
the Registration.13 This argument is unavailing because even if a mere two
registrations could establish that TIKI is weak in the context of “tiki bars” and “tiki
cocktails,” there is no evidence of record connecting the term to gas patio heaters.
Moreover, Applicant’s reliance on webpage printouts for two third-parties that
provide “tiki firepits” appears to be a small-scale attempt to collaterally attack the
Registration, notwithstanding Applicant’s statement to the contrary. See In re Fiesta
Palms, LLC, 85 USPQ2d 1360, 1363 (TTAB 2007) (applicant’s claim that the cited
mark was merely descriptive and weak was an impermissible collateral attack on the
cited registration).
In any event, because Registrant’s TIKI mark is on the Principal Register, we
must assume that it is, at least, suggestive of the goods identified in the Registration
and inherently distinctive. Hence, the mark is accorded the scope of protection to
which all inherently distinctive marks are entitled. See Maytag Co. v. Luskin’s, Inc.,
228 USPQ 747, 750 (TTAB 1986) (“[T]here is nothing in our trademark law which
prescribes any different protection for suggestive, nondescriptive marks than that
which is accorded arbitrary and fanciful marks”); In re Great Lakes Canning, Inc.,
227 USPQ 483, 485 (TTAB 1985) (“[T]he fact that a mark may be somewhat
suggestive does not mean that it is a ‘weak’ mark entitled to a limited scope of
protection”). Consequently, we find that the term TIKI is not so weak when used in
connection with Applicant’s goods as to permit the registration of Applicant’s mark.
Turning to Applicant’s mark, we find that the term THERMO in Applicant’s mark

13 6 TTABVUE 6-7 (Applicant’s Brief).
Serial No. 87826140
- 9 -
is merely descriptive of a feature of Applicant’s gas patio heaters, because THERMO
is a prefix with a clear definition, meaning “heat,”14 and Applicant’s gas patio heaters
provide heat. Furthermore, as the Examining Attorney notes, Applicant voluntarily
disclaimed THERMO, which effectively was a concession that the term is merely
descriptive in relation to Applicant’s goods. See Alcatraz Media Inc. v. Chesapeake
Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d, 565 Fed. Appx. 900
(Fed. Cir. 2014); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc. 89
USPQ2d 1844, 1851 (TTAB 2008). While Applicant did argue during prosecution that
TIKI was the weaker and less dominant term in its mark, it never sought to withdraw
its disclaimer of THERMO.
We hasten to add that because both Applicant’s and Registrant’s marks are
standard character marks, we must consider that both may be presented in the same
font, size and color. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB
2018).
Based on the foregoing, we find TIKI to be the dominant term in Applicant’s mark,
and that when viewed in their entireties, Applicant’s THERMO TIKI mark and
Registrant’s TIKI mark are similar in overall appearance, sound, connotation and
commercial impression.
The first DuPont factor weighs in favor of finding a likelihood of confusion.

14 https://www.ahdictionary.com/word/search.html?q=thermo- (accessed January 18, 2021).
Applicant attempted to provide a definition of “thermo” in its January 28, 2020 response by
referring to a non-precedential decision, Trek Bicycle Corp. v. Celestron Acquisition LLC,
2018 TTAB LEXIS 15 (TTAB 2018), where the Board took judicial notice of a definition of
that term. Id. at *54, n. 118. However, that did not make it the definition of record in this
proceeding.
Serial No. 87826140
- 10 -
B. Similarity or Dissimilarity of the Goods and Channels of Trade

The second DuPont factor considers the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration ...,” and the third
DuPont factor considers the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567. We must make our
determinations for these factors based on the goods as they are identified in the
application and cited registrations. See In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). It is sufficient for a
finding of likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in an application.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986 (CCPA
1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
The Examining Attorney made of record thirty-nine use-based third-party
registrations to show that Applicant’s “gas patio heaters” and Registrant’s “wood
burning firepits; landscape lighting fixtures; LED landscape lighting fixtures; LED
lighting fixtures; [and] lighting fixtures for decks and patios” are related.15 Third-
party registrations that identify goods from both the cited registration and an
applicant’s application are relevant to show that the goods are of a type that may
emanate from a single source under one mark. See, e.g., In re Detroit Athletic, 128
USPQ2d at 1051; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62

15 August 21, 2019 Office Action, TSDR 11-123.
Serial No. 87826140
- 11 -
USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Infinity Broad. Corp., 60 USPQ2d 1214,
1217-18 (TTAB 2001). Some examples are listed below:16

Registration No. Relevant Goods
3817251 Gas patio heaters, lamps, and electric torches for
lighting
3928114 Gas patio heaters and lighting fixtures
4708766 Gas patio heaters, outdoor solar powered lighting
fixtures, and portable fireplaces in the nature of a
fire bowl

4534830 Gas patio heaters, portable fireplaces, electric
lighting fixtures
4631427 Gas patio heaters and outdoor fire pits
5246702 Gas heating apparatus for outdoor us, namely,
patio heaters, and outdoor lighting apparatus,
namely, landscape lighting fixtures

5423669 Gas patio heaters, solar powered lighting fixtures,
and portable fireplaces
5340437 Electric patio heaters, LED lighting fixtures, and
lighting installations
5192820 Gas patio heaters and fire pits
5405510 Gas patio heaters and portable fire pits
5651000 Portable gas heaters and portable fire pits

In addition, the Examining Attorney provided Internet webpage printouts from

16 Id. at 11-13, 17-34, 40-41, 65-70, 83-85,
Serial No. 87826140
- 12 -
fourteen third-parties that sell both gas patio heaters and wood burning fire pits.17
As the Federal Circuit has noted, evidence that “a single company sells the goods …
of both parties, if presented, is relevant to a relatedness analysis.” Hewlett-Packard,
62 USPQ2d at 1004. See also In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04
(TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72
(TTAB 2009). The following are example excerpts from the website evidence:
Lowe’s18

…

17 February 11, 2020 Final Office Action, TSDR 7-51.
18 Id. at 7-10.
Serial No. 87826140
- 13 -

Camping World RV & Outdoors19

…

19 Id. at 20-23.
Serial No. 87826140
- 14 -
grandinroad20

…

20 Id. at 24-26.
Serial No. 87826140
- 15 -

Patio Heater Store21

21 Id. at 38-40.
Serial No. 87826140
- 16 -

Amini’s22

The foregoing third-party registration and Internet evidence shows that the same
entities commonly provide both gas patio heaters and wood burning fire pits, often
under the same mark, which supports the Examining Attorney’s position that
Applicant’s goods and Registrant’s goods (wood burning firepits, in particular) are
related for likelihood of confusion purposes. The goods are clearly related because
they have similar or complimentary functions, in that both are decorative devices

22 Id. at 41-42.
Serial No. 87826140
- 17 -
that provide heating in outdoor settings.23
Moreover, because there are no limitations as to channels of trade or classes of
consumers in Applicant’s or Registrant’s description of goods, we presume that the
goods move in all channels of trade normal for such goods, and are available to all
potential classes of ordinary consumers, as further shown by the Internet evidence of
record. See Citigroup, 98 USPQ2d at 1261; In re Integrated Embedded, 120 USPQ2d
1504, 1515 (TTAB 2016).
The second and third DuPont factors weigh in favor of finding likelihood of
confusion.
II. Conclusion
Having considered all evidence and arguments bearing on the relevant DuPont
likelihood of confusion factors, we conclude that Applicant’s THERMO TIKI mark for
“gas patio heaters,” offered to the same class of consumers in the same trade channels,
is likely to cause confusion with Registrant ’s TIKI mark for “wood burning firepits;
landscape lighting fixtures; LED landscape lighting fixtures; LED lighting fixtures;
lighting fixtures for decks and patios.”
Decision: The refusal to register is affirmed.

23 Applicant does not dispute that the goods, trade channels, and classes of purchasers are
related.