Aircraft Gear Corporation

Trademark Trial and Appeal Board

May 21, 2014

No. 85587269re (T.T.A.B. May. 21, 2014)

Mailed: May 21, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Aircraft Gear Corporation
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Serial Nos. 85587269 and 85587354
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Gordon M. Wright of Reinhart Boerner Van Deuren P.C. for Aircraft Gear
Corporation.
Matthew G. Galan, Trademark Examining Attorney, Law Office 113 (Odette
Bonnet, Managing Attorney).
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Before Bucher, Bergsman and Lykos,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:

On April 3, 2012, Aircraft Gear Corporation (“Applicant”) filed an application to
register on the Principal Register the mark displayed below

This Opinion is Not a
Precedent of the TTAB
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for “parts for high-performance motor vehicles, namely, drive lines, universal joints,
and components thereof” in International Class 12.1 That same day, Applicant also
filed a second application to register on the Principal Register the slogan JOIN THE
RCV REVOLUTION! in standard character format for same identified goods.2
On March 26, 2014, in a consolidated opinion, the Board affirmed the
Trademark Examining Attorney’s refusals to register Applicant’s marks under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that both of Applicant’s applied-for marks so resemble the
registered mark displayed at right used in connection with “vehicles,
namely, motorcycles; motorcycles and structural parts and fittings therefor; motors
and engines for land vehicles” in International Class 123 that when used on or in
connection with Applicant’s identified goods, they are likely to cause confusion or
mistake or to deceive.
On April 28, 2014, Applicant timely filed a request for reconsideration of the
Board’s decision pursuant to Trademark Rule 2.144.

1 Application Serial No. 85587269, filed pursuant to Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce. The description
of the mark is as follows: “The mark consists of the letters ‘RCV’ in stylized form against a
background that includes a checkered flag and stylized illustration of mountaintops, the
words ‘Performance Products’ written in smaller letters under the letters ‘RCV’. Color is not
claimed as a feature of the mark. Applicant disclaimed the wording “Performance Products”
apart from the mark as shown.
2 Application Serial No. 85587354, filed pursuant to Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).

3 Registration No. 3159038, registered on October 17, 2006 pursuant to Section 66(a) of the
Trademark Act, 15 U.S.C. § 1141f(a); Sections 8 and 15 affidavits acknowledged and
accepted.
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The premise underlying a request for reconsideration of a Board decision in an
ex parte appeal is that “based on the evidence of record and the prevailing
authorities, the Board erred in reaching the decision it issued. The request may not
be used to introduce additional evidence, nor should it be devoted simply to a
reargument of the points presented in the requesting party’s brief on the case.
Rather, the request normally should be limited to a demonstration that, based on
the evidence properly of record and the applicable law, the Board’s ruling is in error
and requires appropriate change.” TBMP § 543 (3d. ed. rev. 2 June 2013),
discussing the application of Trademark Rule 2.129(c); 37 CFR § 2.129(c) (request
for reconsideration of final decision in an inter partes proceeding).
Applicant argues that the Board improperly failed to give sufficient weight to its
determination regarding the fourth du Pont factor, the conditions under which and
buyers to whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing,
which was found not to favor a likelihood of confusion. The Board had determined
that the involved goods are likely to be sold to knowledgeable, relatively
sophisticated consumers. Applicant contends that this determination conflicts with
the Board’s statements regarding the first du Pont factor that the “focus is on the
recollection of the average purchaser.” Applicant also argues that the fourth du
Pont factor outweighs the first two du Pont factors comparing the marks and goods
at issue.
The likelihood of confusion analysis under du Pont requires a balancing of the
relevant factors, and based upon all of the evidence of record, it was reasonable for
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the Board to find the balance tilting towards a likelihood of confusion. See In re
Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (“We see no
error in the board’s decision to focus on the DuPont factors it deemed dispositive.”).
With respect to the similarity or dissimilarity of the marks, we correctly focused our
analysis on the recollection of the average consumer of the products at issue whom
we consider to be knowledgable and relatively careful. However, the evidentiary
submission by applicant did not persuade us that the relevant consumers pay more
than a cursory attention to the trademarks. Compare Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1413 (TTAB 2010). In this particular case, given
the similarities of the involved marks and relatedness of the goods, we see no error
in our determination that the first two du Pont factors outweighed our
determination regarding the fourth du Pont factor.
Applicant also argues that the Board erred in its analysis of the third du Pont
factor, the similarity or dissimilarity of established, likely to continue trade
channels. The Board determined that because the goods in the cited registration are
not restricted as to any particular use, we assumed that such products are also sold
in specialty retail auto parts or auto service establishments for high performance
motor vehicles. Applicant contends that engines, motorcycles, and structural parts
for motorcycles are unsuitable for distribution in a retail environment. Applicant
maintains that its identified goods and those in the cited registration are marketed
in distinct trade channels.
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We are not persuaded by applicant’s arguments. The Board pointed out in our
decision that the Board does not consider extrinsic evidence to restrict the channels
of trade. Because neither the application nor registration contain any restrictions,
we properly drew the conclusion that Applicant’s and Registrant’s goods travel in all
reasonable and ordinary trade channels, including specialty retail auto parts or
auto service establishments for high performance motor vehicles.
Decision: The Board, not being persuaded of any error in the rendering of its
decision, hereby denies Applicant’s request for reconsideration.