American Vault & Concrete Products Corp.

Trademark Trial and Appeal Board

May 31, 2000

No. 75168170 (T.T.A.B. May. 31, 2000)

Hearing: Paper No. 15
November 16, 1999 EWH/MM
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MAY 31, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re American Vault & Concrete Products Corp.
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Serial No. 75/168,170
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Bernard J. Cantor of Harness, Dickey & Pierce PLC for
American Vault & Concrete Products Corp.
Vivian Micznik First, Trademark Examining Attorney, Law
Office 104 (Sidney Moskowitz, Managing Attorney).
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Before Hanak, Walters and McLeod, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
American Vault & Concrete Products Corp. (applicant)
seeks to register EAGLE CORINTHIAN in typed drawing form
for "concrete burial vaults." The application was filed on
September 9, 1996 with a claimed first use date of February
1, 1995.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
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that applicant’s mark, as applied to applicant’s goods, is
likely to cause confusion with the mark THE CORINTHIAN,
previously registered in typed drawing form for "burial
caskets." Registration No. 1,351,717.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs and were present at a hearing held on
November 16, 1999.
In any likelihood of confusion analysis, two key
considerations are the similarities of the goods and the
similarities of the marks. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
We will consider first the degree to which concrete
burial vaults (applicant’s goods) and burial caskets
(registrant’s goods) are related. In effort to show that
the two types of goods are related, the Examining Attorney
has made of record seven third-party registrations and
stories from the NEXIS database and certain web sites.
However, none of this evidence establishes that the same
companies manufacture both concrete burial vaults and
burial caskets. Five of the seven third-party
registrations describe the goods as "combination casket and
burial vault." The Examining Attorney has made of record
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absolutely no evidence explaining what a combination casket
and burial vault is. Accordingly, these five third-party
registrations are of no probative value in showing the
relationship between concrete burial vaults and burial
caskets. The remaining two third-party registrations do
not demonstrate that companies market under the same mark
both concrete burial vaults and burial caskets, rather they
demonstrate that two companies possibly market burial
vaults and caskets made of other materials, such as
polypropylene.
In contrast, applicant has made of record the
declarations of six independent funeral directors not
affiliated with applicant. These funeral directors have
anywhere from nine years to thirty-four years of experience
in the funeral industry. These funeral directors state
that the "business of buying and selling concrete burial
vaults is separate and distinct from the business of
selling caskets … or combination caskets and vaults." The
directors go on to explain that "concrete burial vaults are
extremely heavy and bulky and are not kept on the premises
at the funeral home. Rather, they are specially ordered
for delivery by the manufacturer to the gravesite at a
specified time for a specified funeral." In addition,
these funeral directors note that the ultimate consumer
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(the family of the deceased) never sees the concrete burial
vault, and more importantly, does not directly purchase a
concrete burial vault. Rather, the ultimate consumers are
asked by the funeral director whether they wish to have a
concrete burial vault, and if they do, the funeral director
then places the actual order for the concrete burial vault
with one of the "small number of concrete vault
manufacturers." Finally, these funeral directors indicate
that they and their fellow directors are extremely familiar
with the various manufacturers of burial caskets as well as
with the small number of manufacturers of concrete burial
vaults, and that they (the funeral directors) would simply
not be confused as to source.
As for the Examining Attorney’s NEXIS and web site
evidence, suffice it to say that none of this evidence
demonstrates that the same companies market under the same
marks both burial caskets and concrete burial vaults. Most
of the stories submitted by the Examining Attorney are
informational in nature and describe the funeral process to
ordinary consumers. Some of these stories mention, among
many other topics, caskets and burial vaults, including, in
a limited number of cases, concrete burial vaults.
In sum, we find that in viewing all of the evidence,
the only relationship between concrete burial vaults and
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burial caskets is that they both are, obviously, part of
the funeral/burial process. However, there is no proof
whatsoever that the same companies sell both concrete
burial vaults and burial caskets, much less that these
companies sell both of the products under the same mark.
More importantly, the evidence demonstrates that concrete
burial vaults are simply not viewed or purchased by the
ultimate consumers, but rather are purchased by
sophisticated professionals, namely, funeral directors.
Turning to a consideration of the marks, applicant’s
mark EAGLE CORINTHIAN and registrant’s mark THE CORINTHIAN
are obviously somewhat similar in that both share the word
CORINTHIAN. Because the evidence demonstrates that the
ordinary, ultimate consumers do not select or directly
purchase concrete burial vaults, we need not decide whether
there would be a likelihood of confusion in the minds of
these ordinary, ultimate consumers resulting from the
contemporaneous use of EAGLE CORINTHIAN on concrete burial
vaults and THE CORINTHIAN on burial caskets. Instead, we
find that the two marks are dissimilar enough such that
experienced professional buyers (funeral home directors)
would distinguish between EAGLE CORINTHIAN concrete burial
vaults and THE CORINTHIAN burial caskets, and that these
professional funeral directors would not assume that both
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products emanated from a common source. In this case,
purchaser "sophistication is important and … dispositive
because sophisticated consumers [the funeral directors] may
be expected to exercise greater care." Electronic Design &
Sales v. Electronic Data Systems, 954 F.2d 713, 21 USPQ2d
1388, 1392 (Fed. Cir. 1992).
Decision: The refusal to register is reversed.
E. W. Hanak
C. E. Walters
L. K. McLeod
Administrative Trademark
Judges, Trademark Trial and
Appeal Board