Aqua Glass Corp.

Trademark Trial and Appeal Board

Jun 11, 2001

No. 75602643 (T.T.A.B. Jun. 11, 2001)

06/11/01 Paper No. 9
EWH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Aqua Glass Corporation
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Serial No. 75/602,643
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Edgar A. Zarins for Aqua Glass Corporation
Edd Vasquez, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney)
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Before Simms, Hanak and Bottorff, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Aqua Glass Corporation (applicant) seeks to register in
typed drawing form TUSCANY for “whirlpool bath.” The
intent-to-use application was filed on December 10, 1998.
The Examining Attorney has refused registration
pursuant to Section 2(d) of the Trademark Act on the basis
that applicant’s mark TUSCANY, as applied to whirlpool
baths, is likely to cause confusion with the identical mark
TUSCANY, previously registered in typed drawing form for
“faucets.” Registration No. 1,849,191.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and Examining Attorney
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.

Ser. No. 75/602,643
filed briefs. Applicant did not request a hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods or services.
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.”).
Considering first the marks, they are identical. Thus,
the first Dupont “factor weighs heavily against applicant”
because the two word marks are identical. In re Martin’s
Famous Pastry Shoppe Inc., 748 F.2d 1565, 223 USPQ 1289,
1290 (Fed. Cir. 1984).
Turning to a consideration of applicant’s goods and
registrant’s goods, we note that because the marks are
identical, their contemporaneous use can lead to the
assumption that there is a common course “even when [the]
goods or services are not competitive or intrinsically
related.” In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1689 (Fed. Cir. 1993).
However, in this case we find that applicant’s goods
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Ser. No. 75/602,643
and registrant’s goods are closely related. In this regard,
we note that the Examining Attorney has made of record ten
third-party registrations demonstrating that the same marks
have been registered for both whirlpool baths and faucets.
Applicant has conceded that all whirlpool baths must
have faucets. (Applicant’s brief page 3). Moreover,
applicant has conceded that the same stores will sell both
faucets and whirlpool baths. (Applicant’s brief page 3).
Thus, we find that whirlpool baths and faucets are
closely related goods, and that the use of the identical
arbitrary mark TUSCANY on both types of goods would lead to
a likelihood of confusion.
Without providing any evidentiary support, applicant
argues that confusion is not likely because whirlpool baths
are expensive and faucets are relatively inexpensive and
because no whirlpool bath is sold or installed with a
faucet. (Applicant’s brief pages 2-3). To begin with, we
find that applicant’s latter argument is not plausible. An
individual buying a new home or renovating an old home could
well contract with a builder or plumber to install an entire
whirlpool bath system, including, among other things, the
very essential faucet portion of the system. If this
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Ser. No. 75/602,643
individual were to see the mark TUSCANY on the faucet and
the same mark TUSCANY on the ceramic portion of the
whirlpool bath, he or she would naturally assume that both
items came from a common source. Moreover, even if a
homeowner simply requested that a plumber install only the
whirlpool bath per se, if this whirlpool bath bore the mark
TUSCANY, that homeowner, when shopping for faucets, would
naturally assume that a TUSCANY faucet emanated from the
same source as the TUSCANY whirlpool bath.
Decision: The refusal to register is sustained.
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