California Faucets, Inc.

Trademark Trial and Appeal Board

Jun 11, 2018

No. 87029512 (T.T.A.B. Jun. 11, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: June 11, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re California Faucets, Inc.
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Serial No. 87029512
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Irene Y. Lee of Russ August & Kabat,
for California Faucets, Inc.
Louis Kolodner, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____

Before Bergsman, Shaw, and Masiello,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
California Faucets, Inc. (“Applicant”) seeks registration on the Principal Register
of the mark GAVIOTA, in standard characters, for “Luxury bathroom faucets; Water
control valves for bathroom faucets; Plumbing fittings, namely, spouts for bathroom
fixtures; Tub Spouts; Shower Heads; Handles for shower faucets; Plumbing fittings,
namely, [and] shower control valves,” in International Class 11.1

1 Application Serial No. 87029512, filed on May 9, 2016 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1(b), based on a bona fide intent to use the mark.
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Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when applied to the identified goods,
so resembles the mark SEAGULL, in typed form, for goods identified as “water
purification units and parts thereof,” in International Class 11,2 as to be likely to
cause confusion, mistake or deception. In addition, the Examining Attorney refused
registration of Applicant’s mark under Trademark Rule 2.32(a)(9), 37 C.F.R.
§ 2.32(a)(9), based on Applicant’s failure to comply with the requirement to provide
an English translation for GAVIOTA, which, the Examining Attorney contended, is
the Spanish word for “seagull.”
When the refusals were made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. Applicant and the Examining Attorney filed briefs.
We affirm the refusals to register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between

2 Registration No. 2552790, issued March 26, 2002; combined Sections 8 and 15 affidavit
accepted and acknowledged; renewed. Prior to November 2, 2003, “standard character”
drawings were known as “typed” drawings. A typed mark is the legal equivalent of a standard
character mark. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir.
2012). See also Trademark Manual of Examining Procedure (TMEP) § 807.03(i) (Oct. 2017).
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the goods and the similarities between the marks. See 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. The nature and similarity or dissimilarity of the goods, the established, likely-
to-continue trade channels and classes of purchasers.
We start our analysis with the second and third du Pont factors and look at the
relationship between the goods at issue, the channels of trade in which they travel
and the classes of consumers. In comparing the goods, it is not necessary that they be
identical or even competitive in nature in order to support a finding of likelihood of
confusion. The goods need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Coach Servs. Inc. v.
Triumph Learning, LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The issue
of likelihood of confusion must be determined on the basis of the goods as set forth in
the application and the cited registration. Octocom Sys. Inc. v. Hous. Computs. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Applicant’s goods comprise various bathroom fixtures, namely faucets, water
control valves, spouts, shower heads, and handles for shower faucets. Registrant’s
goods are “water purification units and parts thereof.”
The Examining Attorney argues that Applicant’s and Registrant’s goods are
related because they are both “a kind that may emanate from a single source under
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a single mark”3 In support, the Examining Attorney introduced printouts from third-
party websites showing goods similar in type to those of Applicant and Registrant
offered by the same party under a single mark, e.g., moen.com and rohlhome.com.4
The Examining Attorney also made of record eight third-party registrations to
demonstrate that the respective goods are offered under the same mark. Third-party
registrations that are based on use in commerce and that individually cover various
different goods may have some probative value to suggest that the listed goods are of
a type that may emanate from the same source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-1786 (TTAB 1993). The following examples are the most
relevant:5
• Registration No. 1747006 for the mark “OPELLA” identifying, inter alia,
“faucets, valves, handles . . . shower heads” and “water filtration units;”
• Registration No. 4837703 for the mark“OPTIMH20” identifying, inter alia,
“bath and shower faucets” and “water filtration units;”
• Registration No. 5044439 for the mark “RACBOX” identifying, inter alia,
“Water faucet spout . . . Tap water faucets” and “Water filtration apparatus
for the deionization of water . . . Water purification and filtration apparatus;
Water treatment equipment, namely, cartridge filtration units; Water
treatment equipment, namely, reverse osmosis filtration units; Water
treatment equipment, namely, water filtration units;”
• Registration No. 5117932 for the mark “PUREH7” identifying, inter alia,
“Faucet sprayers; Faucets; Water conservation plumbing fixtures, namely,
faucets, aerators . . . showerheads . . . Shower faucet extensions” and “Water

3 Examining Attorney’s Br., p. 11, 14 TTABVUE 11.
4 Office Action of August 31, 2016, pp. 2-10.
5 Office Action of March 13, 2017, pp. 51-73.
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Filters; Water filtration and purification units and replacement cartridges
and filters therefor;” and
• Registration No. 5112894 for the mark “L’ACOQUA” identifying, inter alia,
“Faucet sprayers; Faucets; Water conservation plumbing fixtures, namely,
faucets, aerators . . . showerheads . . . Shower faucet extensions” and “Water
Filters; Water filtration and purification units and replacement cartridges
and filters therefor.”
The Examining Attorney also argues that water purification units, including
Registrant’s, commonly include faucets and shower heads. In support, he introduced
a number of internet website excerpts showing water purification units which include
faucets or shower heads. The following examples are representative:
6

6 Homedepot.com, Office Action of March 13, 2017, p. 3.
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7
8

7 Id. at 34.
8 Wheelton.aliexpress.com, Office Action of September 29, 2017, p. 96.
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9
Registrant’s website, introduced by Applicant, states that Registrant’s water
purification units can be used with “baths” and “showers:”
In-Home: Eco-friendly, the award winning, point-of-use,
Seagull IV drinking water systems provide great tasting
water for cooking, drinking and ice-makers without the
hassle, wait, waste, or worry of bottled water. . . . Several
models and sizes are available to suit even the most
challenging kitchens, baths and bar areas. California
certified models available for California residents. Add a
Spark-L-Pure large capacity filtration system for chlorine-
free showers and whole-house capacity.10

9 Aquapurefilters.com, Office Action of September 29, 2017, p. 99.
10 Generalecology.com, Applicant’s Request for Reconsideration of September 13, 2017, p. 91.
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Registrant’s website shows that Registrant offers faucets as part of its water
purification units:
11
Applicant argues that the goods are not related because they serve different
purposes and are used in different parts of the house:
Applicant has made of record that the products sold under
the GAVIOTA mark are for bathroom fixtures only, which
obviously have no need for or connection with water
purification units. Applicant even narrowed the
identification of goods listed in the Subject Application to
be solely relating to bathroom fittings, which have no
relationship whatsoever to the water purification units
sold under the Cited Mark for pure drinking water in a
kitchen.12

11 Id. at 113.
12 Applicant’s Br., p. 4, 12 TTABVUE 5.
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This argument is unpersuasive. Although Applicant has limited its goods to
“bathroom” fixtures, Registrant’s goods are not limited to producing “drinking water
in a kitchen,” as Applicant alleges. Therefore, Registrant’s goods may be used in any
part of the home including bathrooms. Indeed, as discussed supra, Registrant’s
website specifically states that its goods may be used in connection with “baths” and
“showers.”13 Moreover, goods need not be designed to be used together in order to be
perceived by customers as related in the sense that they may emanate from the same
source.
The foregoing evidence establishes that the respective goods may emanate from
the same source under the same mark, and further, that faucets and shower heads
are sometimes sold as parts of water purification units. Accordingly, we find
Applicant’s plumbing fixtures, particularly faucets and shower heads, are related to
Registrant’s “water purification units and parts thereof.” It is sufficient for a refusal
based on likelihood of confusion that relatedness is established for any item
encompassed by the identification of goods in a particular class in the application.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
Regarding, trade channels and classes of purchasers, there is little evidence in the
record as to these factors. Applicant argues that its goods are “luxury, decorative
faucets and drains, sold at a high price point”14 and that the channels of trade “are

13 Generalecology.com, Applicant’s Request for Reconsideration of September 13, 2017, p. 91.
14 Applicant’s Br., p. 3, 12 TTABVUE 4.
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highly restricted so as to minimize even the slightest risk of confusion.”15 Neither the
application nor the registration contains any restrictions as to the prices of the goods;
accordingly, we must interpret the goods of both Applicant and Registrant as
including goods at all normal prices for such goods, both high and low. Octocom, 16
USPQ2d at 1787. But both Applicant’s and Registrant’s goods are sold online and at
similar price points16 which suggests that the channels of trade and classes of
purchasers are similar as well. The du Pont factors relating to the similarity of the
goods, the channels of trade and classes of purchasers favor a finding of likelihood of
confusion.
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
Next, we consider the similarity of the marks. In comparing the marks we must
consider their appearance, sound, connotation and commercial impression. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). The emphasis of our analysis must be on the
recollection of the average purchaser who normally retains a general, rather than
specific, impression of trademarks. Although we consider the marks as a whole, “in
articulating reasons for reaching a conclusion on the issue of confusion, there is
nothing improper in stating that, for rational reasons, more or less weight has been

15 Id. at 4, 12 TTABVUE 5.
16 See Applicant’s Request for Reconsideration of September 13, 2017, Silverstein Dec., Exh.
H, pp. 94-111, and Exh. I, pp. 112-115.
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given to a particular feature of a mark.” In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
To determine similarity of meaning and connotation, in order to ascertain
confusing similarity with English word marks, foreign words from common modern
languages generally are translated into English under the doctrine of foreign
equivalents. Palm Bay, 73 USPQ2d at 1696; McCarthy on Trademarks and Unfair
Competition, § 23:36 (5th ed. June 2018). The doctrine of foreign equivalents is not an
absolute rule, however, and should be viewed merely as a guideline. Id. “The doctrine
should be applied only when it is likely that the ordinary American purchaser would
‘stop and translate [the word] into its English equivalent.’” Id. (quoting In re Pan Tex
Hotel Corp., 190 USPQ 109, 110 (TTAB 1976)). The “ordinary American purchaser”
includes “all American purchasers, including those proficient in a non-English
language who would ordinarily be expected to translate words into English.” In re
Spirits Int’l N.V., 563 F.3d 1347, 90 USPQ2d 1489, 1492 (Fed. Cir. 2009).
Registrant’s mark is SEAGULL. Applicant’s mark is GAVIOTA which, as the
Examining Attorney has demonstrated, means “seagull” in Spanish.17 GAVIOTA has
no definition in English.18 The record shows that an appreciable number of American
consumers speak Spanish. The 2011 Census Department report submitted by the
Examining Attorney titled Language Use in the United States: 2011 shows that

17 See, e.g., The American Heritage Spanish Dictionary, Office Action of September 29, 2017,
pp. 57-59; Cassell’s Spanish – English Dictionary, Id. at 60-62; and Collins Spanish
Dictionary, Id. at 63-65.
18 Office Action of September 29, 2017, pp. 2-14.
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Spanish is the most common foreign language spoken in the United States.19
According to the Census report, approximately 37,579,787 people in the United States
speak Spanish.20
Citing TMEP section 1207.01, Applicant argues that the doctrine of foreign
equivalents does not apply “where the foreign wording has developed an alternate
meaning in the relevant marketplace that is different from the translated meaning
in English, and the evidence shows that the alternate meaning would be understood
by the relevant purchasing public.”21 According to Applicant, “the word ‘GAVIOTA’
predominantly refers to the southern California beach town Gaviota, California and
the famous Gaviota State Park, as well as other tourist attractions in the Gaviota
area.”22
Applicant’s evidence regarding the Gaviota region does not indicate that the state
park or the town in Santa Barbara County are well known outside of Southern
California. Moreover, the record indicates that “Gaviota State Park takes its name
from the Spanish word for seagull, given to the area by soldiers of the Portola
Expedition who supposedly killed a seagull while camping here in 1769.”23 Thus,
Applicant’s evidence does not establish that the alternate geographic meaning would
be understood by the relevant purchasing public. Rather, given the large number of

19 Id. at 19-34.
20 Id. at 21.
21 Applicant’s Br., p. 2, 12 TTABVUE 3; TMEP § 1207.01(b)(vi)(B).
22 Applicant’s Br., p. 2, 12 TTABVUE 3.
23 Applicant’s Request for Reconsideration of September 13, 2017, Silverstein Dec., Exh. D,
p. 49.
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Spanish speakers in the United States and the fact that consumers who know of the
Gaviota region also might know that it derives its name from the Spanish word for
“seagull,” we find it likely that these Spanish speakers would “stop and translate”
GAVIOTA into its English equivalent, SEAGULL.
As our primary reviewing court recognized, “the PTO may reject an
application . . . solely because of similarity in meaning of the mark sought to be
registered with a previously registered mark.” In re Sarkli, Ltd., 721 F.2d 353, 220
USPQ 111, 113 (Fed. Cir. 1983). Generally, however, applying the doctrine of foreign
equivalents is only part of the determination of whether the marks being compared
are confusingly similar. “[S]uch similarity as there is in connotation must be weighed
against the dissimilarity in appearance, sound, and all other factors, before reaching
a conclusion on likelihood of confusion as to source.” Id. See also, In re Ithaca Indus.,
Inc., 230 USPQ 702, 704 (TTAB 1986) (“[O]ther factors to be considered are the
dissimilarity in overall appearance and pronunciation of the marks, the differences
in the goods to which the marks are applied, and the degree of suggestiveness of
applicant’s mark and the cited mark as applied to the respective goods.”).
When we compare the marks in their entireties, the similarity in meaning is
obvious and substantial. GAVIOTA is a direct translation of SEAGULL, and
therefore the two marks have the same meaning. Moreover, SEAGULL is arbitrary
as applied to plumbing fixtures or water purification units, and therefore it is
conceptually strong as a trademark. Palm Bay, 73 USPQ2d at 1692 (“VEUVE is an
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arbitrary term as applied to champagne and sparkling wine, and thus conceptually
strong as a trademark.”).
We recognize that the similarity of connotation of the marks, by itself, is not
determinative and that this factor must be weighed against the dissimilarities in
sound and appearance of the marks and all the other relevant factors bearing on the
likelihood of confusion. However, when we consider the similarity of the marks in
their entireties, we find that the similarity of connotation and commercial impression,
together with the relative strength of the mark and the absence of any other
significant meaning of GAVIOTA, combine to outweigh the dissimilarities in the
marks.
This du Pont factor weighs in favor of a finding of likelihood of confusion with
respect to the cited registration.
C. Consumer sophistication.
Finally, we address Applicant’s contention that the respective goods are
purchased with care. This argument concerns the fourth du Pont factor, the
“conditions under which and buyers to whom sales are made, i.e., ‘impulse’ v. careful,
sophisticated purchasing.” 177 USPQ at 576. Applicant argues that “the high
sophistication of the consuming public and the high price points for the products
offered under both marks . . . lead consumers to take heightened care when making
purchasing decisions.”24 Applicant’s Chairman of the Board, Fred Silverstein, stated:
[T]he purchasers of [Applicant’s] goods are generally
contractors, plumbers or other professionals in the

24 Applicant’s Br., p. 4, 12 TTABVUE 5.
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construction and design industries. The purchasers of such
products are likely to exercise a high degree of care and
show a high level of sophistication in making purchasing
decisions, especially given the high price points of
California Faucets’ and GEI’s products.25
Other than the Silverstein declaration, there is no direct evidence in the record
regarding the classes of the purchasers of Applicant’s and Registrant’s goods.
Applicant’s identification of goods is not limited as to classes of purchasers, and we
must assume that the goods will be offered to all normal classes of customers for such
goods. Octocom, 16 USPQ2d at 1788 (“[A]n application having no restriction . . .
obviously is not narrowed by testimony that the applicant’s mark is, in fact, restricted
to a particular class of purchasers.”) As noted supra, the respective goods are sold
online and, therefore, may be sold to consumers who are not “professionals in the
construction and design industries.” Precedent requires that we base our decision on
the least sophisticated potential purchasers which may be ordinary consumers
exercising only an ordinary degree of care. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014).
Even assuming some consumers of the identified goods exercise care, it is well-
settled that careful or sophisticated purchasers are not immune from source
confusion:
That the relevant class of buyers may exercise care does
not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar
goods. “Human memories even of discriminating
purchasers . . . are not infallible.” (Citation omitted).

25 Applicant’s Request for Reconsideration of September 13, 2017, Silverstein Dec., para. 9,
p. 11.
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Sophistication of buyers and purchaser care are relevant
considerations, but are not controlling on this factual
record.
In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986).
This du Pont factor is neutral.
D. Conclusion
We have considered all of the arguments and evidence of record, including any not
specifically discussed herein, as they pertain to the relevant du Pont likelihood of
confusion factors. We are not persuaded that even consumers exercising a higher
degree of purchasing care would not be confused when the marks GAVIOTA and
SEAGULL are used in connection with related goods. Assuming such consumers
exercise care with respect to the identified goods, we find that the fourth du Pont
factor would weigh slightly against a likelihood of confusion but would not outweigh
the first two du Pont factors. We find that Applicant’s mark is likely to cause
confusion with the mark in cited Registration No. 2552790 when used in association
with the goods identified in the application.
II. Translation Requirement
Trademark Rule 2.32(a)(9), 37 CFR 2.32(a)(9) requires an application to include
an English translation of any non-English wording in the mark. Relying on that rule,
the Examining Attorney, having determined that the mark has meaning in Spanish,
required Applicant to provide an English translation for the mark.26

26 Office Action of September 29, 2017, pp. 57-74.
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The meaning of words is of critical importance in a trademark application. A
translation made part of the application provides public notice of the meaning of the
words in applied-for matter, allowing third parties to assess the scope of an
applicant’s or registrant’s rights. Accordingly, the requirement for submission of a
translation of GAVIOTA for the record is affirmed.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Lanham Act is affirmed. The refusal to register the mark in the absence of a
disclaimer also is affirmed.