Church & Dwight Co., Inc.

Trademark Trial and Appeal Board

Nov 2, 2006

No. 78434777 (T.T.A.B. Nov. 2, 2006)

Mailed: November 2, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Church & Dwight Co., Inc.1
________

Serial No. 78434777
_______

Salvador K. Karottki of Goldberg, Kohn, Bell, Black,
Rosenbloom & Moritz, Ltd. for Church & Dwight Co., Inc.

John Dwyer, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Hohein, Grendel and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

An application was originally filed by Orange Glo
International, Inc., and subsequently assigned to Church &
Dwight Co., Inc. (as noted below), to register on the
Principal Register the mark MORNING MIST in standard
character form for the following goods, as amended:

1 An assignment of the application involved herein from the
original applicant, Orange Glo International, Inc., to Church &
Dwight Co., Inc. was recorded with the Assignment Branch of the
United States Patent and Trademark Office on August 16, 2006 at
Reel 3371/Frame 0093.
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B.
Ser No. 78434777
2
“laundry and household bleach for household use, laundry
detergent for household use” in International Class 3.2
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as intended to be used on or in
connection with its goods, so resembles the mark MORNING
MIST, previously registered on the Principal Register in
typed form for “all purpose disinfectant for institutional
and industrial use” in International Class 5,3 as to be
likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs on the
issue under appeal, and applicant filed a reply brief.
Applicant asserts that registrant’s identification of
goods clearly indicates that its goods are for
institutional and industrial use; and that, by contrast,
the goods identified under applicant’s mark are intended
for household use. Applicant further asserts that
registrant markets its goods to institutions and industries
solely through distributors; and that applicant, on the

2 Application Serial No. 78434777 was filed June 14, 2004, based
on applicant’s assertion of its bona fide intent to use the mark
in commerce.

3 Registration No. 2392849 issued October 10, 2000; Section 8
affidavit accepted, Section 15 affidavit acknowledged.

Ser No. 78434777
3
other hand, markets its goods to household consumers
through retail points of sale. Applicant argues that, as a
result of the trade channel limitations specified in the
identification of goods in both the involved application
and cited registration, applicant and registrant should be
afforded limited rights in their marks; that the respective
goods of applicant and registrant are marketed in mutually
exclusive channels of trade to different consumers; and
that there is very little likelihood that purchasers would
encounter both marks. Applicant nonetheless concedes that
a small number of janitorial professionals are likely to
purchase both applicant’s and registrant’s products in
their separate channels of trade; that, however, such
consumers represent a very small percentage of household or
retail consumers; and that such consumers are not likely to
be confused as to the source of those goods given the
degree of care and sophistication of that class of
purchasers with regard thereto. In support of its
arguments in favor of registration, applicant submits a
portion of the file history of application Serial No.
75643025, which matured into the cited registration.4

4 We note that applicant submitted a copy of this material with
its main brief on the case. As provided in Trademark Rule
2.142(d), evidence submitted for the first time as an attachment
to a brief is untimely. In this case, however, applicant
previously made this material of record as an exhibit to its
Ser No. 78434777
4
The examining attorney argues that registrant’s mark
MORNING MIST is a coined term; that MORNING MIST thus is a
strong mark and should be afforded a broad scope of
protection; that applicant’s proposed mark is identical to
the registered mark, MORNING MIST; and that because both
marks appear in standard character form, they may be
displayed in a manner that is identical with regard to
font, lettering, style and color. The examining attorney
further argues that applicant’s goods may emanate from the
same source as those of registrant; that registrant’s
disinfectants may be used in conjunction with applicant’s
laundry detergent and bleach; that household bleach is
considered an all-purpose disinfectant; and that, as a
result, applicant’s goods are related to those of
registrant. The examining attorney argues in addition that
household consumers of applicant’s goods who seek to use
commercial strength products may also purchase registrant’s
goods; that the goods as identified in the involved
application and cited registration are not limited as to
channels of trade or method of sale; and that applicant’s
goods thus may move in the same trade channels as those of

February 13, 2006 request for reconsideration of the examining
attorney’s August 12, 2005 final Office action. Accordingly, the
material submitted with applicant’s brief merely serves as a
courtesy copy of evidence timely made of record, and we have
considered this material in our determination herein.
Ser No. 78434777
5
registrant. Finally, the examining attorney argues that
applicant has introduced no evidence to support its
argument regarding the sophistication of relevant consumers
of the identified goods; and that even sophisticated
consumers are not immune from source confusion. In support
of his arguments in favor of refusal, the examining
attorney has made of record third-party registrations and
materials obtained from the Google Internet search engine.
Applicant argues in reply that both applicant and
registrant expressly amended their identifications of goods
to specify mutually exclusive target markets; that
applicant’s target market is household users while that of
registrant is institutional and industrial users; and that
the record does not support a finding that applicant’s
goods will move in the same trade channels as those of
registrant.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, however, two key considerations are the
Ser No. 78434777
6
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 27 (CCPA
1976). See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).
We first consider the similarity of the marks. We
begin by noting that applicant does not argue that its mark
is dissimilar from that of registrant. In fact, we note
that applicant’s mark is identical to the cited mark,
MORNING MIST, in appearance, spelling and sound. Further,
applicant has applied for its mark in standard character
form. Registrant’s mark is presented in typed form, which
is the term formerly used by the United States Patent and
Trademark Office to identify marks appearing in standard
character form. See TMEP §807.03. Marks appearing in
typed or standard character form may be displayed in any
reasonable stylization, font, color and size. See Phillips
Petroleum Co. v. C. J. Webb, Inc., 442 F.2d 1376, 170 USPQ
35 (CCPA 1971) [a mark in typed or standard character form
is not limited to the depiction thereof in any special
form]; INB National Bank v. Metrohost Inc., 22 USPQ2d 1585
(TTAB 1992) ["[a]s the Phillips Petroleum case makes clear,
when [an] applicant seeks [or a registrant has] a typed or
block letter registration of its word mark, then the Board
Ser No. 78434777
7
must consider all reasonable manners in which ... [the word
mark] could be depicted"]; and TMEP §807.03 Thus,
applicant’s mark may be displayed in a stylized manner that
is identical to a stylization adopted by registrant. In
sum, the marks are identical in all respects. Use of
identical marks is a fact which “weighs heavily against
applicant.” See In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 165, 223 USPQ 1289 (Fed. Cir. 1984); and In re
Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687 (Fed. Cir.
1993). We further note that applicant fails to present
either arguments or evidence to rebut the examining
attorney’s position that the mark MORNING MIST is a strong
mark as applied to the recited goods. On the facts before
us, and in the absence of any evidence to the contrary, we
agree with the examining attorney that MORNING MIST is a
strong mark, and as such is entitled to a broad scope of
protection.
We next turn to a consideration of the goods. We
note, at the outset of considering this du Pont factor,
that the greater the degree of similarity between
applicant’s mark and the cited registered mark, the lesser
the degree of similarity between applicant’s goods and
registrant’s goods that is required to support a finding of
likelihood of confusion. See In re Opus One Inc., 60
Ser No. 78434777
8
USPQ2d 1812, 1815 (TTAB 2001). If the marks are the same,
as in this case, it is only necessary that there be a
viable relationship between the goods in order to support a
finding of likelihood of confusion. See In re Concordia
International Forwarding Corp., 222 USPQ 355, 356 (TTAB
1983).
Furthermore, it is not necessary that the goods at
issue be similar or competitive, or even that they move in
the same channels of trade, to support a holding of
likelihood of confusion. It is sufficient instead that the
respective goods are related in some manner, and/or that
the conditions and activities surrounding the marketing of
the goods are such that they would or could be encountered
by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. See In
re International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
In this case, the examining attorney has made of
record a number of use-based third-party registrations
which show that various entities have adopted a single mark
for goods that are identified in both applicant’s
application and the cited registration. See, for example:
Ser No. 78434777
9
Registration No. 2192673 for soap and detergents,
namely, all-purpose cleaners, janitorial
cleaners, metal cleaners, laundry detergents,
commercial detergents, kitchen cleaners and
industrial cleaners in International Class 3; and
all-purpose disinfectant cleaning preparations in
International Class 5;

Registration No. 2206412 for, inter alia, laundry
detergent in International Class 3; and all-
purpose disinfectants in International Class 5;

Registration No. 2627064 for, inter alia, laundry
bleach; laundry detergent in International Class
3; and all-purpose disinfectants in International
Class 5;

Registration No. 2882374 for, inter alia,
household and laundry bleach in International
Class 3; and all-purpose disinfectants in
International Class 5;

Registration No. 2631898 for, inter alia, laundry
detergent in International Class 3; and all-
purpose disinfectants in International Class 5;

Registration No. 1128786 for, inter alia, laundry
bleach; laundry detergent…detergents having
deodorizing properties for farm, home and
industrial use in International Class 3; and
disinfectants; deodorants for home, farm and
industrial use in International Class 5;

Registration No. 1379919 for, inter alia, laundry
detergents in International Class 3; and
household and institutional disinfectant
preparations in International Class 5; and

Registration No. 1575911 for, inter alia, laundry
detergents; bleaches…all for household, office,
industrial, commercial, and institutional use in
International Class 3; and disinfectant
cleaners…for household, office, industrial,
commercial and institutional use in International
Class 5.

Ser No. 78434777
10
Third-party registrations which individually cover a number
of different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993).
In addition, the examining attorney submitted evidence
from the Google Internet search engine suggesting that
certain of applicant’s goods, namely, household bleach,
perform the same function as those of registrant. Excerpts
from these articles and web pages follow (emphasis in
originals):
Household bleach is good for an all-purpose
disinfectant.
(www.arches.uga.edu);

Household bleach = 5% soln of hypochlorite -
good for all-purpose disinfectant.
(www.biologie.uni-hamburg);

…an all-purpose disinfectant, chlorine bleach
destroys most household germs including….
(c3.org/chlorine_knowledge_center/life); and

An all-purpose disinfectant, such as normal
household bleach (diluted 1:10) or an iodophor.
(www.ehs.iastate.edu/bs.spillkit.com).

The foregoing evidence demonstrates the existence of at
least a viable relationship between the goods at issue, and
this du Pont factor also favors a finding of likelihood of
confusion.
Ser No. 78434777
11
We note applicant’s argument that the goods identified
in the subject application and cited registration recite
specific trade channel limitations. However, there is no
evidence of record that these trade channels are mutually
exclusive. Furthermore, and as noted above, it is not
necessary for the goods to be directly competitive or move
in the same trade channels to support a finding of
likelihood of confusion. See In re International Telephone
& Telegraph Corp., supra. Where, as here, the marks are
identical, we need only a viable relationship between the
goods to find likelihood of confusion. See In re Concordia
International Forwarding Corp., supra. In this case,
applicant and registrant use the same mark to identify
cleaning products. The third-party registrations made of
record by the examining attorney show that a viable
relationship exists between these cleaning products.
Certain of the registrations cover goods which expressly
are for household as well as institutional and industrial
uses. Moreover, the evidence of record points to potential
overlap in consumers. Specifically, industrial or
institutional purchasers may also purchase household and
laundry bleach or detergent, especially given that
household bleach is an effective all-purpose disinfectant.
Ser No. 78434777
12
We further note applicant’s argument that the owner of
the cited registration limited the trade channels in its
identification of goods in order to overcome a refusal to
register. However, even with applicant’s submission of a
portion of the file history of the application that
resulted in the cited registration, we are not privy to all
of the facts and circumstances in that case. Second, it is
well settled that each case must be decided on its own
merits. Previous decisions by examining attorneys in
approving other marks are without evidentiary value and are
not binding on the Office or the Board. See In re Sunmarks
Inc., 32 USPQ2d 1470 (TTAB 1994); and In re National Novice
Hockey League, Inc., 222 USPQ 638, 641 (TTAB 1984).
The final du Pont factor discussed by applicant and
the examining attorney is that of the conditions of sale.
Applicant asserts that its goods would be purchased by
careful and sophisticated users. However, sophisticated
purchasers are not necessarily knowledgeable in the field
of trademarks or immune from source confusion. See In re
Decombe, 9 USPQ2d 1812, 1814-1815 (TTAB 1988). Further,
there is no evidence that either applicant’s or
registrant’s goods would be purchased only by highly
sophisticated persons. Moreover, in view of the third-
party registrations which evidence that both household
Ser No. 78434777
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bleach and laundry detergent as well as all-purpose
disinfectants may emanate from a single source, prospective
purchasers may mistakenly believe that these goods could
emanate from a single source. In addition, even if some
degree of care were exhibited in making the purchasing
decision, the involved marks MORNING MIST are identical so
that even careful purchasers are likely to assume that the
marks identify goods emanating from a single source.
Weighing all of the evidence of record as it pertains
to the relevant du Pont factors, we find that a likelihood
of confusion exists. To the extent that any of the points
raised by applicant raise a doubt about likelihood of
confusion, that doubt is required to be resolved in favor
of the prior registrant. See In re Shell Oil Co., supra;
In re Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d
1025 (Fed. Cir. 1988); and In re Martin’s Famous Pastry
Shoppe, Inc., supra.
Decision: The refusal to register is affirmed.