Clark Refining & Marketing, Inc.

Trademark Trial and Appeal Board

May 3, 2001

No. 75521635 (T.T.A.B. May. 3, 2001)

5/3/01
Paper No. 9
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Clark Refining & Marketing, Inc.
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Serial No. 75/521,635
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Andrew B. Mayfield of Armstrong, Teasdale, Schlafly & Davis
for Clark Refining & Marketing, Inc.
Scott D. Woldow, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
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Before Quinn, Hairston and Bucher, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
Clark Refining & Marketing, Inc. has appealed from the
final refusal of the Trademark Examining Attorney to
register the mark WASH ON THE GO for car wash services.1
Registration has been refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. 1052(d), on the ground that
1 Application Serial No. 75/521,635 filed July 20, 1998, based on
Section 1(b) of the Trademark Act (intent-to-use).
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/521,635
2
applicant’s mark, if used in connection with the identified
services, so resembles the mark WASH-N-GO and design as
shown below,
registered for “vehicle washing machines and parts
therefor,”2 as to be likely to cause confusion, deception or
mistake.
Briefs have been filed, but an oral hearing was not
requested. We reverse the refusal to register.
Turning first to the marks, it is applicant’s position
that the marks differ in sound, appearance and connotation.
In particular, applicant argues that “[t]he design format
distinguishes the cited mark, as does the use of ‘-N-’
instead of ‘ON THE’ between WASH and GO.” (Brief, p. 3).
We agree with the Examining Attorney, however, that
when the marks are considered in their entireties, they are
very similar. As noted by the Examining Attorney, the
dominant feature of the cited mark is the literal portion,
WASH-N-GO, which is the portion purchasers will remember
2 Registration No. 2,125,981 issued December 30, 1997.
Ser No. 75/521,635
3
and use in calling for the goods. In re Appetito
Provisions Co., Inc., 3 USPQ2d 1553, 1554 (TTAB 1987). The
literal portion of applicant’s mark is substantially
similar to the cited mark. As is apparent, both marks
begin and end with the same words, namely “WASH” and “GO.”
Although the middle portions of the marks, namely, “-N-“
and “ON THE”, differ slightly, when the marks are spoken,
this difference is barely noticeable. Moreover, WASH ON
THE GO and WASH-N-GO have the same connotation, namely a
car wash that can be performed quickly so that the customer
can be on his or her way.
Although we have found that the marks involved herein
are very similar, an additional factor must be considered
in our likelihood of confusion determination. The cited
mark WASH-N-GO and design is highly suggestive of
registrant’s goods, and therefore not entitled to a broad
scope of protection.
Turning then to the respective goods and services, it
is the Examining Attorney’s position that applicant’s car
wash services and registrant’s vehicle washing machines and
parts therefor are related because they both involve car
washes. In support of the refusal to register, the
Examining Attorney submitted several third-party
Ser No. 75/521,635
4
registrations which cover car wash services, on the one
hand, and car washing machines, on the other hand.
These third-party registrations do not persuade us
that the goods and services involved herein are related
such that confusion as to source or sponsorship is likely
to occur. Although third-party registrations may have some
probative value to the extent that they may serve to
suggest that the listed goods and services are of a type
which may emanate from a single source, they are not
particularly useful in this case because car washing
machines and car wash services are marketed to different
classes of purchasers. As noted by applicant, car wash
services are marketed to the general public, i.e., owners
and operators of automobiles, whereas car washing machines
are marketed to owners of service stations, convenience
stores, and the like. This class of purchaser is likely to
be, at least, somewhat discriminating inasmuch as car
washing machines are not inexpensive impulse type items.
Admittedly, it is remotely possible that a service
station or convenience store owner, knowing of registrant’s
WASH-N-GO and design vehicle washing equipment, could
perhaps wonder whether WASH ON THE GO car wash services
emanate from or are otherwise associated with the same
source. However, as our primary reviewing court cautioned
Ser No. 75/521,635
5
in Witco Chemical Co. v. Whitfield Chemical Co., 418 F.2d
1403, 1405, 164 USPQ 43, 44-45 (CCPA 1960), aff’g, 153 USPQ
412 (TTAB 1967):
We are not concerned with mere theoretical
possibilities of confusion, deception, or
mistake or with de minimis situations but
with the practicalities of the commercial
world, with which the trademark laws deal.
Accordingly, when we consider the limited scope of
protection to which the cited mark is entitled, the
differences in the classes of purchasers and the fact that
the purchasers of registrant’s goods are likely to be, at
least somewhat discriminating, it is our view that
applicant’s intended use of WASH ON THE GO for car wash
services is not likely to cause confusion with WASH-N-GO
and design for vehicle washing machines and parts therefor.
See In re Shipp, 4 USPQ2d 1174 (TTAB 1987) [PURITAN and
design for laundry and dry cleaning services held not
likely to cause confusion with PURITAN for commercial dry
cleaning equipment, since the goods and services “are not
so related that they would come to the attention of the
same kinds of purchasers”].
Decision: The refusal of registration is reversed.