Columbia Insurance Co.

Trademark Trial and Appeal Board

Mar 31, 2008

No. 78472460 (T.T.A.B. Mar. 31, 2008)

Mailed:
March 31, 2008
jtw

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Columbia Insurance Co.
________

Serial No. 78472460
_______

Lisa A. Iverson of Neal & McDevitt, LLC for Columbia
Insurance Co.

Ada P. Han, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______

Before Seeherman, Bucher and Walsh, Administrative
Trademark Judges.

Opinion by Walsh, Administrative Trademark Judge:

Columbia Insurance Co. (applicant) has applied to
register the mark CROSSPOINT FABRICS in standard characters
on the Principal Register for goods now identified as
“textile wallcoverings not sold through retail outlets” in
International Class 27.1 Applicant has disclaimed
“FABRICS.”

1 Application Serial No. 78472460, filed August 24, 2004,
claiming first use of the mark anywhere and first use of the mark
in commerce on October 31, 2000.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser No. 78472460
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The Examining Attorney has finally refused
registration under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), based on a likelihood of confusion with
Registration No. 2940166 on the Principal Register for the
mark CROSSPOINT in standard characters for goods identified
as “furniture” in International Class 20. The registration
issued on April 12, 2005 and is active. Applicant has
appealed. Applicant and the Examining Attorney have filed
briefs.
We reverse.
Section 2(d) of the Trademark Act precludes
registration of an applicant’s mark “which so resembles a
mark registered in the Patent and Trademark Office … as to
be likely, when used on or in connection with the goods of
the applicant, to cause confusion …” 15 U.S.C. § 1052(d).
In In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1977), the Court set forth the factors
to consider in determining likelihood of confusion. See
also In re Majestic Distilling Company, Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003). Below, we will
consider each of the factors as to which applicant or the
Examining Attorney have presented arguments or evidence.
In its brief, applicant has not argued that the marks
are not similar. In fact, the marks, CROSSPOINT FABRICS
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and CROSSPOINT, both in standard characters, are virtually
identical. Accordingly, we will proceed with our analysis
of the other relevant factors on the basis that the marks
are virtually identical.
In its arguments, applicant places the most emphasis
on the differences between the respective goods and the
channels of trade for the respective goods. Applicant
identifies its goods as “textile wallcoverings not sold
through retail outlets.” The goods identified in the cited
registration are “furniture.”
The differences between the goods themselves are
obvious. The respective goods involve different
manufacturing processes. Although furniture and textile
wallcoverings both “equip” and decorate a room or other
interior space, textile wallcoverings typically require
permanent installation and they are primarily decorative.
Furniture, on the other hand, is typically not installed as
a permanent fixture, and it is primarily functional.
Turning to the trade channels for the respective
goods, applicant has explicitly excluded “retail outlets”
from its trade channels in its identification of goods.
Applicant has also provided an affidavit from Steve Magel,
the vice president of its affiliated group which is
Ser No. 78472460
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responsible for the textile wallcoverings identified in the
application. The affidavit, in relevant part, states:
The wallcoverings sold in connection with the
CROSSPOINT FABRICS mark are not sold or marketed
in any location where furniture is sold or in any
retail outlets. Rather, the wallcoverings are
marketed by distributors in various field
locations such as an office, meeting room, sample
book library and small warehouse. The
wallcoverings sold in connection with the
CROSSPOINT FABRICS mark are essentially sold
through sample and swatch books sold in
warehouses by field salespeople. The
wallcoverings sold in connection with the
CROSSPOINT FABRICS mark are not sold in any
furniture showrooms or stores and are sold by
distributors who do not have furniture showrooms.

Magel Affidavit at page 2.
Applicant argues that the furniture identified in the
cited registration would be sold through retail channels
distinct from the channels applicant identifies in its
application. Contrary to applicant’s claim here, in the
absence of any restriction as to trade channels in the
cited registration, we must and do assume that the
“furniture” identified in the cited registration moves
through all normal trade channels for such goods, including
both wholesale and retail channels.
The Examining Attorney states:
The parties’ goods are related in that they are
used for interior furnishings of a building.
More importantly, the activities surrounding
their marketing are such that confusion as to
origin is likely. Relevant consumers understand
the goods of wallcoverings and furniture to
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emanate from a single source. The record
reflects the examining attorney has provided
market evidence in the form of multiple
advertising websites of various vendors that
clearly show that the goods wallcoverings and
furniture would emanate from a single vendor.
The evidence includes both manufacturers and
distributors of wallcoverings and furniture.

Examining Attorney’s Brief at 4.
The Examining Attorney has not identified or discussed
any of the specific evidence in question. We have reviewed
all of the evidence the Examining Attorney submitted and
find little, if any, support in that evidence for the broad
claim that consumers would understand that the goods
identified in the application and cited registration
emanate from the same source.
First, the Examining Attorney has submitted listings
of results from searches using the Google search engine.
The listings are both brief and truncated and have no
probative value here. See In re Fitch IBCA Inc., 64 USPQ2d
1058, 1060 (TTAB 2002).
The Examining Attorney has also submitted excerpts
from several web sites.
One excerpt is from decoratorswalk.com connected with
F. Schumacher & Co. It includes the following text:
The company is a leading designer and marketer of
a broad range of home furnishings products,
including decorative fabrics, wallpaper,
carpeting and area rugs. The company also
manufactures and markets an array of home
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fashions, including, bedroom ensembles, window
treatments, and decorative accessories.
Recently, F. Schumacher & Co. has expanded into
fine furniture and decorative accent pieces.

The site indicates that F. Schumacher & Co. markets its
products under different brands to different markets, that
is, the “interior design community,” “the decorative home
furnishings retail market” and the “do-it yourself home
improvement retail market.”
Another excerpt is from brunschwig.com which is
associated with Brunschwig & Fils. The company promotes
itself as a “designer of contemporary and historically
inspired decorative fabrics, wallcoverings, trimmings,
upholstered furniture, lamps, tables, mirrors and
accessories.” The company appears to target the high-end
retail market and to sell directly to the public.
Another excerpt is from susansargent.com associated
with Susan Sargent, an interior designer. The site
includes references to choices of wallcoverings and
furniture, as well as rugs, pillows and bedding, books,
ceramics, fabrics and trims, decorative accessories and
paint. The text indicates that Susan Sargent has worked
with “York Studio” to design wallpaper coordinated with her
licensed products. It appears that this designer services
the public directly, that is, at the retail level.
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Another excerpt is from katecrowstoninteriors.com
associated with Kate Crowston Interior Design. The company
appears to service the public directly and, as part of its
interior design services, presents selections of interior
furnishings, including “design fabrics” and “furniture.”
Another excerpt is from wallflowersinteriors.com,
associated with Wallflowers Decorating Studios, and it
states, “We specialize in unique wallcoverings, custom
drapery design, bedding and accessories. Room layouts and
furniture. Our staff are trained professionals and are
capable of assisting you with all of your decorating
needs.” The company is an interior design company
providing service directly to the public.
Another brief excerpt from davisonshowroom.com and
refers to George & Frances Davison, Inc. and “Stephen
Gerould Showroom Consignments” with photos of lamps and a
set of “buttons” to the left including two identified as
“wallcoverings” and another as “furniture.” The precise
nature of the business or its trade channels are not clear
from the excerpt provided.
An excerpt from wallpaperinstaller.com refers to
wallpaper and wallcoverings only and not furniture. The
excerpt from pioneerthinking.com includes an article about
“Cleaning Fabric Wall Coverings” and refers to other
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subjects related to home repair and maintenance; there is
no mention of the sale of either fabric wallcoverings or
furniture.
We find this evidence insufficient to establish that
the goods of applicant and registrant are related. There
are significant differences between the goods themselves,
which we discussed above. To the extent that the evidence
includes entities which deal in both textile wallcoverings
and furniture, there is no clear evidence that the same
mark is applied to both types of goods, such that potential
purchasers would expect that both types of goods emanate
from the same source. Also, it appears that the context
for selling textile wallcoverings, through sample and
swatch books, would lead potential purchasers to perceive
this product as distinct from furniture and other products
for interior decor.
A number of the entities appear to be interior
designers which offer a wide range of products, apparently
from varied sources. There is no evidence that these
parties apply a single mark to the types of goods
identified in the application and cited registration. The
more reasonable inference to be drawn from this evidence is
that customers will recognize that the interior designer
mark relates to their design service and not to the
Ser No. 78472460
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products which the interior designer offers or recommends
in conjunction with rendering that service. We decline to
construe this evidence as establishing that their clients
will perceive that the wide variety of goods they display
or recommend come from a single source. See In re Norfolk
Wallpaper, Inc., 216 USPQ 903, 904 (TTAB 1983).
(installation of wallpaper and retail wallpaper store
services” held not related to “interior and exterior ready-
mixed paints and varnishes and thinners for paints and
varnishes”).
Even in the case of F. Schumacher & Co., which may, in
fact, apply various marks to goods it designs, it is
unclear from the evidence of record whether this company
applies a single mark to textile wallcoverings and
furniture. The excerpt only refers to “wallpaper’ and not
textile wallcoverings, and it indicates that the company
uses different marks in different markets, without
indicating whether any mark is applied to both wallpaper
and furniture?
Likewise in the case of Brunschwig & Fils, the only
other company which appears to design and market its own
products, once again it is unclear whether a single mark is
applied to textile wallcoverings and furniture.
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Furthermore, the method of sale applicant describes
for its textile wallcoverings, that is, through direct sale
and use of sample and swatch books indicates that
applicant’s clients will view the textile wallcoverings
they encounter in this context as distinct from furniture
they may consider purchasing in a different context. In
fact, on this record, we have no reason to conclude that
textile wallcoverings are sold other than through the use
of swatch or sample books as applicant explains. See,
e.g., Crown Wallcovering Corporation v. The Wall Paper
Manufacturers Ltd., 208 USPQ 686 (TTAB 1980). This
circumstance provides further assurance that its customers,
which may include interior design firms or other
individuals of similar knowledge and sophistication, would
not be confused as to the source of the respective goods.
Duron Paint Manufacturing Company, Inc. v. St. Charles
Manufacturing Co., 198 USPQ 187, 190-191 (TTAB 1978).
Finally, based on the record before us, we conclude
that the circumstances related to the sale of the
applicant’s goods and the goods identified in the cited
registration are sufficiently distinct to preclude
confusion. Local Trademarks Inc. v. The Handy Boys Inc.,
16 USPQ2d 1156 (TTAB 1990).
Ser No. 78472460
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Applicant has also made separate arguments that
confusion is not likely because its customers are
sophisticated. We believe that we have addressed this
factor adequately in our discussion of the trade channels
and need not discuss it further.
Applicant also argues that confusion is not likely
because there has been no actual confusion to date. We
consider this factor neutral in this case. Applicant has
not provided any evidence as to the extent of its use, nor
is there any evidence as to registrant’s use, such that we
can determine whether there has been a meaningful
opportunity for confusion to occur. Furthermore, an
applicant’s unsupported claim that there has been no actual
confusion is entitled to little, if any weight in an ex
parte appeal proceeding. Majestic Distilling, 65 USPQ2d at
1205.
In sum, based on the record before us, we conclude
that there is no likelihood of confusion between
applicant’s CROSSPOINT FABRICS mark when used in connection
with “textile wallcoverings not sold through retail
outlets” and the registered CROSSPOINT mark when used in
connection with “furniture” principally because the
respective goods and trade channels for the respective
Ser No. 78472460
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goods differ significantly even though the marks are
virtually identical.
Decision: We reverse the refusal to register
applicant’s mark under Trademark Act Section 2(d).