Consolidated Pipe and Supply Company, Inc.

Trademark Trial and Appeal Board

Jan 6, 2021

88082797 (T.T.A.B. Jan. 6, 2021)

Mailed: January 6, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Consolidated Pipe and Supply Company, Inc.
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Application Serial No. 88082797
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C. Brandon Browning of Maynard, Cooper & Gayle, PC,
for Consolidated Pipe and Supply Company, Inc.

Howard B. Levine, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Kuhlke, Bergsman and Coggins, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Consolidated Pipe and Supply Company, Inc. (Applicant) seeks registration on the
Principal Register of the mark CONSOLIDATED POWER SUPPLY, in standard
character form, for the services listed below:
Custom fabrication of power generation plant components
for others, in International Class 40; and
Design, engineering, research, development and testing
services in the field of pressurizer heaters, ultrasonic
testing, liquid penetration testing, corrosion testing,
tensile testing, hardness testing, hydro testing,
radiography testing, eddy current testing, chemical
analysis, grain size determination, angles and channels,
bars and rods, piping and tubular products, valves, fittings,
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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fasteners and flanges, sheets and plates, castings, forgings,
ingots and billets, HDPE pipe, reinforcing steel and
structural beams, wire, hard facing/wear surfacing
materials, valve components, pressure boundary repair,
and structural steel embeds for technological applications
in the field of energy, in International Class 42.1
Applicant disclaims the exclusive right to use the term “Power Supply.”
The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), based on the two registered marks, owned
by different entities, listed below:
● Registration No. 4266934 for the mark CONSOLIDATED CONTROLS, in
standard character form, for the goods and services below:
Instrument and control systems for nuclear power plants
comprising microprocessors, computer software for
controlling nuclear power plant operations, and computer
hardware; pressure transmitters; pump speed sensors;
voltage regulators; video display units in the nature of
touch screen user interfaces for controlling nuclear power
plant operations, in International Class 9; and
Designing of instrument and control systems for nuclear
power plants; testing of instrument and control systems for
nuclear power plants, in International Class 42.2
Registrant disclaims the exclusive right to use the word “Controls.”
● Registration No. 4327075 for the mark CONSOLIDATED FABRICATORS
CONFAB A DIVISION OF BRADEN MANUFACTURING LLC and design,
reproduced below, for the goods and services listed below:

1 Serial No. 88082797 filed August 17, 2018, under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), based on Applicant’s claim of first use of its mark in connection with the
services in both classes as of 1982.
2 Registered January 1, 2013; Combined Sections 8 and 15 Declaration accepted and
acknowledged.
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Structural accessory systems for gas turbine engines not
for land vehicles, namely, fluid systems comprising bases,
pumps, valves, fans piping, and controls; exciters for gas
turbine engines not for land vehicles; collectors being
structural parts for gas turbine engines not for land
vehicles; enclosures being structural parts for gas turbine
engines not for land vehicles; intake isolation dampers
being structural parts for gas turbine engines not for land
vehicles; inlet filter houses being structural parts for gas
turbine engines not for land vehicles; filtration and
pressurization skids being structural parts for gas turbine
engines not for land vehicles; gas turbine engine
combustion system structural parts, not for land vehicles,
namely, seals, brackets, spacers, shims, nozzles, in
International Class 7; and
Custom metal fabrication to the order and specification of
others in the power generation, naval propulsion and
machine tools industries, in International Class 40.3

The description of the mark reads as follows:
Color is not claimed as a feature of the mark. The mark
consists of the wording “CONSOLIDATED
FABRICATORS” with the “C” and “F” being connected by
a horizontal line. Above the word “FABRICATORS” is the
wording “CONFAB,” and below the wording
“CONSOLIDATED FABRICATORS” is the wording “A
DIVISION OF BRADEN MANUFACTURING LLC.”
Registrant disclaims the exclusive right to use the terms “Fabricators,” “A Division
Of,” and “LLC.”

3 Registered April 30, 2013; Combined Sections 8 and 15 Declaration accepted and
acknowledged.
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We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont,
177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight
afforded to each factor depends on the circumstances. Any single factor may control
a particular case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d
994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1406-
07).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA
1973). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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
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marks.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
I. The conditions under which and customers to whom sales are made.
As noted above, the goods and services at issue involve power generation plant
components, nuclear power plants, gas turbine engines, and power generation. Thus,
Applicant contends that the relevant consumers of these goods and services exercise
a high degree of purchaser care.
In addition to the facts that the parties’ respective marks
are different and have different connotations, the buyers of
Applicant’s Services and the goods and services of the Cited
Registrations are companies that generate power including
nuclear power. These sophisticated purchasers are not
likely to be confused as to source by the use of Applicant’s
CONSOLIDATED POWER SUPPLY mark and the marks
of the Cited Registrations because the purchasers are
knowledgeable about the specific types of goods and
services they need.4 (Emphasis added).
We agree that the purchase of power generation plant components, nuclear power
plants, gas turbine engines, and power generation systems is something for which
prospective purchasers have knowledge. As Applicant notes, “the purchasers are
knowledgeable about the specific types of goods and services they need.” The issue
here, of course, is not whether purchasers would confuse the goods and services of

4 Applicant’s Brief, p. 13 (7 TTABVUE 15).
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Applicant and the Registrants, but rather whether there is a likelihood of confusion
as to the source of these goods and services. See Recot Inc. v. M.C. Becton, 214 F.3d
1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question
are different from, and thus not related to, one another in kind, the same goods can
be related in the mind of the consuming public as to the origin of the goods.”); In re I-
Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB 2018) (“the test is not whether
consumers would be likely to confuse these goods, but rather whether they would be
likely to be confused as to their source.”); In re Cook Med. Tech. LLC, 105 USPQ2d
1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d
1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
Applicant did not provide any evidence regarding the purchasing process and the
role trademarks play, if any. Case law provides that even careful purchasers are not
immune from source confusion, particularly when the marks are similar and the
goods and services are related or complementary. See In re Research Trading Corp.,
793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human
memories even of discriminating purchasers ... are not infallible.”)); In re Total
Quality Grp. Inc., 51 USPQ2d 1474 (TTAB 1999). Sophistication of buyers and
purchaser care are relevant considerations, but are not controlling on this factual
record.
II. The similarity or dissimilarity and nature of the goods and services.
In analyzing whether goods and services are related, it is not necessary that
Applicant’s and Registrants’ goods and services be similar or competitive in character
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to support a holding of likelihood of confusion; it is sufficient for such purposes that
Applicant’s and Registrants’ goods and services are related in some manner or that
conditions and activities surrounding marketing of these goods and services are such
that they would or could be encountered by same persons under circumstances that
could, because of similarities of marks used with them, give rise to the mistaken belief
that they originate from or are in some way associated with the same producer. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
Cir. 2012).
We must consider the goods and services as Applicant and the Registrants
describe them in the application and registrations. Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014);
Octocom Sys, Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the identification of goods set forth
in the application regardless of what the record may reveal as to the particular nature
of an applicant’s goods, the particular channels of trade or the class of purchasers to
which the sales of goods are directed.”); Paula Payne Prods. v. Johnson Publ’g Co.,
473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue
of likelihood of confusion must be decided on the basis of the respective descriptions
of goods”).
In assessing the descriptions of goods and services, we do not read limitations into
them. i.am.symbolic, 123 USPQ2d at 1748; Squirtco v. Tomy Corp., 697 F.2d 1038,
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216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific limitation and nothing in
the inherent nature of Squirtco’s mark or goods that restricts the usage of SQUIRT
for balloons to promotion of soft drinks. The Board, thus, improperly read limitations
into the registration”); In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We
have no authority to read any restrictions or limitations into the registrant’s
description of goods.”). In an ex parte proceeding, we are required to give “full sweep”
to Applicant’s and Registrants’ identified goods and services, Paula Payne Prods. Co.,
177 USPQ at 77-78, such that we must presume Applicant’s and Registrants’ goods
and services encompass all goods and services of the nature and type identified in the
application and registrations. See In re Solid State Design Inc., 125 USPQ2d 1409,
1413-14 (TTAB 2018) (where the goods in an application or registration are broadly
described, they are deemed to encompass all the goods of the nature and type
described therein); In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137
(TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
To show that the goods and services are related, the Examining Attorney
submitted excerpts from third-party websites showing the third parties advertising
the activities and products in Applicant and Registrants’ descriptions of goods and
services.5 We list below the relevant third-party websites:

5 Citations to the examination record refer to the USPTO’s Trademark Status and Document
Retrieval system (TSDR) by page number in the downloadable .pdf format.
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● Westinghouse (westinghousenuclear.com) advertising nuclear components
manufacturing and engineering.
Westinghouse is one of the world’s leading producers of
large components for nuclear power plants, complete with
Manufacturing and Testing Capabilities for Reactor
Vessels Internals, Control Rod Drive Mechanisms, Reactor
Coolant Pumps, and related products at the Newington,
N.H., facility.
Westinghouse has more than 40 years of experience
providing very large to very small, safety and non-safety
related, mechanical, structural, and electro-mechanical
components from Newington, which operates under a
robust quality assurance programs meeting the ASME
NQA-1 and 10CRF50, Appendix B.
___
Westinghouse not only produces equipment for new
nuclear power plants and replacement parts for operating
nuclear units, it also maintains centers of excellence and
offers services in the following areas
•Heavy & Light Machining
•Manufacturing, Welding & Fabrication
•Testing & Non-Destructive Examination
•Material Supply & Commercial Dedication
•Plant Outage Rapid Component Supply
•Design for Manufacturability Consultation6
● BWXT Technologies, Inc. (bwxt.com) advertises commercial nuclear
components, including diversified manufacturing services, custom engineering and
manufacturing support for steam generators, reactor vessel closure heads, reactor

6 May 29, 2019 Office Action (TSDR 7-9).
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vessels, spent fuel containers, heat exchangers, pressurizers, and machined
components.7
● Hitachi (nuclear.gepower.com) advertising nuclear reactor parts, including
control rod blades and drives, hydraulic control units, and reactor internal
components. In addition, Hitachi supplied design improvements, engineering support
to address reactor component performance issues and the capability to customize
parts and services.8
Applicant, in its brief, did not address the similarity or dissimilarity and nature
of the goods and services.
A. CONSOLIDATED POWER SUPPLY vs. CONSOLIDATED CONTROLS

Applicant is seeking to register CONSOLIDATED POWER SUPPLY for the goods
and services listed below:
Custom fabrication of power generation plant components
for others, in International Class 40; and
Design, engineering, research, development and testing
services in the field of pressurizer heaters, ultrasonic
testing, liquid penetration testing, corrosion testing,
tensile testing, hardness testing, hydro testing,
radiography testing, eddy current testing, chemical
analysis, grain size determination, angles and channels,
bars and rods, piping and tubular products, valves, fittings,
fasteners and flanges, sheets and plates, castings, forgings,
ingots and billets, HDPE pipe, reinforcing steel and
structural beams, wire, hard facing/wear surfacing
materials, valve components, pressure boundary repair,
and structural steel embeds for technological applications
in the field of energy, in International Class 42.

7 Id. at TSDR 14-16.
8 Id. at TSDR 17-19.
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We set forth below Registrant’s description of goods and services for the mark
CONSOLIDATED CONTROLS:
Instrument and control systems for nuclear power plants
comprising microprocessors, computer software for
controlling nuclear power plant operations, and computer
hardware; pressure transmitters; pump speed sensors;
voltage regulators; video display units in the nature of
touch screen user interfaces for controlling nuclear power
plant operations, in International Class 9; and
Designing of instrument and control systems for nuclear
power plants; testing of instrument and control systems for
nuclear power plants, in International Class 42.
Applicant’s “custom fabrication of power generation plant components for others”
is broad enough to include the custom fabrication of Registrant’s “instrument and
control systems for nuclear power plants,” “pump speed sensors; voltage regulators;
video display units in the nature of touch screen user interfaces for controlling
nuclear power plant operations.” Registrant’s products fall within the penumbra of
power generation plant components. The Federal Circuit and the Board have often
found that products, on one hand, and services involving those products, on the other
hand, are related. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025,
1026 (Fed. Cir. 1988) (furniture and general merchandise store services are related);
In re RSI Sys. LLC, 88 USPQ2d 1445, 1449 (TTAB 2008) (imaging services and
software for processing images are related); In re Thomas, 79 USPQ2d 1021 (TTAB
2006) (jewelry store services and jewelry are related).
Likewise, Applicant’s “design, engineering, research, development and testing
services [of various components] for technological applications in the field of energy”
is similar or related to Registrant’s design and testing of instrument and control
Serial No. 88082797

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systems for nuclear power plants because both services involve designing and testing
components and systems in the energy field.
We find that Applicant’s CONSOLIDATED POWER SUPPLY services and
Registrant’s CONSOLIDATED CONTROLS goods and services are related.
B. CONSOLIDATED POWER SUPPLY vs. CONSOLIDATED
FABRICATORS CONFAB A DIVISION OF BRADEN
MANUFACTURING LLC and design

Again, Applicant is seeking to register CONSOLIDATED POWER SUPPLY for
the goods and services listed below:
Custom fabrication of power generation plant components
for others, in International Class 40; and
Design, engineering, research, development and testing
services in the field of pressurizer heaters, ultrasonic
testing, liquid penetration testing, corrosion testing,
tensile testing, hardness testing, hydro testing,
radiography testing, eddy current testing, chemical
analysis, grain size determination, angles and channels,
bars and rods, piping and tubular products, valves, fittings,
fasteners and flanges, sheets and plates, castings, forgings,
ingots and billets, HDPE pipe, reinforcing steel and
structural beams, wire, hard facing/wear surfacing
materials, valve components, pressure boundary repair,
and structural steel embeds for technological applications
in the field of energy, in International Class 42.
We set forth below the description of goods and services for Registrant’s mark
CONSOLIDATED FABRICATORS CONFAB A DIVISION OF BRADEN
MANUFACTURING LLC and design below:
Structural accessory systems for gas turbine engines not
for land vehicles, namely, fluid systems comprising bases,
pumps, valves, fans piping, and controls; exciters for gas
turbine engines not for land vehicles; collectors being
structural parts for gas turbine engines not for land
vehicles; enclosures being structural parts for gas turbine
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engines not for land vehicles; intake isolation dampers
being structural parts for gas turbine engines not for land
vehicles; inlet filter houses being structural parts for gas
turbine engines not for land vehicles; filtration and
pressurization skids being structural parts for gas turbine
engines not for land vehicles; gas turbine engine
combustion system structural parts, not for land vehicles,
namely, seals, brackets, spacers, shims, nozzles, in
International Class 7; and
Custom metal fabrication to the order and specification of
others in the power generation, naval propulsion and
machine tools industries, in International Class 40.
Applicant’s “custom fabrication of power generation plant components for others”
encompasses Registrant’s “custom metal fabrication to the order and specification of
others in the power generation … industries.” The “custom fabrication of power
generation plant components” includes the “custom metal fabrication … in the power
generation … industr[y].”
Applicant’s “design, engineering, research, development and testing services in
the field of … liquid penetration testing, corrosion testing … hydro testing, eddy
current testing… piping and tubular products, valves, fittings, fasteners and flanges,
… for technological applications in the field of energy” is broad enough to include
design, engineering, research, development and testing services for Registrant’s
“structural accessory systems for gas turbine engines … namely, fluid systems
comprising bases, pumps, valves, fans piping, and controls” because gas turbine
engines may be used in the energy generation field.9

9 The Doosan website (doosan.com) advertises that “Doosan Heavy Industries & Construction
owns core technologies and ongoing performance with the three core components of the power
generation business – boilers, turbines and generators.” May 29, 2019 Office Action (TSDR
10 and 12).
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III. Established, likely-to-continue channels of trade and classes of
consumers.
The third-party Internet evidence discussed in the previous section shows that the
goods and services at issue are offered in the same channels of trade to the same
classes of consumers.
Applicant, in its brief, did not address established, likely-to-continue channels of
trade and classes of consumers.
IV. The similarity or dissimilarity of the marks.
We now turn to the DuPont factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC,
126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (quoting Coach Servs., 101 USPQ2d at 1721). The proper focus
is on the recollection of the average customer, who retains a general rather than
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specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc.,
438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); Inter IKEA Sys. B.V. v. Akea, LLC,
110 USPQ2d 1734, 1740 (TTAB 2014); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1438 (TTAB 2012). Inasmuch as the goods and services involve nuclear power
generation and other power generation systems, the average customer exercises a
high degree of consumer care.
A. CONSOLIDATED POWER SUPPLY vs. CONSOLIDATED CONTROLS
Applicant’s mark CONSOLIDATED POWER SUPPLY is similar to Registrant’s
mark CONSOLIDATED CONTROLS because they both start with the word
“Consolidated” followed by descriptive terms (i.e., “Power Supply” or “Controls”) that
Applicant and Registrant have disclaimed.
It is well settled that disclaimed, descriptive matter may have less significance in
likelihood of confusion determinations. See In re Detroit Ath. Co., 903 F.3d 1297, 1305,
128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., 41 USPQ2d at
1533-34); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846
(Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985)); In re Code Consultants, Inc., 60 USPQ2d 1699,
1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s
commercial impression”). There is nothing improper in stating that, for rational
reasons, we have given more or less weight to a particular feature of a mark, such as
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a common dominant element, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Nat’l Data Corp., 224 USPQ at 752.
Further reinforcing the importance of the word “Consolidated” in the marks is its
location as the first part of the marks. The Federal Circuit has often said the lead
element in a mark has a position of prominence because consumers are likely to notice
and remember those elements of the mark. See Detroit Ath. Co., 128 USPQ2d at 1049
(finding “the identity of the marks’ two initial words is particularly significant
because consumers typically notice those words first”); Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005) (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because
“veuve” is the first word in the mark and the first word to appear on the label);
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the
identical lead word).
Given the similarities between the marks and relatedness of the goods and
services, consumers familiar with the marks are likely mistakenly to believe that
Registrant’s goods and services sold under the CONSOLIDATED CONTROLS mark
are from the instrument controls division of Applicant’s CONSOLIDATED POWER
SUPPLY goods and services. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d at
1271 (VANTAGE TITAN “more likely to be considered another product from the
previously anonymous source of TITAN medical diagnostic apparatus, namely,
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medical ultrasound devices”); Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069,
2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks
may believe that applicant’s mark is a variation of opposer’s mark that opposer has
adopted for use on a different product.”). Accordingly, we disagree with Applicant’s
contention that the marks engender different connotations.10 While the connotations
and commercial impressions engendered by the marks are not identical, consumers
are likely to perceive Applicant’s mark as a variant of Registrant’s mark.
Applicant argues that the marks look and sound different because the only
similarity is the word “Consolidated.” Applicant’s mark includes the term “Power
Supply” while Registrant’s mark includes that word “Controls.”11 However, in this
case, where the word “Consolidated” is the dominant part of both marks, the
peripheral differences fail to distinguish the marks. See In re Denisi, 225 USPQ 624,
624 (TTAB 1985) (“[I]f the dominant portion of both marks is the same, then confusion
may be likely notwithstanding peripheral differences.”).
We find that Applicant’s mark CONSOLIDATED POWER SUPPLY is similar to
Registrant’s mark CONSOLIDATED CONTROLS in their entireties as to
appearance, sound, connotation and commercial impression.
B. CONSOLIDATED POWER SUPPLY vs. CONSOLIDATED
FABRICATORS CONFAB A DIVISION OF BRADEN
MANUFACTURING LLC and design

Applicant’s mark CONSOLIDATED POWER SUPPLY is similar to Registrant’s

10 Applicant’s Brief, pp. 12-13 (7 TTABVUE 14-15).
11 Applicant’s Brief, p. 12 (7 TTABVUE 14).
Serial No. 88082797

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mark CONSOLIDATED FABRICATORS CONFAB A DIVISION OF BRADEN
MANUFACTURING LLC and design, reproduced below, because both marks start
with the word “Consolidated” followed by a descriptive term (i.e., “Power Supply” or
“Fabricators”) that Applicant and Registrant have disclaimed.

The term “Consolidated Fabricators” is the dominant element of Registrant’s
mark because it is integrated by design, displayed in bold print, and is the largest
part of the mark. The term “Confab” is a shortened version “Consolidated
Fabricators” that highlights or reinforces “Consolidated Fabricators.”
CONSOLIDATED FABRICATORS catches and holds the viewer’s eyes.
The phrase “A Division of Braden Manufacturing LLC” provides additional
information regarding the source of the goods or services, but the addition of this
modifier does not decrease the similarity of the marks because consumers may
mistakenly believe that CONSOLIDATED [followed by a descriptive term] goods and
services emanate from a single source and that source is a division of Braden
Manufacturing LLC. See In re Chica, Inc., 84 USPQ2d 1845 (TTAB 2007) (CORAZON
BY CHICA and design is similar to CORAZON both for jewelry); Saks & Co. v. TFM
Indus. Inc., 5 USPQ2d 1762, 1764 (TTAB 1987) (FOLIO BY FIRE ISLAND is similar
to FOLIO); In re Christian Dior, 225 USPQ 533, 535 (TTAB 1985) (LE CACHET DE
DIOR is similar to CACHET); In re Riddle, 225 USPQ 630 (TTAB 1985) (RICHARD
PETTY’S ACCUTUNE (and design) for automotive service centers is similar to
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ACCUTUNE for automotive testing equipment); In re C.F. Hathaway Co., 190 USPQ
343 (TTAB 1976) (HATHAWAY GOLF CLASSIC for knitted sports shirts is similar
to GOLF CLASSIC for men’s hats).
Applicant’s mark CONSOLIDATED POWER SUPPLY and the dominant element
of Registrant’s mark, CONSOLIDATED FABRICATORS, have similar, albeit not
identical, connotations and commercial impressions (i.e., a power supply and
manufacturing in a single source).12 Thus, the relevant consumers may mistakenly
believe that CONSOLIDATED FABRICATORS is the manufacturing arm of
CONSOLIDATED POWER SUPPLY.
Applicant asserts that the marks look and sound different because Applicant and
Registrant’s marks include different words and Applicant’s mark consists of nine
syllables while Registrant’s mark consists of 26 syllables. If consumers were to study
the marks, the differences in appearance, sound, connotation and commercial
impression might become apparent. However, purchasers simply do not take the time
to study the marks and see the differences. B.V.D. Licensing Corp. v. Body Action
Design, Inc., 846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988) (the purchasing
public does not indulge in recognitional contortions but sees things as they are). As

12 The RANDOM HOUSE UNABRIDGED DICTIONARY (2020) (dictionary.com) (accessed December
28, 2020) defines “consolidated” as “brought together into a single whole.” The Board may
take judicial notice of dictionary definitions, including online dictionaries that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d
594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104
n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
Merriam-Webster.com defines “fabricate,” inter alia, as “create,” “construct,” and
“manufacture specifically.” May 3, 2010 Response to Office Action (TSDR 57).
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discussed above, Applicant did not submit any evidence regarding the purchasing
process. Thus, we have no evidence regarding how prospective purchasers encounter
Applicant’s mark and Registrant’s mark. Even if consumers took the time to dissect
the marks, because of the similarity of CONSOLIDATED POWER SUPPLY and
CONSOLIDATED FABRICATORS, they would be unlikely to rely on those
differences because the similarities between Applicant’s mark CONSOLIDATED
POWER SUPPLY and Registrant’s mark CONSOLIDATED FABRICATORS
CONFAB and design outweigh the differences.
We find that Applicant’s mark CONSOLIDATED POWER SUPPLY and
Registrant’s mark CONSOLIDATED FABRICATORS CONFAB A DIVISION OF
BRADEN MANUFACTURING LLC and design are similar in their entireties as to
appearance, sound, connotation and commercial impression.
V. Any other established fact probative of the effect of use (i.e.,
Applicant’s cancelled prior registration).
Applicant claims ownership of cancelled Registration No. 3812759 for
CONSOLIDATED POWER SUPPLY for “custom fabrication of power generation
plant components for others,” in International Class 40, and “design, engineering,
research, development and testing services in the field of energy,” in International
Class 42.13 The registration registered on July 6, 2010 and the USPTO cancelled that
registration on February 10, 2017, because Applicant failed to file a Section 8

13 May 3, 2019 Response to an Office Action (TSDR 74-75).
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declaration of use. Both cited registrations registered in 2013. Thus, Applicant’s
cancelled prior registration and the cited registrations coexisted for four years.
Certainly, if no likelihood of confusion existed between
Applicant’s U.S. Registration No. 3,812,759 for the mark
CONSOLIDATED POWER SUPPLY for custom
fabrication of power generation plant components for
others, and design engineering, research, development and
testing services in the field of energy and the Cited
Registrations at the times of filing of the respective Cited
Applications, no likelihood of confusion exists between the
Applicant’s Mark and the marks of the Cited
Registrations.14
For whatever reason, the marks in the cited registrations registered over
Applicant’s prior registration. However, Applicant is not automatically entitled to a
return to the status quo. As the Board stated in In re Ginc UK Ltd., 90 USPQ2d 1472,
1480 (TTAB 2007):
Nor does applicant’s cancelled registration justify
registration of its current application. A cancelled
registration is not entitled to any of the statutory
presumptions of Section 7(b) of the Trademark Act. See,
e.g., In re Hunter Publishing Company, 204 USPQ 957, 963
(TTAB 1979) (cancellation “destroys the Section [7(b)]
presumptions and makes the question of registrability ‘a
new ball game’ which must be predicated on current
thought.”).

See also In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1206 (TTAB 2009); In re Perez,
21 USPQ2d 1075, 1077 (TTAB 1991) (Section 2(d) refusal affirmed even though the
cited registration had not been cited against applicant’s previous registration, now
expired, of the same mark for the same goods; “[W]e are, of course, not bound by an

14 Applicant’s Brief, p. 14 (7 TTABVUE 16).
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Examining Attorney’s prior determination as to registrability.”). See generally In re
Omega SA, 404 F.3d 1362, 83 USPQ2d 1541 (Fed. Cir. 2007); In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001).
In short, the fact that Applicant’s mark was previously registered does not
automatically justify re-registration of Applicant’s mark, if the evidence as a whole
in the current application establishes that a likelihood of confusion exists. In a similar
case, the Board noted:
We can only speculate as to why the cited registration
issued over applicant’s predecessor’s now-cancelled
registration. In any event, even when one registration
issues over the other and both exist side-by-side for some
period of time (in this case about six years), that is one
element “which is placed in the hopper with other matters
which ordinarily are considered in resolving the question
of likelihood of confusion, but which is not in the least
determinative of said issue.” In re Trelleborgs
Gummifabriks Aktiebolag, 189 USPQ 106, at 107 (TTAB
1975). In this case, we find that the factors of the identical
goods and highly similar marks far outweigh this point in
our consideration of likelihood of confusion as a whole.

In re Kent-Gambore Corp., 59 USPQ2d 1373, 1377 (TTAB 2001).

We find Applicant’s cancelled prior registration is a neutral factor.
VI. Conclusion
Because the marks are similar, the goods and services are related and are offered
in the same channels of trade to the same classes of consumers, we find that
Applicant’s mark CONSOLIDATED POWER SUPPLY for the identified services in
International Classes 40 and 42 is likely to cause confusion with the registered mark
CONSOLIDATED CONTROLS for the goods and services identified in International
Classes 9 and 42 and CONSOLIDATED FABRICATORS CONFAB A DIVISION OF
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BRADEN MANUFACTURING LLC and design for the goods and services identified
in International Classes 7 and 40.
Decision: The Section 2(d) refusals to register Applicant’s mark
CONSOLIDATED POWER SUPPLY are affirmed.