Consolidated Pipe and Supply Company, Inc.

Trademark Trial and Appeal Board

Jan 6, 2021

88082906 (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
_____

In re Consolidated Pipe and Supply Company, Inc.
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Application Serial No. 88082906
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C. Brandon Browning of Maynard, Cooper & Gale, 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 CPS CONSOLIDATED POWER SUPPLY NUCLEAR
CERTIFIED PRODUCTS and design, reproduced below, for the following services:
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

The description of the mark reads as follows:
The mark consists of the letters “CPS” in the center of three
ellipses forming the shape of an atom to the left of the
words “CONSOLIDATED POWER SUPPLY NUCLEAR
CERTIFIED PRODUCTS.” The word “CONSOLIDATED”
is above the words “POWER SUPPLY.” The words
“POWER SUPPLY” are below the word
“CONSOLIDATED” and above a horizontal line extending
the length of the words “POWER SUPPLY.” The words
“NUCLEAR CERTIFIED PRODUCTS” are below the line.
Color is not claimed as a feature of the mark.
Applicant disclaims the exclusive right to use the terms “Power Supply” and “Nuclear
Certified Products.”
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:

1 Serial No. 88082906 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 the mark anywhere and in
commerce in connection with the services in International Class 40 as of December 31, 2008,
and first use of the mark anywhere and in commerce in connection with the services in
International Class 42 as of 1995.
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● 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:
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

2 Registered January 1, 2013; Combined Sections 8 and 15 Declaration accepted and
acknowledged.
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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.”
I. Preliminary Issue
Applicant attached to its reply brief, for the first time in the prosecution of its
application, ten third-party registrations incorporating the word “Consolidated,” that
has been disclaimed, purportedly to show that the word “Consolidated” “has been
perceived by the U.S. Patent & Trademark Office to be descriptive of a diverse
number of services.”4 The third-party registrations were not timely made of record
and we will not give them any consideration. See Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d) (“The record in the application should be complete prior to the filing of an

3 Registered April 30, 2013; Combined Sections 8 and 15 Declaration accepted and
acknowledged.
4 Applicant’s Reply Brief, p. 3 and Exhibits B-K (10 TTABVUE 3-6 and 12-21).
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appeal. Evidence should not be filed with the Board after the filing of a notice of
appeal.”).
In addition, by attempting to introduce evidence with its reply brief, Applicant has
effectively shielded this material from review and response by the Examining
Attorney. In re Zanova, Inc., 59 USPQ2d 1300, 1302 (TTAB 2001). See also In re
Nieves & Nieves LLC, 113 USPQ2d 1629, 1631 (TTAB 2015) (“Because the Examining
Attorney did not treat the evidence attached to Applicant’s brief or reply brief as being
of record, we will not consider the evidence attached to these briefs if such evidence
was not made of record during prosecution of the application.”).
II. Likelihood of Confusion
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
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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
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)).
A. 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
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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
CPS CONSOLIDATED POWER SUPPLY NUCLEAR
CERTIFIED PRODUCTS and Design mark and the Cited
Marks because the purchasers are knowledgeable
about the specific types of goods and services they
need.5 (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
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).

5 Applicant’s Brief, p. 13 (7 TTABVUE 15).
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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.
B. 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
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).
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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,
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
Serial No. 88082906

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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.6 We list below the relevant third-party websites:
● 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.

6 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 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 Consultation7
● 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
vessels, spent fuel containers, heat exchangers, pressurizers, and machined
components.8
● 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.9

7 May 29, 2019 Office Action (TSDR 7-9).
8 Id. at TSDR 14-16.
9 Id. at TSDR 17-19.
Serial No. 88082906

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Applicant, in its brief, did not address the similarity or dissimilarity and nature
of the goods and services.
1. CONSOLIDATED POWER SUPPLY and design 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.
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.
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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
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.
2. CONSOLIDATED POWER SUPPLY and design vs.
CONSOLIDATED FABRICATORS CONFAB A DIVISION OF
BRADEN MANUFACTURING LLC and design

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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
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
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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.10
C. 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.

10 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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Applicant, in its brief, did not address established, likely-to-continue channels of
trade and classes of consumers.
D. 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
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 service involve nuclear power
Serial No. 88082906

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generation and other power generation systems, the average customer exercises a
high degree of consumer care.
1. CONSOLIDATED POWER SUPPLY and design vs.
CONSOLIDATED CONTROLS.

Applicant is seeking to register the mark reproduced below:

The mark in the cited registration is CONSOLIDATED CONTROLS. The marks are
similar because they both include the word “Consolidated” followed by a descriptive
term (i.e., “Power Supply” or “Controls”).
In assessing Applicant’s mark, the term “Consolidated Power Supply” is the
dominate element of Applicant’s mark because it is displayed in large letters that
catch and retain the viewer’s eye. In addition, in the case of marks consisting of words
and a design, we normally accord the words greater weight because the words make
an impression upon purchasers and consumers remember the words and use them to
request the goods and services. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 200 (Fed. Cir 1983)); Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“Because the impact of the design in
the overall commercial impression is minor when compared with the words, a
consumer viewing Herbko’s mark would attach greater significance to the words
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CROSSWORD COMPANION than to the crossword puzzle design.”); Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir.
1987); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390
(Fed. Cir. 1983); Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424,
1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596
(TTAB 1999)).
The letters “CPS” in the atom design are the initials of “Consolidated Power
Supply” and reinforce the importance of that term.
“Nuclear Certified Products” in a small font is an informational statement
identifying the nature of Applicant’s products and services and consumers will not
perceive the informational statement as a source indicator.
Nevertheless, because we determine the similarity or dissimilarity of the marks
based on the marks in their entireties, “our analysis cannot be predicated on
dissecting the marks into their various components; that is, the decision must be
based on a comparison of the entire marks, not just part of the marks.” In re Ox
Paperboard, LLC, 2020 USPQ2d 10878, *4 (TTAB 2020) (citing Stone Lion,
110 USPQ2d at 1161).
On the other hand, 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 given to a particular feature of a mark,
provided the ultimate conclusion rests on a consideration
of the marks in their entireties. Indeed, this type of
analysis appears to be unavoidable.
In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Serial No. 88082906

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Because Registrant registered CONSOLIDATED CONTROLS in standard
character form, it is not limited to any particular depiction. The rights associated
with a mark in standard characters reside in the wording, and not in any particular
display. Registrant might display CONSOLIDATED CONTROLS in any manner,
regardless of the font style, size, or color. Registrant, might at any time in the future,
display it in a manner similar to the way Applicant depicts CONSOLIDATED
POWER SUPPLY. Viterra, 101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City
Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco, 216
USPQ at 939 (rejecting argument that for purposes of determining whether two
marks are similar, a mark in a typed drawing (equivalent to modern standard
character format) is distinct from such mark in a logo format; “[b]y presenting its
mark in a typed drawing, a difference cannot legally be asserted by that party”
(emphasis in original)).
Because the terms “Power Supply” and “Controls” are descriptive, Applicant and
Registrant have disclaimed the exclusive right to use those terms. Such descriptive
matter has 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 Nat’l Data Corp., 224
USPQ at 751); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
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(disclaimed matter is often “less significant in creating the mark’s commercial
impression”).
Given the importance of the word “Consolidated” in Applicant’s mark and
Registrant’s mark, as well as the 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, 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.11 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,” the initials “CPS” and a design while Registrant’s mark includes the word

11 Applicant’s Brief, pp. 12-13 (7 TTABVUE 14-15).
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“Controls.”12 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 CPS CONSOLIDATED POWER SUPPLY
NUCLEAR CERTIFIED PRODUCTS and design is similar to Registrant’s mark
CONSOLIDATED CONTROLS in their entireties as to appearance, sound,
connotation and commercial impression.
2. CONSOLIDATED POWER SUPPLY and design vs.
CONSOLIDATED FABRICATORS CONFAB A DIVISION OF
BRADEN MANUFACTURING LLC and design

Again, Applicant is seeking to register the mark reproduced below:

We reproduce the mark in the cited registration below:

As noted above, the term “Consolidated Power Supply” is the dominant element
of Applicant’s mark. The dominant element of the registered mark is the term
“Consolidated Fabricators” because it is integrated by design, displayed in bold print

12 Applicant’s Brief, p. 12 (7 TTABVUE 14).
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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
source 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
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).
The dominant elements of the marks are similar because they both include the
word “Consolidated” followed by a descriptive term (i.e., “Power Supply” or
“Fabricators”). CONSOLIDATED POWER SUPPLY and CONSOLIDATED
FABRICATORS have similar, albeit not identical, connotations and commercial
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impressions (i.e., a power supply and manufacturing in a single source).13 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 designs. “Applicant’s Mark consists
of a seven-word, fifty-three letter phrase, while [Registrant’s mark] consist[s] of … a
nine-word, sixty-two letter phrase.”14 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 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 the terms CONSOLIDATED POWER SUPPLY and
CONSOLIDATED FABRICATORS, consumers would be unlikely to rely on those

13 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).
14 Applicant’s Brief, pp. 11-12 (7 TTABVUE 13-14).
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differences because the similarities between the dominant part of Applicant’s mark –
CONSOLIDATED POWER SUPPLY – and the dominant part of Registrant’s mark –
CONSOLIDATED FABRICATORS – outweigh the differences.
We find that Applicant’s mark CPS CONSOLIDATED POWER SUPPLY
NUCLEAR CERTIFIED PRODUCTS and design 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.
E. Any other established fact probative of the effect of use (i.e.,
Applicant’s cancelled prior registration).

Applicant claims ownership of cancelled Registration No. 3812760 for CPS
CONSOLIDATED POWER SUPPLY NUCLEAR CERTIFIED PRODUCTS and
design, reproduced below, 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 42.15

The registration registered on July 6, 2010 and the USPTO cancelled that
registration on February 7, 2017, because Applicant failed to file a Section 8
declaration of use. Both cited registrations registered in 2013. Thus, Applicant’s
cancelled prior registration and the cited registrations coexisted for four years.

15 May 3, 2019 Response to an Office Action (TSDR 74-75).
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Certainly, if no likelihood of confusion existed between
Applicant’s U.S. Registration No. 3,812,760 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.16
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
Examining Attorney’s prior determination as to registrability.”). See generally In re

16 Applicant’s Brief, p. 14 (7 TTABVUE 16).
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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.
F. 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 CPS CONSOLIDATED POWER SUPPLY NUCLEAR CERTFIED
PRODUCTS and design 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
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CONSOLIDATED FABRICATORS CONFAB A DIVISION OF 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 CPS
CONSOLIDATED POWER SUPPLY NUCLEAR CERTIFIED PRODUCTS and
design are affirmed.