Daniels Pull Plow, Inc.v.Biggs Mfg., Inc. and P.O.R. Inc.

Trademark Trial and Appeal Board

Apr 17, 2001

No. 91112383 (T.T.A.B. Apr. 17, 2001)

4/17/01
Drost
Opposition No. 112,383
Daniels Pull Plow, Inc.
v.
Biggs Manufacturing, Inc.
and
P.O.R. Incorporated1
(Joined as party defendant)
Before Quinn, Walters and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
P.O.R. Incorporated (applicant) filed an application to
register the mark SPEEDHITCH (typed drawing) for “vehicle
towing accessories, namely hitches and ball mounts” in
International Class 12.2
Daniel Pull Plow, Inc. (opposer) has opposed the
registration of applicant’s mark on the ground that
1 P.O.R. Incorporated filed a declaration in which it states that
it acquired the rights to this trademark application by
assignment from Hitchquick, Inc. The declaration further states
that Hitchquick, Inc. was assigned rights in this trademark
application by Biggs Manufacturing, Inc.
2 Serial No. 75/331,895, filed July 28, 1997, alleging a date of
first use and a date of first use in commerce of December 17,
1996.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
2900 Crystal Drive
Arlington, Virginia 22202-3513
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Opposition No. 112,383
2
applicant’s mark is likely to cause confusion with its
unregistered mark SPEEDHITCH for a mechanism that attaches a
rear snow plow to the back of a vehicle.
On July 31, 2000, opposer filed a motion for summary
judgment claiming that there were no material facts in
dispute. It alleged that the marks are identical; the goods
are the same; the channels of trade are the same; and it has
priority of use. In regard to the goods, opposer alleges
that:
Applicant’s application is for hitches and ball mounts.
Daniels also sells hitches. The parties’ goods are the
same (hitches) and are used for the same purpose (for
towing). Under these circumstances, where the marks
are identical and the goods are the same, confusion is
likely.
Motion, p.2.
On August 28, 2000, applicant filed an opposition to
opposer’s motion for summary judgment. Applicant does not
dispute opposer’s priority. Opposition, p.1 (“While P.O.R.
has no basis for disputing opposer’s priority date of first
use of SPEEDHITCH in connection with its products, P.O.R.
maintains that genuine issues of material exist as to the
issue of likelihood of confusion”); Opposition, p.2 (“P.O.R.
has no basis for objecting to the entry of partial summary
judgment on the issue of priority in this opposition
proceeding”).
Applicant alleges that there are material facts in
dispute because:
Opposition No. 112,383
3
However, even a cursory glance at the parties’ product
literature shows very different products. Daniels is
in the business of selling rear-mounted snow plows for
four-wheel drive vehicles and offers its SPEEDHITCH
device as a means for mounting the plows to the
vehicles. Nowhere does Daniels’ product literature
show or discuss use of Daniels’ products for trailers
or trailering. Applicant sells a ball and hitch to be
attached to vehicles specifically for the purpose of
towing trailers. Nowhere does the product literature
show or discuss use of P.O.R.’s hitch with a snow plow.
Opposition, p.7.
Applicant further argues that opposer’s product is not
a substitute for a trailer hitch as is its product, that its
customers and channels of trade are different, that there is
a lack of actual confusion, and that there are other hitch
marks registered that have a similar connotation.
Furthermore, applicant’s declarant states that “Daniels’
SPEEDHITCH product consists of a mount that is attached to a
hitch that is already mounted to a vehicle, and is not
itself a hitch.” Porter declaration, p.3.
Opposer responds that applicant’s goods are not limited
to a particular type of hitch in the identification of goods
in its application. The dictionary definition supports a
broader definition of the word “hitch.” Opposer also points
out that the same dealers that sell snow plows also sell
hitches. Opposer also argues that:
[P]urchasers of Daniels’ SPEEDHITCH are also likely to
purchase hitches because the Daniel SPEEDHITCH is
designed to be used in connection with a hitch. ‘The
Daniels Pull Plow fits virtually any 4WD vehicle
equipped with a 2” receiver-type-hitch. Thanks to the
patented SPEEDHITCH™, hook-up is fast and easy.
Opposition No. 112,383
4
Reply, pp.4-5.
MOTION FOR SUMMARY JUDGMENT
The Board may grant summary judgment for opposer “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); NCTA v. American
Cinema Editors, 937 F.2d 1572, 19 USPQ2d 1424, 1427 (Fed.
Cir. 1991). The nonmoving party, applicant in this case,
“need only present evidence from which a jury might return a
verdict in [its] favor.” American v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986). All reasonable inferences to be
drawn from the facts must be viewed in the light most
favorable to the nonmoving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
LIKELIHOOD OF CONFUSION
Because applicant concedes that opposer has priority
(Opposition, p.2), the issue in this case is whether
opposer’s mark SPEEDHITCH when used on its mechanism that
mounts a rear snow plow to a vehicle is confusingly similar
to applicant’s mark SPEEDHITCH for goods identified as
“vehicle towing accessories, namely hitches and ball
mounts.” Inasmuch as this is a likelihood of confusion
case, we analyze this issue in light of the factors set out
Opposition No. 112,383
5
in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
1361, 177 USPQ 563, 567 (CCPA 1973). Not all of the du Pont
factors are applicable in every case. In re Dixie
Restaurants, 105 F.3d 1405, 1406, 41 USPQ2d 1531, 1533 (Fed.
Cir. 1997).
In this case, the first factor that we consider is
whether the marks are similar. Both applicant’s mark and
opposer’s mark consist of the identical word SPEEDHITCH.
Applicant's mark is depicted in a typed drawing and
opposer’s mark is commonly used without any special styling.
Applicant admits that this factor favors opposer.
Opposition, p.7.
Next, we look at the relatedness of the goods. In re
Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB
1983) (“If the marks are the same or almost so, it is only
necessary that there be a viable relationship between the
goods or services in order to support a holding of
likelihood of confusion."). To determine whether the goods
are related, we must look to the identification of goods as
they are defined in the application. See Octocom Systems,
Inc. v. Houston Computers Services 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
Opposition No. 112,383
6
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”). See
also Canadian Imperial Bank of Commerce v. Wells Fargo Bank,
811 F.2d 1490, 1493, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987)
(“it was [applicant] that sought to register its mark for
the broad range of services, and it is on that basis that
the Board correctly determined the likelihood of confusion
issue”); Paula Payne Products v. Johnson Publishing 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”).
While applicant’s goods are identified broadly as
“vehicle towing accessories, namely hitches and ball
mounts,” it bases many of its arguments against granting the
motion for summary judgment on the differences between the
goods as actually used:
Looking first at the parties’ products, paragraph 5 of
the Daniels Declaration describes the products of both
parties as “hitches.” Yet, the exhibits submitted by
the parties show the products to be very different. As
shown by the product literature attached hereto as
Exhibit 1, P.O.R.’s product literature is a hitch to be
attached to vehicles specifically for the purpose of
towing trailers. The product literature pictures
trailers being towed and discusses the difficulties
generally encountered in hitching a trailer to a
vehicle using a traditional ball hitch mount. Nowhere
does the product literature discuss use of P.O.R.’s
hitch with a snow plow.
Opposition No. 112,383
7
Porter Declaration, pp.2-3.
While applicant’s goods may be used more narrowly than
defined in the application, we are bound to consider the
goods as so defined in the application. Therefore, the fact
that applicant may only be using its hitches for towing
trailers does not restrict its identification of goods that
is not so limited. Indeed, applicant’s hitches include
hitches that could be used to attach a rear snow plow to a
vehicle.
On the other hand, opposer has not introduced any
evidence that it has any application or registration for its
mark. Therefore, because reasonable inferences must be
viewed in the light most favorable to the nonmoving party,
for the purposes of this motion we will consider opposer’s
goods to be only for a mechanism for attaching a rear snow
plow to a vehicle. Opposer’s goods are described as
follows: “DANIELS™ PULL PLOW – As you can tell by the name
of this product, Daniels Pull Plow is a rear mounted plow
for heavy duty trucks.” Snow Fighter’s Quarterly, Summer
1993, p.17. In effect, opposer’s plow is towed or pulled by
the truck to increase the plowing efficiency of the front
plow. The evidence also establishes that opposer’s
SPEEDHITCH product is used with a hitch. “The plow is
attached to your vehicle at three points, including
insertion into your ‘Reese’ type hitch. This unique design
Opposition No. 112,383
8
allows you to ‘pull-up, hitch-up and pull-out” in a matter
of minutes.” Id.
The Daniels Pull Plow fits virtually any 4WD vehicle
equipped with a 2” receiver-type hitch. Thanks to the
patented SPEEDHITCH™, hook up is fast and easy.
Simply connect the SPEEDHITCH™ to the truck’s standard
2” receiver-type hitch and connect the hydraulic hoses.
The plow is connected at three points. The two drawbar
arms are connected to two “ears” (which are welded onto
the receiver hitch) while the third arm is connected to
the horizontal tube on the SPEEDHITCH™.
Opposer’s Ex. 3(b), p.4.
We must now determine, based on these goods, whether
the goods are related. Applicant argues that:
Daniels is in the business of selling rear-mounted snow
plows for four-wheel drive vehicles and offers its
SPEEDHITCH device as a means for mounting the plows to
the vehicles. Nowhere does Daniels’ product literature
show or discuss use of Daniels’ product for trailers or
trailering. Applicant sells a ball and hitch to be
attached to vehicles specifically for the purpose of
towing trailers. Nowhere does the product literature
show or discuss use of P.O.R.’s hitch with a snow plow.
Thus the parties’ products are actually quite
different. P.O.R. sells a trailer hitch that is
intended to be an alternative to more conventional
trailer hitches. Such hitches are used for towing
trailers. In contrast, the sole purpose of Daniels’
product is to provide a means for attaching its Daniels
Pull Plow to snow-removal vehicles. The product is not
a substitute for a trailer hitch, as is P.O.R.’s
product.
Opposition, p.7.
As noted earlier, the thrust of applicant’s argument is
that its goods as actually used are substantially different
from opposer’s goods. However, nothing in its
Opposition No. 112,383
9
identification is incompatible with applicant producing
other hitches in addition to trailer hitches. Clearly,
opposer’s literature demonstrates that a hitch is necessary
to attach its rear-mounted plow to a four-wheel drive
vehicle. If a four-wheel drive owner purchased a pull plow
with a SPEEDHITCH brand mechanism for mounting a plow to a
vehicle, the person would need a hitch to actually attach
the plow to the vehicle. There would be a likelihood of
confusion when this person encountered SPEEDHITCH brand
hitches.
Applicant also argues that “since the record shows that
Daniels has used SPEEDHITCH only in connection with snow
plow mounts, the board should assume for purpose of this
motion that Daniels’ snow plow mounts are sold by snow plow
dealers.” Opposition, p.8. Thus, applicant tries to
severely limit the channels of trade of applicant’s and
opposer’s goods. There are several flaws with applicant’s
arguments. First, there is no evidence that snow plow
retailers only sell snow plows. Second, even if there were
such a limited retailing group for snow plows, it would not
be a reasonable inference to assume that these retailers
would sell nothing but snow plows. It would be logical that
these exclusively snow plow dealers would also sell the
hitch necessary to attach the plow to the vehicle. Third,
even if we were to assume that snow plow dealers did not
Opposition No. 112,383
10
sell hitches, when the purchaser of a snow plow with a
SPEEDHITCH mounting means went to a retailer who sold the
hitches that are needed to attach the plow to the vehicle
and the customer encountered SPEEDHITCH hitches, they would
likely believe that the hitch came from the same source as
the rear plow mounting means.
Customers of the goods as defined in the application
and opposer’s mechanism for mounting a rear snow plow
overlap. Again, while applicant argues that currently its
goods are sold by hardware and automotive retailers, there
is nothing in its identification of goods to limit the
channels of trade to those retailers. Thus, we must assume
that the goods are sold through all channels of trade for
those goods. “[A]n application with an identification of
goods having no restriction on trade channels obviously is
not narrowed by testimony that the applicant’s use is, in
fact, restricted to a particular class of purchasers.”
Octocom, 16 USPQ2d at 1788 (affirming Board’s granting of
opposer’s motion for summary judgment). Even drawing
inferences most favorable to applicant, we find that the
channels of trade and purchasers for hitches and means for
mounting snow plows to vehicles would not be distinct.
In addition to its arguments concerning the relatedness
of the goods, applicant argues that it is unaware of any
actual confusion despite the fact that the parties have been
Opposition No. 112,383
11
selling their goods simultaneously since 1996. Of course,
it is unnecessary to show actual confusion in establishing
likelihood of confusion. Giant Food, Inc. v. Nation's
Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed.
Cir. 1983); J & J Snack Foods Corp. v. McDonald’s Corp., 932
F.2d 1460, 18 USPQ2d 1889, 1892 (Fed. Cir. 1991).
Obviously, one factor that may contribute to the lack of
actual confusion is the fact that applicant is not using its
mark on goods as broadly as defined in its application. To
reiterate, we are constrained to consider likelihood of
confusion on the basis of the applicant’s identified goods
and not only in the limited capacity in which applicant has
shown its goods to be used.
Applicant also asks the Board to take judicial notice
of a listing of third-party registrations that it says
demonstrate “the number of similar marks in use on similar
goods.” Opposition, p.10. We do not take judicial notice
of registrations. In re Duofold, Inc., 184 USPQ 638, 640
(TTAB 1974). However, opposer has not objected to this
evidence and, therefore, we will consider the listing, but
it is not persuasive. We do not see how the fact the Office
has registered HITCH-N-RUN, HASTY HITCH, FREEDOM HITCH, EASY
HITCH, EASY-HITCH, OR INSTA-HITCH for goods identified as
hitches, mounting units and racks supports its argument that
SPEEDHITCH for vehicle towing accessories namely hitches and
Opposition No. 112,383
12
ball mounts and SPEEDHITCH for a mechanism for mounting a
rear snow plow to a vehicle are not confusingly similar.
The registrations do not support the registration of
applicant’s identical mark in view of opposer’s mark. If
applicant’s point is that the mark SPEEDHITCH is weak, even
a weak mark is entitled to protection when the identical
mark is used on closely related goods. In re Colonial
Stores, 216 USPQ 793, 795 (TTAB 1982).
Applicant also notes that the purchases of snow plows
and trailer hitches are not made on impulse and that greater
care is exercised in purchasing this equipment than a
magazine or a candy bar. For purposes of summary judgment,
we assume that is true, but it does not demonstrate that
there is a material fact that precludes the grant of summary
judgment. Certainly, even sophisticated purchasers would
likely be confused when the identical marks are used on
closely related goods like applicant’s and opposer’s goods.
See Octocom, 918 F.2d at 942, 16 USPQ2d at 1787.
Finally, applicant’s other arguments, that there is no
evidence of expanded recognition of opposer’s mark on other
products or that there is no evidence of either parties’ use
of their mark as a house mark or as part of a family of
marks, do not preclude the grant of opposer’s motion for
summary judgment.
Opposition No. 112,383
13
Having considered all the evidence and the pleadings,
we conclude that applicant’s mark when used on the goods
described in the application is confusingly similar to
opposer’s mark when used on its goods.
Decision: Opposer’s motion for summary judgment is
granted. The opposition is sustained, judgment is entered
against applicant, and registration to applicant is refused.