Ed Tucker Distributor, Inc.

Trademark Trial and Appeal Board

Jun 11, 2001

No. 75333969 (T.T.A.B. Jun. 11, 2001)

06/11/01 Paper No. 20
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Ed Tucker Distributor, Inc.
________
Serial No. 75/333,969
_______
Kay Lyn Schwartz of Gardere Wynne Sewell LLP for Ed Tucker
Distributor, Inc.
John M. Gartner, Trademark Examining Attorney, Law Office 102
(Thomas Shaw, Managing Attorney).
_______
Before Simms, Hohein and Rogers, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
Ed Tucker Distributor, Inc., d.b.a. Tucker-Rocky
Distributing, has filed an application to register the mark "TWIN
POWER" and design, as reproduced below,
for the following goods:1
1 Ser. No. 75/333,969, filed on July 31, 1997, which alleges dates of
first use of September 1, 1995 for the goods in each class. The
graphic representation in the mark of a motorcycle engine is
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/333,969
2
"motorcycle motor oil, sold exclusively
by authorized distributors" in International
Class 4;
"motor parts and accessories of
motorcycles, namely, oil filters, bearings,
woodruff keys, shims and carb kits comprised
of o-rings, jets and gaskets; short blocks,
rods, cylinders, pistons, oil pumps, valves
and guides, ignition coils, distributors,
electronic ignitions, voltage regulators,
starter motors and starter rotors, sold
exclusively by authorized distributors" in
International Class 7; and
"structural and drive train parts of
motorcycles, namely, chains, transmissions
[sic] gears and shafts, clutches, primary
drive parts comprised of pulleys, idlers,
chains and clutches; shifter assembly parts
comprised of control rods and levers,
mounting brackets and lever arms;
transmission cases, and mechanical advance
assemblies comprised of weights and springs,
sold exclusively by authorized distributors"
in International Class 12.
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the
mark "TWIN POWER," which is registered for "transmission belts,"2
as to be likely to cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
disclaimed and the lining is a feature of the mark and does not
indicate color.
2 Reg. No. 915,103, issued on June 15, 1971, which sets forth dates of
first use of October 16, 1970; renewed.
Ser. No. 75/333,969
3
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), "in any likelihood of confusion
analysis[,] two key considerations are the similarity of the
goods and the similarity of the marks."3 Moreover, while both
the Examining Attorney and applicant have speculated as to
whether registrant's mark is or is not famous, suffice it to say
that, inasmuch as there simply is no evidence of record with
respect to the fame of the prior mark, such du Pont factor is
irrelevant.4
Turning first to consideration of the respective marks,
applicant insists that while "the marks share the words 'TWIN
3 The court, in particular, pointed out that: "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."
4 Applicant and the Examining Attorney also dispute the effect of
another du Pont factor, namely, the nature and extent of any actual
confusion. Applicant, in this regard, relies upon the statement in a
declaration from its chief financial officer that applicant "is not
aware of any instance of actual confusion between its mark 'TWIN POWER
and design,' the subject of the pending application, and the
registered mark 'TWIN POWER[,]' which is currently owned by Gates
Rubber Company ('Gates')." While the absence of any incidents of
actual confusion over a significant period of time is indeed a factor
indicative of no likelihood of confusion, it is a meaningful factor
only where the record demonstrates appreciable and continuous use by
an applicant of its mark in the same markets as those served by the
cited registrant under its mark. See, e.g., Gillette Canada Inc. v.
Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992) and cases cited therein.
Here, there is no information as to the nature and extent, if any, of
contemporaneous use by registrant of its mark in the same marketplaces
as those served by applicant, so that it could be said that if
confusion were likely to occur, it would be expected to have happened.
Consequently, applicant's assertion of a lack of any reported
incidents of actual confusion is simply not a mitigating factor in
this appeal. Compare In re General Motors Corp., 23 USPQ2d 1465,
1470-71 (TTAB 1992).
Ser. No. 75/333,969
4
POWER,' the marks in their entireties are dissimilar." Applicant
argues, in particular, that its mark "is visually distinctive
from the cited mark" inasmuch as the former "includes the
distinctive engine design that consists of an engine encompassed
by a circle," and maintains that such "design element is the
dominant part of the [applicant's] mark, not the phrase 'TWIN
POWER.'" Applicant also contends, based upon two third-party
registrations and the results of an Internet search, that "the
common phrase 'TWIN POWER' in Registrant's and Applicant's mark
is relatively weak" and therefore registrant's mark should only
be "given a narrow scope of protection."
While, of course, it is settled that the marks at issue
must be considered in their entireties in determining whether
there is a likelihood of confusion, it is also well established
that, in articulating reasons for reaching a conclusion on the
issue of likelihood 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 [that] the
ultimate conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, "that a particular
feature is descriptive or generic with respect to the involved
goods or services is one commonly accepted rationale for giving
less weight to a portion of a mark ...." 224 USPQ at 751.
We agree with the Examining Attorney that, when
considered in their entireties, applicant's "TWIN POWER" and
design mark so resembles registrant's "TWIN POWER" mark that, if
Ser. No. 75/333,969
5
used in connection with the same or closely related goods,
confusion as to source or sponsorship is likely to occur.
Specifically, we concur with the Examining Attorney that, on the
whole, the dominant and distinguishing portion of applicant's
mark is the phrase "TWIN POWER," which plainly is identical to
registrant's mark. As the Examining Attorney notes, and as
evidenced by applicant's disclaimer thereof, the Harley-Davidson
engine design in applicant's mark5 is "an accurate pictorial
representation of descriptive matter (a V-Twin motorcycle
engine), rather than a stylized representation." Therefore,
notwithstanding the prominent appearance of both such design and
the phrase "TWIN POWER" in applicant's mark, it is the phrase
"TWIN POWER" which principally serves as the source-indicative
element of applicant's composite mark, with the non-distinctive
background oval design functioning simply as a subordinate
vehicle for the display of the other elements of the mark.
Moreover, the phrase "TWIN POWER," as the sole literal element of
applicant's mark, is the portion thereof which would be used by
customers when calling for or asking about applicant's goods.
Such phrase is thus the portion of applicant's mark which is most
likely, especially in light of the descriptiveness of the engine
design component, to be impressed upon consumers as the dominant
and source-signifying portion of applicant's mark. See, e.g., In
re Appetito Provisions Co., Inc., 3 USPQ2d 1553, 1554 (TTAB
1987).
5 We observe that the catalogs submitted by applicant as facsimiles of
its use of its mark tout applicant's goods as "PERFORMANCE PRODUCTS
Ser. No. 75/333,969
6
Accordingly, and while differences admittedly exist
between the respective marks when viewed on the basis of a side-
by-side comparison,6 in their entireties the marks are not only
similar in appearance, due to the shared phrase "TWIN POWER," but
in light thereof that they are substantially identical for all
practical purposes in sound, connotation and commercial
impression. Applicant's further contention, however, that such
marks can coexist because the words "twin power" have been shown
to be in common use is not persuasive for the following reasons.
First, applicant points to just two third-party
registrations which "encompass the mark, 'TWIN POWER:' (1)
'SINGLE/TWIN POWER' for aircraft, namely, helicopters; and (2)
'TWIN POWER' for laundry care products." However, aside from not
constituting evidence of use of the subject marks and that the
purchasing public has become conditioned to encountering certain
products under the phrase "TWIN POWER" and is therefore able to
distinguish the source thereof,7 such registrations do not
demonstrate, as the Examining Attorney notes, that a mark which
FOR YOUR HARLEY®."
6 Such a comparison, however, is not the proper test to be used in
determining the issue of likelihood of confusion inasmuch as it is not
the ordinary way that customers will be exposed to the marks.
Instead, it is the similarity of the general overall commercial
impression engendered by the marks which must determine, due to the
fallibility of memory and the concomitant lack of perfect recall,
whether confusion as to source or sponsorship is likely. The proper
emphasis is accordingly on the recollection of the average purchaser,
who normally retains a general rather than a specific impression of
marks. See, e.g., Envirotech Corp. v. Solaron Corp., 211 USPQ 724,
733 (TTAB 1981); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975); and Grandpa Pidgeon's of Missouri, Inc. v.
Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973).
7 See, e.g., AMF Inc. v. American Leisure Products, Inc., 474 F.2d
1403, 177 USPQ 268, 269 (CCPA 1973) and In re Hub Distributing, Inc.,
218 USPQ 284, 285-86 (TTAB 1983).
Ser. No. 75/333,969
7
consists of or contains the phrase "TWIN POWER" "is weak when
used in connection with [land] vehicle parts."
Second, applicant also relies upon a declaration from
its counsel which states, inter alia, that she had an Internet
search conducted "regarding advertisements containing the terms
'TWIN POWER,' 'TWIN' and 'POWER'"; that "[t]he results of the
search of sites containing the terms 'TWIN POWER,' 'TWIN' and
'POWER' revealed 2,710,628 matches," of which "[a] copy of the
first page of search results is attached"; and that additionally
"attached are some of the randomly chosen search results which
set forth use of the term 'TWIN POWER'" in connection with "a
variety of products/services, including tractors, boats,
automobiles and motorcycles." However, contrary to counsel's
conclusion in her declaration that "[s]uch extensive use in the
transportation industry clearly shows the weakness of this
phrase," we have no idea as to even the approximate number of
uses of the relevant phrase "TWIN POWER," much less (except for a
few examples) the context of such use. Thus, as the Examining
Attorney observes, "the fact that applicant received 2,710,628
matches for the terms TWIN and POWER [is not itself] evidence of
... weakness, since the matches include all web sites that happen
to contain the term TWIN and POWER somewhere on the site."
Furthermore, to the extent that the few selected
examples provided by applicant show the actual manner of use of
such phrase, they run the gamut from references to apparent
trademark use (1938 "Twin Power Challenger" tractors, "HKS Racing
Ser. No. 75/333,969
8
Twin Power" automobile ignition and "Gemini Twinpower" automotive
and marine batteries) to seemingly descriptive usage (outboard
motors utilized as "twin power plants" for boats, and "twin power
units" in a "hybrid car"). The latter usage, however, is only in
instances where the phrase is used to refer to more than one of
the same kind of item; there is nothing which shows that such
phrase merely describes any single product. The phrase "TWIN
POWER" plainly cannot be said, at least on this record, to be of
limited trademark significance. Nonetheless, even if, in light
of applicant's Internet search, such phrase were to be regarded
as highly suggestive, rather than arbitrary or fanciful, as used
in connection with applicant's and registrant's goods, it is
still the case that in the marks at issue the phrase conveys the
same connotation and engenders the same overall commercial
impression, given the descriptiveness inherent in the graphic
representation of a motorcycle engine design in applicant's mark.
This brings us to consideration of the respective
goods. In this regard, it is well established that goods need
not be identical or even competitive in nature in order to
support a finding of likelihood of confusion. Instead, it is
sufficient that the goods are related in some manner and/or that
the circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
situations that would give rise, because of the marks employed in
connection therewith, to the mistaken belief that they originate
from or are in some way associated with the same producer or
provider. See, e.g., Monsanto Co. v. Enviro-Chem Corp., 199 USPQ
Ser. No. 75/333,969
9
590, 595-96 (TTAB 1978) and In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Furthermore, it is well settled that the issue of
likelihood of confusion must be determined on the basis of the
goods as they are set forth in the involved application and cited
registration. See, e.g., CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d
1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula Payne
Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973). Thus, where the goods in the
application at issue and in the cited registration are broadly
described as to their nature and type, it is presumed in each
instance that in scope the application and registration encompass
not only all goods of the nature and type described therein, but
that the identified goods move in all channels of trade which
would be normal for such goods and that they would be purchased
by all potential buyers thereof. See, e.g., In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).
Applicant, contending that the Examining Attorney "may
not speculate as to the possible expansion of Registrant's goods"
but must instead, as noted above, "rely upon the description of
the goods in the cited registration," argues that:
The goods marketed in connection with
Applicant's mark are distinctly different
from those goods marketed by the cited
Registrant under the [mark in the] cited
registration. Applicant sells a variety of
items exclusively for motorcycles.
Registrant provides a single item (i.e.,
transmission belts) which is sold to the
automotive industry, as opposed to the
Ser. No. 75/333,969
10
motorcycle industry. .... Indeed, there is
a clear distinction in the variety of goods
offered by Applicant versus Registrant.
With respect to the channels of trade for the respective
products, applicant asserts that the market for its goods "is
distinctively different" from the market for registrant's goods.
Applicant maintains, therefore, that given the diversity of
products and their respective trade channels, confusion is not
likely to occur.
In support of its position, applicant relies upon the
declaration of Joe Rougraff, its chief financial officer, and
excerpts from registrant's website submitted in connection
therewith. The declaration, which refers to applicant as "Ed
Tucker," provides in pertinent part that:8
With regards to channels of trade, Ed
Tucker does not sell the products marketed
under the subject mark directly to retail
customers. Ed Tucker only sells its products
to authorized distributors who subsequently
sell to retail customers. As evidenced by
the attached printout, it is believed that
[registrant] Gates' goods are exclusively
manufactured for the automotive industry, as
opposed to the motorcycle industry, [and are
sold] through normal retail channels. ....
8 We also observe, on another matter, that while such declaration
indicates that "Ed Tucker was the original applicant for the mark
'TWIN POWER and design,'" the declaration further states that "[o]n or
about November 26, 1997, the rights in the mark 'TWIN POWER and
design' were transferred to Tucker-Rocky Corporation, Inc." and that
"Ed Tucker subsequently became the exclusive licensee for the mark
'TWIN POWER and design.'" If, as it appears, applicant is not
presently the owner of the subject mark and involved application, it
is suggested that, in the event applicant ultimately prevails in this
appeal, a certified copy of the assignment or other document(s)
transferring ownership thereof to Tucker-Rocky Corporation be recorded
against the application in the Assignment Branch of the United States
Patent and Trademark Office so that the resulting registration will
issue in the name of the actual owner of the "TWIN POWER" and design
marks. See, e.g., TMEP §§502.01 and 503.09.
Ser. No. 75/333,969
11
The automotive industry is a completely
separate industry as compared to the
motorcycle industry. Motorcycles are
generally viewed as recreational vehicles.
Accordingly, the ultimate consumers of
Applicant's goods are relatively
sophisticated due to the nature of the
specialized goods for which they are intended
to be used.
In light of the above, applicant insists that its goods "are
directed to different consumers" and "are sold exclusively
through authorized distributors who then market Applicant's goods
to the end user." Applicant stresses, in particular, that unlike
registrant's transmission belts, its goods "are not found in auto
parts stores, or for that matter any retail stores," and that,
generally speaking, for the Examining Attorney "[t]o assume that
motorcycle parts and accessories are sold in auto parts stores is
an incorrect assumption by the Examiner." Although applicant
never discloses, in either its main or reply brief, the specific
kinds of entities which serve as its "authorized distributors,"
it appears from the catalogs submitted as facsimiles in the
application that such distributors are wholesalers of motorcycle
parts and accessories, who in turn sell such goods to retail
dealers for sale to the general public.9
The Examining Attorney, on the other hand, takes the
position that "[t]he similarities among the marks and the goods
... are so great as to create a likelihood of confusion" since,
9 For instance, such catalog states that "NEMPCO is a wholesale
distributor and does not sell retail. Twin Power products, and all
items distributed by NEMPCO are available through Authorized NEMPCO
Dealers. Call our dealer referral hotline ... for the dealer nearest
you."
Ser. No. 75/333,969
12
as to the respective goods, the marks at issue "are used to
identify vehicle parts" and, hence, "[t]he same consumers will be
exposed to the goods identified with both marks." In an attempt
to bolster his claim that applicant's and registrant's goods are
closely related in a meaningful commercial sense, the Examining
Attorney asserts that he "has made of record dozens of third-
party registrations showing that the manufacturers of automobile
parts also manufacture motorcycle parts." Aside, however, from
the fact many of those registrations issued pursuant to the
provisions of Section 44 of the Trademark Act, 15 U.S.C. §1126,
based upon ownership of a foreign registration rather than use in
commerce, and thus are essentially of no probative value,10 it
appears that of the remaining third-party registrations which
issued on the basis of use in commerce, at most only two or three
arguably cover both registrant's goods (transmission belts) and
one or more of applicant's various products (motorcycle motor
10 As stated in In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470
(TTAB 1988) at n. 6:
Third-party registrations which cover a number of differing
goods and/or services, and which are based on use in
commerce, although not evidence that the marks shown therein
are in use on a commercial scale or that the public is
familiar with them, may nevertheless have some probative
value to the extent that they may serve to suggest that such
goods or services are of a type which may emanate from a
single source. See: In re Great Lakes Canning, Inc., 227
USPQ 483, 484 (TTAB 1985), and In re Phillips-Van Heusen
Corp., 228 USPQ 949 (TTAB 1986). ....
However, as to third-party registrations which are based upon foreign
registrations, the Board pointed out that such registrations "are not
even necessarily evidence of a serious intent to use the marks shown
therein in the United States on all of the listed goods ..., and they
have very little, if any, persuasive value on the point for which they
were offered." Id.
Ser. No. 75/333,969
13
oil, motorcycle motor parts and accessories, and motorcycle
structural and drive train parts).
Additionally, the Examining Attorney maintains that he
"has made of record dozens of print advertisements, web-page
printouts, and third-party registrations showing that retailers
who sell automotive parts also sell motorcycle parts." Again,
many of the third-party registrations are not based upon use of
the subject marks in commerce and, thus, as explained above, are
without any significant probative value. More importantly, it
appears in any event that none of the third-party registrations
actually encompasses such services as automobile and motorcycle
dealerships or otherwise cover the marketing of automobile and
motorcycle parts and accessories by the same retailer. While, in
addition, there are several examples of Internet and mail-order
catalog retailers, who generally appear to offer a huge variety
of automobile and motorcycle parts and accessories, and there are
a few pages of print advertisements by an automotive parts store
showing that such a retailer also markets motorcycle spark plugs
and batteries, there is no evidence which specifically reveals
that a single outlet markets both goods of the kind identified in
the cited registration as well as one or more of the types of
products set forth in applicant's application.
Nevertheless, despite the deficiencies in the evidence
presented by the Examining Attorney, we find that as identified
in the cited registration and in the application, registrant's
and applicant's goods are on their face closely related products
for motorcycles. This is because "transmission belts," which is
Ser. No. 75/333,969
14
the language utilized by registrant to designate its goods, is a
broad and unrestricted term which not only covers automobile
transmission belts, as applicant concedes, but also includes both
belts used as motorcycle transmission components and belts used
to transmit power from a motorcycle engine to the rear wheel of
such a vehicle. In fact, contrary to the assertions in its
briefs and the Rougraff declaration, in which applicant attempts
to restrict registrant's goods to those manufactured for the
automotive industry, applicant in its response to the initial
Office Action admitted that "[r]egistrant's goods are directed to
all kinds and types of vehicles," (emphasis added), a concession
which obviously encompasses transmission belts for motorcycles as
well as for automobiles. Plainly, registrant's "transmission
belts" include those which would be suitable for sale by
wholesale distributors of motorcycle parts and accessories, as
are applicant's goods, as well as by retailers of such products,
where applicant's goods would likewise be found.
Furthermore, applicant's apparent attempt to limit its
various products to those "sold exclusively by authorized
distributors" does not constitute a meaningful restriction as to
the channels of trade for its goods inasmuch as such language
clearly encompasses not only applicant's wholesale distributors,
who do not sell its goods at retail, but also includes all
motorcycle parts and accessories retailers, regardless of whether
they are mail-order, Internet or retail store based, who likewise
could be considered "authorized distributors" if they were to be
designated by applicant as exclusive sellers of its motorcycle
Ser. No. 75/333,969
15
motor oil, motorcycle motor parts and accessories, and motorcycle
structural and drive train parts.
Therefore, as identified, both registrant's and
applicant's goods are closely related products for motorcycles
which would be sold through the same channels of trade to the
same classes of purchasers. When respectively marketed under the
substantially identical marks "TWIN POWER" and "TWIN POWER" and
design, confusion as to the origin or affiliation of such goods
would be likely.
Applicant argues, as a final contention, that confusion
is not likely because "the ultimate consumer of Applicant's goods
is relatively sophisticated due to the nature of the specialized
goods." In consequence thereof, applicant urges that the care
inherent in the purchase of its products will preclude any
likelihood of confusion with registrant's goods. The Examining
Attorney, however, argues that applicant "has failed to provide
any credible evidence to support its contention that the
purchasers of its goods are sophisticated consumers and therefore
immune from source confusion." Instead, according to the
Examining Attorney:
The record shows, to the contrary, that
the goods identified by applicant's mark are
relatively inexpensive goods that would
require no more sophistication from ...
purchasers than that possessed by the average
motorcycle owner. The products catalog
supplied by applicant ... shows that
applicant sells, for example, oil and
lubricants (all under $10.00); oil filters
(under $10.00); coils ($35.00 to $40.00);
voltage regulators ($50.00 to $82.00); clutch
kits ($35.00 to $60.00) and transmission
parts and gear sets ($5.00 to $145.00). Some
Ser. No. 75/333,969
16
items are more expensive (an engine block
sells for $3,000.00) but the majority of the
goods are relatively inexpensive motorcycle
parts and supplies. Nothing in the record
suggests that purchasers of standard
motorcycle parts and supplies are
sophisticated purchasers.
We need not decide whether customers for applicant's
various motorcycle related parts and accessories are indeed
highly sophisticated and discriminating, although certainly the
substantial majority of its customers would be ordinary consumers
who, especially with respect to purchases of its more inexpensive
products, would not seem to have a need to exercise much care or
contemplation in their selections. In any event, we observe
that, even if customers for applicant's goods, as well as those
for registrant's transmission belts, were to be regarded as
sophisticated and discriminating buyers (despite the absence on
this record of any evidence other than the conclusory statements
by applicant's chief financial officer that motorcycles are
generally viewed as recreational vehicles and that consumers of
its goods are relatively sophisticated due to the nature of its
goods), the fact that consumers may need to exercise some care or
thought in choosing the respective products "does not necessarily
preclude their mistaking one trademark for another" or that they
otherwise are entirely immune from confusion as to source or
sponsorship. Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 132
USPQ 289, 292 (CCPA 1962). See also In re Decombe, 9 USPQ2d
1812, 1814-15 (TTAB 1988); and In re Pellerin Milnor Corp., 221
USPQ 558, 560 (TTAB 1983).
Ser. No. 75/333,969
17
Accordingly, we conclude that because, when considered
in their entireties, applicant's "TWIN POWER" and design mark is
substantially identical to registrant's "TWIN POWER" mark, the
contemporaneous use thereof in conjunction with, respectively,
applicant's motorcycle motor oil, motorcycle motor parts and
accessories, and motorcycle structural and drive train parts, all
of which are sold exclusively by authorized distributors, and
registrant's transmission belts, particularly those for use with
motorcycles, is likely to cause confusion, even among
knowledgeable and discriminating consumers of such closely
related goods.
Decision: The refusal under Section 2(d) is affirmed.