Elkay Plastics Co., Inc.

Trademark Trial and Appeal Board

Jan 22, 2021

88479020 (T.T.A.B. Jan. 22, 2021)

Mailed: January 22, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Elkay Plastics Co., Inc.
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Serial No. 88479020
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Gary M. Anderson of Fulwider Patton LLP
for Elkay Plastics Co., Inc.

Colleen Dombrow, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.1
_____
Before Taylor, Adlin and Lynch, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant Elkay Plastics Co., Inc. seeks registration of VALUE PLUS, in standard
characters, for: “unprinted and printed polyethylene (PE) merchandise packaging
materials, namely, resealable zipper bags and tubing for industrial use” in
International Class 16; and “high temperature polyester (PET) pan liners for use in
commercial kitchens that help prevent food from sticking to the pan while storing,
warming and cooking food” in International Class 21.2 The Examining Attorney

1 Ronald R. Sussman was the Law Office’s Managing Attorney at briefing. He has since
retired, and Zachary Sparer is the Law Office’s new Managing Attorney.
2 Application Serial No. 88479020, filed June 18, 2019 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a).
This Opinion is Not a
Precedent of the TTAB
Serial No. 88479020
2
refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on
the ground that Applicant’s mark so resembles two previously registered marks that
use of Applicant’s mark in connection with Applicant’s goods is likely to cause
confusion. Specifically, the Examining Attorney refused registration in connection
with Applicant’s Class 16 goods based on a registration of VALUE PLUS OFFICE
PRODUCTS, in typed form, for “paper products, namely, copy paper, filing products,
namely, file folders and storage boxes, stationery or household adhesives, namely,
tapes,” in International Class 16 (the “’789 Registration”);3 and refused registration
in connection with Applicant’s Class 21 goods based on a registration of
for: “flatware, namely, forks, knives, and spoons,” in International Class 8; “bathroom
tissue; paper napkins; paper towels; plastic wrap; trash can liners,” in International
Class 16; and “beverageware; dinnerware; disposable plastic gloves for use in the food
service industry,” in International Class 21 (the “’950 Registration”).4 After the
refusal became final, Applicant appealed and filed a request for reconsideration
which was denied. Applicant and the Examining Attorney filed briefs.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record 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) (setting forth

3 Registration No. 2615789, issued September 3, 2002; renewed.
4 Registration No. 4870950, issued December 15, 2015.
Serial No. 88479020
3
factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each du Pont factor about
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. See 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.”). Because the Examining Attorney cited one
registration against Applicant’s Class 16 goods and another against Applicant’s Class
21 goods, we will consider the classes and cited registrations separately.
A. Applicant’s Class 16 Goods
As indicated, the Examining Attorney cited the ’789 Registration (VALUE PLUS
OFFICE PRODUCTS in typed form for “paper products, namely, copy paper, filing
products, namely, file folders and storage boxes, stationery or household adhesives,
namely, tapes”) against Applicant’s Class 16 goods.
1. The Marks
The marks are quite similar “in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). In fact, the only difference between them
is that Applicant’s mark does not include the descriptive or generic term OFFICE
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PRODUCTS and Registrant’s mark does. This is a distinction without a meaningful
difference.
Indeed, the shared term VALUE PLUS, the entirety of Applicant’s mark, comes
first in Registrant’s mark, and we find that it is the dominant portion thereof. In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (“The
identity of the marks’ initial two words is particularly significant because consumers
typically notice those words first.”); Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”); see also, Palm
Bay Imports Inc., 73 USPQ2d at 1692; Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
The shared term VALUE PLUS, the entirety of Applicant’s mark, is dominant in
Registrant’s mark for another reason: the ’789 Registration’s trailing term OFFICE
PRODUCTS is descriptive of or generic for Registrant’s goods, which are office
products; thus, consumers would not rely on that portion of the mark to indicate
source. 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, 752 (Fed. Cir. 1985)); see also In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1533-34 (Fed. Cir. 1997) (DELTA, not the disclaimed term CAFÉ, is the
dominant portion of the mark THE DELTA CAFÉ).
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In fact, consumers familiar with Registrant’s VALUE PLUS OFFICE PRODUCTS
mark may very well perceive Applicant’s mark as merely an abbreviated version
thereof. Similarly, consumers familiar with Applicant’s VALUE PLUS mark may
very well perceive Registrant’s mark as a version thereof, or as the same mark with
the descriptive or generic term “office products” added for the purpose of conveying
the nature of Registrant’s goods or business. Thus, we have not improperly dissected
Registrant’s mark or ignored the term OFFICE PRODUCTS as Applicant argues. To
the contrary, we have compared the marks in their entireties and concluded that the
differences between them are insufficient to avoid confusion. This factor weighs
heavily in support of finding a likelihood of confusion.
2. The Goods, Channels of Trade and Classes of Consumers
The goods need not be identical or even competitive in order to find a likelihood of
confusion. Rather, the question is whether the goods are marketed in a manner that
“could give rise to the mistaken belief that [the] goods emanate from the same source.”
Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713,
1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). See also Hewlett-Packard Co. v. Packard Press Inc., 227 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002) (“Even if the goods and services in question are
not identical, the consuming public may perceive them as related enough to cause
confusion about the source or origin of the goods and services.”); Recot, Inc. v. Becton,
214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“even if the goods in question
are different from, and thus not related to, one another in kind, the same goods can
Serial No. 88479020
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be related in the mind of the consuming public as to the origin of the goods”); Kohler
Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1109 (2007).
Here, the Examining Attorney has established that goods such as those identified
in the cited ’789 Registration and goods such as those identified in the involved
application are offered under the same marks. For example, Uline offers tape and
storage boxes, which are identified in the ’789 Registration, and resealable zipper
bags for industrial use, which are identified in the involved application, under the
ULINE mark:

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January 30, 2020 Office Action TSDR 85, 87, 89. Similarly, Staples offers reclosable
poly bags, tape and copy paper under the STAPLES mark:

Serial No. 88479020
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Id. at 74, 77, 81. International Plastics offers file storage boxes and tape, identified
in the ’789 Registration, and poly tubing for industrial use, identified in the involved
application:

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Id. at 63, 68, 71. The Packaging Company offers file storage boxes and plastic tubing
under its THE PACKAGING COMPANY design mark:

Id. at 21, 24. Eagle Packaging & Crating offers tape, zipper bags and poly tubing and
Associated Bag offers storage boxes and poly tubing under the same marks:
Serial No. 88479020
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Serial No. 88479020
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May 26, 2020 Denial of Request for Reconsideration TSDR 5, 7, 8-10.5 This evidence
establishes that the goods in the involved application and cited registration are
related. See Detroit Ath. Co., 128 USPQ2d at 1050 (crediting relatedness evidence
showing that third parties use the same mark for the goods and services at issue
because “[t]his evidence suggests that consumers are accustomed to seeing a single

5 In some of these examples, the sellers’ marks may not appear on each of the packaging
products in question. We assume, however, that in the absence of marks on the packaging
products themselves, the packaging for the packaging products bears the seller’s mark.
Indeed, it is likely that some purchasers of product packaging would want the option to place
their own marks on the packaging itself, to identify the source of the packaged product.
Serial No. 88479020
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mark associated with a source that sells both”); Hewlett-Packard Co. v. Packard
Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence that “a
single company sells the goods and services of both parties, if presented, is relevant
to a relatedness analysis”).
In addition, the Examining Attorney relies on a number of use-based third-party
registrations showing that the same marks are registered in connection with
Registrant’s goods (or similar goods) on the one hand and Applicant’s goods (or similar
goods) on the other. The following are typical:
B-7000 (Reg. No. 5246365) is registered for “plastic bags
for packaging” and “self-adhesive tapes for stationery and
household purposes.”

CLERK (Reg. No. 5706754) is registered for “plastic bags
for packaging” and “copy paper.”

(Reg. No. 5562572) is registered for “plastic packaging
wrap for commercial or industrial use” and “corrugated
boxes.”

(Reg. No. 5673203) is registered for
“plastic bags for packaging” and “paper.”

LAPSPAY (Reg. No. 5735758) is registered for “plastic
materials for packaging, namely, plastic sheets and
plastic bags for packaging” and “paper and cardboard,
namely, file folders, almanacs.”

NUSIGN (Reg. No. 5759231) is registered for “plastic bags
for packaging” and “copy paper.”

DUNWELL (Reg. No. 5761688) is registered for “plastic
bags for packaging” and “copy paper.”

LYSAS (Reg. No. 5769119) is registered for “plastic bags
for packaging” and “file folders.”
Serial No. 88479020
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(Reg. No. 5793936) is registered for “plastic bags
for packaging” and “boxes of cardboard or paper.”

July 10, 2019 Office Action TSDR 13-39. “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 Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1998).
These third-party uses and registrations are more than sufficient to establish a
relationship between Applicant’s polyethylene resealable zipper bags and tubing for
industrial use and Registrant’s paper and office products. The Internet printouts
showing use of the same marks for both types of products also establish that the
channels of trade and classes of consumers for these goods overlap. Indeed, several
websites seem to be focused specifically on the types of products identified in the ’789
Registration and involved application, and the consumers therefor. This belies
Applicant’s argument that Registrant’s office products and Applicant’s packaging
products are unlikely to be encountered by the same consumers. This evidence also
weighs in favor of finding a likelihood of confusion.
B. Applicant’s Class 21 Goods
As indicated, the Examining Attorney cited the ’950 Registration ( for
“flatware, namely, forks, knives, and spoons,” in International Class 8; “bathroom
Serial No. 88479020
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tissue; paper napkins; paper towels; plastic wrap; trash can liners,” in International
Class 16; and “beverageware; dinnerware; disposable plastic gloves for use in the food
service industry,” in International Class 21) against Applicant’s Class 21 goods.
1. The Marks
These marks are also highly similar in their entireties. In fact, they convey the
exact same meaning, sound almost identical and look alike.
The marks have minor differences in appearance because Registrant’s mark omits
the “e” at the end of the word “value,” stylizes the lettering and includes a “plus” (+)
sign. These differences are too minor to avoid consumer confusion. In fact, because
Applicant seeks registration of its mark in standard characters, it could display its
mark in any font or style, including in the same way Registrant displays its mark. In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); Citigroup
Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed.
Cir. 2011); In re Strategic Partners Inc., 102 USPQ2d 1397, 1399 (TTAB 2012). See
also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017)
(“Symbolic does not, and cannot, dispute that the mark, I AM in standard character
form, and the registrants’ marks, I AM in standard character, typed, or stylized form,
are pronounced the same way and, at a minimum, legally identical.”). The “plus” sign
in the cited mark merely highlights and reinforces the term PLUS which both marks
share. And omitting the “e” at the end of “value” is not a significant change because
“valu” is not a word and would, especially when combined with the term “plus,” be
perceived as merely a slight misspelling of “value.”
Serial No. 88479020
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Even if Applicant is correct that the marks sound somewhat different because
consumers will pronounce both the word “plus” and the “plus” sign in Applicant’s
mark (“VALU PLUS PLUS”), that would not sufficiently distinguish the marks. The
essence of both marks remains the combination of “value” and “plus,” which
consumers will hear and pronounce whether the term “plus” is pronounced once or
twice. In reaching this conclusion, we have also kept in mind: (1) “the fallibility of
memory over a period of time;” (2) that the “average” purchaser “normally retains a
general rather than a specific impression of trademarks;” and (3) that Applicant’s and
Registrant’s marks both include forms of the words “value” and “plus.” Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). See also In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (“marks must be
considered in light of the fallibility of memory”) (citation, internal quotation marks,
and ellipsis omitted).
The marks convey identical meanings and commercial impressions, specifically
suggesting that the commercial kitchen and food service industry products at issue
provide cost-effective utility (“value”), as well as something more (“plus”), perhaps
referencing special product features or helpful customer service. This outweighs the
minor differences in how the marks look and sound, which are likely to be forgotten
if noticed at all. This factor weighs in favor of finding a likelihood of confusion.
2. The Goods, Channels of Trade and Classes of Consumers
The Examining Attorney has introduced evidence that pan liners for commercial
kitchens are sold under the same marks as kitchen and food service products such as
those identified in the ’950 Registration, and that these types of products are sold to
Serial No. 88479020
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the same consumers through the same channels of trade. For example, the mark
PANSAVER is used for pan liners for commercial kitchens and plastic gloves:

January 30, 2020 Office Action TSDR 93-94.6 AmerCare Royal uses its ROYAL &
Design mark for both poly gloves and commercial pan liners:

6 This evidence makes clear that the goods are for commercial use, because the gloves and
pan liners are sold in bulk, the gloves are billed as “ideal for all food service operations,” and
the pan liner is billed as ideal for “restaurants,” “commissary” and “retail.” January 30, 2020
Office Action TSDR 93-96.
Serial No. 88479020
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Id. at 53, 55.7 Dot It Restaurant Fulfillment offers both poly gloves and pan liners:

7 It is clear that AmerCare Royal’s pan liners are for use in “commercial kitchens” because
the company promotes them as saving cooking and cleaning time, thus “increasing
profitability.”
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Serial No. 88479020
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Id. at 48, 50.8 Reynolds offers plastic wrap and slow cooker liners under its
REYNOLDS KITCHEN mark:

Id. at 36, 40.9 Pak-Sher offers pan liners and disposable plastic “mitts” under the
SHER mark:

8 The packaging for the poly gloves bears the Dot It Restaurant Fulfillment trade name as
well as the PREP-IT trademark. January 30, 2020 Office Action TSDR 50.
9 While slow cookers are different than pans, slow cooker liners appear to be at least
functionally equivalent and otherwise similar to pan liners. Moreover, while these slow
Serial No. 88479020
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Id. at 32, 35.10 FoodHandler uses its FOODHANDLER mark in connection with pan
liners and poly gloves:

cooker liners appear to be marketed for home use, there is no apparent reason why they could
not also be used commercially.
10 The pan liners are intended for use by “cafeterias,” and the mitts are categorized as “back
of house” products, strongly suggesting these products are for commercial use in the food
service industry.
Serial No. 88479020
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Serial No. 88479020
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Id. at 15, 18.11
The Examining Attorney also introduced a number of use-based third-party
registrations showing that the same marks are registered in connection with
Registrant’s goods (or similar goods) on the one hand and Applicant’s goods (or similar
goods) on the other. For example:
PLUSARGENT (Reg. No. 5680138) is registered for “gloves
for household use” and “high temperature nylon and
polyethylene pan liners that help prevent food from
sticking to the pan while storing, warming and cooking
food.”

DSEAP (Reg. No. 5462794) is registered for “high
temperature nylon and polyethylene pan liners that help
prevent food from sticking to the pan while storing,
warming and cooking food” and “disposable plastic gloves
for general use.”

SMART GOURMET (Reg. No. 5366115) is registered for
“disposable plastic gloves for use in the food service
industry” and “high temperature nylon and polyethylene
pan liners that help prevent food from sticking to the pan
while storing, warming and cooking food.”

G.A HOMEFAVOR (Reg. No. 5128449) is registered for
“high temperature nylon and polyethylene pan liners that
help prevent food from sticking to the pan while storing,
warming and cooking food” and “kitchen mitts.”

(Reg. No. 5090222) is registered for “disposable plastic
gloves for use in the food service industry” and “high
temperature nylon and polyethylene pan liners that help
prevent food from sticking to the pan while storing,
warming and cooking food.”

11 The pan liners are promoted as “saving labor costs” while the poly gloves are sold in bulk,
indicating that these goods are also for commercial use.
Serial No. 88479020
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(Reg. No. 5194234) is registered for “high
temperature nylon and polyethylene pan liners that help
prevent food from sticking to the pan while storing,
warming and cooking food” and “disposable plastic gloves
for cleaning used in the food service industry.”

(Reg. No. 5220811) is registered for
“high temperature nylon and polyethylene pan liners that
help prevent food from sticking to the pan while storing,
warming and cooking food” and “disposable plastic gloves
from use in the food service industry.”

VENA ROSA KIDS (Reg. No. 4677901) is registered for
“disposable plastic gloves for use in the food service
industry” and “high temperature nylon and polyethylene
pan liners that help prevent food from sticking to the pan
while storing, warming and cooking food.”

PRO-BRANDS (Reg. No. 4546998) is registered for
“disposable plastic and latex gloves for general use” and
“disposable pan liners for use with food preparation.”

PLASTIMADE (Reg. No. 4615768) is registered for “paper
plates and paper cups, plastic plates and cups, disposable
plates, cups, straws, pan liner and serving pans.”

July 10, 2019 Office Action TSDR 40-76. As with the third-party registrations
introduced in connection with Applicant’s Class 16 goods, these registrations suggest
that these goods are of a type which may emanate from a single source. In re Mucky
Duck, 6 USPQ2d at 1470 n.6.
As with Applicant’s Class 16 goods, these third-party uses and registrations are
more than sufficient to establish a relationship between Applicant’s pan liners for
commercial kitchens and Registrant’s disposable gloves for use in the food service
Serial No. 88479020
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industry.12 The Internet printouts showing use of the same marks for these types of
products also establish that the channels of trade and classes of consumers for these
goods overlap. This evidence also weighs in favor of finding a likelihood of confusion.
II. Conclusion
Applicant’s mark is quite similar to the marks in both the cited ’789 and ’950
Registrations; Applicant’s Class 16 goods are related to, and travel in the some of the
same channels of trade to some of the same classes of consumers as, the goods in the
’789 Registration; and Applicant’s Class 21 goods are related to, and travel in some
of the same channels of trade to some of the same classes of consumers as, the goods
in the ’950 Registration. Confusion is therefore likely.

Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.

12 Applicant’s argument that its goods “are marketed to back-end side of the industry, namely,
the chefs and cooks,” while Registrant’s “are marketed to the ‘front-end’ side of the industry,
namely, those people who serve the food to the ultimate consumers,” 8 TTABVUE 14, is not
well-taken. These alleged distinctions are not reflected in Applicant’s or Registrant’s
identifications of goods, which only limit the identified goods to “commercial kitchens,” and
“the food service industry,” respectively. Because “the food service industry” encompasses
“commercial kitchens,” the channels of trade and classes of consumers overlap.