Fasteners Int’l., Inc.

Trademark Trial and Appeal Board

May 11, 2001

No. 75271006 (T.T.A.B. May. 11, 2001)

5/11/01
Paper No. 14
RFC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Fasteners International, Inc.
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Serial No. 75/271,006
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Walter D. Ames for Fasteners International, Inc.
Won T. Oh, Trademark Examining Attorney, Law Office 104.
_______
Before Cissel, Hohein and Holtzman, Administrative
Trademark Judges.
Opinion by Cissel, Administrative Trademark Judge:
On April 4, 1997, applicant filed the above-identified
application to register the mark “TORKLOC” on the Principal
Register for “fasteners, namely, metal screws,” in Class 6.
The application was based on applicant’s claim of use of
the mark in connection with the goods in interstate
commerce since January 5, 1996.
Registration was refused under Section 2(d) of the
Lanham Act on the ground that applicant’s mark, as applied
to metal screws, so resembles the mark shown below,
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 75/271,006
2
which is registered1 in Class 6, with a disclaimer of “LOK
NUT” apart from the mark as shown, for “locknuts,” that
confusion is likely.
Applicant responded to the refusal of registration
with arguments that confusion is unlikely, but the
Examining Attorney was not persuaded, and the refusal was
made final on February 17, 2000. The Examining Attorney
concluded that the mark applicant seeks to register is
similar to the registrant’s mark and that the goods
specified in the application are closely related to those
identified in the cited registration. Submitted in support
of the final refusal were copies of a number of third-party
registrations for goods in Class 6. Each of those
registrations lists both locknuts and screws as the goods
with which the registrants claim use of their marks.
Applicant timely filed a Notice of Appeal. Applicant
filed a brief on appeal, to which the Examining Attorney
responded with his brief. Attached to applicant’s brief
were copies of
1 Reg. No. 838,241, issued on the Principal Register to
Continental Fastener Corp. on Nov. 7, 1967; renewed on November
7, 1987, and now owned by LRG Fastener Corp.
Ser. No. 75/271,006
3
several third-party registrations of marks applicant argued
were similar to the cited registered mark and were
registered for similar products.
In his brief, the Examining Attorney properly
objected to the additional evidence submitted with
applicant’s brief. Trademark Rule 2.142(d) provides that
the record in an appeal closes with the filing of the
Notice of Appeal, but that additional evidence may be
submitted after that time if the Board grants a request to
do so. In the case at hand, applicant did not make such a
request, nor does it appear that such a request would have
been granted, in that the third-party registrations
untimely filed by applicant appear to have been available
prior to the filing of the Notice of Appeal. Accordingly,
the Board has not considered the evidence submitted with
applicant’s appeal brief. Even if it were to have been
considered, however, it would not have persuaded us to rule
in favor of applicant in this appeal.
Applicant did not request an oral hearing before the
Board.
In the case of In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), the predecessor to
our primary reviewing court set out the factors to be
Ser. No. 75/271,006
4
considered in determining whether confusion is likely.
Chief among these factors are the similarity of the marks
as to appearance, pronunciation, meaning and commercial
impression, and the similarity of the goods as set forth in
the application and the registration, respectively.
In the instant case, the record shows that the goods
set forth in the application are closely related to the
goods listed in the cited registration and the mark
applicant seeks to register creates a commercial impression
similar to the one engendered by the cited registered mark.
Under the circumstances, confusion is likely.
Turning first to consideration of the relatedness of
the goods in the registration and the goods identified in
the application, we note that the third-party registrations
made of record by the Examining Attorney which list both
screws and locknuts tend to show that such goods may
emanate from a single source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Co., 6
USPQ2d 1467 (TTAB 1988).
As the Examining Attorney points out, applicant’s
arguments with respect to alleged differences between the
trade channels employed by applicant and the owner of the
registration are to no avail because, in the absence of
restrictions or limitations with respect to channels of
Ser. No. 75/271,006
5
trade or particular types of purchasers in the application
and the registration, respectively, we must assume that the
goods identified therein move in all the normal channels of
trade for such products, and that the goods are promoted
and available to all potential customers for those types of
products. Canadian Imperial Bank of Commerce v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
As identified in the application and cited registration,
respectively, the goods are locknuts and screws, both of
which are fasteners, presumably available through a wide
range of trade channels which would include retail hardware
stores at which ordinary consumers shop for such items to
be used in household projects and repairs. The use of
similar marks in connection with both of these kinds of
fasteners is plainly likely to cause confusion.
The two marks at issue engender similar commercial
impressions because applicant’s mark is the phonetic
equivalent of the dominant portion of the registered mark.
Both marks feature slightly different phonetic spellings of
the term “TORQUE LOCK,” which could be considered
suggestive in connection with the goods of both applicant
and the owner of the cited registration.
The issue is not whether there are differences
between the two marks that can be precisely articulated, as
Ser. No. 75/271,006
6
applicant has done. Although we must consider the marks in
their entireties, it is nonetheless reasonable to consider
whether some components of the marks, for one reason or
another, have more source-identifying significance than the
other components. Tektronix, Inc. v. Daktronics, Inc., 534
F.2d 915, 189 USPQ 693 (CCPA 1976); In re El Torito
Restaurants Inc., 90 USPQ2d 2002 (TTAB 1988). Descriptive,
disclaimed matter is typically less significant than other
components of marks which combine descriptive terminology
with other components. The likely recollection of the
average purchaser of the respective goods is what must be
considered in resolving the issue of likelihood of
confusion. Spoons Restaurants, Inc. v. Morrison, Inc., 23
USPQ2d 1735 (TTAB 1991), aff’d. No. 92-1086 (Fed. Cir. June
5, 1992); and In re Steury Corp., 189 USPQ 353 (TTAB 1975).
Such a person may not possess perfect recollection, nor
will he or she necessarily be confronted by both marks
simultaneously so that a side-by-side comparison can be
conducted. See: In re Continental Graphics Corp., 52 USPQ
1374 TTAB 1999).
Application of these principles to the facts presented
by the instant case leads us to conclude that applicant’s
mark so resembles the registered mark that confusion is
likely when the marks are used on the goods identified in
Ser. No. 75/271,006
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the application and cited registration, respectively. The
word portion of the registered mark, “TORK LOK NUT,” is
presented inside the cross bar of a “t” design and the mark
also includes the word “NUT,” which is generic for the
goods set forth in the registration. Applicant’s mark,
“TORKLOC,” consists entirely of the phonetic equivalent of
“TORK LOK,” the dominant element of the registered mark.
Applicant argues that confusion is not likely because
registrant disclaimed “LOK NUT” apart from the mark as a
whole, which applicant contends leaves us to consider only
the “t” design and “TORK,” which is suggestive in
connection with fasteners like screws and nuts because they
must be rotated in order to function. This argument is no
more persuasive than the contention that the marks are
readily distinguishable because of the differences between
“LOK” and “LOC,” or that prospective purchasers of
applicant’s “TORKLOC” screws are not likely to confuse the
source of such screws with the source of registrant’s “TORK
LOK NUT” and design locknuts because the word “NUT” is not
likely to be used as part of a mark under which screws are
marketed.
Simply put, when we consider the du Pont factors on
which we have evidence in this case, we find that confusion
is likely because prospective purchasers familiar with
Ser. No. 75/271,006
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locknuts sold under the registered “TORK LOK NUT” and
design mark are likely to assume that screws sold under the
“TORKLOC” mark emanate from the same source because the
initial parts of each of the marks are phonetic equivalents
which both evoke the same suggestive connotation in
connection with the goods. Contrary to applicant’s
contention, its mark would not have to be “TORK LOK SCREW”
in order for confusion to be likely, nor does the fact that
applicant is aware of no incidents of actual confusion
convince us that confusion is not likely in this case.
Such evidence is notoriously difficult to obtain, and is
not required in order to sustain the Examining Attorney’s
burden of establishing that confusion is likely. We have
no idea of whether there has even been a realistic
opportunity for confusion to have occurred. Cunningham v.
Laser Golf Corp., 722 F.2d 943, 55 USPQ2d 1842 (Fed. Cir.
2000); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768
(TTAB 1992).
The Examining Attorney has demonstrated that confusion
is likely in this case because both the goods set forth in
the application and those identified in the cited
registration can be expected to emanate from the same
source, and applicant’s mark consists of the phonetic
equivalent of a significant portion of the registered mark.
Ser. No. 75/271,006
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Both marks are not only similar in sound, but they also
have the same suggestive significance in connection with
the goods in both the application and the registration.
Contrary to applicant’s argument, any doubt we might
have in resolving the issue of likelihood of confusion
within the meaning of Section 2(d) of the Lanham Act must
be resolved in favor of the registrant, not the applicant,
who, as the second comer, had a duty to select a mark which
is not likely to cause confusion with another mark already
in use in the marketplace for related products. In Re
Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025
(Fed. Cir., 1988).
DECISION: The refusal to register under Section 2(d)
the Lanham Act is affirmed.
Ser. No. 75/271,006
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