FSA Imports, Inc.

Trademark Trial and Appeal Board

Jan 30, 2008

No. 78655199 (T.T.A.B. Jan. 30, 2008)

Mailed:
January 30, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re FSA Imports, Inc.
________

Serial Nos. 78652685 and 78655199
_______

Vincent P. Bailey of Law Office of Vincent P. Bailey for
FSA Imports, Inc.

Kaelie E. Kung, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Seeherman, Bucher and Grendel, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the following special form marks:
1 & 2

1 Application Serial No. 78652685 was filed on June 17, 2005
based upon applicant’s allegation of first use anywhere and use
in commerce at least as early as September 7, 2002. The English
translation of the French word FONTAINE in the mark is
“Fountain.”

2 Application Serial No. 78655199 was filed on June 21, 2005
based upon applicant’s allegation of first use anywhere and use
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial Nos. 78652685 and 78655199
- 2 -
for goods identified in the applications, as amended, as
follows:
“faucets, sinks and plumbing fittings not
intended for wastewater treatment use,
namely aerators, bibs, cocks, couplers,
drains, faucet extensions, faucet handles,
sink and shower sprayers, spouts” in
International Class 11.
These cases are before the Board on appeal from the
final refusals of the Trademark Examining Attorney to
register these marks based upon Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). The Trademark
Examining Attorney has found that applicant’s marks, when
used in connection with the identified goods, so resemble
the following mark:

in commerce at least as early as September 7, 2002. The English
translation of the French word FONTAINE in the mark is
“Fountain.”

Serial Nos. 78652685 and 78655199
- 3 -
for “valves being parts of machines for wastewater
treatment; and pumps for use in wastewater treatment” in
International Class 7 and for “automatic valves” in
International Class 9,3 as to be likely to cause confusion,
to cause mistake or to deceive.
Applicant and the Trademark Examining Attorney fully
briefed each appeal. The marks, the legal issues, the
procedural histories and overall records are closely
related in these two appeals. Accordingly, we have
consolidated the appeals and issue a single opinion. We
affirm both refusals to register.
Applicant contends that there is no likelihood of
confusion given that the word “Fontaine” is a relatively
weak mark for these goods; that the visual differences in
the design elements are significant when comparing the
marks in their entireties; that the Trademark Examining
Attorney has failed to demonstrate a nexus between
registrant’s goods and its identified goods; that
registrant’s expensive goods are purchased by sophisticated
purchasers, namely industrial companies; that the channels
of trade for registrant's goods are not the same as the

3 Registration No. 1895886 issued on May 30, 1995; renewed.
The drawing is lined for the color blue.

Serial Nos. 78652685 and 78655199
- 4 -
trade channels for applicant’s goods, and that applicant’s
Officer has submitted a statement that there has been no
actual confusion between applicant’s goods and those of the
cited registrant, dating back to at least September 2002.
By contrast, the Trademark Examining Attorney argues
that the dominant features of both the cited registered
marks and the applied-for mark are identical, namely, the
sole literal term, "Fontaine”; that the identified goods
are highly related; that even sophisticated purchasers are
not necessarily immune from source confusion; that the
evidence of record demonstrates that automatic valves are
marketed through the same channels of trade as are
applicant’s goods; and that a purported absence of actual
confusion is unpersuasive in this evaluation of likelihood
of confusion.
Likelihood of Confusion
We turn then to a consideration of the issue of
likelihood of confusion. Our determination of likelihood
of confusion is based upon our analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the issue. See In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
See also In re Majestic Distilling Co., Inc., 315 F.3d
Serial Nos. 78652685 and 78655199
- 5 -
1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood
of confusion analysis, however, two key, although not
exclusive, considerations are the similarities between the
marks and the relationship between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
The marks
We turn first to the du Pont factor that focuses on
the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
Applicant is correct in noting that the comparison of
composite marks must be done on a case-by-case basis
without reliance on mechanical rules of construction. See
Specialty Brands, Inc. v. Coffee Bean Distributors, Inc.,
748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984); Spice
Islands, Inc. v. The Frank Tea & Spice Co., 505 F.2d 1293,
184 USPQ 35 (CCPA 1974); and In re Sun Supermarkets, Inc.,
228 USPQ 693 (TTAB 1986). In this case, applicant asserts
Serial Nos. 78652685 and 78655199
- 6 -
that the cited mark is dominated by six tear-shaped designs
comprising a large circular image that is lined for the
color blue, while applicant’s marks are not lined for color
and contain no large imagery. Applicant goes on to argue
that the design search codes included in the bibliographic
database associated with the registrations for registrant’s
marks are distinctly dissimilar codes than those chosen for
applicant’s applications.
While the comparison of composite marks must be done
on a case-by-case basis, in making this determination, our
focus should be placed on the recollection of the average
consumer who normally retains a general rather than a
specific impression of trademarks. Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
While we must also consider the marks in their
entireties, 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. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985) [CASH MANAGEMENT ACCOUNT found
confusingly similar to THE CASH MANAGEMENT EXCHANGE].
Serial Nos. 78652685 and 78655199
- 7 -
The Trademark Examining Attorney herein contends that
when a mark consists of a word portion and a design
portion, the word portion is more likely to be impressed
upon a purchaser’s memory and to be used in calling for the
goods or services. Therefore, the word portion is normally
accorded greater weight in determining likelihood of
confusion. In re Dakin’s Miniatures Inc., 59 USPQ2d 1593,
1596 (TTAB 1999); In re Appetito Provisions Co., 3 USPQ2d
1553 (TTAB 1987); and Amoco Oil Co. v. Amerco, Inc., 192
USPQ 729 (TTAB 1976).
We agree that in this case the word “Fontaine,” as the
sole literal element of the marks, is the dominant feature
of the cited registered marks and the applied-for mark.
Moreover, this element of the marks is identical. As a
result, the respective marks are identical in pronunciation
and meaning and create similar commercial impressions.
As for the appearance of the marks, both are similar
insofar as the word “Fontaine” is concerned. The
differences in the design elements are not sufficient to
distinguish the marks. Rather, given the identical nature
of the word elements, the differences in the designs is
likely to be viewed by consumers as variations of the
FONTAINE mark, with all three marks indicating origin in a
Serial Nos. 78652685 and 78655199
- 8 -
single source. As to the design search codes for each of
these marks assigned by the United States Patent and
Trademark Office, these numbers reflect an internal coding
system used for trademark searches, and they have
absolutely no bearing on the commercial impressions created
by each mark in the minds of potential purchasers of
applicant’s and registrant’s goods.
On balance, then, we find that applicant’s marks are
similar to registrant’s mark as to sound, meaning and
commercial impressions, and in appearance to the extent
that they share the same word element, and hence, that this
critical du Pont factor favors a finding of likelihood of
confusion.
The Goods and their channels of trade
In spite of applicant’s spirited arguments to the
contrary, inasmuch as the goods in the cited registration in
International Class 9 are unrestricted as to use, these
“automatic valves”4 have to be considered to be used for

4 Applicant has submitted evidence regarding the actual goods
on which registrant uses its mark. However, we must determine
likelihood of confusion on the basis of the goods as they are
identified in the cited registration. See In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) [evidence that
relevant goods are expensive wines sold to discriminating
purchasers must be disregarded given the absence of any such
restrictions in the application or registration].
Serial Nos. 78652685 and 78655199
- 9 -
whatever purposes are appropriate for such valves, and we
must presume that they will be sold in all appropriate
channels of trade for valves that have such uses. The
Internet evidence placed into the record by the Trademark
Examining Attorney shows that automatic valves can be used
in faucets, so applicant’s and the registrant’s goods must
be deemed complementary and therefore related:
The Trademark Examining Attorney submitted
evidence of an online company that touts itself as the
largest distributor of plumbing, heating, cooling, and
piping products in the northeast USA. The web pages
indicate that F. W. Webb Company supplies, inter alia,
automated shut-off valves, and plumbing parts such as
drains, faucets and spouts.5 The web pages also indicate
that its customers include plumbers, HVAC technicians,
institutional purchasing agents and others in allied
industries.6
The record contains web pages from Jay R. Smith
Manufacturing Company – a manufacturer of plumbing (e.g.,

5 http://www.fwwebb.com/

6 http://www.fwwebb.com/

Serial Nos. 78652685 and 78655199
- 10 -
including automatic valves) and drainage products in the
non-residential construction industry.7
The webpages for Montana Supply indicate it to be
a company that offers water supplies and services to
contractors and individuals in Idaho, Wyoming and Montana.
Menus within these web pages show that the variety of goods
it offers includes fixtures, plumbing fittings, faucets and
pumps.8
Scotts Valley Sprinkler and Pipe Supply lists its
many products, including automatic valves, as being
available to those in need of landscaping and plumbing
services.9
An advertisement for an Automatic Yard Watering
System having as one of its components “two automatic leak-
free valves.”10
In the context of automated restroom technology,
the record shows a number of excerpts:
Autoflushers.com offers automatic flush valves, automatic faucets,
automatic soap dispensers, automatic paper towel dispensers, and
automatic metered air freshener dispensers.11

7 http://www.jrsmith.com/

8 http://www.mountainsupply.com/

9 http://www.svsprinklerandpipe.com/products.html

10 http://store3-store.stores.yahoo.net/orcoauwakit.html

11 http://www.autoflushers.com/
Serial Nos. 78652685 and 78655199
- 11 -

Water Use
Bathroom Fixtures
Best Practice Guide
Commercial Office Buildings
Without question, replacing high-volume plumbing fixtures is critical.
… Cushman & Wakefield also converted all sink faucets and toilets to automatic
valves that use infrared technology to turn on and shut off water flows. All
plumbing fixtures, including showers available to encourage employees to bicycle
to work, are equipped with low-flow aerators.
12
TITLE: Two-For-One Restroom Savings
HEADNOTE: A closer look at products, technology and processes that
can ensure both cost-effectiveness and cleanliness
…
Sink features should include low water consumption and
no-hands, automatic, battery-operated cold- and hot-
water valves that are vandal proof…13

Old Dominion University, Norfolk, VA
In coordination with the Virginia Energy Plan, Old Dominion University has a
comprehensive Energy Management Plan to reduce all utilities usage including
water consumption. Results: Reduction of water consumption in building air
conditioning cooling towers was accomplished by installing devices that treat
condenser cooling water, while reducing the need for "blow down" water.
Usage of water in restrooms was reduced by installing automatic
valves on sinks, urinals and toilets. Flush cycles have been shortened in
toilets by installing spacers in water valves. Sources other than potable water
supplies are being researched to irrigate playing fields and campus plant life.
Expansion of these techniques to all the facilities is estimated to save over one
million gallons of water per year.14

12 http://www.fypower.org/bpg/module.html?b=office
s&m=Water_Use&s=Bathroom_Fixtures

13 Maintenance Solutions, by Thomas A. Westerkamp, July 1
2000.

14 http://www.hrwet.org/b%26i%5Fguide/app4.htm
Serial Nos. 78652685 and 78655199
- 12 -
Moreover, the Trademark Examining Attorney also has
submitted some third-party registrations that show goods
such as registrant’s automatic valves and applicant’s
faucets and plumbing fittings are of a kind that may
emanate from a single source. The two that are most
relevant are as follows:15
PHARO for, inter alia, “… automatic
valves” in International Class 9;
“water supply apparatus and
sanitary installations, namely,
mixing valves, manually and
automatically operated regulating
valves for the supply and
draining of water in drains;
sanitary wastes and overflows,
mixer-tap faucets for baths and
showers, showers and shower
enclosures; showers and shower
combinations, namely, overhead
showers, lateral showers,
showerhead holders, plumbing
fittings, namely, traps; lighting
apparatus, namely, electric
lighting fixtures for bathrooms;
and repair parts of the
aforementioned goods” in
International Class 11;16

15 We do note that at least two of the six third-party
registrations that the Trademark Examining Attorney attached to
her final Office action of August 18, 2006 did not involve
registrations of marks that were based on use in commerce (e.g.,
Registration Nos. 2708373 and 2754880).

16 Registration No. 2098540 issued to Hansgrohe AG, a German
joint stock company, on September 23, 1997; renewed. This
registration has five active classes of goods, including
International Classes 6, 17 and 20.

Serial Nos. 78652685 and 78655199
- 13 -

for, inter alia, “automatic
control valves for use in fluid
flow control, namely, pressure
regulator valves, level control
valves, and flow control valves;
… automatic valves used to
automatically fill and top off
the water in individual central
heating system radiators;
automatic valves used to
automatically vent unwanted air
from individual central heating
system radiator; … automatic
plumbing, heating and solar
control devices, namely, valve
actuators, automatic control
valves, water/steam pressure
regulators, pressure reducers,
shock and water hammer arresters,
dielectric unions, current-
sensing automatic shutoff valves
…” in International Class 9; and
“ … plumbing fittings, namely,
bibs, cocks, traps, valves, and
strainers; … faucets; … shower
diverter bath cocks; diverter
spouts; … bathtub drain valves; …
stop valves, pipe plugs, kitchen
and bathroom faucets and
replacement parts therefor; sill
cocks; gas cocks; … drains, drain
fittings, floor drains … sinks;
water treatment units, namely,
reverse-osmosis units, filtration
units, ultraviolet sterilization
units, in-line water filters, and
water pumps for water treatment
and filtration units; … water
treatment kits consisting
primarily of water storage tanks,
water filters and filter
adapters, membranes, flow
restrictors, ultraviolet light
bulbs, and filter wrenches; water
disinfection kits consisting of
ultraviolet modules and power
sources, water pressure testers,
water pressure regulators, air
pressure gauges, and chemical
Serial Nos. 78652685 and 78655199
- 14 -
water test and treatment kits,
all for domestic, industrial and
commercial use; faucets, namely,
air and non-air gap faucets; …
floor sinks; shower arms; faucet
hold covers; sink traps; bath
drains; bath overflow valves;
bath drain trim, bath drain
conversion kits consisting of a
bath strainer assembly comprising
bushing and face plate; faucets;
quarter-turn water supply stop
valves; shower controls, mixers,
fittings, and valves; control
valves for controlling fluids and
gases, for heating and air
conditioning systems, and for
water heaters and industrial
processes, namely, commercial
plumbing, municipal waterworks,
fire protection, irrigation,
aviation fueling, theme parks,
decorative fountains, reclaimed
water, and original equipment
manufacturing; bath drains; sink
strainer assemblies, and sink
strainer inserts and baskets” in
International Class 11.17

We readily concede that these third-party
registrations are sparse evidence to show that goods are
related. However, we rest our finding that applicant’s
goods and the automatic valves in Class 9 of the cited
registration are related on the complementary nature of the

17 Registration No. 3072443 issued to Watts Regulator Co. on
March 28, 2006. The goods and services in this registration
included more than 1700 words, with goods and services in eight
classes, including International Classes 6, 7, 17, 20,, 21 and
35. The mark consists of the letter "W" rising out of water.
The stippling and lining are intended to show the water
background and are not limited to the shape or size as shown.

Serial Nos. 78652685 and 78655199
- 15 -
goods, and the Internet evidence showing that such goods
emanate from a single source, and view the third-party
registrations merely as corroboration for our conclusion
that this du Pont factor favors a finding of likelihood of
confusion.
The number and nature of similar marks in use on similar goods.
Applicant also argues that inasmuch as the term
“Fontaine” is translated in the cited registration as
“Fountain,” the cited mark is weak, and hence entitled to
only a limited scope of protection. However, the
translated term “Fountain” is, at worst, suggestive of the
identified goods. It also has the same suggestive meaning
within applicant’s marks. Although suggestive marks are
entitled to a narrower scope of protection than are
arbitrary marks, they are still entitled to protection from
use of highly similar marks for related goods. We also
note that there is no evidence in the record of third-party
use of FOUNTAIN/FONTAINE marks in the field of plumbing
fixtures or fittings.
Conditions of Purchase
As to the du Pont factor of the conditions under which
and buyers to whom sales are made, we agree with applicant
Serial Nos. 78652685 and 78655199
- 16 -
that registrant’s goods, as identified in its registration,
are purchased substantially by sophisticated customers.
Even so, this does not mean that they are immune from
source confusion when nearly identical marks are used on
complementary and otherwise closely related goods. See In
re Decombe, 9 USPQ2d 1812 (TTAB 1988). Hence, although
this factor favors applicant, it does not serve to overcome
the factors of the similarity of the marks and the
relatedness of the goods that favor a finding of likelihood
of confusion.
Absence of Actual Confusion
As for applicant’s claim of periods of actual
confusion, there has not been a sufficiently long period of
contemporaneous use for this to be a meaningful factor, and
we certainly do not have on this record evidence about the
levels of promotion and/or geographical areas of use of
applicant’s marks and of registrant’s mark in the United
States from which we could conclude that there has been an
opportunity for confusion to occur, if it were going to
occur. Hence, we deem this to be a neutral du Pont factor.
Serial Nos. 78652685 and 78655199
- 17 -
Conclusion
In view of the relatedness of applicant’s goods and
the automatic valves in International Class 9 of the cited
registration, and the similarities of the marks, as
discussed above, we find that applicant’s marks for its
identified goods are likely to cause confusion with the
cited registration. In particular, the similarity of the
marks in sound, connotation and commercial impression
outweighs any differences caused by the design features in
each mark, and the similarities in the marks and goods also
outweigh any sophistication of the purchasers of
registrant’s goods.
Decision: We affirm the refusals to register based
upon Section 2(d) of the Lanham Act.