Hantech Corp.

Trademark Trial and Appeal Board

Aug 19, 2005

No. 78266924 (T.T.A.B. Aug. 19, 2005)

Mailed: August 19, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Hantech Corporation
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Serial No. 78266924
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Kit M. Stetina of Stetina Brunda Garred & Brucker for Hantech
Corporation.

Linda E. Blohm, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______

Before Hairston, Walters and Holtzman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Hantech Corporation
(applicant) to register the mark shown below (as amended) for
goods which were ultimately amended to: "Water treatment
equipment components, namely sediment cartridges, carbon block
cartridges, granular activated carbon filters, membrane housings,
membranes, pressure gauges, filter housings, pressure vessels,
reverse osmosis tanks, and reverse osmosis systems" in
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 78266924
2
International Class 11.1

The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when applied to applicant's goods, so resembles
the registered mark LIQUITECH (in typed form) for "liquid
purification units, namely water purification systems" in
International class 11 as to be likely to cause confusion.2

1 Application Serial No. 78266924 was filed on June 25, 2003,
originally based on both Sections 1(a) and 1(b) of the Trademark Act
and alleging first use on May 1, 2003 and first use in commerce on June
27, 2003, a date subsequent to the filing date of the application. In
the first Office action, the examining attorney required that applicant
limit the application to one filing basis and, without noting the
unacceptable date of first use in commerce, advised that if applicant
chose to rely on Section 1(a), applicant would need to submit a
specimen together with a verified statement that the specimen was in
use in commerce as of the filing date of the application. Applicant
amended the application to rely solely on Section 1(a) and submitted a
specimen of use along with an improperly worded declaration stating
that "the mark," rather than the specimen, was in use in commerce as of
the filing date. The examining attorney noted this deficiency for the
first time in her appeal brief. In response, applicant stated in its
reply brief that "Upon a favorable decision by this Board, Appellant
shall provide a properly worded declaration." In the interest of
administrative convenience, and because these are minor procedural
matters that have no impact on the refusal herein, the application will
not be remanded to the examining attorney for resolution of these
issues at this time. However, if applicant ultimately prevails in this
case, the application will be remanded to the examining attorney to
require that applicant either amend the basis for filing to Section
1(b) (intent-to-use), or, if accurate, amend the date of first use in
commerce to a date prior to the application filing date and submit a
properly worded affidavit or declaration in support of the specimen.

2 Registration No. 2770308, issued September 30, 2003 to Liquitech,
Inc. The examining attorney also initially refused registration under
Section 2(d) on the basis of two additional registrations, Registration
Nos. 0991310 and 1666538. At the same time, the examining attorney
Serial No. 78266924
3
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to
the factors bearing on the likelihood of confusion issue,
including the similarities of the marks and the similarities of
the goods. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973).
As to the marks, the examining attorney argues that the
marks are similar in that they are essentially phonetic
equivalents that could be pronounced the same. Applicant, on the
other hand, contends that the marks are different in sound,
appearance and commercial impression. In particular, applicant
notes the differences in spelling and argues that the marks are
not phonetic equivalents because, according to applicant, "the
'A' in LIQUATEC cannot be pronounced in a similar manner to the
'I' in LIQUITECH." (Reply Brief, p. 3.) Applicant contends that
these differences in the marks when properly considered are not
insignificant but instead would have a substantial impact on
purchasers.

referenced application Serial No. 78088995 (filed by Liquitech, Inc.)
as a potential cite against the present application. The examining
attorney withdrew the refusal as to the additional registrations in her
final Office action and, as she notes in her brief, effectively
withdrew the potential cite by not maintaining the reference in that
action.
Serial No. 78266924
4
It is well settled that marks must be compared in their
entireties, not dissected into component parts and the minute
details of each part compared with other parts. Genesco Inc. v.
Martz, 66 USPQ2d 1260 (TTAB 2003). When marks are closely
examined on a side-by-side basis, differences in the marks, no
matter how insignificant, are easy to discern. However, a side-
by-side comparison is not the test. In the normal marketing
environment, purchasers do not usually have an opportunity to
examine marks in detail and normally retain a general rather than
a specific impression of the many trademarks encountered. In re
Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988). Thus, it is
the overall impression of the marks derived from viewing the
marks in their entireties that is controlling. See Dan Robbins &
Associates, Inc. v. Questor Corporation, 599 F.2d 1009, 202 USPQ
100 (CCPA 1979).
When applicant's mark LIQUATEC (stylized) and registrant's
mark LIQUITECH are compared in their entireties, and as they
would be encountered in the marketplace, we find that the overall
similarities in the marks far outweigh their differences.
The marks are similar, if not virtually indistinguishable,
in sound, differing only by a single vowel, the "I" in
applicant's mark and the "A" in registrant's mark. These two
vowels sound similar when the marks are spoken, and if they are
Serial No. 78266924
5
not clearly and distinctly pronounced, the difference may not be
noticed at all.
As the examining attorney points out, similarity in sound
alone has been held to support a finding of likelihood of
confusion. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156
USPQ 523, 526 (CCPA 1968). Nevertheless, these marks are also
similar in appearance. The marks have the same structure, both
consisting of two terms combined to form a single word and both
beginning with visually similar terms, "LIQUA" and "LIQUI," and
ending with visually similar terms, "TECH" and "TEC." Although
applicant's mark is stylized, the stylization is minor and
unlikely to be noted or remembered at all, let alone sufficient
to distinguish one mark from the other. Furthermore, the mark
LIQUITECH, being registered in typed form, could reasonably be
displayed in a form similar to applicant's mark thereby further
enhancing the visual similarity of the two marks. See Phillips
Petroleum Co. v. C. J. Webb Inc., 442 F.2d 1376, 170 USPQ 35
(CCPA 1971); and INB National Bank v. Metrohost Inc., 22 USPQ2d
1585 (TTAB 1992).
Any slight differences in sound and appearance between the
two marks become even less significant when we consider that the
marks, when viewed in the context of the respective goods, have
identical connotations and create identical overall commercial
impressions. The terms, LIQUITEC and LIQUATECH, clearly have the
Serial No. 78266924
6
same suggestive meaning in relation to the respective water
treatment and purification products.3
Thus, while we have considered the differences in the marks,
we find that such differences have a minimal impact on the sound
and appearance of the marks and no affect on the meaning or the
commercial impressions the marks as a whole convey.
We turn then to the goods. The examining attorney argues
that the respective goods are used in conjunction with each other
and relies on printouts from third-party websites to support that
contention. In addition, the examining attorney contends that as
neither applicant's nor registrant's identification of goods
contains any limitations on the channels of trade or classes of
purchasers, the respective channels of trade and classes of
purchasers must be presumed to be the same.
It is well settled that goods need not be similar or
competitive in nature to support a finding of likelihood of
confusion. It is sufficient if the respective goods are related
in some manner and/or that the conditions surrounding their
marketing are such that they would be encountered by the same
persons under circumstances that could, because of the similarity
of the marks used thereon, give rise to the mistaken belief that

3 We take judicial notice of the definitions of "tec" and "tech" as
abbreviations for "technology" in Webster's Third New International
Dictionary of the English Language (1993).
Serial No. 78266924
7
they emanate from or are associated with, the same source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Registrant's goods are "water purification systems."
Applicant's goods are identified as "water treatment equipment
components, namely sediment cartridges, carbon block cartridges,
granular activated carbon filters, membrane housings, membranes,
pressure gauges, filter housings, pressure vessels, reverse
osmosis tanks, and reverse osmosis systems." The goods on their
face are very closely related. Water purification is a form of
water treatment. Applicant's water treatment components would
comprise all or part of a water purification system. Thus, the
respective goods have overlapping, if not interchangeable,
functions and purposes.
Moreover, the printouts of third-party websites submitted by
the examining attorney show that water purification systems
include components such as those identified in the application.
For example, www.greatestherbsonearth.com offers "water treatment
system supplies" that include "water purification" products such
as sediment cartridges, carbon filters, and reverse osmosis
membranes and units; www.spectrapure.com offers carbon block
filters, granulated activated carbon filters and sediment filters
for "water purification systems"; www.inspiredliving.com offers
water purifiers with replaceable carbon block cartridges; and
www.thstore.com offers "water purification" parts and components
Serial No. 78266924
8
including sediment cartridges, carbon block cartridges and
granulated activated carbon cartridges.
Applicant, however, maintains that applicant's goods are
never used in conjunction with the goods of registrant and
specifically that registrant's system in fact does not use the
component parts as listed in applicant's identification of goods.
To support this contention, applicant relies on printouts from
registrant's website and a declaration of its sales manager,
Rodney Carmer, who states: "The water purification system sold
by [registrant] do not [sic] consist of any of the goods recited
in [the subject] application." Further, according to applicant,
registrant's goods are "related to ionization processing" as
distinguished from applicant's goods that are "related to filter
based processing." Applicant also contends that the respective
goods are sold in different markets and serve different purposes,
that is, registrant's system is directed to commercial and
institutional facilities, such as hospitals, and is used to treat
legionella bacteria whereas applicant's water treatment units are
marketed to families and sold to homes for drinking water.4

4 The examining attorney has objected to exhibits A, C, D and E which
were attached to applicant's appeal brief. Exhibit C consists of
registrant's website materials which were submitted by applicant prior
to appeal and are therefore properly of record. However, the objection
to Exhibits A, D and E is well taken. Exhibits A and D consist of
additional portions of registrant's website and exhibit E consists of a
second declaration of applicant's sales manager. Neither of these
exhibits was made of record prior to appeal. Applicant's claim that
the additional evidence "merely clarif[ies] the evidence already made
Serial No. 78266924
9
As our primary reviewing court has often stated, the
question of likelihood of confusion is determined on the basis of
the identification of goods set forth in the application and
registration, without limitations or restrictions as to the
actual nature of the goods, their channels of trade and/or
classes of purchasers that are not reflected therein. See J & J
Snack Foods Corp. v. McDonald's Corp., 932 F.2d 1460, 1464, 18
USPQ2d 1889 (Fed. Cir. 1991); Octocom Systems Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 942, 16 USPQ2d 1783 (Fed.
Cir. 1990); and CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198
(Fed. Cir. 1983). Applicant has read impermissible limitations
into the application and registration. There are no limitations
on the types of components used in registrant's water
purification system, or the function or purpose of registrant's
system in registrant’s identification of goods.5 Thus, whether
water treatment components such as applicant's are in fact part
of registrant's water purification system, or whether registrant
in fact uses the same type of filtration system as applicant is
immaterial.

of record" is unavailing. The evidence was filed after the record in
this case was closed and is therefore untimely. See Trademark Rule
2.142(d). We add, however, that even if we were to consider this
evidence it would not be persuasive of a different result in this case.

5 We note that Mr. Carmer does not state that water purification
systems in general would not consist of any of the goods identified in
the application but only that registrant's particular system does not
include such goods.
Serial No. 78266924
10
Similarly, there are no limitations on the channels of trade
in the identifications of goods in either the application or
registration or on the classes of purchasers. Nor do we find
anything inherent in the nature of registrant's goods which would
limit those goods to institutional or commercial purchasers.
Thus, we must presume that the channels of trade for the
respective goods are the same and further that the goods are
offered to all potential purchasers, including ordinary
purchasers. The third-party website materials show that, indeed,
ordinary consumers such as homeowners, are among the intended
customers for water purification systems and components. For
example, www.greatestherbsonearth.com states: "Important: Always
consult your family health practitioner before starting, changing
or altering your personal health regimen; and
www.inspiredliving.com states: "Water Wizard Purifiers combine
the most powerful water purifying technology available to bring
your family the safest ...water imaginable."
Applicant argues that the purchasers of the respective goods
are sophisticated and would exercise care in their purchasing
decisions. Pointing to the printouts from third-party websites
submitted by the examining attorney, applicant contends that
"component parts for water purification systems are always
ordered with respective part numbers" (Request for Recon., p. 4,
emphasis omitted) and that purchasers would not order a component
Serial No. 78266924
11
until they have fully investigated and identified the source of
the goods, and ensured that the component part to be ordered
matches their system.
While purchasers may be careful about the water purification
systems or components they select, they are not necessarily
sophisticated or experienced in these goods. In any event, even
sophisticated and careful purchasers of goods can be confused as
to source where, as here, the marks are highly similar and the
goods are very closely related. See In re Research Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) citing
Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d
1403, 168 USPQ 110, 112 (CCPA 1970) ("Human memories even of
discriminating purchasers...are not infallible.").
Decision: The refusal to register is affirmed. As we
stated earlier in this decision, if applicant should ultimately
prevail in any appeal of this case, the application will be
remanded to the examining attorney to require that applicant
either amend the filing basis to Section 1(b) (intent-to-use),
or, if accurate, amend the date of first use in commerce to a
date prior to the application filing date and submit properly
worded affidavit or declaration in support of the specimen.