Held

Trademark Trial and Appeal Board

Jan 10, 2006

No. 76513338 (T.T.A.B. Jan. 10, 2006)

Mailed: January 10, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Held
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Serial No. 76513338
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Paul M. Denk for Robert F. Held.

Dezmona Mizelle-Howard, Trademark Examining Attorney, Law
Office 110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Hohein, Zervas and Kuhlke, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

Robert F. Held has appealed from the final refusal of
the trademark examining attorney to register CITRUS SPARKLE
(in standard character form) as a trademark for “an air
freshener that applies directly onto an air vent register”
in International Class 5.1 Applicant has entered a
disclaimer of “CITRUS” apart from the mark as shown.

1 Application Serial No. 76513338, filed April 28, 2003,
asserting a bona fide intention to use the mark in commerce under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76513338
2
The examining attorney has refused registration
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the previously registered mark SPARKLING CITRUS2 (in
standard character form) for “[c]andles” in International
Class 4, and “[a]ir fresheners and deodorizers; fragrances
sold as an integral component of air fresheners and
deodorizers” in International Class 5, as to be likely,
when used on applicant's goods, to cause confusion or
mistake or to deceive. The cited registration also

On October 1, 2004, applicant – in response to the final Office
action - filed a request for reconsideration including an
amendment to the identification of goods from “[a]n air freshener
that applies directly onto an air vent register” to “[a]ir
freshener that applies directly to the intake vent of an air vent
register.” In her Office action mailed on November 8, 2004, the
examining attorney stated that “applicant's request for
reconsideration is denied,” but did not specifically comment on
the amendment. The Office’s electronic database shows that
applicant's amendment has been entered into the electronic
record. In his brief, applicant identifies his goods using the
original identification of goods. Similarly, the examining
attorney, in her brief, identifies applicant's goods as “an air
freshener that applies directly to the air vent,” which is the
original identification of goods without the word “register.”
Because applicant has amended his identification of goods, the
examining attorney has not specifically objected to the amendment
and the Office’s electronic database identifies the involved
goods as those of the amendment, we consider the identification
of goods in applicant's application as the amended identification
of goods, i.e., “[a]ir freshener that applies directly to the
intake vent of an air vent register.” (Our decision in this
case, however, would not be any different if we considered
applicant's goods as the goods identified in the original
identification of goods.)

2 Registration No. 2754402, issued August 19, 2003.
Serial No. 76513338
3
contains a disclaimer of the exclusive right to use CITRUS
apart from the mark as shown.
After the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs.3
Applicant did not request an oral hearing.
Upon careful consideration of the arguments advanced
by applicant and the examining attorney, we conclude that
confusion is likely.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in 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 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
between the marks and the similarities between the goods

3 The examining attorney has referred to certain “attachments” to
her brief (at p. 7) consisting of third-party registrations
showing that “applicant's goods are related to registrant’s
candles as well.” The examining attorney did not earlier
introduce such “attachments” into the record. The record in the
application should be complete prior to the filing of an appeal,
and the Board will ordinarily not consider additional evidence
filed with the Board by the appellant or by the examiner after
the appeal is filed. See Trademark Rule 2.142(d) and TBMP §
1207.01 (2d ed. rev. 2004). Thus, because the “attachments” were
not filed prior to applicant's appeal, we have not further
considered the “attachments.”

Serial No. 76513338
4
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).
We initially turn to the second and third du Pont
factors, i.e., the similarities between registrant's and
applicant's goods and the similarities between registrant's
and applicant's trade channels and classes of purchasers of
those goods. We must make our determinations under these
factors based on the goods as they are recited in the
application and registration, respectively. See In re
Elbaum, 211 USPQ 639 (TTAB 1981).
Both party’s goods are “air fresheners.”4 Although
applicant’s identification of goods adds that the air
fresheners are “applie[d] directly to the intake vent of an
air vent register,” registrant’s identification of goods is
not restricted in terms of the manner of use, and hence,
for purposes of the likelihood of confusion analysis,
encompasses air fresheners that are applied directly to the

4 Applicant states that “the mark of the cited registration is
apparently a fragrance for an air freshener and deodorizer, such
as the fragrances sold as an integral component of the air
fresheners and deodorizers.” (Brief at p. 4.) Applicant’s
characterization of registrant’s identification of goods is not
correct. Registrant's identification of goods includes “[a]ir
fresheners and deodorizers” in addition to “fragrances sold as an
integral component of air fresheners and deodorizers.”

Serial No. 76513338
5
intake vent of an air vent register. Thus, the manner of
use of its goods is irrelevant to our analysis. We
therefore find that applicant's and registrant’s goods are
in part legally identical.5
In the absence of any limitations in the
identifications, it is presumed that the goods move in the
same channels of trade and are purchased by the same
classes of purchasers. Id.
We next consider the first du Pont factor, i.e., the
similarities of the marks. We consider whether they are
similar in appearance, sound, connotation and commercial
impression when compared in their entireties. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691- 92 (Fed. Cir.
2005). The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression that confusion
as to the source of the goods offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains

5 While the examining attorney also finally refused registration
based on "candles" in the cited registration, we need not decide
this issue in view of our finding below that confusion is likely
with respect to registrant's “air fresheners.”

Serial No. 76513338
6
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). Additionally, where, as in the present case, the
marks would appear on virtually identical goods, the degree
of similarity between the marks which is necessary to
support a finding of likely confusion declines. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992).
As applied to the goods at issue, we find that
applicant's mark CITRUS SPARKLE is similar in meaning and
commercial impression to the cited registered mark
SPARKLING CITRUS. Both marks are four-syllable, two-word
marks which contain the word CITRUS. Further, SPARKLING in
registrant's mark is a variation of SPARKLE in applicant's
mark, and similar in meaning. See definition of record of
“sparkle” and “sparkling.”6 Also, applicant has not

6 The definition in the record of “sparkle,” which appears to
have been taken by the examining attorney from the online version
of The American Heritage Dictionary of the English Language, is
as follows:

Sparkle, v.

sparkled, sparkling, sparkles. v. intr.

1. To give off sparks.
2. To give off or reflect flashes of light; glitter.
3. To be brilliant in performance.
4. a. To shine with animation: He has eyes that sparkle.
b. To flash with wit: Her conversation sparkled all
evening.
5. To release gas bubbles; effervesce: Champagne sparkles.
Serial No. 76513338
7
identified any change in meaning which results from the
transposition of CITRUS and SPARKLE or SPARKLING. Viewing
the marks in their entireties, and keeping in mind the
imperfect recollection of purchasers, we find that the
basic similarity between the marks which results from the
presence in both marks of the identical word CITRUS and the
words SPARKLE and SPARKLING, which are similar in meaning
and appearance, outweighs the slight dissimilarity between
the marks which results from the transposition of CITRUS
and SPARKLE or SPARKLING and the difference in form of
SPARKLE and SPARKLING. See In re Wine Society of America
Inc., 12 USPQ2d 1139 (TTAB 1989); and In re Nationwide
Industries Inc., 6 USPQ2d 1882 (TTAB 1988) (RUST BUSTER,
with "RUST" disclaimed, for rust-penetrating spray
lubricant held likely to be confused with BUST RUST for
penetrating oil).7

v. tr. To cause to flash and glitter: Sunlight was sparkling the
waves.

n.
1. A small spark or gleaming particle.
2. A glittering quality.
3. Brilliant animation; vivacity.
4. Emission of gas bubbles; effervescence.

7 Although, in certain cases, the transposition of the terms in a
mark can change the overall commercial impression of the mark
sufficiently to avoid a finding of confusing similarity, we
cannot conclude that this is such a case.
Serial No. 76513338
8
Applicant has noted the disclaimers of CITRUS in both
applicant's application and registrant's registration.
Applicant states:
[B]oth required the disclaimer of the term
CITRUS. This leaves the only significant portion
of the two marks, the words SPARKLE, and
SPARKLING. It is believed, when these marks are
reviewed, and with their disclaimed aspects, that
these are relatively weak trademarks.

We do not agree with applicant that “the only significant
portion of the two marks” are SPARKLE and SPARKLING. In
determining likelihood of confusion, we must consider the
marks as a whole, and not just the non-disclaimed portions
of a mark. Also, even if the marks are “relatively weak
trademarks,” this does not automatically mean that
confusion is not likely. Even weak marks are entitled to
protection against the registration of a similar mark for
essentially identical goods. See Plus Products v.
Pharmavite Pharmaceutical Corp., 221 USPQ 256 (TTAB 1984).
See also King Candy Co. v. Eunice King's Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108 (CCPA 1974) (likelihood of
confusion is to be avoided as much between weak marks as
between strong marks).
In view of the foregoing, we conclude that applicant's
mark CITRUS SPARKLE for “an air freshener that applies
directly onto an air vent register” is likely to cause
Serial No. 76513338
9
source confusion among purchasers with the registered mark
SPARKLING CITRUS for “[a]ir fresheners and deodorizers;
fragrances sold as an integral component of air fresheners
and deodorizers.”
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.8

8 If this case is appealed and our decision herein is reversed,
the application will be returned to the examining attorney for
consideration of the amendment to the identification of goods.