No. 77413887 (T.T.A.B. Oct. 9, 2009)

Liberty Hardware Mfg. Co.

Trademark Trial and Appeal BoardOct 9, 2009

No. 77413887 (T.T.A.B. Oct. 9, 2009)

Mailed: 9 October 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Liberty Hardware Mfg. Corp. ________ Serial No. 77413887 _______ Edgar A. Zarins, Esq. for Liberty Hardware Mfg. Corp. Daniel Capshaw, Trademark Examining Attorney, Law Office 110 (Chris A.F. Pedersen, Managing Attorney). _______ Before Seeherman, Drost, and Wellington, Administrative Trademark Judges. Opinion by Drost, Administrative Trademark Judge: On March 5, 2008, Liberty Hardware Mfg. Corp. (applicant) applied to register the mark MANCHESTER, in standard character form, on the Principal Register for goods ultimately identified as “bathroom accessories, namely, towels, bars, towel rings, toilet tissue holders and tumbler-toothbrush holders” in Class 21. The application (Serial No. 77413887) is based on applicant’s assertion of its bona fide intent to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser. No. 77413887 2 The examining attorney1 has refused to register applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), because of the registered mark MANCHESTER, in typed form, for “door hardware, namely, locks, latches, knobs and hinges” in Class 6 (Registration No. 1754857 issued March 2, 1993, renewed). When the refusal was made final, this appeal followed. Inasmuch as the refusal is based on a likelihood of confusion, we must analyze the evidence in light of the factors set out by the Court of Customs and Patent Appeals in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003); and Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000). In considering the evidence of record on these factors, we must keep in mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). 1 The current examining attorney was not the original attorney in this application. Ser. No. 77413887 3 We begin our analysis by comparing the marks. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). Here, the marks are identical because both are for the word MANCHESTER in typed or standard character form. When the marks are identical, the goods do not have to be as close for there to be a likelihood of confusion. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“[E]ven when goods or services are not competitive or intrinsically related, the use of identical marks can lead to an assumption that there is a common source”). See also Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70, 78 (TTAB 1981) (When both parties are using or intend to use the identical designation, “the relationship between the goods on which the parties use their marks need not be as great or as close as in the situation where the marks are not identical or strikingly similar”). Another important factor is the relationship between the goods at issue in this appeal. Applicant argues that consumers “will not choose decorative items such as bath accessories based upon some perceived connection with functional door hardware. Given that the respective goods are sold through different channels and the buying decisions associated with each of the goods [are] very Ser. No. 77413887 4 different, there is no likelihood of confusion.” Brief at 1. We must consider the goods as they are described in the identifications of goods in the application and registration. Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); and Paula Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods”). It “has often been said that goods or services need not be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that goods or services are related in some manner or that circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances which could give rise, because of the marks used thereon, to a mistaken belief that they originate from or are in some way associated with the same producer or that there is an association between the producers of each [party’s] goods or services.” In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). See also In re Opus One Inc., 60 USPQ2d 1812, 1814-15 (TTAB 2001); and McDonald's Corp. v. McKinley, 13 USPQ2d 1895, 1898 (TTAB 1989). Here, applicant’s goods are bathroom accessories, namely, towels, bars, towel rings, toilet tissue holders and tumbler-toothbrush holders and the cited mark is Ser. No. 77413887 5 registered for door locks, latches, knobs, and hinges. The examining attorney has submitted a combination of internet printouts and third-party registrations as evidence that applicant’s and registrant’s goods are related. Numerous use-based, third-party registrations show that entities have registered the same mark for applicant’s and registrant’s goods. A small number of examples of these registrations is set out below. No. 1590477 THE BROADWAY COLLECTION Door and cabinet hardware, namely, door entrance sets, compris[ed] of door knobs, or levers, escutcheon plates and a latch and lock Towel bars, towel rings, toilet paper holders, toothbrush and tumbler holders No. 1899435 DECORLUX Porcelain, glass and metal bathroom accessories; towel bars, towel rings, tissue roll holders, soap dishes, toothbrush holders Metal hardware for doors; namely, knockers, knobs, handles, handle sets comprising handles, locks, bolts and parts and fittings therefor No. 2303499 EZ-FLO Metal locks … metal door knobs Towel bars, toothbrushes holders and toilet paper roll holders No. 2538694 CALLAN Metal locks, hinges Towel bars and rings, soap dishes; toothbrush holders No. 2563498 ROCKY MOUNTAIN HARDWARE Ser. No. 77413887 6 Door handles, levers, and knobs Towel bars, towel rings, and toilet paper holders No. 2802935 RICHLAND Metal door hardware, namely locks, latches, hinges, kickplates and knobs Bathroom accessories, namely towel bars, towel rings, tissue holders, soap dishes, and toothbrush- tumbler holders No. 3064196 EPITOME Metal door and cabinet knobs, handles, pulls and latches; metal door and window hinges Metal towel bars No. 3019534 BETTER HOME PRODUCTS Metal door latches… metal knobs, metal locks… metal hinges Towel bars, towel holders, towel rings, bath accessories, namely cup holders, toilet paper holders No. 3524672 PAMEX Metal hinges, Metal locks Toilet paper holders; towel bars; towel rings Furthermore, the examining attorney’s evidence shows that bathroom accessories and door locks, latches, knobs, and hinges originate from the same source and are marketed together, often on the same websites. www.DirectHardware.com Sure-Loc Discount door knobs Sure-Loc Boulder Bathroom Accessories (Images of towel bar and towel ring) Sure-Loc Basic Bath Hardware (Images of towel bars and towel ring) www.DirectHardware.com Emtek Doorknobs Emtek Sandcast Bronze Bathroom Accessories Ser. No. 77413887 7 Towel Bars Towel Ring Toilet Paper Holder www.KnobsHardware.com Kwikset Towel Bars Kwikset Towel Rings Kwikset Toilet Tissue Holders www.DirectHardware.com Kwikset Doorknobs www.KnobsHardware.com Hamilton Sinkler Toilet Paper Holder Hamilton Sinkler Towel Bars Hamilton Sinkler Latchset www.KnobsHardware.com Cifial Toilet Paper Holder Cifial Towel Rings Cifial Deadbolt locks www.BaldwinHardware.com Lock Towel Bar Towel Ring Toothbrush Holder Tissue Roll Holder See also www.KnobsHardware.com Baldwin Towel Bars Baldwin Deadbolts Baldwin Tumbler/Toothbrush Holders Baldwin Toilet Tissue Holders www.LibertyHardware.com Hinges Toilet Paper Holders This evidence convinces us that the goods of applicant and registrant are related. In addition, the examining attorney’s evidence indicates that purchasers of these products include not only professionals such as architects, builders, and Ser. No. 77413887 8 contractors, but also homeowners, home sellers, or prospective home buyers. See www.DirectHardware.com (“Replacing your door knobs is a simple and easy upgrade you can make to your home that will make it more saleable”); www.KnobsHardware.com (“Deadbolts are an essential part of any entry set. Featuring a steel bolt, or cylinder, that sinks deep into the doorjamb, deadbolts serve a dual purpose, adding to both the security and style of your home”) and (“We had a custom mahogany door built for our house in Northern Michigan. The HS [Hamilton Sinkler] hardware looked of equal quality to the other brands but more reasonably priced. Our builder didn’t have any experience with it, so I was a little nervous about how it would be”); www.BaldwinHardware.com (“Here is a collection of hardware that can transform your bath into a romantic hideaway”). The purchasers of these products would also overlap inasmuch as they would include home owners, home buyers, architects, and builders that were constructing a new home or remodeling an existing home. We add that the price of many of these items is not particularly expensive. See. e.g., www.LibertyHardware.com (Toilet paper holder MSRP $32.98 and hinge MSRP $12.85); www.DirectHardware.com (“When you sell a home you want to make simple improvements that are not expensive but will Ser. No. 77413887 9 give your home a new feel. By replacing your out of date, worn out or old door knobs your home will look more consistent with new homes on the market making it easier to sell”). In this case the marks are identical and there is no evidence that the registered mark is weak or entitled to only a narrow scope of protection. The evidence establishes that the goods are related and there is no evidence that the purchasers and channels of trade prevent confusion. Therefore, we conclude that confusion is likely. Decision: The examining attorney’s refusal to register applicant’s mark MANCHESTER under Section 2(d) of the Trademark Act is affirmed.