Louise A. Rollins

Trademark Trial and Appeal Board

Dec 10, 1997

No. 74469383 (T.T.A.B. Dec. 10, 1997)

Paper No. 15
HANAK/MD
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC 10, 97
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Louise A. Rollins
________
Serial No. 74/469,383
_______
Bernhard Kreten for Louise A. Rollins
Andrew P. Baxley, Trademark Examining Attorney, Law Office
104 (Sidney I. Moskowitz, Managing Attorney)
_______
Before Cissel, Hanak and Walters, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Louise A. Rollins (applicant) seeks registration of
CASTMASTER in typed capital letters for “threaded metal pins
and plugs used in the repair of cracks in metal castings.”
The application was filed on December 14, 1993 with a
claimed first use date of June 17, 1993.
The Examining Attorney refused registration pursuant to
Section 2(d) of the Lanham Trademark Act on the basis that
applicant’s mark, as applied to applicant’s goods, is likely
to cause confusion with the mark CAST MASTERS, previously
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registered in the form shown below for “precision metal
castings.” Registration No. 732,368 issued June 5, 1962.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request a hearing.
In any likelihood of confusion analysis, two key
considerations are the similarities of the marks and the
similarities of the goods. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Considering first the marks, we find that they are
virtually identical in terms of pronunciation and meaning.
The fact that applicant’s mark is depicted as one word and
registrant’s mark is depicted as two words is of virtually
of no consequence. Likewise, the fact that applicant’s mark
is depicted in the singular form and registrant’s mark is
depicted in the plural form is of virtually no consequence.
Moreover, in terms of visual appearance, the marks are
extremely similar. Applicant makes the argument that her
“mark is in the form of an unstylized word mark … [whereas]
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the registrant’s mark is depicted in a highly stylized
form.” (Applicant’s brief page 5). However, what applicant
fails to note is that because her drawing is depicted in
typed capital letters, then pursuant to Trademark Rule of
Practice 2.51(e) “this means that [applicant’s application]
is not limited to the mark [CASTMASTER] depicted in any
special form.” Phillips Petroleum Co. v. C. J. Webb, Inc.,
442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971). Thus, applicant
is free to depict her mark in typical script form, as does
the registrant. When so depicted, the two marks are
extremely similar in terms of visual appearance. See also
INB National Bank v. Metrohost Inc., 22 USPQ2d 1585, 1588
(TTAB 1992).
It is been held that in appropriate cases, marks will
be held to be confusingly similar if there is sufficient
similarity as to either visual appearance or pronunciation
or meaning. Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728,
156 USPQ 523, 526 (CCPA 1968). In this case, the two marks
are virtually identical in terms of pronunciation and
meaning, and when both marks are depicted in normal script
form, they are extremely similar in terms of visual
appearance.
Turning to a consideration of applicant’s goods and
registrant’s goods, it must be remembered that when “the
marks are the same or almost so, it is only necessary that
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there be a viable relationship between the goods or services
in order to support a holding of likelihood of confusion.”
In re Concordia, 222 USPQ 355, 356 (TTAB 1983). See also 3
J. McCarthy, McCarthy on Trademarks and Unfair Competition
Section 23:20 at page 23-46 (4th ed. 1997).
There is no dispute that applicant’s goods are utilized
in the repair of cracks in metal castings. The term “metal
castings” is not limited and thus would include registrant’s
goods, namely, “precision metal castings.” Nevertheless,
applicant argues that “it does not necessarily follow that
[applicant’s goods] will be used to repair registrant’s
precision metal castings.” (Applicant’s brief page 7,
emphasis added). Whether applicant’s actual goods will be
used to repair registrant’s actual goods is not the relevant
consideration. What is relevant is that the goods as
described in the application are used to repair the goods as
described in the registration. Canadian Imperial Bank v.
Wells Fargo Bank, 811 F.2d 1490, 1 USP2d 1813, 1815 (Fed.
Cir. 1987).
We find that the use of nearly identical marks on
precision metal castings and metal pins and plugs used in
the repair of such castings would cause purchasers to assume
that the castings and the repair items come from a common
source. Thus, there exists a likelihood of confusion.
Decision: The refusal to register is affirmed.
Ser No. 74/469,383
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R. F. Cissel
E. W. Hanak
C. E. Walters
Administrative Trademark
Judges, Trademark Trial
and Appeal Board.
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