Maax Canada Inc.

Trademark Trial and Appeal Board

Mar 5, 2008

No. 78873141 (T.T.A.B. Mar. 5, 2008)

Mailed: March 5, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

In re Maax Canada Inc.
_______

Application No. 78873141
_______

George A. Pelletier, Jr., Cantor Colburn LLP;1 Audra Kemp,
Collen IP Intellectual Property Law, PC (on the brief) for
applicant.

James W. MacFarlane, Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Seeherman, Zervas, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Maax Canada Inc. filed an application to register the
mark KUBIC (in standard characters) on the Principal
Register for “shower doors” in International Class 11.2
The examining attorney issued a final refusal to
register under Trademark Act § 2(d), 15 U.S.C. § 1052(d), on
the ground that applicant’s mark so resembles the mark CUBIX
(typed mark), previously registered for the goods in the

1 After Ms. Kemp briefed this appeal, applicant filed a power of
attorney appointing Mr. Pelletier, and revoking its previous
power of attorney to Collen IP.
2 Filed May 4, 2005, alleging a bona fide intent to use the mark
in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Application No. 78873141
2
three registrations set out below3 that it would, if used on
or in connection with the identified goods, be likely to
cause confusion.
Registration Class Goods
3094080 6 Plumbing fixtures, namely, water supply pipe elbows of
metal, metal bath grab bars, metal shower grab bars,
metal robe hooks, and adjustable metal wall brackets
3094078 11 Plumbing fixtures and plumbing hardware, namely,
handshowers, adjustable handshower slide bars,
showerheads, thermostatic shower control valves, wall
mounted water volume control valves for showers, tub
spouts and faucets
3094079 21 Towel rings, towel bars, and toilet tissue holders

Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm.
I. Applicable Law
We base our determination under Section 2(d) on an
analysis of all of the probative evidence of record bearing
on the likelihood of confusion. See In re E.I. du Pont de
Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973);
see also Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005); In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).

3 All three registrations, owned by the same party, issued June
15, 2004, and were based upon allegations of use and first use in
commerce as of May 2004.
Application No. 78873141
3
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 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); In re
Azteca Restaurant Enter., Inc., 50 USPQ2d 1209 (TTAB 1999).
II. Record on Appeal
The examining attorney submitted the following evidence
in support of the refusal to register:
• Fifteen use-based registrations covering “shower
doors,”4 as well as one or more of the cited
registrant’s goods.

• Pages from four websites offering for sale shower
doors as well as one or more of the cited
registrant’s goods.

Applicant has submitted the following evidence in
support of registration:
• A list of 21 registrations and applications from
the USPTO’s TESS database for marks consisting of
or including the term “CUBIX,” which applicant
asserts show that “the word CUBIX could be

4 Several additional registrations covered “shower enclosures,”
but not shower doors. Because these do not appear to be the same
goods, they have not been included in this total. Two
registrations covered “retail store services” and “importing
services,” respectively, in the field of shower doors and one or
more of the cited registrant’s goods. While these registrations
may suggest that such goods move in the same channels of trade,
they have likewise not been counted because they do not indicate
that the goods themselves are sold under the same marks.
Finally, we note that one of the registrations (covering “shower
doors” and “bathtub doors and faucets”) is owned by applicant.
Because it is not a third-party registration, it has also not
been counted for this purpose.
Application No. 78873141
4
registered several times by more than one owner,
therefore reducing the scope of protection of this
mark.”

• Copies of third-party registrations and
applications which applicant asserts shows that
refusal of applicant’s registration would be
inconsistent and inequitable:

o Registration No. 2526467 for UBIC for
“business management and business consulting
in the food and biochemical industries;

o Registration No. 2184027 for UBICS for
“personnel placement services, namely to
provide next-generation technical expertise
to MIS departments”;

o Application No. 78591902 for RUBIK for
“online computer games...,” “computer game
software; ... computer peripherals....”;

o Registration No. 1368694 for RUBIX for
“computer programs for database management
... excluding games and entertainment
software.”

o Registration No. 3154522 for CUBE for “glass
used for manufacturing shower doors.”

o Registration No. 2721796 for CUBIST for “bath
and plumbing fittings, namely, ... faucets;
showers; shower plumbing and fittings....”

o Registration No. 2869322 for QWC QBIX (under
Trademark Act § 44) for “plumbing supplies,
namely faucets for showers, bathtubs...;
handshowers and spray-heads for ... showers;
plumbing fittings, namely, valves and mixing
valves....”

• An excerpt from the introduction to Freedonia
Group, Inc., Industry Study 2045 (2006), which
applicant asserts shows the difference between
“plumbing fixtures” and “plumbing fittings”

• Pages from applicant’s web site and registrant’s
catalog, which applicant asserts shows that
applicant’s business is mainly in the plumbing
Application No. 78873141
5
fixtures arena, while the registrant is mainly in
the plumbing fittings business.

• A press release, which applicant asserts shows
that registrant’s products “are custom made
products sold to luxury commercial consumers,”
unlike applicant’s goods which are standard goods
sold to “bathroom products boutiques.” Response
to Office Action, p. 8 (November 28, 2006).

Before turning to the merits of the case, we note the
examining attorney’s objection in its brief to consideration
of applicant’s list of CUBIX marks. The examining attorney
is generally correct as to the admissibility of a list of
registrations. In re Carolina Apparel, 48 USPQ2d 1542, 1543
n.2 (TTAB 1998)(“The Board does not take judicial notice of
third-party registrations, and the mere listing of them is
insufficient to make them of record.”). However, it does
not appear that he objected to the list when it was
submitted in response to his first office action or at any
time prior to briefing, i.e., at a point when applicant
could have remedied any deficiency in the form of its
evidence. Accordingly, we overrule the examining attorney’s
objection, and we have considered the list for whatever
probative value it may have.
III. Discussion
A. Similarity of the Marks
Applicant’s mark is KUBIC, while the mark in the cited
registrations is CUBIX. The marks would be pronounced
almost the same, with the only difference between them
Application No. 78873141
6
consisting of a phonetic “-s” ending, which is absent in
applicant’s mark. While neither mark is spelled with an
“-s” ending, the presence or absence of this sound creates
very little distinction between the two, as this sound is
ubiquitously used in pronouncing plurals. Kabushiki Kaisha
Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985)
(SEYCOS is “virtually the phonetic equivalent of” SEIKO).
As for the meaning of the marks, the examining attorney
argues that the marks “share the same basic root word” i.e.,
“cubic.” While spelled differently, we agree that because
of their pronunciation, both marks convey the impression of
a cube.
Focusing on the marks’ appearance, applicant argues
strenuously that “[i]t is not intuitive to purchasers who
visualize the mark[] CUBIX to infer that the owner would
alter the spelling and market impression of its brand by
changing the initial ‘C’ to a ‘K’ and as well as the ending
‘X’ to a ‘C.’ Confusion as the source for these two
different marks is highly unlikely.” Applicant’s Brief at
5.

Applicant’s argument misses the point. The question in
determining whether a likelihood of confusion exists is not
whether people will confuse the marks, but whether the marks
will confuse people into believing that the goods they
Application No. 78873141
7
identify come from the same source. In re West Point-
Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972).
Moreover, as has often been reiterated,
[t]he 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 their entireties 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 a general rather
than a specific impression of trademarks. Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).

Schering-Plough HealthCare Products Inc. v. Ing-Jing Huang,
84 USPQ2d 1323 (TTAB 2007).
Notwithstanding the differences in their appearance,
we nonetheless find that the overall commercial impression
of KUBIC and CUBIX is substantially similar because of their
almost identical pronunciation and identical meaning, which
outweigh the difference in their appearance. This factor
supports the examining attorney’s refusal.
B. Similarity of the Goods
Applicant argues that the differences between its goods
and those of the cited registrant indicate that confusion is
not likely.
The goods are entirely different: Applicant has
limited its goods to a very narrow, specific
industry within an industry, namely, shower doors.
The applicant is not active in the plumbing
fittings market, whereas the registrant
specializes in the plumbing fittings market. A
consumer is unlikely to see these two goods
together and be confused as to the source of the
Application No. 78873141
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goods because the goods are sufficiently
distinguishable and sold in different stores.

Applicant’s Brief at 6-7.
The Industry Study excerpt submitted by applicant
speaks about plumbing fixtures and fittings:
This study analyzes supply and demand for plumbing
fixtures and fittings in the US. Plumbing fixtures
include bathtubs, showers, toilets, sinks, bidets,
drinking fountains, and hot tubs and spas. Plumbing
fittings include lavatory fittings, kitchen and other
sink fittings, bathtub and shower controls, and
miscellaneous fittings such as flush valves and
controls. ... The entire report is framed within the
plumbing product industry’s economic, technological and
market environments.

Freedonia Group, Inc., Industry Study 2045 xii (2006).
The examining attorney questions the relevance of this
evidence, Examining Attorney’s Brief at 10-11, and we agree
that it is entitled to little, if any, weight. From the
small excerpt of record, the Freedonia study seems to be an
analysis of the supply and demand for such products, and not
a study of the goods, their channels of trade, or consumer
perception. Notably, the excerpt does not indicate that
plumbing fittings are sold in different channels of trade.
Applicant’s focus on the difference between “plumbing
fittings” and bathroom or plumbing “fixtures” is misplaced.
The various labels that the industry places on such products
is not particularly relevant, because it has not been shown
that the relevant consumers are familiar with such
classifications. Further, the distinctions that applicant
Application No. 78873141
9
has drawn between plumbing fixtures and plumbing fittings is
undercut by its own Registration No. 3106206 which – as
noted above – was submitted by the examining attorney. The
‘206 registration covers “bathtubs, showers and shower-
baths, ... shower doors, bathtub doors and faucets,”
indicating that applicant itself has adopted the same mark
for both plumbing fixtures and plumbing fittings. More
importantly, the examining attorney’s evidence demonstrates
that – notwithstanding any such distinction – the goods are
nonetheless related and the market for their sale is far
from being separate.
The examining attorney has submitted a number of third-
party registrations covering both “shower doors” and one or
more of the goods identified in cited Registration Nos.
3094078 and 3094079.5 For instance, fifteen of the
registrations included shower doors and shower heads,
sprayers or hand held showers. Ten registrations included
both shower doors and faucets or faucet spouts. Eight of
the registrations included shower doors and shower control
valves or thermostatic shower valves, and eight identified
shower doors and towel bars or towel rings. Third-party
registrations which individually cover a number of different
items and which are based on use in commerce may serve to

5 None of the third party registrations shows goods in common
with cited Reg. No. 3094080.

Application No. 78873141
10
suggest that the listed goods are of a type that may emanate
from a single source. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1469 (TTAB 1988), aff'd (unpublished) No. 88-
1444 (Fed. Cir. Nov. 14, 1988). Consumers encountering
applicant’s goods are thus likely to assume that they
emanate from the same source as the cited registrant’s
goods.
Moreover, it cannot escape notice that “shower doors”
are complementary to many of the goods listed in the cited
registrations. Applicant’s goods and several of those in
the cited registrations are explicitly related to showers,
e.g., shower doors and items such as showerheads (Reg. No.
3094078) and shower grab bars (Reg. No. 3094080), while
there is an inherent relationship between shower doors and
towel rings and towel bars (Reg. No. 3094079), with
consumers wanting such items to match or be complementary.
Thus, the ordinary consumer who is choosing fittings and
fixtures to be used in remodeling a bathroom is likely to
encounter both shower doors and the other items, listed
above, which are used in connection with showers.
We find that the goods are related, a conclusion which
supports the refusal of registration.
Application No. 78873141
11
C. Channels of Trade
As demonstrated by Internet evidence submitted by the
examining attorney, there is a significant overlap in the
channels of trade for shower doors and the goods identified
in the ‘078 and ‘079 Registrations. For instance, in
addition to shower doors, eShower Door offers towel bars;
Bathroom Heaven offers shower heads and towel racks;
Sterling Plumbing offers tub faucets; and Kohler offers
towel rings, showerheads, and faucets.6
Nonetheless, applicant argues it and the registrant are
involved in different and distinct lines of business: “The
Applicant’s shower doors do not travel in the same channel
of trade as the Registrant’s products. Applicant’s shower
doors are custom made products sold to luxury commercial
customers.”7 Applicant’s brief at 7-8.
Applicant has submitted pages from its web site and
from the registrant’s catalog in an effort to show the true
nature of their respective businesses. However, such

6 We acknowledge that the Internet evidence does not show that
shower grab bars and shower doors are sold through the same
websites. Although we cannot conclude based on this evidence
that these particular goods are sold in the same channels of
trade, they could certainly be encountered by the same consumers
as they choose items for a new or replacement shower.

7 We note that applicant had previously characterized the press
release it introduced in evidence as stating that it is
registrant’s goods that are custom made products sold to luxury
commercial customers. See page 5. As discussed infra, whether
it is applicant’s or registrant’s goods that are custom made and
sold to luxury commercial customers is irrelevant to our decision
herein.
Application No. 78873141
12
evidence is not persuasive for this purpose. It is long-
settled that our analysis in this regard must be limited to
the goods as they are set out in an application and in any
cited registrations. Where those goods or services are
identified broadly, we must construe them as such, despite
evidence that the applicant or registrant is engaged in more
limited activities than would be covered by its application
or registration. See, e.g., Canadian Imperial Bank of
Commerce, N.A. v. Wells Fargo Bank, 1 USPQ2d 1813 (Fed. Cir.
1987); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); In re
Linkvest S.A., 24 USPQ2d 1716, 1717 (TTAB 1992). As a
corollary, when the identification is not limited, the goods
must be construed to (1) move in all of the usual channels
of trade for such goods; and (2) be purchased by the full
range of potential purchasers of the goods of that type.
Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119
USPQ 139, 139-40 (CCPA 1958). Accordingly, extrinsic
evidence may not be used to limit the scope of broadly
identified goods or services or the natural channels of
trade for such goods.
Applicant’s argument that its goods and those of the
prior registrant are actually narrower, and move in
different channels of trade, asks us to narrow the scope of
the application and the cited registration, which we may not
do. Instead, we find that such goods may be sold through
Application No. 78873141
13
the same channels of trade, such as the websites submitted
by the examining attorney, as well as the “brick and mortar”
equivalents of such sites, including bathroom and plumbing
supply outlets.
Accordingly, we find the channels of trade for the
respective goods to at least overlap, a factor which
supports the refusal to register.
D. Degree of Care/Sophistication of Purchasers
Applicant argues that its “goods are sold to commercial
consumers who will demonstrate a high degree of care and
knowledge in purchasing their goods” and that the
“Registrant’s goods are generally sold to experts or
individuals seeking to restore or replace their own bathroom
fittings.” Applicant’s brief at 8. But again, we may not
import extrinsic limitations into an identification.
Regardless of what may be otherwise shown, we must consider
the goods to be sold to all usual purchasers for goods of
this type. These purchasers would include not only the
commercial customers whom applicant has identified as its
consumers, but individuals who wish to remodel their
bathrooms and would purchase both shower doors and, inter
alia, handshowers, slide bars, (Reg. No 3094078) towel rings
and towel bars (Reg. No. 3094079), and shower grab bars
(Reg. No. 3094080). These customers include the general
public.
Application No. 78873141
14
There is little evidence in the record of the usual
price of the goods at issue. The pages submitted by the
examining attorney from the Kohler website show shower doors
costing between $322.75 and $2,564.00, and showerheads
ranging from $54.75 to $125.10. However, it is not clear
whether these prices are representative. Goods such as
showerheads, towel rings, towel bars and grab bars may be
relatively inexpensive. While such items are unlikely to be
purchased on impulse, we are not convinced that they involve
the kind of deliberation and investigation which would
mitigate source confusion. In any case, even consumers who
exercise care in making their purchasing decisions are not
necessarily knowledgeable regarding the trademarks at issue,
and therefore immune from source confusion. In re Wilson,
57 USPQ2d 1863, 1865-66 (TTAB 2001)(where marks are very
similar and goods related, confusion may be likely even
among sophisticated purchasers); In re Decombe, 9 USPQ2d
1812, 1814-1815 (TTAB 1988)(“Being knowledgeable and/or
sophisticated in a particular field does not necessarily
endow one with knowledge and sophistication in connection
with the use of trademarks.”).
Accordingly, we consider this factor neutral in our
analysis.
Application No. 78873141
15
E. Third-party Marks
Applicant makes several arguments regarding third-party
applications and registrations. As noted, applicant
submitted a list of twenty-one registrations and pending
applications for marks comprising or including the term
CUBIX to show that it has been registered “several times by
more than one owner, therefore reducing the scope of
protection of this mark.” Of this list, only nine
registrations are entitled to any probative value. Pending
applications are evidence only of the fact that they have
been filed, and expired or cancelled registrations are of no
evidentiary value.
While we have considered applicant’s list, it is
entitled to little or no weight in our analysis.
Applicant’s list does not include the goods associated with
the registrations, nor does it include the identity of their
owners (the cited registrant owns at least three of the nine
“live” registrations). Although third-party registrations
can be used to show that a term has some significance in a
particular industry, because the list submitted by applicant
does not indicate the goods or services for the respective
marks, we cannot ascertain whether the term has any
significance as applied to the applicant’s or the
registrant’s goods.
Application No. 78873141
16
Applicant further argues that the registration (or
pending application) of UBIC and UBICS, RUBIK and RUBIX, and
CUBE, CUBIST and QWC QBIX demonstrate that refusal of
applicant’s registration would be inconsistent and
inequitable. Again, the third-party application has no
probative value, nor do the registrations for UBIC and UBICS
and RUBIK and RUBIX, which are for very different marks and
goods. We acknowledge that the registrations for CUBIST and
QWC QBIX are for goods similar to those at issue herein.8
However, there are differences between a recognized word,
CUBIST, and an invented term QBIX, which also contains the
letters QWC, and we regard these differences as being
greater than those between KUBIC and CUBIX. In any event,
“[t]he Board must decide each case on its own merits. Even
if some prior registrations had some characteristics similar
to [applicant’s] application, the PTO's allowance of such
prior registrations does not bind the Board or this court.”
In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001)(citations omitted). In summary, we cannot
conclude from the third-party registrations that that KUBIC
has any descriptive or suggestive meaning with respect to
the identified goods, we consider the mark to be arbitrary,
and thus strong.

8 The registration for CUBE is for glass used in manufacturing
shower doors, and therefore would be sold to a different class of
consumers than the goods identified in the registrations for
Application No. 78873141
17
IV. Conclusion
After careful consideration of the briefs and the
evidence of record, we conclude that applicant’s mark is
likely to cause confusion as to the source or sponsorship of
such goods with the marks in each of the cited
registrations. While we admit that our decision is not
entirely free of doubt, we must resolve that doubt in favor
of opposer, the prior registrant. See Hard Rock Cafe Int’l
(USA) Inc. v. Elsea, 56 USPQ2d 1504, 1514 (TTAB 2000); W.R.
Grace & Co. v. Herbert J. Meyer Indus., Inc., 190 USPQ 308,
311 (TTAB 1976).
Decision: The refusal under Trademark Act § 2(d) is
affirmed.

CUBIST/QWC QBIX.