Nigerelli Systems, Inc.

Trademark Trial and Appeal Board

Aug 9, 2006

No. 78309815 (T.T.A.B. Aug. 9, 2006)

Mailed:
August 9, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Nigrelli Systems, Inc.
________

Serial No. 78309815
_______

Joseph D. Kuborn of Andrus Sceales Starke & Sawall, LLP
for Nigrelli Systems, Inc.

Tricia McDermott Thompkins, Trademark Examining Attorney,
Law Office 101 (Ronald R. Sussman, Managing Attorney).
_______

Before Quinn, Bucher and Rogers, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Nigrelli Systems, Inc., seeks registration on the
Principal Register of the mark AQUAMASTER for goods and
services described in the application, as amended, as
follows:
“pond aeration equipment, namely a
submerged electric pump for circulating
water from the bottom to the top of lakes
or ponds; water fountains” in International
Class 11; and
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 78309815
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“wholesale and retail store services
featuring pond aeration equipment and water
fountains” in International Class 35.1
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register applicant’s mark based upon Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). The Trademark
Examining Attorney has found that applicant’s mark, when
used in connection with the identified goods and recited
services, so resembles the mark shown below

that is registered for
“water purification systems for
residential, commercial and industrial use,
namely reverse osmosis water systems
comprising filter housings, membrane
housings, sediment pre-filters, carbon post
filters, membranes, reservoir tanks, long
reach faucets, check valves, ball valves,
auto shut-off valves, booster pumps,
pressure switches, flow restrictors and
transformers; ultraviolet water systems
comprising ultraviolet lamps, quartz
sleeves, filter housings, membrane
housings, sediment pre-filters, carbon post
filters, membranes, reservoir tanks, long
reach faucets, check valves, ball valves,

1 Application Serial No. 78309815 was filed on October 6,
2003 based upon applicant’s allegation of first use anywhere and
first use in commerce in both classes at least as early as
December 29, 1960.
Serial No. 78309815
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auto shut-off valves, booster pumps,
pressure switches, flow restrictors and
transformers; and water filtration systems
comprising booster pumps, water softeners,
filter housings, membrane housings,
sediment pre-filters, carbon post filters,
membranes, reservoir tanks, long reach
faucets, check valves, ball valves, auto
shut-off valves, booster pumps, pressure
switches, flow restrictors and
transformers” in International Class 11,2

as to be likely to cause confusion, to cause mistake or to
deceive.
Applicant and the Trademark Examining Attorney have
fully briefed this appeal, but applicant did not request
an oral hearing. We reverse the refusal to register.
The Trademark Examining Attorney contends that
applicant’s goods and services are related to registrant’s
goods, and that they might well be available within the
same retail establishments. By contrast, applicant argues
that confusion is not likely due to decided differences
between its goods and services and the goods identified in
the cited registration, and furthermore, that the
respective items are all expensive, and hence would be
purchased by sophisticated purchasers.

2 Registration No. 1969574 issued on April 23, 1996 claiming
use anywhere and use in commerce at least as early as September
1, 1990. Section 8 affidavit (six-year) accepted and Section 15
affidavit acknowledged.
Serial No. 78309815
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Analysis: Likelihood of Confusion
Our determination under Section 2(d) is based upon an
analysis of all of the probative facts in evidence that
are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any
likelihood of confusion analysis, two key considerations
are the similarities between the marks and the
relationship of the goods. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
The marks
We turn first to the du Pont factor focusing on the
similarity of the marks in their entireties. We must
consider whether the marks are similar in sound,
appearance, meaning, and commercial impression. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
In spite of a small design feature in registrant’s
mark, applicant does not contest the position of the
Trademark Examining Attorney that these marks are
substantially identical when applying any or all of these
Serial No. 78309815
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criteria. Accordingly, this du Pont factor favors the
position of the Trademark Examining Attorney.
The relationship of the goods and services
The Trademark Examining Attorney argues that the
goods and services are related in such a manner that the
prospective purchasers would mistakenly believe that the
goods and services emanate from a common source.
Applicant strongly disagrees, asserting that there is a
decided dissimilarity between the respective goods and/or
services, and the purposes they each serve.
In short, applicant has contended throughout the
prosecution of this application that these respective
goods have a different purpose based on the clear meaning
of the words, e.g., applicant’s goods are “used for
‘circulating water within a pond to prevent the growth of
water plants, such as algae, to keep the pond visually
appealing’” (applicant’s brief, p. 4), while registrant’s
goods are used to “remediate and process contaminated
water for later useful purposes, such as consumption.”
Applicant’s brief, p. 5. We agree that based simply on
the terminology contained within the respective
identifications of goods, a relationship between these
Serial No. 78309815
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goods has not been demonstrated herein. We hasten to add
that in construing the plain meanings of the written
descriptions, and in considering the arguments of the
applicant and Trademark Examining Attorney on this issue,
we have not permitted applicant to artificially and
impermissibly restrict either its own or registrant’s
identifications, which it may not do.
In support of her position, the Trademark Examining
Attorney begins by reviewing dictionary definitions, and
argues that the purpose of “aeration” equipment in lakes
and ponds is to purify3 these bodies of water. This
function is, she contends, similar to the purposes of
registrant’s water purification systems. Furthermore, she
adds that “not only is the purpose and function of the
applicant’s and registrant’s goods and/or services
identical, but also so [sic] is the environment in which a
consumer may encounter the goods.” Trademark Examining
Attorney’s appeal brief, unnumbered p. 7.
By definition, ponds, lakes and water fountains are
often designed into the broadly-stated “residential,

3 The Trademark Examining Attorney cited to a dictionary
entry of “aerate” for support of the fact that “the purpose of
aeration is ‘[t]o expose to the circulation of air for
purification.’” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE, (Third Edition 1992). See Initial Office action of
March 29, 2004.
Serial No. 78309815
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commercial and industrial settings” described in the cited
registration. Hence, we agree with the Trademark
Examining Attorney that the type of goods marketed by
registrant and the type of goods marketed by applicant
may, broadly speaking, be utilized in the same venue
(e.g., developments that feature both recreational ponds
in need of aeration and well-supplied water sources
relying upon filtration and purification systems).
Furthermore, although the record contains no evidence
on this point, it would not be surprising to learn that
aeration equipment and purification equipment might be
marketed through similar channels of trade. There might
well be some overlap in potential customers, such as
engineers and other professionals in the construction
fields.
Nonetheless, we do not find convincing the Trademark
Examining Attorney’s deductions from a dictionary entry of
the verb “aerate.” Applicant acknowledges that its
aeration equipment may purify to the extent that the
process of aeration prevents the aerated lake or pond from
becoming stagnant and foul. However, the word “purify” is
Serial No. 78309815
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too broad a term4 to demonstrate a relationship between
these goods. The resulting interpretation of both
applicant’s and registrant’s goods proposed by the
Trademark Examining Attorney is too broad. In addition,
the Trademark Examining Attorney incorrectly concludes
that the separate components of registrant’s systems must
each be considered an item separately marketed under the
registered mark. Registrant’s identification does not
cover a multitude of separate items, as the Trademark
Examining Attorney argues. Instead, it covers “reverse
osmosis water systems,” “ultraviolet water systems,” and
“water filtration systems,” each of which is introduced by
the broad reference to “water purification systems for
residential, commercial and industrial use,” and each of
which is comprised of various components.
Having conceded above that these different types of
equipment may ultimately be used in the same setting does
not force the determination they are related for purposes
of our likelihood of confusion analysis. Cf. Electronic

4 “Purify 1. To make pure; free from anything that
debases, pollutes, adulterates, or contaminates: to purify
metals. 2. to free from foreign, extraneous, or objectionable
elements: to purify a language. 3. to free from guilt or
evil. 4. to clear or purge (usually fol. by of or from). 5.
to make clean for ceremonial or ritual use. –v.i. 6. to become
pure.” THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, (Second
Edition 1983).
Serial No. 78309815
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Design & Sales v. Electronic Data Systems, 954 F.2d 713,
21 USPQ2d 1388, 1392 (Fed. Cir. 1992) [The Court found no
likelihood of confusion resulting from the contemporaneous
use of applicant’s mark E.D.S. and opposer’s mark EDS
despite the fact that “the two parties conduct business
not only in the same fields but also with some of the same
companies.”] We must still explore in depth the nature of
these goods.
There is very little evidence in the record about
these respective goods, so our determination rests heavily
on the plain meaning of the descriptions in the cited
registration and the involved application.
Upon reviewing applicant’s identification of goods,
it is clear that applicant sells aerating pumps and
fountains for use in lakes and ponds. There is no support
anywhere in the record for the Trademark Examining
Attorney’s contention that applicant’s pond aeration
equipment might be used directly with registrant’s
identified goods. By contrast, we read the registrant’s
identification of goods as covering sophisticated systems
designed to remediate and process water. This description
contains three well-defined systems – (i) reverse osmosis
water systems, (ii) ultraviolet water systems and (iii)
Serial No. 78309815
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water filtration systems – each with its own detailed
listing of sub-systems and component parts. While it is
true that there are no limitations in registrant’s
identification of goods (e.g., the goods are not
explicitly limited to remediation of water supplies) and
they are “broadly defined as being used in any
residential, commercial or industrial environment,” on
this record, it is too much of a stretch for us to find
that registrant’s systems would be used outdoors in ponds,
lakes and water fountains. Accordingly, looking solely to
the plain meaning of these respective descriptions, we
find that applicant’s goods and services are decidedly
different in nature and purpose from registrant’s goods.
Notwithstanding the lack of direct support in the
record, we have acknowledged that these respective goods
might well be encountered by overlapping classes of
consumers. Yet, we cannot agree with the Trademark
Examining Attorney’s specific contention “that a consumer
seeking such [a booster] pump may encounter both the
applicant’s and registrant’s goods in the applicant’s
retail stores.”5 There are a number of fallacies in this
argument.

5 The Trademark Examining Attorney also argues that:
Serial No. 78309815
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First, as to the “booster pump” argument, the
Trademark Examining Attorney did place into the record
Internet evidence showing that quite disparate systems
that involve the pumping of water (e.g., small,
residential solar pumps and large, industrial dredging
operations) rely upon a category of pumps known as booster
pumps. Accepting this as true does not help to tie
together the goods of registrant and applicant. In fact,
it would involve sheer speculation on our part to conclude
that registrant’s booster pump components would be at all
similar to, or used in conjunction with, applicant’s
submerged aeration pumps.
Secondly, registrant’s identification cannot be read
to suggest that registrant sells individual components
such as its booster pumps apart from its larger
purification systems.
Thirdly, we are not convinced that the complex goods
of either registrant or applicant are intended for “do-it-

“[A]pplicant ignores the relatedness of the services to
the registrant’s goods.” … [E]vidence attached in [sic]
the Final Office Action demonstrates that pumps and
specifically, registrant’s booster pumps are used in all
water applications, including ponds. Therefore, consumers
seeking pumps and related goods for water applications are
likely to encounter both the applicant and registrant’s
goods in the applicant’s retail stores.”
Trademark Examining Attorney’s appeal brief, unnumbered p. 8.
Serial No. 78309815
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yourself” persons.6 Registrant’s goods are obviously
complex systems with many components; and even though
applicant’s goods are sold at retail, that does not mean
that applicant runs a retail store open to general
consumers. It is too speculative for us to conclude that
applicant’s goods would be sold in retail stores to such
consumers, rather than at retail to professionals seeking
to manage and aerate ponds or lakes.
Fourthly, even assuming that registrant’s booster
pumps and applicant’s goods may be used in the same
venues, it does not follow that the types of pumps
marketed by registrant would be sold at retail by
applicant, whose retail services are limited to pond
aeration equipment and water fountains. Clearly,
applicant’s description of its retail services does not
mention the retailing of booster pumps.

6 The Trademark Examining Attorney contends that:
“similarly, the applicant’s wholesale and retail store
services would include aeration pumps and water fountains.
Both are goods that both professionals and lay consumers
would seek out for complex landscaping projects or small
do-it-yourself projects. It is significant to note that
water fountains are a typical consumer product found in
many residential settings. Therefore, consumers would
patronize the applicant’s store and be exposed to all the
goods provided therein. Thus, having exposure to
residential filtration pumps and pond aeration pumps in
the same setting would give rise to a likelihood of
confusion.”
Trademark Examining Attorney’s appeal brief, unnumbered pp. 9 –
10.
Serial No. 78309815
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Finally, we do not find it reasonable to assume, as
the Trademark Examining Attorney has, that applicant would
ever choose to sell, in its own stores, registrant’s
AQUAMASTER pumps, and thereby create the possibility of
confusion with its own products.
In conclusion, on this du Pont factor, we find that
the only reasonable reading of these identifications
dictates a finding that applicant’s goods and services are
not closely related to registrant’s goods. Rather, we
agree with applicant’s conclusion that “[p]ond aeration
equipment and water fountains are significantly different
from [reverse osmosis] water purification systems, water
filtration systems and ultraviolet water systems.”
Applicant’s reply brief, p. 4. Moreover, we agree with
applicant that based upon a complete and logical reading
of registrant’s identification of goods, “the goods of the
registrant are intended to purify water, most likely for
consumption, and would have no use or application in ponds
or lakes, and certainly not in water fountains.”
Applicant’s reply brief, p. 3. Hence, this du Pont factor
favors strongly the position taken by applicant.
Serial No. 78309815
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Sophisticated purchasers
As to the du Pont factor focusing on the conditions
under which and buyers to whom sales are made, this is not
a determinative factor in the instant case. Although
applicant argues in its brief that “[p]ond aerators and
water fountains are ‘expensive items’ which will only be
purchased by select individuals,” there is no proof of
this in the record. However, even in the absence of any
evidence that applicant’s goods are expensive, or that
registrant’s individual systems would be expensive, those
systems appear to involve many integrated components, and
finally, the parties’ complex goods do not appear to be
intended for do-it-yourself persons. Accordingly, the
only common consumer would be a relatively sophisticated
consumer, and this factor helps to eliminate any remaining
doubt we might otherwise harbor as to whether there is a
likelihood of confusion herein.
Contemporaneous use without actual confusion
As to the du Pont factor dealing with the length of
time during and conditions under which there has been
contemporaneous use without evidence of actual confusion,
applicant points to fifteen years of coexistence (since
Serial No. 78309815
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registrant adopted and began using its mark) without any
actual confusion. However, we have no evidence that these
respective marks have ever been used contemporaneously in
the same geographical area. As to whether there has been
sufficient opportunity for confusion to occur, the record
contains no indication of the level of sales or
advertising by applicant. The absence of any instances of
actual confusion is a meaningful factor only where the
record indicates that, for a significant period of time,
an applicant’s sales and advertising activities have been
so appreciable and continuous that, if confusion were
likely to happen, any actual incidents thereof would be
expected to have occurred and would have come to the
attention of one or both of these trademark owners.
Similarly, we have no information concerning the nature
and extent of registrant’s use, and thus we cannot tell
whether there has been sufficient opportunity for
confusion to occur, as we have not heard from the
registrant on this point. All of these factors materially
reduce the probative value of applicant’s argument
regarding asserted lack of actual confusion. Therefore,
applicant’s claim that no instances of actual confusion
have been brought to applicant’s attention is not
Serial No. 78309815
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indicative of an absence of a likelihood of confusion.
See Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768,
1774 (TTAB 1992). In any event, we are mindful of the
fact that the test under Section 2(d) of the Act is
likelihood of confusion, not actual confusion.
Accordingly, this is a neutral factor in our determination
herein.
Conclusion
In conclusion, we find that despite the fact that the
marks are substantially identical, on this record, we
cannot conclude that these goods are sufficiently related
to find a likelihood of confusion herein, especially given
the fact that the only common purchasers would be
relatively sophisticated.
Decision: The refusal to register this mark under
Section 2(d) of the Lanham Act is hereby reversed.