Omni Massage System, LLCv.Montgomery Enterprises

Trademark Trial and Appeal Board

Jan 7, 2000

No. 91106094 (T.T.A.B. Jan. 7, 2000)

Paper No. 14
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN. 7, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
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Omni Massage Systems, LLC
v.
Montgomery Enterprises
_____
Opposition No. 106,094
to application Serial No. 75/101,223
filed on May 9, 1996
_____
Lynn M. Allingham for Omni Massage Systems, LLC.
A. Ray Osburn for Mallinckrodt & Mallinckrodt for Montgomery
Enterprises.
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Before Cissel, Hairston and Walters, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Montgomery Enterprises
to register the mark POLAROLLER for “a non-electric cold
roller massage device.”1
Registration has been opposed by Omni Massage Systems,
LLC under Section 2(d) of the Trademark Act on the ground of
likelihood of confusion between applicant’s mark and
Opposition No. 106,094
2
opposer’s previously used mark POLAR ROLLER for a non-
electric roller massage device.
Applicant, in its answer, denied the salient
allegations of the notice of opposition.
The record consists of the pleadings; the file of the
involved application; and the testimony, with exhibits, of
opposer’s president, Guy York. Applicant neither took
testimony nor introduced any other evidence. Neither party
filed a brief on the case and no oral hearing was requested.
Opposer’s president, Mr. York, testified that opposer
manufactures and sells under the mark POLAR ROLLER a non-
electric roller massage device. Further, Mr. York stated
that opposer’s first use of the mark was on April 12, 1996
when it sold one of the devices to a draftsman who also
prepared a drawing of the device. According to Mr. York,
opposer first used the mark in commerce in May 1996 at an
outdoor market in Anchorage, Alaska where some of the
customers were from out of state and others were from
Canada.
We have no information about applicant’s business
activities.
With respect to priority, Mr. York’s testimony
establishes that opposer’s first use of the mark POLAR

1 Application Serial No. 75/101,223 filed May 9, 1996, alleging
dates of first use of April 1996.
Opposition No. 106,094
3
ROLLER on a non-electric roller massage device predates the
filing date of applicant’s intent-to-use application.
We turn then to the issue of likelihood of confusion.
Even on the sparse record before us, it is quite clear that
confusion is likely. Applicant intends to use its mark on
goods which are encompassed by and thus are identical to
opposer’s goods. Opposer’s and applicant’s massage devices
would be sold in the same channels of trade to the same
classes of purchasers. Consequently, if the goods were to
be sold under the same or highly similar marks, confusion as
to the source of the products would be likely to occur.
With respect to the marks, applicant’s mark POLAROLLER
and opposer’s mark POLAR ROLLER are highly similar in
appearance, the only difference being that applicant has
telescoped the letter “R” in the words “POLAR” and “ROLLER.”
Moreover, the marks are identical in sound and commercial
impression.
We find, therefore, that purchasers familiar with
opposer’s non-electric roller massage device sold under its
mark POLAR ROLLER would be likely to believe, upon
encountering applicant’s mark POLAROLLER for a non-electric
cold roller massage device, that the respective products
originated with or were somehow associated with the same
entity.
Opposition No. 106,094
4
Decision: The opposition is sustained and registration
to applicant is refused.
R. F. Cissel
P. T. Hairston
C. E. Walters
Administrative Trademark Judges
Trademark Trial and Appeal Board