Ritchie Engineering Co., Inc.

Trademark Trial and Appeal Board

Mar 23, 2004

No. 78110230 (T.T.A.B. Mar. 23, 2004)

March 23, 2004
Paper No. 12
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ritchie Engineering Company, Inc.
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Serial No. 78110230
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Edwin E. Voight II of Vidas, Arrett & Steinkraus, P.A. for
Ritchie Engineering Company, Inc.
Amy E. Hella, Trademark Examining Attorney, Law Office 110
(Chris Pedersen, Managing Attorney).
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Before Hohein, Hairston and Bottorff, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Ritchie Engineering Company, Inc. has filed an
application to register the mark ACCUPROBE (in typed form)
on the Principal Register for “electronically powered
detectors for detecting refrigeration gas leaks within air
conditioning systems and refrigeration systems to
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78110230
2
effectuate repairs to air conditioning and refrigeration
systems previously placed into service.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when applied to the
identified goods, so resembles the mark shown below, which
is registered for “microelectronic sensing probes as
components [sic] parts of larger equipment,”2 as to be
likely to cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but
no oral hearing was requested. We affirm the refusal to
register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
likelihood of confusion factors set forth in In re E. I. du
Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In considering the evidence of record on these
1 Serial No. 78110203, filed on February 21, 2002, which is based
on a bona fide intention to use the mark in commerce.
2 Registration No. 1,375,570, issued December 17, 1985. Section
8 and 15 affidavits have been accepted and acknowledged,
respectively.
Ser No. 78110230
3
factors, we 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 the differences in the marks.” Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29.
(CCPA 1976).
First, we turn to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance,
sound, connotation and commercial impression. The 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 terms of their overall
commercial impression that confusion as to the source of
the goods or services 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. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant argues that the marks are significantly
different because its mark is simply in typed form whereas
the cited registered mark is a design mark consisting of a
star or light beam symbol. Further, applicant contends
that due to the design in the cited registered mark, this
Ser No. 78110230
4
mark connotes cutting edge technology whereas applicant’s
mark has no such connotation.
Notwithstanding applicant’s contentions, we find that
applicant’s mark and registrant’s mark are similar in
appearance, differing only in the design element, which
does not substantially distinguish the marks visually.
Also, we find that the marks are legally identical in
terms of sound because the cited registered mark will be
pronounced as “accuprobe.”
In terms of connotation and commercial impression, we
find that both applicant’s and registrant’s marks connote
an “accurate probe.” We are not persuaded by applicant’s
argument that because of the design element in the cited
registered mark, such mark connotes cutting edge
technology, and thus is readily distinguishable from
applicant’s mark.
In sum, we find that applicant’s mark and the cited
registered mark are highly similar in terms of overall
commercial impression. Thus, confusion is likely to result
from the contemporaneous use of the marks on identical or
related goods.
Turning then to a consideration of the goods,
applicant argues that its goods and the goods in the cited
registration are extremely dissimilar in nature and travel
Ser No. 78110230
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in different channels of trade. According to applicant,
its goods are “used by blue collar workers to detect and
repair refrigerant gas leaks,” whereas registrant’s goods
are probes for “[use] in a clean room environment to detect
manufacturing defects in printed electrical circuits.”
(Brief, p. 4). Aplicant maintains that its goods travel in
“after-market” trade channels to service professionals in
contrast to registrant’s goods which travel in “before-
market” trade channels to manufacturers. Further,
applicant argues that probes and detectors are distinct
instruments. Applicant points to the following definition
of the word “probe” in Merriam-Webster’s Collegiate
Dictionary (10th ed): “various testing devices or substances
as (1): a pointed metal tip for making electrical contact
with a circuit being checked.” In addition, applicant
argues that its goods and registrant’s goods are sold to
sophisticated consumers who are unlikely to be confused.
We concur with the Examining Attorney, however, that
the goods at issue are sufficiently related that their
marketing under the highly similar marks in this case is
likely to cause confusion. As the Examining Attorney
correctly notes, it is not necessary that goods be
identical or even competitive in order to support a finding
of likelihood of confusion. Rather, it is sufficient that
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the goods or services are related in some manner, or that
the circumstances surrounding their marketing are such,
that they would be likely to be encountered by the same
persons in situations that would 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
source or that there is an association or connection
between the sources of the respective goods or services.
In re Melville Corp., 18 USPQ2d 1385 (TTAB 1991); In re
International Telephone & Telegraph Corp., 197 USPQ2d 910
(TTAB 1978).
Moreover, it is well established that the issue of
likelihood of confusion must be determined on the basis of
the goods as they are set forth in the involved application
and the cited registration, and not in light of what such
goods are shown or are asserted to actually be. Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Canadian
Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed. Cir. 1987). Thus,
where a registrant’s goods are broadly described as to
their nature and type, it is presumed that in scope the
registration encompasses not only all of the goods of the
nature and type therein, but that the identified goods move
Ser No. 78110230
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in all channels of trade which would be normal for those
goods and that they would be purchased by all potential
buyers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Here, there is no evidence of record to support
applicant’s assertion that registrant’s goods are in the
nature of probes used in a clean room environment to detect
manufacturing defects in printed electrical circuits.
However, even if such evidence were of record, it could not
be given consideration in our determination of the
likelihood of confusion issue. As the Examining Attorney
points out, the identification of registrant’s goods (i.e.,
microelectronic sensing probes as component parts of larger
equipment) is broad enough to encompass probes that are
component parts of air conditioning and refrigeration
equipment for detecting refrigeration gas leaks within
these systems. Registrant’s goods, therefore, must be
considered closely related to applicant’s goods, such that
the marketing of the respective goods under the highly
similar marks in this case, would be likely to cause
confusion as to the source or sponsorship thereof.
As to applicant’s contention that probes are different
in nature from detectors, we judicially notice the
following excerpts taken from The American Heritage
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Dictionary of the English Language (3d ed. 1992) submitted
with the Examining Attorney’s brief:
probe: an exploratory action, expedition, or
device, especially one designed to investigate
and obtain information on a remote or unknown
region: electronic probes into the crust of
the earth.
detector: one that detects, especially a
mechanical, electrical, or chemical device that
automatically identifies and records or
registers a stimulus, such as environmental
change in pressure or temperature, an electrical
signal, or radiation from a radioactive material.
Also, we judicially notice the excerpt submitted with the
Examining Attorney’s brief from The Original Roget’s
Thesaurus of English Words and Phrases (1994), wherein
“probe” is listed as a synonym for “detector.” It is clear
from these excerpts that the words “probe” and “detector”
are virtually identical in meaning.
Finally, we recognize that applicant’s goods and those
of registrant are not impulse items and would, instead, be
marketed to and bought by knowledgeable persons who would
exercise care in the selection of applicant’s and
registrant’s products. Nonetheless, this does not
necessarily mean that such persons would be entirely immune
from confusion as to source or sponsorship. Wincharger
Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289 (CCPA
1962).
Ser No. 78110230
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Decision: The refusal to register under Section 2(d)
is affirmed.