RVJC Properties, Inc.

Trademark Trial and Appeal Board

May 16, 2014

No. 85624078 (T.T.A.B. May. 16, 2014)

Mailed: May 16, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RVJC Properties, Inc.
________

Serial No. 85624078
_______

Lance I. Hochhauser of Lindsey Law Firm, P.C. for RVJC Properties, Inc.
Juhi Kaveeshvar Patel, Trademark Examining Attorney, Law Office 108 (Andrew
Lawrence, Managing Attorney).
_______

Before Quinn, Bergsman and Lykos, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:

Applicant, RVJC Properties, Inc., has filed an application to register on the
Principal Register the mark “Frugal Kitchens & Cabinets” in standard character
format for “Installation of kitchen appliances; Installation of kitchen cabinets” in
International Class 37.1 During ex parte examination, Applicant disclaimed the
wording “Kitchens & Cabinets” apart from the mark as shown.
Applicant has appealed the Trademark Examining Attorney’s final refusal to
register Applicant’s mark under Section 2(d) of the Trademark Act of 1946, 15

1 Application Serial No. 85624078, filed May 14, 2012, pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a).
This Opinion is Not a
Precedent of the TTAB
Serial No. 85624078
2
U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the registered
mark FRUGAL for “Installation and repair of furnaces, air conditioners, electrical
heating and air conditioning systems, plumbing, fireplaces, air conditioners, water
heaters and walk-in coolers; and air duct cleaning” in International Class 372 that
when used on or in connection with Applicant’s identified services, it is likely to
cause confusion or mistake or to deceive.
For the reasons explained below, we affirm the refusal to register.
I. Evidentiary Issues
The Examining Attorney objects to Applicant’s reference in its appeal brief to the
definition of “frugal” obtained from the online dictionary Dictionary.com as
improper in form. Applicant contends that it may rely upon this dictionary
definition because the Examining Attorney used Dictionary.com to define the word
“appliance” in the Examining Attorney’s first Office action. Applicant’s Appeal
Brief, unnumbered page 9, n.4.
The Examining Attorney’s objection is sustained. In order to make a dictionary
definition obtained from an online reference resource properly of record, the offering
party should submit a printout of the web pages. Merely providing a web address or
hyperlink to Internet materials is insufficient to make the associated web pages of
record. See In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013). We hasten

2 Registration No. 3313033, registered on October 16, 2007, on the Principal Register;
Sections 8 and 15 affidavits accepted and acknowledged. The registration includes goods in
International Class 11; however, such goods do not provide a basis for the Examining
Attorney’s Section 2(d) refusal.
Serial No. 85624078
3
to add that had we considered the definition, we would have reached the same
result in this case.
II. Likelihood of Confusion
We turn now to the substantive refusal on appeal. We base our determination
under Section 2(d) on an analysis of all of the probative evidence of record bearing
on a likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (“du Pont”). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). These factors and the other relevant du Pont factors are
discussed below.
A. Scope of Protection
Applicant argues that because the term “frugal” is descriptive, Registrant’s mark
is entitled to only to a narrow scope of protection. Applicant’s argument is not
persuasive. Even if the record were to show that Registrant’s mark FRUGAL is
weak because it is descriptive or for that matter highly suggestive, it is entitled to
the presumptions granted a registration on the Principal Register under Section
7(b) of the Trademark Act, 15 U.S.C. § 1057(b) (i.e., prima facie evidence of the
validity of the registered mark, registrant’s ownership of the mark, and registrant’s
exclusive right to use the mark in commerce on or in connection with the services
Serial No. 85624078
4
specified in the certificate of registration). It is well settled that weak marks are
still entitled to protection against the registration by a subsequent user of a similar
mark for closely related goods or services. King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974); In re Colonial Stores, Inc.,
216 USPQ 793, 795 (TTAB 1982). Accordingly, we deem this du Pont factor neutral.
B. Comparison of the Marks
We direct our attention now to the du Pont likelihood of confusion factor
regarding the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression. See Palm Bay Imports,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). “The proper test is not a side-by-side comparison of
the marks, but instead ‘whether the marks are sufficiently similar in terms of their
commercial impression’ such that persons who encounter the marks would be likely
to assume a connection between the parties.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
Applicant’s and Registrant’s marks are comprised, either in whole or in part, of
the word “frugal.” We further observe that Applicant’s mark commences with the
word “Frugal.” It is well-established that prospective consumers are often more
inclined to focus on the first word, prefix or syllable in any trademark or service
mark. See Palm Bay Imps., Inc., 73 USPQ2d at 1692. See also Mattel Inc. v. Funline
Merch. Co., 81 USPQ2d 1372, 1374-75 (TTAB 2006); Presto Prods., Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark
Serial No. 85624078
5
which is most likely to be impressed upon the mind of a purchaser and
remembered” when making purchasing decisions). Because “Frugal” is the first
word of Applicant’s mark, we find that it is the dominant element of Applicant’s
mark. See Palm Bay, 73 USPQ2d at 1692. This of course is identical to the sole
literal element in Registrant’s mark.
That being said, our analysis cannot be predicated on dissection of Applicant’s
mark. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). Rather, we are obliged to consider Applicant’s mark in its entirety. Id. See
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234
(CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of
confusion”). However, there is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re National Data Corp., 224 USPQ at 751.
With this in mind, we find that the disclaimed descriptive wording “Kitchens &
Cabinets” in Applicant’s mark is merely ancillary to the dominant commercial
impression created by the initial term “Frugal.” Disclaimed matter in a mark
typically is of less significance in creating a commercial impression. See In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997) (finding “delta” the
dominant part of the mark THE DELTA CAFÉ because CAFÉ was disclaimed).
Thus, it is more likely that prospective consumers will overlook the wording
Serial No. 85624078
6
“Kitchens & Cabinets” in Applicant’s mark and instead confuse both marks as
identifying the services originating from the same source, given that they both
begin with the term “Frugal.” We therefore find that Applicant’s and Registrant’s
marks are highly similar in appearance, sound, connotation and commercial
impression. This first du Pont factor also weighs in favor of finding a likelihood of
confusion.
C. The Services
We now turn to a comparison of Applicant’s and Registrant’s respective services
as they are identified in the application and registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, __ F.3d __, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). The respective services
need only be “related in some manner and/or if the circumstances surrounding their
marketing [be] such that they could give rise to the mistaken belief that [the goods
and/or services] emanate from the same source.” Coach Servs., Inc., 101 USPQ2d at
1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See
also On-line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471
(Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
To show that the involved services are related, the Examining Attorney
submitted the following relevant use-based third-party registrations showing that
Serial No. 85624078
7
the same entity has registered a single mark for the same services, in part,
identified by Applicant and Registrant:
Registration No. 2775423 for the mark HOME-TECH and design for “residential
and commercial repair, maintenance and installation of air conditioning and
heating systems, refrigerators, refrigeration equipment, freezers, icemakers, ice
machines, ranges, microwave ovens, dishwashers, disposals, … water heaters,
plumbing and electrical systems and related items, namely, installation of
kitchen appliances;”
Registration No. 4025829 for the mark UPKEEPERS INC. and design for
“Electric appliance installation and repair; … Installation of kitchen appliances;
Installation of kitchen cabinets; … Plumbing; Plumbing and gas and water
installation; Plumbing contractor services; Plumbing services; … Repair of
household appliances and of residential heating, plumbing, air conditioning, and
electrical systems;”
Registration No. 4197695 for the mark TRIPLE-O MECHANICAL for “Furnace
installation and repair; General contractor services, namely, plumbing, heating
and air conditioning, carpentry, drywall, painting, electrical, building and
framing contractor services; Heating contractor services; Heating equipment
installation and repair; HVAC contractor services; Installation and repair of air
conditioning apparatus; Installation and repair of freezing apparatus;
Installation and repair of heating, ventilating and air conditioning equipment;
Installation and replacement service for heating, ventilating and air
conditioning systems; Installation, maintenance and repair of refrigeration;
Installation, repair and maintenance of heating equipment; Maintenance and
repair of heating installations; Refrigerator repair; Repair of household
appliances and of residential heating, plumbing, air conditioning, and electrical
systems;”
Registration No. 3751702 for the mark “BENEDICT REFRIGERATION
SERVICE” for “Installation of and repair of heating, air conditioning and
ventilation systems and furnaces; Installation and repair of commercial
refrigeration systems and equipment, coolers, freezers, and ice machines;
Installation and repair of kitchen appliances, equipment and ventilation
systems; Installation and repair of food service equipment, display cases, beer
dispensing systems, walk-in beer coolers, cabinets, tables, chairs, and dining
booths comprised of tables and benches;”
Registration No. 4273765 for the mark and design AAA SERVICE NETWORK 1-
800-FIX-IT-NOW HEATING & AIR APPLIANCE REPAIR
PLUMBING/ELECTRICAL WHOLE HOUSE GENERATORS COMPUTER
Serial No. 85624078
8
REPAIR...& MORE WE FIX JUST ABOUT ANYTHING IN YOUR HOME...OR
BUSINESS for “Furnace installation and repair; Installation of kitchen
appliances; Installation, repair and maintenance of heating equipment;
Maintenance and repair of computer hardware; Plumbing; Repair or
maintenance of gas water heaters;”
Registration No. 3798862 for the mark FATBELLY HANDYMAN SERVICES for
“repair of heating and cooling installations, air conditioning apparatus repair;
furnace repair electrical repairs of electric switches, light fixtures, electric
circuits, electric motors for machines and heating apparatus; repair of HVAC
units; installation of kitchen cabinets and countertops; plumbing services;”
Registration No. 3997545 for the mark MEMA MATES for “Cabinet refacing;
Cabinet repair; … Consultation in the field of repairing and maintaining home
appliances; … Electric appliance installation and repair; … Freezing equipment
installation and repair; Furnace installation and repair; … Heating equipment
installation and repair; … Installation and repair of air conditioning apparatus;
… Installation and repair of freezing apparatus; Installation and repair of
heating, ventilating and air conditioning equipment; Installation of kitchen
cabinets; … Installation, repair and maintenance of heating equipment; …
Maintenance and repair of heating installations; … Repair or maintenance of
gas water heaters;” and
Registration No. 4224154 REBORN CABINETS for “Air conditioning contractor
services; … Cabinet refacing; Cabinet repair; Carpentry contractor services; …
General contractor services, namely, plumbing, heating and air conditioning,
carpentry, drywall, painting, electrical, building and framing contractor services;
Heating contractor services; HVAC contractor services; Installation of kitchen
cabinets; … Plumbing; Plumbing and gas and water installation; Plumbing
contractor services; Plumbing services; Repair of household appliances and of
residential heating, plumbing, air conditioning, and electrical systems.”
The Examining Attorney also submitted Internet evidence from the following
third parties offering the same services in part identified in the application and
cited registration:
Lowe’s at www.lowes.com for cabinet installation, kitchen appliance
installation, and water heater installation;
Home Depot at www.homedepot.com for HVAC repair services, kitchen
cabinet installation, and water heater installation and repair;
Serial No. 85624078
9
Sears Home Services at www.searshomeservices.com for furnace installation,
central air installation, and dishwasher installation;
Katy TX Plumbing at www.katytxplumbing.com advertised as “Home
Appliance and Installation Service in Katy TX” for air conditioners,
dishwashers, dryers, garbage disposers, heaters, furnaces, microwaves,
ovens, ranges, cook tops, range hoods, refrigerator water filters, washers,
water heaters;
Go Green Express Home Services at www.ggehs.com advertised as “the
Hudson Valley’s premier choice for green plumbing, HVAC, and electrical
contracting services” for installation of kitchen appliances, air conditioning
repair and installation, and installation and repair of gas furnaces;
Mister Sparky at wwww.mistersparkynola.com for installation of air
conditioning equipment, heating equipment, cook tops, dishwashers, electric
ranges, garbage disposals, microwave ovens, refrigerators, freezers, washing
machines, dryers, and trash compactors; and
Pann Home Services & Remodeling at www.pannhomeservices.com
advertised as “Serving Families and Business Owners throughout the
Greater Boston Area” offering installation of air conditioner units and HVAC,
repair of air conditioner units, heating units, and central air conditioning,
and kitchen cabinet installation services.
Applicant is critical of the evidence submitted by the Examining Attorney. With
regard to the third-party registrations, Applicant contends that out of “nearly
54,000 active, registered marks in International Class 37,” the relatively small
number of relevant third-party registrations submitted by the Examining Attorney
“tends to show that it is not common for these two sets of services to be provided
under the same mark.” Applicant’s Brief, unnumbered pp. 7-8. Applicant further
urges the Board to discount the evidence obtained from Lowe’s, Home Depot and
Sears under the holdings of Federated Foods, 192 USPQ at 26 and Recot, Inc. v.
Becton, 214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir. 2000), arguing that these large,
online retailers are more akin to supermarkets.
Serial No. 85624078
10
We acknowledge that the parties are providing different types of installation
services. Nonetheless, the record shows that Applicant’s and Registrant’s services
are complementary in nature, and are commonly offered by the same entities and
encountered at the same time by the same prospective purchasers, whether
residential or commercial. It is well settled that use-based, third-party registrations
may serve to suggest that the services are of a type which may emanate from a
single source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993). We disagree with Applicant’s characterization that the Examining Attorney
“only submitted” a relatively small number of such third-party registrations. The
Board neither expects nor wants the Examining Attorneys to submit every relevant
third-party registration. Suffice to say, in this particular instance, the number of
third-party registrations submitted by the Examining Attorney is adequate to show
that both types of services may be associated with the same source.
We also disagree with Applicant’s contention that the evidence of third-party
marketing and use obtained from the Lowe’s, Home Depot and Sears websites
should be discounted. The underlying rationale of Federated Foods and Recot is that
the mere sale of the same goods by mass merchandisers in the same area of a
supermarket or store does not per se constitute evidence that the goods related.
Clearly, the logic does not apply here given the specialized nature of the involved
services. It is only a small leap for one to associate the installation of kitchens and
appliances with the installation of HVAC and plumbing. In any event, even if we
were to accord the evidence obtained from these large online service providers less
Serial No. 85624078
11
probative weight, the Examining Attorney submitted other evidence from smaller,
local installation and repair service providers, to show that such entities offer both
Applicant’s and Registrant’s services under the same mark. When considered in
conjunction with the third-party registrations, this evidence serves to show that
both Applicant’s and Registrant’s installation services are commonly offered by the
same entities under the same mark. In view of the foregoing, this du Pont factor
also favors a finding of likelihood of confusion.
To the extent that there are any other relevant du Pont factors, we treat them as
neutral.
After considering all of the evidence of record and arguments pertaining to the
du Pont likelihood of confusion factors, we find that because the marks are similar
in sound, appearance, connotation and commercial impression, and because the
involved services are related and directed towards the same purchasers, confusion
is likely between Applicant’s mark for its identified services and the mark in the
cited registration.
DECISION: The refusal to register under Section 2(d) is affirmed.