Sampson-Bladen Oil Company, Inc.

Trademark Trial and Appeal Board

Sep 29, 2021

88820087 (T.T.A.B. Sep. 29, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sampson-Bladen Oil Company, Inc.

Serial No. 88820087
_____

Larry L. Coats of Coats & Bennett PLLC
for Sampson-Bladen Oil Company, Inc.

Martha L. Fromm, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Lynch, English and Allard,
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:
Sampson-Bladen Oil Company, Inc. (“Applicant”) seeks registration on the
Principal Register of the mark (HYDRAULICS
disclaimed) for “hydraulic fluid used to transfer power in hydraulic machinery that is
marketed and sold to auto parts stores, farm supply stores, farm equipment
dealerships and heavy duty equipment repair facilities” in International Class 1.1

1 Application Serial No. 88820087; filed March 4, 2020 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intent to use the mark
in commerce. The application includes the following description of the mark: “The mark
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The Examining Attorney has refused registration of the mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the
standard character mark DYNAFLO for “hydraulic hoses made of non-metal;
watering hoses; air hoses” in International Class 17.2 When the refusal was made
final, Applicant appealed. The appeal is fully briefed.
We affirm the refusal to register.
I. Analysis
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S.
138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co. Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont
factor for which there is argument and evidence. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2
Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”).

consists of the word DYNAFLO where the letter A is made up of a triangle with a drop design
in the middle and the word HYDRAULICS is under the letters FLO.” Color is not claimed as
a feature of the mark.
2 Registration No. 4415991; registered October 8, 2013; Section 8 declaration accepted;
Section 15 declaration acknowledged.
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In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380
F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). We address the relevant DuPont
factors below.
A. Similarity or Dissimilarity of the Marks
We start with the first DuPont factor focusing on the similarity or dissimilarity of
the marks in their entireties as to appearance, sound, connotation and commercial
impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); DuPont, 177 USPQ at 567. “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” In re
Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)).
The issue 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
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their overall commercial impression such that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is
on the recollection of the average purchaser, who normally retains a general rather
than specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus.,
Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975).
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion, 110 USPQ2d at 1160; Franklin Mint Corp.
v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 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.”). But one feature of a
mark may be more significant than another, and it is not improper, for rational
reasons, to give more weight to a dominant feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110
USPQ2d at 1161 (finding that the Board did not err in reasoning that the term LION
was dominant in both applicant’s mark STONE LION CAPITAL and opposer’s marks
LION CAPITAL and LION); In re Chatam Int’l, 71 USPQ2d at 1946.
Because of the shared literal element, DYNAFLO, we find the marks very similar
in appearance, sound, meaning and commercial impression. “Applicant acknowledges
that the salient portion of [both] marks is DYNAFLO,” but argues that the
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“differences are sufficient to obviate a likelihood of confusion when the marks are
considered in connection with the respective goods.”3 As an initial matter, Applicant
argues that its mark is “highly stylized, so much so that the center triangle might not
be immediately recognized as an ‘A.’”4 We disagree. The “drop” design is positioned
in the triangle in the same place where the cross in a capital letter “A” appears. The
triangle design is also in the same font size and stylization as the first three letters
“dyn” in the mark. Accordingly, consumers are likely to view the triangle design in
the mark as the letter “A.” Indeed, Applicant describes the mark in the application
as incorporating “the word DYNAFLO where the letter A is made up of a triangle
with a drop design in the middle[.]”5 We find that consumers would view and
pronounce the term identically to the term comprising the cited mark.
DYNAFLO is the dominant portion of Applicant’s mark because it is the first part
of the mark and it appears in much larger font than the descriptive term “hydraulics,”
which has been disclaimed. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (finding
the same “first word in both parties’ marks renders the marks similar, especially in
light of the largely laudatory (and hence non-source identifying) significance” of the
other word in applicant’s mark); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702
(TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s

3 Appeal Brief, 4 TTABVUE 3.
4 Id.
5 March 4, 2020 Application, TSDR 1.
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commercial impression”); Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered[.]”). We do not discount the
word “hydraulics” in comparing the similarity of the marks but because it is merely
descriptive of Applicant’s “hydraulic fluid” and it is displayed in significantly smaller
font, it is subordinate to the term DYNAFLO and its presence in the mark contributes
less to the overall commercial impression of Applicant’s mark. See also, e.g., In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (finding
the descriptive and disclaimed portions of applicant’s mark “unlikely to change the
overall commercial impression engendered by the marks.”) (citing In re Dixie Rests.,
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)). We further note that
consumers have a tendency to shorten marks and, therefore, DYNAFLO is the part
of Applicant’s mark most likely to be spoken by purchasers. See, e.g., Giant Food, Inc.
v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983)
(“Although the record does not indicate that applicant’s business is commonly
referred to as ‘Giant’, it does indicate that people have called it by that name, omitting
the word ‘Hamburgers’. Thus, in a conversation between two consumers in opposer’s
area about a place of business called ‘Giant’, there likely would be confusion about
which ‘Giant’ they were talking about.”); In re Abcor Dev. Corp., 588 F.2d 511, 200
USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (acknowledging that generally,
“users of language have a universal habit of shortening full names from haste or
laziness or just economy of words”); Big M Inc. v. United States Shoe Co., 228 USPQ
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614, 616 (TTAB 1985) (“[W]e cannot ignore the propensity of consumers to often
shorten trademarks[.]”).
The “drop” design in Applicant’s mark is small and subtle, comprising part of the
letter “A” in DYNAFLO, and in the context of Applicant’s goods is likely to be
perceived as a “drop” of “hydraulic fluid,” reinforcing the descriptive wording in the
mark. Accordingly, we find that it too is less significant in the overall commercial
impression of Applicant’s mark.
Similarly, the stylization of Applicant’s mark is not sufficient to distinguish it
from the cited mark. The cited mark is in standard characters so Registrant is not
limited to the manner in which it may display its mark. Squirtco v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); In re RSI Sys., LLC, 88 USPQ2d
1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 1012, 2015 (TTAB
1998). We must assume that Registrant could display its mark in a stylization similar
to Applicant’s mark. In re Aquitaine Wine, 126 USPQ2d at 1186 (TTAB 2018) (“Since
Registrant’s mark is a standard character mark, we must consider that the literal
elements of the mark (the words and the letters) may be presented in any font style,
size or color, including the same font, size and color as the literal portions of
Applicant’s mark. This is because the rights associated with a standard character
mark reside in the wording per se and not in any particular font style, size, or color.”)
(citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1259 (Fed. Cir. 2011)).
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Often when one mark incorporates the entirety of another mark, the similarity
between the marks increases. See, e.g., Wella Corp. v. Cal. Concept Corp., 558 F.2d
1019, 194 USPQ 419, 422 (CCPA 1977) (finding mark CALIFORNIA CONCEPT
substantially similar to prior mark CONCEPT); Coca-Cola Bottling Co. of Memphis,
Tenn., Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA
1975) (applicant’s mark BENGAL LANCER likely to cause confusion with BENGAL);
In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (finding
applicant’s mark VANTAGE TITAN confusingly similar to registered mark TITAN);
In re U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (finding applicant’s CAREER
IMAGE marks similar to registered mark CREST CAREER IMAGES). We find this
to be the case here, especially because of the dominant nature of the term DYNAFLO
in Applicant’s mark.
In view of the foregoing, we find that the first DuPont factor weighs in favor of
finding a likelihood of confusion.
B. Similarity or Dissimilarity of the Goods, Trade Channels and Classes
of Consumers
Under the second DuPont factor we consider “[t]he similarity or dissimilarity and
nature of the goods or services” and under the third DuPont factor we consider “the
similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont,
177 USPQ at 567; see also Detroit Athletic, 128 USPQ2d at 1051. We must base our
comparison of the goods on the identifications in the cited registration and Applicant’s
application. See Stone Lion, 110 USPQ2d at1162; Octocom Sys., Inc. v. Houston
Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). It is
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sufficient for a finding of likelihood of confusion if relatedness is established for any
item encompassed in the identification of goods or services in a particular class.
Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *6
(TTAB 2019); In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015).
In comparing the goods, we focus our analysis on Registrant’s “hydraulic hoses
made of non-metal” as these goods are the most pertinent to Applicant’s “hydraulic
fluid used to transfer power in hydraulic machinery that is marketed and sold to auto
parts stores, farm supply stores, farm equipment dealerships and heavy duty
equipment repair facilities.”
The Examining Attorney submitted Internet screenshots showing online retailers
selling both “hydraulic fluid” and “hydraulic hoses.” Two of these entities, Parker and
Buyers, use their house mark in connection with both hydraulic fluid and hydraulic
hoses.6 Evidence that the involved goods are sold by companies under the same mark
is relevant to the relatedness analysis. See, e.g., Detroit Athletic, 128 USPQ2d 1050

6 October 19, 2020 Final Office Action, TSDR 5-6 (“Premium Hydraulic Fluid - DuraClean™
… offered exclusively by Parker” and “Parker Hose Products Division” offering PARKER
hydraulic hoses); Id. at TSDR 8 (BUYERS snow plow hydraulic fluid sold by Northern Tool
+ Equipment) and id. at 16 (Buyers Products Company selling “High Pressure Hose Assembly
from Buyers Products”).
Both brands of hydraulic fluid bear product marks that do not appear to be used in
connection with hydraulic hoses, but this is not significant as a product may have more than
one mark. See, e.g. Weatherford/Lamb, Inc. v. C&J Energy Servs., Inc., 96 USPQ2d 1834,
1840 (TTAB 2010) (“It is well settled that a party may use more than one mark to identify a
product or service[.]”); Conde Nast Pubs. Inc. v. Redbook Publ’g Co., 217 USPQ 356, 360
(TTAB 1983) (“[M]ore than one mark may be used on or in connection with a product or
service.”); Aloe Creme Labs., Inc. v. Johnson Prods., Inc., 183 USPQ 447, 448 (TTAB 1974)
(“[I]t is axiomatic that more than one mark can be used on a product.”).
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(crediting relatedness evidence showing that third parties use the same mark for the
goods and services); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009)
(finding two third-party webpages showing applicant’s and registrant’s goods “can be
manufactured and sold by a single source” supported relatedness); Wet Seal, Inc. v.
FD Mgmt., Inc., 82 USPQ2d 1629, 1640 (TTAB 2007) (evidence of three companies
selling both clothing and fragrances under their house marks supported a finding
that such goods are related).
The record also includes evidence of 5 additional retailers selling both goods albeit
from different manufacturers under different marks:
 NORTHERN TOOL + EQUIPMENT selling APACHE hydraulic hoses as well
as BUYERS snow plow hydraulic fluid and MEYER hydraulic oil;7
 MSC selling its own branded hydraulic hose as well as JOE GIBBS DRIVEN
racing oil hydraulic fluid and MOBILE hydraulic machine oil for automobiles;8
 MOTION INDUSTRIES selling WEATHERHEAD hydraulic hoses as well as
POWER TEAM and LUBRIPLATE hydraulic oil;9
 GRAINGER selling EATON WEATHERHEAD hydraulic hoses and MOBILE
hydraulic oil;10 and

7 October 19, 2020 Final Office Action, TSDR 7-8.
8 Id. at TSDR 9-10.
9 Id. at TSDR 11-12.
10 Id. at TSDR 13-14.
Serial No. 88820087
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 MCMASTER-CARR selling unbranded hydraulic hoses and MOBILE
hydraulic oil.11
Applicant argues that the “offering of hydraulic fluid and hydraulic hoses on
online stores is of little, if any, probative value on the issue of relatedness” citing
Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) for the
proposition that “products should not be deemed related simply because they are sold
in the same kind of establishments.”12 But this is an incomplete characterization of
the evidentiary record. Here, we have evidence that hydraulic hoses and hydraulic
fluid are the types of products sold under the same mark. Moreover, Recot involved
supermarkets as the channel of trade for potentially diverse goods, and cited other
cases involving supermarkets. The record here does not support that the third-party
retailers offer a diverse range of products so the evidence of these retailers selling
both types products is further support that the goods are related. In re Rexel, Inc.,
223 USPQ 830, 831 (TTAB 1984) (relatedness found where goods “likely to be sold
through the same retail outlets to the same classes of purchasers”). Moreover, as
discussed below, the goods have a complementary nature and may be purchased by
the same consumers at the same time.
The Examining Attorney asserts that the goods are complementary because “the
very purpose of a hydraulic hose is to move hydraulic fluid.”13 Applicant counters that

11 Id. at TSDR 17-18.
12 Appeal Brief, 4 TTABVUE 5-6.
13 Examining Attorney’s Brief, 6 TTABVUE 9.
Serial No. 88820087
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if “hydraulic fluid and hydraulic hoses are complementary because they are used in
hydraulic machinery” then “all of the components … of a hydraulic system [are]
complementary.”14 Applicant also argues that the goods “are not typically purchased
together. Hydraulic fluid is generally purchased and used to maintain recommended
fluid levels in a hydraulic system and to periodically replace existing hydraulic fluid.
Hydraulic hoses, on the other hand, are generally purchased when they fail or become
badly worn.”15
Although the goods may be purchased under the circumstances Applicant
describes, it is also foreseeable that the goods would be purchased together, as
Applicant’s identified customers, “auto part stores, farm supply stores, farm
equipment dealerships, and heavy duty equipment repair facilities” may well
purchase all or parts of a hydraulic system and accompanying supplies together to
stock their stores. In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991)
(relatedness found where goods complementary and purchased in a single shopping
trip); In re Rexel, Inc., 223 USPQ at 831 (relatedness found where goods “may well be
purchased at the same time”). Moreover, we cannot discount the fact that the goods
are used together even if they are part of a larger mechanical system.16 In re Martin’s

14 Appeal Brief, 4 TTABVUE 5.
15 Appeal Brief, 4 TTABVUE 4.
16 In arguing that the goods are not related, Applicant relies on In re Thor Tech, Inc., 113
USPQ2d 1546 (TTAB 2015) where the Board found that “recreational vehicles, namely,
towable trailers,” and “motor and land vehicles, namely, trucks” were not sufficiently related.
The record here, however, is very different from that in Thor Tech in which the applicant
submitted “copies of fifty (50) sets of third-party registrations for the same or similar marks
registered for automobiles, trucks or sport utility vehicles on the one hand and recreational
Serial No. 88820087
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Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)
(“Evidence of complementary use may be given more or less weight depending on the
nature of the goods, but this evidence may not be ignored.”); Mag Instrument Inc. v.
Brinkmann Corp., 96 USPQ2d 1701, 1713 (TTAB 2010) (finding flashlights and
flashlight bulbs – components that work together – complementary “by definition”).
We also are not persuaded by Applicant’s argument that “[t]he differences in
physical characteristics, nature and use of these two products is so great that
ordinary consumers would not see them as originating from the same source.”17 The
record includes two examples of third-parties manufacturing and selling both
hydraulic fluid and hydraulic hoses under the same mark so the products are not so
different in kind that purchasers would not expect the goods to emanate from a
common source. Moreover, “even if the goods in question are different from, and thus
not related to, one another in kind, the same goods can be related in the mind of the
consuming public as to the origin of the goods. It is this sense of relatedness that
matters in the likelihood of confusion analysis.” Recot, 54 USPQ2d at 1898.
Applicant points out that the Examining Attorney did not submit evidence of
third-party registrations for marks covering both hydraulic fluid and hydraulic
hoses,18 but that is not the only type of evidence relevant to relatedness. Considering
the evidence in its entirety, we find that the Examining Attorney has established a

vehicles, travel trailers, and/or motor homes on the other, which are owned by different
entities.” There is no such evidence here as Applicant did not introduce any evidence.
17 Reply Brief, 7 TTABVUE 2; see also Appeal Brief, 4 TTABVUE 4.
18 Appeal Brief, 4 TTABVUE 3.
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sufficient relationship between hydraulic hoses and hydraulic fluid such that the
second DuPont factor supports a finding that confusion is likely.
Turning to the third DuPont factor,19 Applicant criticizes the third-party evidence
arguing that “[t]ypically in online stores, a wide variety of products, not only from
different manufacturers within an industry but also from diverse industries, are
brought together to accommodate many needs and wants of consumers.”20 Applicant
further argues that “[t]he examiner has failed to produce evidence showing that the
normal channels of trade for hydraulic hoses overlap with auto part stores, farm
supply stores, farm equipment dealerships and heavy duty equipment repair
facilities.”21
With respect to the first argument, Applicant has not submitted evidence – only
attorney argument – that the third-party retailers of record sell “a wide variety of
products … from diverse industries”; further, the record does not support such a
finding. “Attorney argument is no substitute for evidence.” Cai v. Diamond Hong,

19 The Examining Attorney erred in asserting that the goods are presumed to travel in the
same channels of trade because the cited registration does not contain any trade channel
restrictions. Examining Attorney’s Brief, 6 TTABVUE 10. This presumption applies only
where the goods are legally identical. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade
and classes of consumers, the goods at issue were identical, so the Board was “entitled to rely
on this legal presumption” that the trade channels and consumers also were identical); L. &
J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1971 (TTAB 2007) (“Because the goods of both
parties are at least overlapping, we must presume that the purchasers and channels of trade
would at least overlap.”). Where, as here, the goods are not identical, we may presume only
that the goods travel in whatever trade channels are normal for the goods. Packard Press,
Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1357 (Fed. Cir. 2000) (“When
the registration does not contain limitations describing a particular channel of trade or class
of customer, the goods or services are assumed to travel in all normal channels of trade.”).
20 Appeal Brief, 4 TTABVUE 6.
21 Id.
Serial No. 88820087
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Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018). Accordingly, this
argument is unpersuasive.
As to the second argument, where, as here, the registration does not include any
restrictions on trade channels or customers, the goods are presumed to travel in all
normal channels of trade for such goods to all usual customers for goods of that type.
Packard Press, v. Hewlett-Packard Co., 56 USPQ2d at 1357; DeVivo v. Ortiz, 2020
USPQ2d 10153, at *31 (TTAB 2020). The usual customers for Registrant’s hydraulic
hoses include all consumers purchasing or repairing hydraulic systems because
hydraulic hoses are a necessary part of any such system. This would include
Applicant’s customers, namely, auto part stores, farm supply stores, farm equipment
dealerships and heavy duty equipment repair facilities. Moreover, the record shows
that Applicant’s and Registrant’s goods are the types of goods to be sold through the
same retailers and there is no evidence that Applicant’s identified consumers would
not purchase the goods at issue here through the types of third-party retailers of
record. Indeed, the name of one of the retailers, Northern Tool + Equipment, suggests
that their goods are directed to some of the same consumers referred to in Applicant’s
identification. As a result, this argument too is unpersuasive.
Accordingly, the third DuPont factor also supports finding a likelihood of
confusion.
Serial No. 88820087
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II. Conclusion
Applicant’s mark and Registrant’s standard
character mark DYNAFLO are very similar in overall appearance, sound,
connotation and commercial impression. We further find the record sufficient to
demonstrate that the goods are related and are sold through overlapping channels of
trade to some of the same consumers. Accordingly, we find that Applicant’s mark is
likely to cause confusion with the cited mark.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.