Schwan’s IP, LLC

Trademark Trial and Appeal Board

Sep 29, 2008

No. 77057385 (T.T.A.B. Sep. 29, 2008)

Mailed: September 29, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Schwan’s IP, LLC
________

Serial No. 77057385
_______

Gregory C. Golan, Merchant & Gould PC, for Schwan’s IP,
LLC.

Andrea Koyner Nadelman, Trademark Examining Attorney, Law
Office 110, Chris A.F. Pederson, Managing Attorney.
_______

Before Drost, Mermelstein, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Schwan’s IP, LLC seeks registration of the mark TIMBER
CREEK (in standard characters) for goods described as a
“grilling accessory, namely, tray for smoking meats and
vegetables.” International Class 11.1
Registration has been finally refused pursuant to
Trademark Act § 2(d), 15 U.S.C. § 1052(d), on the ground
that applicant’s mark so resembles the mark TIMBER CREEK

1 Filed December 5, 2006, based on an allegation of a bona fide
intent to use the mark in commerce. The application includes
goods in International Class 29. However, the examining attorney
has explicitly limited her refusal to applicant’s International
Class 11 goods. Therefore, despite the result in this decision,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77057385
2
(typed), registered for a variety of camping equipment,2 as
to be likely, if used on the identified goods, to cause
confusion, to cause mistake, or to deceive. Trademark Act
§ 2(d); 15 U.S.C. § 1052(d).
We affirm.
I. Applicable Law
Our determination under Trademark Act § 2(d) is based
on an analysis of all of the probative facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E.I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311,
65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie Rests. Inc.,
105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these
factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
[or services] and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

applicant’s mark will be published for opposition with respect to
its Class 29 goods.
Serial No. 77057385
3
USPQ 24, 29 (CCPA 1976); and In re Azteca Rest. Enters.,
Inc., 50 USPQ2d 1209 (TTAB 1999).
II. Discussion
A. The Similarity Or Dissimilarity of the Marks in
Their Entireties as to Appearance, Sound,
Connotation and Commercial Impression.

In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 73
USPQ2d at 1692. The marks in this case are identical in
every respect.
Applicant nonetheless argues that the cited mark is
weak, and not entitled to a broad scope of protection. In
support of its argument, applicant points to a number of
registrations it made of record which contain the terms
“TIMBER” or “CREEK.”3 Suffice it to say that we do not find
that these registrations for other marks and other goods
demonstrate the weakness of the prior registration for the
goods recited therein.

2 Registration No. 3007751, issued November 18, 2005.
3 By our count, applicant submitted the records of sixteen marks
for this purpose. Of that number, we have disregarded six,
because they are either still pending as applications or have
been cancelled after registration. Of the remaining
registrations, only one includes both “TIMBER” and “CREEK,”
Registration No. 2996002, TIMBER CREEK LODGE for “wallcoverings.”
There is no evidence or argument that wallcoverings are in any
way related to the registrant’s goods.
Serial No. 77057385
4
We conclude that, because the marks at issue are
identical, this factor strongly supports the examining
attorney’s refusal of registration.
B. The Similarity Or Dissimilarity And Nature Of The
Goods

We begin our analysis of the goods with the premise
that, because the marks at issue are identical, the extent
to which the applicant’s and registrant’s goods must be
similar or related to support a finding of likelihood of
confusion is lessened. In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001). It is only necessary that there be
a viable relationship between the goods to support a
finding of likelihood of confusion. In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
Moreover, goods or services need not be identical or
even competitive in order to support a finding of
likelihood of confusion. Rather, it is enough that goods
or services are related in some manner or that some
circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used or intended to be used therewith, to a mistaken belief
that they originate from or are in some way associated with
the same producer or that there is an association between
Serial No. 77057385
5
the producers of each parties’ goods or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Applicant identifies its goods as a “grilling
accessory, namely, tray for smoking meats and vegetables.”
The goods set out in the cited registration comprise a
variety of camping and outdoor equipment as follows:
Int’l Class Goods
6 Metal tent stakes, carabiner type, metal key chains
7 Air compressors, compressed air pumps
8 Camping mess kits, consisting primarily of locking knife blade, fork, spoon,
corkscrew, bottle opener, fry pan, plate, boiling plate, boiling pot with lid,
cup and nylon case; hand tools, namely pliers, screw drivers, toaster forks,
shovels, and hand operated shears; camping tool kits consisting primarily
of multi-function hand tools comprised of needle nose pliers, wire cutters,
wire strippers, Phillips head screwdriver, can opener, bottle opener, nail
file, slotted screwdrivers, serrated blade, knife blade, saw blade, tape
measure, 17-bit set comprised of 8 Phillips head bits, 5 slotted screwdriver
bits, and 3 Allen wrench bits, storage case; utility tool sets consisting
primarily of adjustable wrench, fish scaler, file, large slotted screwdriver,
Phillips head screwdriver, knife blade, serrated blade, needle nose pliers,
nail claw, mini hammer, bottle opener, 9-bit set comprised of 3 Phillips
head bits, 3 slotted screwdriver bits, and 3 Allen wrench bits, storage case;
hand-pumped water sprayer
9 Directional compasses, sport whistles
11 Camping stoves, kerosene lanterns, propane lanterns, portable propane
heaters, chemically-activated light sticks, flashlights, water coolers, solar
showers, portable camp toilets, portable battery-operated head lights,
portable fire pits, plastic portable fan with light for use when camping
18 Fanny packs, duffel bags, backpacks, umbrellas, lawn umbrellas
20 Lawn furniture, furniture for use when camping, air mattresses, air beds
with frames, all for use when camping, non-metal tent stakes; nylon
detachable key chains; handheld pocket fan; sleeping bags
21 Portable coolers, plastic water bottles sold empty, thermal insulated
containers for food or beverage, egg carriers, flasks, utensils, namely
toaster fork and extendable fork and pots for use when cooking, soap
dishes, toothbrush covers, enamel cookware, namely, ladle, kettle, skillet,
serving spoons, coffee cup, mixing bowl, cup, soup plate, dinner plate,
dishes, beverage containers, aluminum beverage containers, bottle
carriers, non-electric percolators, canteen and accompanying belt, all of
the foregoing goods for use when camping
22 Tents, poly and polyethylene canopies and tarps, and tie downs for use
when camping, hammocks, hammock stands, all-purpose straps, laundry
reel made of string
24 Mosquito netting, thermal blankets

Serial No. 77057385
6
Thus, while applicant’s goods are a device for smoking
food on an outdoor grill, the prior registrant’s goods
include camping stoves and cookware for outdoor cooking.
Applicant contends that its goods are typically used with
larger outdoor grills, and that such grills are not usually
used for camping.4 But whether or not large outdoor grills
are used by campers is a red herring; applicant does not
allege that its goods are only suitable for use on large
grills, that its goods are not portable, or that they are
otherwise unsuited to camping. Applicant’s goods are
clearly related to the registrant’s in purpose and use, in
that they are both used for cooking food outdoors.
The examining attorney has introduced evidence5
indicating that campers in fact use smoke to cook food.
One website advises that “A near complete camping gear

4 We note that applicant’s statements in this regard are
unsupported by any evidence. Applicant filed its application
under the intent-to-use provisions of the Trademark Act and has
not yet filed an allegation of use. If applicant’s mark is
actually in use on the goods, applicant has not filed any
documentation about its product on this record.
5 The examining attorney conducted a search using the Google
search engine, and submitted the first two pages of the search
results into evidence. Based on this, the examining attorney
argues that “camping equipment” and “smoker” appeared together in
approximately 19,200 stories. Ex. Att. Br. at 8.
We agree with applicant that this evidence is problematic. The
two-page Google “hit list” is entitled to very little probative
weight because it contains little information by which we can
judge the context in which the searched words appear. In Re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833
(Fed. Cir. 2007). On the other hand, there is no evidence at all
Serial No. 77057385
7
should consist of ... cooking equipment (charcoal chimney,
smoker, Dutch oven ....” Camping-Net.com, www.camping-
net.com/camping_gear.html (July 7, 2007). Other evidence
demonstrates that camping equipment and outdoor cooking
equipment are sold or rented together. See Community
Recreation, Fort Sam Houston, Texas, www.fortsamhoustonmwr-
.com/rfd/outdoorequipmentcenter/default.asp (July 12,
2007).
We conclude that applicant’s goods and the goods of
the cited registrant are related, a factor which likewise
supports refusal of registration.
C. The similarity or dissimilarity of established,
likely-to-continue trade channels.

Finally, applicant argues that
none of the [examining attorney’s evidence] in
any way suggest[s] that Applicant’s goods are
routinely marketed and sold via the same channels
of trade as camping goods. Rather, these
excerpts demonstrate that Applicant’s goods are
commonly marketed and sold with barbecue grills
and/or in stores specializing in barbecue grills
and grilling-related items.”

App. Br. at 5-6.
In determining registrability, we must limit our
consideration to the goods as set out in the application
and in the cited registration. See In re Elbaum, 211 USPQ

of the context for the remainder of the 19,200 “hits,” and we
have given that information no consideration.
Serial No. 77057385
8
639, 640 (TTAB 1981). Regardless of applicant’s actual
goods or the consumers to whom they are sold, we may not
read limitations into the goods as recited. Octocom Syst.
Inc. v. Houston Computers Svcs. Inc., 16 USPQ2d 1783, 1786-
87 (Fed. Cir. 1990).
In this case, the goods in the subject application
contain no limitations as to their channels of trade or
potential customers. We thus consider applicant’s goods to
move in all the usual channels of trade and to the usual
customers for goods such as applicant’s. As noted above,
the examining attorney’s evidence suggests that at least
some smoking equipment is used while camping and is sold in
close proximity to camping gear. Based on this evidence we
cannot conclude that the normal channels of trade for the
applicant’s and registrant’s goods are so distinct and
separate as to mitigate the likelihood of confusion which
would arise from the use of the identical marks on the
related goods at issue.
III. Conclusion
After careful consideration of the record evidence and
argument, we conclude that, in light of the identical marks
and related goods at issue, use of applicant’s mark on or
in connection with the identified goods would pose a
likelihood of confusion with the mark in the cited prior
Serial No. 77057385
9
registration.
Decision: The refusal to register under Trademark Act
§ 2(d) is accordingly affirmed. As previously noted,
registration has not been refused with respect to
applicant’s International Class 29 goods, which will be
published for opposition in due course.