Smith Cooper International, Inc.

Trademark Trial and Appeal Board

Feb 18, 2009

No. 77100276 (T.T.A.B. Feb. 18, 2009)

Mailed:
18 February 2009
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Smith Cooper International, Inc.
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Serial No. 77100276
_______

John J. Connors of Connors & Associates for Smith Cooper
International, Inc.

Ronald E. Aikens, Trademark Examining Attorney, Law Office
112 (Angela Wilson, Managing Attorney).
_______

Before Drost, Zervas, and Cataldo, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On February 6, 2007, Smith Cooper International, Inc.
(applicant) applied, under the intent to use provision of
the Trademark Act, to register the mark COOPLOK, in
standard character form, on the Principal Register for
“metal piping products, namely, pipe fittings” in Class 6.
Serial No. 77100276.
The examining attorney has refused to register
applicant’s mark on the ground that it is confusingly
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77100276
2
similar under Section 2(d) of the Trademark Act (15 U.S.C.
§ 1052(d)) to the registered mark COUPLOX (in typed or
standard form) for “pipe couplings and fittings” in Class
6.1
After the examining attorney made the refusal final,
this appeal followed.
Inasmuch as this is a case involving a refusal under
Section 2(d), we analyze the evidence as it relates to the
relevant factors set out in In re E. I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003) and Recot, Inc. v.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed. Cir.
2000). In considering the evidence of record on these
factors, we must 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
[or services] and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976).
The first factor that we will consider concerns
whether the goods are related. Here, applicant’s goods are
“pipe fittings” and registrant’s goods include “pipe

1 Registration No. 1283029, issued June 26, 1984, renewed.
Ser No. 77100276
3
fittings.” Therefore, the goods are identical. The
Federal Circuit has made it clear that when marks “would
appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701
(Fed. Cir. 1992).
Applicant argues that “both marks are directed to
piping. This, however, does not mean that goods bearing
substantially different marks travel through the same
channels of commerce.” Brief at 6. This is not correct.
When the goods are identical, we must assume that the
channels of trade and purchasers are also the same.
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003)
(“Given the in-part identical and in-part related nature of
the parties’ goods, and the lack of any restrictions in the
identifications thereof as to trade channels and
purchasers, these clothing items could be offered and sold
to the same classes of purchasers through the same channels
of trade”); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532
(TTAB 1994) (“Because the goods are legally identical, they
must be presumed to travel in the same channels of trade,
and be sold to the same class of purchasers”).
Ser No. 77100276
4
Applicant also argues that the “extreme polarity of
California, Applicant’s place of business, on the west
coast, versus Delaware, located on the east coast of the
United States, makes for a prima facie case that the goods
are not likely to be sold to the same type of consumers
through similar channels.” Brief at 6. However, even if
applicant could establish that it and registrant were
currently operating in distinct geographic areas, this
would not support a conclusion that there was no likelihood
of confusion when applicant and registrant have a
geographically unrestricted application and registration.
In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d 1214
(TTAB 2001) (“Given that registrant’s registrations
encompass nationwide rights, and that applicant is seeking
a geographically unrestricted registration, applicant's
argument is unavailing”) and In re Integrity Mutual
Insurance Co., 216 USPQ 895, 896 (TTAB 1982) (“Inasmuch as
applicant is seeking a geographically unrestricted
registration, the Board is constrained to evaluate
similarities in terms of potentially nationwide markets”).
Therefore, the goods, channels of trade, and
purchasers must be considered to be the same so we move on
to consider whether the marks are similar or dissimilar in
their entireties as to appearance, sound, connotation and
Ser No. 77100276
5
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). Applicant’s mark
COOPLOK and registrant’s mark COUPLOX are displayed in
typed or standard character form so we must assume that the
marks can be displayed in the same stylization. In re Cox
Enterprises Inc., 82 USPQ2d 1040, 1044 (TTAB 2007)(“We must
also consider that applicant’s mark, presented in typed or
standard character form, is not limited to any special form
or style as displayed on its goods”). The marks are not
identical inasmuch as the third letter and seven letters
are different (O/U and K/X). The examining attorney argues
that “the ‘ou’ found in ‘SOUP,’ which rhymes with ‘coop’
suggests that the word ‘COUP’ theoretically could be
pronounced in the same manner as ‘COOP.’” Brief at
unnumbered p.9.2 Applicant, on the other hand, argues that
registrant’s mark “is a combination of the French derived

2 We grant the examining attorney’s request that we take judicial
notice of the MSN Encarta dictionary definitions. In re Red
Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006) (The Encarta
Dictionary “is acceptable material for judicial notice even
though the excerpt was submitted with the examining attorney's
appeal brief”). See also The Random House Dictionary of the
English Language (unabridged) (2d ed. 1987) (soup pronounced
“soop”). We also take judicial notice of this pronunciation.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).

Ser No. 77100276
6
English word ‘coup’ and the English word ‘lox’”3 and that
its “mark COOPLOCK is a continuous singular, adjective word
that a reasonable consumer may identify as a reduction of
the words ‘coop’ and ‘lock.’” Brief at 3-4.
We begin by observing that the terms COOPLOK and
COUPLOX are similar in appearance. The difference in the
third and seventh letters does mean that the marks are not
identical but it does not significantly change the
appearance of the marks. Visually, the difference between
the O/U and K/X letters may not be apparent or remembered
by many purchasers who do not study the marks closely.
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.

Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d
1844, 1848 (TTAB 2004). See also Grandpa Pidgeon’s of
Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ 573,
574 (CCPA 1973) and Johann Maria Farina Gegenuber Dem

3 Lox can mean liquid oxygen or brine-cured salmon. The Random
House Dictionary of the English Language (unabridged) (2d ed.
1987).

Ser No. 77100276
7
Julichs-Platz v. Chesebrough-Pond, Inc., 470 F.2d 1385, 176
USPQ 199, 200 (CCPA 1972).
Next, we look at the pronunciation of the marks.
Applicant maintains that the “mark ‘COUPLOX’ - pronounced
koō lox – has a ‘p’ in the prefix ‘COUP’ which is silent.
The mark ‘COOPLOK’ – pronounced koŏp läk – has a ‘p’ in the
prefix that is pronounced. The suffix ‘LOX,’ as in ‘bagel
and lox,’ is phonetically distinguishable from the suffix
‘LOK,’ which is an obvious reduction of the word ‘LOCK,’ as
in ‘lock the door.’” Brief at 3. We note that neither
mark is itself a recognized word, even though they may be
composed of some recognized words. As such, it has long
been held that there is no correct pronunciation of a
trademark. In re Belgrade Shoe Co., 411 F.2d 1352, 162
USPQ 227, 227 (CCPA 1969) (“[T]he appellant acknowledges
that ‘there is no correct pronunciation of a trademark.’
We think that one is very likely to pronounce ‘Collegienne’
as if it were spelled ‘Colleejen’ or ‘Colleejun.’ Thus, in
sound, the appellant's mark differs from the registered
mark primarily in that the former is the plural form of the
latter, which we feel does not amount to a material
difference in a trademark sense”). See also Centraz
Industries Inc. v. Spartan Chemical Co., 77 USPQ2d 1698,
1701 (TTAB 2006) (However, there “is no correct
Ser No. 77100276
8
pronunciation of a trademark, and it obviously is not
possible for a trademark owner to control how purchasers
will vocalize its mark”). While it is possible that some
purchasers will pronounce the marks as if they were simply
two separate words, “coup”4 and “lox” or “coop”5 and “lok,”
it is more likely that many other purchasers, when faced
with a new term, will pronounce the marks COOPLOK and
COUPLOX very similarly and without using a silent letter
“P” in applicant’s mark.
Next, we look at the meanings of the marks COOPLOK and
COUPLOX. Again, it is possible that some purchasers will
divide the words and understand that applicant’s mark
refers to a lock for some type of coop and that
registrant’s mark will be viewed as a nonsensical
combination of a coup, an unexpected act, with
smoked salmon (or perhaps liquid oxygen or the phonetic
equivalent of locks). However, many consumers are likely
to view the marks as arbitrary terms without seeking a
specific meaning for the marks based on dictionary meanings

4 Coup – (kōō) “a highly unexpected, successful stroke, act, or
move.” We note that there is a word Coup (kōp, kōōp) meaning
“Scot. overturn, upset.” The Random House Dictionary of the
English Language (unabridged) (2d ed. 1987).
5 Coop – (kōōp, kŏŏp) – “an enclosure, cage, or pen, usually with
bars or wires, in which fowl or other small animals are
confined….” The Random House Dictionary of the English Language
(unabridged) (2d ed. 1987).
Ser No. 77100276
9
of the individual components. Indeed, none of the word
combinations have any meaning for pipe fittings and these
purchasers are unlikely to rely on the difference in the
meanings of these terms to assume that COOPLOK pipe
fittings come from a different source form COUPLOX pipe
fittings. Furthermore, with these slight differences
between the marks, their commercial impressions would also
be virtually the same, if not, identical.
When we view the marks COOPLOK and COUPLOX, we
conclude that they are highly similar in sound, appearance,
meaning, and commercial impression. The differences in
appearance, sound, meaning, and commercial impression are
slight and easily overlooked. In re Research and Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)
(“There is little room to debate the similarity between
ROPELOCK and ROPELOK in appearance”).
In this case, the goods, channels of trade, and
purchasers are identical and the marks are very similar,
Under these circumstances, confusion is likely.
Decision: The examining attorney’s refusal to
register applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.