Spicer Technology, Inc.

Trademark Trial and Appeal Board

Sep 11, 2003

No. 78015453 (T.T.A.B. Sep. 11, 2003)

Oral Hearing:
June 10, 2003
Mailed: September 11, 2002
Paper No. 13
CEW
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Spicer Technology, Inc.
___________
Serial No. 78/015,453
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Robert M. Leonardi, Esq. and Matthew Stavish, Esq. for
Spicer Technology, Inc.
John M. Gartner, Trademark Examining Attorney, Law Office
102 (Thomas V. Shaw, Managing Attorney).
____________
Before Simms, Seeherman and Walters, Administrative
Trademark Judges.
Opinion by Walters, Administrative Trademark Judge:
Spicer Technology, Inc. has filed an application to
register the mark TXT on the Principal Register for “axles
for use with on-highway vehicles.”1

1 Serial No. 78/015,453, in International Class 12, filed July 5, 2000,
based on an allegation of a bona fide intention to use the mark in
commerce.
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Serial No. 78/015,453
2
The Trademark Examining Attorney has issued a final
refusal to register under Section 2(d) of the Trademark Act,
15 U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark TXT, previously registered for “electric
and gasoline powered cars used as plant personnel carriers,
baggage carriers, general utility and maintenance cars,
motel and resort cars, golf cars and structural parts
therefor,”2 that, if used on or in connection with
applicant’s goods, it would be likely to cause confusion or
mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, and an oral hearing
was held. We reverse the refusal to register.
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 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). 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 and differences in
the marks.” Federated Foods, Inc. v. Fort Howard Paper Co.,

2 Registration No. 2,037,815 issued February 11, 1997, to Textron Inc.,
in International Class 12. [Sections 8 and 15 affidavits accepted and
acknowledged, respectively.]
Serial No. 78/015,453
3
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re Azteca
Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and
the cases cited therein.
The Examining Attorney contends that the marks are
identical; that TXT is an arbitrary, strong mark for the
goods involved in this case; that the goods are sold to the
same customers; that registrant’s “electric and gasoline
powered cars” encompass “on-highway vehicles”; that the term
“structural parts” in registrant’s identification of goods
encompasses vehicle axles; and, therefore, that the goods
are identical. The Examining Attorney submitted no evidence
in support of his position.
Applicant contends that the goods are different because
applicant’s goods are for “on-highway vehicles” whereas
registrant’s goods are all vehicles that are not used on the
highway; that applicant’s goods are essentially small
vehicles often called “golf carts”; and that “structural
parts” does not encompass applicant’s goods because the term
refers only to body and frame parts, whereas applicant’s
goods “are contained in the vehicles drivetrain system”
(Brief, pg. 3). Applicant states that the trade channels
are different because applicant’s axles are not sold
directly to vehicle end users, rather they are sold to
original equipment vehicle manufacturers, whereas
registrant’s goods are likely sold to end-users; that both
Serial No. 78/015,453
4
applicant’s and registrant’s customers are knowledgeable
sophisticated purchasers; and that the respective goods are
expensive and purchased only “after competitive cost and
product evaluation and negotiations” (Brief, pg. 4).
Considering, first, the marks, it is clear that
applicant’s mark, TXT, is identical to the mark in the cited
registration, TXT. Applicant states in its response of May
18, 2001, that “‘TXT’ does not have any meaning in relation
to axles for use in motor vehicles, but was derived from the
term ‘torque transfer technology.’” Absent any evidence as
to whether, or to what extent, TXT or “torque transfer
technology” has any relevance to either applicant’s or
registrant’s goods, we presume that TXT is arbitrary in
relation thereto.
Turning to consider the goods involved in this case, we
note that the question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Serial No. 78/015,453
5
From the identification of goods in the cited
registration, the vehicles identified are for very specific
uses and are likely quite difference from “on-highway
vehicles.” Thus, it is likely that applicant’s axles, as
identified, would be for an entirely different class of
vehicles from those identified in the cited registration.
Further, applicant’s axles are likely to be sold to vehicle
repair shops and original equipment manufacturers, whereas
the vehicles identified in the cited registration are likely
to be sold to end-users of such vehicles, for example,
plants, factories, airports or ailines, motels, resorts, and
golf courses. Thus, the channels of trade and classes of
purchasers for the respective products are obviously
different. The Examining Attorney has presented no evidence
to warrant a different conclusion.
We conclude that in spite of the identity of the marks,
the Examining Attorney has not established that applicant’s
identified goods are the same as, or similar or related to,
the goods in the cited registration or that the trade
channels and purchasers for such goods overlap. Therefore,
we cannot conclude that registration of applicant’s mark is
likely to cause confusion as to the source or sponsorship of
such goods.
Decision: The refusal under Section 2(d) of the Act is
reversed.