SpillTech Holding Company

Trademark Trial and Appeal Board

Sep 23, 2020

87778173 (T.T.A.B. Sep. 23, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 23, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re SpillTech Holding Company
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Serial No. 87778173
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Alan G. Towner of Leech Tishman Fuscaldo & Lampl,
for SpillTech Holding Company.
Christina Calloway, Trademark Examining Attorney, Law Office 122,
Kevin Mittler, Managing Attorney.
_____

Before Kuhlke, Kuczma, and Johnson, Administrative Trademark Judges.

Opinion by Johnson, Administrative Trademark Judge:
I. Background
SpillTech Holding Company (“Applicant”) seeks registration on the Principal
Register of the mark MAXIMIZER, in standard characters (“Applicant’s Mark”), for
goods ultimately identified as “absorbent products, namely, absorbent mats, pads and
perforated pads and excluding mops for absorbing leaks and spills in industrial and
commercial settings for the containment and clean-up of chemicals, oils, and liquids”
in International Class 17, and “disposable and recyclable absorbent floor mats, pads,
and perforated pads and excluding mops for absorbing leaks and spills in industrial
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and commercial settings for the containment and clean-up of chemicals, oils, and
liquids,” in International Class 27.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s Mark, as applied
to the goods identified in the application, so resembles the mark MAXIMIZER for
“mops,” in International Class 21,2 as to be likely to cause confusion.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.3
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion or mistake, or to deceive. 15
U.S.C. § 1052(d). Our determination of likelihood of confusion under Section 2(d) is

1 Application Serial No. 87778173 filed on January 31, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as July 11, 2016.

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions,
and orders on appeal are to the Board’s TTABVUE docket system.

2 Registration No. 4,768,337, issued July 7, 2015 [hereinafter the “Registered Mark”].
3 The Examining Attorney also refused Applicant’s Mark based on likelihood of confusion
with MAXIMIZER MOP, Reg. No. 4,458,658 for “mops” in International Class 21. On August
7, 2020, that registration was cancelled for failure to file a declaration of use under Section 8
of the Trademark Act, 15 U.S.C. § 1058. Applicant and the Examining Attorney discussed
the MAXIMIZER MOP registration in their briefs, but since that registration is now
cancelled, it is no longer relevant here.
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based on an analysis of all probative evidence in the record that is relevant to the
likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (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., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each DuPont factor for which there is evidence and argument of record.
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). In any likelihood of confusion analysis, two key considerations
are the similarities between the marks and the goods or services. In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); see 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.”); In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all [du Pont] 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)).
A. Similarity of the Marks
Turning to the marks, it is undisputed that Applicant’s Mark, MAXIMIZER, is
identical to the Registered Mark, MAXIMIZER, in its entirety as to appearance,
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sound, connotation, and commercial impression. Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567).
This DuPont factor weighs heavily in favor of a finding of likelihood of confusion.
B. Relatedness of the Goods and Channels of Trade
When analyzing the second and third DuPont factors on the relatedness of the
goods and channels of trade, we look to the identifications in the application and cited
registration. Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1162 (Fed. Cir. 2014); see Octocom Sys., Inc. v. Houston Comput. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion
that the question of registrability of an applicant’s mark must be decided on the basis
of the identification of goods set forth in the application regardless of what the record
may reveal as to the particular nature of an applicant’s goods, the particular channels
of trade or the class of purchasers to which sales of the goods are directed.”) . Where
the marks of the respective parties are identical or virtually identical, the
relationship between the goods and/or services need not be as close to support a
finding of likelihood of confusion as would be required if there were differences
between the marks. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010).
The goods and/or services do not have to be identical or even competitive in order
to find that there is a likelihood of confusion. Iolo Techs., 95 USPQ2d at 1499; In re
G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1368 (TTAB 2009). The issue is not
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whether the goods and/or services will be confused with each other, but rather
whether the public will be confused as to their source. See Recot Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven 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.”).
It is sufficient that the goods and/or services of the applicant and the registrant are
related in some manner or that the conditions surrounding their marketing are such
that they are likely to be encountered by the same persons under circumstances that,
because of the marks used in connection therewith, would lead to the mistaken belief
that they originate from the same source. See, e.g., Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-
Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB)); On-line Careline Inc. v.
America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000).
Applicant claims that the goods offered under its mark, MAXIMIZER, are distinct
from the “mops” offered under the Registered Mark because Applicant’s goods in
Classes 17 and 27 specifically exclude mops. Applicant also claims that confusion
between its mark and the Registered Mark is unlikely since Applicant’s goods are
specifically used in industrial and commercial settings, and they are marketed with
the SPILLTECH house mark along with the MAXIMIZER mark.4

4 12 TTABVUE 10-11.
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We first observe that, although Applicant’s goods are restricted to industrial and
commercial settings, Registrant’s goods are not and , as such, encompass industrial
and commercial settings. Octocom Sys., 16 USPQ2d at 1787. Fundamentally, our
analysis is based on the marks as depicted in the respective application and
registration, without regard to whether the marks will appear with other marks, such
as house marks, or other elements when used. See Shell Oil, 26 USPQ2d at 1690 n.4
(indicating that applicant’s assertions that the applied-for mark would appear with
applicant’s house mark were not considered in the likelihood of confusion
determination); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB
2018) (“[W]e do not consider how Applicant and Registrant actually use their marks
in the marketplace, but rather how they appear in the registration and the
application. We must compare the marks as they appear in the drawings, and not on
any labels that may have additional wording or information.”); Mini Melts, Inc. v.
Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016) (rejecting applicant’s
argument that, because its mark would appear along with its house mark and other
distinguishing matter, the marks at issue were not confusingly similar). Inasmuch as
Applicant’s house mark is not part of its MAXIMIZER mark at issue here, Applicant’s
house mark argument is without merit.
Moreover, the record evidence in this case shows that the goods in question are
related and marketed to the same consumers under the same marks on the same web
sites. For example, the record includes five third-party marks registered by three
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different owners for use in connection with the same or similar goods that are offered
by both Applicant and Registrant:5
MARK GOODS
Reg. No. 4,548,021
6
Full line of absorbent products, namely, absorbent
pads, absorbent socks, absorbent pillows, and
absorbent dikes and skimmers comprised of liquid
permeable casings containing absorbent granular
or fibrous material, for the containment and clean-
up of leaks and spills; absorbent pads for
containing leaks and spills and dispensers for use
therewith sold as a unit; spill kits primarily
comprised of absorbent pads, absorbent mats,
absorbent pillows, absorbent wipes, absorbent
socks, absorbent dikes and absorbent skimmers for
containing spills inside of disposable bags and also
containing pans with liquid permeable covers and
absorbent liners and pulp for containing spills
inside of disposable bags; elongate tubular oil
absorbent socks and oil absorbent pillows for
placing about the bases of machines to collect oil
and other liquid waste. (Int. Class 17)
Cleaning wipes made of synthetic and natural
absorbent textiles not impregnated with chemicals
or compounds for absorbing liquids; funnels used to
drain liquids into storage drums; mops. (Int. Class
21)
Adsorbent polypropylene mats for commercial and
industrial use in absorbing liquid spills and leaks;
polyurethane mats for sealing off grates, drains,
storm drains and manholes against passage of

5 We have not listed two other third-party registrations that were registered under Section
66(a) of the Trademark Act, 15 U.S.C. § 1141(f)(a). Third-party registrations that are not
based on use in commerce, such as those registered under Section 66(a), or those registered
solely under Section 44 of the Trademark Act, 15 U.S.C. §1126(e), and for which no Section 8
or 71 affidavits or declarations of continuing use have been filed, have very little, if any,
persuasive value. See Calypso Tech., Inc. v. Calypso Capital Mgmt., LP, 100 USPQ2d 1213,
1221 n.15 (TTAB 2011); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1583 (TTAB
2007); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
6 Request for Reconsideration After Final Action Denied, Jan. 24, 2020, TSDR pp. 98-100.
Partial listing of goods and services.
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MARK GOODS
surface liquids; ground coverings, namely,
polypropylene floor covering and ground covering
in the nature of polypropylene floor covering with
textile and barrier film layers; textile floor mats;
absorbent polypropylene mats. (Int. Class 27)
Reg. No. 5,171,995
7
Cleaning pads, namely, flat absorbent pads used to
control and absorb liquid spills; mops, cleaning
cloths. (Int. Class 21)
Reg. No. 5,166,882
8
Cleaning pads, namely, flat absorbent pads used to
control and absorb liquid spills; dispensers for
cleaning preparations and solutions; mops, cleaning
cloths. (Int. Class 21)
Reg. No. 5,142,350
9

Cleaning tools, namely, dust pans, mops, feather
dusters, brooms, and toilet bowl brushes; micro
fiber products, namely, wet mops, mop buckets,
dust mops, dusting and cleaning cloths, micro fiber
dusters, cleaning sponges, mop backpacks
especially designed for carrying and storing mops,
dust mops, attaching frames and handles, all sold
as a unit; dusters, window washing and floor
cleaning pads; mopping equipment, namely,
buckets, wringers, plastic dispensing bottles for
holding and storing water and cleaning liquids sold
empty, wet mops and handles of wood, plastic and
metal sold as a unit, clean room mops and handles
of wood, plastic and metal sold as a unit; natural,
or blended microfiber wiping cloths, mops, mop
buckets, cleaning supply storage and transport
caddies used in the washroom environment;

7 Id. at TSDR pp. 102-08. Partial listing of goods and services.
8 Id. at TSDR pp. 109-15. Partial listing of goods and services.
9 Id. at TSDR pp. 116-21. Partial listing of goods and services.
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MARK GOODS
specialized cleanup kit comprising mops, brooms,
all-purpose cleaning preparations, cleaning
brushes, lobby dust pans and mated brooms, micro
fiber mop with handle and frame, absorbent press-
on disposable mats, deodorizing sticks, trigger
sprayer and bottle, maid’s caddy, cart, and waste
container. (Int. Class 21)
Floor mats and matting for covering existing floors;
disposable absorbent floor pads. (Int. Class 27)
Reg. No. 5,779,882
IMPACT10
Cleaning tools, namely, dust pans, mops, feather
dusters, brooms, and toilet bowl brushes; micro
fiber products, namely, wet mops, mop buckets,
dust mops, dusting and cleaning cloths, micro fiber
dusters, cleaning sponges, mop backpacks
especially designed for carrying and storing mops,
dust mops, attaching frames and handles, all sold
as a unit; dusters, window washing and floor
cleaning pads; mopping equipment, namely,
buckets, wringers, plastic dispensing bottles for
holding and storing water and cleaning liquids sold
empty, wet mops and handles of wood, plastic and
metal sold as a unit, clean room mops and handles
of wood, plastic and metal sold as a unit; natural,
or blended microfiber wiping cloths, mops, mop
buckets, cleaning supply storage and transport
caddies used in the washroom environment;
specialized cleanup kit comprising mops, brooms,
all-purpose cleaning preparations, cleaning
brushes, lobby dust pans and mated brooms, micro
fiber mop with handle and frame, absorbent press-
on disposable mats, deodorizing sticks, trigger
sprayer and bottle, maid’s caddy, cart, and waste
container. (Int. Class 21)
Floor mats and matting for covering existing floors;
disposable absorbent floor pads. (Int. Class 27)

10 Id. at TSDR 122-26. Partial listing of goods and services.
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We find these third-party registrations probative to show that Registrant’s mops and
Applicant’s various absorbent products for industrial and commercial settings are of
a kind that may emanate from a single source. In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988);
see also Albert Trostel & Sons, 29 USPQ2d at 1785-86.
In addition, uline.com,11 rubbermaidcommercial.com,12 oilspill-cleanup.com,13
newpig.com,14 ercwipe.com,15 bradyid.com,16 medline.com,17 3M.com,18
ituabsorbtech.com,19 and bregenvironmental.com20 all offer at their respective
websites, under the same mark, a variety of mops which could be used anywhere, as
well as disposable and recyclable absorbent mats and floor mats, pads, and perforated
pads for absorbing leaks and spills in industrial and commercial settings. Applicant
acknowledges this fact as well.21

11 May 21, 2018 Office Action, TSDR pp.9-15.
12 Id. at TSDR pp. 16-19.
13 Id. at TSDR pp. 24-31.
14 Dec. 11, 2018 Office Action, TSDR pp. 6-26.
15 Id. at pp. 27-32.
16 July 1, 2019 Office Action, TSDR pp. 4-22.
17 Id. at TSDR pp. 23-28.
18 Jan. 24, 2020 Office Action, TSDR pp. 2-28.
19 Id. at TSDR pp. 29-45.
20 Id. at TSDR pp. 46-50.
21 4 TTABVUE 1.
Serial No. 87778173

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Examples from the ULine.com website:

Serial No. 87778173

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Examples from the RubbermaidCommercial.com website:

Serial No. 87778173

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Serial No. 87778173

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Examples from GEI Works’ Oilspill-cleanup.com website:

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Example from the SorbIts ituabsorbtech.com website:

Overall, we find that the goods are related and travel in the same channels of
trade. These DuPont factors also weigh heavily in favor of a finding of likelihood of
confusion.
C. Sophistication of Consumers
Finally, we consider the conditions under which the goods are likely to be
purchased, e.g., whether on impulse or after careful consideration, as well as the
degree, if any, of sophistication of the consumers. Purchaser sophistication or degree
of care may tend to minimize likelihood of confusion. Conversely, impulse purchases
of inexpensive items may tend to have the opposite effect. Palm Bay Imps., 73
USPQ2d at 1695. Applicant claims that purchasers of its products are “relatively
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sophisticated and pay close attention when making purchasing decisions for such
specialized products, thereby making confusion even less likely.”22 Nevertheless, the
fact that purchasers are sophisticated or knowledgeable in a particular field does not
necessarily mean that they are sophisticated or knowledgeable in the field of
trademarks or immune from source confusion. See In re Cynosure, Inc., 90 USPQ2d
1644, 1647 (TTAB 2009).
We find that due to the fundamental nature of Applicant’s goods, consumers—
whether professionals or laypersons—are more likely to exercise a slightly higher
degree of care when making purchasing decisions for such goods. The absorbent
products, including floor mats, pads, and perforated pads, when used for commercial
or industrial applications, are often sold in bulk at slightly higher price points than
related goods sold for non-commercial or non-industrial uses. This is borne out by the
evidence of record. For example, U-Line’s Universal Sorbents Light Pads 15x19,
Model S-17293, are offered in a quantity of 200 pads per carton at a price of $94.00.23
The U-Line High Traffic Sorbent Medium Roll Mat 30 x 300, Model S-19488, is offered
at a price of $191.00 per mat.24 DC Glove and Safety offers a box of 200 light-weight
double coverage absorbent pads, 15x19, for $63.18 a box.25 BMC Protect offers
DuraSoak brand general purpose heavy-duty absorbent pads at $41.00 per package.26

22 12 TTABVUE 10.
23 May 21, 2018 Office Action, TSDR p. 11. The price of the cartons decreases when multiple
cartons are purchased.
24 Id. The price of the mat decreases when multiple mats are purchased.
25 Id. at TSDR p. 22.
26 Id. at TSDR p. 32.
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We find that these prices are more than what an average consumer may spend for
the same or similar goods used for non-industrial or non-commercial applications, but
the Internet evidence of record does not appear to be limited to a sophisticated or
special type of consumer; the goods are offered to the general public. As a result, this
DuPont factor is neutral.
III. Conclusion
After considering all of the evidence of record as it pertains to the relevant DuPont
factors, even if not specifically discussed herein, we find that confusion is likely.
Although the goods offered through Applicant’s MAXIMIZER mark may be purchased
in bulk at slightly higher price points for specialized industrial or commercial
applications, causing consumers to make purchasing decisions with slightly greater
care, the marks are still identical, the goods are highly related, and the channels of
trade overlap.
Decision: The refusal to register Applicant’s Mark, MAXIMIZER, is affirmed.