Sprite Industries, Inc.

Trademark Trial and Appeal Board

May 10, 2021

88460224 (T.T.A.B. May. 10, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 10, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Sprite Industries, Inc.
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Serial No. 88460224
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Mark B. Garred of Stetina Brunda Garred & Brucker,
for Sprite Industries, Inc.
Jessica Hilliard, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Taylor, Shaw and Lynch,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Sprite Industries, Inc. (“Applicant”) seeks registration on the Principal Register
of the standard character mark REGENT for “shower heads, shower head filters,
filtered shower heads, in-line shower heads, and hand-held shower heads with built-
in filters,” in International Class 11.1

1 Application Serial No. 88460224 was filed on June 5, 2019, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 88460224
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that it is likely
to be confused with the mark in Registration No. 5432431, REGENCY (in standard
characters) for, in relevant part, “faucets; metal sinks; kitchen sink sprayers,” in
International Class 11.2 The Examining Attorney also required Applicant to properly
sign and verify the application as mandated by 37 C.F.R. § 2.20. See 37 C.F.R.
§§ 2.2(n), 2.33(a), (b)(2)-(c), 2.34(a)(2), (a)(3)(i), (a)(4)(ii); TMEP § 804.02 (Oct. 2018).
When the refusal and requirement were made final, Applicant appealed. With its
reply brief, Applicant submitted a signed and verified declaration in support of the
application. The appeal was suspended and the application remanded to the
Examining Attorney for consideration of the declaration. Upon examination, the
Examining Attorney found the declaration proper and the requirement for a properly
signed and verified application satisfied. The appeal subsequently was resumed
solely on the Section 2(d) refusal. We affirm.
I. Discussion – Applicable Law
Section 2(d) 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, mistake, or deception. 15 U.S.C. § 1052(d). Our
determination of likelihood of confusion under Section 2(d) is based on an analysis of
all probative facts in the record that are relevant to the likelihood of confusion factors
set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567

2 The registration issued March 27, 2018.
Serial No. 88460224
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(CCPA 1973). We must consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities between the goods. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976). We discuss below these and other relevant factors. See In re Guild Mortg., 129
USPQ2d at 1162-63 (Board considers each DuPont factor for which there is evidence
and argument).
A. Relatedness of the Goods
We first consider the goods under the second DuPont factor. In making our
determination regarding their relatedness, we must look to the goods as identified in
Applicant’s application and the cited registration. See Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018). It is well settled that the goods of
Applicant and Registrant need not be identical or competitive to support a finding of
likelihood of confusion. It is sufficient that the respective goods are related in some
manner, or that the conditions and activities surrounding the marketing of the goods
are such that they would or could be encountered by the same persons under
circumstances that could, because of the similarity of the marks, give rise to the
mistaken belief that they originate from the same source. See Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d. 1356, 101 USPQ2d 1713, 1723 (Fed. Cir. 2012);
Hilson Research, Inc. v. Soc’y for Human Resource Mgmt., 27 USPQ2d 1423 (TTAB
1993). The issue here, of course, is not whether purchasers would confuse the goods,
Serial No. 88460224
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but rather whether there is a likelihood of confusion as to the source of these goods.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 831 (TTAB 1984).
Applicant’s goods are identified as “shower heads, shower head filters, filtered
shower heads, in-line shower heads, and hand-held shower heads with built-in filters”
and the Registrant’s goods are identified as “faucets; metal sinks; kitchen sink
sprayers.” To show that the goods are related, the Examining Attorney made of record
printouts from various websites showing that the same entity commonly provides one
or more goods of the types identified in both the application (e.g., shower heads
(including handheld shower heads) and shower filters) and the cited registration (e.g.,
faucets, sinks,3 and sink sprayers) under the same mark. “[I]t is settled that evidence
of third-party use of the same mark for an applicant’s identified goods and services
(or similar goods or services) on the one hand, and an opposer’s (or registrant’s)
identified goods and services (or similar goods and services) on the other, may
establish a relationship between those goods and services. Detroit Athletic, 128
USPQ2d at 1051; see also In re C.H. Hanson Co., 116 USPQ2d 1351, 1355-56 (TTAB
2015); In re Davia, 110 USPQ2d 1810, 1815-17 (TTAB 2014); In re Davey Prods. Pty
Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). The record features the following marks:

3 We find “sinks” to include the more specific “metal sinks” identified in the cited registration.
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Moen (www.moen.com4), Brondell (www.brondell.com5), Grohe
(www.grohe.us/eh_us/bathroom/#6), Kohler (www.us.kohler.com7) and Speakman
(www.speakman.com8).
The Examining Attorney also made of record copies of use-based, third-party
registrations for marks covering items of the types identified in both Applicant’s
application and the cited registration.9 Third-party registrations that individually
cover different goods and that are based on use in commerce serve to suggest that the
listed goods are of a type that may emanate from a single source. See Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although third-party
registrations are “not evidence that the marks shown therein are in use on a
commercial scale or that the public is familiar with them, [they] may nonetheless
have some probative value to the extent that they may serve to suggest that such
goods or services are of a type which may emanate from a single source”). See also In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993). The registrations
include the following:

4 August 27, 2019 Office Action, TSDR 34-44 (complete Urls at citation). We have given
limited value to the evidence relating to use of Delta in connection with both shower heads
and faucets (id. at TSDR 10-33), because only shower heads are depicted in the evidence.
Faucets are merely referenced on the webpages as a product type under the headings
“Kitchen” and “Bathroom.” Similarly, the webpages from eFaucets (id. at TSDR 47-58) only
reference hand held showers and shower heads and thus have limited probative value.
5 March 2, 2020 Office Action, TSDR 24-41.
6 Id. at 42-51.
7 Id. at TSDR 52-64.
8 Id. at TSDR 65-70.
9 Id. at TSDR 10-23.
Serial No. 88460224
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Registration
No.
Mark Relevant Goods10
5977827 BEWITCH Hand held shower heads and faucets and sinks
5983258

Shower heads and faucets
5984116 GIIWI Shower heads and hand held shower heads
and faucets
5990089

Shower heads, hand held showers and hand
showers and tap water faucets
5990298

Hand held shower heads and shower heads
and faucets, kitchen sinks, sinks and taps
being faucets
We find the third-party use and registration evidence sufficient to show that
Applicant’s identified goods are related and complementary to Registrant’s identified
goods, some of which being plumbing fixtures that may be used together in a
bathroom and which are sold by the same entity under the same mark.
We find unavailing Applicant’s assertion that the goods are unrelated because
Applicant’s filtered shower heads occupy a “niche area of shower heads” “directed to
bathroom/washroom use to facilitate personal hygiene and cleanliness,” whereas the
cited goods are “of a more mainstream nature and are specially related to general
kitchen use.” Applicant’s brief p. 8.11 The problem with the argument is that neither
Applicant’s application nor the cited registration contain any restrictions as to area
of or type of use. Indeed, Applicant’s identified goods includes plain “showerheads.”
An applicant may not restrict the scope of its goods or the scope of the goods covered

10 The registrations include additional goods that are not relevant to this appeal.
11 4 TTABVUE 9.
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in the cited registration by extrinsic argument or evidence. See, e.g., In re Midwest
Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165 (TTAB 2013); In re La Peregrina
Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ
763, 764-65 (TTAB 1986). As stated, the goods need not be identical; rather, they need
only be related in such a manner that they could be encountered by the same
consumer under situations that would lead to the mistaken belief that they originate
from the same source. Coach Servs., 101 USPQ2d at 1723. For the reasons explained,
we find the respective goods related and complementary.
This second DuPont factor thus favors likelihood of confusion.
B. Channels of Trade and Classes of Consumers
We now consider the established, likely-to-continue channels of trade and classes
of consumers, the third DuPont factor. As with the relationship between the goods,
we likewise base our determination regarding the channels of trade and classes of
purchasers on the goods as they are identified in the application and the cited
registration. Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant’s application and the cited
registration contain no limitations as to channels of trade or classes of purchasers,
and we decline to read a limitation into them. Squirtco v. Tomy Corp., 697 F.2d 1030,
216 USPQ 937, 940 (Fed. Cir. 1983). Because there are no restrictions in either the
application or cited registration, we must assume that the channels of trade would
include the usual ones, including home improvement stores, and the classes of
consumers would include the typical consumers for such goods, for example,
Serial No. 88460224
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businesses and homeowners seeking various types of plumbing fixtures. The same
third-party website evidence discussed above in connection with the relatedness of
the goods shows that both Applicant’s and Registrant’s goods are sold in the same
online retail trade channels. Accordingly, we find that the respective goods would be
provided in overlapping channels of trade to overlapping classes of purchasers. This
third DuPont factor also weighs in favor of finding a likelihood of confusion.
C. The Marks
Next, we consider the first DuPont factor relating to the similarity of the marks
and compare Applicant’s mark REGENT with the cited mark REGENCY . In
comparing the marks we must consider their appearance, sound, connotation and
commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Similarity
as to any one of these factors may be sufficient to support a finding that the marks
are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ
523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or
sound alone is likely to cause confusion.”); In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988). We also are mindful that “marks must be considered in light of
the fallibility of memory and not on the basis of side-by-side comparison.” In re St.
Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014).
Serial No. 88460224
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In arguing against the refusal, Applicant maintains that “it’s [sic] mark and the
[mark in] the cited registration are visually, phonetically and connotatively
dissimilar….” Applicant’s brief p. 6.12 We disagree.
As to appearance and sound, both marks are comprised of a single, similar length
word that begins with the letter combination “REGEN.” REGENT and REGENCY
vary by only the last letters, resulting in a similar appearance and sound. Slight
differences in marks do not normally create dissimilar marks. See Weiss Assoc., Inc.
v. HRL Associates, 902 F.2d 1546, 14 USPQ2d 1840, 1841 (Fed. Cir. 1990) (“It is
especially hard to distinguish between TMS and TMM when the marks only differ by
the last letter.”); Mag Instr. Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1714-15
(TTAB 2010) (difference of a single letter does not suffice to distinguish MAG STAR
from MAXSTAR). See also In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351
(TTAB 1983) (“Slight differences in the sound of similar marks do not avoid a
likelihood of confusion.”). Moreover, given that the differences between the marks are
at end of each, they may not be noticed or appreciated by the average consumer who
normally retains a general, rather than specific, impression of trademarks.
Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Further, even if potential consumers notice and recall the specific differences in
the marks, the commercial impressions are so similar that those familiar with
Registrant’s plumbing fixtures in the nature of, e.g., faucets, sold under the

12 4 TTABVUE 7.
Serial No. 88460224
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REGENCY mark, upon seeing Applicant’s mark REGENT on complementary and
related plumbing fixtures, i.e., shower heads, including filtered ones, are likely to
assume that the two marks are variant marks that identify companion product lines
from the same source.
In terms of connotation, Applicant contends that the overall impression conveyed
by the marks is distinctly different. Applicant particularly argues that the Examining
Attorney improperly relied on definitions for the word “regency” used as a noun, and
having the meanings of: “the office, jurisdiction, or control of a regent”
(www.dictionary.com/browse/regency)13 and “regent is a related term of regency”
(https:/www.wikidiff.com/regent/regency).14 However, as Applicant argues, “[w]hen
considered as an adjective, the term ‘regency’ connotes a classical architectural style,
which imparts a different commercial impression than the definition cited by the
Examining Attorney (i.e., noun ‘the office, jurisdiction, or control of a regent’).”
Applicant’s brief p. 7.15

13 August 27, 2019 Office Action, TSDR 9.
14 March 2, 2020 Final Office Action, TSDR 7
15 4 TTABVUE 8. In making this argument, Applicant relies on a definition of “regency” from
MERRIAM-WEBSTER at (https://www.merriam-webster.com/dictionary/regency). Although
Applicant included only a hyperlink to the definition, and a hyperlink is insufficient to make
the webpage itself of record, In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013)
(providing hyperlinks insufficient to make evidence of record), we nonetheless sua sponte
take judicial notice of the definition from MERRIAM-WEBSTER. “Regency” is defined as “of,
relating to, or characteristic of the styles of George IV’s regency as Prince of Wales during
the period 1811-20.” The entry further expounds: “The Regency is remembered for its elegant
architecture and fashions … Today, hotels, furniture and businesses on both sides of the
Atlantic carry the name ‘Regency’ to identify with the period’s style,” last visited May 5, 2021.
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format or have regular fixed editions. In re Cordua Rests. LP, 110
USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016).
Serial No. 88460224
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We find this argument unavailing. While certain architecture, clothing and
furniture styles may be describes as “regency style,” there is nothing in the record to
show that plumbing fixtures are similarly labeled. Moreover, consumers may not
appreciate the nuances in meaning conferred by the definitions of “regency” when
viewed by part of speech, or even, as noted above, that the two marks are slightly
different. That is, consumers are just as likely to perceive both marks as having the
same meaning, i.e., either the regency style, or as an arbitrary term in relation to
plumbing fixtures.
While we appreciate the differences between Applicant’s mark REGENT and the
cited mark REGENCY when viewed on a side-by-side bases, when viewed in their
entireties, we find that they are more similar than dissimilar and that they convey
very similar connotations and commercial impressions.
The first DuPont factor thus favors a finding of likelihood of confusion.
D. Conclusion
We conclude that confusion is likely between Applicant’s REGENT mark for the
identified shower heads and shower head filters and the cited REGENCY mark for
the identified faucets, metal sinks, and kitchen sink sprayers. We conclude so
principally due to the similarity of the marks, the related and complementary nature
of the goods, and the overlap in trade channels and classes of purchasers.
Decision: The refusal to register Applicant’s mark REGENT under Section 2(d)
is affirmed.