Thor Tech, Inc.

Trademark Trial and Appeal Board

Apr 22, 2009

No. 78634024 (T.T.A.B. Apr. 22, 2009)

Mailed:
April 22, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Thor Tech, Inc.
________

Serial No. 78634024
_______

B. Joseph Schaeff of Dinsmore & Shohl LLP for Thor Tech,
Inc.

Paul A. Moreno, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Holtzman, Walsh and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Thor Tech, Inc. (“applicant”) filed an intent-to-use
application to register the mark WAVE, in standard
character form, for goods ultimately identified as
“recreational vehicles, namely travel trailers and fifth
wheel trailers,” in Class 12.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the mark THE WAVE,
THIS OPINION IS A
PRECEDENT OF THE TTAB
Serial No. 78634024
2
in standard character form, for “trailers, dump trailers,
and truck bodies,” in Class 12.1
Our determination of likelihood of confusion 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 issue of likelihood of confusion.
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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
services. 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”).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,

1 Registration No. 3136677, issued August 29, 2006.
Serial No. 78634024
3
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988).
The marks are virtually identical. The addition of
the word “The” at the beginning of the registered mark does
not have any trademark significance. “The” is a definite
article. When used before a noun, it denotes a particular
person or thing.2 See In re Narwood Productions, Inc., 223
USPQ 1034 (TTAB 1984) (noting the insignificance of the
word “the” in comparison of THE MUSIC MAKERS and
MUSICMAKERS). See also In re Universal Package
Corporation, 222 USPQ 344, 345 (TTAB 1984); Conde Nast
Publications Inc. v. Redbook Publishing Company, 217 USPQ
356, 357 (TTAB 1983). Thus, as used in the registered mark
THE WAVE, the word “The” simply emphasizes the word “Wave.”

2 The Random House Dictionary of the English Language
(Unabridged), p. 1965 (1987). The Board may take judicial notice
of dictionary evidence. 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).
Serial No. 78634024
4
B. The similarity or dissimilarity and nature of the
goods as described in the application and registration
at issue.

Having found that applicant’s mark is effectively
identical to registrant’s mark, we turn to the similarity
or dissimilarity and nature of applicant’s “recreational
vehicles, namely travel trailers and fifth wheel trailers,”
and the registrant’s “trailers, dump trailers, and truck
bodies.” It is not necessary that these goods be identical
or even competitive to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods are
related in some manner, or that the circumstances
surrounding their marketing are such, that they would be
encountered by the same persons in situations that would
give rise, because of the marks, to a mistaken belief that
they originate from the same source or that there is an
association or connection between the sources of the goods.
See In re Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001);
In re Melville Corp., 18 USPQ2d 1386, 1387 (TTAB 1991).
Moreover, the greater the degree of similarity between
the applicant’s mark and the registered mark, the lesser
the degree of similarity between the applicant’s goods and
registrant’s goods that is required to support a finding of
likelihood of confusion. In re Opus One, Inc., 60 USPQ2d
at 1815; In re Concordia International Forwarding Corp.,
Serial No. 78634024
5
222 USPQ 355, 356 (TTAB 1983). Where, as in this case, the
applicant’s mark is virtually identical to the registrant’s
mark, there need only be a viable relationship between the
goods to find that there is a likelihood of confusion. See
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689
(Fed. Cir. 1993) (“even when the goods or services are not
competitive or intrinsically related, the use of identical
marks can lead to the assumption that there is a common
source”); In re Concordia International Forwarding Corp.,
222 USPQ2d at 356.
To properly analyze the relationship of the goods, we
must first discuss what they are. The relevant products
are defined below:
1. A “trailer” is “[a] large transport vehicle
designed to be hauled by a truck or tractor,” and “[a]
furnished vehicle drawn by a truck or automobile and used
when parked as a dwelling or office.”3 “Sometimes
recreational vehicles, travel trailers, or mobile homes
with limited living facilities where people can camp or
stay have been referred to as trailers.”4

3 American Heritage Dictionary of the English Language (4th ed.
2000) attached to the February 23, 2007 Office Action. See also
Random House Unabridged Dictionary (2006) attached as Exhibit C
to applicant’s August 27, 2007 Response.
4 Wikipedia (September 21, 2007) attached to the September 21,
2007 Office Action.
Serial No. 78634024
6
2. A “recreational vehicle” is a “van or utility
vehicle used for recreational purposes, as camping, and
often equipped with living facilities.”5
3. A “travel trailer” is “a trailer towed behind a
road vehicle . . . to provide a place to sleep which is
more comfortable, sheltered and protected than a tent. . .
. It provides the means for people to have their own home
on a journey or a vacation (holiday) . . . Travel trailers
. . . vary from small basic models which may be little more
than a tent on wheels to those containing several rooms
with all the furniture and furnishings and equipment of a
home.”6
5. A “fifth wheel” trailer employs a special
coupling or hitch “to attach the trailer to the bed of the
towing vehicle, ahead of the rear wheels. This type of
hitch is used for larger trailers and provides considerably
more stability than does a traditional bumper-pull hitch.”7
A photograph of trailer with a fifth wheel coupling is
shown below.

5 The Random House Dictionary of the English Language
(Unabridged), p. 1613.
6 Wikipedia (August 23, 2007) attached as Exhibit C1 to
applicant’s August 27, 2007 Response.
7 Wikipedia (September 21, 2007) attached to the September 21,
2007 Office Action.
Serial No. 78634024
7

The examining attorney submitted eight third-party
registrations based on use in commerce identifying trailers
per se and trailers associated with recreational vehicles
and motor homes.8 Third-party registrations which
individually cover a number of different items which are
based on use in commerce may have some probative value to
the extent that they serve to suggest that the listed goods
are of a type which may emanate from the same source. In
re Albert Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988).
On the other hand, applicant has submitted copies of
13 sets of registrations for the same or similar marks for
different types of trailers owned by different entities

8 The Examining Attorney submitted 12 registrations in all, but
four of the registrations do not list both types of trailers.
The Examining Attorney also submitted a copy of excerpts from
Clem’s Trailers Sales, Inc. (clemstrailersales.com) and Cowboy
Cadillac (url not provided), a report from IBISWorld (url not
provided) and the U.S. Census Bureau 2002 NAICS Definitions (url
not provided) purportedly to show that travel trailers and fifth
wheel trailers are subsets of trailers. These websites do not
support that contention, and we find that these websites have no
probative value.
Serial No. 78634024
8
arguing, in essence, that the third-party registrations
serve to suggest that the listed goods are of a type which
may emanate from different sources. A representative
sample of these registrations is set forth below.
Mark Registration
No.
Goods

CLASSIC 3329542 Dump trailers and dump truck bodies

2808250 Horse and livestock trailers

SUMMIT 2765081 Enclosed trailers, namely cargo
trailers and trailers for hauling
landscape products and equipment

3319580 Recreational vehicles, namely
travel trailers, fifth wheel
trailers

PATRIOT 3060070 Cargo trailers

2295459 Recreational vehicles, namely motor
homes

GENESIS 2930020 Truck trailers, semi-trailers,
discharge trailers, cargo trailers,
vehicle dump bodies, dump trailers,
dump chassis, garbage trucks

2953417 Recreational vehicles, namely motor
homes

PIONEER 2777571 Enclosed cargo trailers

3048544 Travel trailers

ASPEN 1937962 Cargo trailers, trucks and trailer
parts

2871549 Campers, namely slide-in, pop-up
campers

Serial No. 78634024
9
The third-party registrations do not support
applicant’s contention for two reasons. First, none of the
registrations are for trailers per se. Therefore, there
are no registrations for trailers and recreational
vehicles, including travel trailers or fifth wheel
trailers. Second, the fact that both types of trailers are
listed in the registrations (commercial or industrial
trailers and recreational vehicles) does not necessarily
mean that the registrants regard them as different
products. It may be that the registrants want to be clear
that the specific types of trailers are covered by their
registrations.
Applicant also argues that the goods at issue are
different. Applicant contends that it intends to use its
WAVE mark to identify recreational vehicles while
registrant uses THE WAVE to identify commercial and
industrial trailers sold to professional purchasers.
Applicant asserts that “[t]he term ‘trailers’ in the cited
registration should be read in pari materia with the
associated goods listed in the registration.”9 In essence,
applicant is arguing that we should interpret the

9 Applicant’s Brief, p. 3; Applicant’s March 24, 2008 Request for
Reconsideration, p. 1. “Pari materia” means “of the same matter;
on the same subject; as, laws pari materia must be construed with
reference to each other.” Black’s Law Dictionary, p. 1004 (5th
ed. 1979),
Serial No. 78634024
10
registrant’s description of goods to read as follows:
“industrial and commercial trailers sold to professional
purchasers, dump trailers and truck bodies.”
The likelihood of confusion is determined on the basis
of the goods as they are identified in the application and
registration at issue. In re Elbaum, 211 USPQ 639, 640
(TTAB 1981); In re William Hodges & Co., Inc., 190 USPQ 47,
48 (TTAB 1976). See also Octocom Systems, Inc. v. Houston
Computers Services 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 the sales of goods are directed”).
As the Court of Customs and Patent Appeals, the
predecessor of our primary reviewing court, explained in
Tuxedo Monopoly, Inc. v. General Mills Fun Group, Inc., 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981):
Here, appellant seeks to register the
word MONOPOLY as its mark without any
restrictions reflecting the facts in
its actual use which it argues on this
appeal prevent likelihood of confusion.
We cannot take such facts into
Serial No. 78634024
11
consideration unless set forth in its
application.

Likewise, in this case, we must also analyze the
similarity or dissimilarity and nature of the goods based
on the description of the goods set forth in the
application and the registration at issue. In other words,
we may not limit or restrict the trailers listed in the
cited registration based on extrinsic evidence. Therefore,
we must construe registrant’s trailers as encompassing
travel trailers and fifth wheel trailers.10
However, as indicated above, applicant argues that
when we interpret the breadth of the goods listed in the
cited registration, we must construe “trailers” with
reference to the other listed goods “dump trailers and
truck bodies” (i.e., in pari materia with the other listed
products). Applicant’s argument is not well taken. First,
applicant has not cited, and we have not found, any
authority for applicant’s suggested interpretation of the
description of goods.

10 We properly used the dictionary definitions (i.e., extrinsic
evidence) to determine the definitions for the type of trailers,
recreational vehicles, travel trailers, and fifth wheel trailers
listed in the description of goods. In re Trackmobile Inc., 15
USPQ2d 1152, 1154 (TTAB 1990). Once those meanings were
established, we determined the issue of likelihood of confusion
based on the description of goods in the application and
registration, even if the definitions resulted in a broad scope
of goods.
Serial No. 78634024
12
Second, it is acceptable and appropriate for an
applicant to use a broad description of goods.
Applicants frequently use broad terms
to identify the goods or services in an
application. . . . The requirement for
use or a bona fide intent to use is not
necessarily violated by broad
identifying terms. When a mark is used
on a number of items that make up a
homogeneous group, a term that
identifies the group as a whole would
be understood as encompassing products
of the same general type that are
commercially related.
As long as a broad term identifies the
goods or services that are intended to
be covered with reasonable certainty,
it will be reasonable, from a
commercial viewpoint, to consider that
the mark has been used for all the
related goods or services that fall in
the designated group.
TMEP §1402.03 (5th ed. 2007).
Where a term for a particular product has multiple
meanings, the International Class may be used to determine
the particular meaning. For example, if the applicant
identifies its goods as “mufflers,” in Class 25 (the
clothing class), an Examining Attorney would not require
further modification to indicate that articles of clothing
are intended, rather than automotive mufflers. See In re
Paper Doll Promotions Inc., 84 USPQ2d 1660, 1665 (TTAB
2007), citing TMEP §1402.03 (“the conclusion that a term
would clearly include items classified in more than one
Serial No. 78634024
13
class [and is therefore unacceptable as indefinite] should
not be drawn unless unreasonable, in light of the
commercial relationships between all the goods or services
identified in the application”). This is far different
from what applicant asserts we should do (i.e., interpret
the word “trailers” in the registered mark to be
“industrial and commercial trailers sold to professional
purchasers” because registrant also lists dump trailers and
truck bodies in its description of goods). We have no
authority to read any restrictions or limitations into the
registrant’s description of goods.11
Because we may not read any restrictions or
limitations into the registrant’s description of goods,
applicant’s third-party registrations submitted to show
that different entities have registered the same or similar

11 Applicant was not without a remedy. Section 18 of the
Trademark Act of 1946 gives the Board the equitable power to
cancel registrations in whole or in part, “restrict the goods or
services identified in an application or registration,” or to
“otherwise restrict or rectify . . . the registration of a
registered mark.” 15 U.S.C. §1068; Trademark Rule 2.133(b). See
also TBMP §309.03(d)(2d ed. rev. 2004) and cases cited therein.
Accordingly, applicant could have sought to restrict the
description of goods in the cited registration to “industrial and
commercial trailers sold to professional purchasers” and
excluding recreational vehicles by filing a partial petition to
cancel the cited registration and alleging that the proposed
restriction will avoid a likelihood of confusion and that
registrant is not using the mark on the products being excluded
from the registration. Eurostar Inc. v. “Euro-Star” Reitmoden
GmbH & Co., 34 USPQ2d 1266, 1271 (TTAB 1994).

Serial No. 78634024
14
marks for trailers and recreational vehicles have little
probative value because none of those registrations is for
trailers per se.
In view of the foregoing, we find the term “trailers”
in the description of goods for the cited registration
encompasses the terms travel trailers and fifth wheel
trailers in applicant’s description of goods. Accordingly,
the goods are related.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because there are no limitations as to channels of
trade or classes of purchasers in the registration, it is
presumed that the registrant’s trailers move in all
channels of trade normal for those products, and that they
are available to all classes of purchasers for the listed
goods. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992). Moreover, because we have found that trailers
encompass travel trailers and fifth wheel trailers, the
goods in the application and the cited registration are in
part identical and we must presume that the channels of
trade and classes of purchasers are the same. See 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
Serial No. 78634024
15
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”).
Accordingly, we must presume that these products move in
the same channels of trade and are available to the same
consumers.
D. The strength of the registered mark.
Applicant submitted copies of numerous registrations
for marks comprising or containing the word “Wave” for a
variety of goods and services, none of which is for
trailers. Applicant submitted these third-party
registrations to show that registrant’s mark THE WAVE is a
weak mark entitled to only a narrow scope of protection or
exclusivity of use. Applicant’s argument is unpersuasive.
In terms of demonstrating the strength of a mark,
absent evidence of actual use, third-party registrations
have little probative value because they are not evidence
that the marks are in use on a commercial scale or that the
public has become familiar with them. See Smith Bros. Mfg.
Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463
Serial No. 78634024
16
(CCPA 1973) (the purchasing public is not aware of
registrations reposing in the U.S. Patent and Trademark
Office). See also In re Hub Distributing, Inc., 218 USPQ
at 285.
[I]t would be sheer speculation to draw
any inferences about which, if any of
the marks subject of the third party
(sic) registrations are still in use.
Because of this doubt, third party
(sic) registration evidence proves
nothing about the impact of the third-
party marks on purchasers in terms of
dilution of the mark in question or
conditioning of the purchasers as their
weakness in distinguishing source.

In re Hub Distributing, Inc., 218 USPQ at 286.
While third-party registrations may be considered to
show that a registered mark is weak because it is
descriptive or suggestive, the indiscriminate citation of
third-party registrations without regard to the goods
involved cannot be indicative of descriptive or suggestive
connotations. In re Jane P. Seamans, 193 USPQ 725, 726-727
(TTAB 1977). In this case, the third-party registrations
are of limited probative value because the goods identified
in the registrations appear to be in fields which are far
removed from trailers and recreational vehicles. Key
Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040,
175 USPQ 99, 101 (CCPA 1972).

Serial No. 78634024
17
E. Balancing the factors.
In view of the facts that the marks are virtually
identical, the goods are legally the same, and because we
must presume that the goods move in the same channels of
trade and are available to the same classes of consumers,
we find that applicant’s registration of the mark WAVE for
“recreational vehicles, namely travel trailers and fifth
wheel trailers” is likely to cause confusion with the mark
THE WAVE for “trailers, dump trailers, and truck bodies.”
Decision: The refusal to register is affirmed.