Tsuyoku Co., Ltd.

Trademark Trial and Appeal Board

Feb 26, 2008

No. 76651637 (T.T.A.B. Feb. 26, 2008)

Mailed:
Feb. 26, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Tsuyoku Co., Ltd.
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Serial No. 76651637
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Tsuyoku Co., Ltd., pro se.

Shaunia P. Wallace Carlyle, Trademark Examining Attorney,
Law Office 110 (Chris A.F. Pedersen, Managing Attorney).
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Before Walters, Grendel and Zervas, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Tsuyoku Co., Ltd., applicant herein, seeks
registration on the Principal Register of the mark depicted
below

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 76651637
2
for “exercise equipment, namely, underwater treadmills,
underwater step machines, underwater stationary cycles,
underwater weight lifting machines and underwater body
twist exercisers.”1
The Trademark Examining Attorney has issued a final
refusal to register applicant’s mark, on the ground that
the mark, as applied to the goods identified in the
application, so resembles the mark depicted below,

previously registered on the Principal Register for goods
identified in the registration as “manually operated
exercise equipment for use in water,”2 as to be likely to
cause confusion, to cause mistake, or to deceive.
Trademark Act Section 2(d), 15 U.S.C. §1052(d).

1 Serial No. 76651637, filed on December 7, 2005. The
application is based on applicant’s asserted bona fide intention
to use the mark in commerce. Trademark Act Section 1(b), 15
U.S.C. §1051(b). The application states that “[t]he stippling in
the drawing is for shading purposes only and is not a feature of
the mark.”

2 Reg. No. 2440908, issued April 3, 2001. Section 8 affidavit
accepted.

Ser. No. 76651637
3
Applicant has appealed the final refusal. After
careful consideration of the evidence of record,3 we affirm
the refusal to register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
We begin with the second du Pont factor, which
requires us to determine the similarity or dissimilarity of
the goods as identified in the application and in the cited
registration. We find that the underwater exercise
equipment identified in applicant’s application is highly
similar to, and indeed legally identical to, the underwater
exercise equipment identified in the cited registration.

3 The evidence submitted by applicant for the first time with its
appeal brief is untimely and shall be given no consideration.
Trademark Rule 2.142(d), 37 C.F.R. §2.142(d). We add that our
decision would not be altered even if such evidence had been
considered.
Ser. No. 76651637
4
Applicant’s specific underwater exercise machines are
legally encompassed by registrant’s more broadly-identified
“manually operated exercise equipment for use in water.”
The second du Pont factor accordingly weighs in favor of a
finding of likelihood of confusion.
Given the legally identical nature of the goods, we
further find that the trade channels and classes of
purchasers for the respective goods also are legally
identical. The third du Pont factor weighs in favor of a
finding of likelihood of confusion.
We turn next to the first du Pont factor, which
requires us to determine the similarity or dissimilarity of
the marks when viewed in their entireties in terms of
appearance, sound, connotation and commercial impression.
Palm Bay Imports, Inc., supra. The test, under the first
du Pont factor, 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 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.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
Ser. No. 76651637
5
1975). Finally, in cases such as this, where the
applicant’s goods are identical to the goods identified in
the cited registration, the degree of similarity between
the marks which is required to support a finding of
likelihood of confusion is less than it would be if the
goods were not identical. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed.
Cir. 1992).
In terms of appearance, we find that applicant’s mark
is similar to the cited registered mark to the extent that
both marks prominently include the component word “gym.”
The marks look dissimilar to the extent that “H20” and
“water” look dissimilar, and to the extent that the
stylizations of the respective marks are different. On
balance, the marks look somewhat dissimilar.
In terms of sound, we find that the marks are similar
to the extent that both end with “gym.” The marks are
dissimilar to the extent that “H20” and “water” sound
different. On balance, the marks sound somewhat
dissimilar.
However, we find that the marks are highly similar if
not identical in terms of connotation. We note that
“water” is defined as “a clear, colorless, nearly odorless
and tasteless liquid, H20, the most widely used of all
Ser. No. 76651637
6
solvents and essential for most plant and animal life.”
Webster’s II New Riverside University Dictionary (1988) at
1303.4 H20” is widely known to be the chemical symbol for
“water,” and the two designations can be and are used
interchangeably. We find that purchasers would understand
“H20” and “water” to mean the same thing in both marks.
The “gym” component of both marks likewise means the same
thing in both marks. Thus, both marks would be perceived
as combining the word “gym” with “water” or its equivalent,
“H20”. In short, the marks mean the same thing.
Likewise, we find that the marks create the same
commercial impression as applied to the respective goods,
i.e., that the goods allow performance of gym-like
exercises that are done in the water.
Viewed in their entireties, we find that the marks are
similar. The high degree of similarity between the marks
in terms of connotation and commercial impression
significantly outweighs any dissimilarities between the
marks in terms of appearance and sound. The first du Pont
factor weighs in favor of a finding of likelihood of
confusion.

4 The Board may take judicial notice of dictionary definitions.
See University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).

Ser. No. 76651637
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Considering all of the relevant du Pont factors, we
conclude that confusion is likely to result from use of
these highly similar marks on identical goods. To the
extent that any doubts might exist as to the correctness of
this conclusion, we resolve such doubts against applicant.
See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687
(Fed. Cir. 1993); In re Hyper Shoppes (Ohio) Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).

Decision: The refusal to register is affirmed.