Working Hands Creme Inc.

Trademark Trial and Appeal Board

Apr 17, 2001

No. 75406436 (T.T.A.B. Apr. 17, 2001)

4/17/01
Paper No. 21
HRW
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Working Hands Creme Incorporated
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Serial No. 75/406,436
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Thomas W. Cook for Working Hands Creme Incorporated.
Marc J. Leipzig, Trademark Examining Attorney, Law Office
115 (Tomas V. Vlcek, Managing Attorney).
_______
Before Hairston, Wendel, and Holtzman, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
Working Hands Creme Incorporated has filed an
application to register the mark WORKING HANDS CREME and
design, as shown below, for “medicated skin care
preparations, namely, cream preparation for treatment of
skin splits and cracks, abrasions and burns.”1
1 Serial No. 75/406,436, filed December 17, 1997, claiming a
first use date of August 31, 1994 and a first use in commerce
date of September 30, 1995. A disclaimer has been made of the
term CREME.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/406,436
2
Registration has been finally refused under Section
2(d) on the ground of likelihood of confusion with the mark
WORKING HANDS, which is registered for “lotion type hand
soap.”2 The refusal has been appealed and the applicant and
the Examining Attorney have filed briefs. An oral hearing
was not requested.
We make our determination of likelihood of confusion
on the basis of those of the du Pont3 factors which are
relevant in view of the evidence of record. Two key
considerations in any analysis are the similarity or
dissimilarity of the respective marks and the similarity or
dissimilarity of the goods or services with which the marks
are being used. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976); In re
Azteca Restaurant Enterprises, Inc., 50 USPQ 1209 (TTAB
1999).
Considering first the marks involved here, we are
guided by the well established principle that although the
marks must be considered in their entireties, there is
nothing improper, in appropriate circumstances, in giving
more or less weight to a particular portion of a mark. See
2 Registration No. 1,577,236, issued January 16, 1990, Section 8
& 15 affidavits accepted and acknowledged, respectively; first
renewal.
3 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Ser No. 75/406,436
3
In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985). Thus, despite the obvious visual and
phonetic differences which exist between the present marks
as a whole, we need not necessarily give equal weight to
the portions of the marks which create these differences.
Both marks contain the same words WORKING HANDS. We agree
with the Examining Attorney that this is the dominant
component of applicant’s mark, as well as registrant’s mark
in its entirety. The remainder of applicant’s mark
consists of the descriptive term CREME and the design
element arising from the stylized form in which applicant
seeks to register its mark.
Although it is acknowledged that descriptive or
disclaimed matter cannot be ignored in comparing the marks,
it is also a fact that consumers are more likely to rely on
the non-descriptive portion of a mark as an indication of
source. See Hilson Research Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993). The term
CREME in applicant’s mark is obviously descriptive, if not
generic, since it is being used in connection with a
“cream” skin preparation.4 Thus, this portion of the mark
4 We take judicial notice of the following dictionary definition:
crème (or creme) 1. cream
Random House Dictionary of the English Language (2nd ed. 1987).
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4
would have little or no source-indicating significance to
potential purchasers.
Contrary to applicant’s argument, we do not believe
that the presence of the additional term CREME in
applicant’s mark results in different connotations for the
marks as a whole. Just as WORKING HANDS CREME connotes a
cream for use on hands which have been engaged in physical
labor, we consider WORKING HANDS, when used on a lotion
type hand soap to connote a soap for hands which have
similarly been engaged in physical labor. The mere
presence of the name of the goods in applicant’s mark does
not change the overall inference of the marks, i.e., each
is a product designed for “working hands.”
Furthermore, it is the distinctive word portion of a
mark, rather than any design feature, unless particularly
unusual, that is more likely to be remembered and relied
upon by purchasers in referring to the goods or services,
and thus it is this word portion that will be accorded more
weight. See Ceccato v. Manifattura Lane Gaetano Marzotto &
Figli S.p.A., 32 USPQ2d 1192 (TTAB 1994). It is the word
portion, not the minimal design element, which would be
used to call for applicant’s goods and by which the product
would be remembered. Moreover, while applicant may present
its mark in a specific design, we note that registrant’s
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5
mark has been registered in typed form. Thus, registrant
is free to use its mark in any format, including one
similar to applicant’s particular design or combination of
type styles.
Accordingly, we find the overall commercial
impressions of applicant's mark WORKING HANDS CREME and
registrant’s mark WORKING HANDS to be highly similar. See
In re Dixie Restaurants Inc., 41 USPQ2d 1531 (Fed. Cir.
1997)(neither background design element nor generic term in
applicant’s mark THE DELTA CAFE and design sufficient to
create different commercial impression from registered mark
DELTA).
Turning to the respective goods, we note that as a
general principle, the issue of likelihood of confusion
must be determined on the basis of the goods as identified
in the application and in the cited registration(s).
Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813 (Fed.Cir. 1987). If there are no
restrictions in the application or registration(s) as to
channels of trade, the respective goods must be assumed to
travel in all the normal channels of trade for goods of
this nature. See Kangol Ltd. v. KangaROOS U.S.A. Inc., 974
F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992). Furthermore, it
is not necessary that the goods of the applicant and
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6
registrant be similar or even competitive to support a
holding of likelihood of confusion. It is sufficient if
the respective goods are related in some manner and/or that
the conditions surrounding their marketing are such that
they would be encountered by the same persons under
circumstances that could, because of the similarity of the
marks used thereon, give rise to the mistaken belief that
they emanate, or are associated with, the same source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993)
and the cases cited therein.
Although applicant strongly contends that the
conditions surrounding the marketing of the respective
goods are dissimilar, we must point out that there are no
limitations in the identification of either applicant’s
medicated skin preparation or registrant’s lotion type hand
soap as to channels of trade, types of customers or
conditions of sale. Thus, we must assume for purposes of
determining likelihood of confusion that the goods travel
in all the normal channels of trade to all the normal
consumers for goods of this nature. Applicant’s evidence
that its goods are packaged in small quantities while
registrant’s hand soaps are marketed in much larger
quantities to consumers of bulk personal hygiene/cleaning
products is to no avail. Neither identification of goods
Ser No. 75/406,436
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is limited; both applicant’s medicated creams and
registrant’s lotion type hand soap must be presumed to be
items which might be purchased by the ordinary consumer,
or, on the other hand, by industrial concerns, for use as
hand care preparations.
In an attempt to establish different channels of trade
for the goods, applicant has made of record inventory
control sheets from two of its distributors, characterized
as large distributors of medicated and pharmacy-related
products, to demonstrate that suppliers of this nature do
not carry registrant’s lotion type hand soap. The
Examining Attorney has countered this evidence, however,
with excerpts from several web pages of suppliers, mostly
on the industrial level, showing the offering of both hand
soaps and skin creams. Many of these soaps are liquid in
form and many of the skin creams are reconditioning or
protective creams. Others are not specific as to whether
the soaps are liquid or solid in form, the creams medicated
or otherwise and thus must be presumed to cover both types.5
We find this ample evidence that the goods of both
applicant and registrant would travel in the same channels
5 We note that a thin line exists between “medicated” and other
types of creams; applicant’s own original identification of goods
did not specify that its creams were “medicated.”
Ser No. 75/406,436
8
of trade. The fact that many other types of goods are also
offered by these suppliers, as pointed out by applicant,
does not obviate the probative value of this evidence with
respect to common channels of trade for the present
products. The question at this point is simply the
availability of the goods to the same purchasers through
the same channels of trade, not whether the goods are
related to one another or would be presumed to originate
from the same source. The Examining Attorney has provided
valid evidence that the goods identified by both applicant
and registrant would travel in the same channels of trade
for industrial hygiene products. Insofar as the ordinary
consumer is concerned, we can take judicial notice that
both lotion type hand soaps and medicated skin creams are
available in the same retail outlets to the same class of
purchasers.
We next consider whether a sufficiently viable
relationship exists between the goods, such that
purchasers, upon encountering a medicated skin cream
bearing the mark WORKING HANDS CREME and a lotion type hand
soap bearing the mark WORKING HANDS in the same channels of
trade would be likely to believe that these goods emanate
from the same source. In this connection, the Examining
Attorney has made of record copies of over twenty third-
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party registrations, which are said to be only a part of
the relevant registrations, showing registration of the
same mark by a single entity for both soaps and medicated
skin creams. While these registrations are admittedly not
evidence of use of the marks in commerce, they are
sufficient to suggest that these are goods which may be
produced by a single entity and be marketed under the same
mark. See In re Albert Trostel & Sons Co., supra; In re
Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988). Once
again, even though many of the registrations do not specify
the form of the soaps or the specific functions of the
medicated skin creams, we find this sufficient evidence to
demonstrate that goods of the present nature are such that,
if similar marks are used thereon, purchasers may well
assume that the goods emanate from the same source.
Accordingly, in view of the highly similar overall
commercial impressions created by the respective marks, the
common channels of trade in which the goods travel, and the
related nature of the goods, we find a likelihood of
confusion.
Decision: The refusal to register under Section 2(d)
is affirmed.
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