Accu-Temp Heating & Air Condition-ing, Inc.

Trademark Trial and Appeal Board

Oct 10, 2003

No. 76305730 (T.T.A.B. Oct. 10, 2003)

Mailed:
October 10, 2003
Paper No. 10
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Accu-Temp Heating & Air Conditioning, Inc.
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Serial No. 76305730
_______
Mark D. Schneider and Ernest I. Gifford of Gifford Krass
Groh Sprinkle Anderson & Citkowksi, P.C. for Accu-Temp
Heating & Air Conditioning, Inc.
Lesley LaMothe, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______
Before Simms, Bucher and Bottorff, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Accu-Temp Heating & Air Conditioning, Inc. seeks
registration on the Principal Register of the mark as shown
below:
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 76305730
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for services recited as “installation, repair and
maintenance of heating and air conditioning equipment,” in
International Class 37.1
This case is now before the Board on appeal from the
final refusal to register based upon Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d). The Trademark Examining
Attorney has held that applicant’s mark, when used in
connection with the recited services, so resembles the
following mark:
which is registered for “installation, repair and
maintenance of heating, cooling and refrigeration
equipment,” also in International Class 37,2 that it is
likely to cause confusion, to cause mistake or to deceive.
Applicant and the Trademark Examining Attorney have
fully briefed this appeal, but applicant did not request an
oral hearing.
1 Application Serial No. 76305730 was filed on August 27,
2001, based upon applicant’s allegations of use in commerce at
least as early as November 30, 1997. Applicant has disclaimed
the words HEATING & AIR CONDITIONING, INC. apart from the mark as
shown.
2 Registration No. 2311329, issued on the Principal Register
on January 25, 2000. Registrant disclaimed the words
REFRIGERATION INC. apart from the mark as shown.
Serial No. 76305730
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We affirm the refusal to register.
Applicant’s primary contention is that its distinctive
arrow and target design, when combined with the
dissimilarities in the literal elements of the two marks,
create for its mark a different overall commercial
impression sufficient to overcome any likelihood of
confusion with the cited mark.
By contrast, the Trademark Examining Attorney takes
the position that the marks are quite similar, being
dominated by the substantially identical ACCUTEMP/ACCU-TEMP
portions of the respective marks, and she also notes that
the respective services are identical in part and otherwise
very closely related.
Our determination under Section 2(d) is based upon an
analysis of all of the 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 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the relationship of the
goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to the du Pont factor focusing on the
relationship of the services as described in the
Serial No. 76305730
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application and in the cited registration. As to the
relatedness of the respective services of applicant and of
registrant, these services as recited are nearly identical.
Both registrant and applicant are involved in many of the
same activities, namely, the installation, repair and
maintenance of heating and cooling (or air conditioning)
equipment. Registrant simply includes “refrigeration
equipment” in the list of items it installs, repairs and
maintains. Presumably this term is broad enough to include
devices for cooling food as well as large commercial
chillers.
Moreover, turning to the du Pont factors dealing with
the similarity or dissimilarity of established, likely-to-
continue trade channels as well as the conditions under
which and buyers to whom sales are made, we must presume
that applicant’s services and registrant’s services will
move through all of the normal channels of trade to all of
the usual consumers of services of the type recited. See
Canadian Imperial Bank of Commerce, National Association v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed.
Cir. 1987). Hence, in looking to these two related du Pont
factors, we conclude that the channels of trade and classes
of purchasers will be the same.
Serial No. 76305730
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We turn then to the similarity or dissimilarity of the
marks in their entireties as to appearance, sound and
connotation. We note at the outset that when the services
are legally identical, as is the case here, “the degree of
similarity [of the marks] necessary to support a conclusion
of likely confusion declines.” Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992).3
As to the standard for comparing marks, the likely
recollection of the average purchaser of the respective
goods is what must be considered in resolving the issue of
likelihood of confusion. Spoons Restaurants, Inc. v.
Morrison, Inc., 23 USPQ2d 71735 (TTAB 1991); and In re
Steury Corp., 189 USPQ 353 (TTAB 1975). Such a person may
not possess perfect recollection, nor will he or she
necessarily be confronted by both marks simultaneously so
3 We have not considered the recent, nonprecedential Board
decision referred to by applicant where the likelihood of
confusion refusal was reversed based on arguably analogous
differences between the marks as to the non-literal design
features. See General Mills Inc. v. Health Valley Foods, 24
USPQ2d 1270 (TTAB 1992); In re American Olean Tile Co., 1 USPQ2d
1823 (TTAB 1986). Nonetheless, unlike the facts in the instant
case, the Board found in that case somewhat different and
specialized services that would be purchased by knowledgeable
individuals exercising a degree of care. These important
factors, when combined with the overall differences in the marks,
were critical to the outcome in that decision.
Serial No. 76305730
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that a side-by-side comparison can be conducted. See In re
Continental Graphics Corp., 52 USPQ2d 1374 (TTAB 1999).
Nonetheless, applicant makes much of the visual
differences in the marks created by applicant’s design
features:
Specifically, Applicant’s mark comprises an
arrangement of designs and stylized wording
that have been combined to depict an arrow
striking the center of a target. The highly
stylized “A” (the fletching of the arrow) on
the left side of the mark and the target
design on the right are predominate [sic]
and are clearly the first details that
grasps [sic] one’s attention. The stylized
“P” (as tip of the arrow) completes the
overall arrow design. In contrast, the mark
of the prior registration includes
rudimentary design changes (i.e., different
fonts), but is not otherwise stylized.
Therefore, the overall design features of
Applicant’s mark serves to clearly
distinguish it in the minds of consumers
from the mark of the prior registration.
(Applicant’s appeal brief, p. 4).
We disagree with applicant’s conclusions. The marks
in the application and the cited registrations easily meet
the level of similarity required in Century 21, supra,
because each is dominated by the identical, coined
terminology of ACCUTEMP4 (or ACCU-TEMP). In both marks,
4 Furthermore, registrant is listed as AccuTemp Refrigeration
Inc. (with upper case letters “A” and “T”). Hence, when
incorporated into text, registrant’s AccuTemp looks remarkably
similar to applicant’s Accu-Temp.
Serial No. 76305730
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this portion of the marks appears in much larger print than
the other wording and has no demonstrated descriptive
connotation.
It is well settled that although we must consider the
marks in their entireties, it is nonetheless reasonable to
consider whether some components of the marks have more
source-identifying significance than others. Tektronix,
Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (CCPA
1976); and In re El Torito Restaurants Inc., 9 USPQ2d 2002
(TTAB 1988).
For example, descriptive, disclaimed matter is
typically less significant than other components of
composite marks. The REFRIGERATION INC. and HEATING & AIR
CONDITIONING, INC. portions of these respective marks are
both disclaimed, indicating that they are merely
descriptive of these equipment installation, repair and
maintenance services. Moreover, the connotations of these
descriptive, disclaimed terms are actually quite similar
because the terms “Refrigeration” and “Air Conditioning”
are related conceptually and practically. Both expressions
suggest cooling down an interior space, and both processes
rely on “refrigerants” to make this cooling possible.
Similarly, in a composite mark made up of a design and
words, design features generally are accorded less
Serial No. 76305730
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significance than the literal elements with which they are
combined because the word portion is more likely to be
recalled and used in calling for or recommending the goods
or services. W. B. Roddenbery Co. v. Kalich, 158 F.2d 289,
72 USPQ 138 (CCPA 1946); Rice-Stix Dry Goods Co. v.
Industrial Undergarment Corp., 152 F.2d 1011, 68 USPQ 186
(CCPA 1946); and In re Appetito Provisions Co., 3 USPQ2d
1553 (TTAB 1987). This is particularly true when a mark
appears in textual material, such as is seen repeatedly on
applicant’s webpages, in which it is impractical each time
to include the design feature of the mark. See Herbko
International Inc. v. Kappa Books Inc., 308 F.3d 1156, 64
USPQ2d 1375 (Fed. Cir. 2002) [crossword puzzle design
merely strengthens the impact of the word portion of the
mark]; and CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198
(Fed. Cir. 1983) [light bulb feature that emphasize
“Thinker” portion of THINKER TOY mark does not obviate
likelihood of confusion with TINKERTOY arising from
consideration of the marks in their entireties].
Here, the arrow hitting the bull’s eye accentuates the
suggestion as to the “accuracy” of the indoor “temperature”
achieved as a result of applicant’s services. While this
arrow design creates an obvious difference in appearance,
we do not find it to be significant for purposes of
Serial No. 76305730
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distinguishing between the overall commercial impressions
of these two marks.
Rather, we agree with the Trademark Examining Attorney
that these two marks convey the same connotation, and thus
that the marks, when considered in their entireties, are
quite similar in terms of overall commercial impression.
In short, we find that when used on legally identical
services, applicant’s mark ACCU-TEMP HEATING & AIR
CONDITIONING, INC. and design is likely to cause confusion
with the registered, stylized mark ACCUTEMP REFRIGERATION
INC.
Decision: The refusal to register under Section 2(d)
of the Lanham Act is hereby affirmed.