Alice and Law Co., Ltd.

Trademark Trial and Appeal Board

Jul 27, 1999

No. 75147474 (T.T.A.B. Jul. 27, 1999)

Paper No. 11
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 27, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Alice and Law Co., Ltd.
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Serial No. 75/147,474
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Thomas J. Moore of Bacon & Thomas for Alice and Law Co., Ltd.
Doritt Carroll, Trademark Examining Attorney, Law Office 106
(Mary Sparrow, Managing Attorney).
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Before Quinn, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Alice and Law Co., Ltd. has filed an application to
register the mark "CODE WASH" for "laundry detergent, namely,
laundry balls that release a cleaning composition in washing
machines for clothes and fabrics".1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the

1 Ser. No. 75/147,474, filed on August 9, 1996, which alleges a date of
first use anywhere of November 24, 1995 and a date of first use in
commerce of March 21, 1996. The word "WASH" is disclaimed.
Ser. No. 75/147,474
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mark "CODE," which is registered for, inter alia, "general
purpose and specific product cleaners (liquid, dry and aerosol);
dishwashing cleaners and drying agents; laundry detergents;
bleaches; softeners and rust removers; toilet bowl and drain
cleaners; glass cleaner; oven cleaner; floor cleaners, compounds
and finishes; hand soap; silver pre-soak and detarnisher;
furniture polish; wax and oil base soap; [and] lime solvents, all
for household, office, industrial, commercial and institutional
use,"2 as to be likely to cause confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Turning first to consideration of the respective goods,
applicant contends that its "laundry balls are of a specific
nature, [being] different from registrant’s laundry detergent";
that "registrant’s goods do not include laundry balls"; and that
"registrant’s goods are not specified for use in washing
machines, as are the applicant’s goods". Applicant’s
contentions, however, are legally irrelevant inasmuch as it is
well settled that the issue of likelihood of confusion must be
determined on the basis of the goods as they are set forth in the
involved application and cited registration. See, e.g., CBS Inc.

2 Reg. No. 1,575,911, issued on January 9, 1990, which sets forth dates
of first use of July 3, 1967; combined affidavit §§8 and 15. In
addition to the goods in International Class 3 set forth above, the
registration also lists "disinfectant cleaners; sanitizers;
bacteriacides [sic]; germicides, fungicides and insecticides, [and]
deodorizers, all for household, office, industrial, commercial and
institutional use" in International Class 5, claiming dates of first
use in connection therewith of July 3, 1967.
Ser. No. 75/147,474
3
v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983);
Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed.
Cir. 1983); and Paula Payne Products Co. v. Johnson Publishing
Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973). Thus,
where the goods in the application at issue and in the cited
registration are broadly described as to their nature and type
and, as is the case herein, there are no restrictions in the
respective identifications of goods as to their channels of trade
or classes of customers, it is presumed in each instance that in
scope the application and registration encompass not only all
goods of the nature and type described therein, but that the
identified goods move in all channels of trade which would be
normal for such goods and that they would be purchased by all
potential buyers thereof. See, e.g., In re Elbaum, 211 USPQ 639,
640 (TTAB 1981).
In the present case, registrant’s goods broadly include
"laundry detergents," an item which plainly encompasses all kinds
of such products, including applicant’s "laundry detergent,
namely, laundry balls that release a cleaning composition in
washing machines for clothes and fabrics". Moreover, as the
Examining Attorney persuasively points out in her brief, the
specimens of use show that applicant’s laundry balls are indeed a
kind of "’laundry detergent,’ albeit in a specialized form," and
that "applicant has provided no evidence that laundry balls
travel in unique channels of trade, or are used by a different
category of consumers, than laundry detergent generally." Both
products, in short, are detergents used to wash clothes and
Ser. No. 75/147,474
4
fabrics. As such, they would be sold through the same channels
of trade, including supermarkets and laundromats, to ordinary
consumers. Clearly, if such laundry detergent products were to
be sold under the same or substantially similar marks, confusion
as to the source or sponsorship thereof would be likely to occur.
Turning, therefore, to consideration of the marks at
issue, applicant asserts in particular that its "mark CODE WASH,
... due to the inclusion of the term WASH, conveys a different
commercial impression from the registrant’s mark CODE."3 While
the respective marks must, of course, be compared in their
entireties, it is nevertheless the case that, in articulating
reasons for reaching a conclusion on the issue of likelihood of
confusion, "there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided [that] the ultimate
conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.3d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, "that a particular
feature is descriptive ... with respect to the involved goods or
services is one commonly accepted rationale for giving less
weight to a portion of a mark ...." 224 USPQ at 751.

3 Although applicant also maintains that its mark appears "in a
stylized type," the plain block letters utilized therein are virtually
indistinguishable from, and create the same overall commercial
impression as, ordinary type. Furthermore, as the Examining Attorney
correctly points out, because registrant’s mark is in a typed format,
the registration encompasses all ordinary and reasonable manners of
display thereof, including the same plain block letters as utilized by
applicant. See Phillips Petroleum Co. v. C. J. Webb, Inc., 442 F.2d
1376, 170 USPQ 35, 36 (CCPA 1971).
Ser. No. 75/147,474
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Here, as the Examining Attorney properly observes, the
term "WASH" in applicant’s mark, having been disclaimed, is
merely descriptive of applicant’s laundry detergent balls. It is
thus the term "CODE," which on this record appears to be a wholly
arbitrary word when used in connection with laundry detergent
products, which serves as the source-signifying component of
applicant’s "CODE WASH" mark. Such term, obviously, is identical
to registrant’s "CODE" mark. Considered in their entireties,
applicant’s "CODE WASH" mark is substantially similar in sound,
appearance, connotation and commercial impression to registrant’s
"CODE" mark.
In consequence thereof, consumers familiar with
registrant’s mark "CODE" for, inter alia, laundry detergents,
would be likely to believe, upon encountering applicant’s
substantially similar mark "CODE WASH" for "laundry detergent,
namely, laundry balls that release a cleaning composition in
washing machines for clothes and fabrics," that such products
emanate from, or are otherwise sponsored by or affiliated with,
the same source. Such consumers, in particular, would be likely
to view applicant’s "CODE WASH" laundry balls as a new product
line from the makers of registrant’s "CODE" laundry detergents.
Decision: The refusal under Section 2(d) is affirmed.
T. J. Quinn
G. D. Hohein
Ser. No. 75/147,474
6
P. T. Hairston
Administrative Trademark Judges,
Trademark Trial and Appeal Board