Citrus Fresh Carpet Cleaning Inc.

Trademark Trial and Appeal BoardOct 16, 2012

No. 85276151 (T.T.A.B. Oct. 16, 2012)

Mailed: 10/16/2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Citrus Fresh Carpet Cleaning Inc. ________ Serial No. 85276151 ________ Suanne M. Ansari for Citrus Fresh Carpet Cleaning Inc. Patty Evanko, Trademark Examining Attorney, Law Office 117 (Loretta C. Beck, Managing Attorney). _______ Before Quinn, Zervas and Shaw, Administrative Trademark Judges. Opinion by Quinn, Administrative Trademark Judge: Citrus Fresh Carpet Cleaning Inc. filed an application to register the mark shown below (“CITRUS” disclaimed) for “cleaning of carpets, area rugs, furniture, car interiors, tile and grout in a home or commercial THIS OPINION IS NOT A PRECEDENT OF THE TTAB S.N. 85276151 2 environment” in International Class 37.1 The application includes the following statements: The mark consists of the word CITRUS in orange with each letter bordered in white and outlined in black, a Palmetto Tree with a half orange slice floating in upper left corner above the tree, the fronds of the tree in lime green color, with orange fruits hanging in the tree, with a brown trunk and lime green grass at the base of the tree, with the word FRESH in lime green color bordered in white and outlined in black, the word CITRUS appears on the left side of the tree, and the word FRESH appears on the right side of the tree. The color(s) citrus orange, lime green, brown, white and black is/are claimed as a feature of the mark. The trademark examining attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, when used in connection with applicant’s services, so resembles the previously registered mark CITRUS FRESH (in typed form) (“CITRUS” disclaimed) for “carpet and room deodorizer; spray deodorizing air freshener”2 in International Class 5, as to be likely to cause confusion. When the refusal was made final, applicant appealed. Applicant and the examining attorney filed briefs. Applicant argues that the marks convey different commercial impressions due to their use on different goods and services. 1 Application Serial No. 85276151, filed March 24, 2011, based on allegations of first use anywhere on June 22, 2010 and first use in commerce on September 27, 2010. 2 Registration No. 1867431, issued December 13, 1994; renewed. S.N. 85276151 3 Applicant also contends that the goods and services are sold in different trade channels. Applicant asserts that the cited mark is weak and entitled to only a narrow scope of protection. Applicant also points to the absence of any actual confusion. The examining attorney maintains that the marks are similar and that applicant’s services and registrant’s goods are related. In connection with her contention that the goods and services are related, the examining attorney introduced several use-based third-party registrations and excerpts of third-party websites. Before turning to the likelihood of confusion refusal, we direct our attention to an evidentiary matter. Applicant submitted for the first time with its appeal brief copies of several third-party registrations and applications for marks that include the terms “CITRUS” and “FRESH,” or “CITRUS,” for various cleaning and freshening products. The examining attorney, in her brief, objected to this untimely submission. Trademark Rule 2.142(d) provides that the record in the application should be complete prior to the filing of an appeal. The Board will ordinarily not consider additional evidence filed with the Board after the appeal is filed. In re Giovanni Food Co., 97 USPQ2d 1990, 1990-91 (TTAB 2011). See TBMP § 1207.01 (3d ed. 2011). S.N. 85276151 4 Based on the untimely submission of the evidence attached to applicant’s appeal brief, the examining attorney’s objection is sustained, and this evidence has not been considered in reaching our decision.3 Our determination 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 goods and/or 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/or services] and differences in the marks”). These factors, and any other 3 We hasten to add that even if considered, this evidence is not persuasive of a different result in our determination of likelihood of confusion. 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 (CCPA 1973) (the purchasing public is not aware of registrations reposing in the U.S. Patent and Trademark Office); and Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB 2011). S.N. 85276151 5 relevant du Pont factors in the appeal now before us, will be considered in this decision. We turn first to the similarity between the marks. In applicant’s response (Oct. 25, 2011) to the first Office action, applicant stated that “applicant’s trademark and the mark shown in the cited registration can be regarded as essentially identical when considered apart from applicant’s design”; applicant goes on to argue in its brief, however, that the marks are not likely to confuse consumers due to different commercial impressions engendered by use on different goods and services. We must compare the marks in their entireties as to appearance, sound, connotation and commercial impression to determine the similarity or dissimilarity between them. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). 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 and services 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 1975). S.N. 85276151 6 It is well settled that one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“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 the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.”). Where both words and a design comprise the mark (as in applicant’s mark), then the words are normally accorded greater weight because the words are likely to make an impression upon purchasers, would be remembered by them, and would be used by them to request the goods and/or services. CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design and words, the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed”); In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987); and Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985). See also Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983). In applicant’s mark, the literal portion of the mark, namely CITRUS FRESH, is the dominant S.N. 85276151 7 portion, and is accorded greater weight over the design features when comparing this mark to the cited mark. Accordingly, the dominant portion of applicant’s mark is identical to the entirety of registrant’s mark. In discussing the dominant portion of the marks, we recognize, of course, that the mark ultimately must be compared in their entireties. When this comparison is made, we find that the marks are similar in sound, appearance and meaning. The design in applicant’s mark merely reinforces the suggestive meaning of the words CITRUS FRESH, that is, that use of applicant’s cleaning services will result in carpets with a fresh citrus scent; this meaning is essentially identical to the suggestive connotation conveyed by registrant’s mark CITRUS FRESH for carpet deodorizers. Because of the similarities between the marks, applicant’s and registrant’s marks engender similar overall commercial impressions. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (even a weak mark is entitled to protection against the registration of a similar mark for closely related goods or services). The similarity between the marks weighs in favor of a finding of likelihood of confusion. We next turn to consider the second du Pont factor regarding the similarity/dissimilarity between the goods and services. It is not necessary that the respective goods and S.N. 85276151 8 services be competitive, or even that they move in the same channels of trade to support a holding of likelihood of confusion. It is sufficient that the respective goods and services are related in some manner, and/or that the conditions and activities surrounding the marketing of the goods and services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originated from the same entity. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991). The issue, of course, is not whether purchasers would confuse the goods and services, but rather whether there is a likelihood of confusion as to the source of the goods and services. In re Rexel Inc., 223 USPQ 830 (TTAB 1984). It is well settled that confusion may be likely to occur from the use of similar marks for goods on the one hand, and services on the other. See, e.g., In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re United Services Distributors, Inc., 229 USPQ 237 (TTAB 1986). In support of her position that applicant’s services and registrant’s goods are related, the examining attorney submitted several use-based third-party registrations, each covering both types of goods and services involved herein. “Third-party registrations which cover a number of differing goods and/or services, and which are based on use in commerce, although not S.N. 85276151 9 evidence that the marks shown therein are in use on a commercial scale or that the public is familiar with them, may nevertheless have some probative value to the extent that they may serve to suggest that such goods or services are of a type which may emanate from a single source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). The examining attorney also submitted printouts of excerpts from third-party websites showing that some online retailers offer both carpet cleaning services, as well as carpet products, including deodorizers and fresheners, under the same mark. The cumulative effect of the examining attorney’s evidence demonstrates that entities offering carpet cleaning services routinely offer carpet cleaning products under the same mark, including deodorizers that consumers can use post-cleaning to keep their carpets smelling fresh. Insofar as the trade channels and classes of purchasers are concerned, we note that there are no limitations in either applicant’s recitation of services or registrant’s identification of goods. Accordingly, we must presume that the goods and services, as identified, are marketed in all normal trade channels for such goods and services, and to all normal classes of purchasers for such goods and services. In re S.N. 85276151 10 Elbaum, 211 USPQ 639 (TTAB 1981). Thus, given the similarity between carpet cleaning services on the one hand, and carpet cleaning deodorizers and fresheners on the other, as shown by the examining attorney’s evidence, the goods and services would move through the same trade channels (e.g., online retailers and carpet cleaning companies) and would be purchased by the same classes of purchasers, including ordinary consumers. We find that the du Pont factors of the similarity between the goods, and the overlap in trade channels and purchasers weigh in favor of a finding of likelihood of confusion. Contrary to one of applicant’s arguments, the different classification of the goods and services is irrelevant to the analysis. The classification of goods and services by the USPTO is a purely administrative determination and has no bearing on the issue of likelihood of confusion. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771 (Fed. Cir. 1993); and National Football League v. Jasper Alliance Corp., 16 USPQ2d 1212 (TTAB 1990). The contemporaneous use of applicant’s and registrant’s marks for a period of approximately two years without actual confusion is entitled to little weight. See In re Majestic Distilling Co., Inc., 65 USPQ2d at 1205 (“uncorroborated statements of no known instances of actual confusion are of little evidentiary value”). See also In re Bisset-Berman Corp., S.N. 85276151 11 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self- serving testimony of applicant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). The lack of evidence of actual confusion carries little weight, J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965), especially in an ex parte context. In any event, the record is devoid of probative evidence relating to the extent of use of applicant’s and registrant’s marks and, thus, whether there have been meaningful opportunities for instances of actual confusion to have occurred in the marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000); and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Accordingly, the du Pont factor of the length of time during and conditions under which there has been contemporaneous use without evidence of actual confusion is considered neutral. In sum, the relevant du Pont factors weigh in favor of affirming the refusal. We conclude that consumers familiar with registrant’s carpet deodorizers sold under the mark CITRUS FRESH would be likely to believe, upon encountering applicant’s mark CITRUS FRESH and design for carpet cleaning services, that the S.N. 85276151 12 goods and services originated with or are somehow associated with or sponsored by the same entity. Decision: The refusal to register is affirmed.