Cosco Management, Inc.

Trademark Trial and Appeal Board

May 29, 2012

No. 77920248 (T.T.A.B. May. 29, 2012)

Mailed:
May 29, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cosco Management, Inc.
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Serial No. 77920248
_______

Julia Spoor Gard and Olivia M. Fleming of Barnes &
Thornburg, LLP for Cosco Management Inc.

Katherine S. Chang, Trademark Examining Attorney, Law
Office 115 (John Lincoski, Managing Attorney).
_______

Before Grendel, Zervas and Mermelstein, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

Cosco Management, Inc. (“applicant”) filed an
application to register the standard character mark
PROGRADE on the Principal Register under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), for the following
International Class 20 goods:
Safety aids, namely, non-metal television, door,
window, appliance, and drawer latches for child
safety, non-metal toilet seat locks for child
safety, non-metal corner guards for child safety;
safety aids, namely, top of door locks and
THIS OPINION IS NOT
A PRECEDENT OF
THE T.T.A.B.
Ser. No. 77920248
2
cabinet locks not made of metal for child-
proofing.

Applicant claims first use and first use in commerce on
December 1, 2008.
The assigned examining attorney refused registration
of applicant’s mark under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that applicant's
mark as used on applicant’s goods so resembles Registration
No. 2993496 for the mark PROGRADE (in standard character
form) for “metal locks,” registered on the Supplemental
Register, as to be likely to cause confusion or mistake or
to deceive.
Before addressing the merits of applicant’s appeal, we
consider two prelimary issues. Applicant submitted with
its appeal brief two tradmark registrations as Exhibit 1 to
its brief. Neither of the trademark registrations were
made of record prior to the filing of the appeal. The
examining attorney objected to the submission of these
registrations. We sustain the examining attorney’s
objection to each registration and have not considered
them. See Trademark Rule 2.142(d) (the record in the
application should be complete prior to the filing of an
appeal). See also TBMP § 1207.01 (3d ed. 2011).
Ser. No. 77920248
3
Applicant also submitted about eighty pages of
exhibits with its brief. Applicant need not have submitted
this material with its brief as it is already in the record
and can be accessed by the Board. The Board has on
numerous occasions stated that it perfers that material in
the record not be re-submitted with briefs.
Our determination under Trademark Act § 2(d) is based
on an analysis of all of the probative facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E.I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311,
65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Rests.
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In
considering the evidence of record on these factors, we
keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods [or services]
and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976); and In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209
(TTAB 1999).
Ser. No. 77920248
4
We first consider the similarity or dissimilarity of
the marks, comparing the marks for similarities and
dissimilarities in appearance, sound, connotation and
commercial impression. Palm Bay, 73 USPQ2d at 1692.
Applicant’s standard character mark is identical in sound
and appearance to registrant’s PROGRADE standard character
mark. With regard to the meaning and the commercial
impression of the marks, “prograde,” for metal locks which
are not used by professionals,1 has the same connotation and
commercial impression as “prograde” for the child-safety
goods of the type identified in applicant’s application.
Next, we consider the relatedness of the goods and the
trade channels. Applicant’s closest goods to respondent’s
goods (“metal locks”) are applicant’s “[s]afety aids,
namely, non-metal television, door, window, appliance, and
drawer latches for child safety” and “safety aids, namely,
top of door locks and cabinet locks not made of metal for
child-proofing.” If there is likelihood of confusion
because of one item, that is sufficient to refuse
registration for the entire class. Tuxedo Monopoly, Inc.
v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986
(CCPA 1981).

1 In the first Office action, the examining attorney maintained
that “prograde” is short for “professional grade.”
Ser. No. 77920248
5
In determining the relatedness of the goods, we note
that there need be only a viable relationship between the
respective goods or services in order to find that a
likelihood of confusion exists where the applicant's mark
is identical to the registrant's mark. See In re Concordia
International Forwarding Corp., 222 USPQ 355 (TTAB 1983).
The examining attorney submitted with her denial of
applicant’s request for reconsideration, webpages from
retailers offering for sale metal locks which are promoted
as being “child-proof.” See webpages from (i) prime-line-
products.com (“Patio door lock … Prevents accidental
opening by children); (ii) safeslider.com (“The finest
child proof sliding door locks”); (iii) totsafe.com (“Chain
Door Lock – This chain door guard is easily installed on
most solid doors using a drill and a screwdriver to keep
little ones out of off-limits areas. Antique Brass.”); and
(iv) nokeyuloc.com (“We designed this lock assembly because
we saw a need to develop a product that would be act as an
additional barrier between a small child and a potentially
deadly swimming pool.”).
Applicant submitted evidence from registrant’s
application and argued based on this evidence that
registrant’s goods are “used in the field of industrial,
professional grade locks installed by those in the
Ser. No. 77920248
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[l]ocksmith industry”; and that registrant’s “goods are
limited to metal locks directed primarily at professionals
seeking ‘entry locks,’ such as those used to deadbolt
residential front, back, and hotel room doors.” Brief at
5 - 6. However, the question of likelihood of confusion is
determined based on the identification of goods and
recitation of services in the application and cited
registration. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990) (“The authority is legion that the question of
registrability of an applicant's mark must be decided on
the basis of the identification of goods set forth in the
application regardless of what the record may reveal as to
the particular nature of an applicant's goods, the
particular channels of trade or the class of purchasers to
which the sales of goods are directed.”). Therefore, we
may not read limitations into the identification of goods,
such as registrant’s purported use of “metal locks” only in
a particular field or use only by certain professionals, as
applicant would have us do. Squirtco v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no
specific limitation and nothing in the inherent nature of
Squirtco's mark or goods that restricts the usage of SQUIRT
Ser. No. 77920248
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for balloons to promotion of soft drinks. The Board, thus,
improperly read limitations into the registration.”).
The examining attorney’s evidence establishes that
metal locks include locks that are offered for sale, or
intended, as child safety devices. Applicant’s
identification includes “Safety aids, namely, non-metal
television, door, window, appliance, and drawer latches for
child safety,”2 as well as “safety aids, namely, top of door
locks and cabinet locks not made of metal for child-
proofing.” Registrant’s identification of goods
encompasses goods of the same type, used for the same
purpose and offered to the same consumers as applicant’s
goods, except they are made of metal. In view of this
evidence, the composition of the goods is a distinction
without a difference. Thus, we find applicant’s locks and
latches and registrant’s goods to be related.
Turning to the trade channels, likelihood of confusion
may be found when the circumstances surrounding the
marketing of the goods are such that they would be likely
to be seen by the same persons under circumstances which
could give rise, because of the marks used or intended to

2 A latch is defined in the American Heritage Dictionary of the
English Language (4th ed. 2006) as including “a spring lock as for
a door, that is opened from the outside by a key.” The Board may
take judicial notice of dictionary evidence. University of Notre
Ser. No. 77920248
8
be used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer
or that there is an association between the producers of
each of the parties’ goods. See In re Iolo Techs., LLC, 95
USPQ2d 1498 (TTAB 2010); In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991). With the denial of applicant’s request
for reconsideration, the examining attorney submitted
webpages from websites that offer both goods encompassed by
both applicant’s and registrant’s identifications of goods.
See webpages from Cardinal Gates (cardinalgates.com,
offering non-metal cabinet latches “to keep the little
ones” out and metal door locks), National (natman.com,
offering metal keyed drawer locks and padlocks and non-
metal child safety latches), Prime-Line (prime-line-
products.com, offering plastic cabinet locks and metal door
security locks and lock parts), and TotSafe (totsafe.com,
offering a brass “flip lock” and a sliding door latch “that
keeps children from opening sliding doors.”). Applicant
urges us to accord this material limited probative value
because it does not show “the heavy duty door knobs and
handles that Registrant offers to consumers”; and that
Registrant markets its metal locks to professional

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. 77920248
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locksmiths.” As noted above, we do not consider
applicant’s or registrant’s actual trade channels, but
consider those trade channels that are normal for the goods
as identified in the identifications of goods. Thus, from
the examining attorney’s evidence, we conclude that the
trade channels for applicant’s and registrant’s goods
overlap. And, because of the marks are identical,
consumers would likely have the mistaken belief that
applicant’s and registrant’s related goods originate from
or are in some way associated with the same producer. For
this reason, the trade channels for applicant’s and
registrant’s goods are considered to be similar. The
purchasers of applicant’s and registrant’s goods are the
same, both including members of the general public who have
young children in their homes.
Applicant argues at p. 9 of its brief that the
“purchasers of Applicant and Registrant’s goods are
sophisticated and purchasers of Registrant’s locks,
especially in the face of the rigid requirements of the
Locksmith industry, are likely to be sophisticated
purchasers and would exercise care in the purchasing
process.” This argument is premised on the assumption that
the identifications of goods are limited to the actual
goods sold by applicant and registrant. For the reasons
Ser. No. 77920248
10
stated above, this argument is not one that we find
persuasive. We add too, that there is no evidence in the
record to support applicant’s arguments. In fact, the
evidence in the record suggests the opposite, with the
cardinalgates.com webpage offering safety drawer and
cabinet latches to the general public for $5.99 and the
acehardware.com webpage offering metal knob entry locks for
$17.99. These are low cost items which would not
necessarily be purchased with careful consideration. Also,
applicant’s reliance on Astra Pharmaceutical Products, Inc.
v. Beckman Instruments, Inc., 718 F.2d 1201, 220 USPQ 786
(1st Cir. 1983) is not persuasive; the court was comparing
local anesthetics, cardiovascular medicines and prefilled
syringes to large blood analyzing machines. The latches
and metal locks involved here are quite different so the
principles noted in Astra Pharmaceutical are not relevant
to this case.
In addition, applicant argues at p. 4 of its brief
that the examining attorney must demonstrate “something
more” than a mere possibility that the goods are related,
citing In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d
1059 (Fed. Cir. 2003); and Jacobs v. Internat’l Multifoods
Corp., 668 F.2d 1234, 212 USPQ 641 (CCPA 1982). While we
are aware that this requirement has been applied in cases
Ser. No. 77920248
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involving food and beverage products versus restaurant
services, see, e.g., In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059 (Fed. Cir. 2003); and In re Opus One
Inc., 60 USPQ2d 1812 (TTAB 2001), we are not aware of any
cases wherein the “something more” requirement has been
extended outside of these types of cases. Indeed,
applicant has not cited any such cases involving
applicant’s and registrant’s goods.
Finally, applicant points out that there has been no
actual confusion between the marks. However, the lack of
evidence of “actual confusion” carries little weight,
especially in an ex parte context. In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003).
In this situation, where applicant’s mark is identical
to the cited mark, and the goods are related, we find that
applicant’s mark for its goods is likely to be confused
with registrant’s mark for “metal locks.”
Decision: The refusal to register applicant’s mark
under Trademark Act §2(d) is affirmed.