Crane Co.

Trademark Trial and Appeal Board

Sep 4, 2014

No. 85268667 (T.T.A.B. Sep. 4, 2014)

This Opinion is not a
Precedent of the TTAB

Mailed: September 4, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Crane Co.
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Serial No. 85268667
_____

Gary M. Anderson and James W. Paul of Fullwider Patton LLP,
for Crane Co.

N. Gretchen Ulrich, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____

Before Bucher, Shaw, and Masiello,
Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:
Crane Co. (“Applicant”) seeks registration of the trademark AIRWEIGHS in
standard character form for goods identified as follows:
Aircraft on-board weighing system comprised of a
pressure sensor, a data recording apparatus and a strut
sensor that is used to calculate the aircraft's center of
gravity location and gross weight based upon data derived
from electronic sensors monitoring the aircraft landing
gear struts, in International Class 9.1

1 Application Serial No. 85268667, filed March 16, 2011, based on Applicant’s asserted bona
fide intent to use the mark in commerce, under Trademark Act § 1(b), 15 U.S.C. § 1051(b).
Serial No. 85268667
2

The Examining Attorney refused registration of the mark 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 goods, so resembles the two marks set forth
below as to be likely to cause confusion, to cause mistake or to deceive.
AIR-WEIGH (in typed form) Reg. No. 19217952
Reg. No. 30440093
Each of the cited marks is registered for “On-board truck scale for weighing air-ride
trucks and trailers and payloads thereof.”
After the refusal became final, Applicant filed a notice of appeal and a request
for reconsideration. The Examining Attorney denied the request for reconsideration
and this appeal ensued. Applicant and the Examining Attorney have filed briefs and
Applicant has filed a reply brief.
Our determination under Section 2(d) is based on an analysis of all probative
facts in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion as set forth in 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

2 Registration No. 1921795 issued September 26, 1995; Section 15 affidavit acknowledged;
renewed. Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings. A typed mark is the legal equivalent of a standard character mark. TMEP
§ 807.03(i) (April 2014).
3 Registration No. 3044009 issued January 17, 2006; Section 8 affidavit accepted; Section 15
affidavit acknowledged.
Serial No. 85268667
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similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case, Applicant
and the Examining Attorney have also submitted evidence and arguments relating
to trade channels, relevant customers, and the disposition of similar, earlier
applications filed by Applicant.
1. The marks.
We first consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In doing so, we bear in mind that “The
proper test is not a side-by-side comparison of the marks, but instead ‘whether the
marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012). The proper focus is on the recollection of the
average customer, who retains a general rather than specific impression of the
marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Considered in light of these standards, we find that the marks of Applicant and
Registrant are visually extremely similar. The sole distinctions in the wording of
the marks are the final letter S in Applicant’s mark; and the fact that Registrant’s
marks are rendered as two hyphenated words, as compared to Applicant’s one-word
Serial No. 85268667
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presentation. These minor differences do not meaningfully distinguish the marks.
See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957); In re Pix of
America, Inc., 225 USPQ 691, 692 (TTAB 1985); In re Iolo Technologies LLC, 95
USPQ2d 1498 (TTAB 2010). In sound, considering that all of the marks are
composed of the commonly known words “air” and “weigh” (or “weighs”), their
pronunciation by customers would be nearly identical. In meaning, customers would
readily understand the common meanings of the words “air” and “weigh” (or
“weighs”) and would perceive the marks to have nearly identical meanings. With
respect to commercial impression, customers would readily perceive, in each of the
marks, the implied suggestion of the common words “airway” or “airways.”
The design elements of Registrant’s special form mark do not distinguish it from
Applicant’s mark. Generally, the specific style of a registered mark cannot serve to
distinguish an applicant’s mark that is in standard character form. In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012), citing In re Mighty
Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010). In any event, the
stylized “scale” design is very small and not highly distinctive in itself.
Overall, we find that the marks at issue engender extremely similar commercial
impressions. Accordingly, this du Pont factor weighs in favor of a finding of
likelihood of confusion.
2. The goods.
Turning to the similarity or dissimilarity of the goods, we note that the
respective identifications of goods, on their face, show that both types of goods are
Serial No. 85268667
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“onboard” weighing devices for vehicles, the respective vehicles being aircraft, in the
case of Applicant’s goods, and trucks, in the case of Registrant’s goods. The purpose
of Applicant’s goods, as stated in the identification, is “to calculate the aircraft’s …
gross weight.” Registrant’s goods are, as stated in the registrations, “for weighing …
trucks and trailers and payloads thereof.” Applicant argues that “the differences
between the goods are sufficient to make them unrelated and to avoid any
likelihood of confusion”:4
Applicant’s goods do not overlap with the goods or
services identified in the cited registrations because each
operates in a distinct sector, in different industries ….
Where, as here, the marks are used in different
industries, for different goods (aircraft and trucks) and
involve different technologies and purposes (truck weight
vs. aircraft balancing, center of gravity and weight
distribution by electronic sensors) there is no, or only
minimal overlap, and consumers are not likely to be
confused.5
The Examining Attorney, for the purpose of demonstrating that there is a
commercial relationship between the goods, has made of record Internet evidence
showing that several companies produce weighing devices for both aircraft and
trucks. We note in particular references to General Electrodynamics Corporation;6
Scale FX, Inc.;7 Intercomp;8 International Weighing Systems;9 and Vishay Precision

4 Applicant’s brief at 11.
5 Id. at 8.
6 Office Action of July 27, 2011, at 10-15; see also Office Action of February 23, 2012, at 34-
35; 40; and 44-46.
7 Office Action of July 27, 2011, at 33.
8 Office Action of February 23, 2012, at 18-19.
Serial No. 85268667
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Group.10 We have given no consideration to evidence that clearly relates to scales
for weighing airline baggage or air cargo containers, as those goods are not for the
purpose of weighing the vehicle. We also give no consideration to scales for lift
trucks (such as fork lifts), as these do not appear to be the kind of “trucks”
contemplated by the registration.
In reply, Applicant argues:
Applicant’s on-board weighing system differs from those
relied upon by the Examining Attorney in arguing that
there is a market overlap between Applicant’s goods and
those of the cited Registrant. The aircraft weighing
systems illustrated [by] the materials cited by the
Examining Attorney appear to be scales and other types
of external weighing devices and not on-board systems.11
Applicant is, in fact, correct with respect to most of the Examining Attorney’s
evidence: the scales shown in such evidence appear to be “platform” scales that
weigh a vehicle that has been positioned on top of them, rather than “onboard”
scales that can calculate the vehicle’s weight from inside the vehicle. We do note,
however, that the website of Vishay Precision Group offers “on-board” weighing
systems alongside “platform” weighing systems,12 suggesting that the two
technologies are not mutually exclusive. Moreover, we note that most of the scale
producers shown in the record offer weighing devices for a wide range of
applications, including devices for land vehicles and aircraft, suggesting that what

9 Id. at 20.
10 Id. at 24-29.
11 Applicant’s reply brief at 3.
12 Office Action of February 23, 2012, at 24-29.
Serial No. 85268667
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makes the products of a single producer similar is the fact that they are weighing
devices, rather than devices for use only with trucks or only with aircraft.
The evidence of record also indicates that the weighing devices of Applicant and
Registrant are somewhat similar in their function. Applicant’s system includes
sensors applied to the landing gear struts on the aircraft. “[K]nowing the load
bearing pressure at each strut enables the system to accurately determine both the
aircraft’s weight and center of gravity.”13 Similarly, Registrant’s goods appear to
function by applying a sensor to the truck’s suspension springs: “The Air-Weigh
scale system converts air pressure in the truck and trailer air springs into a very
accurate, on-the-ground weight. … Once calibrated, Air-Weigh displays the weight
of the axle group to within 300 lbs.”14
We appreciate that Applicant’s goods are patented; however, a patent does not
establish that a particular technology is unrelated to all other technology. We also
appreciate that Applicant’s goods perform the additional function of determining
the center of gravity of the aircraft. However, this does not detract from the fact
that its goods, as identified, are a “weighing system” for calculating the “gross
weight” of the vehicle.
Overall, we note that the goods of Applicant and Registrant are similar in nature
in that they are both onboard weighing systems for measuring the weight of a
vehicle. The record shows that certain companies produce weighing systems for use

13 Applicant’s marketing materials, submitted with Applicant’s request for reconsideration
at 42ff.; see also Applicant’s response of January 30, 2012, at 37.
14 Advertisement of distributor, Applicant’s response of January 30, 2012, at 41-42. See also
Registrant’s advertisement, id. at 34-36.
Serial No. 85268667
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in connection with both aircraft and trucks; and that at least one such company
produces both onboard and platform scales. In response, Applicant has not shown
any reason why weighing systems for aircraft and trucks should be considered
unrelated, or that onboard and platform technologies should be considered mutually
exclusive. The preponderance of the evidence indicates that the goods of Applicant
and Registrant may reasonably be expected to emanate from a single source.
Accordingly, we find that the du Pont factor relating to the similarity or
dissimilarity of the goods weighs in favor of a finding of likelihood of confusion.
3. Trade Channels.
The Examining Attorney, for the purpose of demonstrating that the goods of
Applicant and Registrant may travel through similar trade channels, has submitted
excerpts of several websites of distributors of weighing systems. Two of these
distributors offer aircraft scales and truck scales: Dynamic Scales, Inc., offers
weighing systems for use in a very wide range of industries, including not only
aircraft scales and truck scales but also postal scales, jewelry scales, and scales for
weighing cargo containers, crane loads, and animals.15 Among the goods offered is
at least one “onboard” truck scale.16 Central Carolina Scale also offers weighing
devices for a similarly broad range of industries.17

15 Office Action of July 27, 2011, at 22-28.
16 NORAC onboard truck scale system, id. at 28.
17 Office Action of February 23, 2012, at 13-14.
Serial No. 85268667
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Applicant has submitted evidence showing that Registrant actually offers its
goods through specific distributors.18 The same evidence suggests that Registrant
also sells directly to original equipment manufacturers. Applicant has also
submitted a webpage of the distributor Farmtronics, which offers Registrant’s goods
alongside other truck and trailer scales and kits.19 This distributor does not list
aircraft-related products among its offerings.
Applicant argues, with respect to channels of trade:
Applicant’s goods are aircraft on-board weighing systems.
By definition Applicant’s goods are marketed to aircraft
manufacturers, such as Boeing or Airbus. The cited
Registrant’s goods are on-board truck scale systems.
Although the channels of trade for the respective goods
are not expressly called out in the description of goods,
the detailed descriptions nonetheless define the channels
of trade.
The Applicant’s identification of an aircraft on-board
weighing system by default identifies the channel of trade
and target customers as aircraft manufacturers.
Similarly, the cited Registrant’s identification as an “on-
board truck scale” system clearly identifies the channel of
trade for its goods as truck manufacturer’s [sic] and the
trucking industry.20
We cannot read the registration and application in the limited manner proposed
by Applicant. There are no actual limitations as to channels of trade in the
identifications of goods at issue; accordingly, we presume that the identified goods
move in all channels of trade normal for such goods and services. See Octocom Syst.

18 Registrant’s website, filed with Applicant’s response of January 30, 2012, at 41.
19 Id. at 106-107.
20 Applicant’s reply brief at 3.
Serial No. 85268667
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Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990); Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177
USPQ 76 (CCPA 1973); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). It
is, of course, reasonable to expect that systems for installation within an aircraft or
a truck would be marketed directly by the producer to the respective manufacturers
of those aircraft and trucks; but we do not rule out the possibility of other trade
channels, such as distributors of industrial goods that might serve more than one
industry. However, it is the Examining Attorney’s burden to demonstrate the
existence of such a channel. The Examining Attorney is incorrect when she argues
that “[a]bsent restrictions in an application and/or registration, the identified goods
and/or services are presumed to travel in the same channels of trade to the same
class of purchasers.”21 Such a presumption would be reasonable only where the
registration and application name identical goods, which is clearly not so in the
present case.
On this record, the Examining Attorney has not established that there is a
common channel of trade through which the goods of Applicant and Registrant both
are likely to travel, such as distributors that sell weighing equipment to both the
aviation industry and the trucking industry. In view of the evidence relating to the
actual marketing of the goods of Applicant and Registrant (which is, itself, thin),
the Examining Attorney’s evidence does not warrant a finding that both kinds of

21 Examining Attorney’s brief at 17 (emphasis supplied).
Serial No. 85268667
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goods would be handled by distributors like Dynamic Scales, Inc. and Central
Carolina Scale.
The record indicates that Applicant would market its goods directly to
manufacturers of airplanes and to owners of fleets of aircraft for the purpose of
retrofitting such vehicles; and that Registrant would similarly market its goods
directly to manufacturers and owners of trucks. Those channels do not overlap.
Accordingly, we find that the du Pont factor relating to channels of trade weighs
against a finding of likelihood of confusion.
4. Conditions of sale; Customers.
We next consider the conditions under which and the buyers to whom sales are
made. Applicant argues:
Applicant’s products are marketed to aircraft
manufacturers such as Boeing and Airbus. The goods are
also marketed to the military for use on military cargo
planes as well as airline [sic] for implementation as an
aftermarket or retrofit system. Applicant’s system is very
expensive costing about $30,000 to $60,000 per system
(per aircraft).22
Applicant argues that the sale of its goods is restricted to “sophisticated professional
buyers in the aircraft industry and military,” who exercise heightened care because
the goods are expensive. Applicant argues that “Where the relevant class of actual
and potential purchasers is composed of professional or sophisticated buyers, it is
assumed that such buyers are sophisticated and knowledgeable enough not to be

22 Applicant’s brief at 3. See Applicant’s request for reconsideration at 39 and 46-47 (U.S.
military as customer of Applicant); and 45 (Boeing as customer of Applicant). However, we
find no evidence as to the “per system” cost of the goods.
Serial No. 85268667
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confused by closely similar marks” (emphasis added).23 However, the authorities
cited by Applicant do not support any such assumption; rather, they indicate that
one may assume that professionals “are less likely to be confused.” See Checkpoint
Systems Inc. v. Check Point Software Technologies Inc., 269 F.3d 270, 60 USPQ2d
1609, 1617 (3d Cir. 2001). Applicant further argues:
The safety nature of Applicant’s goods also makes
confusion unlikely to its careful, sophisticated
professional buyers. … Indeed, the complex and
sophisticated nature of the goods, and the aircraft safety
requirements they must meet, involves testing and
specifications far in excess of many other industries, and
thus requires highly specialized and knowledgeable
buyers.
The testing, evaluation and contracting process for
Applicant’s goods thus mandates buyers of the highest
sophistication and knowledge, using the greatest of care.24
While Applicant’s argument is not unreasonable, we note that there is no
evidence of record as to any particular safety requirements, testing, specifications,
or contracting process. Applicant cites a 2006 Board case25 for the proposition that
“goods used on airplanes must be approved by the FAA”; but we cannot rely upon a
Board decision as evidence of the existence or nature of FAA regulations. Similarly,
Applicant refers to the identification of its goods to establish that the goods, “[b]y
their definition … will be subject to sophisticated sales efforts, face to face meetings,
careful technical scrutiny and testing and careful and lengthy customer decision

23 Applicant’s brief at 5.
24 Id. at 7.
25 Teledyne Technologies, Inc. v. Western Skyways, Inc., 78 USPQ2d 1203 (TTAB 2006).
Serial No. 85268667
13

making.”26 We cannot read so much into an identification of goods, and there is no
evidence of record relating to such sales efforts, face-to-face meetings, technical
scrutiny, testing, and lengthy decision-making. In any event, Applicant’s goods are,
by their nature, costly goods that we would expect to be selected with an elevated
degree of care by persons having a degree of technical sophistication.
With respect to Registrant’s goods, Applicant has demonstrated that they are
available at prices ranging from $915 to $1925.27 Goods in this price range are not
likely to be impulse purchases; however, they would not necessarily be selected with
the same degree of care as Applicant’s goods which, as Applicant asserts, are much
more costly.
Our consideration of relevant customers is not limited to those types of
customers identified by Applicant in its arguments. Rather, we must look to the
identifications of goods in the application and the registration and assume that the
goods are available to all classes of purchasers for such goods. See Octocom, 16
USPQ2d at 1787; Paula Payne Products, 177 USPQ 77-78; Kalart Co. v. Camera-
Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958). Thus, the customers for
Applicant’s goods are not limited to manufacturers, airlines and the military.
Rather, relevant customers would include any entity that owns or operates aircraft.
The Examining Attorney argues that commercial shipping entities “employ both
aircraft and trucks in provision of their services” and, accordingly, “consumers of

26 Applicant’s brief at 8.
27 Applicant’s response of January 30, 2012, at 106-107.
Serial No. 85268667
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applicant’s goods can also be the consumers of registrant’s goods.”28 The Examining
Attorney points to shipping companies such as Federal Express, United Parcel
Service, and the U.S. Postal Service, which make use of aircraft and land vehicles
such as trucks to make their deliveries.29 The Examining Attorney’s point is well
taken; shipping companies that maintain fleets of aircraft and trucks for purposes
of making their shipments are relevant customers for the goods of both Applicant
and Registrant because, as Applicant admits, both such goods may be used to
retrofit existing vehicles.30 We also think it is common knowledge that the United
States military maintains fleets not only of aircraft but also of land vehicles,
including trucks. Accordingly, the military could also be a customer of both
Applicant and Registrant.
Overall, we note that there are relevant buyers that could be customers for the
goods of both Applicant and Registrant, a factor that strongly suggests the potential
for confusion. However, those customers would have some degree of technical
sophistication and would exercise a somewhat elevated degree of care and
deliberation, which are ameliorating factors. We find that this du Pont factor
weighs slightly in favor of a finding of likelihood of confusion.

28 Examining Attorney’s brief at 19; see also id. at 11-12.
29 See Office Action of February 23, 2012, at 47-57.
30 Applicant’s brief at 3. (Applicant’s goods are marketed “as an aftermarket or retrofit
system.” “Aftermarket customers [for Registrant’s goods] would be trucking or shipping
companies as well as individual owner-operator truckers.”)
Serial No. 85268667
15

5. Trademark Office treatment of prior applications of Applicant.
Applicant argues strenuously that the USPTO, on two prior occasions, allowed
Applicant’s mark for registration in connection with the same goods recited in the
present application, once in 2003, when cited Reg. No. 1921755 existed, and once in
2007, when both cited registrations existed.31 In the latter case, Applicant states
that the two registrations now at issue were cited as a bar to registration, but
Applicant overcame the refusal by argument.32
The Examining Attorney need not “justify not following the prior holding of two
different Examining Attorney’s [sic],” as Applicant suggests.33 Indeed, it would be
against Trademark Office policy for the Examining Attorney to give any weight to
the prior decisions of other examining attorneys. See TMEP § 1207.01 and cases
cited therein (“Each case must be decided on its own merits. [Citation omitted.]
Previous decisions by examining attorneys in approving other marks are without
evidentiary value and are not binding on the agency or the Board.”).
Applicant argues that “the Burden of Proof lies with the Examining Attorney to
show that there has been a change of circumstances or market conditions to justify
the Examining Attorney refusing registration based upon the same cited
registrations over which the two prior applications were allowed.”34 This argument,

31 Applicant’s brief at 2-3.
32 Id. We note that Applicant has made its argument in that case of record, by attachment
to its request for reconsideration. However, Applicant has not submitted any evidence
showing the disposition of its earlier applications.
33 Applicant’s reply brief at 2.
34 Id.
Serial No. 85268667
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too, is incorrect. Inasmuch as both the Examining Attorney and the Board are
charged with deciding each case on its own merits, there is no reason to compare
the disposition of this case, by either the Examining Attorney or the Board, to the
disposition of such prior applications. See In re Nett Designs Inc., 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001).
6. Balancing the factors.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. We have found
that the marks are extremely similar; and that the goods are similar in nature,
insofar as they are onboard weighing devices for vehicles (albeit designed for use on
different types of vehicles). We see no evidence that the goods of Applicant and
Registrant would travel through the same trade channels. We have found that there
is a class of relevant customers that could be customers for the goods of both
Applicant and Registrant. However, those customers would have a degree of
technical sophistication and would select the goods with an elevated degree of care.
We bear in mind, as always, that careful, technically sophisticated purchasers are
not immune to source confusion. We believe that such customers, when confronted
with extremely similar marks on onboard vehicle weighing devices for aircraft and
trucks, would be susceptible to confusion as to whether Applicant’s goods and those
of Registrant are related as to their source. See HRL Associates, Inc. v. Weiss
Associates, Inc., 12 USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL
Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of
Serial No. 85268667
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goods and marks outweigh sophisticated purchasers, careful purchasing decision,
and expensive goods). Accordingly, we find that Applicant’s mark, used in
connection with Applicant’s goods, so closely resembles the cited registered marks
as to be likely to cause confusion, mistake or deception as to the source of
Applicant’s goods.
Decision: The refusal to register is affirmed.