Easy Lift Co., Inc.

Trademark Trial and Appeal Board

Apr 3, 2014

No. 85660606 (T.T.A.B. Apr. 3, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
April 3, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Easy Lift Co., Inc.
_____

Serial No. 85660606
_____

Matthew H. Swyers of The Trademark Company PLLC for Easy Lift Co., Inc.

David Yontef, Trademark Examining Attorney, Law Office 105 (Thomas G. Howell,
Managing Attorney).
_____

Before Quinn, Kuhlke and Gorowitz, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, Easy Lift Co., Inc., filed an application to register on the Principal
Register the mark EASYLIFT in standard characters for goods identified as
“material handling machines, namely, palletizers, case elevators, automatic pallet
dispensing machines and automatic slip sheet dispensing machines,” in
International Class 7.1
Registration has been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), on the ground that applicant’s mark, when used with its identified

1 Application Serial No. 85660606, filed on June 25, 2012, based on an allegation of first use
and first use in commerce on October 1, 1993, under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a).
Serial No. 85660606

2

goods, so resembles the registered marks E-Z LIFT in typed form2 for goods
identified as “industrial and farm elevators,” in International Class 7,3 and E-Z
LIFT in typed form for goods identified as “hydraulic pallet truck” in International
Class 12,4 as to be likely to cause confusion, mistake or deception.
When the refusal was made final, applicant appealed and briefs have been
filed.
When the question is likelihood of confusion, we analyze the facts as they
relate to the relevant factors set out 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 Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods or services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We first turn to consider the marks EASYLIFT and E-Z LIFT and compare
them “in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) quoting du Pont, 177
USPQ at 567. The test of likelihood of confusion is not whether the marks can be

2 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings.

3 Registration No. 815787, issued on September 27, 1966, second renewal March 12, 2007,
owned by Multilift, Inc.

4 Registration No. 1892064, issued on May 2, 1995, first renewal September 18, 2004,
owned by Atlas Toyota Material Handling, LLC.
Serial No. 85660606

3

distinguished when subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in their entireties that confusion as to the source of
the goods offered under applicant’s and registrants’ marks is likely to result.
Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103
USPQ2d 1435, 1440 (Fed. Cir. 2012). Examining the marks in terms of their
appearance, sound, meaning, and commercial impression, we find the marks to be
similar.
Applicant’s mark EASYLIFT is identical to registrants’ E-Z LIFT marks in
sound. Although there are slight differences in the appearance of the marks in view
of the different spelling of “easy,” overall the marks are very similar, because they
all begin with an “e” and end with “LIFT,” and EASY and E-Z will be viewed as
equivalent. The different spellings for E-Z and EASY, and the compound word
presentation in applicant’s mark, do not affect the identity of the spoken marks.
Moreover, because E-Z is the well-recognized abbreviation for “easy,” the marks
have the same meaning and connotation in relation to the respective goods, i.e., an
easy way of lifting. We find applicant’s and registrants’ marks create overall
similar commercial impressions.
On balance, we find that applicant’s mark EASYLIFT is similar to
registrants’ respective E-Z LIFT marks such that confusion is likely when used on
related goods.
Applicant argues that the terms EASY and LIFT are diluted such that
applicant’s mark may co-exist on the register given the slight differences in the
Serial No. 85660606

4

marks and the diverse nature of the goods. Applicant supports this argument by
relying on nine third-party registrations with marks that incorporate the terms
EASY and LIFT for what applicant asserts are similar types of goods and services.
Such evidence is limited in its probative value as it is not evidence of use in the
marketplace to establish that consumers are accustomed to seeing these elements.
AMF Inc. v. AM. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA
1973). However, it may be relevant to show that a mark or a portion of a mark is
descriptive or suggestive such that the public will look to other elements to
distinguish the source of the goods or services. Tektronix, Inc. v. Daktronics, Inc.,
534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976); In re Hartz Hotel Servs., Inc.,
102 USPQ2d 1150, 1153-54 (TTAB 2012). The third-party registrations are
summarized as follows:
EASYLIFT for “industrial machine parts, namely gas springs; shock
absorbers for machines” in International Class 7 (Reg. No. 2642266);

EZ OFF LIFTER for “hydraulic, low-profile pallet positioner, namely, a
self-adjusting load elevator with integrated turntable and floor-
mounted ramp,” in International Class 7 (Reg. No. 2701096);

AGILA EASYLIFT for inter alia “mobile carts … for surgical,
anesthesia, monitoring, ventilation and medical diagnostic equipment”
in International Class 12 and “non-mobile carts for surgical,
anesthesia, monitoring, ventilation and medical diagnostic equipment”
in International Class 20 (Reg. No. 3518822);

EASY LIFT for “vacuum cleaners” in International Class 7 (Reg. No.
3595550);

CHRISTY’S EASY LIFTER for “wheelbarrows” in International Class
12 (Reg. No. 3676978);

Serial No. 85660606

5

EZ LIFTER for “gantry cranes designed to span, lift, and/or move
heavy objects typically utilizing multiple telescopic cylinders and a
common header plate” in International Class 7 (3703932);

MCKISSICK EASY-LIFT for “overhead bridge crane blocks” in
International Class 7 (Reg. No. 3035460);

E-Z LIFTER for “mechanical device that is used to lift off whirlpool,
hot tub or spa covers” in International Class 8 (Reg. No. 2349357); and

EASY REACH LIFTS for “leasing and rental of construction
equipment, namely, lifts” in International Class 37 (Reg. No. 319028).

We first note that most of the examples are for more distinct goods, e.g.,
device to lift off whirlpool, hot tub or spa covers, carts for medical diagnostic
equipment, vacuum cleaners. In addition, the marks in several of applicant’s
examples incorporate additional distinctive elements to distinguish the marks from
the wording EASY LIFT or EZ LIFT, e.g., EASY REACH LIFTS and MCKISSICK
EASY-LIFT. In one of the closest examples, Reg. No. 2701096, while the goods
“self-adjusting load elevator” may be encompassed by the “industrial and farm
elevators” in cited Reg. No. 815787, the mark EZ OFF LIFTER includes additional
distinguishing elements (the word OFF and the suffix ER) not included in
applicant’s mark. However, we acknowledge that the marks EASYLIFT and E-Z
LIFT are suggestive of a feature (ease of use) and purpose (lifting) of the goods.
Nonetheless, even weak marks receive protection against likely confusion where the
marks are highly similar and the goods are closely related. King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
Thus, we turn to consider the du Pont factors of the relatedness of the goods
and channels of trade. We base our evaluation on the goods as they are identified in
Serial No. 85660606

6

the registrations and application. In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems,
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). It is settled that it is not necessary that the respective goods be identical
or even competitive in order to find that they are related for purposes of our
likelihood of confusion analysis. That is, the issue is not whether consumers would
confuse the goods themselves, but rather whether they would be confused as to the
source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The goods
need only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source. See In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); and In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney argues that:
[T]he application uses broad wording to describe the goods and this
wording is presumed to encompass all goods of the type described
including material handling machines in the nature of pallet lifts and
industrial and farm case elevators, which are undeniably
commercially-related, if not identical, to Registrants’ goods. Similarly,
the registrations use broad wording to describe the goods and this
wording is presumed to encompass all goods of the type described
including industrial and farm case elevators and hydraulic pallet
trucks for transporting and moving drums.5

5 Ex. Att. Br. p. 8.

Serial No. 85660606

7

The examining attorney supports his position by relying on the specimen of
use in Reg. No. 1892064 which shows “hydraulic pallet machines for various
unrestricted uses and applications.”6 In addition, the examining attorney points to
the dictionary definitions for the words “elevator,” “palletizer” and “palletize” to
demonstrate the commercial relationship between the goods of the parties. He
argues that the definition for elevator “one that raises or lifts something up”
supports “the notion that the ‘case elevators’ and ‘industrial and farm elevators’ of
the parties are related, if not identical.”7 Finally, the examining attorney notes that
“applicant’s specimens indicate multiple uses for the identified goods in industrial
setting[s] and are littered with references to ‘hydraulic’ features and options
associated with the identified goods. Therefore, the hydraulic ‘pallet trucks’ and
‘palletizers’ of the parties are intended for performing similar functions, namely,
hydraulically moving and transporting goods.”8
Applicant argues that its mark “is used with drum transporters, drum
dumpers, and roll manipulators, which have powered clamp and/or rotation
functions for the ergonomic movement and/or manipulation [sic] of drums or roll
materials.”9
Much of applicant’s argument, including the differences in the goods and
marketing channels, and the absence of confusion, rely on applicant’s actual goods,

6 Id.

7 Id.

8 Id.
9 Aff. Joseph Irons, Jr. ¶ 2, Request for Reconsideration Exh. 5 (August 1, 2013).

Serial No. 85660606

8

but not what has been identified in the application. The identification is not limited
(nor does it allude to) “drum transporters” or “roll manipulators.” In addition, the
identification is not restricted to trade channels, marketing, or types of customers.
The identification is for “palletizers” which are described as “a machine which
provides automatic means for stacking cases of goods or products on to a pallet.”10
In addition, “palletize” is defined as “to store or move (freight, for example) by
means of pallets,”11 or “to place on, transport, or store by means of pallets.”12 Thus,
the listing for “palletizers” in the identification of goods in the application, which is
not limited by a type of palletizer, encompasses, or is, at a minimum, identical in
purpose and function to, registrant’s identification “hydraulic pallet truck” in Reg.
No. 1892064. Further, the definition for “elevator” is “one that raises or lifts
something up: as an endless belt or chain conveyor with cleats, scoops, or buckets
for raising material and /or a cage or platform and its hoisting machinery for
conveying people or things to different levels.”13 Thus, the listing for “case
elevators” in applicant’s identification, which is not limited by field of use, i.e.,
industrial, farm, commercial, etc., encompasses registrant’s identification
“industrial and farm elevators” in Reg. No. 815787.

10 Wikipedia (http://wikipedia.org, retrieved April 22, 2013) Final Office Action (April 22,
2013), Final Office Action (April 22, 2013).

11 The Free Dictionary (www.thefreedictionary.com, retrieved April 22, 2013), Final Office
Action (April 22, 2013).

12 Merriam-Webster (www.merriam-webster.com, retrieved April 22, 2013), Final Office
Action (April 22, 2013).

13 Merriam-Webster (www.merriam-webster.com, retrieved April 22, 2013), Final Office
Action (April 22, 2013).
Serial No. 85660606

9

To the extent the wording in the identification of goods in the application
does not directly encompass the goods listed in the registrations, it is not disputed
that all of the goods are for the purpose of lifting and placing objects.
Further, because there are no limitations as to channels of trade or classes of
purchasers in the descriptions of goods in the application and cited registrations, it
is presumed that applicant’s and registrants’ goods move in all channels of trade
normal for those goods, and that they are available to all classes of purchasers for
those goods. See Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d
901, 177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119
USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992).
In view of the above, we find that the identified goods are legally identical or
otherwise closely related and these types of goods are sold through the same trade
channels to the same classes of consumers, such that confusion is likely when the
goods are sold under similar marks.
Applicant argues that “the average purchaser” of these goods would “exercise
a high level of sophistication in choosing” the goods.14 Applicant’s goods are not
inexpensive items and the consumers of such products would exercise a higher
degree of care in their purchasing decision.15 While this factor slightly favors
applicant, it does not outweigh the other du Pont factors.

14 App. Br. p. 14.
15 Irons Aff. ¶ 9.

Serial No. 85660606

10

Finally, applicant argues that it “is not aware of any instances of actual
confusion.”16 In his sworn affidavit Mr. Irons avers:
We have been using the mark EASY LIFT in association with our
goods since 1993 … . In that time there have been no instances of
actual confusion with the blocking marks.17

We first observe that while a showing of actual confusion would be highly
probative, the lack thereof is not necessarily probative. “The lack of evidence of
actual confusion carries little weight, especially in an ex parte context.” Majestic
Distilling Co., Inc., 65 USPQ2d at 1205 (internal citations omitted)
(“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value”). See also In re Bisset-Berman Corp., 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). In any
event, the record is devoid of probative evidence relating to the extent of use of
registrants’ 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). More
significantly, Mr. Iron’s affidavit pertains to applicant’s use of the mark on “drum
transporters” and applicant’s limited trade channels. Thus, it does not speak to the
more general identification in the application, and it supports the possibility that

16 App. Br. 15.

17 Irons Aff. ¶ 11.
Serial No. 85660606

11

there have not been meaningful opportunities for confusion to occur. 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 conclusion, because the marks are identical in sound and meaning and
highly similar in appearance and overall commercial impression, the goods are
related, and the channels of trade and consumers are the same or overlapping,
confusion is likely between applicant’s mark EASYLIFT and the mark E-Z LIFT in
the cited registrations. Finally, to the extent that any of the points argued by
applicant cast doubt on our ultimate conclusion on the issue of likelihood of
confusion, we resolve that doubt, as we must, in favor of the prior registrant. In re
Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusals to register based on a likelihood of confusion with the
marks in Registration Nos. 815787 and 1892064 under Section 2(d) of the
Trademark Act are affirmed.