Hindman Mfg. Co. of Centralia, Inc.

Trademark Trial and Appeal Board

Apr 8, 1999

No. 74699256 (T.T.A.B. Apr. 8, 1999)

Paper No. 12
DEB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB APRIL 8, 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 Hindman Manufacturing Co. of Centralia, Inc.
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Serial No. 74/699,256
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Robert S. Beiser of Michael Best & Friedrich for Applicant.
Cindy B. Greenbaum, Trademark Examining Attorney, Law
Office 104 (Sidney I. Moskowitz, Managing Attorney).
_______
Before Simms, Hanak and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant, Hindman Manufacturing Co. of Centralia,
Inc., an Illinois corporation, has filed an application for
registration of the mark “AMERICANA BUILDING PRODUCTS” for
“exterior aluminum awnings and canopies” in Int. Class 6;
“exterior non-metal carports, columns, shelters and patio
enclosures in the nature of screened and glass rooms, and
vinyl panels for roofing, doors and walls” in Int. Class
Ser No. 74/669,256
2
19; and “exterior fabric awnings and canopies; patio covers
in the nature of fabric awnings” in Int. Class 22.1
The Trademark Examining Attorney issued a final
refusal to register based upon Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's proposed mark, “AMERICANA BUILDING PRODUCTS,”
when used on the enumerated home improvement items, so
resembles the registered mark, “AMERICANA COLLECTION,” as
applied to "aluminum siding" as to be likely to cause
confusion, or to cause mistake, or to deceive.2
Applicant has appealed the final refusal to register.
Briefs have been filed but applicant did not request an
oral hearing. We affirm the refusal to register.
In the course of rendering this decision, we have
followed the guidance of In re E.I. DuPont DeNemours & Co.,
476 F.2d 1357, 1362, 177 USPQ 563, 567-68 (CCPA 1973),
which sets forth the factors which, if relevant, should be
considered in determining likelihood of confusion.

1 Serial No. 74/699,256, filed July 10, 1995, alleging use
since June 1988.
2 Registration No. 1,715,001 issued on September 15, 1992. §8
affidavit accepted and §15 affidavit filed.
Ser No. 74/669,256
3
The Marks
The first factor we consider is the similarity of the
marks as to appearance, sound, meaning and commercial
impression. The Trademark Examining Attorney argues
correctly that when applicant’s mark is compared to the
registered mark, "the points of similarity are of greater
importance than the points of difference." Esso Standard
Oil Co. v. Sun Oil Co., 229 F.2d 37, 108 USPQ 161 (D.C.
Cir.), cert. denied, 351 U.S. 973, 109 USPQ 517 (1956).
Applicant’s mark is AMERICANA BUILDING PRODUCTS, with
the generic term, “BUILDING PRODUCTS,” disclaimed.
Registrant's mark is “AMERICANA COLLECTION” with the word
“COLLECTION” disclaimed.
As applicant argues, when making a determination under
Section 2(d) of the Act, we must look at the marks in their
entireties. On yet the other hand, one feature of a mark
may be recognized as having greater significant in creating
a commercial impression. In this context, greater weight
can be given to a dominant feature in determining whether
there is a likelihood of confusion. In re National Data
Corp., 224 USPQ 749 (Fed. Cir. 1985); Tektronix, Inc. v.
Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (CCPA 1976);
Ser No. 74/669,256
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and In re J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1988).
Disclaimed matter is typically less significant in this
analysis. Here, the dominant, non-disclaimed portions of
the two marks are identical.
Because homeowners will be in the market for the goods
of registrant and applicant so infrequently, we do not
assume that these marks will be compared by shoppers for
the respective goods on a side-by-side basis. Hence, in
evaluating the similarities between the marks, the emphasis
must be on the recollection of the average purchaser who
normally retains a general, rather than specific,
impression, of trademarks. The general impression of
registrant’s mark may be recalled imperfectly, especially
if it is several years later that one is shopping for
applicant’s goods. For this reason, we agree with the
Trademark Examining Attorney that the average purchaser of
applicant and registrant's goods will retain only the
"AMERICANA" aspect of these marks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 109 (TTAB 1976).
As to the strength of the word “Americana,” the
Trademark Examining Attorney argues that inasmuch as “the
word AMERICANA has no descriptive or even suggestive
meaning with respect to the goods here at issue…,” the mark
Ser No. 74/669,256
5
is strong. However, we do find that according to
dictionary entries, including one referenced in applicant’s
reply brief, this matter must be considered highly
suggestive of a style of materials, especially in the
context of applicant’s goods.
Nonetheless, we agree with the Trademark Examining
Attorney’s conclusions that applicant's mark is similar in
sound, appearance, meaning and commercial impression to
registrant's mark.
The Goods
The Trademark Examining Attorney then argues that
applicant's exterior aluminum awnings and canopies,
carports, patio enclosures and exterior fabric awnings and
canopies and registrant's aluminum siding are highly
related home improvement exterior building products. She
submitted a sampling of registrations demonstrating that
several manufacturers of applicant's goods also manufacture
and market registrant's goods under the same mark. These
third-party registrations have some probative value to the
extent that they may serve to suggest that the goods of the
applicant and the registrant are of a type which emanate
from a single source. See In re Mucky Duck Mustard Co.
Ser No. 74/669,256
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Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), and cases cited
therein. She concludes that purchasers are accustomed to
viewing the same or similar marks on the goods of the
applicant and the registrant. We too conclude that some of
applicant’s goods (e.g., exterior aluminum canopies and
vinyl panels for walls) are certainly complementary and
arguably quite similar to registrant’s aluminum siding.
Trade Channels
The Trademark Examining Attorney argues correctly that
neither the applicant nor the registrant has in any way
limited its channels of trade or class of purchasers. In
the absence of any evidence to the contrary in the file, it
is presumed that the application and registration encompass
all goods of the type described, that the goods move in all
normal channels of trade, and that the goods are available
to all potential customers. In re Elbaum, 211 USPQ 639
(TTAB 1981). The Trademark Examining Attorney contends
that purchasers of applicant's goods would encounter
registrant's goods in the same stores and at the hands of
contractors involved with home improvement products and
services.
Ser No. 74/669,256
7
Conditions of Sale
Applicant argues that the customers involved herein
are sophisticated purchasers. Although there is really no
evidence as to the costs of the goods of applicant or of
registrant, it is probably true that the cost of putting
registrant’s aluminum siding on an entire house is quite
expensive. It may be less obvious that this is the case if
one is purchasing from applicant a single fabric awning for
a window. We are hesitant to base our decision on
applicant’s argument of buyer sophistication in the absence
of probative evidence that the customers of applicant and
of registrant are sophisticated. Rather, they are ordinary
purchasers having one trait in common -- they are members
of the home-owning public. They turn to the registrant and
applicant in order to maintain or improve their homes.
Thus, there is an identity of purchasers.
Furthermore, even if we were to conclude that
registrant’s customers are sophisticated, the fact that
purchasers are knowledgeable in a particular field does not
necessarily mean that they are immune from source
confusion. See In re Decombe, 9 USPQ2d 1812; In re
Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983).
Ser No. 74/669,256
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Strength of Mark
Applicant argues that its mark should be entitled to
registration because this is not a very strong mark as
there are dozens of other federal registrations and pending
applications containing trademarks which include the term
AMERICANA. However, decisions by previous Trademark
Examining Attorneys in approving other marks are without
evidentiary value and are not binding upon this Board.
Each case must be decided on its own merits as third party
registrations do not provide a complete record of the
underlying factors in that earlier case –- facts which may
not be present in the instant case. See In re National
Novice Hockey League, Inc., 222 USPQ 638, 641 (TTAB 1984);
In re Carvel Corp., 223 USPQ 65 (TTAB 1984)].
We accord these third party registrations little
weight except to the extent they demonstrate that this term
may well be highly suggestive of a wide array of unrelated
goods. In focusing more specifically on the other third
party registrations initially cited by the Trademark
Examining Attorney in the first Office action, we conclude
that the word “Americana” is entitled to a narrow scope of
protection, even in the field of home construction or
improvement. If we examine more closely these three other
Ser No. 74/669,256
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registrations featuring the word “Americana” as a dominant
feature of the mark, we conclude that it is not
inconsistent to refuse registration for applicant’s mark
under Section 2(d) of the Act based upon the cited
registration, while these three other registrations are
permitted to co-exist. Given the highly suggestive nature
of the word “Americana,” and looking at the types of goods
involved, we conclude that applicant’s exterior aluminum
canopies and vinyl panels for walls, for example, are more
closely related to registrant’s aluminum siding than are
goods such as interior drapery fixtures, metal garage
doors, or wooden window blinds.
Decision
On balance, when the above du Pont factors are
weighed, as they must be, we conclude that purchasers who
encounter the marks of the applicant and the registrant on
the specified goods would mistakenly believe that the goods
originate from the same source. Specifically, given the
overall similarity of the marks, the close relationship of
the goods, the infrequency with which these items are
purchased combined with the imperfect recall of the average
consumer, as well as an assumption that the goods of
applicant and registrant both move in the same channels of
Ser No. 74/669,256
10
trade to ordinary purchasers, the mere fact that the word
“Americana” appears to be highly suggestive of these goods
is not enough to convince this Board to reverse the
Trademark Examining Attorney. Of course, to the extent
that there is any doubt as to the correctness of our
holding, we must resolve any doubt in favor of registrant.
Accordingly, the refusal to register under Section 2(d) of
the Lanham Act is hereby affirmed.
R. L. Simms
E. W. Hanak
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board