Liberty Hardware Mfg. Corp.Download PDFTrademark Trial and Appeal BoardMar 31, 2009No. 77141134 (T.T.A.B. Mar. 31, 2009) Copy Citation Mailed: March 31, 2009 Bucher UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Liberty Hardware Mfg. Corp. ________ Serial No. 77141134 _______ Edgar A. Zarins of Masco Corporation for Liberty Hardware Mfg. Corp. Kim T. Moninghoff, Trademark Examining Attorney, Law Office 113 (Odette Bonnet, Managing Attorney). _______ Before Hairston, Bucher and Ritchie, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: Liberty Hardware Mfg. Corp. seeks registration on the Principal Register of the mark ARTESIA (in standard character format) for goods identified in the application, as amended, as “metal hardware namely knobs and pulls for cabinetry”1 in International Class 6. This case is now before the Board on appeal from the final refusal of the Trademark Examining Attorney to register this designation based upon Section 2(d) of the 1 Application Serial No. 77141134 was filed on March 27, 2007 based upon applicant’s allegation of a bona fide intention to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77141134 - 2 - Trademark Act, 15 U.S.C. § 1052(d). The Trademark Examining Attorney has found that applicant’s mark, when used in connection with the identified goods, so resembles the mark ARTESIAN (in standard character format) for, inter alia, “drapery hardware, namely rods, end caps, clips, rings, brackets and finials”2 in International Class 20, as to be likely to cause confusion, to cause mistake or to deceive. The Trademark Examining Attorney and applicant have filed briefs in the case. We affirm the refusal to register. In arguing for registrability, applicant argues that the marks are not identical, the goods are dissimilar and they will move in different channels of trade. By contrast, the Trademark Examining Attorney contends that the marks are similar in appearance, sound, connotation and commercial impression, and that the goods are related and will move through the same channels of trade to the same classes of ordinary purchasers. Likelihood of Confusion We turn then to a consideration of the issue of likelihood of confusion. Our determination of likelihood of 2 Registration No. 3243618 issued to Cassidy West, Inc. on May 22, 2007. Serial No. 77141134 - 3 - confusion is based upon our analysis of all of the probative facts in evidence that are relevant to the factors bearing on this issue. See In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In any likelihood of confusion analysis, however, two key, although not exclusive, considerations are the similarities between the marks and the relationship between the goods and/or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). The similarities in the marks We turn to the du Pont factor focusing on the similarities or dissimilarities in the appearance, sound, connotation and commercial impression of the respective marks. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Applicant argues that the marks are not identical, but concedes they are similar, and has presented no evidence to overcome the similarity of the marks. In any case, we find that they are quite similar as to sound and appearance. Serial No. 77141134 - 4 - Both marks have three syllables. All seven letters of applicant’s mark are contained within registrant’s mark. Effectively, applicant has taken registrant’s mark and removed the eighth and final letter “N.” This one letter difference in appearance is minor and may not be noticed by many consumers. See Weiss Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) [TMS and TMM found to look and sound alike and to create likelihood of confusion even among discriminating purchasers of expensive software systems]. As to connotation, consumers would likely perceive applicant’s mark, “Artesia,” as having a similar connotation to the registered mark, “Artesian.” The suggestion in both cases is to water in underground sources such as aquifers and wells. To the extent there are arguable differences in connotations, we still would find them similar, for likelihood of confusion purposes, because of their nearly identical appearance and pronunciation. See Weiss Associates, 14 USPQ2d at 1842, and Spoons Restaurants, Inc. v. Morrison, Inc., 23 USPQ2d 1735 (TTAB 1991), aff’d. No. 92-1086 (Fed. Cir. June 5, 1992) [likelihood of confusion found when marks looked and sounded alike, even though they arguably might have different connotations, in part because of fallibility of customer memory]. Serial No. 77141134 - 5 - The strong similarity in appearance and pronunciation also supports a finding that the marks will create similar commercial impressions. Accordingly, the similarity of the marks, when compared in their entireties, is a du Pont factor that favors the position of the Trademark Examining Attorney that there is likelihood of confusion herein. Relationship of the Goods Much of applicant’s brief is devoted to the argument that these goods are dissimilar: Applicant’s goods are cabinet hardware — pulls and knobs designed to be mounted to the drawers and doors of cabinetry to facilitate their opening and closing. These goods are sold in conjunction with cabinetry or in the hardware section of do-it-yourself retail centers. In contrast, registrant’s goods are drapery hardware in Class 20. Again, registrant's goods are for a specific purpose, namely the ornamentation of drapery rods. Consumers are not likely to confuse these very different products nor will they consider them to emanate from the same source given the differences in the marks and the goods themselves. … [T]he goods are sufficiently dissimilar that consumers will not make any comparisons as to source. The respective channels of trade and the goals of the consumer are so different as to eliminate any association. Cabinet hardware is purchased at do-it-yourself hardware centers. Draperies and their mountings are marketed to interior designers and consumers looking to dress up a window treatment. The channels of trade are simply Serial No. 77141134 - 6 - so distinct that consumers will make no association as to source.” Initially, in response to applicant’s arguments as to different classifications for the respective goods, we note that a difference in the classification of goods has no bearing on the question of likelihood of confusion. The classification system is simply for the convenience of the Office and has no bearing on the relationship of the goods. See In re Leon Shaffer Golnick Advertising, Inc., 185 USPQ 242 (TTAB 1974). For registrant’s and applicant’s respective goods, the classification differences are determined solely by material composition (e.g., metal versus non-metal). Rather, it is the manner in which the applicant and/or registrant have identified their goods or services that is controlling. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771 (Fed. Cir. 1993); National Football League v. Jasper Alliance Corp., 16 USPQ2d 1212, 1216 n.5 (TTAB 1990). Furthermore, inasmuch as the cited registration describes the goods broadly without any limitations as to their channels of trade or classes of purchasers, it is presumed that the registration encompasses all goods of the type described, that they move in all normal channels of trade, and that they are available to all potential Serial No. 77141134 - 7 - customers. In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992). Additionally, the Trademark Examining Attorney has demonstrated that cabinetry hardware of the kind to be sold by applicant and drapery hardware of the type marketed by registrant are closely related and would be found in the same channels of trade, such as retail stores that offer decorative home furnishings and decorative hardware or via websites, and both would be offered directly to ordinary homeowners. He did this convincingly from articles extracted from the LEXIS/NEXIS® database, representative third-party trademark registrations, as well as vendor’s websites drawn from the Internet, all of which were attached to his Office actions during prosecution. We turn first to the LEXIS/NEXIS® excerpts: HEADLINE: “Get a Grip: Cheaper than remodeling, new Handles can instantly update a room with styles from whimsical to elegant” … Artist and sculptor Linda Winklemann, head of I.W. Designs, sculpted and designed fine jewelry for 18 years before deciding that hardware could take on sculptural shapes. Her metal knobs, pulls, handles, hooks, towel bars and drapery holders are first sculpted in clay then cast. Her Sasha “Assemblage” knobs and pulls in fine pewter with hand-color applications, retail from $16 to $40. San Francisco sculptor Cari Jaye Sokoloff’s Serial No. 77141134 - 8 - “Manhandles”3 for Sōko4 are highly artistic male stick- figure-like cabinet knobs and pulls that can also be used as towel hooks …5 * * * * HEADLINE: “The Science of model home design” … Alegro stocks hardware for draperies, cabinets and furniture… 6 * * * * HEADLINE: “Stanley Works chief says Newell merger would cause upheaval” He described Stanley and Newell as vigorous competitors in such markets as home improvement hardware, door, window and cabinet hardware, drapery hardware …7 * * * * HEADLINE: “Specialists in products and services for renovation” This company has been making decorative hardware in brass, bronze, silver, nickel, iron, pewter, chrome and gold since 1857. It has been at the same address since 1902 and has many original molds. It offers over 50,000 designs of drapery and furniture hardware … Prices range from 75 cents for a brass cabinet knob to $2,825 for a finial of rock crystal and gold leaf…8 * * * * 3 See Reg. No. 2228213 at footnote 24. 4 See also Reg. No. 2351353 made of record by the Trademark Examining Attorney with Office Action of December 26, 2007. 5 Sun Sentinel (Fort Lauderdale, FL), August 31, 2001. 6 San Antonio Express-News, July 22, 2006. 7 The Hartford Courant (Connecticut), August 4, 1992. 8 The New York Times, October 17, 1985. Serial No. 77141134 - 9 - HEADLINE: “Variety rules at the amazing Gracious Home” … That’s particularly true in the showroom area, which includes high-end bath fixtures cross merchandised with what may be the industry’s most exhaustive assortment of hardware for doors, cabinets and drapery.9 * * * * HEADLINE: “Bombay Kids appeals to a hip crowd” Bombay Kids gives accessories a lot of attention. Numerous displays around the store featured items such as curtain/bed panels, drawer pulls, finials, window hardware and mini lampshades.10 * * * * HEADLINE: “Downtown Texas” … They carry everything from antique doors and door hardware, stained glass, garden urns and planters, cabinet knobs and bridge pulls, to cast-iron finials and masonry stars, just to name a few.11 * * * * HEADLINE: “Curtain Call” … Artifact, Michael Graves’s collection of curtain hardware for Blome, includes curtain rods, finials, brackets and rings, holdbacks, swag holders, furniture knobs, drawer pulls,12 coat hooks and stair rods…13 * * * * 9 National Home Center News, March 17, 1997. 10 Kids Today, September 1, 2005. 11 Texas Monthly, September 2001. 12 See also Reg. No. 3164407 at footnote 30. 13 Architectural Record, January 1999. Serial No. 77141134 - 10 - HEADLINE: “Shopping for Handmade Glass” … His skill in metalwork and engineering were crucial to setting up his workshop as well as fabricating his “stock-in-trade” – knobs, handles, stoppers and finials…14 * * * * HEADLINE: “Home Fashion” … Susan Goldstick’s artists sculpt fantastical knobs, drawer pulls, finials,15 and curtain tiebacks by hand, and then paint them in metallic tones with names like amethyst, emerald and sapphire…16 * * * * HEADLINE: “No place for wet towels? Hang on.” … Besides door hooks, consider drawer pulls, wooden post finials and decorative curtain holdbacks, all in a variety of finishes (wood, iron, ceramic, etc.)…17 * * * * HEADLINE: “Get that Look / Finials Decoration Lends Drapes a Final Touch” Light fixtures, lamps and metal drawer pulls also offer design cues, she adds, whether they’re pewter, nickel, chrome or polished brass. Highly ornate finials with a silver or gold finish project an ultra dress look…18 * * * * 14 Newsday (New York), May 31, 2007. 15 See also Susan Goldstick’s web page at footnote 33. 16 The Boston Globe Magazine, February 12, 2006. 17 Fort Worth Star-Telegram (Texas), April 12, 2003. 18 The Sunday Oregonian, August 4, 2002. Serial No. 77141134 - 11 - HEADLINE: “Get your holiday shopping on track” The Cut & Dried Hardware store carries distinctive hardware, including knobs, pulls and finials in 20 resin colors, metals and crystal with faux emeralds, lapis, topaz and gold accents…19 * * * * In addition, the Trademark Examining Attorney has put into the record third-party registrations showing the same mark registered for both cabinetry hardware and drapery hardware. This is another common method for showing a relationship between otherwise different products. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993): for, inter alia, “curtain, shelf and cabinet hardware made of metal; namely, knobs, pulls, trim, supports, brackets, fasteners, rails, finials …” in International Class 6;20 KEELER BRASS COMPANY for, inter alia, “metal hardware for furniture; namely, … finials, … pulls, … knobs, plates, pendants, corners, bail and back assemblies, bails, rings, end caps, and table and chair foot covers” in International Class 6;21 19 Orange County Register (California), November 28, 1998. 20 Registration No. 1666426 issued on December 3, 1991; renewed. 21 Registration No. 1707758 issued on August 18, 1992; renewed. Serial No. 77141134 - 12 - COORDINATES ETCETERA for “clips, brackets, head and bottom rails, valances, endcaps, guiding member, tracks, rails, handles, pins, locks, screws, clamps, hooks, knobs, eyelets, rings, supports for soft window shades, draperies and curtains” in International Class 6;22 for “furniture, door, window, kitchen and bathroom hardware, namely drawer pulls, clothes hooks and door handles, cast in or made of bronze or aluminum” in International Class 6; “curtain rods cast in bronze or aluminum, picture frames and wooden jewelry boxes” in International Class 20;23 MANHANDLES for “decorative metal hardware, namely cabinet handles, cabinet knobs, cabinet pulls, drawer handles, drawer knobs, drawer pulls, door handles, doorknobs, and door pulls, hooks, and curtain finials” in International Class 6;24 GAYLE BRIGHT for, inter alia, “hardware in bronze and pewter, namely, knobs, handles, drawer pulls, hooks, finials, towel bars, and hinges; pewter figurines; bronze figurines; boxes made from bronze 22 Registration No. 1811345 issued on December 14, 1993; renewed. 23 Registration No. 1894821 issued on May 23, 1995; renewed. 24 Registration No. 2228213 issued on March 2, 1999; Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. Serial No. 77141134 - 13 - and pewter” in International Class 6;25 SERIERARE PARIS for, “bronze metal door handles and knobs, crutch door handles, finger plates, door knocker, bolts, mail boxes, drawer handles and knobs, and key entries, namely, keys and key cylinders, all made of bronze metal: in International Class 6; “curtain accessories, namely, curtain rods, rings, drapery hold-backs, and brackets” in International Class 20;26 for “decorative hardware made of metal for doors, drapery, windows, and furniture, namely, drawer knobs, drawer pulls, door knobs, door handles, and door pulls, but not including reproduction of antiques” in International Class 6; “decorative hardware made of plastic for doors, drapery, windows, and furniture, namely, drawer knobs, drawer pulls, door knobs, door handles, door pulls, curtain rods, drapery hold backs, and decorative window finials, but not including reproduction of antiques” in Int. Class 20;27 25 Registration No. 2420468 issued on January 16, 2001; Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. 26 Registration No. 2557994 issued on April 9, 2002; Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. No claim is made to the word “Paris” apart from the mark as shown. 27 Registration No. 2671014 issued on January 7, 2003; Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. No claim is made to the word “Collection” apart from the mark as shown. Serial No. 77141134 - 14 - FESTIVE ACCENTS for, inter alia, “ … metal drawer handles; metal knobs for cabinets; … ” in International Class 6; “ … window decorations, namely decorative objects and clips to hang on curtains or shades and to hang in windows” in International Class 20;28 BEME for, inter alia, “metal decorative drapery hardware for use in the home, namely rods, brackets, hooks, rings, cords, and finials, … metal decorative cabinet and wall hardware, namely, hinges, drawer handles, drawer knobs, drawer pulls, drawer stops and catches, door handles, doorknobs, door pulls and hooks;29 for, inter alia, “metal weathervanes, metal cabinet and drawer knobs and pulls …” in International Class 6; and “ … metal curtain rods and holdbacks …” in International Class 20.30 Finally, the Trademark Examining Attorney also put into the record reprints from various websites which show that cabinetry hardware and drapery hardware are often sold by 28 Registration No. 2795730 issued on December 16, 2003. No claim is made to the word “Accents” apart from the mark as shown. 29 Registration No. 2856642 issued on June 22, 2004. 30 Registration No. 3164407 issued on October 31, 2006. No claim is made to the word “Design” apart from the mark as shown. Michael Graves is a living individual who consents to the registration of this mark. Serial No. 77141134 - 15 - the same online vendors. This is probative evidence of the related nature of the goods which applicant has not challenged in any way: 31 31 `http://www.eagle-emporium.com/wrought.htm Serial No. 77141134 - 16 - Wrought Iron Drawer Pull Door Handle Here by popular demand! Wrought iron drawer pulls for your kitchen or bath! These wrought iron handles are perfect for your kitchen cabinets or drawers. They are simple, and stylish with just the right amount of primitive charm. Great for bathroom vanities and cabinets too! Use them vertically for cabinets and horizontally for drawers. Each wrought iron cabinet pull is hand made, so the measurements can vary a little bit. Overall length of each drawer or cabinet pull is 4 3/4". The width is 1/2" and finger area is 3/4". The holes are 3 1/2 inches on center but there can be slight variation. 2 one inch screws are included. 32 33 32 http://www.eagle-emporium.com/cquest2.html 33 http://www.susangoldstick.com/ Serial No. 77141134 - 17 - 34 34 http://www.timberbronzeonline.com/ Serial No. 77141134 - 18 - 35 35 http://www.allcurtainhardware.com/drapery-fittings.html Serial No. 77141134 - 19 - 36 37 36 http://www.brass-hardware.com/ 37 http://www.builderironmongery.com/antique_cabinet _fittings/index.html and http://www.builderironmongery.com/ curtain_accessories/curtain_brackets.html Serial No. 77141134 - 20 - 38 38 http://www.firstimpressionsint.com/customfabrication.html Serial No. 77141134 - 21 - 39 39 http://www.ironhardware.com/exec/display_page_4/ page_hardware.php Serial No. 77141134 - 22 - 40 40 http://www.craftsmenhardware.com/siteindex.html Serial No. 77141134 - 23 - 41 41 http://www.decorative-hardware.com/products.html and http://www.decorative- hardware.com/products/prodfurntrhdwr/cabinet.html Serial No. 77141134 - 24 - 42 42 http://www.dimestorecowboys.com/retail/catalog/ product_info.php?cPath=30_46&products_id=170 Serial No. 77141134 - 25 - 43 The record contains evidence from other websites too voluminous to reproduce herein where items of drapery hardware like rods and finials are pictured along with items of cabinet hardware like knobs and pulls.44 43 http://www.beme.net/BathClassic.htm and http://www.beme.net/DraperyWood.htm 44 http://www.knobsandhardware.com/draperyrods_730.html, http://www.knobsandhardware.com/cabinetknobs_675.html, http://www.knobsandthings.com/, http://www.rejuvenation.com/catalog/cabinet.html?iqg=7648d0e41de9 02cb96e16a421a96cdeb, http://www.rejuvenation.com/typepageDrapery%20Rod%20Sets/template s/houseparts_group.html Serial No. 77141134 - 26 - This provides substantial evidence that these respective goods are frequently sold by the same retail sources, both web-based and through brick-and-mortar locations that offer decorative home furnishings, including hardware stores and metal-working artisans, that they are both selected for ornamental as well as utilitarian purposes, and that consumers are accustomed to viewing the same mark used in connection with registrant’s and applicant’s listed goods. As seen throughout this record in Nexis articles and on the Internet, vendors of decorative home furnishings often follow up listing of cabinet knobs and drawer pulls with, for example, finials for drapery rods. In the event that the respective goods are being sold under marks that create the same commercial impression, we agree with the Trademark Examining Attorney that there is a good chance that purchasers would mistakenly believe that the goods emanate from a common source. Moreover, we find that many of the specific items of drapery and cabinetry hardware that appear in this record will be sold inexpensively to ordinary purchasers, exercising a relatively low level of care. Hence, the du Pont factor focusing on the conditions under which the goods are being sold also supports a finding of a likelihood of confusion. Serial No. 77141134 - 27 - Finally, any doubt that we may retain at the conclusion of our likelihood of confusion determination must be resolved in favor of registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988). Conclusion Applicant’s ARTESIA mark is confusingly similar to registrant’s ARTESIAN mark, and applicant’s goods are related to registrant’s goods, and will be marketed through the same trade channels to the same classes of ordinary consumers. Accordingly, weighing all the relevant du Pont factors, we find that applicant’s mark for its identified goods is likely to cause confusion with the cited registration. Decision: We hereby affirm the refusal of the Trademark Examining Attorney to register this mark based upon Section 2(d) of the Lanham Act. Copy with citationCopy as parenthetical citation