Masco Corp. of Indiana

Trademark Trial and Appeal Board

Sep 2, 2004

No. 76413647 (T.T.A.B. Sep. 2, 2004)

Mailed: 9/2/2004
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Masco Corporation of Indiana
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Serial No. 76413647
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Edgar A. Zarins for Masco Corporation of Indiana.
Won T. Oh, Trademark Examining Attorney, Law Office 114
(Margaret Le, Managing Attorney).
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Before Seeherman, Quinn and Hairston, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Masco Corporation of Indiana has appealed from the
final refusal of the Trademark Examining Attorney to
register SAXONY as a trademark for "plumbing products,
namely kitchen faucets and replacements parts therefor."1
Registration has been refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
1 Application Serial No. 76413647, filed May 30, 2002, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76413647
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applicant's mark so resembles the mark THE SAXONY,
previously registered for "plumbing fixtures; namely sinks"2
that, if used on applicant's goods, it would be likely to
cause confusion or mistake or to deceive.
Applicant and the Examining Attorney filed appeal
briefs. Applicant did not request an oral hearing.
We affirm the refusal of registration.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, 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 and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
In this case, applicant itself acknowledges that the
marks “are similar.” Brief, p. 2. Indeed, we agree with
2 Registration No. 1849845, issued August 16, 1994; Section 8
affidavit accepted; Section 15 affidavit received.
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the Examining Attorney that the marks are virtually
identical, with the only difference being the non-
distinctive word THE added to applicant’s mark. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985) (there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties).
As for the goods, applicant asserts that there are
specific differences, contending that they travel through
different channels of trade and are purchased under
different scenarios. Specifically, applicant argues that
“faucets are a relatively inexpensive product that can be
purchased off the retail shelf by consumers looking to
replace a worn or dated faucet,” and that this upgrade “can
be accomplished in a few hours by even the novice do-it-
yourselfer.” Brief, p. 2. On the other hand, applicant
contends that “the purchase and replacement of a sink
amounts to a remodeling construction project”; that “the
consumer will choose the desired sink from a catalog or
other display and then order the sink for delivery and
installation at a later date by the contractor”; and that
typically “the sink is replaced in connection with
Ser No. 76413647
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remodeling of the entire kitchen or bath,” which is “not a
small undertaking considered lightly by the consumer and
therefore will be carefully scrutinized prior to purchase.”
Brief, p. 2.
It is true that there are specific differences between
faucets and sinks. However, as the Board stated in In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978), it is not necessary that the goods of the
parties be similar or competitive, or even that they move
in the same channels of trade to support a likelihood of
confusion. It is sufficient that the respective goods of
the parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods are such that they would or could be encountered by
the same persons under circumstances that could, because of
the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer.
Here, faucets and sinks are obviously complementary
goods which may be purchased together. Further, the
Examining Attorney has made of record a number of third-
party registrations which show that entities have adopted a
single mark for both types of goods. See, for example,
Reg. No. 2697870 for PILLOW TALK for, inter alia, sinks and
faucets; Reg. No. 2590001 for MARIELLE for, inter alia,
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faucets and bath fixtures in the nature of sinks; Reg. No.
2694460 for SANIBATH for, inter alia, faucets and sinks.
Third-party registrations which individually cover a number
of different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).3
Even if we accept that sinks are installed by
professional contractors, such professionals are also
likely to install faucets as part of the same remodeling
project. Given the near identity of the marks, as well as
the complementary nature of the goods and the third-party
registration of a single mark for both types of goods, even
these professionals are likely to assume that faucets sold
under the mark SAXONY and sinks sold under the mark THE
SAXONY emanate from the same source.
Moreover, the general public are also purchasers of
the goods. Even if such purchasers buy sinks only as part
of a remodeling project (a proposition for which there is
no support in the record), applicant has acknowledged that
in such circumstances the purchasers would be exposed to
3 We have not considered those third-party registrations which
were based on Section 44 of the Trademark Act, and therefore do
not reflect use in commerce.
Ser No. 76413647
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the mark as they choose and order a sink. If such
consumers, familiar with the mark THE SAXONY for sinks,
subsequently decide to purchase faucets as part of a do-it-
yourself project, they are likely to assume that SAXONY
faucets and THE SAXONY sinks come from the same source. As
applicant has stated, faucets are an inexpensive purchase
that will not be the subject of great deliberation or care.
Decision: The refusal of registration is affirmed.