Maylon E. Dickeyv.Metro Industries

Trademark Trial and Appeal Board

Oct 19, 1999

No. 91103832 (T.T.A.B. Oct. 19, 1999)

Paper No. 12
DEB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB OCT. 19,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Maylon E. Dickey d/b/a Double D Manufacturing Company
v.
Metro Industries
_____
Opposition No. 103,832
to application Serial No. 74/663,702
filed on April 20, 1995
_____
Michael E. Godar and Stuart N. Senniger of Senniger Powers
Leavitt & Roedel for Maylon E. Dickey.
Joseph E. Kovarik of Sheridan Ross & McIntosh for Metro
Industries.
______
Before Quinn, Walters and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
An application has been filed by Metro Industries1 to
register the mark “E.C.G. Environmental Cleaning Granules”
(with the words “Environmental Cleaning Granules”
disclaimed) in the special form shown below:

1 Metro Industries is a Colorado partnership composed of Judy
A. Wilkens and Gary N. Martin, both citizens of the United
States.
Opposition No. 103,832
2
for “cleaning preparations, namely chemical free granular
absorbent material of baked clay for use with patented
cleaning equipment for absorption of liquid substances to
include, but not limited to, oils, grease, transmission
fluid, hydraulic fluid and anti-freeze,” in International
Class 3.2
Registration has been opposed by Maylon E. Dickey, a
U.S. citizen, doing business as Double D Manufacturing
Company, on the grounds that opposer is the owner of the
previously used and registered mark “E.C.O.” for “chemical-
free absorbent granular mixture of baked clay and silicon
sand for use by home owners, commercial business
establishments, highway departments and fire departments in
cleaning oil and grease spills on asphalt and concrete
surfaces,” also in International Class 3;3 that the goods of
the respective parties are directly competitive, travel in
the same channels of trade, and are intended for the same
end uses; and that applicant's mark, as applied to

2 Application Serial No. 74/663,702, filed April 20, 1995,
alleging a date of first use anywhere on March 20, 1995 and first
use in interstate commerce on April 5, 1995.
3 Opposer owns the following valid and subsisting
registration: Reg. No. 1,805,710, for the mark “E.C.O.,” issued
November 23, 1993; §8 affidavit accepted and §15 affidavit
received.
Opposition No. 103,832
3
applicant’s goods, so resembles opposer’s previously used
and registered mark as to be likely to cause confusion.
Applicant, in its answer, denied all the salient
allegations of the opposition.
The record consists of the pleadings, the file of the
opposed application, and the status and title copy of
opposer’s pleaded registration. Neither party filed a brief
in this case.
Opposer has made of record a status and title copy of
its pleaded registration and, accordingly, there is no issue
with respect to opposer’s priority. King Candy Co., Inc. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).
We note from the respective identifications of goods
that both parties are marketing absorbent granular clay
materials for cleaning up petrochemical spills. Hence, we
conclude that opposer is correct in alleging that the
products are directly competitive, are advertised in the
same media, travel in the same channels of trade, and are
intended for the same class of potential and actual
purchasers. Because nothing in the record supports a
different conclusion, there is no doubt but that the
parties’ goods are substantially identical. The only issue
before us then, is whether applicant's mark so resembles
opposer's mark as to be likely to cause confusion. We find
that confusion is likely.
Opposition No. 103,832
4
We conclude that the marks “E.C.O.” and “E.C.G.
Environmental Cleaning Granules” are substantially similar
in overall commercial impression. Both marks contain the
letters “E.C.-.,” differing only in the last letter of these
three-letter strings. Both letter strings are composed of
three, upper case letters – each letter followed by a
period. Our principal reviewing court has held that
arbitrary arrangements of letters should be given a wide
scope of protection, given that the recall among purchasers
is often hazy and imperfect under these circumstances:
On the issue that letters are confusing, this
court also agrees with the Board. It is more
difficult to remember a series of arbitrarily
arranged letters than it is to remember
figures. Dere v. Institute for Scientific
Information, Inc., 420 F.2d 1068, 1069, 164
USPQ 347, 348 (CCPA 1970). See also Crystal
Corp. v. Manhattan Chemical Manufacturing
Co., 75 F.2d 506 (CCPA 1935); Edison
Brothers Stores v. Brutting E.B. Sport-
International, 230 USPQ 530, 533 (TTAB 1986).
It is especially hard to distinguish between
TMS and TMM when the marks only differ by the
last letter. Because it is hard to
distinguish between these letters, the mark
TMM is confusing with TMS.
Weiss Associates Inc. v. HRL Associates Inc., 902 F.2d 1546,
14 USPQ2d 1840 (Fed. Cir. 1990).
The predominant portion of applicant’s mark, the letter
string “E.C.G.,” appears to be, in applicant’s composite
mark, an abbreviation for “Environmental Cleaning Granules.”
However, under the circumstances of the instant case, that
fact does not diminish the likelihood of confusion between
Opposition No. 103,832
5
opposer’s mark and a similar mark for directly competitive,
if not identical, goods. In reviewing the file of the
opposed application, we note that applicant does not contend
that “E.C.G.” has any significance in the relevant trade.
There is no evidence in the record to warrant a conclusion
that members of the consuming public would use the
initialism “E.C.G.” interchangeably with the descriptive
designation, “Environmental Cleaning Granules.”
Furthermore, although it is not proper to dissect a
mark, our principal reviewing court recognizes that one
feature of a mark may be more significant than other
features, and that it is proper to give greater force and
effect to that dominant feature. See Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395
(Fed. Cir. 1983). “Environmental Cleaning Granules” names
the goods and was readily disclaimed by applicant during ex
parte prosecution. The words “Environmental Cleaning
Granules” are presented in a smaller font than the “E.C.G.”
letters and are located below the much larger “E.C.G.”
initialism. Hence, this matter plays a less significant
role in creating the overall commercial impression of
applicant’s mark.
Finally, as has been stated in prior cases, a lesser
degree of similarity between two parties’ marks is required
when, as here, the marks are applied to identical goods.
Opposition No. 103,832
6
See In re Concordia International Forwarding Corp., 222 USPQ
355 (TTAB 1983).
Opposition No. 103,832
7
Decision: Accordingly, the opposition is hereby
sustained and registration to applicant is refused.
T. J. Quinn
C. E. Walters
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial
and Appeal