P-G Industries, Inc.

Trademark Trial and Appeal Board

Aug 27, 2001

No. 75638838 (T.T.A.B. Aug. 27, 2001)

8/27/01 Paper No. 9
HRW

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re P-G Industries, Inc.
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Serial No. 75/638,838
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David V. Radack of Eckert Seamans Cherin & Mellott, LLC
for P-G Industries, Inc.

Brian A. Rupp, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______

Before Cissel, Chapman and Wendel, Administrative Trademark
Judges.

Opinion by Wendel, Administrative Trademark Judge:

P-G Industries, Inc. has filed an application to
register the mark IRONROX for “castable refractory mixes.”1
Registration has been finally refused under Section
2(d) on the ground of likelihood of confusion with the mark
IRONROCK, which is registered for “bricks, tiles and paving
stones.”2 The refusal has been appealed and both applicant

1 Serial No. 75/638,838, filed February 10, 1999, claiming a
first use date and first use in commerce date of November 23,
1998.
2 Registration No. 1,108,683, issued December 12, 1978, Section 8
affidavit accepted and Section 15 affidavit acknowledged;
renewed.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/638,838
2
and the Examining Attorney have filed briefs. An oral
hearing was not requested.
We make our determination of likelihood of confusion
on the basis of the du Pont3 factors which are relevant in
view of the evidence of record. Two key considerations in
any analysis are the similarity or dissimilarity of the
respective marks and the similarity or dissimilarity of the
goods or services with which the marks are being used. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976); In re Azteca Restaurant
Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999).
Looking first to the respective marks, the Examining
Attorney maintains that the marks are essentially
identical. Applicant, however, argues that there is a
difference in the marks, in that applicant’s mark IRONROX
has a plural sound whereas registrant’s mark IRONROCK has a
singular sound.
The marks IRONROX and IRONROCK are highly similar in
appearance and sound and project essentially the same
connotation. The minimal distinction in singular versus
plural does not change the overall commercial impression.
Furthermore, it is well recognized that purchasers are not

3 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Ser No. 75/638,838
3
infallible in the their recollection of trademarks and
often retain a general, rather than specific, impression of
marks over a period of time. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975); Interco Inc. v. Acme
Boot Co., Inc., 181 USPQ 664 (TTAB 1974). Clearly, any
difference between the singular and plural could be
forgotten, if not totally overlooked, by potential
purchasers.
The main focus in this case, however, is upon the
respective goods and the channels of trade for the same.
The Examining Attorney argues that the goods are closely
related; that applicant’s castable refractory mixes may be
used to make registrant’s goods; and that “many
manufacturers produce these goods which could be utilized
in the same industry and encountered by the same
purchasers.” The Examining Attorney relies upon seven
third-party registrations as evidence that the same marks
have been registered by the same entities for both bricks,
tiles and stones and the “mixes for creating such items.”
He also refers to excerpts of articles retrieved from the
Nexis database which describe the use of refractory mixes
to make bricks and which use the term “refractories” to
refer to both formed objects such as bricks and unshaped
products such as castables and other mixes.
Ser No. 75/638,838
4
Applicant contends that there are obvious differences
in the goods. Applicant states that its goods are sold as
a castable mix to be used for making steel fiber reinforced
refractory concrete which is used to line furnaces where
molten metal is present. Applicant argues that
registrant’s goods, on the other hand, are pre-formed
brick, tiles and paving stones which would most likely be
used in the construction of residential housing. Applicant
further contends that because of these differences in the
goods, they are sold in different channels of trade, with
applicant’s goods being sold to foundries for use, for
example, in blast furnaces and registrant’s goods being
sold mostly to contractors for use in building homes.
Applicant argues that the third-party registrations cited
by the Examining Attorney in fact support applicant’s
contention that the goods are unrelated, since none of the
registrations covers refractory mixes and bricks, tiles and
paving stones. Applicant agrees that bricks can be used as
refractories, but argues that it is clear from the goods
listed in the registration that registrant is not selling
refractory bricks.
As a general principle, it is not necessary that the
goods of the applicant and registrant be similar or even
competitive to support a holding of likelihood of
Ser No. 75/638,838
5
confusion. It is sufficient if the respective goods are
related in some manner and/or that the conditions
surrounding their marketing are such that they would be
encountered by the same persons under circumstances that
could, because of the similarity of the marks used thereon,
give rise to the mistaken belief that they emanate, or are
associated with, the same source. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783 (TTAB 1993) and the cases cited
therein.
Here, however, we find applicant’s arguments fully
persuasive that the goods are not so related. Applicant’s
goods are “castable refractory mixes,” which by definition
are used for high-temperature applications such as in blast
furnaces in foundries.4 Registrant’s materials, on the
other hand, are bricks, tiles and paving stones, which are
used in the construction or home improvement areas.
Looking to the third-party registrations relied upon by the

4 We take judicial notice of the following dictionary definition:
refractory 2: a refractory material: as a: any of
various nonmetallic ceramic substances that are
characterized esp. by their suitability for use as
structural materials at high temperatures usu. in contact
with metals, slags, glass or other corrosive materials
(as in furnaces, crucibles, or saggers) that are classified
chemically as acid ..., basic... or neutral... and that are
produced in the form of brick or other shapes, finely
ground cementing materials, castable concretes, plastics
and granular materials in bulk.
Webster’s Third New International Dictionary (1993).

Ser No. 75/638,838
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Examining Attorney, we find that six of the seven
registrations cover goods such as paving stones, bricks
and/or tiles and ordinary cement or mortar mixtures, but
not castable refractory mixes. The seventh registration
covers both refractory bricks and refractory casting mixes,
but not ordinary bricks, tiles or paving stones. A clear
distinction can be drawn between those entities which
manufacture and offer under the same mark construction
materials such as those listed in the registration and
those which manufacture and offer refractory materials such
as those listed in the application. Moreover, although we
must consider registrant’s goods as broadly as identified
in the registration, taken in context with the other
products covered by the registration, namely, paving stones
and tiles, we do not find it reasonable to construe the
registration as covering refractory bricks, as opposed to
ordinary building bricks. No evidence of record supports a
link between applicant’s castable refractory mixes and
registrant’s bricks per se.
Accordingly, we find no basis in this record for
concluding that a relationship exists between the goods of
applicant or registrant or that the goods are such that
they would be likely to be assumed to emanate from a common
source, because similar marks are used on them. Nor do we
Ser No. 75/638,838
7
find any basis for assuming a similarity of channels of
trade, the areas of use of the goods being distinguishable
by the very identifications of the goods in the application
and registration. While applicant also points to the
sophistication of the purchasers in these two separate
markets, the mere fact that there is no evidence of any
overlap such that the same purchasers would encounter the
goods under circumstances which might lead them to believe
that they emanate from a common source is sufficient to
obviate any likelihood of confusion.
Decision: The refusal to register under Section 2(d)
is reversed.