Sean Thomas

Trademark Trial and Appeal BoardNov 7, 2016

No. 86459375 (T.T.A.B. Nov. 7, 2016)

This Opinion is not a Precedent of the TTAB Mailed: November 7, 2016 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Thomas _____ Serial No. 86459375 _____ John S. Egbert, Kevin S. Wilson and Michael F. Swartz of Egbert Law Offices PLLC, for Sean Thomas. William T. Verhosek, Trademark Examining Attorney, Law Office 114, K. Margaret Le, Managing Attorney. _____ Before Zervas, Kuczma and Adlin, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Sean Thomas (“Applicant”) seeks registration on the Principal Register of the mark CYCLONE FRAC HEAD (in standard characters) for: Metal hydraulic fracturing heads used on oil and gas wells in International Class 6.1 1 Application Serial No. 86459375 was filed on November 19, 2014, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). No claim is made to the exclusive right to use FRAC HEAD apart from the mark as shown. The acceptance of the disclaimer of FRAC HEAD is confirmed at footnote 3 of the Examining Attorney’s Brief (9 TTABVUE 4). Serial No. 86459375 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052 (d), based on a likelihood of confusion with the following registered mark: Registration No. 3779010 for CYCLONE (standard character mark) for Drilling machine equipment for use in drilling oil and gas wells, namely, equipment to grip and rotate tubulars on an oil and gas well drilling rig in International Class 7 owned by Frank’s International LLC.2 When the refusal was made final,3 Applicant appealed and requested reconsideration. After the Trademark Examining Attorney denied the request for reconsideration, the appeal resumed and Applicant and the Trademark Examining Attorney filed briefs. We affirm the refusal to register. Likelihood of Confusion The determination under § 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 2 Registration No. 3779010 also covers “leasing, maintenance and repair services for equipment for use in drilling oil and gas wells” in International Class 37. The services in Class 37 are not involved in this appeal. 3 While registration was also refused in light of Registration No. 805092 owned by Atlas Copco Drilling Solutions LLC, this Registration was not renewed and we accordingly do not address it. Serial No. 86459375 - 3 - USPQ 24, 29 (CCPA 1976). Applicant addresses the following factors in this case: the similarity or dissimilarity of the marks, the similarity or dissimilarity of the goods, the existence of third-party registrations and the sophistication of the customers. We have considered all of the evidence as it pertains to the relevant du Pont factors, as well as Applicant’s arguments (including any evidence and arguments not specifically discussed in this opinion). A. Similarity of the Marks Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting In re E. I. du Pont de Nemours & Co., 177 USPQ at 567). Applicant’s mark is CYCLONE FRAC HEAD and the cited mark is CYCLONE. Applicant maintains the Trademark Examining Attorney incorrectly based the refusal on the fact that the marks share the term “CYCLONE.” Applicant is correct that despite its disclaimer of “FRAC HEAD” we must review its mark as a whole without breaking it into component parts. In re Hearst Corp., 25 USPQ2d 1238, 1239 (Fed. Cir. 1992) (“The ultimate conclusion of similarity or dissimilarity must rest on consideration of the marks in their entirety.”); Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (filing of a disclaimer with the Patent and Trademark Office does not remove the disclaimed matter from the purview of determination of likelihood of confusion). However, one feature of a mark Serial No. 86459375 - 4 - may be more significant or dominant in creating a commercial impression. See In re Viterra Inc., 101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Matter that is descriptive of or generic for a party’s goods and/or services, such as FRAC HEAD which Applicant has disclaimed, is typically less significant or less dominant in relation to other wording.4 See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1824-25 (TTAB 2015) (citing In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004)). Here, not only is CYCLONE the first term in Applicant’s mark, it is also the entirety of Registrant’s mark. It is also the dominant term in Applicant’s mark. Customers are generally more inclined to focus on a mark’s first word, prefix or syllable. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered” when making purchasing decisions). The additional term FRAC HEAD in Applicant’s mark merely describes Applicant’s equipment and does not obviate a likelihood of confusion. In fact, customers familiar with Registrant’s drilling equipment sold under its CYCLONE mark would likely view Applicant’s mark as a brand extension into fracturing heads or another variation on Registrant’s CYCLONE mark. Accordingly, FRAC HEAD is less significant in terms of the mark’s 4 Applicant’s goods are “metal hydraulic fracturing heads used on oil and gas wells” (emphasis added). Additionally, the evidence and Applicant’s disclaimer of the wording FRAC HEAD confirm that FRAC HEAD is merely descriptive of, or generic for, Applicant’s goods. Serial No. 86459375 - 5 - commercial impression and renders CYCLONE the more dominant part of Applicant’s mark. While we decide each case on its own record and merits, likelihood of confusion has frequently been found where, as here, the entirety of one mark is incorporated within another. See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT similar to CONCEPT); Coca- Cola Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (BENGAL LANCER similar to BENGAL); In re Jump Designs LLC, 80 USPQ2d 1370, 1375 (TTAB 2006) (JUMP DESIGNS substantially similar to JUMP); In re El Torito Restaurants, Inc., 9 USPQ2d 2002 (TTAB 1988) (MACHO COMBO likely to cause confusion with registered MACHO mark); In re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE similar to CREST CAREER IMAGES). The non-descriptive CYCLONE included in each mark is identical and the disclaimed descriptive portion of Applicant’s mark, i.e., FRAC HEAD, would not signal to potential purchasers that its goods emanate from or are associated with a different source than the cited Registrant’s goods. Accordingly, the marks as a whole are highly similar in sound, appearance, connotation and commercial impression. B. Similarity of the Goods The second du Pont factor expressly mandates consideration of the similarity or dissimilarity of the goods identified in an application or registration. In re Dixie Restaurants Inc., 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). Applicant’s goods are Serial No. 86459375 - 6 - “metal hydraulic fracturing heads used on oil and gas wells” in Class 6 while Registrant’s goods are “equipment to grip and rotate tubulars on an oil and gas well drilling rig” in Class 7. While Applicant notes that its goods and Registrant’s goods are in separate classes, “it is well recognized that the system of dividing goods into classes is purely a manner of convenience and that a determination on the question of likelihood of confusion cannot be restricted by the artificial boundary created by classification.” In re Vic Boff Health and Fitness Aides, Inc., 189 USPQ 357, 358 (TTAB 1975); see also Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1960 n.19 (TTAB 2008); In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (“The fact that goods are found in different classes has no bearing on the question of likelihood of confusion.”). Applicant argues that its goods are “hydraulic fracturing heads used in the production process of oil and gas”5 while Registrant’s goods are machinery used in the drilling of a well. Although conceding that Applicant’s and Registrant’s marks are used within the same industry, Applicant contends the products serve dramatically different functions and are used in vastly different fields within the industry.6 More specifically, Applicant argues that drilling an oil or gas well is completely different than utilizing an existing oil or gas well for secondary or tertiary production using metal hydraulic fracturing heads.7 According to Applicant, hydraulic fracturing 5 Appeal Brief of Applicant (Applicant’s Brief) p. 7 (7 TTABVUE 8). 6 Appeal Brief p. 6 (7 TTABVUE 7). 7 Applicant’s Brief p. 6 (7 TTABVUE 7). See Exhibit A to Request for Reconsideration regarding Wikipedia article entitled “Oil well,” and Exhibit B regarding Wikipedia article entitled “Hydraulic fracturing.” (4 TTABVUE 12-21, 22-48). Serial No. 86459375 - 7 - is a “well-stimulation technique in which rock is fractured by a pressurized liquid. The process involves the high-pressure injection of ‘fracking fluid’…into a wellcore to create cracks in the deep-rock formations through which natural gas, petroleum and brine will flow more freely.”8 It is well established that the goods of the parties need not be similar or competitive, or even offered through the same channels of trade, to support a holding of likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.”). Where the source identifying component of Applicant’s mark CYCLONE FRAC HEAD is identical to Registrant’s CYCLONE mark, there need only be a viable relationship between the goods to find that there is a likelihood of confusion. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (contemporaneous use of identical or nearly identical marks can lead to the assumption that there is a common source “even when [the] goods or services are not competitive or intrinsically related”); In re Thor Tech Inc., 90 USPQ2d 1634, 1636 (TTAB 2009). The issue is not whether purchasers would confuse the parties’ goods, but rather whether there is a likelihood of confusion as to the source of the goods. See, e.g., J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 8 Exhibit B to Request for Reconsideration (4 TTABVUE 23). Serial No. 86459375 - 8 - 1965); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1431 (TTAB 2013); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). Registrant’s drilling rig equipment is utilized in the development of oil and gas wells while Applicant’s hydraulic fracturing heads are used during the later- occurring production process at the wells. According to Applicant, the professionals who dig oil and gas wells are completely different than the professionals who service the existing wells used for secondary or tertiary production as a result of fracking.9 As a result, Applicant contends the respective professional consumers are unlikely to encounter the goods of both Applicant and Registrant at the same time, location or event because the respective goods are used at different times for completely different purposes.10 Thus, Applicant concludes that relevant consumers will not likely believe that Applicant and Registrant are related nor will they encounter marketing or advertising that will give rise to the mistaken belief that the parties’ respective goods originate from or in some way are associated with each other.11 “Fracking takes about two to three days in what is roughly a 10-to 14-day process of drilling and completing a well….Fracking has always been a part of drilling.”12 9 While the “professionals working to dig an oil and gas well” and the “professionals who service oil and gas wells used for secondary or tertiary production” respectively use Registrant’s and Applicant’s products, there is nothing that identifies the purchasers of Applicant’s and Registrant’s products. 10 Applicant’s Brief p. 6 (7 TTABVUE 7). 11 Applicant’s Brief pp. 6-7 (7 TTABVUE 7-8). 12 September 17, 2015 Office Action pp. 14-15, “Fracking 101: Breaking down the most important part of today’s oil gas drilling,” published in The Tribune serving Greeley and Weld County, CO on January 5, 2014, http://www.greeleytribune.com/news/9558384- 113/drilling-oil-equipment-wellbore 9/16/2015. Serial No. 86459375 - 9 - Indeed, fracking products are offered for sale by some companies that also sell “Drilling equipment.”13 While the professionals who dig the wells and those that service the secondary or tertiary production may be different, the general contractors, i.e., those responsible for the development and operation of the wells, will influence the purchasing decisions of subcontractors who actually perform the work or are the ultimate consumers for both Applicant’s and Registrant’s goods. These individuals will encounter the CYCLONE mark on Registrant’s drilling machinery and later encounter Applicant’s CYCLONE FRAC HEAD mark on Applicant’s frac heads used at the same wells, and likely believe they come from the same source. “[G]oods that are neither used together nor related to one another in kind may still ‘be related in the mind of the consuming public as to the origin of the goods. It is this sense of relatedness that matters in the likelihood of confusion analysis.’” Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1356 (Fed. Cir. 2004); see also, In re Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1271 (TTAB 2009). It is enough if there is a relationship between them such that persons encountering them under their respective marks are likely to assume that they originate at the same source or that there is some association between their sources. McDonald’s Corp. v. McKinley, 13 USPQ2d 1895, 1898 (TTAB 1989). 13 The Weir Group PLC’s Oil and Gas website advertises Weir Mesa frac heads indicating that it serves the Drilling & well service industry selling both “Well service & stimulation” and “Drilling equipment products,” September 8, 2015 Response to Office Action p. 59. The relationship between fracturing and drilling rigs is also reflected in Exhibit A, article from Wikipedia entitled “Oil well” submitted with Request for Reconsideration after Final Action, which refers readers to “See also” the Hydraulic fracturing entry (4 TTABVUE 20). Serial No. 86459375 - 10 - Moreover, the greater the degree of similarity between Applicant’s mark and the cited mark, the lesser the degree of similarity between the goods that is required to support a finding of likelihood of confusion. In re Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). In cases such as this, where Applicant’s mark encompasses Registrant’s mark and merely adds to it descriptive and disclaimed wording, there need be only a viable relationship between Applicant’s goods and Registrant’s goods. Such a relationship exists in this case where Applicant’s goods and Registrant’s goods are used at the same sites for different phases of oil and gas production. Therefore, we find the second du Pont factor weighs in favor of a finding that the goods are related. C. Whether the Cited Registration is Entitled to a Narrow Scope of Protection Applicant contends that the term CYCLONE by itself is not strong enough to create a common commercial impression such that consumers encountering the cited mark and Applicant’s mark would be confused as to the origin of the goods. Applicant asserts that an assumption of likelihood of confusion is incorrect “in light of the number of ‘CYCLONE’ marks that exist on the United States register and in the marketplace which is indicative of a weak mark that is used to describe numerous Serial No. 86459375 - 11 - goods and services outside of the scope of the goods sold under the cited mark.”14 Applicant submits evidence of the following thirty-seven active Registrations15: Registration No. Mark Int’l Class Goods 65,207 CYCLONE 7 hoists 1032018 Cyclonaire & Design 7 Pneumatic conveyor for particulate material 1484027 CYCLONE 7 Paint mixing and shaking machines 1290713 CYCLONE 7 Power operated electrical conduit benders 2269657 CYCLONE RAKE & Design 7 Motorized lawn and garden equipment, namely power operated rake designed to collect leaves and other debris 2739996 CYCLONE 7 37 Dispensing machinery and parts, namely-beverage dispensing units and liquor dispensing units; and flow control machinery, namely- hydraulic flow control units Installation and repair of dispensing machinery and parts, and flow control machinery 2769855 ROOT CYCLONE 7 Electrical apparatus for cleaning, floors and carpets, namely, vacuum cleaners, electric motors for use in vacuum cleaners, separation apparatus for separating dust 14 Applicant’s Brief p. 7 (7 TTABVUE 8). While Applicant mentions “the number of CYCLONE marks that exist … in the marketplace”, there is no record evidence of marketplace use whatsoever. 15 While Applicant states that the search returned “forty five (45) instances,” Applicant’s Brief p. 8 (7 TTABVUE 9), only thirty-seven active registrations were made of record; see Exhibit A to Applicant’s 9/8/2015 Response to Office Action. Serial No. 86459375 - 12 - and debris from the airflow in vacuum cleaners; parts and fittings for all the aforesaid goods 2902804 CYCLONE 7 Industrial machine parts washers 3064367 Syclone 7 Automotive engine cooling fan 3257712 CYCLONE 7 Robotic swimming pool cleaners 3288209 CYCLONE 7 Machines and machine tools, namely lathers and turning centers 3323384 CYCLONE 7 Hydraulic hammers 3510724 CYCLONE 7 Submersible electric water pumps for groundwater testing 3528544 CYCLONE 7 Electric blenders for domestic use 3549831 SICLONE 7 Power saw blades, namely, power bandsaw blades 3670121 CYCLONE 7 Compressed air blow gun 3678676 CYCLONE 7 8 Bits for power drills, abrasive wheels for power-operated stone and concrete grinders used in the shaping of stone and concrete; abrasive disks for power-operated stone and concrete grinders used in the shaping of stone and concrete; pads and disks for stone and concrete polishing machines Drill bits for hand drills 3741787 Cyclone-Vac 7 Service equipment, namely, mobile mounted vacuum excavation machines for accessing in ground utilities, surface cleaning, valve exercising, pot holing, and locating or performing Serial No. 86459375 - 13 - maintenance on water, waste water, gas, oil and electric utilities 3745159 FILL-AIR CYCLONE 7 Packaging machinery, namely, machinery that converts rolls of plastic film into air-filled cushions for use in packaging 3860828 RECYCLONE 7 Cyclone separators for industrial use; industrial de- dusting apparatus, namely, dust separators for particles, dust, and granular material, centrifugal, cyclone separators for separating solids from combined streams of gases and solids derived from industrial processes, motors or boilers …16 3901502 CYCLONE MASTER 7 Power-operated lift used for lifting and lowering a dump trailer to unload lawn debris and other trailer contents for exclusive use with a power- operated vacuum rake designed to collect leaves and other debris 3901503 CYCLONE MATE 7 Power-operated lift used for lifting and lowering a dump trailer to unload lawn debris and other trailer contents for exclusive use with a power- operated vacuum rake designed to collect leaves and other debris 3925977 Cyclone Pad 7 Loading-unloading machines comprised of an apparatus having a mechanism for attracting and holding an article by use of vacuum…17 16 Registration No. 3860828 also contains goods and services in Classes 11, 37 and 42. 17 The full identification of goods for Registration No. 3925977 includes many unrelated machines. Serial No. 86459375 - 14 - 3927351 CYCLO CUT and Design 7 Rotary cutting tools for cutting metal, namely, plunge mills, end mills, face mills, drill bits, routers, reamers, chamfer mills, flutes and saws used for industrial machinery and sold to industrial distributors of machine tools, tools and accessories to manufacturing plants 4029309 SYCLONE 7 Machinery for building construction, restoration, mold remediation, and abatement of asbestos and lead paint, namely, air suction machines 4136733 CYCLONE 7 Floor maintenance pads for use with machines for stripping, scrubbing, buffing and polishing floors 4223936 Jetspin Cyclone and Design 7 Household vacuum cleaners 4242703 RADIAL ROOT CYCLONE 7 Vacuum cleaners; hand held vacuum cleaners; stick- vacuum cleaners; cordless vacuum cleaners; floor tools, accessories and attachments for vacuum cleaners, namely, suction nozzles 4242704 radial root cyclone & Design 7 Vacuum cleaners; hand held vacuum cleaners; stick- vacuum cleaners; cordless vacuum cleaners; floor tools, accessories and attachments for vacuum cleaners, namely, suction nozzles 4315198 JETSPIN CYCLONE18 7 Vacuum cleaners 4320671 CYCLONE D 7 Floor maintenance pads for use with machines for 18 “Cyclone” is disclaimed. Serial No. 86459375 - 15 - stripping, scrubbing, buffing and polishing floors 4384341 CYCLONE and Design 7 Air-operated power tools, namely, impact wrenches, ratchet wrenches, drills, all for applying cleaning fluids incorporating an oscillating tornado action to clean surfaces such as fabric and hard plastics for automobile use; air powered tools, namely, drills, screwdrivers, saws, all for applying cleaning fluids incorporating an oscillating tornado action to clean surfaces such as fabric and hard plastics for automobile use 4477325 CYCLONE RAKE 7 Motorized lawn and garden equipment, namely, lawn vacuum for clearing debris, power driven vacuum for land and garden usage with accessory bag used to collect and mulch leaves, twigs, grass clippings and other organic debris 4534495 InterCycloneMi xer & Design 7 Liquids and semi-solid materials mixing device for laboratory and factory use, namely, mixing machines 4800488 CYCLONEFOR CE 7 Dish washers; electric mixers for household purposes; electric vacuum cleaner bags; electric vacuum cleaners; electric washing machines for household purposes; Robotic vacuum cleaners 4817404 CYCLONE 7 Compressed air pumps 4994040 cyclonehaus & Design 7 Garbage disposals Serial No. 86459375 - 16 - Applicant argues that the search results are “probative to demonstrate that the term ‘CYCLONE’ has been widely adopted by a number of other users as a goods or service designation, and those terms are not distinctive of the cited mark.” Applicant also argues that evidence of widespread third-party use in a particular field of marks containing a certain shared term is competent to suggest that purchasers have been conditioned to look to the other elements of the marks as a means of distinguishing the source of goods or services in the field.19 The weakness or dilution of a particular mark is only relevant in the context of the number and nature of similar marks in use in the marketplace in connection with similar goods. See Nat’l Cable Tel. Ass’n, Inc. v. Am. Cinema Editors, Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1430 (Fed. Cir. 1991); In re E. I. du Pont de Nemours & Co., 177 USPQ at 567. Evidence of widespread third-party use of similar marks with similar goods “is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection” in that industry or field. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 73 USPQ2d at 1693; see also In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062-63 (Fed. Cir. 2003). Applicant’s evidence consists of third-party registrations for some similar marks for different or unrelated goods and therefore the registrations are entitled to little weight in determining the strength of the term CYCLONE for Registrant’s goods. Key Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 19 Applicant’s Brief p. 8 (7 TTABVUE 9). While Applicant cites In re Broadway Chicken Inc., 38 USPQ2d 1559, 1565-1566 (TTAB 1996) in support of its argument, that case, unlike this one, involved widespread third-party use for similar or identical services. Serial No. 86459375 - 17 - 1972); In re Thor Tech, Inc., 90 USPQ2d at 1639 (third-party registrations found to be of limited value because goods identified in the registrations appeared to be in fields which were far removed from the involved products). Moreover, the cited registrations are “not evidence of what happens in the market place or that customers are familiar with them.” See AMF Inc. v. Am. Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1366 (TTAB 2007). Indeed, Registrant’s mark is the only registration of a similar mark for similar or related goods. Thus, the third-party registrations submitted by Applicant, covering a wide range of non-related goods in Class 7, are insufficient to establish that the wording “cyclone” is weak or diluted for goods in the oil and gas well field. D. Sophistication of Purchasers Applicant contends that the customers of products sold under each mark, individuals engaged in the production of oil versus those engaged in drilling a well, are sophisticated individuals, “working within separate spheres of the niche oil and gas industry.” Due to the level of care used in purchasing Applicant’s goods and Registrant’s goods, Applicant argues it is highly unlikely that these sophisticated customers will be confused as to the source of the goods where Applicant’s and Registrant’s products are not sold to the public and are not subject to impulse purchases. Applicant concludes that this factor weighs heavily toward a finding that Serial No. 86459375 - 18 - there is no likelihood of confusion.20 However, Applicant’s argument is without evidentiary support that the purchasers of Applicant’s and Registrant’s goods are different, and therefore, it does not factor into our decision.21 Nevertheless, it is well-settled that even assuming purchasers of Applicant’s and Registrant’s products are sophisticated or knowledgeable about the various stages of oil and gas wells does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion. See e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014); In re Shell Oil Co., 26 USPQ2d at 1690; In re Cynosure Inc., 90 USPQ2d 1644, 1647 (TTAB 2009) citing Wm. K. Stamets Co. v. The Metal Products Co., 176 USPQ 92, 93 (TTAB 1972) (even technically trained purchasers may be confused when similar marks are used in the same general fields of trade). E. Conclusion Based on the similarities between Applicant’s mark CYCLONE FRAC HEAD and the mark CYCLONE in Registration No. 3779010 which is registered for related goods, there is a likelihood of confusion. 20 Applicant’s Brief pp. 9-10 (7 TTABVUE 10-11). 21 Applicant also argues without support that the “goods of the cited registrant and the Applicant, as well as the items with which those goods will be used are very expensive. The cost of oil and gas rigs can easily exceed millions of dollars. The expensive nature of the implicated goods, and the potential effect these goods may have on a critical piece of very valuable machinery, means that potential customers will exercise the utmost care in choosing the source of these goods.” Applicant’s Brief p. 11 (7 TTABVUE 12). This unsupported statement is not sufficient for us to make a determination on this factor and we consider it neutral in our analysis. Serial No. 86459375 - 19 - Decision: The refusal to register Applicant’s mark CYCLONE FRAC HEAD under § 2(d) is affirmed.