IN RE BROTHER MAX LTD., 77758207 (TTAB 3-21-2011)
Serial No. 77758207United States Patent and Trademark OfficeTrademark Trial and Appeal Board
Mailed: March 21, 2011Page 1
Jonathan Morris Gold for Brother Max Limited.
Cynthia Tripi, Trademark Examining Attorney, Law Office 105 (Thomas G. Howell, Managing Attorney).
Before Bucher, Kuhlke and Cataldo, Administrative Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Brother Max Limited seeks registration on the Principal Register of the mark SCOOP (in standard characterformat) for goods identified as “high chairs for babies and infants; cushions for high chairs for babies and infants” in International Class 20.[fn1]
The Trademark Examining Attorney issued a final refusal to register this designation based upon Section 2(d) of the Trademark Act, 15 U.S.C. ? 1052(d). She has taken thePage 2
position that applicant’s mark, when used in connection with the identified goods, so resembles the following mark:
registered for
“bed and bath products, namely; blankets, bed sheets, pillow cases, duvet covers, shams, bath linen, washcloths and towels” in International Class 24;[fn2] and
“furniture and bed pillows” in International Class 20,[fn3]
as to be likely to cause confusion, to cause mistake or to deceive.
After the Trademark Examining Attorney made the refusal final, applicant appealed to this Board. The Trademark Examining Attorney and applicant have briefed the issues in this appeal. We affirm the refusal to register.
In urging registrability, applicant argues: that the cited mark contains a “graphic element,” which appears to bePage 3
a substantial part of the mark; that the record shows that its goods are narrowly defined inasmuch as they relate only to goods for a particular use, namely for use with babies and infants, while the earlier cited registrations recite goods in the nature of general furnishings; that consumers of applicant’s type of products are more demanding of safety, etc., than is the average consumer; that these customers prefer those establishments that specialize in products for infants and babies; and finally in its reply brief, applicant argues that registrant’s identification of goods in the `610 registration (e.g., “furniture and bed pillows”) is ambiguous, and in fairness, should have been interpreted as if it were “furniture pillows” and “bed pillows” rather than furniture and pillows, as the Trademark Examining Attorney interpreted it.
By contrast, the Trademark Examining Attorney contends that the marks are similar, the goods are related and will move through similar channels of trade.
As we turn to a consideration of likelihood of confusion, our determination 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. duPont de Nemours Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). The legal briefs filed herein confirm that in this case, thePage 4
two key considerations in our likelihood of confusion analysis are the similarities between the marks and the relationship between the goods. Federated Foods, Inc. v.Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first 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 MaisonFondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). The literal portions of the two marks are identical, and applicant does not contend otherwise.
Applicant’s only argument as to the differences in the two marks is that the cited mark contains a graphic element, which comprises a substantial portion of the mark.
However, the Trademark Examining Attorney correctly notes that the “graphic element” in registrant’s marks is a simple, oval-shaped carrier device. She has demonstrated the common usage of concentric ovals as carriers for composite marks for similar goods. We have printed out a dozen of more than twenty representative third-party marks that were the subject of the registrations she proffered:Page 5
Hence, we agree that registrant’s concentric oval carrier device is largely devoid of source-indicating significance, and the marks are nearly identical in sound, meaning and commercial impression, and that this factor weighs heavily in favor of a finding of likelihood of confusion.
When the marks are essentially identical, as noted above, the relationship between the involved goods need not be as close to support a holding of likelihood of confusion as might apply where more significant differences exist between the marks.In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001);In re Melville Corp., 18 USPQ2d 1386, 1387 (TTAB 1991); In re Concordia International Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983); and Amcor, Inc. v. AmcorIndus., Inc., 210 USPQ 70, 78 (TTAB 1981).
According to applicant, registrant’s goods are limited to a separate “general furnishings market” while applicant’sPage 6
goods are limited to a specialized “babies and infants market.” However, the respective identifications of goods are not so restricted. Furthermore, the evidence of record does not support this conclusion. Rather, the website evidence shows that department stores and retailers of general home furnishings in the United States carry bed and bath products, including pillows, pillow cases and specialty cushions, as well as high chairs. Conversely, specialty outlets selling products for babies and infants carry not only high chairs and cushions for high chairs, but also other furnishings, bedding and bath products.
The following third-party registrations have probative value to the extent that they serve to suggest that the goods listed therein are of a kind that may emanate from a single source under the same trademark:
for, inter alia, ” ? high chairs
for, inter alia, “children’s
for, inter alia, “high chairs,
for, inter alia, “furniture for
for, inter alia, “furniture, nursery
for, inter alia, “furniture, nurseryFor the first time in its reply brief, applicant put forward an entirely new argument, attempting to minimize the value of the showing of the Trademark Examining Attorney throughout the prosecution of this application as to the relationship of the respective goods. Specifically, applicant argued that the identification of goods in thePage 9
cited Registration No. 3117610 (“furniture and bed pillows”) is unclear and ambiguous, inasmuch as it could be read as “furniture pillows” and “bed pillows.”
However, we believe the correct reading of “furniture and bed pillows” is the one chosen by the Trademark Examining Attorney, namely, “furniture” and “bed pillows.” Consistent with this interpretation, the Trademark Examining Attorney used dictionary definitions to show that the term “furniture” encompasses “high chairs.” Moreover, she repeatedly chose third-party registrations and websites showing that items of “furniture” that applicant acknowledges are prevalent in the “general furnishings market” (e.g., gliders, ottomans, dressers, easy chairs, etc.) are otherwise related to high chairs. Indeed, the evidence showing the relationship of furniture generally to high chairs is quite strong.
Nonetheless, even if we were to accept applicant’s belated interpretation of registrant’s International Class 20 goods, the third-party registrations (reviewed above) and websites placed into the record by the Trademark Examining Attorney demonstrate a relationship between registrant’s and applicant’s “soft furnishings” close enough to support a finding of likelihood of confusion on the facts of this case.Page 10
As to specific evidence of the relationship between bedding and bath products and similar types of soft furnishings marketed by registrant, and applicant’s listed goods, the Trademark Examining Attorney has provided excerpts from web pages showing that these respective goods are commonly sold under the same marks and/or marketed through the same channels of trade:
[fn9][fn10]
[fn11]
[fn12]
[fn13]Page 11
In support of its interpretation of registrant’s goods, applicant suggests in its reply brief that the Office might find value in visiting 
registrant’s website, alleged at www.scoopnyc.com. Inasmuch as applicant submitted this new material for the first time with its reply brief, it is untimely and we have given it no consideration. See 37 C.F.R. ? 2.142(d); In reFitch IBCA Inc., 64 USPQ2d 1058, 1059 n2 (TTAB 2002). Clearly, the Trademark Examining Attorney had no opportunity to rebut this new evidence of limited probative value.Cf. In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB 2007).[fn14]
Finally, as to the alleged level of care with which consumers will pursue these goods, we find nothing in the record to support applicant’s argument that parents in search of high chairs or cushions for high chairs will go to extraordinary efforts in their selection process in order to ensure “safety” for a child. In other words, the record inPage 12
this case does not support a finding that the purchasers of applicant’s goods will exercise a degree of care greater than the typical care parents would display when purchasing any other goods for their children.
In conclusion, we find that the marks are nearly identical, the goods are related and, at least in the case of some retailers, will move through the same channels of trade to the same classes of ordinary consumers.
Decision: The refusal to register under Section 2(d) of the Act is hereby affirmed.
[fn1] Application Serial No. 77758207 was filed on June 12, 2009 seeking registration under Trademark Act Section 44(e),15 U.S.C. ? 1051(e), based upon U.K. Registration No. 2495995. [fn2] Registration No. 2912562 issued on December 21, 2004. [fn3] Registration No. 3117610 issued on July 18, 2006. [fn4] Registration No. 1658849 issued on October 1, 1991; renewed. [fn5] Registration No. 2908910 issued on December 7, 2004. [fn6] Registration No. 3346003 issued on November 27, 2007. [fn7] Registration No. 3652596 issued on July 7, 2009. [fn8] Registration No. 3655861 issued on July 14, 2009. [fn9] www.buybuybaby.com [fn10] http://www.toysrus.com [fn11] www.ikea.com [fn12] http://www.ababy.com/ [fn13] www.allmodernbaby.com [fn14] We hasten to add that even if information from this website had been proffered earlier in the prosecution of this application, and the owner of this enterprise had been demonstrated to be registrant’s alter ego, it flies in the face of our trademark statute and rules to permit applicant to use extrinsic evidence to narrow or alter the scope of registrant’s listed goods.