| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
| Input Field |
Entered |
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|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| SERIAL NUMBER | 88581838 | ||||||||||||||||||||
| LAW OFFICE ASSIGNED | LAW OFFICE 103 | ||||||||||||||||||||
| MARK SECTION | |||||||||||||||||||||
| MARK | http://uspto.report/TM/88581838/mark.png | ||||||||||||||||||||
| LITERAL ELEMENT | FULL BOAR | ||||||||||||||||||||
| STANDARD CHARACTERS | YES | ||||||||||||||||||||
| USPTO-GENERATED IMAGE | YES | ||||||||||||||||||||
| MARK STATEMENT | The mark consists of standard characters, without claim to any particular font style, size or color. | ||||||||||||||||||||
| ARGUMENT(S) | |||||||||||||||||||||
|
In response to the Office Action emailed November 17, 2019, reconsideration is respectfully requested in view of the following remarks. REMARKSLikelihood of Confusion The Office Action rejects the class 7 portion of the present application for FULL BOAR for “Bits for power drills; Blades for power saws; Power drill bits; Power saw blades” under §2(d), alleging that there is a likelihood of confusion between the application and co-owned Registrations Nos. 5692651 and 5703601 on FULL BOAR (with and without a design) for “log splitters.” Applicant respectfully submits that the goods are sufficiently different such that there is no likelihood of confusion between the respective marks. Applicant requests that the refusal to register be withdrawn. The Office Action argues that the goods are related, asserting: This evidence shows that the goods and/or services listed therein, namely, log splitters and drill bits and/or power blades or saws, are of a kind that may emanate from a single source under a single mark.
In support, the Office Action cites various third party registrations and websites. Applicant respectfully submits that the evidence does not support the proposed conclusion. To the contrary, “log splitters” are significantly different goods from power drill bits and power saw blades; further each type of product is selected, purchased and used by sophisticated consumers. The Office Action cites twelve records from the USPTO database. Two of those are pending applications (Serial Nos. 77975354 and 86725064) and thus have no probative value. TMEP §710.03. Two registrations (Regs. Nos. 5853850 and 4706077) are based solely on §66(a) and/or §44(e) rather than use in commerce and thus also have no probative value. TMEP §1207.01(d)(iii); In re Ervin Leasing, Inc., 2009 TTAB LEXIS 481 *6 (TTAB June 30, 2009) (“all four of these registrations are based on Section 44 [of] the Trademark Act, and none are based on Section 1(a) use in commerce. Because these registrations are not based on use in commerce they have no probative value in showing the relatedness of the services, and they have not been considered.”); In re Crave, Inc., 2008 TTAB LEXIS 403 *14 n.7 (TTAB Sept. 24, 2008) (“As we have held many times before, registrations without use in commerce dates are not indicative of a common source in the United States of the goods or services identified therein and have no probative value.”) Another three registrations (Regs. Nos. 3545819, 3638157 and 2981962) do not list both types of goods and accordingly also have no probative value. In re W.W. Henry Co., 82 U.S.P.Q.2d 1213, 1215 (T.T.A.B. 2007) (“[U]pon review, we find that none of the registrations appear to include goods of the type listed in applicant’s application and the cited registration. In particular, none of the registrations cover preparations for the repair of polyolefin surfaces. Thus, the third-party registrations are insufficient to show that applicant’s and registrant’s goods are of a type that may emanate from a single source.”) Still another three registrations are house marks, which carry little weight. For instance, Registrations Nos. 5100962, 5025448 and 5304931 claim laundry lists of goods and/or multiple goods in multiple classes. This undermines that any two of the listed goods are naturally related. See, e.g., In re Grumpy Cat Ltd., 2018 TTAB LEXIS 509, *23 (TTAB 2018) (“the three third-party registrations show a variety of diverse goods in this class. These registrations are insufficient to establish relatedness.”); In re Princeton Tectonics, 95 USPQ2D 1509, 1511(TTAB 2010) (“The diversity of the goods identified in this registration diminishes the probative value in establishing that any two items identified in the registration are related.”); In re Gebhard, 2009 TTAB LEXIS 155, *6 n.3 (TTAB 2009) (“We have given no weight to those third-party registrations for marks which are in the nature of house marks, designer marks and merchandising marks, as it is well-recognized that such marks may be used for a wide variety of items, and therefore they are of little value in showing that the goods for which they are registered are all related.”); In re Tomberlin Prod. Group, LLC, 2007 TTAB LEXIS 326 *6 n.1 (TTAB 2007) (“we do not give further consideration to those registrations submitted by the examining attorney that . . . include a ‘laundry list’ of goods and services”). The final two registrations (Reg. Nos. 1823585 and 3872542) are too few in number to support the premise. e.g., In re RAM Oil, Ltd., LLP, 2009 TTAB LEXIS 586 *9 (TTAB Sept, 3, 2009) (non-precedential) (“One third-party registration is not sufficient to prove that [the applicant’s] gasoline and diesel fuel and [the registrant’s] oil and gas production and exploration services emanate from the same source.”); In re The Boler Co., 2009 TTAB LEXIS 220 *14 (TTAB Feb. 17, 2009) (three third-party registrations plus some additional evidence held insufficient). The final two registrations should also carry limited weight at best due to their respective goods. They include log splitters, yet only recite highly specialized saw related goods. For instance, Reg. No. 3872542 recites a tiller accessory so that a gas powered tiller can function as a saw blade, e.g. “gas powered tillers featuring interchangeable attachments so that the machine functions as … a saw blade …” Similarly, Reg. Nos. 1823585 only recites “diamond saw blades for masonry and concrete saws.” These few registrations which recite specialized goods carry limited weight to support a broad assertion that log splitters commonly emanate from the same source as typical power drill bits and power saw blades. With respect to the internet evidence, a few pages are from the website fullboartools.com.au in Australia. As a threshold deficiency, a website in Australia has limited probative value in the US. TMEP §710.01(b). Further, the Office Action appears to juxtapose manually selected individual webpages from different categories of goods. On the Australian website “log splitters” are defined as a sub-category under “Outdoor Power Equipment.” In contrast, the cited page that illustrates saw blades and drill bits is under the category “Accessories.” Notably, the listed accessories cannot be used with any of the equipment listed in the “Outdoor Power Equipment” category but instead are accessories for bandsaws and drills classified under the category of “Workshop.” Finally, the Australian website may be associated with the Registrant’s activities in Australia, but it does not show that Registrant sells the listed accessories in the U.S. and such accessories are not listed in the cited Registration. The cited internet evidence then shows webpages from mass market retailers Lowes, QVC, The Home Depot and Craftsman. Citing websites of mass market retailers is insufficient. “It has long been held that the mere fact that two different items can be found in a supermarket, department store, drugstore or mass merchandiser store is not a sufficient basis for a finding that the goods are related.” Morgan Creek Productions, Inc. v. Foria International, Inc., 91 U.S.P.Q.2d 1134, 1142 (TTAB 2009); Mini Melts, Inc. v. Reckitt Benckiser LLC, 2016 TTAB LEXIS 151, *23 (TTAB April 27, 2016) (“we recognize that the mere fact that disparate products are sold in the same retail outlets does not, standing alone, establish that the goods are related for purposes of determining likelihood of confusion.”). In some instances, the Office Action appears to be manually juxtaposing webpages from different websites to show one product from a brand on one website and to show another product from that brand on another website, e.g. a SUN JOE log splitter on lowes.com juxtaposed with a SUN JOE cordless drill kit on qvc.com, or a CRAFTSMAN log splitter on lowes.com juxtaposed with a CRAFTSMAN circular saw on craftsman.com. This is an incorrect approach. Carl Walther GmbH v. Herriger, 2017 TTAB LEXIS 356, *25 (TTAB 2017) (rejecting “separate webpages from mass-market retailer Walmart” as insufficient “To show relatedness,” citing Morgan Creek). Furthermore, the fact that the webpages had to be manually located and then manually combined to create the suggested comparisons demonstrates that the respective goods are treated as different categories of goods by retailers and consequently perceived as different categories of goods by customers. Accordingly, the manually juxtaposed webpages from different websites do not support a conclusion that the respective goods are related. Still further, both the cited registration and the present application involve sophisticated and complex goods. The goods at issue here are unusual, complex and expensive, from which it can be safely assumed that the relevant purchasers are knowledgeable and careful consumers who exercise a high degree of care.” Edwards Lifesciences Corporation v. VigiLanz Corporation, 94 USPQ2d 1399, 1413 (TTAB 2010) (comparing heart monitors to software to detect possible adverse drug events: “Just based on the products involved in this proceeding, one would expect that all of the purchasers would exercise a high degree of care when making their purchasing decision.”); In re RAM Oil, Ltd., LLP, 2009 TTAB LEXIS 586 *14 (TTAB 2009) (“safely assuming” that potential purchasers of goods and services which “by their very nature are unusual, complex and expensive,” “are knowledgeable and careful consumers who exercise a high degree of care”.) When a high degree of care is exercised, there is a lower risk of any likelihood of confusion. For instance, the internet evidence cited in the Office Action illustrates gas-engine powered hydraulic log-splitters with prices such as US$1,499 and AU$1,849, and a manually cranked hydraulic log splitter for US$215. Corresponding, log splitters are not impulse purchases. Moreover, consumers take significant care in purchasing them. For instance, log splitters apply pressures up to 22 tons of force. Significant training, skill and the use of proper safety precautions are needed to use log splitters correctly. Correspondingly consumers for log splitters are sophisticated. Separate but similar, power drills and power saws are expensive and also require appropriate training, skill and proper safety precautions. Accessories such as power drill bits and blades are not purchased as impulse items. In addition to price, the consumer also needs to understand and must select the proper size, material and style of the drill bits and blades to ensure proper compatibility with the power drill or power saw being used and also that the bit or blade is appropriate for the material and location where it will be used. Correspondingly, customers for power drill bits and blades are also sophisticated and they take significant care in selecting power drill bits and blades for use with their power drills and saws. Finally, Applicant directs the examining attorney’s attention to the following pairs of identical marks owned by different companies which the USPTO has approved to coexist for the respective goods of log splitters and power drill bits[1]:
These illustrate that the USPTO has concluded that identical marks for “log splitters” and “power drill bits” can coexist without a likelihood of confusion. In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1369-70 (TTAB 2009) (“applicants may submit sets of third-party registrations to suggest the opposite, i.e., that the Office has registered the same mark to different parties for the goods at issue.”); In re Thor Tech, Inc., 90 USPQ2d 1634, 16 (TTAB 2009) (“On the other hand, applicant has submitted copies of 13 sets of registrations for the same or similar marks for different types of trailers owned by different entities arguing, in essence, that the third-party registrations serve to suggest that the listed goods are of a type which may emanate from different sources”). Applicant respectfully submits that this is persuasive authority to allow the present application. Conclusion In view of these remarks, Applicant accordingly submits that the mark is in condition for publication and allowance, and action towards such is respectfully requested. If there are any questions with regard to the application or this response, the Examining Attorney is invited to telephone the undersigned to expedite this application. [1] Registration certificates or USPTO records for these are submitted herewith. |
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| EVIDENCE SECTION | |||||||||||||||||||||
| EVIDENCE FILE NAME(S) | |||||||||||||||||||||
| ORIGINAL PDF FILE | evi_206532382-20191212142250988500_._FULL_BOAR_Exhibit.pdf | ||||||||||||||||||||
| CONVERTED PDF FILE(S) (5 pages) |
\\TICRS\EXPORT17\IMAGEOUT17\885\818\88581838\xml4\ROA0002.JPG | ||||||||||||||||||||
| \\TICRS\EXPORT17\IMAGEOUT17\885\818\88581838\xml4\ROA0003.JPG | |||||||||||||||||||||
| \\TICRS\EXPORT17\IMAGEOUT17\885\818\88581838\xml4\ROA0004.JPG | |||||||||||||||||||||
| \\TICRS\EXPORT17\IMAGEOUT17\885\818\88581838\xml4\ROA0005.JPG | |||||||||||||||||||||
| \\TICRS\EXPORT17\IMAGEOUT17\885\818\88581838\xml4\ROA0006.JPG | |||||||||||||||||||||
| DESCRIPTION OF EVIDENCE FILE | Registration certificates & USPTO records | ||||||||||||||||||||
| SIGNATURE SECTION | |||||||||||||||||||||
| RESPONSE SIGNATURE | /Charles J. Meyer/ | ||||||||||||||||||||
| SIGNATORY'S NAME | Charles J. Meyer | ||||||||||||||||||||
| SIGNATORY'S POSITION | Attorney of Record, Indiana Bar Member | ||||||||||||||||||||
| SIGNATORY'S PHONE NUMBER | (317) 634-3456 | ||||||||||||||||||||
| DATE SIGNED | 12/12/2019 | ||||||||||||||||||||
| AUTHORIZED SIGNATORY | YES | ||||||||||||||||||||
| FILING INFORMATION SECTION | |||||||||||||||||||||
| SUBMIT DATE | Thu Dec 12 14:28:46 EST 2019 | ||||||||||||||||||||
| TEAS STAMP | USPTO/ROA-XXX.XX.XXX.X-20 191212142846518278-885818 38-7008a8d627fe11def6599f 7f61f87036a6d865f3dbc96dc 6f98d1354a5e7b33d-N/A-N/A -20191212142250988500 |
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| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
In response to the Office Action emailed November 17, 2019, reconsideration is respectfully requested in view of the following remarks.
Likelihood of Confusion
The Office Action rejects the class 7 portion of the present application for FULL BOAR for “Bits for power drills; Blades for power saws; Power drill bits; Power saw blades” under §2(d), alleging that there is a likelihood of confusion between the application and co-owned Registrations Nos. 5692651 and 5703601 on FULL BOAR (with and without a design) for “log splitters.” Applicant respectfully submits that the goods are sufficiently different such that there is no likelihood of confusion between the respective marks. Applicant requests that the refusal to register be withdrawn.
The Office Action argues that the goods are related, asserting:
This evidence shows that the goods and/or services listed therein, namely, log splitters and drill bits and/or power blades or saws, are of a kind that
may emanate from a single source under a single mark.
In support, the Office Action cites various third party registrations and websites. Applicant respectfully submits that the evidence does not support the proposed conclusion. To the contrary, “log splitters” are significantly different goods from power drill bits and power saw blades; further each type of product is selected, purchased and used by sophisticated consumers.
The Office Action cites twelve records from the USPTO database. Two of those are pending applications (Serial Nos. 77975354 and 86725064) and thus have no probative value. TMEP §710.03.
Two registrations (Regs. Nos. 5853850 and 4706077) are based solely on §66(a) and/or §44(e) rather than use in commerce and thus also have no probative value. TMEP §1207.01(d)(iii); In re Ervin Leasing, Inc., 2009 TTAB LEXIS 481 *6 (TTAB June 30, 2009) (“all four of these registrations are based on Section 44 [of] the Trademark Act, and none are based on Section 1(a) use in commerce. Because these registrations are not based on use in commerce they have no probative value in showing the relatedness of the services, and they have not been considered.”); In re Crave, Inc., 2008 TTAB LEXIS 403 *14 n.7 (TTAB Sept. 24, 2008) (“As we have held many times before, registrations without use in commerce dates are not indicative of a common source in the United States of the goods or services identified therein and have no probative value.”)
Another three registrations (Regs. Nos. 3545819, 3638157 and 2981962) do not list both types of goods and accordingly also have no probative value. In re W.W. Henry Co., 82 U.S.P.Q.2d 1213, 1215 (T.T.A.B. 2007) (“[U]pon review, we find that none of the registrations appear to include goods of the type listed in applicant’s application and the cited registration. In particular, none of the registrations cover preparations for the repair of polyolefin surfaces. Thus, the third-party registrations are insufficient to show that applicant’s and registrant’s goods are of a type that may emanate from a single source.”)
Still another three registrations are house marks, which carry little weight. For instance, Registrations Nos. 5100962, 5025448 and 5304931 claim laundry lists of goods and/or multiple goods in multiple classes. This undermines that any two of the listed goods are naturally related. See, e.g., In re Grumpy Cat Ltd., 2018 TTAB LEXIS 509, *23 (TTAB 2018) (“the three third-party registrations show a variety of diverse goods in this class. These registrations are insufficient to establish relatedness.”); In re Princeton Tectonics, 95 USPQ2D 1509, 1511(TTAB 2010) (“The diversity of the goods identified in this registration diminishes the probative value in establishing that any two items identified in the registration are related.”); In re Gebhard, 2009 TTAB LEXIS 155, *6 n.3 (TTAB 2009) (“We have given no weight to those third-party registrations for marks which are in the nature of house marks, designer marks and merchandising marks, as it is well-recognized that such marks may be used for a wide variety of items, and therefore they are of little value in showing that the goods for which they are registered are all related.”); In re Tomberlin Prod. Group, LLC, 2007 TTAB LEXIS 326 *6 n.1 (TTAB 2007) (“we do not give further consideration to those registrations submitted by the examining attorney that . . . include a ‘laundry list’ of goods and services”).
The final two registrations (Reg. Nos. 1823585 and 3872542) are too few in number to support the premise. e.g., In re RAM Oil, Ltd., LLP, 2009 TTAB LEXIS 586 *9 (TTAB Sept, 3, 2009) (non-precedential) (“One third-party registration is not sufficient to prove that [the
applicant’s] gasoline and diesel fuel and [the registrant’s] oil and gas production and exploration services emanate from the same source.”); In re The Boler Co., 2009 TTAB LEXIS 220 *14 (TTAB Feb. 17, 2009) (three third-party registrations plus some additional evidence held insufficient).
The final two registrations should also carry limited weight at best due to their respective goods. They include log splitters, yet only recite highly specialized saw related goods. For instance, Reg. No. 3872542 recites a tiller accessory so that a gas powered tiller can function as a saw blade, e.g. “gas powered tillers featuring interchangeable attachments so that the machine functions as … a saw blade …” Similarly, Reg. Nos. 1823585 only recites “diamond saw blades for masonry and concrete saws.” These few registrations which recite specialized goods carry limited weight to support a broad assertion that log splitters commonly emanate from the same source as typical power drill bits and power saw blades.
With respect to the internet evidence, a few pages are from the website fullboartools.com.au in Australia. As a threshold deficiency, a website in Australia has limited probative value in the US. TMEP §710.01(b). Further, the Office Action appears to juxtapose manually selected individual webpages from different categories of goods. On the Australian website “log splitters” are defined as a sub-category under “Outdoor Power Equipment.” In contrast, the cited page that illustrates saw blades and drill bits is under the category “Accessories.” Notably, the listed accessories cannot be used with any of the equipment listed in the “Outdoor Power Equipment” category but instead are accessories for bandsaws and drills classified under the category of “Workshop.” Finally, the Australian website may be associated with the Registrant’s activities in Australia, but it does not show that Registrant sells the listed accessories in the U.S. and such accessories are not listed in the cited Registration.
The cited internet evidence then shows webpages from mass market retailers Lowes, QVC, The Home Depot and Craftsman. Citing websites of mass market retailers is insufficient. “It has long been held that the mere fact that two different items can be found in a supermarket, department store, drugstore or mass merchandiser store is not a sufficient basis for a finding that the goods are related.” Morgan Creek Productions, Inc. v. Foria International, Inc., 91 U.S.P.Q.2d 1134, 1142 (TTAB 2009); Mini Melts, Inc. v. Reckitt Benckiser LLC, 2016 TTAB LEXIS 151, *23 (TTAB April 27, 2016) (“we recognize that the mere fact that disparate products are sold in the same retail outlets does not, standing alone, establish that the goods are related for purposes of determining likelihood of confusion.”).
In some instances, the Office Action appears to be manually juxtaposing webpages from different websites to show one product from a brand on one website and to show another product from that brand on another website, e.g. a SUN JOE log splitter on lowes.com juxtaposed with a SUN JOE cordless drill kit on qvc.com, or a CRAFTSMAN log splitter on lowes.com juxtaposed with a CRAFTSMAN circular saw on craftsman.com. This is an incorrect approach. Carl Walther GmbH v. Herriger, 2017 TTAB LEXIS 356, *25 (TTAB 2017) (rejecting “separate webpages from mass-market retailer Walmart” as insufficient “To show relatedness,” citing Morgan Creek). Furthermore, the fact that the webpages had to be manually located and then manually combined to create the suggested comparisons demonstrates that the respective goods are treated as different categories of goods by retailers and consequently perceived as different categories of goods by customers. Accordingly, the manually juxtaposed webpages from different websites do not support a conclusion that the respective goods are related.
Still further, both the cited registration and the present application involve sophisticated and complex goods. The goods at issue here are unusual, complex and expensive, from which it can be safely assumed that the relevant purchasers are knowledgeable and careful consumers who exercise a high degree of care.” Edwards Lifesciences Corporation v. VigiLanz Corporation, 94 USPQ2d 1399, 1413 (TTAB 2010) (comparing heart monitors to software to detect possible adverse drug events: “Just based on the products involved in this proceeding, one would expect that all of the purchasers would exercise a high degree of care when making their purchasing decision.”); In re RAM Oil, Ltd., LLP, 2009 TTAB LEXIS 586 *14 (TTAB 2009) (“safely assuming” that potential purchasers of goods and services which “by their very nature are unusual, complex and expensive,” “are knowledgeable and careful consumers who exercise a high degree of care”.) When a high degree of care is exercised, there is a lower risk of any likelihood of confusion.
For instance, the internet evidence cited in the Office Action illustrates gas-engine powered hydraulic log-splitters with prices such as US$1,499 and AU$1,849, and a manually cranked hydraulic log splitter for US$215. Corresponding, log splitters are not impulse purchases. Moreover, consumers take significant care in purchasing them. For instance, log splitters apply pressures up to 22 tons of force. Significant training, skill and the use of proper safety precautions are needed to use log splitters correctly. Correspondingly consumers for log splitters are sophisticated.
Separate but similar, power drills and power saws are expensive and also require appropriate training, skill and proper safety precautions. Accessories such as power drill bits and blades are not purchased as impulse items. In addition to price, the consumer also needs to understand and must select the proper size, material and style of the drill bits and blades to ensure proper compatibility with the power drill or power saw being used and also that the bit or blade is appropriate for the material and location where it will be used. Correspondingly, customers for power drill bits and blades are also sophisticated and they take significant care in selecting power drill bits and blades for use with their power drills and saws.
Finally, Applicant directs the examining attorney’s attention to the following pairs of identical marks owned by different companies which the USPTO has approved to coexist for the respective goods of log splitters and power drill bits[1]:
|
TM/AN/RN |
Status/Key Dates |
Full Goods/Services |
Owner |
|
MISSION |
Renewed February 17, 2006 |
(Int'l Class: 07) |
Sandvik Mining and Construction Usa, LLC (Corp.) |
|
MISSION
|
Registered June 7, 2016
|
(Int'l Class: 07) |
Positec Group Limited (China Corp.)
|
|
TITAN
|
Registered; 8 & 15 January 5, 2017 |
(Int'l Class: 07) |
Star Asia U.S.A., LLC (Washington Limited Liability Company) |
|
TITAN
|
Published October 8, 2019
|
(Int'l Class: 07) |
Titan Manufacturing and Distributing, Inc., Aka Titan Distributors, Inc. (Tennessee Corp.)
|
These illustrate that the USPTO has concluded that identical marks for “log splitters” and “power drill bits” can coexist without a likelihood of confusion. In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1369-70 (TTAB 2009) (“applicants may submit sets of third-party registrations to suggest the opposite, i.e., that the Office has registered the same mark to different parties for the goods at issue.”); In re Thor Tech, Inc., 90 USPQ2d 1634, 16 (TTAB 2009) (“On the other hand, applicant has submitted copies of 13 sets of registrations for the same or similar marks for different types of trailers owned by different entities arguing, in essence, that the third-party registrations serve to suggest that the listed goods are of a type which may emanate from different sources”). Applicant respectfully submits that this is persuasive authority to allow the present application.
Conclusion
In view of these remarks, Applicant accordingly submits that the mark is in condition for publication and allowance, and action towards such is respectfully requested. If there are any questions with regard to the application or this response, the Examining Attorney is invited to telephone the undersigned to expedite this application.
[1] Registration certificates or USPTO records for these are submitted herewith.
