Cement and Polyolefin Patches Unrelated for Likelihood of Confusion

In In re The W.W. Henry Co., L.P., Serial No. 78401595 (January 19, 2007), the U.S. Trademark Trial and Appeal Board held that applicant's mark PATCH & GO in connection with "portland cement based patch for use in patching, repairing or smoothing wall and floor surfaces," was not confusingly similar to the registered mark PATCH N' GO for "chemical filler preparations for use in the cosmetic repair of polyolefin surfaces."



The applicant argued that the respective goods are not related because they are used to repair different types of surfaces, and travel in different channels of trade to different classes of purchasers. In support of its position, applicant submitted Internet printouts from the cited registrant’s homepage which show that plastic manufacturers mold or form polyolefin products and that the cited registrant’s particular product is used by such manufacturers for the cosmetic repair of poorly molded or damaged polyolefin plastic parts. Further, applicant submitted information that describes its own product as, inter alia:

-Versatile - use over wood, concrete, plaster, block wall, masonry, brick, drywall, paneling, ceramic tile, metal & stucco
-Indoor & Outdoor Usage – for almost any surface.

According to Administrative Law Judge Hairston:

Appllicant maintains that its product is not for use by plastic manufacturers, but rather by do-it-yourselfers, handymen, and contractors. It is true that applicant’s goods, as identified, include a Portland cement based patch for use in repairing wall and floor surfaces, while the cited registration covers a chemical filler for use in the cosmetic repair of polyolefin surfaces, and therefore they can both be broadly described as preparations for repairing surfaces. However, to demonstrate that goods are related, it is not sufficient that a particular term may be found which may broadly describe the goods. See General Electric Co. v. Graham Magnetics Inc., 197 USPQ 690 (TTAB 1977); Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ 517 (TTAB 1975).

When we examine the specific items in the identifications, they do not appear to be related in a manner that would be likely to cause confusion. Applicant’s application is for a Portland cement based patch for use in patching, repairing or smoothing wall and floor surfaces, namely, wood, drywall, plaster, concrete, block wall, tile and wood paneling prior to painting or wallpapering. This is the type of product that would be offered to do-it-yourselfers, handymen, and contractors through hardware and home improvement stores. On the other hand, the chemical filler preparations
identified in the cited registration are specifically limited to use in the cosmetic repair of “polyolefin surfaces.” Applicant has submitted extrinsic evidence which shows that polyolefin products are molded by plastic manufacturers and that its goods are used by such manufacturers. See, In re Trackmobile, Inc., 15 USPQ2d 1152 (TTAB 1990) [when the Board is somewhat uncertain as to what the goods identified in the registration are, it is appropriate to consider extrinsic evidence to determine the nature of the registrant’s particular goods]. Additionally, we take judicial notice of the following definition of the word "polyolefin" in The Random House Dictionary of
the English Language (2d ed. 1987): any of a group of thermoplastic, stiff, light, and hard polymers obtained from the polymerization of simple olefins like propylene, used for injection molding, mostly in the automotive and appliance industries.”

In view of the above evidence, we cannot accept the examining attorney’s unsupported conclusion that the registrant’s goods are of a type that would be purchased by do-it-yourselfers, handymen, and contractors for use inside or outside a home. Rather, it appears that registrant’s goods are of a type used by plastic manufacturers. It seems to us that, because of the nature of the respective goods, they would be offered to different classes of purchasers through different channels of trade. As such, it is unlikely that there would be any opportunity for confusion to occur. See Electronic Design & Sales Inc. v. Electronic Data Systems Corp., 954 F.2d 713, 21 USPQ2d 1388 (Fed. Cir. 1992).