Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE VALU HOME CENTERS, INC.
Serial No. 570,405
February 17, 1988
Lowe, Price, LeBlanc, Becker & Shur for applicant
Trademark Examining Attorney
Law Office 4
(Thomas Lamone, Managing Attorney)
Before Simms, Krugman and Cissel
Opinion by Cissel
Applicant applied to register the mark shown below on the Principal Register for "retail hardware and general merchandise store services." [FN1] Registration was refused
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Under Section 2(d) of the Lanham Act on the grounds that applicant's mark, as used in connection with applicant's services, so resembles the mark "HOME VALUE," which is registered for a variety of hand tools, [FN2] that confusion is likely. Applicant appealed when the refusal was made final. Briefs were filed, but no oral hearing was requested by applicant.
Likelihood of confusion is the sole issue. The position of the Examining Attorney is basically that the goods of registrant are closely related to the services rendered by applicant, and that the dominant portion of applicant's mark is the word combination "VALU HOME," which is merely a transportation of the registered mark, "HOME VALUE," such that the two marks, as used with the respective goods and services of applicant and registrant, would likely be confused.
We disagree. Although the goods of registrant are clearly related to the services of applicant, in that hand tools are sold in hardware stores, the marks are not likely to be confused because they create different commercial impressions. Applicant's mark is a composite of words with a design element. The mere fact that it shares the phonetic equivalent of the word "value" and the word "home" with the registered mark is not enough to create a likelihood of confusion when the marks are considered in their entireties.
The registered mark is "HOME VALUE," with the descriptive word "HOME" disclaimed. Registrant's mark creates a distinct, different impression. The dominant component of applicant's mark is the term "VALU," a misspelling of the suggestive term, "value". The background design of the silhouette of the house cannot be ignored, nor can the words "HOME CENTERS" below the term "VALU". As they are presented in applicant's mark, the words "HOME CENTERS" form a unitary term. Evidence of this is the fact that the Examining Attorney accepted a disclaimer of both words together.
Accordingly, to make the assumption of the Examining Attorney, that applicant's mark is "VALU HOME CENTERS and design", (Brief, p. 1), belies the commercial reality that the mark would be perceived by potential purchasers as identifying "VALU" brand home centers with a design mark comprising the term "VALU" in large letters, each highlighted by a rectangular white background, shown above the unitary, descriptive term "HOME CENTERS", with a suggestive house design serving as the background for all the words. This is not a simple transposition of "HOME VALUE" into "VALU HOME".
Decision: The refusal to register is REVERSED.
R. L. Simms
G. D. Krugman
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. S.N. 570,405, filed Nov. 25, 1985, claiming first use in 1969. The term "HOME CENTERS" is disclaimed apart from the overall mark as shown.
FN2. Reg. No. 1,315,457, issued to Central Hardware Co. on Jan. 22, 1985, for "hand tools--namely, pliers, saw blades, hex keys, hammers, wrenches, crimping tools, pick-up tools, eyelet tools, files, clamp sets, punch and chisel sets, utility knives, twist drills, screwdrivers, wire strippers, spring clamps, putty knives, hacksaws, key hole saws, bolt cutters and mallets, in Class 8;" "measuring tapes and combination squares with rule and level, in Class 9" and "cleaning brushes, in Class 21." The word "HOME" is disclaimed. Use since June 4, 1982 is claimed.