Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 STEIGER TRACTOR, INC.
v.
STEINER CORPORATION
May 24, 1984
Petition for Reconsideration
Opposition No. 65,603 to application Serial No. 268,134, filed June 27, 1980.
Opposition No. 65,604 to application Serial No. 268,146, filed June 27, 1980.
Kinney, Lange, Braddock, Westman and Fairbairn, P.A. for Steiger Tractor, Inc.
Mack D. Cook, II for Steiner Corporation
Before Skoler, Allen and Krugman
Members
Opinion by Skoler
Member
Steiger Tractor, Inc., opposer in this case, has requested reconsideration of the Board's decision of January 31, 1984 dismissing its opposition (No. 65,603) to registration of the mark 'STEINER' for machines, namely taper board livestock feeders, feed mixers, wood silage conveyors and snow blowers, in view of opposer's previously registered mark 'STEIGER' for tractors. A response to such request has been filed by applicant.
In a companion case consolidated with Opposition No. 65,603 for purposes of trial and argument, the Board sustained opposer's opposition to registration of 'STEINER' for light utility tractors (No. 65,604). The reconsideration request before us does not involve that ruling. However, in Opposition No. 65,603, the Board majority concluded that considering the cumulative differences between the marks 'STEIGER' and 'STEINER' and between tractors on the one hand and the various items of agricultural equipment for which registration was sought and challenged by opposer, a likelihood of confusion within the meaning of Section 2(d) of the Trademark Act was remote.
Opposer's reconsideration request (i) focuses on the close relationship between its tractors and one of the categories of goods covered by applicant's application, i.e., snowblowers; (ii) brings to the attention of the Board previously uncited authority articulating this tractor/snow attachment relationship [Simplicity Manufacturing Co. v. Lambert Inc., 144 USPQ 226 (TTAB 1964)]; (iii) stresses evidence of record showing that opposer sold tractor attachments under the 'STEIGER' mark for a period in the mid-70's and proposes to do so in the future; and (iv) suggests that typographical errors in the Board's issued opinion in which 'STEIGER' was inadvertently typed for 'STEINER' (and vice versa) offers additional proof that the names are highly similar and likely to cause confusion when affixed to related goods.
Upon reconsideration, the Board is persuaded that opposer's position with respect to likelihood of confusion from contemporaneous use of opposer's mark on tractors and applicant's mark on tractor-mounted equipment such as snowblowers is correct and, accordingly, that Opposition No. 65,603 should be sustained.
As indicated in our initial opinion, it is fundamental that likelihood of confusion in an opposition proceeding be assessed on the basis of goods as they are identified in the applicant's application for registration and in the opposer's pleaded registrations. Paula Payne Products Co. v. Johnson Publishing Company, Inc., 177 USPQ 76, 473 F.2d 901 (CCPA 1973). It is also established that if one category of goods or services listed in an application for registration presents a likelihood of confusion when judged in relation to the goods covered by an opposing mark, even though other non-related or more remotely related goods are also incorporated in the application, the prohibitions of Section 2(d) of the Trademark Act apply and will bar registration without the need to rule on the other listed goods. See Shunk Manufacturing Co. v. Tarrant Manufacturing Co., 137 USPQ 881, 318 F.2d 328 (CCPA 1963).
*2 In this case, the majority remains of the opinion that differences between opposer's tractors and the non-tractor related agricultural equipment recited in applicant's application, cumulatively considered with differences in the 'STEINER' and 'STEIGER' marks, suggest little possibility of consumer confusion. However, the snowblower equipment included in applicant's listing of goods presents another question and, on further assessment, we conclude that it leads us to a different result.
The record establishes without question that 'snowblowers' comprise, or at least include, equipment classifiable and actually employed as tractor attachments. Indeed, the snowblowers manufactured by applicant are tractor-mounted machines designed to be used with tractors-of varied sizes and horsepower ratings, including large tractors with power capacities comparable to those manufactured and sold by opposer (see snowblower flyer, Applicant's Exhibit 1). This being so, it would be natural for the relevant purchasing public for such products to assume that a manufacturer of tractors might also produce tractor accessories such as earth working, cultivating and snow removal attachments (as, indeed, is the case with applicant). The Board had occasion to make that precise point in the Simplicity Manufacturing Company case, supra, when it observed that rotary snow plows and tractors which accommodate snow plow attachments are goods which
. . . are clearly believed to be of such nature and character that, if they were to be sold under the same or similar marks, purchasers might well attribute them to a single producer. [144 USPQ at 228] [FN1]
We have already concluded, in Opposition No. 65,604, that 'STEIGER' and 'STEINER' are marks with sufficient similarities that their use on the same products, i.e., tractors, would raise doubts as to likelihood of confusion resolvable in favor of opposer as a prior registrant. We believe, in light of the foregoing and on further reflection, that a similar conclusion is indicated with respect to opposer's tractors and applicant's tractor-mounted snowblowers. [FN2] In this regard, our decision of January 31, 1984 explicitly noted that of the various goods of applicant involved in Opposition No. 65,603, applicant's snowblowers bore the closest relationship to, and were the least differentiable from, opposer's tractors although in declining to find likelihood of confusion at that time, we did observe that snowblowers as tractor attachments were 'a cut apart from the normal tillage, groundworking, and harvesting attachments associated with opposer's tractors.' While that distinction is a real one, on reconsideration, we do not believe, following the reasoning of the Simplicity Manufacturing Company case that it would obviate a common source association as between tractors and snow removal attachments; moreover, this kind of purchaser impression would exist whether or not opposer actually produced, or planned in the future to produce, a line of snowblower attachments. [FN3]
*3 On close examination, we simply believe that the nature of these equipment goods is such that when confronted with similar marks on them like those now before the Board, buyers--even knowledgeable ones--might well assume a common producer. As we have indicated, the case is a close one and the matter not free from doubt but settled precepts of trademark law require that such doubt be resolved in favor of the prior registrant. [FN4]
Decision:
Applicant's petition for reconsideration is ??Illegible Text?? and Opposition No. 65,603 is sustained.
D. L. Skoler
Members, Trademark Trial and Appeal Board
FN1. The ultimate finding of the Board in this case was no likelihood of confusion based on clear differences in the marks of the parties ('SNO-WONDER' for applicant and 'WONDER BOY' and 'SNO-AWAY' for opposer).
FN2. This same position was urged by the Board member dissenting from the original determination dismissing Opposition No. 65,603 and we now align our own position with his as far as these goods are concerned.
FN3. While the record shows that opposer sold a quantity of groundworking tractor attachments under the 'STEIGER' mark during the period 1965-67 (the exact dates are not clear) and was planning on reentering this field, there was no evidence of recent sales of such or similar accessories, and testimony of applicant's vice president in charge of engineering indicated that, up to the time of trial, the manufacture of snowblowers had never been considered by opposer (Lien testimony, p. 72).
FN4. In making this determination, we have accorded no weight to applicant's argument that erroneous typographical substitution of 'STEIGER' for 'STEINER' in the Board's lengthy typed opinion (corrected in the published version) confirms the high degree of similarity between these marks, even to sophisticated purchasers. We apologize for these errors. However, Board members are neither purchasers nor sophisticated purchasers of the kinds of agricultural and industrial equipment before us; the name references in our opinion have nothing to do with marketplace uses of the marks in issue; and litigants should not, in any event, suffer prejudice by the fact that a final decision has not been properly proofread.
CONCURRING OPINION
G. D. Krugman
Member
I concur with the majority's decision to sustain Opposition No. 65,603 for the reasons stated in my dissent from the original determination dismissing the opposition.