Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 TRIUMPH MACHINERY COMPANY
v.
KENTMASTER MANUFACTURING COMPANY, INC.
January 8, 1987
Hearing: September 30, 1986
Opposition No. 67,818, to application Serial No. 345,695 filed January 15, 1982
Sughrue, Mion, Zinn, Macpeak & Seas for Triumph Machinery Company
Bruce L. Birchard and David H. Hill for Kentmaster Manufacturing Company, Inc.
Before Sams, Allen and Krugman
Members
Member
An application has been filed by Kentmaster Manufacturing Company, Inc. to register the term 'HYDRO-CLIPPER' as a trademark for power operated cattle de-horning shears. [FN1]
Registration has been opposed by Triumph Machinery Company on the ground that applicant's mark so resembles opposer's previously used and registered mark 'HYDRO-CLIPPER' and design in the form depicted below
for a power mower attachment [FN2] as to be likely, when applied to applicant's goods, to cause confusion, mistake or to deceive.
Applicant, in its answer to the opposition, has denied the allegations therein.
The record consists of the pleadings, the file of applicant's application, applicant's answers to certain interrogatories propounded by opposer and relied on by opposer, opposer's answers to certain interrogatories and requests for admission propounded by applicant and relied on by applicant, applicant's answers to certain interrogatories propounded by opposer and relied on by applicant [FN3] and testimony taken on behalf of both parties. Both parties have filed briefs on the case and opposer has filed a reply brief. Both parties were represented at an oral hearing held before this panel.
Opposer's priority in its 'HYDRO-CLIPPER' and design mark has been established by the introduction into evidence of its pleaded registration.
With respect to the marks, while opposer's registered mark includes a design element, the spoken portions of the marks are identical and it is the verbal portion of the mark by which customers would call for and refer to the goods. Moreover, the record shows that opposer, in the advertising and promotion of its goods, uses the term 'HYDRO-CLIPPER' by itself with no design. While applicant argues that opposer's mark is weak, there is no evidence of record of any third-party use of any similar mark and, while we concede that the term suggests a hydraulically powered clipper, we must reject applicant's unsupported weak mark argument. We conclude, then, that the marks are virtually identical and that the only issue to be determined is whether the respective goods are sufficiently related such that use of the virtually identical mark in connection with said goods would be likely to result in confusion as to source or sponsorship, for purposes of Section 2(d) of the Trademark Act.
Turning to the goods, opposer took the testimony of George Murphy, opposer's president from 1979-84 and presently working for Terrain King Corporation d.b.a. The Alamo Group, opposer's parent corporation. Opposer's record shows that it is in the business of manufacturing and selling hydraulically operated mowers. The mower attachment covered by opposer's 'HYDRO-CLIPPER' and design registration is powered by a tractor, loader or similar type power unit and is designed to be used in controlling vegetation. These goods are suitable in any situation where vegetation is to be controlled, including mowing pasture lands, maintenance of grounds, farming, orchards, forestry and the like. It is opposer's testimony that anyone having a need to control vegetation would be a potential customer for the 'HYDRO-CLIPPER' (and design) power mower attachment, including those in the cattle raising industry. Opposer sells its mower attachments to some 2,000 dealers and distributors who sell a variety of agricultural and industrial equipment. For the five year period 1979-84, opposer has enjoyed between $1-2 million per year in sales of 'HYDRO-CLIPPER' products with advertising expenditures for the same period ranging from $21,600 to $47,000. The wholesale price of the 'HYDRO-CLIPPER' product is approximately $3,200 with the retail price averaging approximately $4,000. The product is promoted through advertising brochures and flyers, as well as in trade journals, such as American City and County, Government Product News, Public Works, Rural and Urban Roads and Civil Public Works. In addition, opposer attends a number of trade shows at which the 'HYDRO-CLIPPER' product is promoted, namely the National Association of Counties and the National Association of County Engineers. Opposer's 'HYDRO-CLIPPER' goods are also listed in a number of trade directories, including Implement and Tractor, a directory aimed at dealers and individuals in the agricultural equipment field. Products listed in this directory include cattle chutes, cattle pens, feeder stations and other equipment in the cattle-raising or cattle-feeding industry.
*2 Applicant took the testimony of Ralph Karubian, its president and Michael Alaimo, the editor and publisher of Meat Industry magazine, a trade publication directed to the meat industry. Applicant has shown that it manufactures portable carcass-cutting tools used in slaughterhouses and meat-packing plants. Applicant's testimony is that its market is the meat-packing industry which consists of slaughterhouses where hogs and beef are slaughtered and prepared into sides, and processing plants which take the sides and grind them into different forms of meat. Applicant's 'HYDRO-CLIPPER' machine is a special function power-operated horn shear which dehorns cattle. Applicant's testimony is that the product is designed for high volume slaughterhouses and that only facilities which slaughter at least hundreds of cattle daily would find opposer's product economically feasible to use since applicant's product costs between $4-5,000 each. Applicant's goods are sold directly to slaughterhouses or through distributors and are not intended to be sold to farmers or others in the agricultural industry. Applicant promotes its product through advertising in trade publications directed to the meat industry, namely, Meat Plant, Meat Industry, Meat Processing and The National Provisioner. Applicant also has attended trade shows related to the meat industry. Applicant's testimony further states that the meat-packing industry does not encompass the cattle-raising industry; that it is the ordinary marketing practices of suppliers of equipment to the meat industry to sell directly to the meat industry or through distributors and/or dealers and that dealers and/or distributors of equipment in the meat industry specialize in equipment for that industry and do not handle farm equipment or any other items of equipment related to power mowers or attachments therefor.
While the respective products are completely different pieces of machinery used for totally unrelated purposes, it is opposer's position that the goods, as defined in applicant's application, are sufficiently related to opposer's goods as to result in confusion as to source or sponsorship when said goods are marketed under virtually identical trademarks. Opposer has attempted to establish this relationship by noting that neither applicant's goods nor the goods covered by opposer's registration are restricted in any manner as to channels of trade, customers or advertising. Opposer correctly states the principle in trademark law that, in a proceeding such as this, restrictions as to trade channels and classes of customers will not be inferred where the goods recited in the application and/or the registration are not so restricted. Opposer further contends that while the record shows that, at present, none of applicant's dealers and opposer's dealers overlap, this does not mean that there will never be an overlap or that there are no dealers who sell both power mower attachments and cattle dehorning shears. Opposer points to its approximately 2000 dealers and notes that they are not restricted as to the products they carry with many of them carrying a wide variety of farm, agricultural and vegetation related equipment. Opposer contends that since its power attachment is used for all types of vegetation control, it could be used by slaughterhouses to control any vegetation on the slaughterhouse grounds and could also be of use to farmers, ranchers and cattlemen where these entities, depending on the size of the operator, could also slaughter their own cattle and have a need for a power-operated cattle-dehorning shear.
*3 While it is true that opposer's goods and applicant's goods are not restricted as to channels of trade or classes of customers, this fact does not necessarily warrant a conclusion that the respective goods would be sold to all classes of customers through all channels of trade and advertised in all mediums. Where, as here, there are no such restrictions, the trade channels, classes of customers and advertising can be and must be restricted by the nature of the goods as recited in the application and registration. Since applicant's goods are not otherwise restricted, it must be presumed that they travel through all trade channels suitable for goods of that type. The same is true with respect to opposer's goods as recited in the pleaded registration. The determinative question, then, is whether the ordinary and usual trade channels and classes of customers for the respective goods overlap under circumstances where confusion would be likely for purposes of Section 2(d) of the Act. In this regard, applicant's testimony is persuasive that power-operated cattle-dehorning shears comprise a highly specialized product which, by its very nature, is limited in usefulness to slaughterhouses where large numbers of cattle are slaughtered. Applicant has shown through the testimony of Michael Alaimo that it is not the ordinary marketing practice of dealers and distributors of equipment for the meat industry to handle farm or agricultural equipment. On the contrary, the Alaimo testimony indicates that the ordinary marketing practice of suppliers of equipment to the meat industry is to sell directly to the meat industry or through specialized dealers and distributors of the type referred to above. While opposer attempts to link applicant's goods with farms and ranches where cattle are raised and where, opposer asserts, common purchasers of the respective goods would exist, there is nothing in the record to support opposer's claim that farmers, ranchers and cattlemen slaughter their own cattle or, if they do slaughter their own cattle, do so in such volume that power-operated cattle-dehorning shears are used. We believe that if such a nexus exists, it must be supported by more than speculation. It is our view, therefore, that even construing, as is proper, applicant's description of goods in a manner most favorable to opposer, (See: CTS Corp. v. Cronstoms Manufacturing, Inc., 515 F.2d 780, 185 USPQ 773 (CCPA 1875)), there is no likelihood of confusion from the use of virtually identical marks on these widely disparate products. While the Board concedes there could conceivably be purchaser overlap in that a slaughterhouse might use a power mower to control vegetation on its grounds or that a farmer or rancher might, in certain circumstances, have a need for applicant's goods, it is our belief that the possibility of confusion is a remote one. The Trademark Act, however, does not talk in terms of remote possibilities of confusion but, rather, the likelihood of such confusion's occuring in the marketplace. See: In re Chalet Chocolates, Inc., 212 USPQ 968 (TTAB 1982). We are satisfied in this case that the respective goods, by their very nature, are advertised in different publications, promoted at different trade shows and, in the case of applicant's goods, sold through specialized channels of trade to a specialized class of customer whose need for opposer's product, while possible, is unlikely. While opposer herein was previously successful in opposing registration of the mark HYDRO CUTTER for sugar cane harvesters and pilers, that case is easily distinguishable on its facts. In that case, the Board noted that applicant's harvesters were of such a nature (unlike applicant's goods herein) that the farm equipment dealers selling opposer's goods would be a natural outlet for them and that both goods would be suitable for farms and purchased by the same classes of purchasers.
*4 Finally, opposer has made reference to a third-party hand-held power saw which, opposer asserts, is sold to slaughterhouses and also is sold through retail outlets such as Sears. However, this third-party product, referred to in an exhibit in connection with applicant's answer to an interrogatory propounded by opposer, was never made of record. Moreover, it is unclear what the specific nature of this product is and whether such a product would be encompassed by the recitation of goods in applicant's application.
For the foregoing reasons, we conclude that notwithstanding the virtual identity of the marks, the goods in connection with which the marks are used are sufficiently different that no source confusion is likely.
Decision: The opposition is dismissed.
J. D. Sams
D. B. Allen
G. D. Krugman
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 345,695 filed January 15, 1982.
FN2. Reg. No. 624,943 issued April 10, 1956. Renewed.
FN3. Trademark Rule 2.120(j)(5) provides, in part, that an answer to an interrogatory may be submitted and made part of the record by only the inquiring party except that, if fewer than all of the answers to interrogatories are offered into evidence by the inquiring party, the responding party may introduce under a notice of reliance any other answers to interrogatories which should in fairness be considered so as to make not misleading what was offered by the inquiring party. In the present case, opposer has relied on a number of applicant's answers to opposer's interrogatories and applicant has relied on a number of its own answers to several other interrogatories propounded by opposer. Since opposer has not objected to applicant's reliance on applicant's own answers to these interrogatories, they are considered to be properly of record pursuant to Rule 2.120(j)(5) and have been considered for whatever probative value they have, if any.