In a likelihood of confusion analysis under Section 2(d), two key considerations are the similarities between the marks and the relatedness of the goods. See In re Chatam Int'l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”).

MEGACLEAN for Concrete, Not Clothing

In an appeal of a Section 2(d) refusal of the MEGACLEAN mark for “cleaner for use on concrete and specialty concrete” in view of a prior registration for the REJUVENATE MEGACLEAN mark for “laundry pre-treater and stain/spot remover for fabrics, clothing, and carpet”; the Trademark Trial and Appeal Board (“TTAB”) found a likelihood of confusion and affirmed the refusal. In re S3 Concrete Technologies, Inc., Ser. No. 90156396 (TTAB Sept. 1, 2022).

Cleaning Marks

Although the initial term, REJUVENATE, from the registered mark, was missing from the applied-for mark, the TTAB found that “the two marks remain very close.” The TTAB acknowledged that the terms “rejuvenate” and “megaclean,” have different meanings, but each was nonetheless “highly suggestive of a cleaning quality.” Both marks impart the connotation that the cleaning products are effective and accomplish a great deal of cleaning, with Registrant's REJUVENATE MEGACLEAN further imparting the added suggested benefit of restoring what is being cleaned to its original state.

The TTAB further noted that consumers are likely to perceive the applied-for mark, MEGACLEAN, as merely a truncated version of the registered mark and denoting a related cleaning product line. See, e.g., Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks may believe that applicant's mark is a variation of opposer's mark that opposer has adopted for use on a different product.”); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (VANTAGE TITAN “more likely to be considered another product from the previously anonymous source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices”).

The TTAB also pointed out that “there is no evidence of others using the term MEGACLEAN, either as part of a mark or otherwise, or registered in connection with cleaning products.”

With no demonstrated commercial weakness, the TTAB found the marks to be “more similar than not and the first DuPont factor therefore weighs in favor of finding a likelihood of confusion.”

The Relatedness of the Goods and Channels of Trade

As for the relatedness of the goods, the TTAB found that “[t]he goods can generally be classified as cleaning products, but with different applications—one for concrete and specialty concrete and the other for fabrics, clothing and carpet.”

Of record was “Internet evidence showing several different manufacturers of products for cleaning concrete or outdoor floor surfaces as well as products for removing stains on fabrics, clothing or carpet.” In addition to demonstrating that others use a single mark for the same types of cleaning goods, the evidence also showed that the goods may be sold in the same trade channels, like The Home Depot store, or encountered by consumers on the websites of the manufacturers. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203-04 (internet evidence shows overlapping trade channels).

The TTAB concluded that “the involved goods are related and may be offered in the same channels of trade,” so the second and third DuPont factors weighed in favor of finding a likelihood of confusion.

Alleged Sophistication of Consumers

The Applicant argued that its goods are “specialty products for use in building and construction activities by persons sophisticated in such activities,” while Registrant's goods were laundry pretreatments.

The TTAB, however, the applied-for goods were described as, in part, “cleaner for use on concrete,” and was not limited to marketing to any particular field of use or class of clientele.

As the record demonstrates, concrete cleaners may be marketed in The Home Depot and can be used on driveways or patios, in which case, the intended purchaser is the general homeowning public. Similarly, Registrant's goods are for anyone in the general public seeking to clean clothing, carpet or fabrics. This is the same class of consumers, who would exercise a normal level of care in their purchasing decisions.

Although the goods were described in the application and registration as cleaners for very different products (concrete on one hand; and fabrics, clothing, and carpet on the other), extrinsic evidence showing that the class of consumers, the homeowning public, would be the same for both, was used to neutralize this difference.

The TTAB ultimately concluded that the fourth DuPont factor was neutral.

Finding that no factor weighs in favor of finding confusion unlikely, the TTAB affirmed the refusal to register under Section 2(d).

Comment

On May 19, 2022, S3 Concrete Technologies, Inc. filed a new trademark application for the MEGACLEAN mark with a more specific description of the cleaning goods that did not include general household use, namely, “Cleaner for use on concrete and specialty concrete for commercial, industrial, and institutional use.” The new application had not yet been examined when the TTAB issued its decision on the prior MEGACLEAN application. Perhaps evidence of third-party uses of “megaclean”-formative marks for cleaners, including unregistered marks, will be submitted and made of record in the prosecution of the new application.

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