(Our’Docket No. 32557US02)
`
`TRADEMARK
`
`CERTIFICATE OF MAILING
`EXPRESS MAIL NO. EL 849003928 US
`
`I hereby certify that this correspondence
`is being deposited with the United States
`Postal Service via Express Mail in an
`envelope addressed to:
`Assistant Commissioner for Trademarks
`
`Arlington, VA, 22202-3513
`on:
`
`July 25, 2002
`
`By:
`
`%ma// 4- 40, 2%.
`Ronald A. DiCerbo
`
`) ) ) ) ) ) ) ) ) ) ) ) )
`
`In the Application of:
`
`Engineered Controls International, Inc.
`
`Serial No. 76/056,615
`
`Filed: May 25, 2000
`
`For: MULTIPORT
`
`Examining Attorney: Johanna B. Robinson
`Law Office 104
`
`
`NOTICE OF APPEAL UNDER 37 CFR § 2.141
`
`:;—A:~——'—*\
`ITM Mail Ficpt. oz. #57
`“SPllfiifultimfiiinlllluuluuuuumuulu
`07-25-2002
`
`BOX TTAB FEE
`
`Assistant Commissioner For Trademarks
`
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`Applicant hereby appeals to the Trademark Trial and Appeal Board from the Final
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`Rejection of the Examiner dated January 25, 2002. The appeal fee of $100.00 is attached hereto.
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`Please charge any additional fees or credit overpayment
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`to the deposit account of
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`McAndrews, Held & Malloy, Ltd., Account No. 13-0017.
`
`Respectfully submitted,
`MCANDREWS, HELD & MALLOY, LTD.
`
`Dated: July 25, 2002
`
`By:
`
`/ Z’/C.
`Ronald A. DiCerbo
`
`07/31/2002 JHDRLEY 00000221 130017
`
`76056615
`
`01 FC:378
`
`100. 00 CH
`
`

`
`
`
`‘f.
`
`7
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`(Our Docket No. 32557USO2)
`
`TRADEMARK
`
`In the Application of:
`
`Engineered Controls International, Inc.
`
`Serial No. 76/056,615
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Examining Attorney: Johanna B. Robinson )
`Law Office 104
`)
`)
`
`‘
`
`Filed: May 25, 2000
`
`~ For: MULTIPORT
`
`CERTIFICATE OF MAILING
`EXPRESS MAIL NO. EL 849003928 US
`I hereby certify that this correspondence
`is being deposited with the United States
`Postal Service Via Express Mail in an
`envelope addressed to:
`Assistant Commissioner for Trademarks
`Arlington, VA, 22202-3513
`on:
`
`July 25, 2002
`
`By: 4 Em/J ,1 J. LC
`Ronald A. DiCerbo
`
`RESPONSE
`
`\
`US. Patent 8: TMOTCITM Mail Flcpt. Dt. #57
`HlllllIllllIIIIIHIII||||||!|||Illlllllllllllllll
`0./._25_20o2
`
`,
`
`Asst. Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`Dear Madam:
`
`This is a response to the Office Action mailed January 25 , 2002.
`
`The application stands refused under Trademark Act Section 2(d), 15 U.S.C. § l052(d) and
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`is further subject to the requirement of responding to an informality. Specifically, Applicant must
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`indicate whether MULTIPORT has any significance in the relevant
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`trade, any geographical
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`significance, or any meaning in a foreign language.
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`I. SIGNIFICANCE OF THE MARK
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`Applicant asserts that the word MULTIPORT does not have any significance in the relevant
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`trade other than as the trademark used on or
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`in connection with the Applicant’s goods.
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`Furthermore, the word MULTIPORT does not have any geographical significance or any meaning
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`in a foreign language.
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`

`
`
`
`i.
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`J)
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`ll. LIKELIHOOD OF CONFUSION
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`Registration of Applicant’s trademark application stands refused on the grounds that the
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`Applicant’s mark, MULTIPORT, so resembles the mark MULTIPORT of U.S. Registration No.
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`1,204,374 as to be likely, when used on the identified goods, to cause confusion, to cause mistake,
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`or to deceive. More specifically,
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`it is speculated that consumers would be confused by the
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`Applicant and Registrant’s marks on the basis that the marks are identical, release valves and
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`gauges are included in a number of trademark registrations, and release valves and gauges are sold
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`by the same retailers.
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`Applicant submits there is no likelihood of confusion between the Applicant’s mark and
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`Registrant’s mark for the following reasons:
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`(1) Applicant does not provide release valves under the mark MULTIPORT;
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`(2) Applicant’s and Registrant’s goods are different;
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`(3) The relevant purchasers are careful, discriminating, and sophisticated;
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`(4) The Applicant and Registrant’s trade channels are different; and
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`(5) There has been no actual confusion in over forty years of concurrent use.
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`Consequently, the Applicant respectfully demurs to the refusal and requests reexamination
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`and reconsideration of the application in view of these remarks.
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`A. Applicant’s Mark
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`The Applicant, Engineered Controls International, Inc., is requesting the registration of
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`the trademark MULTIPORT in International Class 7 for manifolds for safety relief valves used
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`with containers for pressurized fluids.
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`See Response dated August 1, 2001 (amending the
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`identification of goods); see also, Ojfice Action 2 (recognizing the amendment as acceptable and
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`made of record).
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`B. Registrant’s Mark
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`The examiner has cited the trademark MULTIPORT, registration number 1,204,374. The
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`mark is registered in International Class 9 to Babcock and Wilcox Company for “liquid level
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`gauges and replacement parts therefore.” See Registration Number 1,204,374.
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`

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`
`
`A
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`C. Applicant’s Goods
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`Applicant provides manifolds for safety relief valves used with containers for pressurized
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`fluids. Applicant does not provide pressure relief valves under the mark MULTIPORT.
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`In
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`contrast to the evidence establishing third party trademark registrations showing that relief Valves
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`and liquid level gauges are included in the same registrations, Applicant has been unable to find
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`a single third party trademark registration showing that manifolds for safety relief valves and
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`liquid level gauges are included in the same registrations. See Attachment A, search results.
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`D. Applicant’s And Registrant’s Goods Are Different
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`Both the Applicant and the Registrant are engaged in selling industrial storage tank
`9’
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`equipment. However, “this type of classification is so broad as to be meaningless. . ..
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`Mejia
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`and Assocs. v. IBM Corp., 920 F. Supp. 540, 548 (S.D.N.Y. 1996). “Within the broad outlines of
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`a product class, the differences between the particular products in question is often sufficient to
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`render them dissimilar for the purposes of trademark analysis.” Q Division Records, LLC v. Q
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`Records, 2000 U.S. Dist. LEXIS 1773 (Mass. Dist. Ct. February ll, 2000) (citing Lang v.
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`Retirement Living Publ’g Co., 949 F.2d 576, 582 (2"d Cir. 1991) (magazine catering to older
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`adults and magazine concerning enhancing one’s charisma were not similar products despite the
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`fact that both were magazines); Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657
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`F.2d 482, 487-88 (lst Cir.198l) (low-end instant camera and more expensive traditional camera
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`were not similar products for purposes of trademark analysis)).
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`It is well settled that the issue of likelihood of confusion must be determined on the basis
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`of the goods as they are set forth in the involved application and the cited registration. See, e.g.,
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`CBS Inc. v. Morrow, 708 F.2d 1579 (Fed.Cir.l983); Squirtco v. Tomy Corp., 697 F.2d 1038
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`(Fed.Cir.l983); Paula Payne Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901 (CCPA
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`1973). In the present application, Applicant’s manifolds and the Registrant’s level gauges are
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`very different goods.
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`Applicant’s mark, MULTIPORT, is used on and in connection with Applicant’s manifold
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`device. See Attachment B. This manifold is a specialty product designed to be used with
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`pressure relief valves on pressurized storage containers. The manifold is specially engineered to
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`facilitate the safe servicing or replacement of one or more of the relief valves while the container
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`is maintained under pressure. Applicant does not provide liquid level gauges under the mark
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`

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`
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`i
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`MULTIPORT. Nor can the Applicant’s manifold be used as or in combination with a liquid
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`level gauge.
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`Quite to the contrary, the Registrant’s mark MULTIPORT is used for liquid level gauges.
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`See Registration Number 1,204,374. Liquid level gauges convey the quantity of fluid present in
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`a tank. Typically these gauges convey the liquid level through the use of a visual float chamber,
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`see, e.g., Attachment C, or through a mechanical means. See, e.g., Attachment D. Registrant
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`does not provide manifolds for use with pressure relief valves under the mark MULTIPORT.
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`Nor can Registrant’s liquid level gauge be use as a manifold in place of the Applicant’s good.
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`While the category of goods ~ industrial storage tank equipment — touched under the
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`marks is the same, the Applicant’s and the Registrant’s goods are significantly different. The
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`two products serve distinctly different functions and they are prominently different in design.
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`Therefore, there is no likelihood of confusion.
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`D. Sophistication of the Relevant Purchasers
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`The sophistication of the relevant purchasers also weighs heavily in reducing the
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`likelihood of confusion. The sophistication factor “recognizes that the likelihood of confusion
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`between the products at issue depends in part on the sophistication of the relevant purchasers.”
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`Arrow Fastener Co., Inc. v. Stanley Works, 59 F.3d 384, 399 (2d Cir. 1995). A finding of
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`sophistication is based on the general impression of the ordinary consumer, buying under normal
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`market conditions, and giving the attention such purchasers usually give in purchasing the
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`product at issue.
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`Pharm. Co. v. Gillette Co., 984 F.2d 567, 572 (2d Cir.1993). A
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`finding that the consumers are sophisticated usually militates against a finding of a likelihood of
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`confiision. Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1046-47 (2d Cir.
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`1992); Pignons, 657 F.2d at 489 (“[s]ophisticated consumers may be expected to exercise greater
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`care.” .
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`Courts have found an increased degree of care and reduced likelihood of confusion where
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`the purchaser has a reasonably focused need or specific purpose or plan involving the product.
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`Haydon Switch & Instrument v. Rexnord, Inc., 4 U.S.P.Q.2d 1510, 1517 (D.Conn. 1987)
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`(specific products for specific industrial purposes); Munters Corp. v. Matsui America Inc., 730
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`F.Supp. 790, 799, 14 U.S.P.Q.2d 1993, 2000 (N.D. Ill. 1989) (“planning”). The court in Haydon
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`stated that when a purchaser “enter[s] the marketplace in search of specific products for specific
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`

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`
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`industrial purposes[,] [t]he sophistication of these purchasers makes the likelihood of confusion
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`remote.” Id.; see also G.H. Mumm & Cie v. Desnoes & Geddes, Ltd., 917 F.2d 1292, 1295 (Fed.
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`Cir. 1990) (Allowing the red stripe trade dress for both Red Stripe beer and Mumm champagne,
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`in spite of the fact that both are marketed through the same channels, because the purchaser has a
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`“reasonably focused need” for champagne over beer).
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`Here, the parties’ purchasers are unrelated and have incongruent needs. This is not a
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`situation where every-day “impulse” consumers visit a store and pull items from a shelf. See
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`Goya Foods, Inc. v. Condal Distribs, Inc., 732 F. Supp. 453, 457 (S.D.N.Y. 1990); Country
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`Floors Inc. v. Gepner, ll U.S.P.Q.2d 1401 (E.D.Pa. 1989) (finding that professional decorators
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`carefully discern between “Country Floors” and “Country Tiles”); Prince Manufacturing Inc. v.
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`Bard International Assoc. Inc., 11 U.S.P.Q.2d 1419 (D.N.J. 1988) (finding that high degree of
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`care in selection of tennis rackets militates against confusion between “Prince” and “Bard
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`Princess”). The relevant purchasers in this case specifically seek out the parties’ goods for very
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`specific purposes in an informed manner. See Cliffs Notes, Inc. v. Bantam Doubleday Dell
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`Publishing Group, Inc., 886 F.2d 490 (2d Cir. 1989) (The purchaser has a reasonably focused
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`need or specific purpose).
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`Applicant’s purchasers desire to select and install a manifold for use with multiple relief
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`Valves on a pressurized storage vessel. Often, Applicant’s manifolds are employed in hazardous
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`applications such as containing anhydrous ammonia in a pressurized storage vessel.
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`See
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`Attachment E at 17. In these applications specially engineered manifolds are desired to facilitate
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`the safe servicing or replacement of one or more relief valves while the hazardous material is
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`contained and container is maintained under pressure. For this reason, the installation, usage,
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`and maintenance of the Applicant’s manifold must be in compliance with applicable federal,
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`state, and local standards, codes, regulations, and laws. See Attachment F at 1. Therefore, the
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`selection of the appropriate manifold must be made with an acute sensitivity to the materials and
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`safety issues involved.
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`In light of such issues, the purchaser will carefully and thoroughly study
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`the product they are purchasing and are not likely to be confused as to the source of the product.
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`Similarly, the Registrant’s purchasers desire purchase a liquid level gauge. Such gauges
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`must be selected according to the particular conditions in which the gauge will be utilized.
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`These conditions include the type of liquid involved, temperature, pressure, etc. Often the
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`selection and installation of Registrant’s gauges will require specialized engineering and
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`

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`
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`complex construction. See Astra Pharm. Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d
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`1201 (1st Cir. 1983). (The nature of the product is unusual in terms of size or complexity).
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`In
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`light of these factors, the Registrant’s purchaser will also carefully and thoroughly study the
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`product they are purchasing and are not likely to be confused or misled by Applicant’s goods.
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`Personal sales made by knowledgeable sales people are another factor pointing toward
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`high purchaser sophistication and low likelihood of confiision.
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`See Accuride Int '1, Inc. v.
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`Accuride Corp., 871 F.2d 1531, 1537.
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`In the case of both Applicant and Registrant’s products,
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`knowledgeable salespeople and technical specialists will be contacted regarding the selection and
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`purchase of the products.
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`See Mile High Upholstery v. General Tire & Rubber Co., 221
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`U.S.P.Q. 217, 223 (N.D. Ill. 1983) (stating that evidence supports the contention that “ .
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`.
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`.
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`architects, interior designers, and contractors .
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`.
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`. [are] highly knowledgeable and sophisticated
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`about the products [they] order and recommend[].”). Both companies employ representatives
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`whose job is to inform and answer any questions purchasers may have regarding their products.
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`Addressing the fact that knowledgeable salespeople sell the product, the court in Accuride stated
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`that
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`this factor “weighs heavily against finding a likelihood of confusion in the relevant
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`purchasing population.” Id. at 1537.
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`Finally, an added duty of care on behalf of the purchaser makes him more sophisticated.
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`For example, wholesale purchasers of pharmaceuticals have an added duty of care to customers
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`who buy their products. See Barre—Natz'onal, Inc. v. Barr Labs., Inc., 773 F. Supp. 735, 743
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`(D.N.J. 1991).
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`Similarly, purchasers of Applicant’s MULTIPORT product are involved in
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`handling hazardous materials in pressurized containers. These purchasers have an added duty of
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`care, in terms of personal injury liability, to their employees and others who work with and
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`around these pressurized containers of hazardous materials.
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`This heightened purchaser
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`sophistication weighs against a likelihood of confusion.
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`Taking into consideration the aforementioned factors, sophisticated purchasers of the
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`Applicant and Registrant’s products are unlikely to confuse the sources of the two products.
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`E. Differences in Trade Channels
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`Different channels of trade also indicate no likelihood of confusion. See Frelzling v.
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`International Select Group, 192 F.3d 1330, 1339 (11th Cir.l999); See also, E.I. du Pont de
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`Nemours, 476 F.2d 1357. Channels of trade concerns how and to whom the respective products
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`

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`
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`are sold and distributed, e.g.,
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`through retail store sales, mail order,
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`telephone solicitation,
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`distributorships, personal sales calls, and so on. Id. at 1357; see also, Chase Brass & Copper Co.
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`Inc. v. Special Springs, Inc., 199 U.S.P.Q. 243, 245 (T.T.A.B. 1978) (“There is no evidence in
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`the present case to show that the persons who purchase, work with, or in any way come into
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`contact with the goods of applicant or opposer would be the same, thus giving rise to a likelihood
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`of confusion”).
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`Likelihood of confusion is avoided when the senior and junior marks appear on products
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`sold in professional, wholesale, or industrial channels as opposed to ordinary consumer retail
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`channels. See In re Shipp, 4 U.S.P.Q.2d 174, 1176 (T.T.A.B. 1987) (retail dry cleaning services
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`and commercial dry cleaning machine filters.) Even the existence of some market overlap and
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`the mere movement of goods through the same overlapping channels will not necessarily result
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`in likelihood of confusion. See Fruit of the Loom, Inc. v. Fruit of the Earth, Inc., 3 U.S.P.Q.2d
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`1531, 1533 (T.T.A.B. 1987). Some overlap in channels of trade may be unimportant in View of
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`other factors, e.g., if the goods are different, the purchasers different and knowledgeable, and the
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`goods expensive. See Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240 (9"‘ Cir.1984); See
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`KIRKPATRICK, §5.12.
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`In this case, it has been established that the goods are utilized in industrial channels, that
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`the goods are functionally and structurally different, and that the purchasers of the goods are
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`highly sophisticated and knowledgeable. There is no evidence that the goods are manufactured
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`by or may be obtained through similar sources.
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`A purchaser of manifolds will not
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`look at
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`level gauge equipment or level gauge
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`brochures, or level gauge suppliers when planning, selecting, purchasing, or installing a
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`manifold. Conversely, the purchaser of a liquid level gauge will not go to a manifold supplier or
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`a manifold manufacturer to select and purchase a level gauge. Applicant’s manifolds cannot be
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`used as level gauges. Registrant’s level gauges cannot be used as manifolds.
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`Furthermore, as established above, anyone who wants to purchase a manifold or a level
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`gauge will presumably use a high level of care in selecting a company to use.
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`In so doing, it is
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`highly unlikely that Applicant’s manifold customers will encounter Registrant’s level gauges.
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`Nor would Registrant’s level gauge customers encounter and/or have need for Applicant’s
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`manifolds. Even in cases of identical marks used in the same industry, there must be reasonable
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`basis for finding that the marks would be encountered by the same persons other than by chance.
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`

`
`
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`Borg-Warner Chem,
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`Inc. v. Helena Chem. Co., 225 U.S.P.Q. 222, 224 (T.T.A.B. 1983);
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`University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372
`
`(Fed.Cir.1983) (It must be established that “there is a reasonable basis for the public to attribute
`
`the particular product or service of another to the source of the goods or services associated with
`
`the famous mark.”); In Re Fesco Foods, Inc., 219 U.S.P.Q. 437, 438 (T.T.A.B. 1983) (“the
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`recited goods are not so related that they would come to the attention of the same kinds of
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`purchaser and, therefore, ...any likelihood of confusion is remote.... This being the case, even
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`identical marks would have little opportunity. . .other
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`than through accidental or chance
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`confrontation,
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`to create any confusion among customers or potential customers of either
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`Applicant or Registrant.
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`In this regard, the Board has not hesitated to find an absence of
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`likelihood of confusion, even in the face of identical marks applied to goods used in a common
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`industry, where such goods are clearly different from each other and there is insufficient
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`evidence to establish a reasonable basis for assuming that the respective products and/or services,
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`as identified by their marks, would be encountered by the same purchasers or parties”). The
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`goods involved here are not so related that they would come to the attention of the same kind of
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`purchaser. As discussed above, sophisticated customers specifically seek out the different goods
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`for significantly different purposes. The goods are specialty items offered via different channels
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`of trade. The respective goods simply are not likely to be encountered in the marketplace by the
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`same relevant purchasers. Thus, there is no likelihood of confusion.
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`F. Actual Confusion
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`Applicant has been selling manifolds under the mark MULTIPORT since at least as early
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`as December 1961. Registrant has been selling its liquid level gauges under the mark
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`MULTIPORT since February 1954.
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`In over forty years of concurrent use, Applicant is not
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`aware of any instance of actual confusion as to the source of either the Applicant’s goods or the
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`Registrant’s goods.
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`G. Prior Concurrent Registrations
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`Applicant’s mark was first registered in 1963 for use on and in connection with manifolds.
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`See U.S. Trademark Registration No. 761,816. Registrant’s mark was published for opposition in
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`May 1982 and registered in August 1982 for use on level gauges. Registration of the Registrant’s
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`

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`
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`mark was allowed in light of the existence of the Applicant’s registration. The two registrations
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`then existed concurrently until Applicant’s registration expired in March 1984. Moreover, as
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`established above, the two marks have concurrently existed from 1954 to the present day without
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`any actual confusion.
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`Furthermore, as the senior user of the mark, it is established that any doubt on the issue of
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`likelihood of confusion is to be resolved in favor of the Applicant. Anderson, Clayton & Co. v.
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`Krier, 178 U.S.P.Q. 637 (T.T.A.B. 1973); San Fernando Electric Mfg. Co. v. JFD Electronics
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`Components Corp., 565 F.2d 683, 684 (C.C.P.A 1977); Planter’s Nut & Chocolate Co. v. Crown
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`Nut Co., 305 F.2d 916 (C.C.P.A. 1962).
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`H. Any Potential Confusion Is De Minimis
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`The recitation of goods in the application and the identification of goods in the cited
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`registration control the legal comparison herein. Canadian Imperial Bank v. Wells Fargo Bank,
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`1 USPQ2d 1813, 1815 (Fed. Cir. 1987); In re Elbaum, 211 USPQ 639 (TTAB 1981). Evidence
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`presented in Office Action No. 02 suggests that relief valves and liquid level gauges may be sold
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`by the same retailer or distributors. However, Applicant does not provide either relief Valves or
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`liquid level gauges under its mark MULTIPORT.
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`The evidence does not establish that
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`manifolds and level gauges emanate from a common source nor any likelihood of confusion that
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`they may. Even if such source did exist, the potential for any confusion between the source of
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`the goods themselves would be de minimis as the purchasers are highly sophisticated and
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`knowledgeable. Moreover, as highlighted above, there has been no actual confusion between the
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`Applicant and Registrant’s marks in over forty years of concurrent use.
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`G. Summgy
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`In summary, the marks cover very dissimilar goods; the channels of trade are different;
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`the relevant purchasers of are sophisticated buyers who are not likely to be confused, and there
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`has been no actual confusion in over 40 years of concurrent use. Therefore,
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`there is no
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`likelihood of confusion.
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`

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`
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`-s..
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`.~.
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`It is believed that this response meets the examining attorney’s action. Therefore, Applicant
`
`i
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`requests that said mark be registered in the United States Patent and Trademark Office on the
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`Principal Register established by the Act of July 5, 1946 (15 U.S.C. § 1051 et seq., as amended).
`
`Respectfully submitted,
`MCANDREWS, HELD & MALLOY, LTD.
`
`Dated: July 25,2002
`
`By: ,/4’¢/J 4 J 1,6.
`Ronald A. DiCerbo
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`(Our Docket No. 32557USO2)
`
`'
`
`TRADEMARK
`
`In the Application of:
`
`Engineered Controls International, Inc.
`
`Serial No. 76/056,615
`‘
`Filed: May 25, 2000
`
`For: MULTIPORT
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Examining Attorney: Johanna B. Robinson )
`Law Office 104
`)
`)
`
`CERTIFICATE OF MAILING
`EXPRESS MAIL NO. EL 849003928 US
`I hereby certify that this correspondence
`is being deposited with the United States
`Postal Service via Express Mail in an
`envelope addressed to:
`Assistant Commissioner for Trademarks
`Arlington, VA, 22202-3513
`on:
`
`July 25, 2002
`
`By:
`
`.
`
`.
`‘
`fl
`Ronald A. DiCerbo
`
`TRANSMITTAL LETTER
`
`'5
`U.S. Patent & TMOfc/TM Mail Rcpt. DI. #57
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`Illllll||l|HI|l|ll||||Hl||||Hl||||||H|l||l|I||
`07-25-2002
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`Commissioner for Trademarks
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`2900 Crystal Drive
`Arlington, VA 22202-3513
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`Sir:
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`In regard to the above-identified application:
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`1.
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`2.
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`We are transmitting herewith the attached RESPONSE with Exhibits (A-F) and
`NOTICE OF APPEAL UNDER 37 CFR § 2.141.
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`An additional fee of $100.00 is required and is enclosed.
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`Please charge any additional fees or credit overpayment
`3
`l‘vlcAndrews, Held & Malloy, Ltd, Account No. 13-0017.
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`to the deposit account of
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`Respectfully submitted,
`MCANDREWS, HELD & MALLOY, LTD.
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`Dated: July 25, 2002
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`By: 4 ¢/,/ 412. 4:;
`Ronald A. DiCerbo
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`88=8HG2-SW20
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