w.L,_,AM ,__ KUMA .
`WALTER F. KLIMA, JFL, Ph.D., Chemistry
`T°°“"'°"" °°"'°“"""'“
`' ADMITTED IN PENNSVLVANIA ONLY.
`
`
`
`KLIMA LAW OFFICES, P.L.L.C.
`A PROFESSIONAL LIMITED LIABILITY COMPANY
`/1""
`’ 7'“ "°'E g e""""""" [W
`2046-C JEFFERSON DAVIS HIGHWAY
`STAFFORD, VA 22554
`PHONE:
`(540) 657-9344
`FAX:
`(540) 657-9343
`e-mail: commcenIer@acupat.com
`
`March 5, 2007
`
`AFFILIATION
`ACUPAT LLCI
`STAFFORD-VA
`
`
`
`Trademark Trial and Appeals Board
`P. O. Box 1450
`
`Alexandria, Virginig 22313-1450
`
`Re:
`
`U.S. Trademark Application
`Serial No.: 76/577,682; Filed: February 25, 2004
`Mark: 4X
`
`Int/l Class: 003
`
`Applicant: Sprayex, L.L.C.
`
`Sir:
`
`The following documents are being forwarded herewith for appropriate action by the U.S.
`Patent and Trademark Office:
`
`1.
`2.
`
`Appeal Brief
`Return Filing Receipt
`
`We respectfully request that you date stamp and return to our courier the attached
`return filing receipt.
`
`The Commissioner is hereby authorized to charge the Appeal Fee, and any other fee, or
`credit any
`overpayment, to our Deposit Account No. 11-1243. A duplicate copy of this letter is
`enclosed.
`
`Respectfully submitted,
`
`>
`
`-JOqii/Lllld.
`
`William L. K ima
`
`Attorney For Applicant
`Registration No. 32,422
`
`Enclosures
`WLK‘°a°
`
`”"-T’/~”t"
`llllllllllllllllllllllllllllllllllllllllllllllllll
`
`03-05 2007
`
`

`
`WILLIAM L_ KLIMA .
`,
`WALTER F. KLIMA, JFL, Ph.D., Chemistry
`Technical Consultant
`- ADMITTED IN PENNSYLVANIA ONLY.
`
`KLIMA LAW OFFICES, P.L.L.C.
`A PROFESSIONAL LIMITED LIABILITY COMPANY
`paleat, ‘7IlaJ2maa.‘ £5 0094,44‘;/41 [aw
`
`2046_C JEFFERSON DAVIS HIGHWAY
`STAFFORD, VA 22554
`PHONE:
`(540) 657-9344
`FAX:
`(540) 657-9343
`
`AFFILIATION
`**""—
`ACUPAT L.|__c_
`STAFFORD.VA
`
`March 5, 2007
`
`Trademark Trial and Appeals Board
`P. O. Box 1450
`
`Alexandria, Virginig 22313-1450
`
`Re:
`
`U.S. Trademark Application
`Serial No.: 76/577,682; Filed: February 25, 2004
`Mark: 4X
`
`Int/1 Class: 003
`
`Applicant: Sprayex, L.L.C.
`
`Sir:
`
`The following documents are being forwarded herewith for appropriate action by the U.S.
`Patent and Trademark Office:
`
`1.
`2.
`
`Appeal Brief
`Return Filing Receipt
`
`We respectfully request that you date stamp and return to our courier the attached
`return filing receipt.
`
`The Commissioner is hereby authorized to charge the Appeal Fee, and any other fee, or
`
`credit any
`overpayment, to our Deposit Account No. 11-1243. A duplicate copy of this letter is
`enclosed.
`
`>
`
`Respectfully submitted,
`,
`I L
`,
`II](‘V
`
`William L. K ima
`
`Attorney For Applicant
`Registration No. 32,422
`
`Enclosures
`
`WLK:cac
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Applicant: SPRAYEX, L.L.C.
`Trademark: Design
`Serial No: 76/577,682
`Attorney: William L. Klima
`Address: P.O. Box 2855
`
`Stafford, VA 22555-2855
`
`:
`;
`2
`:
`:
`
`BEFORE THE
`TRADEMARK TRIAL
`AND
`APPEAL BOARD
`ON APPEAL
`
`APPELLANT'S BRIEF
`
`Appellant appeals the decision of the trademark examing attorney's final refusal to
`register the subject trademark on the ground that there exists a likilihood of confusion with the
`mark of Registration No. 2445741 under Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d).
`
`FACTS
`
`Appellant's mark is a design or logo, and is n_o‘t the word mark "4X". Specifically, the
`number "4" is located on the left hand side of a circle, and the circle contains a cross symbol.
`The number "4" and the cross symbol are each provided with noticeable white circular dots
`located at corresponding intersections of crossing line portions of the number "4" and the cross
`symbol. A second partial circle shadows the dominant circle. The present mark factually is
`substantially unlike and dissimilar from the mark of Registration No. 2445741.
`
`The mark of Registration No. 2445741 is a design or logo, and is E the word mark "4
`X". Specifically, the original application for the mark of Registration No. 2445741 (Exhibit A)
`provide the description "MARK: The design is consisted of a highlighted star figure, in which,
`the highlighted star figure is attached by a highlighted design of the number "4" on the outside of
`the bottom left of the star and a "X" design is located within the star figure." The dominant
`symbol of this mark is the STAR symbol, which is not contained or a portion of Appellant's
`mark. The mark of Registration No. 2445741 factually is substantially unlike and dissimilar
`from Appellant's mark.
`
`

`
`ARGUMENT
`
`The mark covered by Registration No. 2445741 is classified at the United States Patent
`and Trademark Office as the word mark "4 X", however, this mark is actually a design or logo.
`The classification of this mark as the word mark "4 X" does not take into account the dominating
`feature of this mark, which is the STAR symbol. The STAR symbol is clearly the dominating
`feature of the mark based on the description of the MARK in the originally filed application (i.e.
`"highlighted star figure", See Exhibit A), and based on its physical size and prominance relative
`to the other components of the mark, namely, the number "4" and
`suggest the visual impression and verbal pronounciation of this mark as "4 STAR" followed by
`the "X" design resulting in an overall visual impression and verbal pronounciation as "4 STAR
`x". The intrepretation of the word mark as "4 X" covered by Registration No. 2445741 was
`either in error, or otherwise symbols other than letters and numbers (e. g. STAR) are ignored for
`classification purposes. In any event, a complete analysis of this mark for likihood of confusion
`purposes must take into account the dominating STAR symbol of this mark when comparing it to
`Appellant's mark Q containing the STAR symbol.
`
`Appellant adopted the amended identification of goods suggested by the Examining
`Attorney in the Office action dated August 16, 2006. This amendment limited the goods to
`consumer or household type cleaners and cleaning preparations. The identification of goods set
`forth in Registration No. 2445741 are strictly limited to industrial, in particular heavy duty
`industrial type cleaning prepartions never used by consumers, especially go_t for household uses.
`No consumer looking to purchase household cleaners and cleaning prepartions will be
`considering let alone nonnally have access to those heavy industrial cleaners and cleaing
`preparations covered under Registration No. 2445741.
`
`The Examining attorney in the Office action dated December 4, 2006 has provided
`evidence of Blue Star Cleaning Co., Ltd., Registrant of Registration No. 2445741 selling both
`"industrial and household cleaning agents, and evidence of Appellant Sprayex selling
`"commercial/industrial" cleaners, however, this evidence does not show the use of either mark by
`Registrant or Appellant. A proper anaylsis under likihood of confusiion must take into account
`the identification of goods of both marks, and the actual use of these marks by Registrant and
`Appellant. This evidence at most indicates that consumer cleaners and industrial cleaners can be
`sold through the same channel of trade (i.e. internet), however, this ignores the important fact
`that most consumer household cleaners and cleaning preparations are sold in grogery, drug and
`large department chain stores where no heavy industrial cleaners of the type set forth in the
`indentification of goods of Registrant are to be found. Further, Registrant goods covered under
`the indentification of good for Registration No. 2445741 are nonnally sold only directly to
`industrial cleaning services and supplies, and are n_ot normally available or sold to consumers.
`These type of chemical cleaners tend to be highly toxic and dangerous for consumer handling and
`use, and are normally not available or sold directly to consumers due to the huge liabilities
`resulting from misuse, property and personal damage, injury and even death. This results in very
`different and bifurcated markets for these different types of cleaners and cleaning preparations,
`and no likihood of confusion.
`
`

`
`CONCLUSION
`
`Appellants mark is totally different in appearance, design, connotation and commercial
`impression verses the mark of Registration No. 2445741, and the market for these indentified
`goods are totally different. In conclusion, there exists n_o likihood of confusion of Appellant's
`mark verses Registrant's mark as to source.
`
`For the foregoing reasons, the refusal to register on the basis of likihood of confusion
`Section 2(d) of the Trademark Act, 15 U.S.C. l052(d), for the reason that there exists no likihood
`of confusion as to source, should be reversed.
`
`espectfully submitted,
`
`
`
`
`
`Attomey for Appellant
`William L. Klima
`
`Reg. No. 32,422
`
`/We»./4.)’ 2007’
`Date
`
`

`
`PRIORITY FILING DATE if an
`
`:
`
`k
`
`9%
`
`MARK: The design is consisted of a highlighted star figure, in which, the highlighted star figure is
`attached by a highlighted design of the number “4” on the outside of the bottom left of the
`star and a “x” design is located within the star figure.
`
`4
`
`llllllllllllllilll|l||llllllllllllllllllllllllllll
`
`\_/
`
`O8-02-1999
`
`U.S. Patent & TMOICITM Mail R001 0!. 901
`
`A
`
`DRAWING
`
`I
`SA Grou Inc.
`China Bluestar
`APPLICANT:
` .. 2 ' . '
`
`
`
`
`3140 Red hill Ave Suite 180 Costa Mesa. CA 92626
`0 ADDRESS
`FIRST USE an when :
`I985
`
` IRSTUSE IN COMMERCE mt‘:
`Cleaning preparations, namely, cleaning solution and detergents
`
`
`
`. licable :I995 GOODS/SERVICES
`
`SPONDENCE T0 :
`
`TELEPHONE:
`
`DAVID W. LEE
`108 N. Ynez Ave., Suite I28
`Montere P CA 91754
`626 571-9312
`
`THE DRAWING OF THE MARK CANNOT BE LARGER THAN 4 INCHES (10 cm) BY 4 INCHES (10 cm) AND
`NOTE:
`SHOULD BE CENTERED ON THE DRAWING SHEET.
`
`TRADEMARK
`
` 75765773