Headed Reinforcement Corporation

This Opinion is Not a
Precedent of the TTAB

Mailed: March 21, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE

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Trademark Trial and Appeal Board

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In re Headed Reinforcement Corporation

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Serial No. 87233162

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Morland C. Fischer of Law Offices of Morland C. Fischer
for Headed Reinforcement Corporation

Meredith Debus, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.

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Before Zervas, Greenbaum, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

I. Background

Headed Reinforcement Corporation (“Applicant”) seeks registration on the

Principal Register of the mark HEADLOCK in standard characters for:

A metal anchoring device to be attached to one end of a
steel reinforcement bar (i.e., rebar) to withstand tensile
loads and thereby hold the reinforcement bar in place when
the reinforcement bar is embedded within a concrete
Serial No. 87233162

structure, namely, a building, a bridge, or a roadway in
International Class 6.1

The Examining Attorney refused registration under Section 2(d) of the Trademark

Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark

HEADLOK in standard characters for “Metal threaded fasteners and metal screws”

in International Class 6.

Once the Examining Attorney made the refusal final, Applicant requested

reconsideration and appealed. The Examining Attorney denied the request for

reconsideration.2 For the reasons set forth below, we affirm the refusal to register.

II. Likelihood of Confusion

The determination under Section 2(d) involves an analysis of all of the probative

evidence of record bearing on the likelihood of confusion. In re E.I. du Pont de

Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors

to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic

Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any

likelihood of confusion analysis, 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 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard

Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry

1 Application Serial No. 87233162 is based on Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b), and has a filing date of November 10, 2016.
2 5 & 6 TTABVUE.

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Serial No. 87233162

mandated by § 2(d) goes to the cumulative effect of differences in the essential

characteristics of the goods and differences in the marks.”).

A. Similarity of the Marks

We first turn to the du Pont factor comparing the applied-for and cited marks,

which we consider “in their entireties as to appearance, sound, connotation and

commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison

Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du

Pont, 177 USPQ at 567). The test assesses not whether the marks can be

distinguished in a side-by-side comparison, but rather whether their commercial

impressions are so similar that confusion as to the source of the goods offered under

the respective marks is likely to result. Coach Servs. v. Triumph Learning LLC, 668

F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Labs., Inc. v.

Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).

The marks HEADLOCK and HEADLOK look nearly identical, with just the minor

variation in spelling. See Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460

(CCPA 1962) (TINTZ merely a phonetic spelling of “tints”). HEADLOCK and

HEADLOK sound the same, and convey the same connotation and commercial

impression. In its Brief, “[t]he applicant acknowledges that its trademark and the

registered mark are similar.”3 This du Pont factor weighs heavily in favor of a

likelihood of confusion determination.

3 8 TTABVUE 3 (Applicant’s Brief).

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Serial No. 87233162

B. The Relatedness of the Goods

“[L]ikelihood of confusion can be found ‘if the respective goods are related in some

manner and/or if the circumstances surrounding their marketing are such that they

could give rise to the mistaken belief that they emanate from the same source.’” Coach

Servs. 101 USPQ2d at 1722 (internal citations omitted). In analyzing the second du

Pont factor, we look to the identifications in the application and cited registration.

See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018);

Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,

1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937,

16 USPQ2d 1783, 1787 (Fed. Cir. 1990).

The Examining Attorney argues that Registrant’s broadly identified “metal

threaded fasteners” encompass Applicant’s particular type of metal anchoring

devices. See, e.g., In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB

2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily

encompasses Registrant’s narrowly identified ‘residential and commercial

furniture.’”); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (“Registrant’s

goods are broadly identified as computer programs recorded on magnetic disks,

without any limitation as to the kind of programs or the field of use. Therefore, we

must assume that registrant’s goods encompass all such computer programs

including those which are for data integration and transfer.”). The record includes a

definition of a “fastener” as “[a] device, such as a clip, pin, or clasp that attaches

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Serial No. 87233162

something firmly to something else.”4 “Anchor” is defined as “something that serves

to hold an object firmly.”5 The Portland Bolt & Manufacturing Company website has

a “Bolt Glossary” defining “anchor bolt” consistently with Applicant’s goods, and

further defines “bolt” as “[a] headed and externally threaded fastener designed to be

assembled with a nut.”6

Evidence in the record demonstrates that “anchors” are a type of “fastener,” and

these terms sometimes are used interchangeably. Also, they frequently are offered

under the same mark. For example, the Fastener Mart website lists “Anchors” in its

menu, and has a page titled “Understanding Anchors” with the subheading “Fastener

Tech Data.”7 The Ace Hardware website, the Fastenal website, the Minerallac

Company website, and the Lawson Products website show “Anchors” as a subcategory

of “Fasteners.”8 Powers Fastening Innovations’ website promotes “Mechanical

Anchors & Fasteners,”9 while FastenMSC titles its product page “Anchors and

Fasteners.”10 Similarly, the TorMaxx Company website promotes “Anchors and

Fasteners,”11 and on its “Anchors & Fasteners” page, Acme Construction Supply Co.,

Inc. describes how its “complete line of fastening products” “includes anchors and

4 February 24, 2017 Office Action at 8 (freedictionary.com).
5 December 15, 2017 Office Action at 8 (merriam-webster.com).
6 July 25, 2018 Denial of Reconsideration at 19-20 (portlandbolt.com) (emphasis added).
7 December 15, 2017 Office Action at 15 (fastenermart.com).
8 Id. at 10 (acehardware.com), 26 (fastenal.com), 28 (minerallac.com), 27
(lawsonproducts.com).
9 Id. at 55 (powers.com).
10 Id. at 56 (fastenmsc.com).
11 Id. at 61 (thetormaxxcompany.com).

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Serial No. 87233162

fasteners of all types and finishes.”12 The American Fastener website states, “We are

a leading provider of anchor fasteners,” and shows anchors as a subcategory of

fasteners.13 As another example, the Grainger website lists on its menu “Fasteners /

Anchors,” and states, “Anchors help fasten material for a secure hold.” The

RenoDirect website, under “Products,” groups “Anchors, Fasteners and Screws.”14

The Pentair website uses the tagline “Electrical & Fastening Solutions,” and

promotes “Lenton Terminator Mechanical Anchors” that include those for

“Reinforcing Steel Connections.”15 The record includes numerous similar examples.16

Even with regard to anchoring devices specifically used in connection with

concrete, the record contains similar evidence. For example, the Concrete Fasteners,

Inc. website links to a page for “Concrete Anchors/Fasteners.”17 And the Elco website

has pages for “Concrete Anchors” and “Metal Fastening.”18 The webpage of Concrete

Fastening Systems Inc. has an article titled “Choosing the Best Anchor to Fasten

Concrete”19 that includes the statement, “A specific concrete anchor or fastener may

not work in all applications.”20 The same site promotes products “For

12 Id. at 62 (thetormaxxcompany.com).
13 Id. at 11 (americanfastener.com).
14 Id. at 59 (renodirect.ca).
15 Id. at 23 (erico.com).
16 July 25, 2018 Denial of Reconsideration at 13, 21-29, 31.
17 Id. at 30 (concretefasteners.com).
18 December 15, 2017 Office Action at 57-58 (elcoconstruction.com).
19 February 24, 2017 Office Action at 14 (confast.com).
20 Id. at 15.

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Serial No. 87233162

Anchoring/Fastening into Concrete.”21 An article on the Star Sales website is

captioned, “Power Fasteners: A Look at Their Mechanical and Chemical Concrete

Anchors,” and reports that the company Power Fasteners develops “high-quality

fasteners that meet a wide range of solutions” including “Mechanical Concrete

Anchors.”22 The Hanes Supply, Inc. online catalog index contains “Section 26

Fasteners/Concrete Anchors.”23 The Engineers Edge website displays an article about

“Concrete Foundation Anchor Bolts Design” that notes that “Cast-in-place anchor

bolts are the strongest type of fastener.”24 This marketplace evidence overwhelmingly

shows the relatedness of the goods at issue, including consumer exposure to the same

mark for goods such as Applicant’s and Registrant’s.

The Examining Attorney also introduced ten use-based third-party registrations

listing both metal fasteners and anchors under the same mark.25 Third-party

registrations based on use in commerce that cover the same sorts of goods suggest

that they may emanate from the same source. In re Aquamar, Inc., 115 USPQ2d 1122,

1126, n.5 (TTAB 2015); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86

(TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB

1988). This evidence corroborates the relatedness of Applicant’s and Registrant’s

goods.

21 December 15, 2017 Office Action at 25 (confast.com).
22 July 25, 2018 Denial of Reconsideration at 7-8 (hilti.com).
23 Id. at 9 (handesupply.com).
24 Id. at 11 (engineersedge.com).
25 December 15, 2017 Office Action at 29-52.

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Serial No. 87233162

Applicant argues against relatedness with an improper attempt to limit the

identification in the cited registration by pointing to Registrant’s specimen and

characterizing Registrant’s “metal threaded fasteners and metal screws” as “nothing

more than tiny and inexpensive connectors commonly purchases [sic] at a hardware

store or a home improvement store.”26 However, we rely on the identification of goods

set forth in the registration regardless of extrinsic evidence of the particular nature

of goods, the particular channels of trade or the class of purchasers to which sales of

the goods are actually directed. Octocom Syst., 16 USPQ2d at 1787. Registrant’s goods

are broadly described, and therefore encompass all the goods of the nature and type

described therein, and we do not limit its fasteners and screws to those that are “tiny

and inexpensive.” See, e.g., Hughes Furniture, 114 USPQ2d at 1137; Linkvest, 24

USPQ2d at 1716. For the same reason, we consider Applicant’s goods as identified in

the application, without regard to the extrinsic evidence it proffers about their actual

nature. Regardless of whether Applicant’s anchoring device is a type of metal

threaded fastener directly encompassed by the cited registration, which it claims it is

not, the evidence strongly shows the relatedness of such fasteners to a wide variety

of anchoring devices including those identified by Applicant.

This factor weighs in favor of a likelihood of confusion determination.

26 8 TTABVUE 4 (Applicant’s Brief).

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Serial No. 87233162

C. Trade Channels and Classes of Consumers

Turning to the trade channels and consumers, while we note that Applicant’s

identification restricts its goods to use in connection with “a building, a bridge, or a

roadway,” we reject Applicant’s argument that the trade channels for its identified

goods should be more narrowly limited to “massive construction and engineering

projects,” such as “a high rise.”27 In accordance with the language in the

identification, we must presume that the goods travel in all the usual channels of

trade for such goods and are available to all potential classes of ordinary consumers

for those goods, and the trade channels cannot be differentiated based on evidence

that they actually are more limited than what appears on the face of the

identifications. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,

1846 (Fed. Cir. 2000) (affirming Board finding that where the identification is

unrestricted, “we must deem the goods to travel in all appropriate trade channels to

all potential purchasers of such goods”). See also Levi Strauss & Co. v. Abercrombie

& Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013). Thus,

Applicant’s anchoring devices include those, for example, that might be used in a

project for any building, not just massive buildings. The third-party marketplace

relatedness evidence discussed above demonstrates that anchoring devices for use in

concrete with projects such as those identified are featured together on the same

websites as metal threaded fasteners and screws, and would be encountered by some

of the same consumers, such as building contractors. The trade channels and classes

27 8 TTABVUE 4 (Applicant’s Brief).

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Serial No. 87233162

of consumers overlap. Thus, this factor weighs in favor of a likelihood of confusion

determination.

Decision: Based on the similarity of the marks, the related goods that travel in

overlapping trade channels to some of the same classes of consumers, confusion is

likely. The refusal to register Applicant’s mark is affirmed.

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