Husky Liners, Inc.

This Opinion is Not a
Precedent of the TTAB

Mailed: August 2, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Husky Liners, Inc.
_____

Serial No. 87593354
_____

Steven D. Lustig and William H. Honaker of Dickinson Wright PLLC,
for Husky Liners, Inc.

Caroline L. Moran, Trademark Examining Attorney, Law Office 125,
Heather Biddulph, Managing Attorney.

_____

Before Taylor, Goodman and English,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Husky Liners, Inc. (“Applicant”) seeks registration on the Principal Register of the

mark HUSKY (in standard characters) for the following goods, as amended:

Vehicle parts and accessories, namely, exterior body panel
add-ons; vehicle hood protectors; vehicle window shades;
vehicle cargo nets; vehicle seat protectors and covers;
vehicle seat organizers and storage containers; leather
performance seats for vehicles; fitted floor mats and liners
for the cargo area of vehicles; fitted cargo and trunk liners
for the cargo area of vehicles; fitted dashboard covers and
kits comprised of fitted dashboard covers and conceal
covers in the nature of fitted covers for vehicles; sun visors
for vehicles; fitted car covers; wind deflectors for vehicles;
Serial No. 87593354

fender flares and trim; license plate frames; wheel well
guards for vehicles; mud guards and mud flaps for vehicles;
grill guards and bull bars for vehicles; tonneau covers in
the nature of fitted pickup truck bed covers; fitted pickup
truck bed liners; storage systems for pickup truck beds,
namely, storage boxes and containers especially adapted to
fit and attach to vehicles; pickup truck bed caps; fitted
pickup truck bed mats; fitted pickup truck tailgate mats;
truck bed rail protectors in the nature of rail caps; truck
bed tailgates in the nature of retractable tailgate benches;
vehicle camera mounts; caps for pickup truck bed rails and
tailgates; pickup truck bed caps; step systems for vehicles,
namely, steps for attachment to vehicles, step rails for
attachment to vehicles; vehicle bumpers; vehicle skid
plates; pre-runners for vehicles, namely, off-road and on-
road bumpers; rear-runners for vehicles, namely, rear off-
road and on road bumpers; roof mounts for vehicle lighting
apparatus; after-market automotive accessories, namely,
metal decorative trim for vehicle interiors, dashboards and
exterior body molding, and vehicle grills; exterior insignia
badges for vehicles; decorative decals for vehicles windows;
fitted floor liners for vehicles in International Class 12;

Tinted plastic film for use on windows in International
Class 17;

Protective unfitted and semi-fitted liners for the cargo area
of vehicles; semi-fitted and unfitted car covers; semi-fitted
and unfitted pickup truck bed liners; semi-fitted and
unfitted floor liners for vehicles; semi-fitted and unfitted
pickup truck bed mats; semi-fitted and unfitted pickup
truck tailgate mats; semi-fitted and unfitted floor liners for
vehicles in International Class 22; and

Fitted, semi-fitted and unfitted floor mats for vehicles in
International Class 27.1

1 Application Serial No. 87593354 was filed on September 1, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce on the goods identified in all
of the classes under Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b). Applicant also
claims ownership of the following registrations: Registration No. 2417424 for the typed mark
HUSKY for “floor mats for vehicles”; Registration No. 1666635 for the typed mark HUSKY
LINERS (LINERS disclaimed) for “vehicle accessories; namely, fitted cargo area liners”; and
Registration No. 3402422 for the standard character mark HUSKYSHIELD for “automobile
aftermarket product, namely, protective urethane film covering for automobile exteriors.”

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Serial No. 87593354

The Trademark Examining Attorney has refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that

there is a likelihood of confusion with the marks in the following three registrations,

all owned by the same registrant:

Registration No. 1474896 for the mark HUSKY (in typed
format2) for “Trailer hitches” in International Class 12;

Registration No. 4556826 for the mark HUSKY (in
standard characters) for “Hitch-receiver-mounted cargo
trays; Hitch-receiver-mounted bicycle carriers; Hitch-
mount racks for vehicles for bikes, scooters, motorbikes and
motorcycles” in International Class 12;3 and

Registration No. 4377668 for the mark HUSKY TOWING

PRODUCTS and design [ ] (TOWING
PRODUCTS disclaimed) for:

“Trailer-mounted power jacks; power tongue jacks for
trailers” in International Class 7;

“Trailer electrical accessories, namely, electronic brake
controls, electrical trailer connectors, electrical adapters
for trailers, electric tail light converters, tail light isolators,
and trailer wiring harnesses, namely, electric wires and
cables” in International Class 9; and

Trailer hitches; Land vehicle parts in the nature of wire
harnesses, namely, wires, terminals and connectors
bundled together to transmit electric power and signals to

Applicant did not assert any rights in this application based on its previously registered
marks.

2Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (October
2018).
3 Issued June 24, 2014.

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Serial No. 87593354

electric or electronic equipment mounted on the body parts
of automobiles” in International Class 12.4

When the refusal was made final, Applicant requested reconsideration. The

Examining Attorney denied that request, and Applicant subsequently filed an appeal.

We affirm the refusal to register.

I. Applicable Law

Section 2(d) of the Trademark Act prohibits registration of a mark that so

resembles a registered mark as to be likely, when used on or in connection with the

goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.

§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on

an analysis of all probative facts in the record that are relevant to the likelihood of

confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177

USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key

considerations are the similarities between the marks and the similarities between

the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See M2

Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.

2006) (even within du Pont list, only factors that are “relevant and of record” need be

considered).

4Issued July 30, 2013; Section 8 affidavit accepted, Section 15 affidavit acknowledged. The
registration includes the following description: “The mark consists of the words ‘HUSKY
TOWING PRODUCTS’ along with an image of a husky dog’s head turned sideways with a
bandana around its neck.”

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Serial No. 87593354

II. Similarity/Dissimilarity of the Marks

We first consider the du Pont likelihood of confusion factor of the similarity or

dissimilarity of the marks in their entireties in terms of sound, appearance, meaning

and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin

Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In

comparing the marks, we are mindful that “[t]he proper test is not a side-by-side

comparison of the marks, but instead ‘whether the marks are sufficiently similar in

terms of their commercial impression’ such that persons who encounter the marks

would be likely to assume a connection between the parties.” Coach Servs. Inc. v.

Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)

(citation omitted); see also San Fernando Electric Mfg. Co. v. JFD Elec. Components

Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc.,

23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The

proper focus is on the recollection of the average customer, who retains a general

rather than specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d

1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ

335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB

1975). In this case the average consumer is a vehicle owner.

Because the similarity or dissimilarity of the marks is determined based on the

marks in their entireties, our analysis cannot be predicated on dissecting the marks

into their various components; that is, the decision must be based on the entire

marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ

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Serial No. 87593354

749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d

1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be

dissected and considered piecemeal; rather, it must be considered as a whole in

determining likelihood of confusion.”). On the other hand, different features may be

analyzed to determine whether the marks are similar. Price Candy Co. v. Gold Medal

Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, there is nothing

improper in stating that, for rational reasons, more or less weight has been given to

a particular feature of a mark, provided the ultimate conclusion rests on a

consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at

751.

Applicant’s mark is HUSKY and the cited marks are HUSKY and HUSKY

TOWING PRODUCTS and design. Applicant’s mark is identical to the cited HUSKY

mark in appearance, sound, connotation and commercial impression. Indeed,

Applicant is silent on this point.

However, Applicant argues with respect to the cited HUSKY TOWING

PRODUCTS and design mark that it is distinguishable from its applied-for HUSKY

mark. We disagree and find those marks similar in appearance, sound and

connotation. Both marks include as the only or dominant element the word HUSKY.

While we do not disregard them, the additional words “towing products” in

Registrant’s mark have been disclaimed and are merely descriptive of the identified

goods. As such, those words have little or no source-indicating significance. See, e.g.,

In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 533-34 (Fed. Cir. 1997) (“DELTA,”

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Serial No. 87593354

not the disclaimed generic term “CAFE,” found the dominant portion of the mark

THE DELTA CAFE). Also, the block lettering is not so stylized that the stylization

creates a unique commercial impression apart from the words themselves and, thus,

the stylization does not obviate the similarities between the marks. Furthermore,

because Applicant is seeking registration of a standard character mark, its display is

not limited to any particular font, style, size, or color, and we therefore must consider

that Applicant’s mark might be used in any stylized display, including the same or

similar stylization of the lettering used by Registrant. See In re Viterra Inc., 671 F.3d

1358, 101 USPQ2d 1905, 1909-10 (Fed. Cir. 2012); Citigroup Inc. v. Capital City Bank

Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011).

Likewise, the design element of Registrant’s composite mark, which is described

in the registration as “an image of a husky dog’s head turned sideways with a

bandana around its neck,” fails to distinguish Registrant’s mark from Applicant’s

mark. Where both words and a design comprise a mark, the words are normally

accorded greater weight because they are more likely to make an impression upon

purchasers, would be remembered by them, and would be used by them to call for the

goods. In re Viterra Inc., 101 USPQ2d at 1908, citing CBS, Inc. v. Morrow, 708 F.2d

1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design

and words, the verbal portion of the mark is the one most likely to indicate the origin

of the goods to which it is affixed”). Moreover, the husky head design reinforces the

connotation imparted by the word HUSKY in Registrant’s mark. Applicant points out

that its mark includes no additional wording or design feature to “give context,” but

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Serial No. 87593354

it is likely that consumers may view the wording HUSKY in Applicant’s mark as

meaning the particular dog breed depicted in the design element of Registrant’s

composite mark, particularly since the word is arbitrary in connection with

Applicant’s goods.5

We recognize that in comparing the marks, we must consider Applicant’s and

Registrants’ marks in their entireties, not merely the dominant portions. Thus, we

have taken into account all of the differences in appearance, sound, and meaning

between them. We nonetheless find that despite these differences, given the

similarities between the marks in sound, appearance and meaning due to the shared

term HUSKY, the marks engender very similar overall commercial impressions.

Accordingly, the similarity between the marks is a factor that weighs in favor of a

finding of likelihood of confusion.

5 Applicant relies on the decision in Champagne Louis Roederer S.A. v. Delicato Vineyards,
47 USPQ2d 1459 (Fed. Cir. 1998) in support of its position. Unlike in that case where the
Court found the marks CRISTAL for champagne and CRYSTAL CREEK for wine dissimilar
in appearance, sound, meaning and commercial impression, for the reasons discussed, we
find the marks in this case similar in commercial impression. Applicant also relies on the
non-precedential decision In re Michael D. Mathes, Serial No. 85892200 (December 12, 2014)
where the Board found the marks SOUTH BEACH SWIMWEAR and SOUTH BEACH FOOD
& WINE FESTIVAL dissimilar. While applicants may cite to non-precedential decisions,
such decisions are not binding on the Board and the Board does not encourage this practice.
In re Fiat Grp. Mktg. & Corporate Commc’ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB
2014); In re Procter & Gamble Co., 105 USPQ2d 1119, 1121 (TTAB 2012). In any event, unlike
in the case here, and more fully discussed infra, the Board in the Mathes case found the
common element SOUTH BEACH to be an inherently weak source indicator.
It has been noted many times that each case must be decided on its own facts. See In re
Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some
prior registrations had some characteristics similar to [applicant’s] application, the PTO’s
allowance of such prior registrations does not bind the Board or this court.”); and In re
Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir.
1987).

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Serial No. 87593354

Before leaving this discussion, we observe that Applicant included a table in its

request for reconsideration featuring the mark, serial number, registration number

and the identified goods for six third-party registrations, all for the mark HUSKY,6

owned by a “multitude of different parties” and co-existing on the Principal Register.

Applicant argues with respect to these third-party registrations that such widespread

use indicates significant dilution of HUSKY such that the respective marks are easily

distinguished. We summarize the relevant table information below:

Registration Identification of Goods
No.
1773293 Injection molding machines and parts therefore; accessories for
injection molding machines, namely, take-off units, robot transfer
mechanisms, injection-blow equipment, un-screwing attachments,
scrap grinders, conveyors, stackers, sorters, cooling units and
molds in class 7
Propeller driven craft for water, ice and snow in class 12
2390728 Single engine, two-seat, high wing, short takeoff and landing stol
aircraft [class omitted from Applicant’s table]
3378768 Bicycle bells, bicycle frames, bicycle horns, bicycle parts, namely,
forks; bicycle parts, namely handle bar stems; bicycle pedals; bicycle
pumps, bicycle saddles, bicycles, inner tubes for bicycles, rims for
bicycle wheels, tricycles in class 12
3547039 Snow making machines, namely, blowers, implements operated
by machine and equipment for land, garden and forestry purposes,
namely, power tillers, plows, and snow groomers for maintaining
snow pistes, cross country skiing tracks and cross country races;
tillers and snow groomers for the treatment of surfaces covered with
snow or sand; snow grooming machine accessories, namely, tracks,
power tillers, power shovels and blades in class 7

6 Applicant submitted plain copies of those registrations with its request. Because the
Examining Attorney treated the registrations as being properly of record, we do the same.
See In re Olin Corp., 124 USPQ2d 1327, 1335 n.22 (TTAB 2017) (although the Board does not
take judicial notice of registrations, because the examining attorney addressed applicant’s
registrations in her brief and neither objected to the discussion of the other, Board treated
both registrations as though they are of record); In re Total Quality Group Inc., 51 USPQ2d
1474, 1477 n.6 (TTAB 1999) (examining attorney did not object to listing of third-party
registrations, rather he treated the registrations as if they were of record).

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Serial No. 87593354

Tracked vehicles for transport of materials and people, namely,
allterrain self-propelled tracked vehicles; off-road all terrain
vehicles in class 12
4984813 Tire repair kits comprised of a patch, an adhesive and a patch
applicator, inflation needles for tire pumps in class12
4994241 Mechanics’ creepers in class 12

These third-party registrations do not persuade us that HUSKY is so weak due to

common usage that confusion is not likely between Applicant’s and Registrant’s

marks. Not only do they not evidence use of the subject marks, with the exception of

the goods identified in Class 12 of Registration No. 3547039 and possibly the goods

identified in Registration No. 4984813, the identified goods in the other listed

registrations are in fields unrelated to vehicles and vehicle parts and accessories.

Third-party registrations for goods and services in different industries do not

diminish the scope of protection to be afforded a cited mark. To establish weakness,

the identified goods and services should be in the same or highly related fields. See

In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017)

(disregarding third-party registrations for other types of goods where the proffering

party had neither proven nor explained that they were related to the goods in the

cited registration). These at best two third-party registrations do not evidence such a

widespread and significant use of the word HUSKY in the vehicle accessory industry

that we can conclude that the cited mark is so weak that the public would be able to

distinguish the source of Applicant’s goods from those of Registrant by the differences

in their respective marks. Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.

KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 n.2

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Serial No. 87593354

(Fed. Cir. 2015) (at least 14 relevant third-party uses or registrations of record); Juice

Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1672 n.1 (Fed.

Cir. 2015) (at least 26 relevant third-party uses or registrations of record); see also In

re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 (TTAB 2017); In

re Broadway Chicken Inc., 38 USPQ2d 1559 (TTAB 1996) (“Broadway” is weak for

restaurant services based on evidence that hundreds of restaurants and eating

establishments use Broadway as a trademark or trade name).

Accordingly, this du Pont factor is neutral.

III. Relatedness of the Goods

We now turn to a comparison of the goods under the second du Pont factor, keeping

in mind the greater the degree of similarity between Applicant’s mark and the cited

marks, the lesser the degree of similarity between Applicant’s goods and Registrant’s

goods that is required to support a finding of likelihood of confusion. In re Opus One,

Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re Concordia Int’l Forwarding Corp.,

222 USPQ 355, 356 (TTAB 1983). As regards the identical marks, there need only be

a viable relationship between the goods to find that there is a likelihood of confusion.

See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even

when the goods or services are not competitive or intrinsically related, the use of

identical marks can lead to the assumption that there is a common source”);

Concordia International Forwarding Corp., 222 USPQ at 356.

In making our determination regarding the relatedness of the goods, we must look

to the goods as identified in Applicant’s application and the cited registrations. See

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Serial No. 87593354

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

re Dixie Rest. Inc., 41 USPQ2d at 1534; see also Hewlett-Packard Co. v. Packard Press

Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). “This factor considers whether

‘the consuming public may perceive [the respective goods of the parties] as related

enough to cause confusion about the source or origin of the goods and services.’” In re

St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014).

It is well settled that Applicant’s and Registrant’s goods do not have to be identical

or directly competitive to support a finding that there is a likelihood of confusion. On-

line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir.

2000). It is sufficient if the respective goods are related in some manner and/or that

the conditions surrounding their marketing are such that they would be encountered

by the same persons under circumstances that could, because of the similarity of the

marks used in connection therewith, give rise to the mistaken belief that they

emanate from or are associated with a single source. In re Albert Trostel & Sons Co.,

29 USPQ2d 1783, 1785 (TTAB 1993).

Under this du Pont factor, the Trademark Examining Attorney need not prove

similarity as to each and every product listed in the description of goods. It is

sufficient for a refusal based on likelihood of confusion that relatedness is established

for any item encompassed by the identification of goods in a particular class in the

application. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209

USPQ 986, 988 (CCPA 1981); i.am.symbolic, 116 USPQ2d at 1409; Inter IKEA Sys.

B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).

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Serial No. 87593354

As noted earlier Applicant’s goods are identified as follows:

vehicle parts and accessories, namely, exterior body panel
add-ons; vehicle hood protectors; vehicle window shades;
vehicle cargo nets; vehicle seat protectors and covers;
vehicle seat organizers and storage containers; leather
performance seats for vehicles; fitted floor mats and liners
for the cargo area of vehicles; fitted cargo and trunk liners
for the cargo area of vehicles; fitted dashboard covers and
kits comprised of fitted dashboard covers and conceal
covers in the nature of fitted covers for vehicles; sun visors
for vehicles; fitted car covers; wind deflectors for vehicles;
fender flares and trim; license plate frames; wheel well
guards for vehicles; mud guards and mud flaps for vehicles;
grill guards and bull bars for vehicles; tonneau covers in
the nature of fitted pickup truck bed covers; fitted pickup
truck bed liners; storage systems for pickup truck beds,
namely, storage boxes and containers especially adapted to
fit and attach to vehicles; pickup truck bed caps; fitted
pickup truck bed mats; fitted pickup truck tailgate mats;
truck bed rail protectors in the nature of rail caps; truck
bed tailgates in the nature of retractable tailgate benches;
vehicle camera mounts; caps for pickup truck bed rails and
tailgates; pickup truck bed caps; step systems for vehicles,
namely, steps for attachment to vehicles, step rails for
attachment to vehicles; vehicle bumpers; vehicle skid
plates; pre-runners for vehicles, namely, off-road and on-
road bumpers; rear-runners for vehicles, namely, rear off-
road and on road bumpers; roof mounts for vehicle lighting
apparatus; after-market automotive accessories, namely,
metal decorative trim for vehicle interiors, dashboards and
exterior body molding, and vehicle grills; exterior insignia
badges for vehicles; decorative decals for vehicles windows;
fitted floor liners for vehicles (Class 12);

tinted plastic film for use on windows (Class 17);

protective unfitted and semi-fitted liners for the cargo area
of vehicles; semi-fitted and unfitted car covers; semi-fitted
and unfitted pickup truck bed liners; semi-fitted and
unfitted floor liners for vehicles; semi-fitted and unfitted
pickup truck bed mats; semi-fitted and unfitted pickup
truck tailgate mats; semi-fitted and unfitted floor liners for
vehicles (Class 22); and

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Serial No. 87593354

fitted, semi-fitted and unfitted floor mats for vehicles
(Class 27), and

Registrant’s goods are identified as follows:

trailer-mounted power jacks; power tongue jacks for
trailers (Class 7);

trailer electrical accessories, namely, electronic brake
controls, electrical trailer connectors, electrical adapters
for trailers, electric tail light converters, tail light isolators,
and trailer wiring harnesses, namely, electric wires and
cables (Class 9); and

hitch-receiver-mounted cargo trays; hitch-receiver-
mounted bicycle carriers; hitch-mount racks for vehicles for
bikes, scooters, motorbikes and motorcycles; trailer
hitches; land vehicle parts in the nature of wire harnesses,
namely, wires, terminals and connectors bundled together
to transmit electric power and signals to electric or
electronic equipment mounted on the body parts of
automobiles (Class 12).

The Examining Attorney maintains that the goods are related for likelihood of

confusion purposes, all being various car, truck and trailer accessories that may

emanate from a single source under a single mark, that travel in the same trade

channels and are encountered by the same class of consumers. In support of her

position, the Examining Attorney made of record web pages from various websites,

i.e., Autosport Automotive Outfitters, Bestop, Pilot Automotive, Reese and Rola,

showing use of the same mark for one or more goods of the types identified in both

Applicant’s application and the cited registrations.7 She also made of record web

pages from AutoZone, Advance Auto Parts and Napa Auto Parts showing that the

identified goods of both Applicant and Registrant are sold or provided through the

7 August 2, 2018 Final Office Action; TSDR 11-63.

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Serial No. 87593354

same channels and used by the same classes of consumers in the same fields of use.8

The table summarizing this evidence reproduced from the Examining Attorney’s brief

follows:

Website Goods
https://www.autosportcatalog.com manufacturing floor mats, car covers, seat
covers, license plate frames, sun shades, and
bike racks under the name “AUTOSPORT”
https://www.bestop.com/ manufacturing tonneau covers, seat covers, floor
liners, and cargo racks under the name
“BESTOP”
http://www.pilotautomotive.com/ manufacturing tonneau covers, bike racks, and
trailer lighting accessories for vehicles under the
name “PILOT AUTOMOTIVE”
http://www.reesebrands.com/ manufacturing floor mats, car covers, bike racks,
trailer lighting accessories, electronic brake
controllers, tail light converters, trailer hitches,
and hitch-receiver-mounted cargo trays under
the name “REESE”
http://www.rolaproducts.com/ manufacturing storage boxes and containers,
cargo carriers, and bike carriers under the name
“ROLA”
https://www.autozone.com/ providing tinted plastic film for windows, cargo
liners, electronic brake controls, mud flaps in the
same trade channels under the name
“AUTOZONE”
https://shop.advanceautoparts.com/ providing tinted plastic film for windows, cargo
liners, car covers, license plate frames, tail light
converters, and trailer hitches under the name
“ADVANCE AUTO PARTS”
https://www.napaonline.com providing tinted plastic film for windows, cargo
liners, floor liners, electronic brake controls, tail
light converters, bumpers, truck bed caps, and
trailer hitches under the name “NAPA AUTO
PARTS”

The Examining Attorney also made of record copies of use-based, third-party

registrations for marks covering one or more items of the types identified in both

Applicant’s application and the cited registrations.9 Third-party registrations that

individually cover different goods and that are based on use in commerce serve to

8 Id. at TSDR 64-141.
9 December 16, 2017 Office Action; TSDR 20-99.

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Serial No. 87593354

suggest that the listed goods are of a type that may emanate from a single source. See

Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although third-

party registrations are “not evidence that the marks shown therein are in use on a

commercial scale or that the public is familiar with them, [they] may nonetheless

have some probative value to the extent that they may serve to suggest that such

goods or services are of a type which may emanate from a single source”). See also

Albert Trostel, 29 USPQ2d at 1786. We focus on the registrations that the Examining

Attorney highlighted in her brief which include:10

Registration Mark Pertinent Goods11
No.
431599812 MAINE TRAILER Hitches, trailers, cargo carriers for
vehicles, trailer jacks, and mud flaps
435763213 AUTO DYNAMICS Utility vehicle and all-terrain cargo racks,
GROUP and design seat covers, covers for dashboard, truck
bed liners, mud flaps, and vehicle seat
organizers
476727014 CRYSTEEL Body panels, truck bed liners, trailer
hitches, trailers, and truck bed storages
organizers
517282215 TRAILMAKER Body panels, trailers, cargo storage bins,
fitted truck bed liners, trailer hitches,
cargo trailers, and truck bed storage
organizers

10We give no probative value to the other third-party registrations made of record by the
Examining Attorney because they do not include goods of the types listed in both Applicant’s
application and the cited registrations.
11 The registrations include additional goods and services that are not relevant to this appeal.
12 December 16, 2017 Office Action; TSDR 48-50.
13 Id. at TSDR 54-56.
14 Id. at TSDR 63-65.
15 Id. at TSDR 76-79.

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Serial No. 87593354

534972016 AUTOJARE and Cargo carriers for vehicles, racks for
design bicycles, and vehicle bumpers

We find on the face of the identifications that Registrant’s hitch-receiver-mounted

cargo trays are complementary to Applicant’s fitted cargo and trunk liners for the

cargo area of vehicles and vehicle cargo nets (Class 12) and semi-fitted and unfitted

floor liners for vehicles (Class 22), in that they may be used together to prevent

damage to cargo and the cargo trays, as well as complementary to Applicant’s storage

systems for pickup truck beds, namely, storage boxes and containers especially

adapted to fit and attach to a vehicle (Class 12) because both goods are for the storage

of cargo. We further find the third-party use and registration evidence sufficient to

show that Applicant’s identified goods are related and complementary to Registrant’s

identified goods, such goods all being vehicle parts and accessories that are often sold

by the same source under the same mark, and in the same trade channels to the same

class of consumer.

Applicant’s arguments to the contrary are unavailing. We are unpersuaded by

Applicant’s argument that the goods “are completely different and for different

purposes.”17 As stated, the goods need not be identical; rather, they need only be

related in such a manner that they could be encountered by the same consumer under

situations that would lead to the mistaken belief that they originate from the same

16 Id. at TSDR 97-99.
17 Applicant’s brief p. 11, 4 TTABVUE 10.

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Serial No. 87593354

source.18 Coach Servs., 101 USPQ2d at 1723. Moreover, and as discussed above, we

find the respective goods related and complementary vehicle parts and accessories.

The du Pont factor of the relatedness of the goods thus strongly favors a finding

of likelihood of confusion.

IV. Relatedness of the Trade Channels/Classes of Consumers

Because there are no limitations as to channels of trade or classes of purchasers

in Applicant’s or Registrant’s identifications of goods, we must presume that

Applicant’s and Registrant’s goods move, or will move, in all channels of trade usual

for these goods, including online and brick and mortar automotive parts stores and

are, or will be, purchased by the usual classes of purchasers which, in this case,

include ordinary consumers. See In re Viterra Inc., 101 USPQ2d at 1908; In re

Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). We accordingly find that the

channels of trade and classes of consumers, at a minimum, overlap.

The third du Pont factor weighs in favor of a finding of likelihood of confusion.

V. Sophistication of the Purchasers

Applicant contends that consumers of the respective products “exercise a high

degree of care when selecting such products, because they must be compatible with

18 That the specimens of record (including a copy of the specimen of use filed by Registrant
with its underlying application, made of record by Applicant during prosecution) “show the
clear differences between the goods” does not alter our finding. As noted, even if they show a
difference between the goods, an applicant may not restrict the scope of the goods covered in
a cited registration by argument or extrinsic evidence. In re Midwest Gaming &
Entertainment LLC, 106 USPQ2d 1163, 1165 (TTAB 2013); In re La Peregrina Ltd., 86
USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB
1986).

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Serial No. 87593354

particular vehicles and must fit very specific purposes.” (Applicant’s br. p. 8.) We

agree that the nature of both Applicant’s and Registrant’s goods leads us to conclude

that consumers will exercise some degree of care with regard to compatibility and fit.

However, unlike in case of In re Thor Tech, Inc., 113 USPQ2d 1546, 1551 (TTAB

2015), relied upon by Applicant, we do not believe that the degree of care exercised

by the consumers in this case rises to a level that would distinguish the marks. That

is, even knowledgeable and careful purchasers can be confused as to source, especially

where, as here, identical and very similar marks are used in connection with

complementary and related goods. See In re Research Trading Corp., 793 F.2d

1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman

& Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories

even of discriminating purchasers … are not infallible.”)). See also Refreshment Mach.

Inc. v. Reed Indus., Inc., 196 USPQ 840, 843 (TTAB 1977) (selling to a sophisticated

purchaser does not automatically eliminate the likelihood of confusion because “[i]t

must also be shown how the purchasers react to trademarks, how observant and

discriminating they are in practice, or that the decision to purchase involves such

careful consideration over a long period of time that even subtle differences are likely

to result in recognition that different marks are involved”).

We find that this du Pont factor somewhat favors Applicant.

VI. Conclusion

We conclude that confusion is likely between Applicant’s HUSKY mark for the

identified vehicle parts and accessories and the cited HUSKY and HUSKY TOWING

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Serial No. 87593354

PRODUCTS and design marks for the identified vehicle parts and accessories. We

conclude so principally due to the identical or substantially similar marks, the related

and complementary nature of the goods, and the presumed overlap in trade channels

and purchasers, which is not outweighed by any care exercised by consumers during

the purchasing process.

Decision: The refusal to register Applicant’s mark HUSKY under Section 2(d) of

the Trademark Act is affirmed.

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