Test Your TTAB Judge-Ability: Are TEKSTONE and STONTEC Confusingly Similar for Vinyl Flooring?
Applicant Metroflor applied to register the mark TEKSTONE for "vinyl floor tile," but StonCor opposed, claiming likely confusion with its registered mark STONTEC for "non-metal floors, namely, vinyl flake decorated and colored floors, aspartic urethane-based floors." Metroflor filed a cross-motion for summary judgment under Section 2(d). How would you rule? StonCor Group, Inc. v. Metroflor Corporation, Opposition No. 91194599 (June 24, 2011) [not precedential].
The Board granted StonCor's motion for summary judgment, sustaining the opposition. It found the goods to be "closely related, if not identical," and that these flooring products presumably travel through overlapping channels of trade to overlapping classes of consumers.
With the goods so closely related, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. The Board observed that "the transposition of terms is not always sufficient to distinguish the resulting marks." Here, the transposition does not "add anything which would change the commercial impression fostered by these marks." They are similar in sound and appearance, and "engender the same suggestive connotations inasmuch as they both reference stone technology."
Applicant Metroflor feebly pointed to the lack of evidence of actual confusion, but of course that is not the test. In any case, Applicant submitted no evidence to show that there was any opportunity for confusion in the marketplace.
And so the Board sustained the opposition.
TTABlog comment: I don't think these marks are similar enough. They look and sound too different, and "stone" and "tech" are weak formatives. Are people really dumb enough to confuse TEKSTONE with STONTEC?
Stoncor, who claims to be the world leader in commercial and industrial flooring, seems to be a rather aggressive TTAB litigant. It seems to leave no stone unturned when it comes to policing the word "stone." I wonder if its has every resorted to the "rock-it" docket down in Virginia?
Text Copyright John L. Welch 2011.