TTABlog Test: Are Industrial Heat Exchangers Related to Vacuum Cleaners Under Section 2(d)?

The USPTO refused to register the mark SPINFLOW & Design for "heat exchangers, other than parts of machines, for industrial use," finding confusion likely with the registered mark SPINFLOW (standard characters) for "vacuum cleaners, robotic vacuum cleaners and parts thereof; robotic appliances for household purposes and maintenance and parts thereof, namely, robotic vacuum cleaners and parts thereof." The Board found the marks to be "very similar," but what about the goods? In re Zhenhai Petrochemical Jianan Engineering Co., Ltd., Serial No. 79381020 (February 5, 2026) [not precedential] (Opinion by Judge David K. Heasley).

Applicant Zhenhai stumbled out of the gate by devoting its main brief to an argument that its mark was not merely descriptive under 15 U.S.C. § 1052(e)(1). However, the issue was likelihood of confusion, not mere descriptiveness. The examining attorney's brief did discuss the DuPont factors, and Zhenhai's reply brief addressed the Examining Attorney’s Section 2(d) arguments. The Board, noting that a non-conforming will not cause dismissal of an appeal, exercised its discretion to consider Zhenhai's reply brief, along with its responses to the Office Actions.

Since the involved goods are not identical on the face of the identifications of goods, and since the goods are not complementary, the examining attorney relied on seven third-party websites purporting to offer both kinds of goods (including Home Depot and Lowe's). Zhenhai argued that “mere retailer overlap does not establish relatedness; probative evidence would include examples of a single entity offering both goods under a single mark. None exists here.” The Board agreed with Zhenhai.

This third-party evidence does not show manufacturers, producers or dealers selling the items under their own marks, but large retailers primarily selling others’ goods bearing the manufacturers’ and producers’ trademarks. Not one third-party use example shows heat exchangers and vacuums bearing the same trademark. Naterra, 92 F.4th at 1117. None of this third-party evidence shows how consumers would be educated to perceive the respective goods as emanating from a common source.

The Board cited several analogous cases involving large brick-and-mortar retailers. “The evidence provided … is not sufficient to show that consumers would believe that the same company that sells [vacuum cleaners] would also sell [industrial heat exchangers], even when they see the goods offered in the same store.” North Face Apparel Corp. v. Sanyang Indus. Co., No. 77375588, 2015 WL 6467820, *16 (TTAB 2015).

As to trade channels, the third-party evidence indicated that vacuum cleaners and heat exchangers "are available through a very broad channel of trade, in the sense of being offered by large distributors and retailers." However, vacuum cleaners and heat exchangers are offered under different categories online, and would presumably be displayed in different aisles of brick-and-mortar stores, since they serve distinctly different purposes. The Board concluded that the goods are offered in overlapping broad channels of trade, but "would not tend to be displayed in proximity to one another."

As to classes of consumers, the Board observed that, "given the disparity in the goods, we cannot presume that their classes of purchasers would be the same." "The purchasers responsible for buying Registrant’s vacuum cleaners would not be expected to exercise as great a degree of care, but as noted, there is no reason to presume that they would be involved in purchasing Applicant’s products."

Given the inherent technical nature of Zhenhai’s goods and each purchaser’s need to conform those goods to its own industrial needs, the purchasing process would be “so attenuated and lengthy … that there is time for all involved to understand clearly and completely the vendors with whom they are dealing."

The Board concluded that the goods are "so different in kind that purchasers are unlikely to believe they emanate from a single source. The third-party use evidence does nothing to bridge this gap, and in fact widens it, as it shows vacuums and heat exchangers offered under different brands."

And so, the Board reversed the refusal to register.

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TTABlogger comment: WYHRR? Would you have refused registration?

Text Copyright John L. Welch 2026.