TTABlog Test: Are These Two Word-And-Design Marks Confusable for Keys and Key Blanks?

The USPTO refused to register the mark shown below left, for "pre-fabricated metal ignition keys for starting heavy equipment, namely construction and agricultural equipment" [disclaimer of EQUIP KEY CO required], finding confusion likely with the registered mark shown below right, for "metal, brass and aluminum key blanks; metal and aluminum key chains; metal and brass locks, lock cylinders, pad locks and door locks" [representation of a key disclaimed]. The Board affirmed the refusal based on the applicant's failure to comply with the disclaimer requirement. But what about the Section 2(d) refusal? In re EquipKeyCo, LLC, Serial No. 97344289 (June 10, 2025) [not precedential] (Opinion by Judge Albert J. Zervas).

Disclaimer: Dictionary definitions of "equip," "key," and "co" submitted by Examining Attorney Michael Kazazian, convinced the Board that disclaimer of EQUIPKEY CO is required. Applicant's failure to disclaim that term was itself sufficient to support refusal of the application.

The Goods: Internet evidence consisting of webpages from a number of sources established that the same entity commonly provides prefabricated metal ignition keys and key blanks under the same mark. Furthermore, applicant's specimen of use states, “32 of our most popular heavy construction equipment keys on 1 ring …. These are not basic machine key copies. They are designed and manufactured to meet or exceed the quality of most other keys used on heavy construction equipment." Thus, applicant’s goods "are related to key rings – or key chains – because they are used together, with the ring holding the keys."

Trade Channels: The Board found that the internet "is a trade channels for such goods and the DuPont factor involving trade channels favors a finding of likelihood of confusion." [The internet is a trade channel for everything, I suppose - ed.].

Purchaser Care: Because of a lack of evidence, the Board was unable to find that those who operate or own heavy equipment are sophisticated, or take anything but ordinary care, in purchasing low-cost goods. Moreover, applicant did not argue that purchasers of key chains - goods within Respondent’s identification of goods - are sophisticated. The Board therefore found the third DuPont factor to be neutral.

The Marks: The Board observed that "KEYCO" has conceptual weakness and is not a particularly distinctive term for Registrant’s goods. It found this term to be "distinctive, but highly suggestive of Registrant’s identified goods, and an extremely weak source indicator."

Looking at the marks in their entireties, the design portions are very different overall. The literal portions are different as well due to the addition of the term EQUIP. Given the conceptual weakness of the element “KEYCO,” we find that consumers will look to other aspects of these marks to distinguish source, and that the addition of EQUIP and the design elements of Applicant’s mark are sufficient to distinguish it from the cited mark.

Conclusion: The Board found the first DuPont factor to be dispositive, and so it reversed the Section 2(d) refusal.

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TTABlogger comment: I'll bet you got it right! BTW: the Board allowed applicant thirty days to submit the required disclaimer.

Text Copyright John L. Welch 2025.