There is no rule that different types of goods for motor vehicles are per se related. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“The Board must decide each case on its own merits.”); see also H.D. Lee Co., Inc. v. Maidenform, Inc., 87 USPQ2d 1715,1723 (TTAB 2008) (no per se rule that clothing products are per se related); On-Cor Frozen Foods, Inc. v. Ralston Purina Co., 220 USPQ 567, 569 (TTAB 1983) (“[I]n view of the specific fact situations in the foregoing cases and keeping in mind that there is no per se rule regarding food items but that each case must be decided on its own facts”).

But “even if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000).

Aftermarket Shock Absorbers v. Structural Parts

In In re DRiV Automotive, Inc., Ser. No. 87720124 (TTAB Aug. 24, 2023), the TTAB found that there was a lack of evidence in the record showing a relationship between the goods outweighs the similarity of the marks and overlapping trade channels and renders confusion unlikely with respect to the applied-for X-LANDER mark for “Aftermarket shock absorbers for vehicles,” in view of the registered mark LANDER mark for, among other things, structural parts for land vehicles.

            Applicant's goods are “Aftermarket shock absorbers.” Registrant's goods include “engines,” “structural parts for land vehicles” “wheels for vehicles; alloy wheels; wheel covers; “arm rests for vehicle seats,” “fitted car seat covers;” “covers for vehicle steering wheels;” and “fitted covers for vehicles.” [these particular goods were identified in the Examining Attorney's brief in connection with the website evidence of record].

***

            The particular relatedness evidence submitted by the Examining Attorney consists of web pages from various auto parts stores and websites (Napa Auto Parts, AutoZone, Advanced Auto Parts, CARiD, BAP Buy Auto Parts, CarParts.com, Parts Geek, and JEGS), purportedly to show that the same entity provides Applicant's goods and Registrant's goods under the same mark. . . . To the extent that the Examining Attorney broadly references “various vehicle parts” and “auto accessories” on these web pages as a basis for finding relatedness to aftermarket shock absorbers, we find this argument nonspecific and lacking in evidentiary support.

            Most of this webpage evidence consists merely of broad category listings that allow the consumer to link to specific webpages to see the actual product listings. . . . None of these category lists associate brand names with the particular goods to show that Applicant's goods and certain goods of Registrant emanate from the same source.

***

            We find the third-party webpages from the Sept. 28, 2021 and Mar. 11, 2022 Office actions do not show on their face that motor vehicle accessory manufacturers and motor vehicle parts manufacturers are the same. In fact, the preceding Advance Auto Parts webpages that list the names of popular manufacturers for parts, on one web page, and for motor vehicle accessories, on another web page, (Sep. 28, 2021 Office action at TSDR 11 and 13), support a finding that the manufacturers are not the same.

For other webpages of record with actual product listings, “none of these webpages show the same entity offering a shock and strut mount, strut assembly, or shock absorbers under the same brand name.”

Furthermore, there was no evidence in the record that explains what structural parts for land vehicles are or what they consist of, or that shock absorbers are a structural part. Accordingly, the TTAB found the assertion that the goods were legal identical “to be merely unsupported argument.”

However, the website evidence from Napa Auto Parts, AutoZone, Advanced Auto Parts, Carid, BAP Buy Auto Parts, CarParts.com, Parts Geek, and JEGS did show that automotive stores and parts suppliers offer motor vehicle accessories and replacement parts such as shock absorbers on the same websites, albeit different web pages—which was sufficient to show trade channel overlap. See In re Joel Embiid, 2021 USPQ2d 577, at *31 (TTAB 2021) (evidence showing that shoes and shirts are sold together on the websites of clothing companies supports a finding of related trade channels).

Nonetheless, because the dissimilarity between the goods outweighs the similarity of the marks and overlapping trade channels, the TTAB reversed the refusal to register Applicant's X-LANDER mark.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.