Apple, Inc.v.Echospin, LLC

Trademark Trial and Appeal Board

Jun 29, 2010

No. 91171592 (T.T.A.B. Jun. 29, 2010)

Mailed:
June 29, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Apple, Inc.1

v.

Echospin, LLC
_____

Opposition No. 91171592
to Application Serial No. 76613376
_____

Joseph Petersen and Robert N. Potter of Kilpatrick Stockton
LLP, for Apple, Inc.

Jon Lowy, pro se, for Echospin, LLC.
______

Before Bucher, Walsh, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Apple, Inc. has opposed the application of Echospin,
LLC to register the mark shown below for “software for the
collection, storage, processing, modification, organization,
transmission, and sharing of data and information, including
digital media,” in International Class 9; and “computer
service, namely, acting as an application service provider

1 When this opposition was initiated on June 28, 2006, opposer
was known as Apple Computer, Inc., but changed its corporate name
on January 9, 2007.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91171592
2
in the field of information processing to host computer
application software for the collection, storage,
processing, modification, organization, transmission, and
sharing of data and information, including digital media,”
in International Class 422:

Opposer has brought this opposition proceeding on the
grounds of priority and likelihood of confusion as well as
likelihood of dilution. As grounds for opposition, opposer
has alleged that it owns registrations for the mark APPLE,
in standard character format, as well as the mark as shown
below, and a family of marks combined thereof, as follows:

2 Application Serial No. 76613376, filed September 29, 2004,
pursuant to Trademark Act Section 1(b); 35 USC §1052(b),
asserting a bona fide intent to use in commerce.
Opposition No. 91171592
3

1. Registration No. 1078312 (APPLE) for “computers
and computer programs recorded on paper and tape,” in
International Class 9;3
2. Registration No. 1114431 (design) for “computers
and computer programs recorded on paper and tape,” in
International Class 9;”4
3. Registration No. 2079765 (APPLE) for
“communication filed by computer, namely, electronic
transmission of data and documents via computer, delivery of

3 Registered November 29, 1977, based on first use and first use
in commerce on April 30, 1964. Sections 8 and 15 affidavits
accepted and acknowledged. Renewed.
4 Registered March 6, 1979, based on first use and first use in
commerce on January 31, 1977. Sections 8 and 15 affidavits
accepted and acknowledged. Renewed twice.
Opposition No. 91171592
4
messages by electronic transmission,” in International Class
38;5
4. Registration No. 2715578 (design) for “computers
hardware; computer hardware, namely, server, desktop,
laptop, notebook and subnotebook computers; hand held and
mobile computers; computer monitors; personal digital
assistants; portable digital audio players; electronic
organizers; computer keyboards, cables, modems; audio
speakers; computer video control devices, namely, computer
mice, a full line of computer software for business, home,
education, and developer use; computer programs for personal
information management; database management software;
electronic mail and messaging software; database
synchronization software; computer programs for accessing,
browsing and searching online databases; operating system
software; application development tool programs; blank
computer storage media; fonts, typefaces, type designs and
symbols recorded on magnetic media; computer software for
use in providing multiple user access to a global computer
information network for searching, retrieving, transferring,
manipulating and disseminating a wide range of information;
computer software for use as a programming interface;
computer software for use in network server sharing; local

5 Registered July 15, 1997, based on first use and first use in
commerce on April 9, 1994. Sections 8 and 15 affidavits accepted
and acknowledged. Renewed.
Opposition No. 91171592
5
and wide area networking software; computer software for
matching, correction, and reproduction of color; computer
software for use in digital video and audio editing;
computer software for use in enhancing text and graphics;
computer software for use in font justification and font
quality; computer software for use to navigate and search a
global computer information network, as well as to organize
and summarize the information retrieved; computer software
for use in word processing and database management; word
processing software incorporating text, spreadsheets, still
and moving images, sounds and clip art; computer software
for use in authoring, downloading, transmitting, receiving,
editing, extracting, encoding, decoding, playing, storing
and organizing audio, video, still images and other digital
data; computer software for analyzing and troubleshooting
other computer software; children's educational software;
computer game software; computer graphics software; Web site
development software; computer program which provides remote
viewing, remote control, communications and software
distribution within personal computer systems and across
computer network; computer programs for file maintenance and
data recovery; computer peripherals; instructional manuals

Opposition No. 91171592
6
packaged in association with the above,” in International
Class 9;6
5. Registration No. 2753069 (design) for “Application
service provider (ASP), namely, hosting computer software
applications of others; computer services, namely,
displaying the web sites and images of others on a computer
server; computer diagnostic services; installation of
computer software; updating of computer software;
maintenance of computer software; computer hardware
development; integration of computer systems and networks;
monitoring the computer systems of others for technical
purposes and providing back-up computer programs and
facilities; computer consultation, design, and testing
services; consulting services in the field of design,
selection, implementation and use of computer hardware and
software systems for others; computer data recovery;
computer programming for others; research and development of
computer hardware and software; website design, creation and
hosting services; computer services, namely, designing and
implementing web sites for others; computer services,
namely, providing search engines for obtaining data on a
global computer network; providing use of on-line non-
downloadable software for communications via local or global

6 Registered May 13, 2003, based on first use and first use in
commerce on January 1, 1977. Sections 8 and 15 affidavits
accepted and acknowledged.
Opposition No. 91171592
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communications networks, including the Internet, intranets,
and extranets; computer consultation, namely, analyzing data
to detect, eradicate, and prevent the occurrence of computer
viruses; computer consultation, namely, services relating to
the protection of computer hardware, computer software,
computer networks and computer systems against computer
viruses, attacks, or failures; computer consultation,
namely, services for optimizing the performance and
functionality of computer software and communications
networks; technical support services, namely,
troubleshooting of computers, computer software,
telecommunications, and the Internet systems; leasing of
computers, computer peripherals and computer software;
leasing computer facilities. providing information in a wide
variety of fields over computer networks and global
communication networks; computer services, namely, creating
indexes of information, web sites and other information
sources available on computer networks; providing
information concerning a wide range of text, electronic
documents, databases, graphics and audiovisual information,”
in International Class 42;7
6. Registration No. 2808567 (APPLE) for “computer
consultation, design, testing, research and advisory

7 Registered August 19, 2003, based on first use and first use in
commerce on September 30, 1980. Sections 8 and 15 affidavits
accepted and acknowledged.
Opposition No. 91171592
8
services; research and development of computer hardware and
software; maintenance and repair of computer software
applications; updating of computer software; computer
programming services; providing information concerning
computers and computer software over computer networks and
global communication networks; computer services, namely,
hosting web sites and providing web site operation and
management services to others; computer services, namely,
providing search engines for obtaining data on computer
networks and global communication networks; leasing of
computers, computer peripherals and computer software,” in
International Class 42.8
7. Registration No. 2870477 (design) for
“telecommunication services, namely, electronic transmission
of data and images via computer networks; electronic mail
services; providing on-line electronic bulletin boards for
transmission of messages among computer users in the fields
of business, creative design, education, computers,
information technology, word processing, database
management, entertainment, electronic commerce and
telecommunications; telecommunications consultation;
delivery of messages by electronic transmission; electronic

8 Registered on January 27, 2004, based on first use and first
use in commerce on September 30, 1980.
Opposition No. 91171592
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transmission of data and information by computer, radio,
mail, providing Internet access,” in International Class 389
8. Registration No. 2926853 (design) for “analysis
and consultation in the field of business information
management, namely, the selection, adoption and operation of
computers and computer information management systems;
providing information in the fields of business and commerce
over computer networks and global communication networks;
business services, namely, providing computer databases
regarding the purchase and sale of a wide variety of
products and services of others; business services, namely,
dissemination of advertising for others via computer
networks and global communication networks; retail store
services featuring computers, computer software, computer
peripherals and consumer electronics, and demonstration of
products relating thereto; online retail store services
provided via computer networks and global communication
networks featuring computers, computer software, computer
peripherals and consumer electronics, and demonstration of
products relating thereto,” in International Class 35.10
Opposer has brought this opposition proceeding on the
grounds of priority and likelihood of confusion as well as
likelihood of dilution. Applicant has denied the salient

9 Registered August 3, 2004, based on first use and first use in
commerce on April 9, 1994.
Opposition No. 91171592
10
allegations in the notice of opposition. Both parties filed
briefs, and opposer filed a reply brief. Applicant filed a
document that it referred to as “Applicant’s Reply Brief,”
to which opposer filed a motion to strike. We note that, as
applicant points out, it is represented pro se by one of its
co-founders. However, the Board did refer applicant to
Trademark Rule 2.128 several times, including in orders
dated August 25, 2009 and October 6, 2009. Accordingly, we
refer applicant to that rule in stating that there is no
provision for the filing of a sur-reply in this
proceeding.11 Accordingly, opposer’s motion to strike is
granted and we have not considered applicant’s filing,
The Record and Facts of the Proceeding
The record includes the pleadings; the file of the
opposed registration by operation of Trademark Rule
2.122(b)(1); and the testimony, with exhibits, of the
following witnesses:
1. Thomas R. La Perle, Director of Legal of Apple, Inc.,
dated April 23, 2009.
2. Sarah Walters, freelance graphics designer, dated
February 4, 2009.
3. Jon Walter Lowy, co-founder of Echospin, dated July
23, 2009.

10 Registered February 15, 2005, based on first use and first use
in commerce on December 31, 1983 in both classes.
Opposition No. 91171592
11
The record also contains six separate notices of reliance
filed by opposer including:
1. Portions of the discovery deposition and accompanying
exhibits of Jon Lowy, co-founder of Echospin;
2. Certain discovery responses from applicant.
3. Print publications, submitted to show the fame of
Apple, Inc., and its marks.
4. Certified status and title copies of the eight pleaded
registrations.
5. A certified copy of Apple, Inc.’s Form 10-K for the
fiscal year ended September 27, 2008, as filed with
the Securities and Exchange Commission, submitted to
show information about the company, as well as to show
the fame of Apple, Inc. and its marks.
6. Print publications, submitted to show the fame of
Apple, Inc.
Finally, we note that opposer designated a good portion
of the record, including the entire La Perle deposition with
all exhibits, as “Confidential.” In rendering a decision in
this proceeding, we will treat only testimony and evidence
that is truly confidential and commercially sensitive as
confidential.

Standing and Priority

11 Applicant was also cautioned earlier in the proceeding as a
Opposition No. 91171592
12
Opposer has established its standing to oppose
registration of the involved application. In particular,
opposer has properly made of record its pleaded
registrations for APPLE and for the mark shown below:

This establishes opposer’s standing. See Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir.
2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023
(Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). In
view of opposer’s ownership of valid and subsisting
registrations as mentioned above, there is no issue
regarding opposer’s priority. King Candy, Inc. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA
1974).

pro se litigant to consider obtaining legal counsel.
Opposition No. 91171592
13
Likelihood of Confusion
Our determination under Section 2(d) must be based on
an analysis of all of the probative facts in evidence that
are relevant to the factors bearing on a likelihood of
confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also Palm Bay Imports,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003); and In re Dixie Restaurants Inc.,
105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). Opposer
must establish that there is a likelihood of confusion by a
preponderance of the evidence.
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). See also
In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209
(TTAB 1999) and the cases cited therein. The relevant
du Pont factors in the proceeding now before us are
discussed below.
For our analysis of the likelihood of confusion, we
have chosen to focus on the most relevant registration
Opposition No. 91171592
14
pleaded by opposer, Registration No. 2715578, since it
covers the most relevant mark and the most relevant goods
and services. If we find a likelihood of confusion with
applicant’s goods and services vis-à-vis this mark, then the
analysis will be moot as to opposer’s other pleaded marks.
Likewise, if we do not, then we would not find it for the
others.
Fame
We turn first to the factor of fame because this factor
plays a dominant role in cases featuring a famous or strong
mark. Kenner Parker Toys Inc. v. Rose Arts Industries,
Inc., 963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992). Famous
marks are accorded more protection precisely because they
are more likely to be remembered and associated in the
public mind than a weaker mark. Id. A famous mark is one
“with extensive public recognition and renown.” Id. See
also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694
(Fed. Cir. 2005). Given the great deference that is
accorded a famous mark, one asserting that its mark is
famous must clearly prove it. Id.
To provide context for its assertion of fame, in its
fifth notice of reliance, opposer submitted its Form 10K to
the Securities and Exchange Commission, for the fiscal year
Opposition No. 91171592
15
ended September 27, 2008.12 The 10K report describes the
company background, stating, in part: “Apple Inc. [together
with its wholly-owned subsidiaries] design, manufacture, and
market personal computers, portable digital music players,
and mobile communication devices and sell a variety of
related software, services, and peripherals and networking
solutions. The Company sells its products worldwide through
its online stores, its retail stores, its direct sales
force, and third party wholesalers, resellers, and value-
added resellers.” (Oppr’s 2008 SEC 10K, at 4).
Opposer contends that its mark is famous. In
determining whether a mark is famous, we may consider
relevant factors such as opposer’s sales and revenue related
thereto. Bose Corp. v. QSC Audio Products Inc., 293 F.3d
1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002); Blue Man
Productions Inc. v. Tarmann, 75 USPQ2s 1811, 1817 (TTAB
2005). Apple’s 2008 10K report attests to company net sales
of over $39 billion in 2008, up from over $8 billion in
2004. (Oppr’s 2008 SEC 10K, at 39). It also shows net
income of $4,834,000,000 in 2008, up from $266,000,000 in
2004. Id. Net sales for the United States was shown to be
over $18 billion in 2008. Id. at 93. Advertising expenses
were listed as “$486 million, $467 million, and $338 million

12 The report qualifies as an official record of the Securities
and Exchange Commission. Raccioppi v. Apoggee Inc., 47 USPQ2d
Opposition No. 91171592
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for 2008, 2007, and 2006 respectively.” Id. at 62.
Meanwhile the report notes that “the Company’s research and
development expenditures totaled $1.1 billion, $782 million,
and $712 million in 2008, 2007, and 2006 respectively.” Id.
at 13.
Opposer submitted dozens of news articles via its
various notices of reliance, discussing the reputation and
fame of its brand.13 Excerpts include the following:
“Apple plans cybercafé chain: Apple Computer
plans to work with a restaurant operator to open
cybercafés in the United States and Europe
starting late next year. . . .
The company licensed its name and famous apple
logo to Mega Bytes International of London, a
developer of theme parks.” The San Diego Union-
Tribune, November 13, 1996.

“Think of it as Planet Macintosh. . . .
Apple Computer Inc., always on the lookout for a
marketing edge, said it is licensing its name and
logo to a restaurant company that plans a chain of
Apple Cafes around the world.” The Wall Street
Journal, November 13, 1996.

“Apple Computer is quietly changing its stripes.
The company has been slowly removing the rainbow-
colored stripes from the bitten apple that has
been its signature since the 1970s – a logo that
has been one of the best-known icons of the
personal-computer revolution. . . .
In Apple’s new advertising and products, the
profile of the fruit remains, as does the bite.
But the apples are polished and solid-colored,
with a three-dimensional bulge.” The Wall Street
Journal, January 18, 2000.

1368, 1370 (TTAB 1998); see also Safer Inc. v. OMS Investments
Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).
13 These articles are relevant and admissible to show what others
are writing about opposer, and that opposer and its mark have
been the subject of unsolicited publicity.
Opposition No. 91171592
17
They tattoo Apples’ logo on their arm. They help
sell Apple products, even though they’re not paid
to. One couple met at the Macworld Expo
conference, got engaged, and were married there.
Apple customers are a loyal bunch. San Francisco
Chronicle, March 26, 2006.

“Onlookers were bathed in the milky-white glow of
the Apple logo, suspended in a freestanding cube
of glass at the corner of Fifth Avenue and Central
Park South in Manhattan. Dazzling in clarity and
32 feet on a side, the structure was likened
variously to a temple, the Louvre Pyramid, Apple’s
G4 ‘Cube’ computer, a giant button, and even – in
the words of NBC’s Brian Williams – Steve Job’s
Model T. But it was, everyone could agree,
manifestly a store.” Fortune, March 19, 2007.

“What does your brand do for consumers? If you’re
Apple you make them more creative, and if you’re
Disney, you make them more honest. . . .
So says research published in the April issue of
the Journal of Consumer Research that found test
subjects who were shown a logo for 30 milliseconds
- a subliminal flash that was not actually “seen”
– were much more likely to be creative or candid
in the cases of Apple and the Disney Channel,
respectively.” Advertising Age, March 24, 2008.

Finally, opposer has submitted evidence of high
consumer recognition based on magazine survey evidence.
Business Week magazine, together with the global Interbrand
survey, has ranked Apple (about mid-way) among the “100 Top
Brands” in its survey every year from 2001 through 2008, the
last year for which data was available in the record. In
this regard, we note that opposer’s witness, Mr. La Perle,
testified that the Apple logo at issue in this proceeding is
featured on every product sold by Apple, and is heavily
promoted as the Apple mark. See for example La Perle depo.
Opposition No. 91171592
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at 41-46 (“As far as I’m aware, the Apple – all of our
products are used with the Apple logo.”); at 84 (“I’ve
never seen an Apple ad that does not have the Apple logo.”)
and at 103 (“In Apple television advertising, there’s always
a dissolve at the end to the Apple logo.”)
We conclude that opposer has shown significant market
exposure, revenue, and overall fame amongst the relevant
public. The evidence clearly establishes that both the
APPLE word mark and the APPLE design logo are famous marks
in connection with at least the software and computer-
related services as pleaded by opposer in this proceeding.
The Goods and Services
The application identifies both “software for the
collection, storage, processing, modification, organization,
transmission, and sharing of data and information, including
digital media,” and “computer service, namely, acting as an
application service provider in the field of information
processing to host computer application software for the
collection, storage, processing, modification, organization,
transmission, and sharing of data and information, including
digital media.” The relevant goods and services in
Registration No. 2715578 also include the similarly worded
“computer programs for personal information management;”
“database management software;” “computer software for use
in providing multiple user access to a global computer
information network for searching, retrieving, transferring,
Opposition No. 91171592
19
manipulating and disseminating a wide range of information.”
computer software for use as a programming interface;”
“computer software for use in network server sharing;”
“local and wide area networking software;” and “computer
software for computer software for use to navigate and
search a global computer information network, as well as to
organize and summarize the information retrieved.”
Hence, the goods and services in the application are
legally identical to those in the Registration No.
2715578,14 and we find that this du Pont factor strongly
favors finding a likelihood of confusion.
The Channels of Trade and Classes of Purchasers
Under the third du Pont factor, we consider evidence
pertaining to the similarity or dissimilarity of the trade
channels in which and the purchasers to whom applicant’s and
opposer’s services are or would be marketed. Because there
are no limitations or restrictions as to trade channels or
classes of purchasers in the respective identifications of
goods and services, we presume that they are marketed in all
normal trade channels and to all normal classes of
purchasers for such goods and services, regardless of what
the evidence might show to be the actual trade channels and
purchasers for them to be. Packard Press Inc. v. Hewlett-
Packard Co., 227 F.3d 1352, 56 USPQ2d 1351 (Fed. Cir. 2000);

14 By highlighting opposer’s registration closest to the mark and
goods of applicant, we do not mean to imply that there would not
also be a likelihood of confusion with opposer’s other pleaded
registrations.
Opposition No. 91171592
20
Octocom Systems Inc. v. Houston Computers Services Inc., 918
F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1990).
Moreover, because opposer’s and applicant’s goods and
services as identified in the application and the
registration are legally identical, we presume that the
respective goods and services are or will be sold in the
same trade channels and to the same classes of purchasers.
Brown Shoe Co. v. Robbins, 90 USPQ2d 1752 (TTAB 2009);
Genesco Inc. v. Martz, 66 USPQ2d 1260 (TTAB 2003); In re
Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
Accordingly, we find that this du Pont factor also weighs in
favor of finding a likelihood of confusion.
The Marks
Preliminarily, we note that the more similar the goods
and services at issue, the less similar the marks need to be
for the Board to find a likelihood of confusion. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992). We consider and compare
the appearance, sound, connotation and commercial impression
of the marks in their entireties. Palm Bay Imports Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
Applicant’s mark is as follows:
Opposition No. 91171592
21

The mark in Registration No. 2715578 is as follows:

Applicant admits that its mark is meant to depict an
“orange” and otherwise a “fruit.” On brief, applicant
Opposition No. 91171592
22
noted: “Echospin’s mark is an orange, not an apple.”
(Appl’s brief at 1). Applicant’s brief further stated:

“In fact, the evidence . . . . clearly shows that
Echospin picked the orange logo to make that very
distinction, that Echospin is the no-Apple, the
opposite of Apple, an alternative to Apple, and an
improvement over Apple.” (Appl’s brief at 3).15

We take this as an admission that applicant’s mark is shaped
like a fruit. Witness testimony confirms the admissions in
applicant’s brief. Opposer submitted the testimony of the
freelance graphics designer who designed the mark at issue:

A: They also discussed that they would like me to
pursue looking at the idea of an orange logo.

Q: That was conveyed to you at the first meeting
you attended with them?

A: Yes.
(Sarah Williams depo. at 27).

Q: At any time, was it discussed that an orange
would be used as any kind of a means to
differentiate them from Apple, who makes iTunes?

A: I think that was an idea that they were
interested in playing on; the idea of comparing
apples to oranges and that oranges are different
from apples.

Q: That idea was conveyed to you at the first
meeting as well?

A: Yes.
(Id. 28-29).

15 To the extent that applicant may have been attempting to make a
“fair-use” argument under the Lanham Act, that argument is
misplaced in an opposition proceeding, which is concerned with
the right to register a mark.
Opposition No. 91171592
23
Applicant also submitted testimony from Echospin’s principle
and co-founder Jon Lowy:

“Eventually, from Sarah’s work, we selected our
identity, which incorporates a playfully stylized
orange.”
(Jon Lowy depo. at 11)

“We don’t think it is fair for Apple to try to
prevent us from registering the mark just because
it resembles a fruit”
(Id. at 47)

In comparing the marks, we are mindful that the test is
not whether the marks can be distinguished when subjected to
a side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely
to result. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3
(CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff'd unpublished, No. 92-
1086 (Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general
rather than specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
Accordingly, we look to the general characteristics of
the designs. The marks are quite similar in concept and
Opposition No. 91171592
24
style, both being simple, abstract representations of fruit,
rather than photographic pictures thereof. Both also are
whole representations of fruit rather than pieces thereof;
and in both the application and the pleaded registration,
the fruit comprises the entirety of the mark, rather than
being presented with any other designs or words.
Furthermore, opposer’s mark contains a bite in the upper-
right section of the fruit. Applicant’s mark contains a
series of small, white circles in the same area of its
fruit, thereby creating a similar commercial impression of a
missing piece of the fruit. Finally, opposer’s mark is in
the shape of an apple, with a short, detached leaf at the
top, pointed to the right. Applicant’s mark is also by
admission a fruit, with two short, detached leaves at the
top, one of which is quite similar in size and direction to
that in opposer’s mark.
In sum, although the marks in their entireties appear
different, we deem them to have similar connotations and
commercial impressions. We also keep in mind that opposer
has established that its mark is famous and, thus, “it casts
a long shadow which competitors must avoid.” Kenner Parker
Toys Inc. v. Rose Arts Industries, Inc., 22 USPQ2d at 1456.
Accordingly, we find this du Pont factor to also favor
finding a likelihood of confusion.

Conclusion
Opposition No. 91171592
25
Opposer has established that its mark is famous.
Furthermore, we find that the goods and services are legally
identical, and the marks are similar. Accordingly, we find
a likelihood of confusion between applicant’s mark for the
goods and services identified in the application and the
goods and services identified in the pleaded registrations,
namely Registration No. 2715578, as discussed herein.16
Decision: The opposition is sustained on the ground of
likelihood of confusion, and registration to applicant is
refused.

16 Since we find a likelihood of confusion, we need not consider
opposer’s claim of dilution.