DC diskont-computer.com GmbH

Trademark Trial and Appeal BoardAug 23, 2019

79192374 (T.T.A.B. Aug. 23, 2019)

Mailed: August 23, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re DC diskontcomputer.com GmbH _____ Application Serial No. 79192374 _____ Lawrence E. Abelman and Erica R. Halstead of Abelman Frayne & Schwab, for DC diskontcomputer.com GmbH. Marcie R. Frum Milone, Trademark Examining Attorney, Law Office 116, Christine Cooper, Managing Attorney. _____ Before Bergsman, Shaw and Greenbaum, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: DC diskontcomputer.com GmbH (Applicant) seeks registration on the Principal Register of the mark MIKKA and design, reproduced below, for “computer monitors; computer screens in the nature of touch screens,” in Class 9.1 1 Application Serial No. 79192374 was filed February 12, 2016 under Section 66(a) of the Trademark Act, 15 U.S.C. 1141f, seeking a request for protection based on International Registration No. 1310602 registered February 12, 2016. This Opinion Is Not a Precedent of the TTAB Serial No. 78192374 - 2 - The description of the mark reads as follows: The mark consists of the stylized wording “MIKKA” with “MIKKA” in the color black except for the dot on the “I”, which is in the color red. The color(s) black and red is/are claimed as a feature of the mark. The letters are in black color except for the dot on the “I” which is in red color. The Examining Attorney issued a final refusal of registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the marks in the four registrations listed below, owned by different entities, as to be likely to cause confusion: 1. Registration No. 4423129 for the mark MIKA, in standard characters, for “Stands specially adapted for holding computers and computer hardware; Stands for handheld digital electronic devices and personal digital electronic devices, namely, cell phones, MP3 players, personal digital assistants, laptop computers, tablet computers, smartphones, portable media players and handheld computers,” in Class 9.2 2. Registration No. 4763310 for the mark MICCA and design, reproduced below, for “Audio-receivers and video-receivers; Portable media players; Digital photo frames; Laptop computers; Smart phones; Cameras; Power supplies; Chargers for electric batteries, in Class 9.3 2 Registered October 22, 2013. 3 Registered June 30, 2015. Serial No. 78192374 - 3 - The description of the mark reads as follows: Color is not claimed as a feature of the mark. The mark consists of outlines of two squares placed onto each other and overlapping in the center area with one square rotated from the other to form triangles in places where the squares do not overlap; and to the right of the squares a text reading “MICCA”. 3. Registration No. 5047961 for the mark MIKA, in standard characters, for, inter alia, “Microphone boom pole; Microphone stands; Microphones,” in Class 9.4 4. Registration No. 5268291 for the mark MICA, in standard characters, for, inter alia, “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing,” in Class 9.5 Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 4 Registered July 12, 2016. 5 Registered August 22, 2017. Serial No. 78192374 - 4 - 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor that is relevant or for which there is evidence of record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). “[E]ach case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973) (internal citations removed). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). Serial No. 78192374 - 5 - I. Strength of the registered marks, including the number and nature of similar marks in use on similar goods. In determining the strength of a mark, we consider both its inherent strength, based on the nature of the mark itself, and its commercial strength, based on the marketplace recognition value of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”); Top Tobacco, L.P. v. North Atlantic Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. 2019) (“The first enquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). Market strength is the extent to which the relevant public recognizes a mark as denoting a single source. Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d at 1899. In other words, it is similar to acquired distinctiveness. For purposes of analyzing likelihood of confusion, a mark’s renown may “var[y] along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (internal quotations omitted). The proper standard is the mark’s “renown within a specific product Serial No. 78192374 - 6 - market,” id., and “is determined from the viewpoint of consumers of like products,” id. at 1735, not from the viewpoint of the general public. A. Inherent or conceptual strength When making a determination of likelihood of confusion in an ex parte appeal, in order to determine the inherent or conceptual strength of the cited mark, we evaluate its intrinsic nature, that is, where it lies along the generic-descriptive-suggestive- arbitrary-fanciful continuum of words. Word marks that are arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000); see also, Chippendales USA, 96 USPQ2d at 1684 (“In general, trademarks are assessed according to a scale formulated by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’ ‘suggestive,’ ‘descriptive,’ or ‘generic.’”). There is no evidence in the record that any of the registered marks MIKA, MICCA and design, and MICA have any meaning when used in connection with the goods for which they are registered. Accordingly, the registered marks are fanciful or arbitrary terms which are inherently or conceptually strong marks. B. Commercial strength There is no evidence regarding the commercial strength of any of the registered marks. Therefore, we find that the commercial strength of the marks is a neutral factor. Serial No. 78192374 - 7 - C. The number and nature of similar marks in use on similar goods. There is no evidence regarding the use of any similar marks in use on similar goods. As Applicant points out, “[i]f the evidence establishes that the consuming public is exposed to third-party uses of similar marks on similar goods or services, this evidence ‘is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.’”6 Because there is no evidenced regarding the use of any similar marks, let alone the marks in the cited registrations, there is no evidence that the consuming public has been exposed to any similar marks, let alone the marks in the cited registrations. The probative value of third-party trademarks depends entirely upon their usage. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005), quoting Scarves by Vera, Inc. v. Todo Imports, Ltd., 544 F.2d 1167, 192 USPQ 289, 294 (2d Cir. 1976) (“The significance of third-party trademarks depends wholly upon their usage. Defendant introduced no evidence that these trademarks were actually used by third parties, that they were well promoted or that they were recognized by consumers.”). The Court of Appeals for the Federal Circuit held that where the “record includes no evidence about the extent of [third-party] uses … [t]he probative value of this evidence is thus minimal.” Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001) (emphasis added). 6 Applicant’s Brief (11 TTABVUE 11). References to the briefs and orders on appeal are to the Board’s TTABVUE docket system. Serial No. 78192374 - 8 - Nevertheless, in determining the degree of weakness, if any, in the shared terms, we must “adequately account for the apparent force of [third-party use] evidence,” regardless of whether “specifics” pertaining to the extent and impact of such use have been proven. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-5 (Fed. Cir. 2015). “[E]xtensive evidence of third-party use and registrations is ‘powerful on its face,’ even where the specific extent and impact of the usage has not been established.” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015), citing to Juice Generation, 115 USPQ2d at 1674. In this appeal, Applicant points to the marks in the four cited registrations, MIKA, MICCA and design, and MICA, as well two registrations attached to Applicant’s brief set forth below:7 7 Although the record is supposed to be complete prior to the filing of an appeal, Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), because the Examining Attorney did not object to the evidence attached to Applicant’s brief, we consider the evidence. One of the third-party marks submitted by Applicant is an application that has not registered: Serial No. 87836844 for the mark MICAH for “computer software for automating underwriting in the field of commercial lending; downloadable computer software for automating underwriting in the field of commercial lending.” Applicant’s Brief (11 TTABVUE 17). Pending applications are evidence only that the applications were filed on a certain date; they are not evidence of use of the marks. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003); In re Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694, 1699 (TTAB 1992). Also, Applicant submitted a copy of a registration for the mark MIKA (11 TTABVUE 25) that is illegible. Illegible exhibits are obviously of no probative value. It is the responsibility of the party making submissions to the Board via the electronic database to ensure that the evidence has, in fact, been properly made of record. See Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1350-51 (TTAB 2014); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba Watermark Cruises, 107 USPQ2d 170, 1758 n.16 (TTAB 2013) (“the onus is on the party making the submissions to ensure that, at a minimum, all materials are clearly readable by the adverse party and the Board”); Hard Rock Cafe Licensing Corp. v. Serial No. 78192374 - 9 - 1. Registration No. 3209678 for the mark MICA, in standard characters, for “loudspeakers,” in Class 9;8 and 2. Registration No. 5552771 for the mark MIKA, in standard characters, for “software for the creation, installation, and management of web and mobile digital assistants functioning with artificial intelligence and combining all data sources on a single text, voice and multimedia interface in the nature of voice-dictated automated assistance,” in Class 9;9 While there is some overlap among some of the registered marks and their recited goods, there are also differences. For example, the first two sets of marks below have some similarities among the goods while the third set are quite different. Registration No. 5047961 for the mark MIKA, in standard characters, for, inter alia, “microphones” and Registration No. 3209678 for the mark MICA, in standard characters, for “loudspeakers.” _____ Registration No. 4423129 for the mark MIKA, in standard characters, for “stands specially adapted for holding computers and computer hardware” and for handheld digital electronic devices and Registration No. 4763310 for the mark MICCA and design, reproduced below, for “portable media players,” “laptop computers,” and “smart phones.” Elsea, 48 USPQ2d 1400, 1404 (TTAB 1998) (“It is reasonable to assume that it is opposer’s responsibility to review the documents it submits as evidence to ensure that such submissions meet certain basic requirements, such as that they are legible and identified as to source and date.”). 8 11 TTABVUE 19. 9 11 TTABVUE 22. Serial No. 78192374 - 10 - _____ Registration No. 5268291 for the mark MICA, in standard characters, for, inter alia, “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing” and Registration No. 5552771 for the mark MIKA, in standard characters, for “software for the creation, installation, and management of web and mobile digital assistants functioning with artificial intelligence and combining all data sources on a single text, voice and multimedia interface in the nature of voice-dictated automated assistance.” In any event, six registrations do not rise to the same level of persuasiveness as the voluminous evidence in Juice Generation and Jack Wolfskin. Because the registered marks cited as a bar to registration are arbitrary marks that are inherently or conceptually strong and the evidence regarding the number and nature of similar marks for similar goods is not persuasive, we find that the marks in the cited registrations fall on the strong side “of the spectrum from very strong to very weak.” Joseph Phelps Vineyards, 122 USPQ2d at 1734. II. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression. We now turn to the DuPont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., Serial No. 78192374 - 11 - 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). In comparing the marks, we are mindful that “[t]he proper test is not a side-by- side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); see also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). Applicant is seeking to register the mark MIKKA and design, reproduced below: The registered marks are MIKA, MICA and MICCA and design, reproduced below: Serial No. 78192374 - 12 - While we assess each mark in its entirety, in the case of marks consisting of words and a design, the words are normally accorded greater weight because the words are likely to make an impression upon purchasers, would be remembered by them, and would be used by them to request the services. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983). There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, such as a common dominant element, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); see also In re Viterra Inc., 101 USPQ2d at 1908. While not identical, is similar to the registered mark in appearance and sound. As noted above, the dominant portion of both marks are the words “Mikka” and “Micca.” Neither the stylization of Applicant’s mark, nor the design element in the registered mark, is so significant as to distinguish the marks. Likewise, the differences between MIKKA and MICCA do not distinguish the marks. See In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (applicant’s mark CAYNA (stylized is similar to CANA). In Great Lakes Canning, the Board made the following finding of fact: Serial No. 78192374 - 13 - Moreover, although there are certain differences between the [marks CAYNA and CANA] in appearance, namely, the inclusion of the letter ‘Y’ and the design feature in applicant’s mark, there are also obvious similarities between them. Considering the similarities between the marks in sound and appearance, and taking into account the normal fallibility of human memory over a period of time (a factor that becomes important if a purchaser encounters one of these products and some weeks, months, or even years later comes across the other), we believe that the marks create substantially similar commercial impressions. Even those purchasers who are fully aware of the specific differences between the marks may well believe, because of the similarities between them, that the two marks are simply variants of one another, used by a single producer to identify and distinguish companion lines of products. Id. See also Mag Instrument, Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1715 (TTAB 2010) (difference of a single letter does not suffice to distinguish MAG STAR from MAXSTAR); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB 2004) (ONCASE is similar to ONCONASE); Kabushiki Kaisha Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985) (“[T]he term ‘SEYCOS’ is simply so close in appearance and pronunciation to ‘SEIKO’ as to make source confusion inevitable when the marks are used in connection with identical goods.”); Hercules v. Nat’l Starch, 223 USPQ 1244, 1246 (TTAB 1984) (NATROSOL and NATROL is similar because “the clearly dominant aspect of both marks is that the first four letters and the final two are the same”). As noted in the section analyzing the strength of the marks, the marks are arbitrary or fanciful terms that do not have any descriptive/suggestive meaning when used in connection with the recited goods and, therefore, they engender similar commercial impressions. Serial No. 78192374 - 14 - is similar to MIKA and MICA in appearance in part because the two registered marks are in standard character format. Marks presented in standard characters are not limited to any particular depiction. The rights associated with a mark in standard characters reside in the wording, and not in any particular display. Thus, the registered marks MIKA and MICA may be depicted in any manner, regardless of the font style, size, or color, and might at any time in the future be displayed in a manner similar to Applicant’s mark. In re Viterra, 101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed drawing (equivalent to modern standard character format) is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party” (emphasis in original)); In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). Further, the marks are phonetically identical and for the reasons discussed above have similar commercial impressions. Therefore, we find that the marks are similar. When considering Applicant’s mark to each of the cited marks in their entireties, we find that they are more similar than dissimilar and that this DuPont factor weighs in favor of finding that there is a likelihood of confusion. Serial No. 78192374 - 15 - III. The similarity or dissimilarity and nature of the goods and established, likely-to-continue channels of trade and classes of consumers. Applicant is seeking to register for “computer monitors” and “computer screens in the nature of touch screens.” A. MIKA for “Stands specially adapted for holding computers and computer hardware; Stands for handheld digital electronic devices and personal digital electronic devices, namely, cell phones, MP3 players, personal digital assistants, laptop computers, tablet computers, smartphones, portable media players and handheld computers.” To show that computer monitors or touch screens are related to stands for holding computers and handheld digital devices, in the May 8, 2018 Office Action, the Examining Attorney submitted third-party use-based registrations for marks registered for both types of products. Third-party registrations based on use in commerce that individually cover a number of different goods may have probative value to the extent that they serve to suggest that the listed goods are of a type that may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem. 864 F.2d 149 (Fed. Cir. 1988). The registrations, with relevant portions of the identifications, are listed below.10 Mark Reg. No. Goods IT’S WHAT’S INSIDE THAT COUNTS 3417404 Monitors; notebook computer stands (TSDR 12) INLAND and INLAND and Design 3426087 3243520 Computer monitors; computer stands (TSDR 15 and 22) 10 Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. Serial No. 78192374 - 16 - Mark Reg. No. Goods POWER SUPPORT and PSC 3208577 3208616 Computer monitors; computer cursor control devices, namely, touch pads; computer stands especially designed for holding a computer, printer and accessories (TSDR 25 and 28) CABLE AND CASE 4531980 Computer monitors and screens; computer stands specially designed for holding a computer, printer and accessories (TSDR 34) VORAGO and V (stylized) 4458964 4459127 Computer monitors; touchpads; computer stands specially designed for holding a computer, printer and accessories (TSDR 37 and 42) ADEMOV LUXURY ELECTRONICS 4771152 Computers; computer monitors; computer stands specially designed for holding a computer, printer and accessories (TSDR 47) SANRIO 4623854 Computer monitors; stands for personal electronic devices, namely, mobile phones, portable music players, portable media players, and table computers (TSDR 50) MICCUS 5038969 Computer monitors; computer touch screens; Computer cursor control devices, namely, touch pads; computer stands specially designed for holding a computer, printer and accessories (TSDR 72) YITEE 5048425 Computer screens; computer terminals, touch pads; touchscreen monitors; computer stands specially designed for holding a computer, printer and accessories (TSDR 77) GS GEESUNG 5063893 Computer monitors; computer stands specially designed for holding a computer, printer and accessories (TSDR 83) FLFLK 5099229 Computer monitors; stands adapted for mobile phones (TSDR 86) WEARSON 5077448 Computer monitors; computer stands specially designed for holding a computer, printer and accessories (TSDR 89) UNIACHIEVE 5272332 Computer monitors; computer stands (TSDR 91) DOOPER 5165293 Computer monitors; stands adapted for tablet computers (TSDR 94) COOLER MASTER 5299366 Computer monitors; holders specially adapted for use with notebook computers, handheld digital electronic devices such as cell phones, MP3 players, and personal digital assistants (TSDR 99) Serial No. 78192374 - 17 - Mark Reg. No. Goods YESEE 5267587 Computer monitors; computer stands specially designed for holding a computer, printer and computer peripherals (TSDR 103) DAZL FIT 5415934 Computer monitors; stands adapted for mobile phones (TSDR 108) To show that the products are offered in the same channels of trade and to the same classes of consumers, the Examining Attorney submitted excerpts from two third-party websites: • Inland Product website (inlandproduct.com) advertising the sale of a “universal tabletop anti-slip laptop riser,” a “wooden laptop tray with small drawer,” “laptop/notebook stand,” and an “aluminum tablet holder,”11 as well as computer monitors;12 and • The Micro Center website (microcenter.com) advertises the sale of computer monitors and stands for computers and handheld devices.13 Applicant argues, in essence, that computer stands are not computer monitors or touchscreens and, without any evidence, that consumers would not expect the same manufacturers to produce such products.14 In determining whether the goods are related, it is not necessary that the goods at issue be similar or competitive in character to support a holding of likelihood of confusion; it is sufficient for such purposes that the goods are related in some manner or that conditions and activities 11 November 29, 2018 Denial of Request for Reconsideration (6 TTABVUE 9). See also 6 TTABVUE 13-14 and 7 TTABVUE 7. 12 Id. at 6 TTABVUE 10. 13 May 8, 2018 Office Action (TSDR 114, 115, 120, 121, 123-26). 14 Applicant’s Brief (11 TTABVUE 9). Serial No. 78192374 - 18 - surrounding marketing of the goods are such that they would or could be encountered by same persons under circumstances that could, because of similarities of marks used with them, give rise to the mistaken belief that they originate from or are in some way associated with the same producer. Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1722. In this case, the third-party registrations submitted by the Examining Attorney serve to suggest that computer monitors and computer stands emanate from the same source and Applicant has not submitted any evidence to rebut that evidence. We find that computer monitors and the computer stands in the cited registration are related products offered in the same channels of trade to the same classes of consumers.15 B. MICCA and design for “Audio-receivers and video-receivers; Portable media players; Digital photo frames; Laptop computers; Smart phones; Cameras; Power supplies; Chargers for electric batteries.” To show that computer monitors or touch screens are related to the above goods, in the May 8, 2018 Office Action, the Examining Attorney submitted third-party use- based registrations for marks registered for both types of products. The registrations, with relevant portions of the identifications, are listed below. 15 Under this DuPont factor, the Examining Attorney need not prove, and we need not find, similarity as to each and every product listed in the description of goods. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any item encompassed by the identification of goods in a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application.”). Serial No. 78192374 - 19 - Mark Reg. No. Goods IT’S WHAT’S INSIDE THAT COUNTS 3417404 Monitors; projectors; MP3 players; security cameras; camera power supplies (TSDR 12) INLAND and INLAND and Design 3426087 3243520 Computer monitors; uninterruptible power supply devices for computers; power supplies; computer cameras (TSDR 15 and 22) POWER SUPPORT and PSC 3208577 3208616 Computer monitors; computer cursor control devices, namely, touch pads; computer cameras (TSDR 25 and 28) ISTORE 4381959 Computer monitors; cameras; chargers, namely, battery chargers (TSDR 31) CABLE AND CASE 4531980 Computer monitors and screens; cell phones; mobile phones (TSDR 34) VORAGO and V (stylized) 4458964 4459127 Computer monitors; touchpads; chargers for electric batteries; audio receivers; laptop computers (TSDR 37 and 42) ADEMOV LUXURY ELECTRONICS 4771152 Computers; computer monitors; digital phones; laptop computers (TSDR 47) SANRIO 4623854 Computer monitors; cameras (TSDR 50) TECH LOUNDS 4658774 Computer monitors; cameras; Audio-receivers and video-receivers (TSDR 54) PHANTOM 4920531 Computer monitors; Audio-receivers and video- receivers; laptop computers (TSDR 60) Design mark 5004424 Computer monitors; laptop computers; smart phones (TSDR 63) FASTGO 4925623 Computer monitors; portable media players; laptop computers; smart phones (TSDR 66) MORE FINE 4877405 Computer monitors; Chargers for electric batteries; digital video cameras; smartphones (TSDR 69) MICCUS 5038969 Computer monitors; computer touch screens; Computer cursor control devices, namely, touch pads; Audio-receivers and video-receivers; video cameras; battery chargers (TSDR 72) YITEE 5048425 Computer screens; computer terminals; touch pads, touchscreen monitors; computer cameras; audio-video receivers; chargers for electric batteries; cameras (TSDR 77) FLFLK 5099229 Computer monitors; audio and video receivers; (TSDR 86) WEARSON 5077448 Computer monitors; battery charge devices; mobile phones (TSDR 89) Serial No. 78192374 - 20 - Mark Reg. No. Goods UNIACHIEVE 5272332 Computer monitors; computer power supplies (TSDR 91) DOOPER 5165293 Computer monitors; chargers for electric batteries; audio-receivers (TSDR 94) COOLER MASTER 5299366 Computer monitors; smart phones; electrical power supplies; uninterrupted power supplies (TSDR 99) YESEE 5267587 Computer monitors; chargers for electric batteries; computer cameras; audio receivers; smart phones (TSDR 103) DAZL FIT 5415934 Computer monitors; laptop computers; battery chargers (TSDR 108) GLOPOLE 5458926 Computer monitors; battery chargers; smart phones (TSDR 111) To show that the products are offered in the same channels of trade and to the same classes of consumers, the Examining Attorney submitted excerpts from two third-party websites: • BCI website (basscomputers.com) advertises the sale of cameras and touchscreens; 16 and • The Micro Center website (microcenter.com) advertises the sale of computer monitors and power supplies and laptops.17 As discussed above, despite the third-party registration evidence, Applicant argued, without any evidence, that consumers will not believe the computer monitors and the recited goods emanate from a single source. Also, Applicant did not submit any evidence to rebut the third-party registration evidence. 16 November 29, 2018 Denial of Request for Reconsideration (5 TTABVUE 16-17). 17 May 8, 2018 Office Action (TSDR 114-116). Serial No. 78192374 - 21 - We find that computer monitors and “audio-receivers and video-receivers … laptop computers; smart phones; cameras; power supplies; chargers for electric batteries” are related products offered in the same channels of trade to the same classes of consumers. C. MIKA for, inter alia, “Microphone boom pole; Microphone stands; Microphones.” To show that computer monitors or touch screens are related to “microphone boom pole; microphone stands; microphones,” in the May 8, 2018 Office Action, the Examining Attorney submitted third-party use-based registrations for marks registered for both types of products. The registrations, with relevant portions of the identifications, are listed below. Mark Reg. No. Goods JPA 2334929 Computer monitors; microphone stands (TSDR 9) IT’S WHAT’S INSIDE THAT COUNTS 3417404 Monitors; microphones (TSDR 12) SANRIO 4623854 Computer monitors; microphone stands; microphones (TSDR 50) TECH LOUNDS 4658774 Computer monitors; microphones (TSDR 54) CAROL 4828064 Video conferencing apparatus, namely, computer monitors, projection screens, and digital telephones; microphones (TSDR 57) MORE FINE 4877405 Computer monitors; microphones; microphone stands (TSDR 69) YITEE 5048425 Computer screens; computer terminals; touch pads; touchscreen monitors; microphones; microphone stands (TSDR 77) FLFLK 5099229 Computer monitors; microphones; microphone stands (TSDR 86) DOOPER 5165293 Computer monitors; microphones; microphone stands (TSDR 94) COOLER MASTER 5299366 Computer monitors; microphones (TSDR 99) Serial No. 78192374 - 22 - Mark Reg. No. Goods YESEE 5267587 Computer monitors; public address and sound system accessories, namely, microphone stands (TSDR 103) As discussed above, despite the third-party registration evidence, Applicant argued, without any evidence, that consumers will not believe the computer monitors and the recited goods emanate from a single source. We find that computer monitors and microphones and microphone stands are related products. D. MICA for, inter alia, “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing.” To show that computer monitors or touch screens are related to “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing,” in the May 8, 2018 Office Action, the Examining Attorney submitted third-party use-based registrations for marks registered for both types of products. The registrations, with relevant portions of the identifications, are listed below. Mark Reg. No. Goods IT’S WHAT’S INSIDE THAT COUNTS 3417404 Computers; monitors (TSDR 12) ISTORE 4381959 Computers; computer monitors (TSDR 31) CABLE AND CASE 4531980 Computer monitors and screens; computer hardware (TSDR 34) Serial No. 78192374 - 23 - Mark Reg. No. Goods VORAGO and V (stylized) 4458964 4459127 Computer monitors; laptop computers; desktop computers (TSDR 37 and 42) ADEMOV LUXURY ELECTRONICS 4771152 Computers; computer monitors (TSDR 47) TECH LOUNDS 4658774 Computer monitors; computers (TSDR 54) PHANTOM 4920531 Computer monitors; desktop, laptop, mobile, notebook, tablet and personal computers (TSDR 60) Design mark 5004424 Computer monitors; laptop and tablet computers; computer hardware (TSDR 63) FASTGO 4925623 Computer monitors; laptop computers; PC tablets; (TSDR 66) MORE FINE 4877405 Computer monitors; computers (TSDR 69) MICCUS 5038969 Computer monitors; computer touch screens; Computer cursor control devices, namely, touch pads; computer hardware; electronic computers (TSDR 72) YITEE 5048425 Computer screens; computer terminals; touch pads; touchscreen monitors; computers (TSDR 77) GS GEESUNG 5063893 Computer monitors; computers (TSDR 83) FLFLK 5099229 Computer monitors; micro-computer; tablet computer (TSDR 86) DOOPER 5165293 Computer monitors; micro-computer; electronic computers (TSDR 94) COOLER MASTER 5299366 Computer monitors; computers (TSDR 99) YESEE 5267587 Computer monitors; electronic computers (TSDR 103) DAZL FIT 5415934 Computer monitors; laptop computers (TSDR 108) GLOPOLE 5458926 Computer monitors; laptop, notebook, and tablet computers (TSDR 111) Although the descriptions of goods in the listed registrations do not include the limitations in the cited registration, “for industrial applications,” and “for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and Serial No. 78192374 - 24 - storing,” we must presume that those products include all types of computers and monitors regardless of their actual use. See In re i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v. Tomy Corp., 216 USPQ at 940 (“There is no specific limitation and nothing in the inherent nature of Squirtco’s mark or goods that restricts the usage of SQUIRT for balloons to promotion of soft drinks. The Board, thus, improperly read limitations into the registration”); In re Thor Tech, 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into the registrant’s description of goods.”). As discussed above, despite the third-party registration evidence, Applicant argued, without any evidence, that consumers will not believe the computer monitors and the recited goods emanate from a single source. We find that computer monitors and “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing” are related products. IV. The conditions under which and purchasers to whom sales made (i.e., the degree of purchasing care). Applicant argues, without any evidence, that consumers will exercise a high degree of purchasing care when purchasing the products at issue. In addition to the differences between the marks and the goods, the sophistication of the relevant consumers decreases the potential for confusion to occur. [Internal citation omitted]. Electronics, such as computers, televisions, and mobile phones as covered by the relevant marks, tend to be high priced items. Accordingly, Serial No. 78192374 - 25 - consumers purchasing such products are likely to be sophisticated and knowledgeable about the specific product they are buying. In plain terms, consumers of these types of goods will know exactly what product they wish to purchaser, and will not make a decision on impulse. This factor weighs in favor of Applicant since consumers are likely to know they are buying products manufactured by Applicant, and not by a third party. Such care in purchasing tends to minimize a likelihood of confusion.18 Computer monitors are not especially expensive. The Micro Center website lists computer monitors in a range of $65 to $120.19 Likewise, an INLAND tablet stand has a list price of $30.20 Other stands are listed in a range of $16 to $150.21 Moreover, considering the ubiquity of electronics, computer monitors, computer screens in the nature of touch screens, laptops, smartphones, computer stands, and microphones, those products are likely to be purchased by potential purchasers who will exercise varying degrees of care during the purchasing process. We are bound to consider the least sophisticated consumer in the class. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014) (recognizing Board precedent requiring consideration of the “least sophisticated consumer in the class”). See also In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (finding that all purchasers of wine may not be discriminating because while some may have preferred brands, “there are just as likely to be purchasers who delight in trying new taste treats.”). 18 Applicant’s Brief (11 TTABVUE 10). 19 May 8, 2018 Office Action (TSDR 116-117). 20 Id. at TSDR 121. 21 Id. at TSDR 123-126. Serial No. 78192374 - 26 - Without any evidence to support the degree of care that the relevant consumers will use when purchasing the products at issue, this DuPont factor is neutral. V. Conclusion Because the marks are similar and the goods are related we find that Applicant’s mark for computer monitors and computer screens in the nature of touch screens is likely to cause confusion with the following registered marks: • Registration No. 4423129 for the mark MIKA for “Stands specially adapted for holding computers and computer hardware; Stands for handheld digital electronic devices and personal digital electronic devices, namely, cell phones, MP3 players, personal digital assistants, laptop computers, tablet computers, smartphones, portable media players and handheld computers”; • Registration No. 4763310 for for “Audio-receivers and video-receivers; Portable media players; Digital photo frames; Laptop computers; Smart phones; Cameras; Power supplies; Chargers for electric • Registration No. 5047961 for the mark MIKA for, inter alia, “Microphone boom pole; Microphone stands; Microphones”; and • Registration No. 5268291 for the mark MICA for, inter alia, “computers … for industrial applications … for use in relation to cooling, transportation, storing, mixing, metering and drying of food and liquids, especially milk and beer, and all relating to measurement of temperature, dosage, calibration and condition of such food and liquids during transportation and storing.” Serial No. 78192374 - 27 - Decision: The refusal to register Applicant’s mark is affirmed.