Innovative Display-works, Inc.

Trademark Trial and Appeal BoardOct 27, 2009

No. 77314821 (T.T.A.B. Oct. 27, 2009)

Mailed: October 27, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ___________ Trademark Trial and Appeal Board ___________ In re Innovative Displayworks, Inc. ___________ Serial No. 77314821 ___________ Matthew A. Newboles of Stetina Brunda Garred & Brucker for Innovative Displayworks, Inc. Angela M. Micheli, Trademark Examining Attorney, Law Office 101 (Ronald R. Sussman, Managing Attorney). ____________ Before Walters, Zervas and Bergsman, Administrative Trademark Judges. Opinion by Walters, Administrative Trademark Judge: Innovative Displayworks, Inc. has filed an application to register the standard character mark FLEXTRAX on the Principal Register for “adjustable glide trays formed from plastic for receiving, storing and displaying retail merchandise, beverages and food products,” in International Class 20.1 1 Serial No. 77314821, filed October 26, 2007, based on an allegation of a bona fide intention to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77314821 2 The examining attorney has issued a final refusal to register under Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the ground that applicant’s mark so resembles the mark FLEXTRACKER, previously registered for “display racks and shelves, namely, single and multiple track member inserts for display racks and shelves,” in International Class 20,”2 that, if used on or in connection with applicant’s goods, it would be likely to cause confusion or mistake or to deceive. Applicant has appealed. Both applicant and the examining attorney have filed briefs. We affirm the refusal to register. 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 issue. See In re E. I. du Pont de Nemours and 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). 2 Registration No. 2809111, registered January 27, 2004, and owned by Display Industries, LLC. Serial No. 77314821 3 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); and In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and the cases cited therein. We turn, first, to a determination of whether applicant’s mark and the registered mark, when viewed in their entireties, are similar in terms of appearance, sound, connotation and commercial impression. 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 impressions that confusion as to the source of the goods or services offered under the respective marks is likely to result. H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715 (TTAB 2008). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Nike Inc. v. WNBA Enter. LLC, 85 USPQ2d 1187, 1199-1200 (TTAB 2007); and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Furthermore, although the marks at issue must be considered in their entireties, it is well settled that one Serial No. 77314821 4 feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark. See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). The examining attorney contends that the marks are similar, noting that both marks begin with the syllable “flex” and contending that this is the dominant portion of each mark. Also noting that the second portion of each mark begins with “tra,” the examining attorney contends that the marks are similar in sound and appearance. Applicant contends that the marks are different, arguing that the intentional misspelling of “tracks” as “trax” in its mark and other visual distinctions create a uniquely different commercial impression from the registered mark. However, despite the obvious visual and aural differences, applicant has not elaborated on the differences in the commercial impressions. Applicant disputes the examining attorney’s statement that “flex” is the dominant portion of the respective marks simply because it is the first part of each mark. While applicant has misspelled the word “tracks” in its mark as “trax,” it is likely that the “trax” portion of applicant’s mark will be perceived as the phonetic equivalent of the actual word “tracks.” The respective Serial No. 77314821 5 marks, FLEXTRAX and FLEXTRACKER, are essentially compound word marks, both beginning with the identical word “flex” and followed by a form of the word “track.” There is no extrinsic evidence in the record regarding whether either term in the respective marks has any significance in connection with the respectively identified goods. However, applicant’s goods are identified, in part, as “adjustable glide trays”; thus, we can surmise that these trays are “flexible.” Registrant’s goods are identified, in part, as “track member inserts for display racks and shelves.” Thus, the “tracker” portion of registrant’s mark may suggest this feature of the inserts. From this we could surmise that shelving is flexible and may sit on tracks; however, this is mostly conjecture. Thus, we find that the marks are, at most, slightly suggestive in connection with the respectively identified goods and that the registered mark is not a weak mark. While the initial term or syllable in a mark is often dominant, we find that the first and second terms in the marks herein are equally “slightly suggestive” and, thus, we find that neither portion of either mark is more dominant than the other. Although the marks have certain differences, when we compare them in their entireties we find that on the whole they are similar in appearance, sound, connotation and commercial impression. Neither the differences in the form Serial No. 77314821 6 of the word “track” in the two marks nor the misspelling of “tracks” as “trax” in applicant’s mark is sufficient to distinguish the marks. This du Pont factor favors a finding of likelihood of confusion. Turning to consider the goods involved in this case, we note that the question of likelihood of confusion must be determined based on an analysis of the goods or services recited in applicant’s application vis-à-vis the goods or services recited in the registration, rather than what the evidence shows the goods or services actually are. Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems, Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991). Further, it is a general rule that goods or services need not be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that goods or services are related in some manner or that some circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances which could give rise, because of the marks used therewith, to a mistaken belief that they originate from or are in some way associated with the same producer or that there is an association between the Serial No. 77314821 7 producers of each party’s goods or services. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991), and cases cited therein; and Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002). The examining attorney contends that both applicant’s and registrant’s goods are “trays, racks and shelves used to display retail merchandise” and that “applicant and the registrant are in the identical business of providing point- of-purchase displays to merchandisers.” (Brief, unnumbered p. 4.) In support of this position, the examining attorney submitted excerpts alleged to be from both applicant’s and registrant’s websites. Registrant, on its website, describes itself as “a World-Class provider of stock and customized displays, along with merchandising and marketing point-of-purchase equipment” and states “[registrant] develops creative point-of-purchase displays for the consumer products industry.” Applicant, on its website, describes itself as “a full service Point of Purchase company specializing in creative design and innovative production methods. Our Point of Purchase designs incorporate multi-medium production methods and components ….” While applicant makes no argument in its brief regarding whether the goods are similar or related, in its reply brief it points out that any similarity in the goods Serial No. 77314821 8 is not determinative. Applicant contends that the relevant consumers are sophisticated; and that the purchasers of the respective goods are “commercial buyers with extensive knowledge of the competing goods, as well as their respective sources.” (Brief, p. 9.) In this case, applicant’s goods are identified as “adjustable glide trays formed from plastic for receiving, storing and displaying retail merchandise, beverages and food products,” and registrant’s goods are identified as “display racks and shelves, namely, single and multiple track member inserts for display racks and shelves.” We note, first, that applicant’s goods are limited to use for “retail merchandise, beverages and food products.” Registrant’s identification of goods contains no limitations and, thus, its goods can be used for a wider range of goods that would encompass those specified in the application. Applicant’s identified adjustable glide trays are used to store and display the specified goods. Registrant’s track members are inserts for display racks and shelves. It is not clear the extent to which these goods are identical or similar, but there is no question that they serve the same function of displaying various goods. Thus, we find that the goods are sufficiently similar that, if identified by similar marks, confusion as to source is likely. Serial No. 77314821 9 We agree with applicant that the consumers of the respective goods are likely to be business persons needing to display goods. However, these business persons could range from purchasing departments of large corporate businesses to mom-and-pop operations. The business sophistication of these purchasers is likely to cover the full range. Also, there is no evidence in the record as to the cost of these types of goods or the level of care used in making these types of purchasers. Moreover, even sophisticated purchasers are susceptible to source confusion, particularly under circumstances where, as here, the goods are closely related and are sold under very similar marks. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) ("Human memories even of discriminating purchasers ... are not infallible."). See also Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289 (CCPA 1962); and In re Pellerin Milnor Corp., 221 USPQ 588 (TTAB 1983). When we consider the record and the relevant likelihood of confusion factors, and all of applicant's arguments relating thereto, including those arguments not specifically addressed herein, we conclude that, in view of the substantial similarity in the commercial impressions of Serial No. 77314821 10 applicant’s mark, FLEXTRAX, and registrant’s mark, FLEXTRACKER, their contemporaneous use on the closely related goods involved in this case is likely to cause confusion as to the source or sponsorship of such goods. Decision: The refusal under Section 2(d) of the Act is affirmed.