LG Electronics Inc.

Trademark Trial and Appeal Board

Nov 20, 2008

No. 78737356 (T.T.A.B. Nov. 20, 2008)

Hearing: Mailed:
23 September 2008 20 November 2008
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re LG Electronics Inc.
________

Serial No. 78737356
_______

Robert J. Kenney of Birch, Stewart, Kolasch & Birch, LLP
for LG Electronics Inc.

Colleen Dombrow, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
_______

Before Drost, Cataldo, and Ritchie de Larena1,
Administrative Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On October 20, 2005, LG Electronics Inc. (applicant)
applied to register the mark BLURADIANCE in standard
character form on the Principal Register for goods

1 Judge Hohein, now deceased, participated in the September 23,
2008, hearing. Judge Ritchie de Larena is substituted for the
purpose of final decision. TMEP § 802.04 (2d ed. rev. 2004).
See also In re Bose Corp., 772 F.2d 866, 869, 227 USPQ 1, 4 (Fed.
Cir. 1985) (“Turning to the validity of the board’s decision, we
hold that there was no error in substituting a board member
without allowing reargument. The statutory requirement that a
case be ‘heard’ by three board members means judicially heard,
not physically heard”).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78737356
2
ultimately identified as “domestic cooking oven ranges;
electric cooking ranges; microwave ovens” in Class 11.2
The examining attorney3 refused to register applicant’s
mark under the provision of Section 2(d) of the Trademark
Act (15 U.S.C. § 1052(d)) because of a registration for the
mark RADIANCE, in typed or standard character form, for
“gas stoves” in Class 11.
After the examining attorney made the refusal final, a
request for reconsideration and this appeal followed. An
oral argument was held on September 23, 2008.
Before we discuss the merits of this issue, we must
first address the evidence attached to applicant’s brief,
to which the examining attorney has objected. Brief at
unnumbered p. 3. Inasmuch as this evidence was not
previously submitted, it is untimely and we will not
consider it. See, e.g., In re First Draft Inc., 76 USPQ2d
1183, 1192 (TTAB 2005) (“Submission of the TARR printout
with its appeal brief, however, is an untimely submission
of this evidence”) and In re Trans Continental Records
Inc., 62 USPQ2d 1541, 1541 n.2 (TTAB 2002) (Exhibits from

2 Serial No. 78737356. The application is based on an allegation
of a bona fide intention to use the mark in commerce.
3 The current examining attorney was not the original examining
attorney in this case.
Ser. No. 78737356
3
web search engines not considered when submitted for the
first time on appeal).
When we are considering whether there is a likelihood
of confusion, we look at the evidence as it relates to the
factors set out in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In
re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003) and Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000). In
considering the evidence of record on these factors, we
must keep in mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
We begin by comparing the marks to examine “‘the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.’” Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). Registrant’s mark consists solely of the
word RADIANCE while applicant adds the letters BLU before
RADIANCE to form the mark BLURADIANCE. In effect,
Ser. No. 78737356
4
applicant has taken the entire registered mark and added
the phonetic equivalent to the word “blue” at the beginning
of the mark. Applicant argues that “the BLU portion of the
applicant’s mark would be significantly more likely to be
remembered by the purchaser tha[n] would the RADIANCE
portion of the mark.” It is not clear why the phonetic
equivalent of the color blue would be the dominant part of
applicant’s mark. The term “radiance” is certainly a
significant part of the mark and consumers are unlikely to
ignore the term or ascribe to it little weight in
distinguishing the marks. Indeed, there is no evidence
that the term is entitled to only a narrow scope of
protection.
We add that applicant has displayed its mark in
standard character form, which means that it is not limited
to any particular stylization. Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000)
(“Registrations with typed drawings are not limited to any
particular rendition of the mark and, in particular, are
not limited to the mark as it is used in commerce”);
ProQuest Information and Learning Co. v. Island, 83 USPQ2d
1351, 1359 (TTAB 2007)(Applicant’s mark “is shown in
standard character format. Hence, we must consider that
applicant’s mark is not limited to any special form or
Ser. No. 78737356
5
style as displayed on its goods”); and In re Cox
Enterprises Inc., 82 USPQ2d 1040, 1044 (TTAB 2007)(“We must
also consider that applicant's mark, presented in typed or
standard character form, is not limited to any special form
or style as displayed on its goods”). Thus, we cannot
accept applicant’s argument that its mark “does not
distinguish between or separate the terms BLU and
RADIANCE.” We must consider the likelihood of confusion
issue assuming that applicant’s mark may be displayed in a
manner that would distinguish or visually separate the
“radiance” portion of the mark from the “blu” portion such
as BluRadiance or even BluRADIANCE.
Applicant also relies on the case of Miguel Torres
S.A. v. Cantine Mezzacorona S.C.A.R.L., 52 USPQ2d 1557
(E.D. Va. 1999) and argues that there “the marks CORONAS
and MEZZACORONA were found not to be confusingly similar,
even though both were used on identical goods; wines.”
Brief at 7. Interestingly, the Miguel Torres court noted
that the board had previously determined that there was a
likelihood of confusion between the same marks and the
Federal Circuit had affirmed that determination.
Torres filed an opposition to the registration of
MEZZACORONA based on its prior use and registration of
CORONAS and GRAN CORONAS for wine. On July 18, 1996
the Trademark Trial and Appeal Board (“the Board”)
issued a decision sustaining Torres’ opposition.
Ser. No. 78737356
6
Cantine's request for reconsideration was denied on
January 16, 1997, and it timely filed an appeal to the
Court of Appeals for the Federal Circuit.

The appeal was fully briefed and the parties presented
oral argument on December 1, 1997. In a decision
dated December 17, 1997, the Federal Circuit affirmed
the Board’s decision, saying:

“We cannot find fault with the Board’s factual
determinations that the [MEZZACORONA] mark ...
was similar in physical appearance, sound, and
meaning to the marks registered to Torres,
whether the marks are considered as applied for
or registered, or as actually used ... We
conclude, therefore, that the Board’s decision to
grant the opposition and deny Cantine’s
registration because its mark was confusingly
similar to two previously-registered marks was
correct as a matter of law.”

Miguel Torres, 52 USPQ2d at 1560 (punctuation in original).

The district court also noted the differences between
the two types of proceedings. Id. at 1560-61 (“The Court
also found that because the standards for likelihood of
confusion differ in registration proceedings and
infringement actions, the Court could not apply the
collateral estoppel doctrine because the proceedings
conducted by the Board and the Federal Circuit were not
identical to the instant action”). Indeed, the district
court relied on factors such as other marks and wording
that appear on the labels that are not considered in a
registration context. Id. at 1564. Therefore, applicant’s
cited case provides little support for applicant’s
Ser. No. 78737356
7
position. It is an infringement case that points out that,
in the registration context, the board and Federal Circuit
determined that there was a likelihood of confusion.
Furthermore, while the marks are not identical, the
only difference between the marks is the term “Blu” in the
front of applicant’s mark. The addition of this term does
not significantly change the sound, appearance, meaning, or
commercial impression of the marks. We find the language
from the Federal Circuit instructive:
The marks SQUIRT and SQUIRT SQUAD are, however, of
such similarity that they are more likely to create
confusion than prevent it. Not only does appellee's
mark SQUIRT SQUAD incorporate the whole of appellant's
mark SQUIRT, but also, in SQUIRT SQUAD, SQUIRT retains
its identity. Because of the alliteration with
SQUIRT, SQUAD is an apt choice to combine with SQUIRT
to suggest a line or group of toys from the same
source as SQUIRT balloons. Thus, the marks do not
create different commercial impressions.

Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983).
Similarly, applicant has taken the entire registered
mark and added the phonetic equivalent of the word “blue”
to the mark. The color simply would suggest to many
purchasers that BLURADIANCE is another product in the line
of RADIANCE products from the same source. See also Merck
& Co., Inc. v. Abbott Laboratories, 210 USPQ 605 (TTAB
1981) (A-HYDROCORT similar to HYDROCORTONE); Alberto-Culver
Ser. No. 78737356
8
Co. v. Helene Curtis Industries, Inc., 167 USPQ 365, 370
(TTAB 1970) (COLOR COMMAND similar to COMMAND); and H.D.T.
Company Factors, Inc. v. Coral Chemical Co., 136 USPQ 315
(TTAB 1962) (CORAL similar to BLUE CORAL).
Here, the marks contain the identical term RADIANCE.
The only difference is the addition of the term “Blu” to
applicant’s mark. The similarities in sound, appearance,
meaning, and commercial impressions of the marks are
greater than their differences and we conclude that the
marks are similar. See Coca-Cola Bottling Co. v. Joseph E.
Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA
1975) (“When one incorporates the entire arbitrary
registered mark of another into a composite mark, inclusion
in the composite mark of a significant nonsuggestive
element does not necessarily preclude the marks form being
so similar as to cause a likelihood of confusion”) and
Wella Corp. v. California Concept Corp., 558 F.2d 1019, 194
USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer
design likely to be confused with CONCEPT for hair care
products).
Next, we consider whether applicant’s and registrant’s
goods are related. Registrant’s goods are gas stoves,
while applicant’s goods are domestic cooking oven ranges,
electric cooking ranges, and microwave ovens. It is not
Ser. No. 78737356
9
necessary that the respective goods be identical or even
competitive in order to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods are
related in some manner or that the circumstances
surrounding their marketing are such that they would be
likely to be encountered by the same persons in situations
that would give rise, because of the marks used thereon, to
a mistaken belief that they originate from or are in some
way associated with the same producer or that there is an
association or connection between the producers of the
respective goods. See In re Melville Corp., 18 USPQ2d
1386, 1388 (TTAB 1991); In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Regarding the goods, applicant argues that the “goods
in connection with which the two marks are used or to be
used are very different. Specifically, the Registrant’s
goods are ‘gas stoves’ which are in the nature of gas-fired
versions of the traditional ‘wood stoves’ used to heat a
room or house. These goods are very different from
Applicant’s appliances used in the kitchen for cooking
food.” Brief at 8-9. The examining attorney has submitted
several dictionary definitions and argues:
The attached dictionary from www.dictionary.com
defines gas stove as, “A range with gas rings and an
oven for cooking with gas [syn: gas range].” (See
Ser. No. 78737356
10
evidence attached to the final office action dated May
1, 2007.) The attached dictionary definition from
www.rhymezone.com defines gas stoves as, “a range with
gas rings and an oven for cooking with gas.” The
attached dictionary definition form www.encarta.com
defines range as, “stove: a cooking stove with one or
more ovens and with hot plates or burner on top.” The
attached evidence from www.encarta.com shows that the
word “stove” is synonymous with “cooktop, hot plate,
oven range, cooker, hob.” Furthermore, the
information from www.infoplease.com shows that the
word “stove” is synonymous with “kitchen stove, range,
kitchen range, cooking stove, kitchen appliance.” The
attached evidence clearly shows that a stove is
synonymous with a range. Further, the evidence form
buyit.dfw.com and www.easyapplicanceparts.com shows
that the terms range and stove are used
interchangeably in the appliance industry.

See Brief at 10-11 (additional references to “(See evidence
attached to the final office action dated May 1, 2007.)”
omitted).
The examining attorney has also submitted additional
evidence to suggest that registrant’s gas stoves are
related to applicant’s domestic cooking oven ranges,
electric cooking ranges, and microwave ovens. See, e.g.,
Registration No. 0437113 (gas ranges and gas stoves);
2601154 (“gas stoves, electric cooking ovens,” and
“microwave ovens”); 2715840 (“domestic cooking ovens,” “gas
stoves” and “microwave cooking ovens”); 2774528 (“gas
ranges, electric ranges, gas stoves, electric stoves,
cooking ovens for domestic and commercial use”); 2957986
(“gas ranges; gas stoves”); 2956155 (“large domestic
Ser. No. 78737356
11
appliances, namely, gas stoves, electric stoves, induction
ovens, gas ranges, electric ranges, refrigerators and
freezers”); 3008176 (“domestic cooking ovens, commercial
cooking ovens, electric stoves, gas stoves, microwave ovens
for cooking”); 3076078 (“electric and gas stoves, gas and
electric pressure cookers, and gas and electric ranges”);
30997528 (electric and gas stoves, cookers and cooking
ranges”); and 3123622 (“electric cooking ovens; electric
ranges; electrical stoves; freezers; gas cooking ovens; gas
ranges; gas stoves; refrigerators”). See In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although
third-party registrations are “not evidence that the marks
shown therein are in use on a commercial scale or that the
public is familiar with them, [they] may nonetheless have
some probative value to the extent that they may serve to
suggest that such goods or services are of a type which may
emanate from a single source”). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
Applicant argues that the goods of the parties “serve
very different functions, in different areas of the home,
and would be sold to consumers in very different channels
of trade.” Brief at 9. Applicant’s argument ignores the
fact that we must consider the goods as they are set out in
the identifications of goods in the registration and
Ser. No. 78737356
12
application. See Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods [or
services] set forth in the application regardless of what
the record may reveal as to the particular nature of an
applicant’s goods [or services], the particular channels of
trade or the class of purchasers to which the sales of
goods [or services] are directed”). See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”).
Here, the term “stove” is defined as “a portable or
fixed apparatus that furnishes heat for warmth, cooking,
etc., commonly using coal, oil, gas, wood, or electricity
as a source of power.” A range is “a large portable or
stationary cooking stove having burners built into the top
surface and containing one or more ovens.” The Random
House Dictionary of the English Language (unabridged) (2d
ed. 1987).4 Therefore, to the extent that a gas stove

4 We take judicial notice of these definitions. University of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
Ser. No. 78737356
13
includes a fixed apparatus that furnishes heat for cooking,
it overlaps with a domestic cooking oven range that would
include a gas oven and burners. Applicant’s point is that
registrant is apparently advertising gas stoves that are
only used for heating a room instead of a stove that could
be used for cooking. Applicant then seeks to introduce
extrinsic evidence to establish the nature of applicant’s
goods citing In re Trackmobile, Inc., 15 USPQ2d 1152 (TTAB
1990). However, in Trackmobile, the board was unable to
determine what was the nature of the goods based on the
identification of goods. Id. at 1153 (“The terms ‘mobile
railcar movers’ and ‘light railway motor tractors’ are
somewhat vague to members if this Board who possess no
special knowledge of such equipment”).
Here, the term “gas stoves” has no such vagueness.
Apparently, applicant’s problem with the term is not that
it is vague but rather that it is broader than applicant
would like because it could encompass both gas stoves for
heating and gas stoves for cooking. However, the fact that
a term may describe more than one very specific item does
not make the term unclear. See In re Dynamit Nobel
Aktiengesellschaft, 169 USPQ 499, 499 (TTAB 1971) (“The

596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser. No. 78737356
14
term ‘ammunition’ is a commonly used term and sufficiently
describes applicant's goods to the extent that its rights
in the mark sought to be registered will be definable”) and
In re Taylor, 133 USPQ 490, 490 (TTAB 1962) (The “terms
‘salads’ and ‘desserts’ when described as restaurant and
take-out food items as applicant has done, is sufficient to
advise all persons what applicant's goods are”).
Indeed, the Trackmobile case makes it clear that
extrinsic evidence would not normally be appropriate to
determine what a registrant’s goods are.
If registrant’s goods are broadly described in its
registration so as to include types of goods which are
similar to applicant’s goods, then an applicant in an
ex parte case cannot properly argue that, in point of
fact, registrant actually uses its mark on a far more
limited range of goods which range does not include
goods which are similar to applicant's goods.

Applicant acknowledges the foregoing rule of law by
noting, by way of example, that if a prior
registration utilizes the unambiguous term
“vegetables” as its description of goods, it would be
improper for an applicant to argue that in point of
fact registrant makes use of its mark only on “peas.”
However, applicant contends that it is not attempting
to narrow the description of goods set forth in the
cited registration (light railway motor tractors), but
rather it is attempting to show by means of extrinsic
evidence that the term “light railway motor tractors”
has a meaning in the trade, and that this meaning does
not include applicant’s goods (mobile railcar movers)…

The terms “mobile railcar movers” and “light railway
motor tractors” are somewhat vague to members of this
Board who possess no special knowledge about such
equipment.

Ser. No. 78737356
15
However, when the description of goods for a cited
registration is somewhat unclear, as is the case
herein, it is improper to simply consider that
description in a vacuum and attach all possible
interpretations to it when the applicant has presented
extrinsic evidence showing that the description of
goods has a specific meaning to members of the trade.

Id. at 1153-54.

The term “gas stoves” is not a term that requires
special knowledge to understand. Indeed, it is a term that
includes “types of goods which are similar to applicant's
goods,” and as Trackmobile noted “an applicant in an ex
parte case cannot properly argue that, in point of fact,
registrant actually uses its mark on a far more limited
range of goods which range does not include goods which are
similar to applicant's goods.” Therefore, we find that gas
stoves and domestic cooking oven ranges are overlapping
goods.
When goods are overlapping, we must assume that
purchasers and channels of trade also overlap.
Where the goods in the application at issue and/or in
the cited registration are broadly identified as to
their nature and type, such that there is an absence
of any restrictions as to the channels of trade and no
limitation as to the classes of purchasers, it is
presumed that in scope the identification of goods
encompasses not only all the goods of the nature and
type described therein, but that the identified goods
are offered in all channels of trade which would be
normal therefor, and that they would be purchased by
all potential buyers thereof.

Ser. No. 78737356
16
In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
See also In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
We add that even if registrant’s goods are limited to
stoves for heating and applicant’s goods are used for
cooking, this fact would not establish that the goods are
not related. Registrant’s gas stoves can include “Optional
Warming Shelves, with nickel plated mitten racks,” which
indicates that registrant’s stoves can be used to warm,
inter alia, food items. www.vermontcastings.com. This
suggests that purchasers are likely to associate a gas
stove for warming items and heating with a domestic cooking
oven range. See also Williams Oil-O-Matic Heating Corp. v.
Geo. D. Roper Corp., 17 USPQ 176, 177 (Comm'r Pat. 1933)
(“It is true the opposer's heating devices are for
indirectly heating the air in dwellings while the
applicant's liquid fuel-burning devices are mainly for
heating food to cook it. Both kinds of goods include
liquid fuel burners and devices for controlling them. It
is considered the holding of the examiner that the goods of
both parties belong to the same class as these terms have
been construed in the adjudicated cases is sound”).
When we consider the marks in their entireties, we
find that they are similar inasmuch as both marks would be
dominated by the term RADIANCE. We also find that the
Ser. No. 78737356
17
goods are overlapping and related. Therefore, when we
consider the other factors, we conclude that there is a
likelihood of confusion in this case. To the extent we
have doubts; we resolve them, as we must, in favor of the
prior registrant and against the newcomer. In re Hyper
Shoppes (Ohio) Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026
(Fed. Cir. 1988); Kenner Parker Toys v. Rose Art
Industries, 963 F.2d 350, 22 USPQ2d 1453, 1458 (Fed. Cir.
1992), cert. denied, 506 U.S. 862 (1992).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.