Pixel Power Ltd.

Trademark Trial and Appeal Board

Sep 20, 2013

No. 85322505re (T.T.A.B. Sep. 20, 2013)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: September 20, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Pixel Power Ltd.
________

Serial No. 85322505
_______

James R. Menker of Holley & Menker PA for Pixel Power Ltd.

Sara N. Benjamin, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Zervas, Cataldo and Shaw,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

On May 17, 2011, applicant, Pixel Power Ltd., filed
the involved application under Section 1(b) of the
Trademark Act to register on the Principal Register the
mark CHANNELMASTER in standard characters, reciting the
following goods, as amended:
computer apparatus and instruments for generating
graphics, sound and/or text for use in the
production and broadcasting of television content
for use by broadcasters, outside broadcast truck
companies, play out facilities, post production
houses, venues and sports complexes; computer
graphics software; computer software for
generating graphics, sound and/or text for
Ex Parte Appeal No. 85322505

2
broadcasting and/or production purposes; computer
graphics apparatus, namely graphics cards and
computer graphics boards; character generators in
the nature of computer hardware for use in the
production of text, video, sound or graphics
content for broadcast and production purposes;
computer hardware for processing graphics

in International Class 9.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as intended to be used in connection with
applicant’s goods, so resembles five marks, previously
registered by the same entity on the Principal Register,
including CHANNEL MASTER, in typed or standard characters
for
amplifiers, transmission lines, antennas, antenna
rotators, and accessories therefor and parts
thereof

in International Class 91 as to be likely to cause
confusion, to cause mistake, and to deceive. In addition,
the examining attorney, in accordance with Trademark Rule
2.32(a)(6), 37 CFR § 2.32(a)(6), required applicant to
amend its identification of goods to specify with greater
particularity the “computer apparatus and instruments”
recited therein. When the examining attorney made final

1 Registration No. 0693777 issued on March 1, 1960. 3rd renewal.

Ex Parte Appeal No. 85322505

3
the refusal to register and the requirement, applicant
appealed.
On July 18, 2013, the Board issued a decision
affirming the examining attorney’s refusal to register
under Section 2(d) of the Trademark Act, and the
requirement for a more definite identification of goods.
On August 19, 2013, applicant filed a request for
reconsideration of the Board’s July 18, 2013 decision
affirming the refusal to register under Section 2(d).2
As a preliminary matter, we note that applicant’s
request for reconsideration is timely inasmuch as it was
filed within 30 days of the date of the Board’s decision.
See Trademark Rules 2.144 and 2.196. See also Avedis
Zildjian Co. v. D. H. Baldwin Co., 181 USPQ 736 (Comm’r
1974).
Generally, the premise underlying a motion for
reconsideration, modification or clarification under
Trademark Rule 2.127(b) is that, based on the facts before
it and the prevailing authorities, the Board erred in
reaching the order or decision it issued. Such a motion
may not properly be used to introduce additional evidence,

2 Applicant’s request for reconsideration does not address our
affirmance of the examining attorney’s other basis for refusing
registration, i.e., her requirement for a more definite
identification of goods.

Ex Parte Appeal No. 85322505

4
nor should it be devoted simply to a reargument of the
points presented in a brief on the original motion.
Rather, the motion normally should be limited to a
demonstration that, based on the facts before it and the
applicable law, the Board’s ruling is in error and requires
appropriate change. See TBMP § 543 (3d ed., rev.2 2013)
and authorities cited therein.
Applicant asserts in its request for reconsideration
(p. 1) that “affirmance of the likelihood of confusion
refusal was erroneous and should be reversed.”
Specifically, applicant makes the following assertions:
Although the marks consist of the same words no
consideration was given to the scope of
protection to be afforded the registered mark.
The terms “channel” and “master” are inherently
weak. As a result, the registered mark was
entitled to only a very narrow scope of
protection. (p. 2);

The goods set forth in the instant application
are not closely related to the goods
set forth in the cited registrations. The only
evidence relied upon by the Board was the
“approximately thirty use-based third-party
registrations which show that various entities
have adopted a single mark for goods of a kind
similar to those identified in applicant’s
application and the cited registration.” … Absent
evidence of actual use of the marks set forth in
the third party registrations relied upon by the
Board, the Examining Attorney failed to meet her
burden of proof, and the Board’s decision is
not supported by substantial evidence. (p. 2-3);

and

Ex Parte Appeal No. 85322505

5
Applicant’s goods are of a highly technical
nature. Therefore, the reliance on a
relationship between the goods set forth in the
cited registration and goods similar (in a metric
not explained) to those goods does not
demonstrate that the goods are in fact related.
The goods set forth in the instant application
are explicitly limited to graphics applications.
Amplifiers, transmission lines, antennas, antenna
rotators, and accessories therefor and parts
thereof do not inherently have any graphics
function, and there is no evidence of record to
support a finding that such goods are
complementary products. The assumption that the
parties’ goods are vaguely used in connection
with “broadcasting” does not demonstrate that
they are “complementary” products. (p. 4-5).

Turning to applicant’s first basis for its request for
reconsideration, we observe that while applicant asserts
that terms “channel” and “master” comprising registrant’s
marks and applicant’s mark are “inherently weak,” applicant
submitted no evidence in support of this contention. In
the absence of any such evidence, we have no basis to
find, as applicant urges, that the mark CHANNEL MASTER is
weak or otherwise entitled only to a narrow scope of
protection.
Turning to applicant’s second basis for its request
for reconsideration, we initially observe that applicant’s
CHANNELMASTER mark is legally identical to registrant’s
CHANNEL MASTER mark. See In re L.C. Licensing Inc., 49
USPQ2d 1379, 1381 (TTAB 1998) (LIZ SPORT and LIZSPORT
engender the same commercial impression); and In re
Ex Parte Appeal No. 85322505

6
Strathmore Products, Inc., 136 USPQ 81, 82 (TTAB 1962) (the
contraction of a term does not alter the essential identity
of the character and meaning between the full word and its
contraction). As a result, “even when goods or services
are not competitive or intrinsically related, the use of
identical marks can lead to an assumption that there is a
common source.” In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1689 (Fed. Cir. 1993). See also Amcor, Inc.
v. Amcor Industries, Inc., 210 USPQ 70, 78 (TTAB 1981)
(When both parties are using or intend to use the identical
designation, “the relationship between the goods on which
the parties use their marks need not be as great or as
close as in the situation where the marks are not identical
or strikingly similar”). Thus, it is not necessary to
determine that applicant’s goods are “closely related” to
those of registrant in order to support a finding of
likelihood of confusion.
In this case, we found in our July 18, 2013
determination that because registrant’s “amplifiers,
antennas and transmission lines,” as identified without any
stated limits as to their use or purpose, must be presumed
to be used for any purpose suitable therefor, including the
purposes for which applicant’s goods are intended to be
used. We further found (July 18, 2013 decision, p. 8-9)
Ex Parte Appeal No. 85322505

7
that the thirty use-based, third-party registrations made
of record by the examining attorney show that a single mark
has been used by various entities to identify “goods of a
kind similar to those identified in applicant’s application
and the cited registration.” Applicant is correct that the
examining attorney did not make of record evidence of use
of these third-party registrations. However, as we noted
in the July 18, 2013 decision, it is well-settled that such
registrations are competent evidence to suggest that the
goods listed therein are of a type that may emanate from a
single source. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1786 (TTAB 1993).
Turning to applicant’s third basis for its request for
reconsideration, applicant is correct to the extent that
registrant’s identified antennas, transmission lines,
amplifiers and other goods do not inherently have any
graphics function. However, and as discussed above,
because these goods are not limited to any particular
purpose or use, they must be presumed to be used for any
purpose suitable therefor, including production and
broadcasting of, inter alia, television content that
includes graphics, sound and text. Thus, while
registrant’s goods, as identified, may not be expressly
used for generation of graphics, they are broadly worded
Ex Parte Appeal No. 85322505

8
enough to be used for, among other things, broadcasting of
television content including such graphics.
In summary, we find that applicant points to no error
in our July 18, 2013 determination, but rather disagrees
with the result reached therein. As a result, we remain of
the opinion that our determination affirming in part the
examining attorney’s refusal to register is correct.
The request for reconsideration is denied.