Rocktron Corp.

Trademark Trial and Appeal Board

Aug 31, 1999

No. 74531669 (T.T.A.B. Aug. 31, 1999)

Paper No. 14
CMB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 31, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Rocktron Corporation
________
Serial No. 74/531,669
_______
Robert A. Dunn of Dinnin & Dunn, P.C. for Rocktron
Corporation.
Loretta C. Beck, Trademark Examining Attorney, Law Office
102 (Thomas V. Shaw, Managing Attorney).
_______
Before Seeherman, Walters and Bottorff, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant seeks registration of the mark depicted
below
for goods identified as "electronic audio signal processing
components, namely encoders and controllers for surround
Ser. No. 74/531,669
2
sound or home theater sound recording, and decoders for
surround sound or home theater playback."1
Registration has been refused under Trademark Act
Section 2(d), 15 U.S.C. §1052(d), on the ground that
applicant's mark, as applied to applicant's goods, so
resembles the mark CS (in typed form), for goods identified
as "amplifiers,"2 as to be likely to cause confusion, to
cause mistake, or to deceive.
When the refusal was made final, applicant appealed.
Applicant and the Trademark Examining Attorney filed
briefs, but applicant did not request an oral hearing. We
affirm the refusal.
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). In any
likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities
between the goods and/or services. See Federated Foods,

1 Application Serial No. 74/531,699, filed May 31, 1994. The
application is based on applicant’s allegation of use in commerce
since December 1, 1993.
2 Registration No. 1,486,017, issued April 26, 1988. Affidavits
under Trademark Act Sections 8 and 15 accepted. The record owner
of the registration is Peavey Electronics Corporation.
Ser. No. 74/531,669
3
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976).
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 impression that confusion as to the source of
the goods offered under the respective marks is likely to
result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks. See 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 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).
Ser. No. 74/531,669
4
In this case, we find that applicant’s mark and the
registered mark share the same dominant feature, i.e., the
letters "CS". These letters appear to be arbitrary as
applied to the goods identified in the application and in
the registration, without any special meaning in the
industry.3 They comprise the whole of the registered mark,
and they are the literal portion of applicant’s mark which
would be used by purchasers to refer to or call for
applicant’s goods. See In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987). Indeed, it appears from
applicant’s specimens of use that applicant itself often
uses merely the letters "CS" to refer to its goods, i.e.,
"CS is a 4-2-4 matrix system, which is how broadcast and
storage can be realized within two-channel mediums"; and
"[i]n terms of audio, CS is of the highest possible
standard." (Emphasis in original.)
Thus, we find that the marks at issue are identical in
terms of their sound. Comparing the marks next in terms of
appearance and commercial impression, we note that

3 Applicant argues that the letters "CS" stand for or are an
abbreviation of the term "Circle Surround," which is the name of
applicant’s surround-sound system, and that they would be used by
applicant in conjunction with applicant’s CIRCLE SURROUND mark.
However, the words CIRCLE SURROUND are not part of the mark
sought to be registered here, so they cannot be considered in our
determination of the significance or connotation of applicant’s
mark.
Ser. No. 74/531,669
5
applicant’s mark includes a design element which is not
present in the registered mark, i.e., a circular arrow
device within which the letters "CS" are enclosed.
Applicant argues that this design element plays a large
role in the commercial impression of applicant’s mark, in
that it connotes or suggests that applicant’s goods employ
surround-sound technology. However, it is because of this
suggestive significance of the design element that the
letters "CS" form the dominant part of applicant’s mark.
Moreover, because the registered mark is depicted in
typed form, registrant would be entitled to display the
mark in various forms, including enclosure of the letters
"CS" in a circular carrier device. See In re Fisher Tool
Co., Inc., 224 USPQ 796 (TTAB 1984). Although applicant’s
mark would not be identical in appearance to registrant’s
mark as so displayed, the marks nonetheless would be
similar in terms of appearance and commercial impression,
in that they both would consist of the arbitrary letters
"CS" enclosed within, or surrounded by, a circular carrier
device.
In short, when we consider the marks in their
entireties in terms of their appearance, sound, meaning and
overall commercial impression, we find that they are
similar, rather than dissimilar. This similarity of the
Ser. No. 74/531,669
6
marks weighs in favor of a finding of likelihood of
confusion.
We turn next to a determination of whether applicant’s
goods, as identified in the application, are sufficiently
closely related to the goods identified in the cited
registration that source confusion would be likely to
result from the use of similar marks on such goods. We
find that the requisite commercial relationship between
applicant’s goods and registrant’s goods exists in this
case.
Initially, we must address applicant’s argument that
although registrant’s goods are identified broadly in the
registration as "amplifiers," in actual fact registrant
uses the registered mark only on "guitar amplifiers," goods
which applicant asserts are highly dissimilar from the
sophisticated audio equipment on which applicant is using
its mark. Applicant has submitted the declaration of its
officer Robert Waller as evidence in support of this
contention. Citing In re Trackmobile, Inc., 15 USPQ2d 1152
(TTAB 1990), applicant argues that the Board’s
determination of whether applicant’s goods are related to
registrant’s goods should take into account this extrinsic
evidence as to the limited scope of the registrant’s actual
goods.
Ser. No. 74/531,669
7
In re Trackmobile, Inc., supra, is inapposite to the
present case. Unlike the situation presented in
Trackmobile, where the Board was uncertain as to the very
nature of the "light railway motor tractors" identified in
the registration at issue, in the present case the Board
does not need the benefit of extrinsic evidence in order to
ascertain what "amplifiers" are. The Board therefore will
accord to the word "amplifiers" its normal, ordinary
commercial meaning, and presume that registrant is entitled
to use its mark on any and all "amplifiers," not just
"guitar amplifiers."4
The evidence of record shows that the term
"amplifiers" is used to refer to certain components which
would be used in conjunction with or as part of surround-
sound audio systems. Indeed, applicant has admitted that
its decoder must be used with an amplifier in order to
function properly. Thus, we find that surround-sound
components such as applicant’s and amplifiers such as those

4 As acknowledged by applicant in its April 28, 1995
response to the first office action refusing registration,
if applicant believed the identification of goods in the
cited registration to be overly broad, applicant’s remedy
would have been to file an action for partial cancellation
of that registration. See, e.g., Eurostar, Inc. v "Euro-
Star" Reitmoden GmbH & Co KG, 34 USPQ2d 1266 (TTAB 1994).
Ser. No. 74/531,669
8
identified in the registration are complementary and thus
related products.
Moreover, even if we were to limit registrant’s goods
to "guitar amplifiers," as suggested by applicant, we would
still find the goods to be related. The evidence of record
in this case clearly shows that applicant markets its goods
to musicians involved in the live performance of music and
in the producing and recording of music. These are the
same purchasers to whom "guitar amplifiers" would be sold.5
For example, applicant’s specimens state that
applicant’s surround-sound system "is the first surround
sound system designed specifically for music production"
(emphasis in original); that applicant’s system "opens the
wildly expanding surround market to the musician/producer,
at an extremely affordable price"; that applicant’s
surround-sound encoder includes features "allowing it to
optimally interface with all pro and semi-pro recording

5 Additionally, we note that applicant’s vice-president, Mr.
Waller, states that "[a] segment of Rocktron’s product line is
directed toward signal processing for live music performances,
particularly for electric guitar players in the rock and roll
music genre." (Declaration of Robert Waller (March 6, 1996) at
page 1.) It is unclear whether applicant markets these products
to guitarists under the mark at issue in this case. However, the
fact that applicant’s product line includes both the surround-
sound components identified in the application and audio
equipment made specifically for electric guitarists further
supports a finding that purchasers would be likely to perceive a
source connection between such goods.
Ser. No. 74/531,669
9
gear" (emphasis added);6 and that applicant’s system "has
established itself within virtually every audio arena:
major recording studios, live performance venues, theme
parks, and automotive and home audio." (Emphasis added.)
Similarly, applicant’s brochure entitled CIRCLE SURROUND,
submitted with the March 6, 1996 Declaration of Robert
Waller, states that applicant’s system "can let the studio
owner, broadcaster, film maker, convention or trade show
presenter, video game creator and concert artist affordably
enter this rapidly expanding world of true sonic and
spatial realism" (emphasis added); and that "[p]roducing in
CS is quite simple. Any mixer with a stereo program bus
and a couple of aux sends can be used."7
In short, the record shows that applicant’s goods are
commercially related to the "amplifiers" identified in the
cited registration, even if we were to construe

6 The Wonderland Music Superstores advertisement submitted by
applicant with its response to the first office action displays a
guitar amplifier made by registrant immediately adjacent to the
"424 Portastudio," a portable recording studio which would appear
to be the sort of "semi-pro recording gear" with which
applicant’s surround-sound components may "optimally interface."
The significance of the numerals "424" as used in "424
Portastudio" is not clear from the record, but the Board notes
that applicant, in its specimens of use, describes its system as
"a 4-2-4 matrix system." See supra at page 4.
7 It is unclear whether the "424 Portastudio" advertised in the
Wonderland Music Superstores advertisement might be the sort of
"mixer" with which applicant’s components can be used. See
discussion supra at footnote 6.
Ser. No. 74/531,669
10
registrant’s "amplifiers" so narrowly as to encompass only
"guitar amplifiers." This relationship between the
respective goods, especially when considered in light of
the confusing similarity of the marks, warrants a finding
that confusion is likely in this case.
We have carefully considered all of applicant’s
arguments with respect to the other du Pont likelihood of
confusion factors, but we are not persuaded that the
evidence of record as to any of those other factors
significantly favors applicant, or that it is sufficient to
counterbalance, in our likelihood of confusion analysis,
the similarity of the marks and commercial relationship
between the goods.
Briefly stated, we are not persuaded on this record
that the normal trade channels for applicant’s goods do not
overlap with the normal trade channels for the goods
identified in the registration, given the complementary
nature of the goods. See In re Elbaum, 211 USPQ 639 (TTAB
1981). Nor are we persuaded on this record that purchasers
of the types of goods identified in the application and in
the registration are necessarily sophisticated purchasers
or, more importantly, that they necessarily would be immune
to source confusion when faced with the similar marks and
related goods involved in this case. See Refreshment
Ser. No. 74/531,669
11
Machinery Incorporated v. Reed Industries, Inc., 196 USPQ
840 (TTAB 1977).
Furthermore, the third-party registrations of marks
consisting or comprised of the letters "C" and "S" are
entitled to little weight in our likelihood of confusion
analysis. (Because the Trademark Examining Attorney has
not objected to applicant’s third-party registration
evidence on the ground that it was submitted in the form of
a commercial search report, we have considered the
evidence.) The third-party registrations submitted by
applicant do not establish that the marks depicted therein
are in use in commerce or that they are familiar to
consumers, and, moreover, none of the registrations appears
to be for goods which are similar to the goods involved in
this case.
The fact that applicant is unaware of any instances of
actual confusion does not persuade us that there is no
likelihood of confusion in this case. See Weiss Associates
Inc. v. HRL Associates Inc., 902 F.2d 1546, 1549 14 USPQ2d
1840, 1842-43 (Fed. Cir. 1990), and cases cited therein.
Moreover, the alleged absence of actual confusion is
entitled to little weight in our likelihood of confusion
analysis because we cannot determine on this record that
there has been any meaningful opportunity for actual
Ser. No. 74/531,669
12
confusion to have occurred in the marketplace. See
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB
1992).
Finally, it is not dispositive that registrant’s mark
may not be famous, nor are we persuaded on this record that
the strength of applicant’s mark is such as to weigh
significantly against a finding of likelihood of confusion
in this case.
In short, after carefully considering all of the
evidence of record pertaining to the relevant du Pont
factors, we conclude that confusion is likely in this case.
Decision: The refusal to register is affirmed.
E. J. Seeherman
C. E. Walters
C. M. Bottorff
Administrative Trademark Judges
Trademark Trial and Appeal Board