The Chamberlain Group, Inc.

Trademark Trial and Appeal Board

Dec 14, 2007

No. 91160673 (T.T.A.B. Dec. 14, 2007)

Mailed: December 14, 2007
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

The Chamberlain Group, Inc.
v.
Lynx Industries, Inc.
_____

Opposition No. 91160673
to application Serial No. 78281660
filed on July 31, 2003
_____

Joseph T. Nabor and Tara M. Reedy of Fitch, Even, Tabin &
Flannery for The Chamberlain Group.

A. Blair Hughes and James M. McCarthy of McDonnell Boehnen
Hulbert & Berghoff for Lynx Industries.
______

Before Quinn, Hohein and Hairston, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Lynx Industries, Inc. has filed an application to
register the mark LYNX MASTER (in standard character form)
for “electric door openers; electric garage door openers;
and remote controls for garage doors” in International Class
9.1

1 Serial No. 78281660, filed on July 31, 2003, which is based on
an allegation of a bona fide intention to use the mark in
commerce.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Opposition No. 91160673
2
The Chamberlain Group, Inc. has opposed registration
pursuant to Section 2(d) of the Trademark Act. Opposer
alleges that since prior to the filing date of applicant’s
application, opposer has used the marks LIFTMASTER,
LIFT-MASTER, ACCESSMASTER, and GARAGE MASTER in connection
with overhead door operating systems and related products;
that it owns registrations for each of the marks; that it
has a prior family of MASTER marks; and that applicant’s
mark, when applied to applicant’s goods, so resembles each
of opposer’s individual and family of MASTER marks, as to be
likely to cause confusion. Opposer also has alleged, under
the Federal Trademark Dilution Act, that each of its
individual marks and its family of MASTER marks became
famous prior to the filing date of applicant’s application,
and that registration of applicant’s mark would impair,
diminish and dilute opposer’s goodwill and rights in its
individual marks and family of MASTER marks.
Applicant, in its answer, has denied the salient
allegations of the notice of opposition.
Preliminary and Evidentiary Matters
As indicated, opposer has pleaded a likelihood of
confusion and dilution between each of its individual marks
and family of MASTER marks and applicant’s mark. In its
brief on the case, however, opposer argues the issues of
likelihood of confusion and dilution only as between its
Opposition No. 91160673
3
LIFTMASTER mark and applicant’s mark. In view thereof, we
consider opposer to have waived its likelihood of confusion
and dilution claims as between each of its other individual
marks and family of MASTER marks and applicant’s mark.
Next, we turn to the parties’ evidentiary objections.
Opposer has objected to the admissibility of the testimony
of applicant’s witness Mark Schram and the documents
(Exhibits MS14, MS15, and MS16) introduced therewith
concerning an investigation by a private firm into third-
party marks that include the word MASTER. Opposer objects
on the ground that the testimony and the information in the
documents are hearsay, and on the ground that the documents
were requested, but not produced, during discovery.
Applicant, in its brief, states that it does not contest
opposer’s objections. Thus, in reaching our decision
herein, we have not considered this testimony and related
exhibits.
Applicant has objected to the admissibility of the
testimony of opposer’s witness Sarah Anderson and two
documents (Exhibits SA48 and SA49) introduced therewith
concerning purported distributors of opposer’s goods. The
documents at issue are Internet printouts of web pages.
During Ms. Anderson’s deposition, applicant’s counsel
objected to the documents on the ground that they lacked
proper foundation, and to Ms. Anderson’s testimony on the
Opposition No. 91160673
4
ground that she had not seen the documents prior to her
testimony. Indeed, Ms. Anderson admitted that she was not
familiar with the documents. Further, she did not provide
the parameters of the search associated with the Internet
printouts and did not name the individual who conducted the
Internet search. Under the circumstances, the evidence was
not properly authenticated, and we have given it no
consideration. See Raccioppi v. Apogee, Inc., 47 USPQ2d
1368 (TTAB 1998).
Finally, applicant has filed a motion to strike
opposer’s reply brief as untimely, or in the alternative, to
strike a portion of the reply brief on the ground that it
contains impermissible arguments. Opposer filed a brief in
response to the motion, or in the alternative, a motion to
reopen the time to file its reply brief. Accompanying
opposer’s response is the declaration of its counsel.
Trademark Rule 2.128(a)(1) states:

The brief of the party in the position of
plaintiff shall be due not later than sixty days
after the date set for the close of rebuttal
testimony. The brief of the party in the position
of defendant, if filed, shall be due not later
than thirty days after the due date of the first
brief. A reply brief by the party in the position
of plaintiff, if filed, shall be due not later
than fifteen days after the due date of the
defendant’s brief.

In addition, Trademark Rule 2.196 provides:
When the day, or the last day fixed by statue or
by regulation under this part for taking any
action . . . falls on a Saturday, Sunday, or
Opposition No. 91160673
5
Federal holiday within the District of Columbia,
the action may be taken . . . on the next
succeeding day that is not a Saturday, Sunday, or
a Federal holiday.

A review of the last trial order herein reveals that
opposer’s rebuttal testimony period closed April 24, 2006.
Thus, opposer’s brief was due June 23, 2006; applicant’s
brief was due July 24, 2006; and opposer’s reply brief was
due August 8, 2006. Opposer’s brief was filed by
certificate of mailing dated June 23, 2006; applicant’s
brief was filed by certificate of mailing dated July 28,
2006; and opposer’s reply brief was filed by certificate of
mailing dated August 21, 2006. Opposer’s counsel states
that she relied upon Trademark Rules 2.119(c) and 2.196 in
calculating August 21, 2006 as the due date of opposer’s
reply brief. Trademark Rule 2.119(c) provides, in relevant
part that (1) when service of a paper is made by first-class
mail, the date of mailing will be considered the date of
service, and (2) whenever a party is required to take action
within a prescribed period after the service of a paper upon
the party by another party and the paper is served by first-
class mail, 5 days shall be added to the prescribed period.
As previously noted, Trademark Rule 2.196 provides, in
relevant part, that when the day for taking any action in
the Patent and Trademark Office falls on a Saturday, Sunday
or Federal holiday, the action may be taken on the next
business day.
Opposition No. 91160673
6
Trademark Rule 2.119(c), however, is not applicable to
briefs on the case. Moreover, opposer’s counsel incorrectly
interfaced Trademark Rules 2.119(c) and 2.196. In short,
opposer’s counsel improperly calculated the due date of
opposer’s reply brief. Also, we note that applicant’s
counsel, in relying upon Trademark Rule 2.119(c), improperly
calculated the due date of applicant’s brief. In other
words, both applicant’s brief and opposer’s reply brief are
technically untimely.
Under the circumstances of this case, and since it
benefits the Board in its ability to make a just
determination of the case to have the briefs of both parties
of record, the motion to strike opposer’s reply brief is
denied. Moreover, in our discretion, opposer’s reply brief
filed August 21, 2006 is accepted as if timely filed.
Further, applicant’s brief filed July 28, 2006 is accepted
as if timely filed.
Insofar as applicant’s alternative motion to strike a
portion of opposer’s reply brief is concerned, where as
here, the reply brief was regularly filed, the Board will
not strike a portion thereof simply because applicant
objects to certain arguments therein. See TBMP §539 (2d ed.
rev. 2004). Thus, applicant’s alternative motion to strike
a portion of opposer’s reply brief is denied.
Opposition No. 91160673
7
The Record
The record therefore consists of the pleadings and the
file of the involved application. In addition, opposer
submitted the testimony depositions (with exhibits) of Sarah
Anderson, its vice-president of marketing communications;
Mark Tone, its executive vice-president for Law and Human
Resources; and James H. Nelems, a marketing and survey
expert and chief executive officer of The Marketing
Workshop. In addition, opposer submitted notices of
reliance on, inter alia, its pleaded LIFTMASTER
Registrations Nos. 863447 and 2724638, with the certified
copies thereof showing such registrations to be subsisting
and owned by opposer; applicant’s responses to opposer’s
first set of interrogatories; and the discovery deposition
(with exhibits) of Mark Schram, applicant’s vice-president
and general manager.
Applicant submitted the testimony depositions (with
exhibits) of its officer Mr. Schram; and George Mantis, a
survey expert and president of The Mantis Group. Applicant
submitted notices of reliance on third-party MASTER
registrations and applications; opposer’s responses to
applicant’s first set of interrogatories; and the discovery
depositions (with exhibits) of opposer’s officers Ms.
Anderson and Mr. Tone. Finally, pursuant to the parties’
Opposition No. 91160673
8
stipulation, applicant submitted copies of three documents,
each titled “Liftmaster Advertising Test.”
Both parties filed briefs on the case.
Standing

Opposer’s evidence of its registrations and use of the
LIFTMASTER mark establishes opposer’s standing to oppose the
involved application. Cunningham v. Laser Golf Corp., 222
F.33d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton
Industries Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982).
Priority

Because opposer’s pleaded LIFTMASTER registrations are
of record, priority is not in issue. See King Candy Co.,
Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ
105 (CCPA 1974). Moreover, the evidence shows that opposer
began using its LIFTMASTER mark prior to the filing date of
applicant’s intent-to-use application in July 2003, which is
the earliest date on which applicant can rely. See Zirco
Corp. v. American Telephone and Telegraph Co., 21 USPQ2d
1542 (TTAB 1991).

Likelihood of Confusion

Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set forth
in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
Opposition No. 91160673
9
USPQ 563 (CCPA 1973). See also In re Majestic Distilling
Co., Inc., 315 F.3d 1311, 65 USPQ2d 120l (Fed. Cir. 2003).
The du Pont factors for which there is relevant evidence in
this proceeding are discussed below.
We turn first to the du Pont factors which pertain to
the similarity or dissimilarity of the goods, the similarity
or dissimilarity of the classes of purchasers and the
similarity or dissimilarity of the channels of trade. In
this regard, it is well settled that the registrability of
an applicant’s mark must be determined on the basis on the
identification of its goods as set forth in the involved
application and the identification of goods as set forth in
the pleaded registrations made of record by a plaintiff for
its marks, regardless of what the record may reveal as to
the particular nature of the respective goods, their actual
or asserted channels of trade, or the classes of purchasers
to which they are in fact or intended to be directed and
sold. See e.g., Octocom Systems Inc. v. Houston Computer
Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990); and Canadian Imperial Bank of Commerce, N.A. v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
Here, applicant’s goods are identified in its
application as “electric door openers; electric garage door
openers; and remote controls for garage doors.” Opposer’s
LIFTMASTER registrations cover, inter alia, “residential
Opposition No. 91160673
10
electrical garage door controllers” (Registration No.
863447); and “remote control systems and components thereof
- namely radio controls for garage and warehouse entrance
doors or gates, automatic garage door openers, lights,
motors, antennas, transmitters, receivers and controllers
responding thereto and used in such systems” (Registration
No. 2724638). Clearly, these goods of the parties are
legally identical in part and otherwise closely related.
Indeed, the record shows that both parties are in the
business of selling garage door openers and parts and
accessories therefor.
As identified, neither parties’ garage door openers and
related products contain any limitations or restrictions as
to types of purchasers or channels of trade. Thus, we must
presume that the parties’ goods move in all channels of
trade that would be normal for such goods, and that the
goods would be purchased by all potential customers. See,
e.g., CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed.
Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ2d 937 (Fed. Cir. 1983); and Paula Payne Products Co. v.
Johnson Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76
(CCPA 1973). This is so despite the fact applicant intends
to sell its products only to dealers, distributors and
professional installers of garage door openers. As to the
classes of purchasers, it appears that they are of several
Opposition No. 91160673
11
types, one being professionals who install garage door
openers, another being residential and commercial builders
who purchase garage door openers for their projects, and
still another being the ultimate consumers, that is,
homeowners and building owners whose properties have
garages. Insofar as the trade channels are concerned, they
would include wholesale distributors and dealers of garage
door openers and big-box home improvement centers. The du
Pont factors of the similarity of the goods, the similarity
of the purchasers and the similarity of the trade channels
thus favor opposer.
With respect to the conditions under which the parties’
goods would be purchased, as previously noted, goods of this
type are sold to several types of purchasers. While
professional garage door opener installers and residential
and commercial builders would be expected to be
knowledgeable in the field, there is no evidence to suggest
that homeowners and building owners are particularly
knowledgeable or discriminating when purchasing garage door
openers. Garage door openers would not be expected to be
purchased on impulse inasmuch as the record shows that some
garage door openers have a wholesale price of several
hundred dollars. We cannot conclude on this record,
however, that building owners and homeowners are necessarily
so careful or that the purchasing process is so controlled
Opposition No. 91160673
12
that any likelihood of confusion that otherwise would exist
is eliminated or decreased as a result. Thus, the du Pont
factor of the conditions under which the parties’ goods are
purchased is considered neutral in this case.
The next du Pont factor to consider is the fame of
opposer’s LIFTMASTER mark. The fame of a prior mark plays a
dominant role in likelihood of confusion cases featuring a
famous mark. Bose Corp. v. QSC Audio Products Inc., 293
F.3d 1367, 63 USPQ2d 1303 (Fed. Cir. 2002); Recot Inc. v.
M.C. Becton, 214 F.3d 132, 54 USPQ2d 1894 (Fed. Cir. 2000);
and Kenner Parker Toys, Inc. v. Rose Art Industries, Inc.,
963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992). Fame for
likelihood of confusion purposes arises “as long as a
significant portion of the relevant consuming public
recognizes the mark as a source indicator.” Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005).
That is, we look to the class of customers and potential
customers of a product or service. Here, the relevant
consuming public comprises professional installers of garage
door openers, residential and commercial builders, building
owners, and homeowners.
The LIFTMASTER mark has been in use for over thirty-
nine years, and opposer has promoted the mark and the goods
offered thereunder to ultimate consumers through national
Opposition No. 91160673
13
advertising in consumer magazines, the creation of
television and radio advertisements, and Internet
advertising; and to the industry through trade magazine
advertisements; cooperative advertising with dealers and
distributors; and attendance and exhibitions at trade shows.
In addition, articles discussing and/or touting opposer’s
LIFTMASTER products have appeared in trade and consumer
publications.
The information relating to opposer’s current revenues,
advertising expenditures and market share has been
designated confidential. We can say, however, that
opposer’s LIFTMASTER products presently dominate in the
professionally installed residential and commercial garage
door opener markets.2
The indirect evidence pertaining to opposer’s current
sales and advertising figures, market share and length of
use of its LIFTMASTER mark lends support for opposer’s
claim that the mark is famous. Applicant, however, argues
that opposer’s LIFTMASTER mark is not a famous mark and
maintains that there is direct evidence that undercuts
opposer’s claim in this regard. Specifically, applicant

2 Although opposer’s witnesses did not say what percentage of
garage door openers are installed by professionals as opposed to
do-it-yourself types, it is reasonable in view of opposer’s
dominance to assume that it is a significant percentage.
Opposition No. 91160673
14
relies on three “Liftmaster Advertising Tests” conducted by
opposer in the years 2003, 2004 and 2005. The results of
the studies were introduced pursuant to the parties’
stipulation. Opposer, however, did not provide any
testimony regarding the results of the studies. In
addition, the studies have been marked “Attorneys’ Eyes
Only” and the pertinent information was redacted in copies
of the parties’ briefs.
We can say, however, in general terms, that among
homeowners with garages, the study results characterized the
unaided awareness of opposer’s LIFTMASTER radio and
television advertising in the single digits for each of the
years 2003, 2004 and 2005; and the aided awareness of such
advertising in the moderate double digits for each of the
same years.
Because these studies were designed to gauge the effect
of opposer’s radio and television advertising, in
particular, they are somewhat different from the typical
brand awareness study. Nonetheless, we agree with applicant
that these studies undercut opposer’s claim that the
LIFTMASTER mark is a famous mark. With unaided awareness of
opposer’s LIFTMASTER radio and television advertising in the
single digits, this points to low recognition of the
LIFTMASTER brand among ultimate consumers. While we note
that the aided awareness question garnered higher numbers,
Opposition No. 91160673
15
this provides little support for opposer’s claim that the
LIFTMASTER mark is a famous mark. In this regard, the Board
has held that aided awareness questions in a typical brand
awareness study provide little support for a claim that a
mark is famous. See Carefirst of Maryland, Inc. v.
FirstHealth of the Carolinas Inc., 77 USPQ2d 1492, 1507
(TTAB 2005). See also generally 6 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition, §32:173 (4th
ed. 2007).
We find, therefore, when we consider the indirect and
direct evidence in this case, the du Pont factor of the
strength of the LIFTMASTER mark favors opposer, but not to
the extent that it would if the mark truly enjoyed extensive
public recognition and renown as a famous mark.
The next du Pont factor to consider is the number and
nature of similar marks in use on similar goods. In this
regard, applicant submitted copies of the following third-
party registrations and applications for marks that include
the word MASTER: (1) Registration No. 2579009 for the mark
LIFTMASTER for, inter alia, lifting equipment;
(2) Registration No. 2570603 for the mark TORQUEMASTER for
mechanically actuated overhead garage door operating
systems; (3) Registration No. 2427098 for the mark
DOORMASTER for automatic garage door operators; (4)
Registration No. 2830833 for the mark STEELMASTER for metal
Opposition No. 91160673
16
high speed roll up doors; (5) Registration No. 2734908 for
the mark SPEED-MASTER for roll up doors; (6) Registration
No. 2491031 for the mark FLEX-MASTER for roll up doors;
(7) Registration No. 2169397 for the mark REDI-MASTER for
electric motors and associated hardware sold therewith for
raising and lowering rolling steel doors; (8) Registration
No. 1297425 for the mark POWERMASTER for electric and
pneumatic controls and control valves for opening and
closing doors; (9) Application Serial No. 78183741 for the
mark HOMEMASTER for, inter alia, electronic door openers;
and (10) Application Serial No. 78254228 for the mark MASTER
CODE for, inter alia, electric door openers and electric
garage door openers. In addition, applicant submitted
Internet printouts of web pages that appear to be web sites
posted by the owners of the TORQUEMASTER, SPEEDMASTER, FLEX-
MASTER, DOORMASTER and REDI-MASTER registrations above.
Finally, applicant submitted a Thomson & Thomson search
report with listings of applications and registrations for
marks that include the word MASTER; common law marks that
include the word MASTER; and business names and domain names
that include the word MASTER.
With respect to this evidence, opposer has offered
evidence which shows that it monitors the marketplace for
marks that are confusingly similar to its LIFTMASTER mark;
and that it takes enforcement actions ranging from cease and
Opposition No. 91160673
17
desist letters to filing civil lawsuits against marks to
which it objects. The record shows that opposer took action
against the owner of the TORQUEMASTER and DOORMASTER
registrations, resulting in a settlement agreement with
respect to the use of these marks. Further, opposer argues
that the remaining third-party registrations and
applications, Internet printouts and search report are not
evidence of use of the marks shown therein.
It is well settled that third-party registrations are
not evidence of use of the marks shown therein, or that
consumers have been exposed to them. AMF Inc. v. American
Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268 (CCPA
1973).3 Moreover, third-party applications have no
evidentiary value other than to show that they were filed.
In re Juleigh Jeans Sportswear Inc., 24 USPQ2d 1694, 1699
(TTAB 1992). Insofar as the Internet printouts are
concerned, they are of limited probative value because there
is no information concerning actual sales under the marks
shown therein, when such marks were adopted, or customer
familiarity with the marks. With respect to the Thomson and
Thomson search report, we note that the listings therein are
of essentially no probative value because they do not

3 It would appear, however, from the settlement agreement that
the TORQUEMASTER and DOORMASTER registered marks have been put to
some use.
Opposition No. 91160673
18
include information about the goods and/or services
purportedly offered in connection with the marks and names.
Third-party registrations, however, may be relied on to
show that a word common to each mark has a readily
understood and well-known meaning and that it has been
adopted by third parties to express that meaning. Ritz
Hotel Ltd. v. Ritz Closet Seat Corp., 17 USPQ2d 1467 (TTAB
1990). In this case, the third-party registrations for
marks that include the word MASTER for garage door openers
and parts show that those in the field use MASTER in a
manner intending to connote “control.” In this regard, we
judicially notice that the word “master” is defined as,
inter alia, “n. 1. [o]ne that has control over another or
others;” adj. 3. [c]ontrolling all other parts of a
mechanism: a master switch.” The American Heritage
Dictionary of the English Language (Fourth Edition 2006).
Such use tends to show that MASTER is slightly suggestive.
However, this does not appreciably weaken the strength of
opposer’s LIFTMASTER mark. We find therefore that this
du Pont factor is neutral.
Next, we turn to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation, and commercial
impression. In this regard, the Court of Appeals for the
Federal Circuit has held that when marks appear on
Opposition No. 91160673
19
“virtually identical goods or services, the degree of
similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701
(Fed. Cir. 1992).
In this case, both marks – LIFTMASTER and LYNX MASTER –
consist of compound words with three syllables having a
similar cadence. In addition, both marks begin with the
letter “L” and end in the word MASTER. This serves to
create similarities in appearance and sound. In terms of
meaning, we recognize that the specific connotations of the
marks LIFTMASTER and LYNX MASTER are different due to the
prefixes LIFT and LYNX. However, similarity in any one of
the elements of sound, appearance and meaning may be
sufficient to support a finding of likelihood of confusion.
See Block Drug Co. inc. v. Den-Mat Inc., 17 USPQ2d 1315
(TTAB 1980). In this case, when the marks LIFTMASTER and
LYNX MASTER are considered in their entireties, they are
similar in sound, appearance and commercial impression. We
find therefore that the du Pont factor of the similarity of
the marks favors a finding of likelihood of confusion.
In reaching our conclusion on likelihood of confusion,
we have taken into consideration the survey introduced by
opposer. In November 2005, opposer retained James Nelems, a
marketing and survey expert and chief executive officer of
Opposition No. 91160673
20
The Marketing Workshop, Inc., to design and supervise a mall
intercept survey to determine whether there is a likelihood
of confusion between the parties’ marks. The study took
place in shopping malls in eight geographically dispersed
metropolitan areas. A total of 400 persons were
interviewed. In terms of the survey universe, potential
survey participants were first asked if they “have a garage
door at your residence or not?” Respondents answering “no”
were disqualified from the survey. Respondents who answered
“yes” to this question were asked “does this garage door
have an automatic garage door opener?” Respondents who
answered “yes” were invited to participate in the survey.
Respondents who answered “no” to this question were then
asked “how likely, if at all, is anyone in your household to
purchase an automatic garage door opener within the next 2
or 3 years or so?” Respondents were given five answering
options to this final qualifying question – (1) Very likely,
(2) Somewhat likely, (3) May or may not be likely, (4)
Somewhat unlikely, and (5) Very unlikely. Respondents
answering “very likely,” “somewhat likely,” or “may or may
not be likely” were invited to participate in the survey.
Each respondent was shown two names, in a rotated
presentation order. The survey included a test cell (201
respondents) and a control cell (199 respondents). In the
test cell, half of the respondents saw LIFTMASTER followed
Opposition No. 91160673
21
by LYNX MASTER, and the other half saw LYNX MASTER followed
by LIFTMASTER; in the control cell, half of the respondents
saw LIFTMASTER followed by GENIE, and the other half saw
GENIE followed by LIFTMASTER. The questionnaire itself was
as follows:
HAND RESPONDENT PRODUCT CARD
1. Here is a brand name of an automatic garage door opener.
Have you heard of this brand before?
Yes
No
Don’t know

(RECORD ALL ANSWERS VERBATIM (PRODUCT CARD IS TO REMAIN IN
VIEW THROUGH Q. 2B. BELOW)
2.a As far as you know, who puts out this product?
2.b Why do you say that? (PROBE AND CLARIFY)

(REMOVE FIRST PRODUCT CARD FROM VIEW)

HAND RESPONDENT PRODUCT CARD
3. Here is a brand name of an automatic garage door opener.
Have you heard of this brand before?
Yes
No
Don’t know

(RECORD ALL ANSWERS VERBATIM (PRODUCT CARD IS TO REMAIN IN
VIEW THROUGH Q. 4B. BELOW)
4.a As far as you know, who puts out this product?
4.b Why do you say that? (PROBE AND CLARIFY)

(REMOVE SECOND PRODUCT CARD FROM VIEW)

5.a Would you say these two brands you’ve just seen are put
out by two different companies, both put out by the same
company, or you do not have an opinion on that?
Same company – Ask Q’s 5b, 5c, and 5d
THEN SKIP TO CLOSE
Two different companies – Skip to Q.5c
Don’t know/No opinion – Skip to Q.5c
5.b What one company would that be?” (RECORD VERBATIM)

5.c Why do you say that? (RECORD VERBATIM) (CLARIFY)
5.d Any other reasons (RECORD VERBATIM) (PROBE AND CLARIFY)

Opposition No. 91160673
22
6. If answer in Q.5A IS TWO DIFFERENT COMPANIES OR DON’T
KNOW/NO OPINION, ASK: Do you think the companies that put
out these two automatic garage door openers are associated,
affiliated, or connected in any way, or not?

Yes - Why do you say they are?” (PROBE AND CLARIFY)
No - Why do you say they are not? (PROBE AND CLARIFY)
Don’t know/no opinion – CONTINUE TO CLOSE

With respect to the study results, Mr. Nelems testified
as follows:
Q. Now turn to Page 8 of your survey report, that
chart titled, “Likelihood of Confusion Summary.”

A. This chart shows us the results of different
questions on the survey. It first shows us that
in the test cell Liftmaster versus Lynxmaster, 31
percent of the respondents in that cell said they
were – they thought they were put out by the same
company compared to 14 percent in the control cell
[Liftmaster versus Genie].
Another 8 percent in the test cell and 7
percent in the control cell said they were
associated, affiliated or connected, so the total
possible likelihood of confusion was 39 percent
and 21 percent; 39 for the test cell, 21 for the
control.
In reality, however, if you look at the
verbatim answers to these questions, there were a
number of people in the test cell as well as a
number of people in the control cell that gave
answers that were not really due to the name
itself. We deleted those respondents.

Q. Where would that be found in this table titled
“Likelihood of Confusion Summary?”

A. The overall conclusion says likelihood of
confusion twenty-four percent for the test cell
and zero percent for the control cell.

Q. What does that mean, likelihood of confusion
24 percent for the test cell?

A. It means that 24 percent of the sample felt
that these two brands, Liftmaster and Lynxmaster,
were either put out by the same company or were
Opposition No. 91160673
23
associated, connected or affiliated in some way
relative to the names themselves.

(Nelems Dep. at 44-45)

Not surprisingly, applicant has criticized the survey
for the following reasons among others:
1. The survey universe was not proper. It was over-
inclusive in that the respondents consisted of anyone who
had a residence with a garage door opener at their residence
regardless of whether or not the person was involved in the
purchase of a garage door opener. It was under-inclusive in
that it did not include professional garage door installers
or purchasers of commercial garage door openers.
2. The survey did not reflect actual marketing conditions.
In the marketplace, opposer uses the composite mark
CHAMBERLAIN LIFTMASTER PROFESSIONAL in connection with its
garage door openers. The survey, however, did not expose
respondents to the LIFTMASTER mark used in conjunction with
opposer’s house mark CHAMBERLAIN and the term
“PROFESSIONAL.”
3. The survey data was not properly interpreted/analyzed by
the interviewers. There were several “equivocal” responses
on whether there was an association, affiliation or
connection between the companies that put out the LIFTMASTER
and LYNXMASTER brands that were counted as instances of
confusion.
Opposition No. 91160673
24
4. Follow-up question no. 6 (Do you think the companies
that put out these two garage door openers are associated,
affiliated or connected in any way, or not?) is prejudicial.
As the Board noted in Marshall Field & Co. v. Mrs.
Fields’ Cookies, 25 USPQ2d 1321, 1334 (TTAB 1992), “[s]urvey
evidence is often controversial, if only because there are
so many factors to be considered in determining the weight
to be given to this type of evidence.” See also generally
McCarthy, supra at Section 32.50. In the recent case of
Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741 (TTAB
2006), the Board found the survey conducted by the opposer
therein to be probative of likelihood of confusion given
that the survey carefully followed the Ever-Ready4 survey
format. Here, opposer’s survey does not follow that
approved format. In addition, we agree with several of
applicant’s criticisms of the survey. Where as here, the
involved goods are of a type that are bought by several
classes of purchasers, the survey universe certainly should
have been more representative of those classes of
purchasers. For example, it would have better if the survey
universe had included professional garage door installers at
the very least. Moreover, it seems to us that the survey

4 In Union Carbine Corp. v. Ever-Ready, Inc., 531 F.2d 366, 188
USPQ 623 (7th Cir. 1976), cert. denied, 191 USPQ 416 (1976), the
plaintiff conducted a survey to determine whether there was a
likelihood of confusion between defendant’s EVER-READY lamps and
plaintiff’s EVEREADY batteries, flashlights and bulbs.
Opposition No. 91160673
25
universe was over-inclusive to the extent that it included
persons who indicated that it “may not be likely” someone in
their household would purchase a garage door opener in the
next 2 or 3 years. See, McCarthy, supra at Section 32.47
[“A universe may be improperly over-inclusive by
encompassing a group of people that includes those whose
perceptions are not relevant, thus skewing the results by
introducing irrelevant data.” (footnote omitted)]. Further,
follow-up question no. 6 was a leading question in that it
directed respondents to conclude that the companies that put
out the two automatic garage door openers were associated,
affiliated or connected in some way. See Marshall Field &
Co., supra at 1334 [The Board held that the initial inquiry
of “Would you say that the store whose things come in this
bag and the store whose things come in this bag have a
business connection or business association with one another
or not?” was a leading question]. Further, our review of
the study results reveals that there were several
“equivocal” responses on the question of whether there was
an association, affiliation or connection between the
companies which put out the LIFTMASTER and LYNXMASTER
brands.
Thus, although the survey results of 24% likelihood of
confusion because of the marks is certainly not de minimis,
Opposition No. 91160673
26
in reaching our decision on likelihood of confusion, we have
accorded limited weight to the survey results.
Having considered the evidence of record as it pertains
to the relevant du Pont factors, and for the reasons
discussed above, we conclude that a likelihood of confusion
exists. We acknowledge that the involved marks, LIFTMASTER
and LYNX MASTER, differ in their specific connotations.
Nonetheless, given the demonstrated strength of opposer’s
LIFTMASTER mark, and the identity of the goods, trade
channels and purchasers, we find that applicant’s
LYNX MASTER mark is sufficiently similar to opposer’s
LIFTMASTER mark in sound, appearance and commercial
impression that confusion is likely to result.
To the extent that any doubt as to the correctness of
this result exists in view of the differences in the
specific connotation of the marks, such doubt must be
resolved in favor of opposer, the prior user and registrant,
and against applicant. See In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687 (Fed. Cir. 1993); and In re Hyper
Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir.
1988); and Envirotech Corporation v. National Service
Industries, Inc., 197 USPQ 292 (TTAB 1977).
In view of our finding that the opposition should be
sustained on the ground of likelihood of confusion, we
Opposition No. 91160673
27
decline to address the dilution claim with respect to
opposer’s LIFTMASTER mark.
Decision: The opposition is sustained on the ground of
likelihood of confusion.