Weber-Stephen Products LLCv.Pro-Iroda Industries, Inc.

Trademark Trial and Appeal BoardJun 14, 2017

No. 92059412 (T.T.A.B. Jun. 14, 2017)

This Opinion is Not a Precedent of the TTAB Mailed: June 14, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Weber-Stephen Products LLC v. Pro-Iroda Industries, Inc. _____ Cancellation No. 92059412 _____ Raymond P. Niro, Jr. and Kyle D. Wallenberg of Niro McAndrews, LLC for Weber-Stephen Products LLC Alan D. Kamrath of Kamrath IP Law Firm, P.A. for Pro-Iroda Industries, Inc. _____ Before Shaw, Lynch, and Coggins Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: Weber-Stephen Products LLC (“Petitioner”) has petitioned1 on the ground of likelihood of confusion under Section 2(d) of the Trademark Act to cancel Registration 1 During the pendency of this proceeding, Weber-Stephen Products LLC became the successor-in-interest by assignment to the original cancellation petitioner, iDevices, LLC; Cancellation No. 92059412 - 2 - No. 3927731 for the mark I-GRILL in standard characters2 for “Gas stoves; gas lighting lanterns; spark igniters for gas appliances; gas-operated lights; gas lamps; gas grills; gas barbeque stoves; barbeque grills; barbeque stoves; baking ovens for household purposes; plates sold as parts of ovens made of metal; plates sold as parts of stoves made of metal; and combined ovens and grills.”3 Petitioner has alleged that at least since July 1, 2009, it has continuously used the mark IGRILL in connection with “Bluetooth-enabled meat thermometers that can be programmed and monitored through software applications on mobile devices.”4 Petitioner also pleaded ownership of Registration No. 4053452 for the mark IGRILL in standard characters for “Computer software, computer hardware and electronic food thermometers, all for use in connection with mobile devices to assist individuals with grilling and cooking activities, namely, for use in providing updated information to a person regarding the timing and preparedness of food being prepared, and informing users as to the and, in view thereof, the Board granted an unopposed motion to substitute Weber-Stephens Products LLC as Petitioner. See 25 and 35 TTABVUE. 2 The presentation in all uppercase letters of any standard-character marks discussed herein “reflects the fact that a term registered as a mark in ‘standard character’ form is not limited to any particular font style . . . .” In re Calphalon Corp., 122 USPQ2d 1153, 1154 n.1 (TTAB 2017). 3 Issued March 8, 2011, from an application filed March 26, 2010, asserting first use and first use in commerce at least as early as March 11, 2010. A Section 8 Affidavit was accepted. We also note that Respondent filed, during the pendency of this proceeding, a Section 15 Affidavit that the USPTO acknowledged. However, Respondent did not meet one of the requirements for incontestability, in that this cancellation proceeding at the USPTO was pending, which concerns the right to keep the mark on the register. See Strang Corp. v. Stouffer Corp., 16 USPQ2d 1309, 1310-11 and n.4 (TTAB 1990) (registration not considered incontestable, regardless of the acknowledgment of a non-compliant Section 15 Affidavit, noting that the USPTO does not examine on the merits). 4 1 TTABVUE 4. Cancellation No. 92059412 - 3 - anticipated time foods will be finished cooking, and providing warnings when food being prepared are cooking at inadequate heat.”5 In its answer Respondent has denied the salient allegations of the petition, and asserted various affirmative defenses including waiver, estoppel, and acquiescence, and otherwise amplified its denials as to the likelihood of confusion.6 I. Evidentiary Record The record consists of: • the pleadings; • the file of Registration No. 3927731; • Exhibits A-1 to A-36 and B-1 to B-21 from Petitioner’s First Notice of Reliance, 26 TTABVUE 25-60 and 100-120, consisting of excerpts from Respondent’s discovery responses; • Exhibits B-22 to B-33 from Petitioner’s First Notice of Reliance, 26 TTABVUE 121-131, consisting of catalogs, websites, and an owner’s manual relating to the goods at issue; • Exhibits C-1 to C-30 from Petitioner’s First Notice of Reliance, 26 TTABVUE 137-168, consisting of records from a civil action in the United States District Court for the District of Connecticut styled iDevices, LLC v. Williams-Sonoma, Inc.; 5 Issued November 8, 2011, from an application filed June 8, 2009, asserting first use and first use in commerce at least as early as July 1, 2009. 6 Respondent did not submit any evidence regarding its affirmative defenses, nor did it address them in its brief. We consider these defenses waived. See Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1422-23 n.7 (TTAB 2014). Cancellation No. 92059412 - 4 - • Exhibits C-31 to C-84 from Petitioner’s First Notice of Reliance, 26 TTABVUE 169-222, consisting of records from a TTAB cancellation proceeding styled iDevices, LLC v. Michel Blanc involving Registration No. 4322109; • Exhibits C-85 to C-226 from Petitioner’s First Notice of Reliance, 26 TTABVUE 223-365, consisting of the pleaded registration showing status and title, and the prosecution history for the registration; • Exhibits D-1 to D-94 from Petitioner’s First Notice of Reliance, 26 TTABVUE 367-459, consisting of various articles and webpage excerpts; • Exhibits E-1 to E-49 from Petitioner’s First Notice of Reliance, 26 TTABVUE 461-509, consisting of various articles and print advertisements; • Exhibits A-001 to A-093 from Respondent’s Notice of Reliance, 34 TTABVUE 16-108, consisting of excerpts from Petitioner’s discovery responses;7 • Exhibits B[-]00[1] to B-052 from Respondent’s Notice of Reliance, 34 TTABVUE 109-175, consisting of registrations owned by Respondent and third parties; • Exhibits C-001 to C-021 from Respondent’s Notice of Reliance (Confidential Version), 32 TTABVUE, consisting of printed product literature bearing Petitioner’s marks; 7 We note that Petitioner submitted its own responses to Respondent’s discovery requests as Exhibits A-37 to A-74 as part of its First Notice of Reliance, 26 TTABVUE 61-98. However, Trademark Rule 2.120(k)(5), 37 C.F.R. § 2.120(k)(5), permits the introduction of discovery responses only by the receiving party, subject to a limited exception not applicable here. Cancellation No. 92059412 - 5 - • Exhibits D-001 to D-019 from Respondent’s Notice of Reliance, 34 TTABVUE 176-194, consisting of printed catalogs, webpage excerpts and product literature bearing Respondent’s mark; • Exhibits F-1 to F-13 from Petitioner’s Second Notice of Reliance, 37 TTABVUE 6-18, consisting of online articles and a webpage excerpt; • the testimony deposition of Christopher J. Allen, Sr., CEO of iDevices, LLC, the original petitioner, and its accompanying exhibits, 38 TTABVUE and 39 TTABVUE (confidential version); and • the testimony deposition of Michael Daigle, COO of iDevices, LLC, the original petitioner, and its accompanying exhibits, 40 TTABVUE and 41 TTABVUE (confidential version). Neither party lodged evidentiary objections. However, Petitioner submitted as Exhibits B-34 to B-38 from its First Notice of Reliance, 26 TTABVUE 133-136, but the pages appear to be photographs, perhaps of a trade show or similar event. Petitioner described this broader category of documents in its Notice of Reliance as “catalogues, websites and owner’s guides,” but the photographs do not appear to be such documents and are not appropriate subject matter for a Notice of Reliance. Accordingly, we have not considered them. II. Standing and Priority “A petitioner is authorized by statute to seek cancellation of a mark [at the Board] where it has ‘both a “real interest” in the proceedings as well as a “reasonable” basis for its belief of damage.’” Empresa Cubana Del Tabaco, 111 USPQ2d 1058, 1062 (Fed. Cancellation No. 92059412 - 6 - Cir. 2014) (citing ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012) and Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999)). A claim of likelihood of confusion that “is not wholly without merit,” including prior use of a confusingly similar mark, may be sufficient to establish standing. Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Petitioner’s prior registration for a mark almost identical to Respondent’s mark, used with goods in the grilling and cooking field, establishes its standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (petitioner’s prior registrations establish “direct commercial interest and its standing to petition for cancellation”). Both Petitioner and Respondent own registrations. See Brewski Beer Co. v. Brewski Brothers Inc., 47 USPQ2d 1281, 1284 (TTAB 1998) (priority is at issue when both parties have registrations). However, Petitioner has priority. The June 8, 2009, filing date of the application that matured into Petitioner’s pleaded registration precedes both the March 11, 2010 date of first use alleged in, and the March 26, 2010 filing date of, Respondent’s challenged registration. See id. (A petitioner who owns a registration may rely on it to establish constructive first use as of the application filing date). Respondent has not asserted an earlier priority date.8 8 26 TTABVUE 28 (Exhibit A-4, Respondent’s Answer to Interrogatory No. 1, stating that use commenced on March 11, 2010). Cancellation No. 92059412 - 7 - III. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The 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.”). Petitioner bears the burden of proving its claim of likelihood of confusion by a preponderance of the evidence. Cunningham 55 USPQ2d at 1848. A. Strength of Petitioner’s Mark As an initial matter, we consider Petitioner’s assertion under the fifth du Pont factor that its IGRILL mark should be deemed strong. Fame for likelihood of confusion purposes exists when “a significant portion of the relevant consuming public . . . recognizes the mark as a source indicator.” Palm Bay Imports v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). This factor involves assessing the mark “‘along a spectrum from very strong to very weak.’” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, No. Cancellation No. 92059412 - 8 - 2016-1089, slip op. at 3 (Fed. Cir. May 24, 2017) (internal citations omitted). A very strong mark receives a wider latitude of legal protection in the likelihood of confusion analysis. See Palm Bay Imports, 73 USPQ2d at 1694 (“Famous marks enjoy wide latitude of legal protection since they are more likely to be remembered and associated in the public mind than weaker marks, and are thus more attractive as targets for would-be copyists”). Strength may be measured indirectly by the volume of sales and advertising expenditures of the goods sold under the mark, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the products identified by the marks; and the general reputation of the products and services. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1354 (TTAB 2014); see also Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (“[V]irtually all of our precedent attributing fame to a mark has done so through indirect evidence of the extent to which a mark has earned fame in the consumer marketplace.”). To demonstrate fame, Petitioner provided a variety of evidence, some of which is confidential and therefore will be discussed only in general terms. Petitioner showed substantial advertising expenditures through print publications, radio, billboards, social media, and trade show promotions.9 The radio advertising alone occurred on a nationally syndicated show with “millions of listeners.”10 Petitioner also promoted IGRILL through Google AdWords in connection with barbecue, cooking, and grilling- 9 38 TTABVUE 26-27 (Allen testimony); 40 TTABVUE 11, 15 (Daigle testimony); 41 TTABVUE 18 (Daigle confidential testimony). 10 40 TTABVUE 14-15 (Daigle testimony). Cancellation No. 92059412 - 9 - related searches.11 Publicity for Petitioner’s IGRILL product further included an unsolicited favorable Facebook post by Facebook founder and CEO Mark Zuckerberg, which resulted in 1.8 million “impressions,” whereby people visited Petitioner’s Facebook page and website as a result of the post.12 See Weider Publ’ns, 109 USPQ2d at 1354 (crediting fame-related evidence that millions of consumers were exposed online to the mark in question). The CEO of iDevices, LLC appeared on nationally televised shows that featured the IGRILL product line, such as the Today Show, Good Morning America, and the Early Show.13 Articles in mainstream publications covered Petitioner’s IGRILL product, including USA Today, the Wall Street Journal, Consumer Reports, and GQ.14 In addition, the IGRILL product line won “best new product” at the 2011 Consumer Electronics Show,15 and Men’s Journal selected IGRILL as “a selected top 50 gift,”16 both of which reflect the favorable critical assessment and positive general reputation indicative of a very strong mark. See Bose Corp., 63 USPQ2d at 1309. Petitioner’s substantial revenue figures under the IGRILL mark17 and the consumer usage statistics for the product18 also support the strength of the mark. 11 40 TTABVUE 16-17 (Daigle testimony). 12 38 TTABVUE 20-23 (Allen testimony); 40 TTABVUE 12-13 (Daigle testimony). 13 38 TTABVUE 28-30 (Allen testimony). 14 38 TTABVUE 27-28 (Allen testimony) 15 38 TTABVUE 29-30 (Allen testimony); 26 TTABVUE 194-96. 16 38 TTABVUE 31 (Allen testimony) 17 39 TTABVUE 24-25 (Allen confidential testimony). 18 39 TTABVUE 35-36 (Allen confidential testimony). Cancellation No. 92059412 - 10 - Respondent argues that its own use and other uses of the “I” prefix weigh in favor of limiting Petitioner’s protection to “its specialty cooking thermometer” only.19 However, we note that our primary reviewing court has cautioned against unduly limiting the weight accorded fame as follows: We think that the Board’s rule–that the fame of the FRITO-LAY marks extends no further than the products with which the marks are currently used– undercuts the legal standard of protection for famous marks. . . . “The fame of a trademark may affect the likelihood purchasers will be confused inasmuch as less care may be taken in purchasing a product under a famous name.” [citations omitted] This reasoning applies with equal force when evaluating the likelihood of confusion between marks that are used with goods that are not closely related, because the fame of a mark may also affect the likelihood that consumers will be confused when purchasing these products. Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000). Respondent also raises an issue with Petitioner’s and its own dates of use in connection with when Petitioner’s mark acquired fame.20 However, “[f]or purposes of likelihood of confusion, the Board generally accepts and considers evidence related to likelihood of confusion for the period up to the time of trial, and this includes evidence of the fame of a plaintiff's mark. This is distinct from a claim of dilution under Section 43(c) of the Trademark Act where an element of the claim is the acquisition of fame prior to the defendant’s first use or application filing date.” Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 n.18 (TTAB 2014) (citing General Mills Inc. v. Fage Dairy Processing Industry SA, 100 U.S.P.Q.2d (BNA) 1584, 1595 n. 13 (TTAB 2011)). 19 44 TTABVUE 16 (Respondent’s Brief). 20 44 TTABVUE 16 (Respondent’s Brief). Cancellation No. 92059412 - 11 - In total, the record contains clear evidence that Petitioner’s mark has achieved a high degree of strength. B. Similarity of the Marks Turning to the first du Pont factor, the comparison of the parties’ marks, we consider them “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imports, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ at 567). We remain mindful that “marks ‘must be considered . . . in light of the fallibility of memory’ and ‘not on the basis of side-by-side comparison.’ [citation omitted].” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014). We also bear in mind our finding that Petitioner’s mark qualifies as a strong mark. See Kenner Parker Toys, Inc. v. Rose Art Ind., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992) (“The Lanham Act’s tolerance for similarity between competing marks varies inversely with the fame of the prior mark”). Respondent’s mark is I-GRILL and Petitioner’s mark is IGRILL. They consist of identical components – the word “GRILL,” which refers to or describes aspects of both parties’ goods, and the prefix “I.” The marks differ only in Respondent’s inclusion of a hyphen between the two components. We find the minor difference in punctuation insignificant. See Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1712 (TTAB 2010), aff’d mem., --- Fed. Appx. ----, 2011 WL 5400095 (Fed. Cir. Nov. 9, 2011) (finding the term MAGNUM and MAG-NUM “essentially identical” because “the hyphen in the Mag Instrument’s mark does not distinguish them”); Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ 485, 488 n.4 (TTAB 1978) (“‘Fast-Finder’ with Cancellation No. 92059412 - 12 - hyphen is in legal contemplation substantially identical to ‘Fastfinder’ without hyphen”). Respondent points to lettering in uppercase (characterizing Petitioner’s mark as IGRILL) versus lowercase (characterizing its mark as i-Grill) as a distinction between the marks. However, both the challenged and pleaded registrations are for standard character marks, and such marks must be assessed “without limitation to any particular depiction of [the] term.” In re Calphalon Corp., 122 USPQ2d at 1160. “Registrations with typed drawings [the equivalent of standard character 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.” Cunningham, 55 USPQ2d at 1847. Thus, a party such as Respondent that sought the breadth of standard-character protection may not then rely on a particular presentation in uppercase or lowercase letters as important to the impression of the mark. In re Calphalon Corp., 122 USPQ2d at 1160. Overall, we find that the two marks look essentially the same, sound identical, and convey the same commercial impression. C. Relatedness of the Goods As to the goods, we must determine whether their degree of relatedness rises to such a level that consumers would mistakenly believe the parties’ goods emanate from the same source. In making this analysis of the second du Pont factor, we look to the identifications of goods in the pleaded and challenged registrations. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, Cancellation No. 92059412 - 13 - 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Respondent’s identified goods in the subject registration are “Gas stoves; gas lighting lanterns; spark igniters for gas appliances; gas-operated lights; gas lamps; gas grills; gas barbeque stoves; barbeque grills; barbeque stoves; baking ovens for household purposes; plates sold as parts of ovens made of metal; plates sold as parts of stoves made of metal; and combined ovens and grills.” Petitioner’s identified goods in the pleaded registration are: “Computer software, computer hardware and electronic food thermometers, all for use in connection with mobile devices to assist individuals with grilling and cooking activities, namely, for use in providing updated information to a person regarding the timing and preparedness of food being prepared, and informing users as to the anticipated time foods will be finished cooking, and providing warnings when food being prepared are cooking at inadequate heat.” We find the goods related. As a general matter, both parties’ goods involve cooking and grilling. Respondent’s identified goods include grills, stoves and ovens, while Petitioner’s goods consist of accessories for use in cooking on grills, stoves and ovens. Petitioner has described its goods as “Bluetooth-enabled meat thermometers that can be programmed and monitored through software applications on mobile devices.”21 The inventor of Petitioner’s IGRILL product characterized it as “a device that sat next to your grill. It has a probe that goes in through the – either a side on the grill cover 21 1 TTABVUE 4. Cancellation No. 92059412 - 14 - or put it in the cover on the wire and a probe goes into the meat. That device then sends a Bluetooth signal to your phone, which connects to our application.”22 Petitioner markets its goods as helping consumers know “when to take [their] meat off the grill” and notes that they can “hook one up with [their] grill and another with [their] smoker.”23 The Weber.com website excerpt shows that the site features grills in addition to the IGRILL thermometer.24 Testimony reflects at least two producers of both grills and cooking thermometers.25 The iDevices, LLC online announcement when it was acquired by Weber-Stephens Products, LLC, describes Weber as “the world’s largest manufacturer of outdoor grills and grilling accessories” and the Weber.com blog echoes the description.26 The record demonstrates that Petitioner’s IGRILL accessory is sold, inter alia, in the grilling section of stores alongside grills such as Respondent’s identified goods, and even is displayed on the grill itself.27 Several articles discussing or recommending products for outdoor parties and barbeques feature Petitioner’s IGRILL thermometers as well as grills, ovens or stoves such as those identified in Respondent’s registration.28 The record overall establishes that the goods are complementary and related. Consumers are accustomed to encountering products such as Petitioner’s and Respondent’s together, either under 22 38 TTABVUE 8 (Allen testimony). 23 37 TTABVUE 6-9. 24 Id. at 8-9. 25 40 TTABVUE 40-43. 26 37 TTABVUE 10, 15. 27 40 TTABVUE 21-22, 41, 72 (Daigle testimony & Exhibit 10). 28 26 TTABVUE 461-64, 475-76, 487-94, 499-501, 502-03, 504. Cancellation No. 92059412 - 15 - the same mark, or being promoted for use together. Consumers would likely assume that such goods offered under the nearly identical mark emanate from the same source. See Joseph Phelps Vineyards, LLC, slip op. at 7 (Newman, concurring) (“[R]elatedness is a broad concept; products may exhibit ‘relatedness’ when they ‘are complementary products sold in the same channels of trade to the same classes of consumers.’” [citation omitted]). D. Trade Channels We presume that because Respondent’s and Petitioner’s identifications contain no trade channel restrictions, they travel through all usual channels of trade for their respective goods. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); see also Cunningham 55 USPQ2d at 1846 (affirming Board finding that where the identification is unrestricted, “we must deem the goods to travel in all appropriate trade channels to all potential purchasers of such goods”). The record reflects that Petitioner’s and Respondent’s products under the marks travel in trade channels for barbeque grilling equipment and accessories.29 In addition, both Respondent and Petitioner target consumers who use grills.30 Petitioner sells through its own website as well as Amazon.com and retailers such as Walmart, Target, Apple, and Ace.31 Publicity regarding Petitioner’s IGRILL device 29 40 TTABVUE 19 (Daigle testimony). 30 38 TTABVUE 19-20 (Allen testimony); 26 TTABVUE 32 (Respondent’s Answer to Interrogatory No. 7 stating that “Registrant’s product is targeted to any potential consumer of a grill”). 31 38 TTABVUE 25-26. Cancellation No. 92059412 - 16 - indicates that it is available online through Petitioner’s website as well as the Apple Store and Omaha Steaks websites, and through the Frontgate print catalogue.32 The record reflects that Respondent’s goods also are sold online and through catalogues.33 Petitioner’s advertising promotes use of the IGRILL to “make grilling easier, more convenient, and a whole lot smarter.”34 In retail stores, Petitioner’s products “are often, if not always, located with grilling products like grills and grills accessories.”35 A photograph further shows the retail display of Petitioner’s thermometer actually placed on a grill also being offered for sale.36 Petitioner and Respondent promote and sell their respective products at some of the same trade shows, including the National Hardware Show and the Barbeque Patio and Hearth Show.37 The goods both sell in the general price range of $79 to $89.95.38 Thus, the evidence amply demonstrates that, under the third du Pont factor, the goods identified in the respective registrations move in the same channels of trade to the same general classes of customers. 32 26 TTABVUE 197-208 (including indication that Frontgate circulates “nearly 100 million catalogs this year alone”). 33 34 TTABVUE 176-80. 34 37 TTABVUE 6-8. 35 40 TTABVUE 19 (Daigle testimony). 36 40 TTABVUE 21-22, 72-73 (Daigle testimony & Exhibit 10). 37 26 TTABVUE 33-34, 47 (Respondent’s Answer and Corrected Answer to Interrogatory No. 10); 40 TTABVUE 15, 21 (Daigle testimony). 38 26 TTABVUE 33 (Respondent’s Answer to Interrogatory No. 9, stating that its product sold for $89.95); 40 TTABVUE 18 (Daigle testimony). Cancellation No. 92059412 - 17 - E. Actual Confusion Factors Respondent argues that the lack of known instances of actual confusion weighs in its favor, but Petitioner contends that its enforcement efforts against Respondent’s use have minimized the opportunity for actual consumer confusion. See du Pont, 177 USPQ at 567 (identifying seventh and eighth du Pont factors as “[t]he nature and extent of any actual confusion,” and “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion”). We agree that the somewhat limited amount of time Respondent’s mark has been used and the modest volume of sales create “little opportunity for confusion to have occurred.” See Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (Where the respective marks had coexisted in the marketplace for at least nine years, absence of actual confusion nonetheless deemed “of little probative value” because of the absence of a significant opportunity for such confusion to occur, given “the minimal scope of applicant’s actual use of her mark in the marketplace”). Accordingly, we find these factors neutral. F. Purchasing Conditions Petitioner offered testimony that consumers who had no prior awareness of its IGRILL product would purchase it on impulse while shopping for a new grill, after encountering Petitioner’s product in the grilling accessories area of a store.39 Respondent counters that there is no evidence that its products are impulse 39 38 TTABVUE 37-38 (Allen testimony). Cancellation No. 92059412 - 18 - purchases, and argues that the $79 to $89 price range of the products exceeds that of an impulse purchase.40 We find the record evidence insufficient to indicate that consumers would buy Respondent’s goods on impulse. As Respondent noted, Petitioner points only to evidence about its own goods. We therefore consider the fourth du Pont factor neutral. G. Number and Nature of Similar Marks in Use on Similar Goods Respondent argues under the sixth du Pont factor, focusing on the number and nature of similar marks in use on similar goods, that the existence of numerous third- party registrations that include the “I” prefix weighs against likely confusion.41 Respondent did not offer any evidence of actual third-party use, but introduced approximately 50 registrations of marks that include the “I” prefix for a variety of goods and services. Representative examples include: • IMAP for “apparatus for augmenting the display of medical ultrasound imaging apparatus, namely, consumer software to enhance and/or enlarge images sold as a unit with medical ultrasound imaging apparatus”42 • IBAMBINO and design for “prepared deep fried international dough-based food pockets with filling consisting primarily of meat, fish or poultry”43 40 45 TTABVUE 15 (Respondent’s Brief – Confidential Version). 41 44 TTABVUE 10; 34 TTABVUE 111-176. 42 34 TTABVUE 160. 43 34 TTABVUE 114. Cancellation No. 92059412 - 19 - • ICORRELATE for “computer firmware for use in database management, searching and analysis”44 • IGRADE for “computer database software for mobile phones for use in grading students academically.”45 Third-party registration evidence may show that a term carries a highly suggestive or descriptive connotation in the relevant industry and therefore may be considered somewhat weak. Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). However, as an initial matter, we cannot accept Respondent’s characterization of the goods represented by these third-party marks as “similar to Petitioner’s.”46 Considering our focus on the goods at issue for use in cooking and grilling, we note that none of the third-party registrations involve such goods. Thus, unlike in Juice Generation and Jack Wolfskin, where the third-party evidence involved the very same restaurant services and clothing at issue in those cases, here the third-party registration evidence relates to an extremely broad range of goods and services that are not identical or even similar to Petitioner’s or Respondent’s goods. Furthermore, even if the third-party registration evidence involved relevant goods, it would not help Respondent’s cause. At best it would show that the “I” prefix 44 34 TTABVUE 150. 45 34 TTABVUE 117. 46 44 TTABVUE 10 (Respondent’s Brief). Cancellation No. 92059412 - 20 - is weak, and “consumers are conditioned to look for differences” and “additional indicia of origin” in distinguishing among marks that include the prefix. See Jack Wolfskin, 116 USPQ2d at 1136. But in this case, where the marks are essentially identical, even if consumers looked beyond the “I” prefix because of its alleged ubiquity and descriptive meaning, they would find that the remaining portion of both parties’ marks consists of the identical word “GRILL”. Thus, there is no meaningful difference and no additional indicia of origin that distinguish Respondent’s mark from Petitioner’s mark. We therefore find that the evidence for this du Pont factor does not weigh against likely confusion. H. The Extent of Petitioner’s Right to Exclude Others Petitioner argues under the eleventh du Pont factor that it has the right to exclude others from use of the IGRILL mark, and points to supporting evidence, some of which is confidential, regarding its enforcement activities.47 With the minimal information provided and the various reasons that businesses may have for their actions in such disputes, we cannot infer Petitioner’s superior rights in the IGRILL mark from the evidence submitted regarding the enforcement matters. However, as previously noted, the commercial strength of Petitioner’s mark increases the extent to which Petitioner may exclude others’ use of the same or a similar mark. 47 39 TTABVUE 42-44 (Allen confidential testimony); 34 TTABVUE 34 (Petitioner’s Response to Interrogatory No. 17); 40 TTABVUE 22-26 (Daigle testimony); 41 TTABVUE 22-26 (Daigle confidential testimony); 26 TTABVUE 137-223 (records from enforcement proceedings). Cancellation No. 92059412 - 21 - IV. Conclusion Given the strength of Petitioner’s IGRILL mark, the near identical marks at issue, and the related goods that travel in the same trade channels to the same classes of consumers, we conclude that confusion is likely. Decision: The petition for cancellation is granted and Registration No. 3927731 will be cancelled in due course.