Zephyr Corporation

Trademark Trial and Appeal BoardSep 17, 2010

No. 79050747 (T.T.A.B. Sep. 17, 2010)

Mailed: September 17, 2010 PTH UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Zephyr Corporation ________ Serial No. 79050747 _______ Gavin J. O’Keefe of Greer, Burns & Crain, Ltd. for Zephyr Corporation. Bernice Middleton, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow, Managing Attorney). _______ Before Hairston, Bucher and Zervas, Administrative Trademark Judges. Opinion by Hairston, Administrative Trademark Judge: An application has been filed by Zephyr Corporation to register the mark ZEPHYR and design reproduced below, THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser No. 79050747 2 for goods ultimately described as follows: wind power electricity generators and parts thereof, namely, blades, hybrid power generators for the generation of electricity using wind power and solar power and parts thereof, namely, blades in International Class 7; photovoltaic generators, namely, photovoltaic cells also including a solar thermal collector sold as a unit; remote controllers, control apparatus, namely, remote controls for photovoltaic generators, electronic apparatus for the remote control of industrial operations, solar batteries, batteries, and inverters; meteorological machines and apparatus, namely, meteorological balloons; rain gauges, temperature sensors, humidity sensors for use in meteorological machines and apparatus, and parts thereof in International Class 9; and street lamps equipped with hybrid power generators using wind power and solar power and parts thereof, namely, lighting apparatus, clocks, acoustic apparatus, control apparatus, solar batteries, blades, batteries, and inverters sold as integral components of street lamps equipped with hybrid power generators using wind power and solar power; street lamps equipped with wind power generators and parts thereof, namely, lighting apparatus, clocks, acoustic apparatus, control apparatus, blades, batteries, and inverters sold as integral components of the street lamps equipped with wind power generators; street lamps equipped with photovoltaic generators and parts thereof, namely, lighting apparatus, clocks, acoustic apparatus, control apparatus, solar batteries, batteries, and inverters sold as an integral component of the street lamps equipped with photovoltaic generators in International Class 11.1 1 Application Serial No. 79050747, filed October 5, 2007. The application is a Section 66(a) application (15 U.S.C. 1141(f)(a)) based on International Registration No. 0955700. The mark is described as follows: The mark consists of the word “zephyr” in stylized text with a design of three arcs above the text. Ser No. 79050747 3 The trademark examining attorney has refused registration under Section 2(d) of the Trademark Act on the ground that applicant’s mark, when applied to applicant’s goods, so resembles the previously registered mark reproduced below, for “laser anemometers, laser Doppler anemometers, laser Doppler velocimeters (LDVS), laser radars (LIDARS) for wind speed measurement, laser based wind speed measurement apparatus, apparatus for measuring wind speed using infra-red (IR) radiation, optical fiber based laser anemometers, anemometers, ground based laser anemometers, vehicle mountable laser anemometers, buoy mountable laser anemometers, ship mountable laser anemometers, aircraft mountable laser anemometers, airborne laser anemometers, laser anemometers for true air-speed measurements, laser anemometers for air turbulence measurements, laser anemometers for measuring wind speed in a wind tunnel and wind turbine mountable Ser No. 79050747 4 laser anemometers,”2 as to be likely to cause confusion. When the refusal was made final, applicant appealed. Applicant and the examining attorney have filed briefs. Our determination under Section 2(d) is based on an analysis of all of the 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 & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). 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, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). We turn initially to the first du Pont factor, i.e., whether applicant’s mark, ZEPHYR and design, and the cited registered mark, ZEPHIR in stylized letters, are similar or dissimilar when compared in their 2 Registration No. 3361188, issued January 1, 2008. This registration also covers services in International Classes 37 and 42. However, the examining attorney’s refusal is not based on any of the services in the cited registration. Ser No. 79050747 5 entireties in terms of appearance, sound, connotation and commercial impression. The test under this du Pont factor 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 specific impression of trademarks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Furthermore, although the marks 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). In terms of appearance, we find that applicant’s mark ZEPHYR and design is similar to the cited registered mark ZEPHIR. The literal portion of applicant’s mark, ZEPHYR, and the cited registered mark, ZEPHIR, differ only by one letter. Also, the stylized Ser No. 79050747 6 lettering has minimal impact on the appearance of the respective marks. Although applicant’s mark also includes a design, when one of the marks comprises both a word and a design, then the word is normally accorded greater weight because it would be used by purchasers to request the goods. In re Appetitio Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). Thus, it is the literal portion of applicant’s mark, ZEPHYR, which is entitled to more weight in our likelihood of confusion analysis. While we do not ignore the design, when we consider the respective marks in their entireties, we find that they are similar in appearance. We also find that the literal portions of the marks are identical in terms of sound. It has long been held that there is no correct pronunciation of a trademark because it is impossible to predict how the public will pronounce a particular mark. In re Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ 227, 227 (CCPA 1969). In this case, ZEPHIR and ZEPHYR may be pronounced the same and therefore, for our purposes the marks are phonetically identical. In terms of connotation, we find that applicant’s mark ZEPHYR and design and the cited registered mark ZEPHIR have similar meanings. We judicially notice that Ser No. 79050747 7 the word “zephyr” is defined as “a gentle, mild breeze” and “Literary. the west wind.” The Random House Dictionary 2010. Thus, applicant’s mark ZEPHYR and design may suggest to potential purchasers that applicant’s goods (e.g., wind power electricity generators, meteorological balloons, street lamps equipped with hybrid power generators using wind power and solar power) have something to do with the wind. The cited registered mark ZEPHIR, which is a misspelling or alternative form of ZEPHYR, could have a similar suggestive significance inasmuch as registrant’s goods (anemometers) are devices for measuring wind speed. Overall, given the above noted similarities in appearance, sound and connotation, the respective marks, when considered in their entireties, also engender a substantially similar commercial impression. The first du Pont factor weighs in favor of a finding of likelihood of confusion. Next, we turn to the second du Pont factor, which requires us to consider the similarity or dissimilarity of applicant’s and registrant’s respective goods. It is well-settled that it is not necessary that the respective goods be identical or even competitive in order to support a finding of likelihood of confusion. Ser No. 79050747 8 That is, the issue is not whether purchasers would confuse the goods themselves, but rather whether they would be confused as to the source of the goods. It is sufficient that the goods be related in some manner, or that the circumstances surrounding their use be such that they would be likely to be encountered by the same persons in situations that would give rise, because of the marks used thereon, to a mistaken belief that they originate from or are in some way associated with the same source or that there is an association or connection between the sources of the respective goods. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991); and In re International Telephone & Telegraph Corp., 197 USPQ 910 (TTAB 1978). The examining attorney, in her brief on the case, focuses on the similarity of certain of applicant’s goods in Class 9 and registrant’s goods. She makes no mention of applicant’s goods in Classes 7 and 11. Thus, we deem the examining attorney to have withdrawn the refusal to register as to Classes 7 and 11, and concern ourselves only with Class 9. Ser No. 79050747 9 In this case, we find that applicant’s “meteorological machines and apparatus, namely, meteorological balloons; rain gauges, temperature sensors, humidity sensors for use in meteorological machines and apparatus, and parts thereof” in Class 9 and registrant’s “anemometers” are complementary goods. All of these devices are used for recording various aspects of the weather. Also, the examining attorney has made of record printouts from four use-based third- party registrations which include in their respective identifications of goods anemometers and one or more of the meteorological devices in applicant’s identification of goods. They are as follows: Registration No. 2514423 for, inter alia, anemometers and rain gauges; Registration No. 3590299 for, inter alia, anemometers and temperature and humidity sensors; Registration No. 3736554 for, inter alia, anemometers and rain gauges; Registration No. 3268939 for, inter alia, anemometers and indoor/outdoor temperature sensors rain gauges, and relative humidity sensors. Although such registrations are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless have probative value to the extent that they serve to suggest that the goods listed therein are of a Ser No. 79050747 10 kind which may emanate from a single source under a single mark.3 See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); and In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988). In view of the foregoing, we find that applicant’s “meteorological machines and apparatus, namely, meteorological balloons; rain gauges, temperature sensors, humidity sensors for use in meteorological machines and apparatus, and parts thereof” and registrant’s “anemometers” are related goods.4 The second du Pont factor weighs in favor of a finding of likelihood of confusion. Furthermore, because neither applicant’s nor registrant’s respective identifications of goods are limited in any way, we must presume that their respective goods are marketed in all normal trade 3 The examining attorney submitted four additional third-party registrations. However, three of the registrations do not include in their respective identifications of goods the specific goods at issue in this case. Rather, Registration Nos. 2514423 and 2477005 include retail store or distributorship services featuring weather-related products; and Registration No. 1408297 includes a temperature sensor for gas and liquid flow. In the fourth registration, Registration No. 0626182, “anemometers” has been deleted from the identification of goods. Thus, these registrations are of little to no probative value. 4 A refusal under Section 2(d) is proper if there is a likelihood of confusion involving any of the goods set forth in the application and cited registration. See, e.g., Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,988 (CCPA 1981); and Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 137 USPQ 881, 883 (CCPA 1963). Ser No. 79050747 11 channels to all normal classes of purchasers for such goods. In re Elbaum, 211 USPQ 639 (TTAB 1981). Thus, we find that the third and fourth du Pont factors weigh in favor of a finding of likelihood of confusion. Having considered all of the du Pont factors relevant to this case, we conclude that a likelihood of confusion exists. Purchasers familiar with anemometers sold under the cited registered mark are likely to assume that meteorological machines and apparatus, namely, meteorological balloons; rain gauges, temperature sensors, humidity sensors for use in meteorological machines and apparatus, and parts thereof sold under applicant’s mark originate from the same or a related source. To the extent that there is any doubt on the issue of likelihood of confusion, we follow the well-established principle that such doubt must be resolved against applicant. See In re Hyper Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984). Decision: The refusal to register as to International Class 9 is affirmed. The application will proceed in International Classes 7 and 11.