Alcotek, Inc.

Trademark Trial and Appeal Board

Sep 6, 2019

87617536 (T.T.A.B. Sep. 6, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: September 6, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Alcotek, Inc.
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Serial No. 87617536

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Kirk A. Damman of Lewis Rice, LLC
for Alcotek, Inc.

Hai-Ly Lam, Trademark Examining Attorney, Law Office 112,
Renee Servance, Managing Attorney.
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Before Zervas, Ritchie, and Heasley,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Alcotek, Inc. (“Applicant”) seeks registration on the Principal Register of the mark
ALCOTEK, in standard characters, for goods ultimately identified as “Electronic
alcohol and ethanol chemical sensors for measuring alcohol and ethanol chemical
concentrations and not for medical use; electronic circuit boards for chemical
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sensors,” in International Class 9.1 The Examining Attorney refused registration of
Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a
prior registration of the mark ALCOTECH, in typed drawing,2 for “Computerized
management and process control apparatus, namely, computers, pumps and
instruments and computer programs for use therewith, for the monitoring and dosing
of chemicals in the paper, pollution control, mineral processing, oil and textile
industries and in agriculture,” in International Class 9.3 After the Examining
Attorney made the refusal final, Applicant filed a request for reconsideration and an
appeal. When the request for reconsideration was denied, the appeal was resumed.
Both Applicant and the Examining Attorney filed briefs, and Applicant filed a reply
brief. For the reasons discussed herein, based on the evidence of record and the
arguments of Applicant and the Examining Attorney, we affirm the refusal to
register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all 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 USPQ 563 (CCPA 1973). See also

1 Serial No. 87617536, filed on September 21, 2017, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), and claiming dates of first use and first use in commerce in 2003.
2 See Trademark Manual of Examining Procedure (“TMEP”) § 807.03(i) (October 2018)
(“Prior to November 2, 2003, ‘standard character’ drawings were known as ‘typed’ drawings.
The mark on a typed drawing was required to be typed entirely in capital letters. A typed
mark is the legal equivalent of a standard character mark.”)
3 Registration No. 2129898 issued January 20, 1998. Sections 8 and 15 affidavits accepted
and acknowledged. Renewed twice.
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In re Majestic Distilling Co., 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. 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 consider the
du Pont factors for which arguments or evidence were presented. The other factors,
we consider to be neutral.
A. The Marks
We consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). Applicant’s mark, ALCOTEK, differs in appearance from the mark in the cited
registration, ALCOTECH, by only the final letters, “K” instead of “CH.”
In sound, Applicant’s mark ALCOTEK is the phonetic equivalent of the mark in
the cited registration, ALCOTECH. See In re SnoWizard, Inc., 129 USPQ2d 1001,
1004, n.6 (TTAB 2018) (finding SNOBALLS to be phonetic equivalent of
SNOWBALLS); In re Tapco Int’l Corp., 122 USPQ2d 1369, 1372 (TTAB 2017) (finding
KLEER to be phonetic equivalent of CLEAR). In this regard, our case law dictates
that there is no correct pronunciation of a trademark. StonCor Grp., Inc. v. Specialty
Coatings, Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014) (“There is no
correct pronunciation of a trademark that is not a recognized word.”) (citing In re
Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ 227 (CCPA 1969)); In re Allegiance
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Staffing, 115 USPQ2d 1319, 1325 (TTAB 2015) (no correct pronunciation of mark
that is coined term). Nevertheless, there is evidence that the term “TEK” is
sometimes used in marks as a substitute for “TECH,”4 and we find it likely that
consumers will pronounce Applicant’s mark in the same manner as the mark in the
cited registration.
Regarding commercial impression, both marks contain the term “ALCO” followed
by either “TECH” or “TEK,” which as noted above, are understood to have the same
meaning. Furthermore, there is no evidence that the commercial impression of
Applicant’s ALCOTEK would be different when applied to Applicant’s goods than for
its phonetic equivalent, ALCOTECH, as applied to Registrant’s. We find the
commercial impression and connotation of the marks to be identical.
Therefore, we find that the marks are highly similar in sight, and identical in
sound, connotation, and commercial impression. This first du Pont factor weighs
heavily in favor of finding a likelihood of confusion.
B. The Goods
When considering the similarity or dissimilarity of the goods, we note that with
identical marks, as we have here, less similarity between the goods is needed to find
a likelihood of confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Moreover, goods need not be identical or even competitive in order to support a

4 The Examining Attorney submitted a dozen copies of third-party registrations that contain
the term “TEK” in the mark, and which contain a disclaimer, stating that “no claim is made
to the exclusive right to use ‘tech’ apart from the mark as shown.” Attached to June 27, 2018
Final Office Action, at 14-43.
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finding of likelihood of confusion. Rather, it is enough that the goods are related in
some manner or that some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under circumstances which could
give rise, because of the marks used or intended to be used therewith, to a mistaken
belief that they originate from or are in some way associated with the same producer
or that there is an association between the producers of the parties’ goods or services.
In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
From the identifications themselves, we note that Applicant’s “sensors” for
“measuring” chemicals may also be considered “instruments” for “monitoring” them.
Applicant’s identification is limited to sensors for the measurement of particular
chemical compounds, alcohol and ethanol, and Registrant’s identified goods are
limited to certain industries including “paper, pollution control, mineral processing,
oil and textile industries and in agriculture.” The limitations listed in the application
and the cited registration are not necessarily mutually exclusive, however, since
Applicant’s alcohol and ethanol measuring sensors may also be used in “paper,
pollution control, mineral processing, oil and textile industries and in agriculture.”
Furthermore, Applicant’s “electronic alcohol and ethanol chemical sensors” could be
part of a “computerized management and process control apparatus,” as identified by
Registrant. See In re Iolo Technologies, 95 USPQ2d 1498, 1500 (TTAB 2010) (finding
likelihood of confusion where “based on the identifications themselves” the goods are
“complementary in function and purpose”) (citing Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (finding likelihood
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of confusion “as a matter of law” based on a comparison of the parties’ identifications,
although they involved different goods and services within the fields of technology).
To further demonstrate the relatedness of the identified goods, the Examining
Attorney submitted third-party registrations,5 indicating that sensors and monitors,
of the type identified by Applicant and Registrant respectively, may be offered under
a single mark. Registration No. 1983401 for NEOGEN identifies “instruments”
including “sensors” for use in “detecting chemicals” in “various environments.”6
Registration No. 4405626 for PRECISIVE identifies instruments and sensors for
various uses in chemical detection, including generally “chemical detection sensors,”
and more specifically “sensors for the detection and analysis of chemical compounds
in gases, solids, and liquids;” and “instruments” for “use in process monitoring of
hydrocarbon products, namely oils, gases, and petrochemicals;” and “sensors for the
use in combustion, environmental and continuous emissions monitoring.”7
Registration 3311578 for WALCHEM identifies “sensors” and “instruments” for

5 We note Applicant’s objection in its reply brief to evidence cited by the Examining Attorney
“for the first time in Examiner’s Brief.” 14 TTABVUE 6. The objection is not well taken, since
all five of the third-party registrations cited by the Examining Attorney to show relatedness
of the goods (11 TTABUE 10-11) were submitted into the record with either the June 27, 2018
Final Office Action (see p.45, 60) or the January 18, 2019 Denial of Request for
Reconsideration (see p 5, 7, 12).
6 Registered July 2, 1996, owned by Neogen Corporation. Attached to June 27, 2018 Final
Office Action, at 45.
7 Registered September 24, 2013, owned by MKS Instruments, Inc. Attached to June 27, 2018
Final Office Action, at 60.
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“monitoring and measurement of chemicals” including “water treatment” and
“industrial chemical processing systems.”8
The Examining Attorney also submitted third-party web pages advertising
sensors for detection of chemicals, including for ethanol and in industries including
water treatment and the paper industry, from Vernier and from ProMinent.9
Together with the third-party registrations, this evidence indicates that where, as
here, these goods are offered under essentially identical marks, consumers are likely
to assume that they derive from a single source. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783, 1785 (TTAB 1993).
The second du Pont factors also weigh in favor of finding a likelihood of confusion.
C. Channels of Trade and Classes of Purchasers
Regarding channels of trade, we note again that the identifications in both the
application and in the cited registration have certain, specified limitations. As noted
above, we find that these limitations are not necessarily mutually exclusive.
Applicant argues that the products are actually used differently and for different
purposes, and that Applicant’s goods are specifically “breath alcohol sensors.” 11
TTABVUE 8. We are, however, bound in our analysis by Applicant’s identification,
which does not specify “breath alcohol sensors,” or any other a particular use for
Applicant’s goods that would preclude the uses mentioned in the cited registration.

8 Registered October 16, 2007, owned by Iwaki America. Attached to January 18, 2019
Request for Reconsideration, at 7.
9 Attached to January 18, 2019 Denial of Request for Reconsideration, at 53-54, 68-86.
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See Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). We find the third du Pont factor to be neutral.
D. Conditions of Sale
Applicant urges us to consider that the identified goods are sold to sophisticated
purchasers including “engineers who are by nature discriminating and in practice,
conditioned to be discriminating.” 11 TTABVUE 8. The goods identified in the
application and in the cited registration, while limited in field of use, are not limited
by purchasers or classes of consumers. Furthermore, as dictated by our precedent,
“with identical or similar marks used on such goods, even a careful, sophisticated
consumer of these goods is likely to believe that the goods emanate from a common
source. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846
(Fed. Cir. 2000). In other words, “even careful purchasers who do notice the difference
in the marks will not ascribe it to differences in the source of the goods, but will see
the marks as variations of each other, pointing to a single source.” In re I-Coat Co.,
LLC, 126 USPQ2d 1730, 1739 (TTAB 2018). Overall, we find the fourth du Pont factor
to be neutral.
E. Actual Confusion and Potential for Confusion
Applicant urges us to consider the length of time during which both Applicant and
Registrant have used their goods, without evidence of actual confusion. While the
presence of confusion may be very useful to our analysis, however, the lack of evidence
of actual confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340
F.2d 960, 144 USPQ 435, 438 (CCPA 1965). We acknowledge Applicant’s allegation
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that it has used its mark since 2003, while the cited registration was filed in 1996
and issued in 1998. Nevertheless, there is little information of record as to the actual
use of Applicant’s and Registrant’s goods, and the record is unclear as to the amount
of meaningful opportunities for confusion to have occurred. Nike Inc. v. WNBA Enters.
LLC, 85 USPQ2d 1187, 1202 (TTAB 2007). Accordingly, we find this du Pont factor
to be neutral.
F. Conclusion
After considering all of the arguments and evidence of record as they pertain to
the relevant du Pont factors, we find that the marks are substantially similar in sight,
phonetically equivalent in sound, and effectively identical in connotation and
commercial impression. We further find the goods are related. The remaining factors
are neutral.
Accordingly, we find that there is a likelihood of confusion between Applicant’s
mark ALCOTEK and the cited mark ALCOTECH, for the goods as identified.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.