Angstrom Power, Inc.

Trademark Trial and Appeal Board

Dec 4, 2008

No. 77110855 (T.T.A.B. Dec. 4, 2008)

Mailed:
December 4, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Angstrom Power, Inc.
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Serial No. 77110855
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Janal Kalis of Schwegman Lundberg for Angstrom Power, Inc.

Julie A. Watson, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
_______

Before Quinn, Rogers and Drost, Administrative Trademark
Judges.

Opinion by Rogers, Administrative Trademark Judge:

Angstrom Power, Inc. has filed an application to
register HYPHONE as a trademark in Class 9 for goods
identified as “Telephonic device powered by hydrogen,
namely telephones.” The application is based on
applicant's stated intention to use the mark in commerce on
or in conjunction with the identified goods.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant's mark, when used in
This Opinion is Not a
Precedent of the TTAB
Ser No. 77110855
2
connection with the identified goods, will be likely to
cause confusion or mistake or to deceive consumers, in view
of the prior registration of the mark HI-PHONE for
“Auxiliary apparatus to be used with telephones via the
Internet, namely, a telephony adapter" also in Class 9.1
When the refusal was made final, applicant appealed.
After remand to the examining attorney because of
applicant’s filing of a request for reconsideration, and
denial of that request, the appeal was resumed. Both
applicant and the examining attorney have filed briefs.
Before turning to the merits of the appeal, there is
one evidentiary issue to be considered. The examining
attorney has objected to applicant’s submission, “for the
first time at the appeal stage[, of] printouts from the
internet regarding registrant’s goods.” Brief, p. 7. This
evidence consists of two-page printouts from each of two
different websites.2 Applicant first referred the examining
attorney to the “exceletel.com” and “ambientweather.com”

1 Registration No. 2426919 issued February 6, 2001. Section 8 &
15 affidavits accepted and acknowledged, respectively.

2 The web addresses are www.exceletel.com/products/HiPhone/Hi-
Phone232.htm and www.ambientweather.com/wahideuve.html. In
introducing this evidence, applicant noted that the cited
registration issued to Shelcad Communications but it had
determined that Shelcad “is now called” Way2Call Communications.
In fact, USPTO Assignment Records show such a change of name
recorded at Reel 2421, Frame 0281, and the “ambientweather.com”
website refers to “Way2Call’s Hi-Phone Desktop.”
Ser No. 77110855
3
websites in its response to the initial refusal of
registration, and quoted excerpts of purported descriptions
of registrant’s product from each website; but applicant
did not provide copies of the web pages. Applicant again
referenced these website excerpts in its request for
reconsideration; but applicant still did not provide copies
of the web pages themselves. Finally, applicant discussed
the web pages for a third time in its appeal brief, and
attached to the brief copies of the web pages.3
The examining attorney’s objection that the printouts
were submitted for the first time with applicant’s appeal
brief fails to acknowledge that applicant has referenced
the websites throughout prosecution of the application. In
addition, neither the examining attorney’s final refusal of
registration, which followed the response to the initial
Office action, nor the order denying the request for
reconsideration, informed applicant that mere reference to
website addresses and quotations of excerpts from those

3 In its response to the first Office action and its request for
reconsideration, the references to the “exceletel.com” website
end with “…Hi-PhoneUSB.htm,” while the reference in the appeal
brief and attached, supporting web page end with “…Hi-
Phone232.htm.” Nonetheless, the web page excerpt quoted by
applicant in each of these submissions is identical, including
the apparently erroneous use of “It’s” instead of “Its” in all
three quotations and on the web page. Accordingly, we do not
consider the web page finally made of record with the appeal
brief to be significantly different from that referenced in
applicant’s earlier filings.
Ser No. 77110855
4
websites was not sufficient to make the website evidence of
record. See In re Planalytics Inc., 70 USPQ2d 1453, 1457
(TTAB 2004) (“A mere reference to a website does not make
the information of record.”). In fact, the examining
attorney never even acknowledged the web site excerpts
provided by applicant. Under the circumstances, the
examining attorney’s objection to submission of the web
pages with applicant’s appeal brief is overruled. Cf. In
re 1st USA Realty Professionals Inc., 84 USPQ2d 1581 (TTAB
2007) (At final hearing, Board considered list of three
third-party applications and registrations applicant
submitted with response to first Office action, since
examining attorney did not advise applicant that listing
was insufficient), and In re Jump Designs LLC, 80 USPQ2d
1370, 1372 (TTAB 2006) (Pages from applicant’s and
registrant’s websites submitted during prosecution
considered, but additional pages submitted for first time
with appeal brief not considered). To be clear, the
reprints of the web pages submitted with the appeal brief
are accepted as support for the web site excerpts
previously referenced by applicant, but no other material
on these pages has been considered. Nonetheless, for
reasons discussed infra, the web page evidence concerning
Ser No. 77110855
5
registrant’s goods has had no bearing on our final
determination of the issue of likelihood of confusion.
Our determination under Section 2(d) must be based on
an analysis of all of the probative facts in evidence that
are relevant to the factors bearing on the likelihood of
confusion issue. See In re E.I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In the
analysis of likelihood of confusion presented by this case,
two key considerations are the similarities of the marks
and the relatedness of the goods. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976). Accordingly, we review the evidence of
record and the arguments concerning the import of such
evidence under the applicable law.
The examining attorney argues that “[t]he marks are
phonetic equivalents and thus sound similar.” Further, the
examining attorney contends that applicant’s use of HY
instead of HI as an element of its mark does not result in
a composite mark with a different overall commercial
impression, and that there is no evidence of record to
support applicant’s contention that consumers would view HY
as having a different meaning than HI. The examining
attorney concludes that typical consumers of telephones
Ser No. 77110855
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would be likely to see HY merely as an alternate spelling
of HI. Brief, pp. 2-3.
Applicant contends that the marks are different in
meaning because registrant's mark “employs an appearance
and connotation of a greeting, ‘HI,’ which is a
conventional, familiar, telephone greeting.” Brief, p. 2.
“This impression is contrary to that imparted by the
HYPHONE mark. The prefix ‘HY’ does not connote a
conventional greeting. The spelling and appearance are not
that of a conventional greeting.” Brief, p. 3. In
essence, applicant contends that consumers will think of
the HY in its mark as standing for hydrogen, even though it
is not the chemical symbol for the element, because “most
consumers of the HYPHONE product will not, by and large, be
chemists and won’t know the symbol for hydrogen [is H].”
Id. Applicant also “asserts that consumers will associate
the HYPHONE with cutting edge, ‘green’ technology that is
very different from anything being offered by telephony
companies today.” Id.
As for the involved goods, the examining attorney
essentially contends that applicant’s goods are telephones,
notwithstanding their being powered by hydrogen fuel cells,
and must be presumed to include telephones that can be used
via the Internet. Brief, p. 4. Similarly, the examining
Ser No. 77110855
7
attorney explains, there is no restriction in the
identification of registrant’s goods that limit the types
of phones with which the telephone adapters can be used.
Id., at p. 7. Therefore, the examining attorney concludes,
“the goods are very highly related and complimentary
[sic].” June 6, 2007 (First) Office Action. Moreover, the
examining attorney argues, the evidence attached to the
final refusal of registration, including third-party
registrations that each show registration of a single mark
for both telephones and telephone adapters, and reprints of
Internet web pages showing that telephones and adapters are
both available at the same websites, all demonstrate that
the goods “are of a kind that may emanate from a single
source.” December 19, 2007 (Final) Office Action, and
Brief, at pp. 5-6.
Applicant argues that its goods and registrant’s goods
will have very different uses: “There is nothing else like
the HYPHONE telephone in the world. The novelty and
excitement associated with the launch of the HYPHONE
telephone will, in and of itself, distinguish it from a
retrofitted component used to turn a PC into a telephonic
device.” Brief, pp. 3-4. Applicant also contends that the
Internet evidence it introduced regarding registrant’s
goods shows the channels of trade and classes of consumers
Ser No. 77110855
8
for the involved goods will be different. Specifically,
applicant argues that registrant’s goods, as shown by the
Internet descriptions of the goods, are sold to developers,
system integrators, and OEMs and they would not use such
goods in conjunction with applicant’s hydrogen-powered
telephone. November 30, 2007 Response to First Office
Action.
Our consideration of the arguments and evidence of
record has led us to the conclusion that the refusal of
registration must be affirmed. As for the marks, applicant
concedes that they sound alike. November 30, 2007 Response
to First Office Action. The one letter difference in
appearance is minor and may not be noticed by many
consumers. See Weiss Associates Inc. v. HRL Associates
Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (TMS
and TMM found to look and sound alike and to create
likelihood of confusion even among discriminating
purchasers of expensive software systems).
In essence, applicant relies on the asserted
difference in connotation of the marks as the means to
distinguish them. However, the application is based on
applicant’s stated intention to use the mark in commerce
and there is no evidence the mark has been used or the
product marketed. Thus, applicant’s contention that
Ser No. 77110855
9
consumers will automatically construe its mark to mean
“hydrogen phone” is entirely speculative. And as the
examining attorney has pointed out, the chemical symbol for
hydrogen is H, not HY, and there is no evidence of record
that would tend to indicate how many consumers would
nonetheless think of hydrogen when seeing HY. Moreover,
when we consider the goods, and the possible purchase of
the goods by average consumers, we cannot assume that such
consumers will be aware of or concerned with the means by
which a telephone is powered, and therefore have any reason
to cogitate about what the HY component in applicant’s mark
means.
We conclude, therefore, that the marks are virtually
identical. Specifically, they would, as applicant
concedes, likely be pronounced the same by prospective
consumers of the involved products, and as for appearance,
consumers might easily overlook the one-letter visual
difference between HYPHONE and HI-PHONE. See Johann Maria
Farina Gegenuber Dem Julichs-Platz v. Chesebrough-Pond,
Inc., 470 F.2d 1385, 176 USPQ 199, 200 (CCPA 1972)
(“[s]ide-by-side comparison is not the test. The focus
must be on the ‘general recollection’ reasonably produced
by appellant’s mark and a comparison of appellee’s mark
therewith.”) (citation omitted). Even if we were to accept
Ser No. 77110855
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applicant’s speculative contention that the marks have
dissimilar connotations, we still would find them similar,
for likelihood of confusion purposes, because of their
nearly identical appearance and pronunciation. See Weiss
Associates, supra, and Spoons Restaurants, Inc. v.
Morrison, Inc., 23 USPQ2d 1735 (TTAB 1991), aff’d. No. 92-
1086 (Fed. Cir. June 5, 1992) (likelihood of confusion
found when marks looked and sounded alike, even though they
arguably might have different connotations, in part because
of fallibility of customer memory).
Turning to the goods, our analysis must be based on
the identifications in the involved application and cited
registration, without restriction based on any evidence of
what happens in the marketplace. See In re Dixie
Restaurants, 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997) (“Indeed, the second DuPont factor expressly mandates
consideration of the similarity or dissimilarity of the
services as described in an application or registration”)
(internal quotation marks omitted). Accordingly, we cannot
artificially limit the telephony adapters in the cited
registration to items of equipment that would only be
purchased by sophisticated telecommunications developers,
systems integrators and OEMs. In fact, the second of the
web site excerpts on which applicant relies states, in
Ser No. 77110855
11
part, that registrant’s product “is ideal for … individuals
seeking quality voice connection for their home or office.”
Therefore, we must conclude that registrant’s product is
targeted to individual consumers as well as the
sophisticated professionals applicant notes.
Applicant’s goods, while noted to be hydrogen-powered,
nonetheless are telephones. We must assume these
telephones can include both standard (or land-line)
suitable telephones for use in a home or office, as well as
cellular telephones. As for our inclusion of the latter,
in its discussion of arguably irrelevant evidence regarding
hydrogen fuel cell batteries,4 applicant suggests that its
yet to be produced product may in fact be a cell phone:
“The Examiner has cited several issued patents and patent
applications that discuss and claim hydrogen fuel cell
batteries. However, the Examiner has not provided any
evidence that any fuel cell product has ever been
commercialized for use with a cell phone.” June 9, 2008
Request for Reconsideration.

4 The examining attorney attached to the final refusal of
registration evidence said to illustrate “the emerging technology
of hydrogen powered telephone batteries.” However, given that
the identification of applicant’s goods acknowledges that its
phones are hydrogen-powered, it is unclear why this evidence was
necessary.

Ser No. 77110855
12
Because of the nature of the involved identifications,
we must assume that applicant’s goods include standard
phones and cell phones and registrant’s goods include
adapters that could be used with such phones. In that
sense, the goods are related because they are
complementary. See Synergistic International LLC v.
Korman, 402 F.Supp.2d 651, 77 USPQ2d 1599, 1605 (E.D. Va.
2005) ("it is well cited law that 'complementary products,
or services, are particularly vulnerable to confusion.'”)
citing Communications Satellite Corp. v. COMCET, Inc., 429
F.2d 1245, 166 USPQ 353, 358 (4th Cir. 1970). See also, In
re Code Consultants Inc., 60 USPQ2d 1699 (TTAB 2001)
(although the Board found "obvious differences" between the
involved services, it concluded it was "clear that there is
a complementary relationship").
In addition, the examining attorney has put into the
record third-party registrations showing the same mark
registered for both telephones and telephone adapters.
This is a common method for showing a relationship between
otherwise different products. See, e.g., In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). Finally,
the examining attorney put into the record reprints from
various websites which show that AT&T, CISCO and Skype sell
both telephones and telephone adapters. This is direct
Ser No. 77110855
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evidence showing the related nature of the goods, and
evidence which applicant has not challenged in any way.
As alluded to above, applicant contends that the
involved goods will be marketed to different classes of
consumers through different channels of trade. We have
already noted that registrant’s goods, according to the web
page excerpt made of record by applicant, can be targeted
to business and home users of telephone adapters, and there
can be no doubt that telephones are also used by both
businesses and individuals, in the office and at home.
Accordingly, there is no question that the involved goods
must be considered to be marketed to the same class of
consumers. Applicant contends that consumers of its goods
are different because they are “early adopter consumers
interested in cutting edge, [sic] products.” Brief p. 4.
Even assuming this speculative contention to be true, there
may be “early adopters” of applicant’s “cutting edge”
phones who will need a telephone adapter to use with the
phone. Moreover, in the absence of any restrictions in the
involved identifications, we must assume that the
identified products can be sold to all typical consumers
for such products and be marketed in all customary channels
of trade for such products. See Octocom Systems, Inc. v.
Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
Ser No. 77110855
14
1783, 1787 (Fed. Cir. 1990) (“The authority is legion that
the question of registrability of an applicant’s mark must
be decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which the sales of goods are directed”). Further, even
if applicant plans to market its hydrogen-powered phones in
a particular channel of trade not now employed by
registrant, registrant's rights “are not to be tied into
its current business practices, which may change at any
time.” See San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 2
(CCPA 1977). Registrant’s identified goods must therefore
be presumed suitable for marketing in any channel of trade
which applicant might choose to employ, e.g., wholesale and
retail sales, sales on the Internet, in stores, catalogues
and by any other possible means of commerce.
Considering the limited evidence of record, the
arguments of applicant and the examining attorney, and
balancing the du Pont factors to which the evidence
relates, we find that confusion is likely.
Decision: The refusal of registration is affirmed and
registration to applicant is refused.