Astronautics Corporation of America

Trademark Trial and Appeal Board

Jun 17, 2015

No. 85213203 (T.T.A.B. Jun. 17, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: June 17, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Astronautics Corporation of America
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Serial No. 85213203
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Adam L. Brookman of Boyle, Fredrickson, S.C.,
for Astronautics Corporation of America.
David H. Aleskow, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
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Before Bucher, Ritchie, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Astronautics Corporation of America (“Applicant”) seeks registration on the
Principal Register of the mark NEXIS, in standard characters, for the following
goods in International Class 9, as amended:
Electronic flight bags, namely, computers with FAA
(Federal Aviation Administration) certified hardened
displays and software therefor for use in managing
aircraft flight, all for use in aircraft cockpits for
interfacing with the flight control and flight safety
systems of aircrafts, providing separation of certified
flight critical software from uncertified, commercial, off-
Serial No. 85213203
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the-shelf software and permitting connection of the
airplane to ground-based, back office systems.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
of a likelihood of confusion with the following two marks registered on the Principal
Register to the same owner:
1. NEXUS for “directional compasses; navigation instruments, namely,
electronic logs, depth sounders, wind instruments for measuring and
indicating force, speed and direction, compasses, GPS (Global Positioning
System) instruments, autopilots for automatic navigation, electronic chart
plotters, and tracking systems, namely, transmitters, receivers and
instruments for course setting and positioning determining” in
International Class 9;2 and
2. for “navigational, nautical and
electronic marine apparatus, instruments and systems, namely, electric
marine navigation instruments; analogue and electric directional
compasses, binoculars, GPS equipment, logs in the nature of measuring
instruments, echo sounders, anemometers and speedometers, barometers,
autopilots, control equipment, transmitters, electronic chart readers and
plotters, transducers and tripods; parts and fittings for the aforesaid
goods” in International Class 9.3

1 Application Serial No. 85213203 was filed on January 7, 2011, based on Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
2 Registration No. 2120875, issued December 16, 1997; renewed February 29, 2008. The
registration is in typeset form. Before November 2, 2003, standard character drawings were
known as typed drawings. A typed mark is the legal equivalent of a standard character
mark. Trademark Manual of Examining Procedure (TMEP) § 807.03(i) (January 2015).
3 Registration No. 3559504, issued January 13, 2009 pursuant to Trademark Act Section
44(e); Section 8 & 15 declarations accepted and acknowledged May 8, 2014. The registration
includes the following description: “The mark consists of the ‘N’ in ‘NEXUS’ being Red,
while the rest of the mark being Black.”
Serial No. 85213203
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After the Examining Attorney made the refusal final, Applicant appealed and
requested reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed.4 We affirm the refusal to register.
I. Analysis
Our determination under Section 2(d) is based on an analysis of all probative
facts in evidence relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods or services. 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.”).
Because Registrant’s cited mark in typed drawing form is closer to Applicant’s
mark NEXIS than the cited composite mark, we will focus our discussion on the
registered typed drawing mark NEXUS. Thus, we need not decide the issue of
likelihood of confusion with respect to the cited mark
(Registration No. 3559504) because, to the extent that we determine there is no

4 More than two months after filing its reply brief, Applicant requested remand to make of
record newly available evidence, namely, a third-party application recently published for
opposition. 18 TTABVUE. In an order dated June 2, 2015, the Board found that Applicant
had not shown good cause for remand, given the cumulative nature of evidence, its limited
probative value, and the very advanced stage of the proceeding. 19 TTABVUE.
Serial No. 85213203
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confusion with the cited mark NEXUS (Registration No. 2120875), the additional
verbiage in the composite mark would further distinguish the marks. On the other
hand, if we determine that confusion is likely with the registered standard
character mark, there is no reason to decide whether there is a likelihood of
confusion with another less similar mark. See In re Max Capital Group Ltd., 93
USPQ2d 1243, 1245 (TTAB 2010).
A. Similarity of the Marks
We begin our analysis with the first du Pont factor, “‘the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression.’” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)
(quoting du Pont, 177 USPQ at 567). The proper test is “whether the marks are
sufficiently similar in terms of their commercial impression such that persons who
encounter the marks would be likely to assume a connection between the parties.”
Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713,
1721 (Fed. Cir. 2012) (quotation omitted). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific
impression of trademarks. Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107
USPQ2d 1424, 1430 (TTAB 2013).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
Serial No. 85213203
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marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Nat’l Data, 224 USPQ at 751.
Applicant’s mark is NEXIS; the cited mark is NEXUS. Visually, the marks are
virtually identical, with Applicant’s mark substituting only an “i” in place of the
cited mark’s “u.” We acknowledge that there is no correct pronunciation of a mark
that, like NEXIS, is not a recognized word. StonCor Grp., Inc. v. Specialty Coatings,
Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014); In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012). Nonetheless, we find that
consumers are likely to view and verbalize NEXIS and NEXUS very similarly.
Slight differences in the sound of similar marks do not avoid the likelihood of
confusion. In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983).
In terms of meaning and connotation, definitions of “nexus” include “A means of
connection; a link or tie.”5 As noted, NEXIS does not have a common meaning,
which distinguishes the marks somewhat. Applicant argues that its mark

5 October 23, 2014 reconsideration letter at 2, from THE AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE (2014) (ahdictionary.com).
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is a play on the FAA’s NextGen program with the initial
part of the mark, “NEX,” borrowed from “NextGen” with
the latter part, “IS,” standing for “information system.” It
is not an intentional misspelling [of “nexus”] and would
not be perceived as such by the consumers of Applicant’s
goods. While the NextGen program might not have much
meaning to the general public, the sophisticated,
knowledgeable buyers of Applicant’s goods, looking to buy
certified, hardened electronic flight bags potentially
capable of use for NextGen applications, are well aware of
the FAA’s program and would find Applicant’s mark
suggestive rather than a misspelling of NEXUS which has
no particular meaning in the avionics industry.6
There is no record evidence, however, that relevant consumers would recognize
NEXIS as a derivative of “NextGen information system.”
In view of the near identity of the terms NEXIS and NEXUS, we find that
Applicant’s mark makes an overall commercial impression similar to the cited
registration. The first du Pont factor weighs in favor of a likelihood of confusion.
B. Similarity of the Goods and Channels of Trade
We turn next to the similarity of the goods and channels of trade, the second and
third du Pont factors. The test is not whether consumers would be likely to confuse
the goods, but rather whether they would be likely to be confused as to their source.
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). Therefore, it is not necessary
that the goods be identical or even competitive to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods are related in some manner, or that
the circumstances surrounding their marketing are such that they would be
encountered by the same persons in situations that would give rise, because of the

6 Reply Brief at 5, 14 TTABVUE 6.
Serial No. 85213203
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marks, to a mistaken belief that they originate from the same source or that there is
an association or connection between the sources of the goods. In re Thor Tech Inc.,
90 USPQ2d 1634, 1635 (TTAB 2009).
We must look to the goods as identified in the involved application and cited
registrations, not to extrinsic evidence of actual use by Applicant or the owner of the
cited registration. See, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014). The goods identified in the
application and cited Registration No. 2120875, all in International Class 9, are:
NEXIS Application NEXUS Registration
Electronic flight bags, namely, computers
with FAA (Federal Aviation
Administration) certified hardened
displays and software therefor for use in
managing aircraft flight, all for use in
aircraft cockpits for interfacing with the
flight control and flight safety systems of
aircrafts, providing separation of certified
flight critical software from uncertified,
commercial, off-the-shelf software and
permitting connection of the airplane to
ground-based, back office systems
Directional compasses; navigation
instruments, namely, electronic logs,
depth sounders, wind instruments
for measuring and indicating force,
speed and direction, compasses, GPS
(Global Positioning System)
instruments, autopilots for
automatic navigation, electronic
chart plotters, and tracking systems,
namely, transmitters, receivers and
instruments for course setting and
positioning determining

Neither the application nor the registration reflects any restriction to the channels
of trade.
The Examining Attorney submitted evidence that electronic flight bags are
related or complementary to other types of avionics and instruments identified in
the cited registration and sold through the same channels of trade. This evidence
includes:
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• An article from SKYbrary describing the term “electronic flight bag” (EFB),
and stating that some models of EFB systems “may be connected to the GPS
. . . and it may be able to combine GPS position with the locations and speed
vectors of other aircraft and graphic weather information into a single,
detailed moving map display.”7
• Screen captures from “Aircraft Spruce & Specialty Co.” offering electronic
flight bags, GPS, and auto pilots, as well as airspeed indicators, under the
“Avionics & Instruments” heading;8 and
• Screen captures from “Sporty’s Pilot Shop” offering both GPS and electronic
flight bag software.9
In addition, the Examining Attorney submitted screen captures from Applicant’s
own website indicating that, in addition to the electronic flight bags identified in the
subject application, Applicant too offers some of the goods identified in the cited
registration, including autopilots and navigation systems.10
Based on the record evidence that electronic flight bags and software therefor for
use in managing aircraft flight is related to Registrant’s navigation instruments
and particularly to GPS instruments, we find that the second and third du Pont
factors weigh in favor of a likelihood of confusion as to source.
C. Consumer Sophistication
The fourth du Pont factor assesses “[t]he conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” Du Pont,

7 October 23, 2014 reconsideration letter at 21-22 (from www.skybrary.aero/index.php/
Electronic_Flight_Bag).
8 Id. at 25-38. The five matching results displayed under the heading “electronic flight bags”
range in price from $695 to $5995. Id. at 28.
9 Id. at 39-49. The electronic flight bag software displayed is priced at $165. Id. at 46.
10 Id. at 54-55. It is not apparent from the evidence whether Applicant uses the NEXIS
mark in association with those other goods.
Serial No. 85213203
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177 USPQ at 567. Applicant urges us to consider the degree of care that consumers
will exercise in purchasing these goods. Applicant asserts that its electronic flight
bags sell for $25,000 each and typically are sold in sets of two units for $50,000, and
that the software applications for these devices generally sell for approximately
$10,000 each.11 Applicant has not, however, submitted a declaration or any other
supporting evidence to give us insight into the purchasing process for goods of the
type identified in the application. See In re Hitachi High-Techs. Corp., 109 USPQ2d
1769, 1774 (TTAB 2014); see also Enzo Biochem Inc. v. Gen-Probe Inc., 424 F.3d
1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) (“Attorney argument is no substitute
for evidence.”). Furthermore, we reiterate that we must consider the goods as
identified, and as noted, record evidence indicates that some electronic flight bags
may be purchased for under $700 and software therefor for under $200.
Had the record proved that the identified goods are very expensive and
marketed to more careful purchasers, with related goods and similar marks, even a
careful, sophisticated consumer is unlikely to notice the differences in these highly
similar marks. Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351
(CCPA 1975) (stating that “the high cost of the goods does not necessarily decrease
the likelihood of confusion where the confusion found to be likely is not as to the
products but as to their source”); In re Hitachi High-Techs. Corp., 109 USPQ2d at
1774; In re Iolo Techs. LLC, 95 USPQ2d 1498, 1501 (TTAB 2010).
Accordingly, we find this du Pont factor to be neutral.

11 See Appeal Brief at 7, 11 TTABVUE 8; Reply Brief at 4, 14 TTABVUE 5.
Serial No. 85213203
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D. The Number and Nature of Similar Marks in Use for Similar Goods
Finally, we turn to du Pont factor six, the number and nature of similar marks
in use on similar goods. Applicant submitted Internet evidence regarding the use of
“Nexus” by third parties,12 but none of those uses is in association with avionics.
Similarly, Applicant introduced printouts of registrations consisting of or
comprising NEXIS, NEXUS, and their formatives, but none of the existing
registrations identifies avionics.13 Even if they had, “[t]he existence of [third-party]
registrations is not evidence of what happens in the market place or that customers
are familiar with them nor should the existence on the register of confusingly
similar marks aid an applicant to register another likely to cause confusion,
mistake or to deceive.” AMF Inc. v. American Leisure Prods., Inc., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973). We find the sixth du Pont factor neutral as well.
II. Conclusion
After considering all the record evidence and arguments pertaining to the
du Pont factors, we find that there is a likelihood of confusion between Applicant’s
applied-for mark NEXIS and the cited mark NEXUS in Registration No. 2120875.
Decision: The refusal to register Applicant’s mark is affirmed.

12 October 2, 2014 Request for Reconsideration at 2-57. Applicant characterizes these as
printouts of web pages, although we note that the pages do not display URLs or dates. See
Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 1208.03 (2014).
13 January 24, 2013 Response to Suspension Inquiry at 2-92.