Bayco Products, Inc.

Trademark Trial and Appeal Board

Dec 17, 2019

87708217 (T.T.A.B. Dec. 17, 2019)

This Opinion is Not a
Precedent of the TTAB

Hearing: December 12, 2019 Mailed: December 17, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bayco Products, Inc.
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Serial No. 87708217
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Richard L. Schwartz and Enrique Sanchez, Jr. of Whitaker Chalk Swindle
& Schwartz PLLC,
for Bayco Products, Inc.
Teague Avent, Trademark Examining Attorney, Law Office 125,
Heather Biddulph, Managing Attorney.
_____

Before Kuhlke, Bergsman and English,
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:
Bayco Products, Inc. (“Applicant”) seeks registration on the Principal Register of
the mark INTEGRITAS, in standard characters, for “flashlights, namely, portable
rechargeable lanterns” in International Class 11.1

1 Application Serial No. 87708217; filed December 5, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use
the mark in commerce.
Serial No. 87708217
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The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the mark set forth
below for “light bulbs; light bulbs, electric; lighting fixtures; lighting installations;
lighting tubes; electric light bulbs; fixtures for incandescent light bulbs; fluorescent
electric light bulbs; halogen light bulbs; incandescent light bulbs; LED light bulbs” in
International Class 11:2

When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied Applicant’s request for
reconsideration, and the appeal was resumed. Pursuant to Applicant’s request, an
oral hearing was held on December 12, 2019.
We affirm the refusal to register.
I. Analysis

Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S.

2 Registration No. 5265635; issued August 15, 2017; the colors green and gray are claimed as
features of the mark. The registration includes the following description of the mark: “The
mark consists of the wording ‘ENTEGRITY’ in stylized font with the ‘en’ in green and ‘tegrity’
in gray. There is a green line below the wording; the bottom of the letter ‘g’ overlaps with the
line.”
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138, 135 S.Ct.1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling
Co. Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered
each DuPont factor that is relevant or for which there is evidence of record. See In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2
Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed.
Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”). We treat as neutral any DuPont
factors for which there is no record evidence or argument.
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1945-46 (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.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
Serial No. 87708217
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A. Similarity or Dissimilarity of the Goods and Trade Channels

The respective goods need not be identical or directly competitive for there to be a
likelihood of confusion, but the evidence must establish that the goods are related in
some manner, or the conditions surrounding their marketing are such, that they
could be encountered by the same purchasers under circumstances that could give
rise to the mistaken belief that the goods come from a common source. Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003-04 (Fed.
Cir. 2002); see also In re Rexel, Inc., 223 USPQ 830, 831 (TTAB 1984). It is sufficient
for a finding of likelihood of confusion if relatedness is established for any item
encompassed in the identification of goods in a particular class. Tuxedo Monopoly,
Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
The Examining Attorney has introduced third-party websites showing that light
bulbs, encompassed in the cited registration, and flashlights, covered by Applicant’s
application, are sold through the same online retailers, often under the same mark.
The evidence includes:3
• SureFire, manufacturing and retailing SUREFIRE flashlights and
rechargeable flashlights and SUREFIRE flashlight lamps;4

3 Citations to the prosecution record are to the Trademark Status & Document Retrieval
(“TSDR”) system by page number in the downloadable .pdf versions of the documents. All
other citations are to TTABVUE, the Board’s online docketing system.
4 March 26, 2018 Office Action at TSDR 9-15 (surefire.com). As seen in the excerpt, the “lamp”
is a type of light bulb that would fit a flashlight. “Light bulb” is defined as “an electric light”
which would encompass these “lamps” that provide the electric light for flashlights.
Dictionary.com based on the Random House Unabridged Dictionary (2019). The Board may
take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983), including online dictionaries that exist in printed format or regular fixed editions. In
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• The Coleman Company, Inc., retailing light bulbs, lanterns, rechargeable
lanterns, and flashlights;5
• Mag Instrument Inc. manufacturing and retailing MAGLITE flashlights and
rechargeable flashlights and replacement lamps for flashlights;6
• LightJunction.com retailing light bulbs and flashlights, including rechargeable
flashlights;7
• BrightGuy.com retailing light bulbs, flashlights, and rechargeable flashlights,
including STREAMLIGHT light bulbs and flashlights, BRIGHT STAR light
bulbs and flashlights, PRINCETON light bulbs and flashlights, and
Applicant’s INTEGRITAS rechargeable lantern flashlight;8
• SuperbrightLEDs.com retailing LED rechargeable flashlights and lanterns
and LED flashlight bulbs and lights;9
• BatteryJunction.com retailing flashlights, including lantern flashlights, and
light bulbs, including STREAMLIGHT rechargeable lantern flashlights and
flashlight bulbs;10 and

re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013); In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
5 March 26, 2018 Office Action at TSDR 16-24 (coleman.com).
6 Id. at 25-45 (maglite.com). Some pictured flashlights bear MAG-LITE, with a hyphen.
7 October 14, 2018 Final Office Action at TSDR 6-8.
8 Id. at 9-16.
9 Id. at 17-19.
10 Id. at 20-28.
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• TopBulb.com retailing flashlight bulbs and flashlights, including rechargeable
flashlights.11
This evidence establishes that light bulbs and flashlights, including rechargeable
flashlights, are related because they may emanate from the same source and be
identified by the same mark. Applicant’s admission that it sells both flashlights and
light bulbs, albeit under different marks,12 further supports that the goods may
emanate from the same source. The goods also are complementary given that a light
bulb is an essential feature of a flashlight. Wincharger Corp. v. Rinco, Inc., 297 F.2d
261, 132 USPQ 289, 291-292 (CCPA 1962) (power supply equipment such as motors
and generators and voltage dividing instruments, potentiometers and rheostats are
complementary products because “[t]he products are all within the field of electrical
apparatus and in some instances devices similar to those manufactured by appellee
are used in connection with the various items produced by appellant”). The same
evidence demonstrates that flashlights and light bulbs are marketed through the
same channels of trade to the same classes of consumers.13
Applicant relies on extrinsic evidence to argue that Applicant’s and Registrant’s
goods and trade channels are different. Specifically, Applicant asserts that
Registrant’s goods are “specialized light bulb products”14 for “high end energy

11 Id. at 29-41.
12 Request for Recons. 4 TTABVUE 7 and 10.
13 In view of this evidence, whether Registrant sells its products through the Internet, as
Applicant questions, is immaterial. September 20, 2018 Office Action Response at TSDR 7-8.
14 Req. for Recons. 4 TTABVUE 6.
Serial No. 87708217
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efficient lighting projects”15 for “stationary installation in commercial buildings”16
whereas Applicant’s goods are rechargeable, hand-held, portable flashlights “sold to
a very specialized market, such as one that services firemen, police, and other first
responders.”17 We are bound to compare the goods and trade channels as identified
in the application and cited registration, neither of which include such limitations.
Octocom Sys., Inc. v. Houston Comp. Servs., Inc., 918 F.2d 937, 16 USPQ2d 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.”). Accordingly, as opposed to a trademark
infringement litigation, the distinctions Applicant attempts to draw are irrelevant in
a likelihood of confusion analysis regarding whether an applicant’s mark may be
registered.
For these reasons, the relatedness of the goods and trade channels weighs in favor
of finding a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion Capital

15 September 20, 2018 Office Action Response at TSDR 7.
16 Id.
17 Request for Recons. 4 TTABVUE 7.
Serial No. 87708217
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Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir.
2014); DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014)).
The issue 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. Coach Servs. Inc. v. Triumph
Learning LLC, 688 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is
on the recollection of the average purchaser, who normally retains a general rather
than specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus.,
Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). We do not predicate our analysis on a dissection of the involved
marks; we consider the marks in their entireties. Stone Lion, 110 USPQ2d at 1160;
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.”). But
one feature of a mark may be more significant than another, and it is not improper,
for rational reasons, to give more weight to a dominant feature of a mark, provided
the ultimate conclusion rests on a consideration of the marks in their entireties. Stone
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Lion, 110 USPQ2d at 1161 (finding that the Board did not err in reasoning that the
term LION was dominant in both applicant’s mark STONE LION CAPITAL and
opposer’s marks LION CAPITAL and LION); In re Chatam Int’l, 71 USPQ2d at 1946.
In considering the similarities between the marks, “[w]e must compare the marks
as they appear in the drawings, and not on any [actual use] that may have additional
wording or information.” In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186
(TTAB 2018); see also In re i.am.symbolic, 123 USPQ2d at 1749. Accordingly,
Applicant’s extrinsic evidence and arguments that its “mark is always closely
associated with its registered NIGHTSTICK mark” and that “Registrant’s website
displays the registered mark with the words Energy and Integrity underneath the
mark in the same green-gray two color scheme, which is a feature of the cited mark”
are unavailing.18
We also must keep in mind that although the cited mark is stylized and in color,
Applicant has applied to register a standard character mark without limitation on
the manner of display. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983); In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio
Dairy Prods. Corp., 8 USPQ2d 1012, 2015 (TTAB 1998). Accordingly, we must assume
that Applicant could display its mark in a stylization and color scheme similar to the
cited mark. In re Aquitaine Wine, 126 USPQ2d at 1186 (TTAB 2018) (“Since
Registrant’s mark is a standard character mark, we must consider that the literal
elements of the mark (the words and the letters) may be presented in any font style,

18 September 20, 2018 Office Action Response at TSDR 6-7.
Serial No. 87708217
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size or color, including the same font, size and color as the literal portions of
Applicant’s mark. This is because the rights associated with a standard character
mark reside in the wording per se and not in any particular font style, size, or color.”)
(citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1259 (Fed. Cir. 2011)). Even considering the color elements as a point of distinction
they are not sufficient to distinguish the marks.
Both Applicant’s mark and the cited mark consist of four syllables and the first
three syllables of the marks, “entegrit” v. “integrit,” look and sound similar. The
marks also share a connotation and commercial impression. The cited mark is nearly
phonetically identical to the word “integrity” and the first three syllables of
Applicant’s mark also call to mind “integrity.”19 This word creates a commercial
impression that the goods of Registrant and Applicant are reliable and of high
quality.
That Applicant’s mark starts with an “i” and ends in “as” creates some visual and
aural differences between the marks, but not enough to overcome the similarities
between the marks in overall appearance and sound. Applicant argues that the “en”
prefix in the cited mark “brings to mind the beginning of the word energy.”20 Given

19 The Examining Attorney presented evidence that “integritas” is Latin for “chastity,”
“integrity,” “blamelessness,” “correctness, purity,” “soundness” and “the whole.” October 14,
2018, Final Office Action at TSDR 42 and 47. Applicant argues that these “quite different
impressions” should be considered in assessing the similarities between the marks.
Applicant’s Reply Brief 10 TTABVUE 5-6. Latin, however, is not a living language so it is
unlikely that the relevant consumers would be aware of the Latin meanings other than
“integrity,” which is suggested by the first three syllables in Applicant’s mark.
20 September 20, 2018 Office Action Response at TSDR 7.
Serial No. 87708217
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that the cited mark is the near phonetic equivalent of the term “integrity,” we are not
persuaded that consumers would ascribe the term “energy” to the prefix “en” in the
cited mark even though the “en” prefix is highlighted in green font. But even if the
cited mark also connotes “energy” this does not change the fact that the marks share
the connotation and commercial impression of “integrity.”
In this regard, we note that Registrant engenders the commercial impression of
“Integrity” by displaying its mark on its website as reproduced below:21

Whereas trade dress may not be used to prove that trademarks are not similar, trade
dress may be used to prove that a word mark projects a similar commercial
impression. As the Court of Appeals for the Federal Circuit has stated:
Ordinarily, for a word mark we do not look to the trade
dress, which can be changed at any time. Vornado, Inc. v.
Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342
(CCPA 1968). But the trade dress may nevertheless
provide evidence of whether the word mark projects a
confusingly similar commercial impression.
Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1458
(Fed. Cir. 1992); see also Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d
669, 223 USPQ 1281, 1284 (Fed. Cir. 1984).

21 Id. at TSDR 14.
Serial No. 87708217
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When viewing the marks in their entireties, we find that the similarities between
the marks in appearance, sound, connotation, and commercial impression are
significant and outweigh the differences in the marks. This factor favors a finding
that there is a likelihood of confusion.
C. Sophistication of the Purchasers

Applicant argues that the sophistication of the purchasers and price points of the
identified products will obviate any likelihood of confusion. Specifically, Applicant
asserts that Registrant’s goods are sold as part of Registrant’s “commercial lighting
projects” to “careful, individual sophisticated purchasing customers (on a project by
project basis) at a price point many multiples of that [of] Applicant’s products,”22 and
that Applicant’s flashlight portable lanterns “typically retail” for $200 each and are
targeted to first responders who will exercise care in making a purchase.23 Again,
these arguments are irrelevant in a USPTO ex parte appeal because there are no
trade channel limitations or price restrictions in the application or cited registration.
In re Fabfitfun, Inc., 127 USPQ2d 1670, 1673 (TTAB 2018) (no price restrictions in
identifications of goods); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB
1986) (evidence that relevant goods are expensive wines sold to discriminating
purchasers must be disregarded given the absence of any such restrictions in the
application or registration).

22 Id. at TSDR 8.
23 Request for Recons. 4 TTABVUE 7.
Serial No. 87708217
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We must make our determination based on the least sophisticated consumer.
Stone Lion, 110 USPQ2d at 1163 (affirming that the Board properly considered all
potential investors for recited services, which included sophisticated investors, but
that precedent requires consumer care for likelihood-of-confusion decision to be based
“on the least sophisticated potential purchasers”). Flashlights and light bulbs are the
types of products that are purchased by the general public, and there is no evidence
that the general public would exercise a higher degree of care when encountering
these goods. In addition, some flashlights and light bulbs are sold at relatively low
price points as evidenced by the websites of record showing light bulbs sold for as low
as $0.37 and flashlights sold for as low as $5.75.24 Eveready Battery Co. v. Green
Planet, Inc., 91 USPQ2d 1511, 1516 (TTAB 2009) (“Generally, purchasers of casual,
low cost ordinary consumer items exercise less care in their purchasing decisions and
are more likely to be confused as to the source of the goods.”). Light bulbs also are
goods that are replaced frequently. Kimberly-Clark Corp. v. H. Douglas Enters., Ltd.,
774 F.2d 1144, 227 USPQ 541, 542 (Fed. Cir. 1985) (purchasers of “relatively
inexpensive and frequently replaceable … products have long been held to a lesser
standard of purchasing care”). For these reasons, this DuPont factor favors a finding
of likelihood of confusion.
D. Actual Confusion
Kevin Kirkman, Applicant’s Product Line Manager, avers that since introducing
the INTEGRITAS portable lantern product in September 2018, Applicant has sold

24 October 14, 2018 Final Office Action at TSDR 7, 29, and 36.
Serial No. 87708217
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“in excess of 1600 units … with gross sales in excess of $190,000,” and that despite
these “significant” sales, he is “aware of no instances of actual marketplace confusion”
of the product with “any third party product – much less any ENTEGRITY branded
specialty lightbulb product.”25 This declaration has little evidentiary value for several
reasons. See In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529
(CCPA 1973) (stating that self-serving testimony of appellant’s corporate president’s
unawareness of instances of actual confusion was not conclusive that actual confusion
did not exist or that there was no likelihood of confusion).
First, Applicant launched its INTEGRITAS product relatively recently so there
has not been any meaningful opportunity for actual confusion to have occurred.
Second, there is no evidence regarding the extent of Applicant’s advertising and the
geographic scope of its sales. Third, Mr. Kirkman testified that Applicant sells its
INTEGRITAS rechargeable lanterns to specialized distributors for sale to those in
hazardous work environments such as fire, rescue, industrial and automotive
industries.26 Lebanon Seaboard Corp. v. R&R Turf Supply Inc., 101 USPQ2d 1826,
1834 (TTAB 2012); Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287
(TTAB 2007) (the probative value of the absence of actual confusion depends on there
being a significant opportunity for actual confusion to have occurred). Fourth, we do

25 Request for Recons. 4 TTABVUE 10, Kirkman Declaration, ¶¶ 7 and 9.
26 Id., Kirkman Declaration, ¶ 5. As explained above, when analyzing the similarity or
dissimilarity of the goods, we are bound by the description of goods in the application and
cited registration. However, when we analyze whether there have been any reported
instances of confusion, we consider the marketplace because we are determining whether
there has been a reasonable opportunity for confusion to have occurred.
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not know whether Registrant is aware of any instances of actual confusion. See, e.g.,
In re Opus One Inc., 60 USPQ2d 1812, 1817 (TTAB 2001); In re Jeep Corp., 222 USPQ
333, 337 (TTAB 1984); In re Barbizon Int’l, Inc., 217 USPQ 735, 737 (TTAB 1983).
Last, while “[a] showing of actual confusion would of course be highly probative, if
not conclusive, of a high likelihood of confusion. The opposite is not true.... The lack
of evidence of actual confusion carries little weight, especially in an ex parte context.”
In re Majestic Distilling, 65 USPQ2d at 1205 (internal citation omitted). Accordingly,
this DuPont factor is neutral.
II. Conclusion

Applicant’s arguments that confusion is not likely are mostly predicated on
evidence of how Applicant and Registrant use their marks in the marketplace. As
explained, in determining the issue of registrability, we must consider the goods and
marks as identified in the application and cited registration. Based on the similarities
between the goods, trade channels, and marks, and the fact that the goods include
general consumer items sold at relatively low price points, we find that confusion is
likely between Applicant’s mark and the mark in the cited registration.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.