Baywood Technolo-gies, Inc.

Trademark Trial and Appeal Board

Feb 25, 2005

No. 76442570 (T.T.A.B. Feb. 25, 2005)

Mailed: February 25, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Baywood Technologies, Inc.
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Serial No. 76442570
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Arthur G. Yeager for Baywood Technologies, Inc.

Angela M. Micheli, Trademark Examining Attorney, Law Office 108
(David E. Shallant, Managing Attorney).
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Before Quinn, Walters and Holtzman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Baywood Technologies, Inc. has appealed from the final
refusal of the trademark examining attorney to register the mark
shown below for "computer software for access control of
visitors, vendors, personnel, and vehicle traffic for military
installation areas and/or buildings in such areas, and for
security information data management," in International Class 9.1

1 Application Serial No. 76442570, filed August 22, 2002, based on an
allegation of first use and first use in commerce on November 28, 2001.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76442570
2

The application includes a disclaimer of "MILITARY ACCESS
CONTROL SYSTEM" and a description of the mark as "a stylized
representation of elements with spaced connectors forming MACS
and a long horizontal element therebeneath."
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 mark MAC for the following goods as to be likely to cause
confusion.2
"Access control systems, comprising a micro processor
controller and magnetic-strip card readers for monitoring
the security of pre-determined locations," in International
Class 9.

When the refusal was made final, applicant appealed. Briefs
have been filed.3 An oral hearing was not requested.

2 Registration No. 1390573 issued April 22, 1986; Section 8 and 15
affidavits accepted and acknowledged, respectively.

3 The examining attorney filed her appeal brief late, on November 3,
2004, along with a motion to accept the late brief. In her motion, the
examining attorney explains that although the Board's notification of
the time to file her brief was dated June 17, 2004, the notice was not
received by the examining attorney until September 29, 2004. Applicant
has objected to the motion, requesting that the Board "enter an order
favorable to applicant" and arguing that the motion was not only filed
late, but it was not filed promptly after the alleged receipt of the
notice. The Board, within its discretion, may permit the late filing
of a brief for good cause. We find good cause in this case to allow
the late filing of the examining attorney's brief. Moreover, we also
Serial No. 76442570
3
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular
attention to the factors most relevant to the case at hand,
including the similarity of the marks and the relatedness of the
goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976).
Applicant contends that the examining attorney has
improperly dissected the marks and that the marks when considered
in their entireties are not similar. Applicant argues that the
disclaimed wording is still part of applicant's mark, and that
this wording coupled with the "highly distinctive design and
logostyle [sic] reminiscent of old army and navy barracks and
signage" are sufficient to render the marks dissimilar. In
addition, applicant argues that "widespread registration and
uses" of the term "mac" or "macs" renders registrant's mark weak
and not entitled to a broad scope of protection. In support of
this contention, applicant has submitted a number of third-party
registrations for these terms "in other fields," and four third-
party registrations for marks in the computer hardware and

consider that the brief was filed within a reasonable time after
receipt of the notice, that applicant has filed a reply brief in
response thereto, and that there is no suggestion that applicant has
been prejudiced by the delay. The motion is accordingly granted, and
the examining attorney's appeal brief is accepted as timely. We would
also point out that even if the brief were not accepted, the case would
still be decided on the merits. See, e.g., In re Tennessee Walking
Horse Breeders' and Exhibitors' Association, 223 USPQ 188 (TTAB 1984).
Serial No. 76442570
4
software fields, two of which are owned by Apple Computer, Inc.
Pointing to these two registrations, applicant argues that "Apple
Computer sells its MAC computers in the marketplace and owns an
incontestable registration thereof," concluding that "[i]f this
doesn't prove that registrant's mark is weak, applicant does not
know what other proof is necessary."
It is true that marks must be considered in their entireties
However, it is well settled that "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 consideration of the marks in their
entireties." See In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
When registrant's mark MAC and applicant's mark MACS
MILITARY ACCESS CONTROL SYSTEM and design are compared in their
entireties, giving appropriate weight to the features thereof, we
find that the marks are very similar in meaning and in their
overall commercial impression, and that these similarities
outweigh the differences in the marks.
Registrant's entire mark is the word MAC. The virtually
identical term, MACS, is visually and aurally the most
significant portion of applicant's mark, and it is this portion
of the mark that conveys the strongest impression. While the
disclaimed and descriptive wording, "MILITARY ACCESS CONTROL
Serial No. 76442570
5
SYSTEM," is not ignored, the fact is, that the purchasing public
is more likely to rely on the nondescriptive portion of the mark,
"MACS," as an indication of source. We also note that the
disclaimed wording also appears in much smaller lettering than
"MACS" and on a separate line. In addition, it is the word
"MACS," itself, rather than the particular display of that word,
that is more likely to have a greater impact on purchasers and be
remembered by them. The word portion of a composite word and
design mark is generally accorded greater weight because it would
be used to request the goods. See In re Appetito Provisions Co.,
3 USPQ2d 1553 (TTAB 1987).
As to the meaning of the marks, both "MAC" and "MACS" appear
to be arbitrary terms in relation to the identified goods. In
applicant's mark, the term "MACS" is clearly an acronym for
"military access control system" but, like MAC in registrant's
mark, the term has no intrinsic meaning in relation to the goods.
Applicant's contention that MAC is weak and entitled to only
a narrow scope of protection is unsupported. There is no
evidence that "MAC" is in common use. Third-party registrations
are not evidence that the marks therein are in use. See AMF Inc.
v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268
(CCPA 1973).
Moreover, although third-party registrations can be used to
show that a commonly registered term has a suggestive or
Serial No. 76442570
6
recognized meaning in a particular field, there is no such
evidence here. First, third-party registrations of "MAC" or
"MACS" for goods in unrelated fields are irrelevant. Further,
the existence of four third-party registrations, two of which are
owned by the same entity, hardly constitutes "widespread
registration" of "MAC" for computer hardware and software and
fails to show any suggestive or commonly understood meaning of
"MAC" in the computer field. We also note that the computer
goods listed in those registrations are used for entirely
different purposes than the goods in the cited registration. The
evidence does not convince us that MAC is anything other than an
arbitrary mark for registrant's goods, or that it is entitled to
anything less than a normal scope of protection.
We turn then to a consideration of the goods. Applicant
contends that the goods are not similar, arguing that its
computer software is for access control specifically directed to
military installations whereas registrant's goods are essentially
hardware for monitoring security of predetermined areas.
Applicant also contends that the channels of trade are different,
reasoning that applicant's goods are for use in military
installation areas and must pass GSA scrutiny, while registrant's
mark is used to monitor the security of any location. In
addition, applicant maintains that registrant's goods would be
directed to the general public whereas applicant's software is
Serial No. 76442570
7
directed to military installations who are sophisticated
purchasers.
It is well settled that goods need not be similar or
competitive in nature to support a finding of likelihood of
confusion. The question is not whether purchasers can
differentiate the goods themselves, but rather whether purchasers
are likely to confuse the source of the goods. See Helene Curtis
Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989).
Thus, it is sufficient if the respective goods are related in
some manner and/or that the conditions surrounding their
marketing are such that they would be encountered by the same
persons under circumstances that could, because of the similarity
of the marks used thereon, give rise to the mistaken belief that
they emanate from or are associated with, the same source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Notwithstanding the differences in these goods, applicant's
security access control software for military installations, on
the one hand, and registrant’s security access control systems,
comprising a microprocessor controller and magnetic strip card
readers for monitoring security, on the other, are inherently
related goods. Applicant's software and registrant's hardware
are used for the same ultimate purpose. They operate together as
complementary parts of an electronic security access system.
Serial No. 76442570
8
We also note that the examining attorney has submitted
several use-based, third-party registrations showing that the
same mark has been registered for microprocessors and software in
various specialized fields. While not evidence of use of the
marks, the third-party-registrations have probative value to the
extent that they suggest that the respective goods herein are of
a type which may emanate from the same source.4 See, e.g., In re
Albert Trostel & Sons Co., supra; and In re Mucky Duck Mustard
Co., 6 USPQ2d 1467 (TTAB 1988).
Applicant's contention that the channels of trade and
purchasers for the respective goods are different is not
persuasive. We must consider the issue of likelihood of
confusion in the context of the identifications of goods in the
respective application and registration, and in the absence of
specific limitations, on the basis of all of the usual purchasers
and channels of trade for the respective goods. Canadian

4 Applicant argues that "while some computer hardware manufacturers do
list software,...most software manufacturers do not list hardware or
microprocessors with their software." Applicant conducted a search of
the Office electronic records showing, as described by applicant, that
there are over 1700 applications and registrations for "microprocessor"
that do not include software in the identification of goods, and
thousands of records for software that do not include "microprocessor,"
but only 730 records that include both goods. There are a number of
problems with applicant's contention and the evidence used to support
it, not the least of which is that a search conducted in the goods and
services field for the singular form of the term "microprocessor" would
not have retrieved the plural form of that word or other relevant
variations such as "microprocessing equipment" or "micro processors" as
separate terms. In any event, this evidence, to the extent it is
probative of anything, suggests that it is not uncommon for entities to
adopt a single mark for both products.
Serial No. 76442570
9
Imperial Bank of Commerce v. Wells Fargo Bank, N.A., 811 F.2d
1490, 1493, 1 USPQ2d 1813 (Fed. Cir. 1987); and CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983). There are
no limitations as to the channels of trade or classes of
purchasers in registrant's identification of goods. Therefore,
we must presume that registrant's MAC security system would be
available to all types of establishments and facilities,
including the military installations where applicant's goods are
used, and it is reasonable to assume that the same individuals
would make the purchasing decisions concerning both products.
Moreover, the fact that such purchasers would be
sophisticated and knowledgeable about those products does not
compel a finding that there is no likelihood of confusion. Even
sophisticated persons would be susceptible to source confusion,
particularly under circumstances where, as here, the goods are
closely related and are sold under similar marks. See Wincharger
Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA
1962). See also In re Pellerin Milnor Corporation, 221 USPQ
558 (TTAB 1983).
Decision: The refusal to register is affirmed.