Berry Plastics Corporation

Trademark Trial and Appeal Board

Jul 24, 2018

No. 87132281 (T.T.A.B. Jul. 24, 2018)

Mailed: July 24, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board
————
In re Berry Plastics Corporation
————
Serial No. 87132281
————
Mark J. Nahnsen and Monica J. Stover of Barnes & Thornburg LLP,
for Berry Plastics Corporation.
Steven W. Ferrell, Jr., Trademark Examining Attorney, Law Office 121,
Kevin Mittler, Managing Attorney.
————
Before Taylor, Gorowitz and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Berry Plastics Corporation (“Applicant”) seeks registration on the Principal
Register of the standard character mark OPTICLEAR for “Plastic shrink packaging
film for industrial and commercial packaging” in International Class 16.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of

1 Application Serial No. 87132281, filed on August 9, 2016, based on an allegation of a bona
fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87132281
2
likelihood of confusion with the following two registered marks owned by different
Registrants:
1. OPTICLEAR (in typeset format2) for “pressure sensitive adhesive
labelling film” in International Class 17;3 and
2. OPTI CLEAR (in typeset format; CLEAR disclaimed) for
“transparent heat activated plastic film in sheet, roll and pouch form
for use in encapsulating and laminating documents, photographs
and others flat substrates” in International Class 17.4
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.5
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are 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

2 Prior to November 2, 2003, “standard character” drawings were known as “typed” or
“typeset” drawings. A typed or typeset mark is the legal equivalent of a standard character
mark. See TRADEMARK MANUEL OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (October
2017).
3 Registration No. 1910059, issued on August 8, 1995; renewed.
4 Registration No. 2339758, issued on April 4, 2000; renewed.
5 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations
reference the docket and electronic file database for Application Serial No. 87132281. All
citations to the TSDR database are to the downloadable .PDF version of the documents.
Serial No. 87132281
3
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, 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.”).
A. Similarities of the Marks
We initially address 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 Imps., 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 not a side-by-side comparison of the marks, but
instead 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 [owners].” Coach Servs. Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted).
Applicant’s mark is OPTICLEAR. The registered marks are OPTICLEAR and
OPTI CLEAR. Applicant’s mark is identical to one of the cited marks and virtually
identical to the other. With respect to the cited mark OPTI CLEAR, the only
difference between this mark and Applicant’s mark is the space between the term
OPTI and CLEAR. The space does not significantly distinguish the mark OPTI
CLEAR from Applicant’s mark. See, e.g., Mini Melts, Inc. v. Reckitt Benckiser LLC,
118 USPQ2d 1464, 1470 (TTAB 2016) (“The absence of a space in Applicant's mark
MINIMELTS does not meaningfully distinguish it from Opposer's mark [MINI
Serial No. 87132281
4
MELTS].”); Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (1984) (“the
marks [SEA GUARD and SEAGUARD] are, in contemplation of law, identical”); In
re Best Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984)
(BEEFMASTER and BEEF MASTER “are practically identical”); Stockpot, Inc. v.
Stock Pot Restaurant, Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222
USPQ 665 (Fed. Cir. 1984) (The presence or absence of a space between virtually the
same words, e.g., STOCKPOT and STOCK POT, is not a significant difference).
Because Applicant’s mark is identical or virtually identical to the cited marks, the
marks at issue are clearly substantially similar, if not identical, in sound,
appearance, connotation and commercial impression.
The first du Pont factor therefore strongly supports a conclusion that confusion is
likely.
B. Strength of the Cited Marks
Applicant argues that the term “OPTI” is diluted in the “plastic films” field and
that the word CLEAR is highly suggestive of the subject goods, thereby limiting the
scope of protection to which the cited marks are entitled and reducing any likelihood
of confusion with respect to Applicant’s mark for its identified goods.6 In support of
its position, Applicant submitted copies of third-party registrations containing the
term OPTI alone and in combination with other wording, as well as copies of pending
third-party applications for the same.7

6 Applicant’s Appeal Brief, pp. 10-19; 9 TTABVUE 16-25.
7 November 15, 2017 Request for Reconsideration; TSDR, pp. 35-245.
Serial No. 87132281
5
The Federal Circuit has stated that evidence of the extensive registration and use
of a term by others can be “powerful” evidence of weakness. Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Moreover, under the sixth
du Pont factor, we must consider evidence of “[t]he number and nature of similar
marks in use on similar goods.” du Pont, 177 USPQ at 567. This is sometimes referred
to as market or commercial strength, referring to consumers’ association between a
mark and the source of the goods. See In re Chippendales USA, Inc., 622 F.3d 1346,
96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its
conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d
1458, 1476 (TTAB 2014); Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881
(TTAB 2006).
We initially note that Applicant did not submit any evidence of third-party use or
any third-party registrations of either the designation OPTICLEAR or OPTI CLEAR
for goods similar to those at issue. Instead, Applicant submitted only third-party
registrations for OPTI-formative marks. Many of these third-party registrations,
however, concern goods wholly unrelated to the goods at issue and, therefore, are not
probative in our analysis regarding the strength or weakness of the cited marks. In
re Melville Corp., 18 USPQ2d 1386, 1388-89 (TTAB 1991) (“Registrations for goods
unrelated to the clothing field are irrelevant to our discussion”); SBS Prods. Inc. v.
Serial No. 87132281
6
Sterling Plastic & Rubber Prods. Inc., 8 USPQ2d 1147, 1149 n.6 (TTAB 1988) (“[E]ven
if evidence of such third-party use were submitted, it would be of no aid to respondent
herein where the third-party usage was for goods unrelated to either petitioner's skin
care products or respondent's stuffing box sealant”); Anderson, Clayton & Co. v.
Christie Food Prods. Inc., 4 USPQ2d 1555, 1557 n.7 (TTAB 1987) (“The other third-
party registrations relating to marks in unrelated fields are of no probative value”).
For example, the goods identified in some of the third-party registrations are
identified as:
• (Reg. No. 1618795) for
“Resealable packaging, namely rolls of plastic film
with interlocking closures used to form or used in
the further manufacture of bags or pouches for
packaging food”);
• OPTIA (Reg. No. 4589658) for “Plastic film for block-
ing sunlight; plastic film to prevent glare, glass shat-
ter, scratching and UV light damage; tinted plastic
film for use on windows; plastic sheets to prevent
heat radiation; heat reflective plastic film to be ap-
plied to windows; non-conductive plastic films or
sheets for retaining heat for insulation purposes; ad-
hesive coated plastic sheets for use on glass to pre-
vent glare, shatter, scratching, breakage, UV light
damage, and for heat radiation and insulation pur-
poses.”;

• OPTIBLEND (Reg. No. 4703935) for, among other
unrelated goods, “Rubber films for industry; scrape-
proof protective films, namely, adhesive-backed,
plastic, temporary protective films for use in protect-
ing floors, walls and other surfaces from damage.”;
• OPTICA (Reg. No. 3882601) for, among other
unrelated goods, “Plastic film for use in liquid
crystal displays; plastic film for industrial and
commercial purposes, namely, for use in further
Serial No. 87132281
7
manufacturing of electrical and electronic
products.”;
• OPTI-GRIP (Reg. No. 4983923) for, among other
unrelated goods, “Adhesive tape for installing
flooring, flooring accessories, transition strips, stair
nosings, cove base, stair treads, stair edges,
moldings and trim for industrial or commercial use;
and
• OPTIROID (Reg. No. 1782308) for “Semi-finished
plastic materials, particularly plates and sheets of
plastic materials used for the manufacture of
spectacles and spectacle frames”.
In addition to the third-party registrations, Applicant submitted several
applications. Applications, whether live or abandoned, are not evidence of anything
except for the dates on which they are filed. In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1089 (TTAB 2016); Interpayment Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463,
1467 n.6 (TTAB 2003) (applications are only probative to show that the application
has been filed). It is certainly not evidence of the weakness or usage of the
designations OPTICLEAR or OPTI CLEAR. Thus, we accord the third-party
applications submitted by Applicant little, if any, probative value.
We do note, however, that some of the third-party registrations consisting of
OPTI-formative marks do concern goods that are similar to those at issue. As
example:
• OPTI (Reg. No. 2252312) for “Plastic film for industrial
or commercial wrapping; plastic wrapping film not for
commercial or industrial purposes” in International
Class 16 and “Plastic film for industrial and commercial
packing Use” In International Class 17;

Serial No. 87132281
8
• OPTICITE (Reg. No. 1322151) for “Plastic Films, Useful
as a Label Substrate for Bottles and Cans” in
International Class 17;

• OPTIFLEX (Reg. No. 1747792) for “Imprintable
adhesive-backed films for use in the manufacture of
labels, decals and nameplates:” in International Class
17;

• OPTIMOX (Reg. No. 4102643) for “Plastic films in the
nature of biorented polypropylene film used as an
industrial or commercial packing” in International
Class 17;

• OPTIMUS (Reg. No. 4331379) for, inter alia, “Plastic
film for industrial and commercial packing use” in
International Class 17;

• OPTITECH (Reg. No. 5060223) for “Extruded
polyethylene and ethylene film sheets for use in the
packaging of food and beverages” in International Class
17;

• PRINTOPTICAL (Reg. No. 4446139) for, inter alia,
“Labels for attachment to commercial products for third
parties” in International Class 16; and

• ROLLING OPTICS (Reg. No. 4247822) for, inter alia,
“reflective plastic films” in International Class 17.

While these registrations may demonstrate that the term OPTI is diluted or weak
when used in association with plastic film, labelling and/or packaging products,
Applicant’s mark and the cited marks are comprised of the combination of the term
OPTI and the term CLEAR, a combination absent in all of these marks. As such none
of the third-party marks are as close as are the identical or virtually identical marks
at issue. Accordingly, these third-party registrations do not demonstrate that the
designations OPTICLEAR or OPTI CLEAR are weak or diluted when used in
Serial No. 87132281
9
connection with plastic film, labelling and/or packaging products, nor is there any
other evidence supporting Applicant’s contention that either OPTICLEAR or OPTI
CLEAR is weak or diluted for these goods. Even if there were evidence to demonstrate
that the designations OPTICLEAR or OPTI CLEAR are weak marks, we note that
even weak marks are entitled to protection against registration of a confusingly
similar mark. See Giant Food Inc. v. Rosso and Mastracco, Inc., 218 USPQ 521 (TTAB
1982).
Thus, the sixth du Pont factor regarding the nature and extent of similar marks
on similar goods is neutral.
C. Similarity of the Goods
We next turn to the comparison of the goods, the second du Pont factor, keeping
in mind the greater the degree of similarity between the marks, the lesser the degree
of similarity between the goods necessary to support a finding of likelihood of
confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). In making our
comparison, we consider the goods as identified in Applicant’s application vis-à-vis
the goods identified in the cited registrations See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Hous. Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990); see also Hewlett-Packard Co. v. Packard Press Inc., 281 F.2d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir. 2002). At the outset, we note that the goods in question are not
identical. However, it is not necessary that the goods be identical or even competitive
in nature in order to support a finding of likelihood of confusion, it being sufficient
that the goods are related in some manner and/or that the circumstances surrounding
Serial No. 87132281
10
their marketing [be] such that they would be likely to be encountered by the same
persons under circumstances that would give rise, because of the marks employed
thereon, to the mistaken belief that they emanate from the same source. Coach Servs.,
101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)); see also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289, 1290 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB
1991). Evidence of relatedness may include news articles and/or evidence from
computer databases showing that the relevant goods are used together or used by the
same purchasers; advertisements showing that the relevant goods are advertised
together or offered by the same manufacturer or dealer; and/or copies of prior use-
based registrations of the same mark for both Applicant's goods and the goods listed
in the cited registrations. In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding
pepper sauce and agave related where evidence showed both were used for the same
purpose in the same recipes and thus consumers were likely to purchase the products
at the same time and in the same stores). The issue is not whether purchasers would
confuse the goods, but rather whether there is a likelihood of confusion as to the
source of these goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012);
In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984).
In support of his refusal, the Examining Attorney submitted internet evidence
demonstrating that third parties offer shrink packaging films, labelling films, and
heat activated encapsulating and laminating films under the same mark. The
evidence is comprised of screenshots of the websites of the following companies:
Serial No. 87132281
11
Colorado Label,8 Dunmore, 9 Avery Denison,10 Relm West Labels and Packaging,11
Glenroy Inc.,12 Grafix Plastics,13 Innovia,14 ULine,15 AJM Shrink Wrap and
Laminating Supplies,16 Source One Packaging LLC,17 and the TPG the Packing
Group.18 The Examining Attorney argues that the foregoing evidence establishes that
the goods described in Applicant’s involved application and Registrants’ respective
registrations are related because these goods are complementary in nature in that
they are often made, advertised and sold by the same company to the same
consumers.19
In traversing the refusal, Applicant argues that its identified goods are wholly
unrelated to Registrants’ identified goods in that they serve different purposes. In
support of its argument, Applicant submitted extrinsic evidence in the nature of
purported screenshots of the parties’ respective websites demonstrating how its goods
are used in comparison to how Registrants’ goods are used.20

8 October 25, 2016 Office Action; TSDR, pp. 9-10.
9 Id.; TSDR, pp. 11-13.
10 Id.; TSDR, pp. 14-15.
11 Id.; TSDR, pp. 16-17.
12 May 15, 2017 Final Office Action; TSDR, pp. 9-12.
13 Id., TSDR, p. 13.
14 Id., TSDR, pp. 14-18.
15 Id., TSDR, pp. 19-21.
16 December 5, 2017 Denial of Request for Reconsideration, TSDR, pp. 3-9.
17 Id., TSDR, pp. 10-13.
18 Id., TSDR, pp. 14-18.
19 Trademark Examining Attorney’s Appeal Brief, p. 7, 11 TTABVUE 7.
20 November 15, 2017 Request for Reconsideration, TSDR, pp. 26-28. We note that Applicant
Serial No. 87132281
12
As stated, to determine the relationship between the goods, we are bound by the
identifications in Applicant’s involved application and the cited registrations. In re
Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997)
(“Likelihood of confusion must be determined based on an analysis of the marks as
applied to the … [goods] recited in applicant’s application vis-à-vis the … [goods]
recited in [a] …registration, rather than what the evidence shows the… [goods] to
be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987)). In asserting its argument, Applicant disregards
this requirement by impermissibly relying upon extrinsic evidence to distinguish the
goods at issue. Consequently, we cannot consider extrinsic evidence regarding either
Applicant’s goods or Registrants’ goods or the channels of trade for those goods. In re
Bercut-Vandervoot & Co., 229 USPQ 763, 764 (TTAB 1986) (extrinsic evidence and
argument suggesting trade-channel restrictions not specified in application rejected).
For these reasons, we reject Applicant's arguments.
While we acknowledge that the goods at issue are not identical and that they may
perform somewhat different functions, we nonetheless conclude, based on the third-
party evidence of record submitted by the Examining Attorney, that Applicant’s goods

embedded screenshots from the parties’ respective websites in the body of its request for
reconsideration instead of attaching them as exhibits, and also failed to include the URLs
and the dates on which it accessed the parties’ respective websites, as is required by Board
rules. See Trademark Rule 2.122(e)(2); see also In re I-Coat Co., Inc., 126 USPQ2d 1730, 1733
(TTAB 2018) (“…we will no longer consider Internet evidence filed by an applicant in an ex
parte proceeding to be properly of record unless the URL and access or print date has been
identified, either directly on the webpage itself, or by providing this information in a
response, except where the examining attorney does not object.”). However, since the
Examining Attorney did not object to the admissibility of the evidence on this ground, the
evidence will remain of record.
Serial No. 87132281
13
and Registrants’ goods are related and are the types of goods that have been offered
under a single mark by a single entity such that, when identified by identical or
virtually identical marks, as is the case here, confusion as to source is likely. In re
Shell Oil Co., 922 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“…even when
goods or services are not competitive or intrinsically related, the use of identical
marks can lead to the assumption that there is a common source.”).
Thus, the second du Pont factor favors a finding of likelihood of confusion.
D. Similarities in Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third du
Pont factor. Applicant argues that Applicant and the Registrants are in different
businesses selling wholly distinct goods to significantly different consumers.21
Specifically, Applicant maintains that it is a plastic manufacturer that directs its
OPTICLEAR goods to industrial business entities seeking specialized plastic shrink
packaging film for use in their own industrial and commercial packaging needs.22 In
contrast, Applicant contends that Registrant USI, Inc. offers office and classroom
supply products and laminating film products direct to consumers through its
website, and Registrant Morgan Adhesives Company offers adhesive labelling
products that are used specifically for advertising labels on durable good products.23
Applicant further argues that the channels of marketing and trade for both of the
Registrants’ goods do not flow through or overlap in any way with the industrial and

21 Applicant’s Appeal Brief, p. 19, 9 TTABVUE 25.
22 Id. at p. 20, 9 TTABVUE 26.
23 Id.
Serial No. 87132281
14
commercial shrink packaging industry; rather, Registrants deal exclusively in
labelling and laminating type products for specific use by individual end-consumers
and that the relevant purchasers of Registrants’ goods are individual, end-user
consumers in the retail market.24 Applicant concludes that it is inconceivable that an
end-user retail consumer looking for the adhesive labelling and laminating office
supply type items such as those offered by Registrants is going to encounter, let alone
be confused by, Applicant’s commercial and industrial plastic shrink packaging film
offered specifically to large, professional business entities.25
Again, we cannot look to extrinsic evidence submitted by Applicant to restrict the
channels of trade or classes of purchasers of the parties’ respective goods. See In re
Bercut Vandervoot & Co., supra. Rather, we must deem the goods to travel in all
channels of trade and offered to all classes of purchasers appropriate for such goods.
In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1750 (Fed. Cir. 2017);
Stone Lion Capital, 110 USPQ2d at 1160-61. While we acknowledge that Applicant’s
goods, as set forth in its identification of goods, are directed to industrial and
commercial consumers, the identifications of Registrants’ goods are not so limited
and, therefore, we must assume that Registrants’ goods may also include industrial
and commercial customers. Furthermore, none of the parties’ identifications limit the
trade channels in which their goods are offered and, therefore, we must assume that
they travel in the normal trade channels for such goods. See Coach Servs., 101

24 Id.
25 Id. at pp. 20-21, 9 TTABVUE 26-27.
Serial No. 87132281
15
USPQ2d at 1723 (absent limitation “goods are presumed to travel in all normal
channels ... for the relevant goods.”). The only probative evidence relating to the trade
channels through which the goods at issue travel is the third-party website evidence
submitted by the Examining Attorney discussed above. This evidence shows that
Applicant’s goods and Registrants’ goods may be provided in the same online
marketplace to similar or overlapping purchasers. Therefore the third du Pont factor
also weighs in favor of finding a likelihood of confusion.
E. Sophistication of Consumers
We next consider Applicant's arguments under the fourth du Pont factor: the
conditions under which and buyers to whom sales are made, i.e., “impulse” vs. careful,
sophisticated purchasing. du Pont, 177 USPQ at 567. Applicant argues that
consumers of both Applicant’s and Registrants’ goods are sophisticated, and the goods
are expensive, as they are purchased in large quantities, such that they are not
purchased on impulse but rather only after careful consideration. 26
We find Applicant’s arguments unpersuasive. First, since neither the
identification of goods in Applicant’s application nor the identifications of the cited
registrations include any limitations as to price, we must assume that the listed goods
include ones that are inexpensive and, therefore, subject to casual purchases.
Similarly, none of the identifications are limited to the extent that the goods are only
sold in bulk. We therefore must presume that the goods may also be sold in singular,
individual units.

26 Applicant’s Appeal Brief, pp. 21-22, 9 TTABVUE 27-28.
Serial No. 87132281
16
Furthermore, our precedent requires that we base our decision on the least
sophisticated potential purchasers of the identified goods. Primrose Ret. Cmtys., LLC
v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (citing
Stone Lion Capital, 110 USPQ2d 1157 at 1163). The purchasers of the parties’ goods
may include businesses with plastic film packaging and plastic film labelling needs.
In any event, the fact that purchasers are sophisticated or knowledgeable in a
particular field does not necessarily mean that they are sophisticated or
knowledgeable in the field of trademarks or immune from source confusion. See In re
Cynosure, Inc., 90 USPQ2d 1644 (TTAB 2009). With identical or virtually identical
marks and related goods, even a careful, sophisticated consumer of such goods is not
likely to understand that the goods emanate from different sources, particularly
where, as here, there is evidence that the types of goods offered by both Applicant
and Registrants may emanate from a single source under a single mark. Cunningham
v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000).
This fourth du Pont factor is therefore neutral.
F. Consistency in Examination
Applicant maintains that both of the cited registrations are active on the Principal
Register and that their registration demonstrates that there is no basis for the
disparate and inconsistent treatment of Applicant's application for its OPTICLEAR
mark.27 Although the United States Patent and Trademark Office strives for
consistency, each application must be examined on its own merits. Neither the

27 Id. at p. 19; 9 TTABVUE 25.
Serial No. 87132281
17
Examining Attorney nor the Board is bound to approve for registration an applicant's
mark based solely upon the registration of other assertedly similar marks having
unique evidentiary records. In re Boulevard Entm’t Inc., 333 F.3d 1336, 67 USPQ2d
1475, 1480 (Fed. Cir. 2003) (“the PTO must decide each application on its own merits,
and decisions regarding other registrations do not bind either the agency or this
court.”) (citing In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001)); see also In re Int’l Taste Inc., 53 USPQ2d 1604, 1606 (TTAB 2000). Here,
for the reasons explained, the record clearly supports affirming the refusal.
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Because we have
found that the marks at issue are either identical or virtually identical; that
Applicant’s identified goods are related to Registrants’ goods and move in similar or
overlapping trade channels; and that they would be offered to the same or similar
classes of purchasers; we conclude that Applicant’s OPTICLEAR mark, as used in
connection with the goods identified in its involved application, so resembles the cited
marks OPTICLEAR and OPTI CLEAR as to be likely to cause confusion or mistake,
or to deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s OPTICLEAR mark under Section
2(d) of the Trademark Act is affirmed.