Bose Corp.v.QSC Audio Products, Inc.

Trademark Trial and Appeal Board

Nov 16, 2000

No. 91109664 (T.T.A.B. Nov. 16, 2000)

Hearing:
May 3, 2000
Paper No. 30
CEW
11/16/00
UNITED STATES PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Bose Corporation
v.
QSC Audio Products, Inc.
_______
Opposition No. 109,664
to Application No. 75/143,984
filed on August 2, 1996
_______
Charles Hieken and Cynthia E. Johnson of Fish & Richardson
for opposer.
Alice D. Leiner and Barry J. Reingold of Perkins Coie for
applicant.
_______
Before Hanak, Quinn and Walters, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Bose Corporation filed its opposition to the
application of QSC Audio Products, Inc. to register the
mark POWERWAVE for “electronic audio and video signal
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Opposition No. 109,664
2
processing equipment, namely, amplifiers and power
amplifiers,” in International Class 9.1
As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s goods, so
resembles opposer’s previously used and registered marks
WAVE and ACOUSTIC WAVE for various goods, as indicated
below, as to be likely to cause confusion, under Section
2(d) of the Trademark Act.
for “radios, clock radios, audio tape recorders
and players, portable radio and cassette recorder
combinations, compact stereo systems and portable
compact disc players.”2
The mark, ACOUSTIC WAVE, for “loudspeaker systems
and music systems consisting of a loudspeaker
system and amplifier and at least one of a radio

1 Application Serial No. 75/143,984, filed August 2, 1996, based upon
use of the mark in commerce, alleging dates of first use and first use
in commerce as of November 11, 1994.
2 Registration No. 1,633,789, issued February 5, 1991, in International
Class 9. Sections 8 and 15 affidavits accepted and acknowledged,
respectively.
Opposition No. 109,664
3
tuner, compact disc player and audio tape
cassette player”3; and for “loudspeaker systems.”4
Applicant, in its answer, denies the salient
allegations of the claim and asserts affirmatively that
“wave” is a generic term in the audio industry5; that there
is no likelihood of confusion because the parties’
respective goods are sold to different purchasers through
different channels of trade, that purchasers of applicant’s
goods are sophisticated users of audio equipment, that the
goods differ in price and application, and that applicant’s
mark is used in connection with the technology used on the
goods and not as the name of the goods.
The Record
The record consists of the pleadings; the file of the
involved application; certified status and title copies of
opposer’s pleaded registrations, made of record by
opposer’s notice of reliance; excerpts from various
directories and phone books, made of record by applicant's

3 Registration No. 1,764,183, issued April 13, 1993, in International
Class 9. Sections 8 and 15 affidavits accepted and acknowledged,
respectively.
4 Registration No. 1,338,571, issued May 28, 1985, in International
Class 9. Section 8 affidavit accepted.
5 The Board, in its order of June 16, 1999, denied applicant’s motion to
amend its answer to assert a counterclaim to cancel two of opposer’s
three pleaded registrations. In view thereof, we have considered
applicant’s affirmative statement that “wave” is generic as merely
addressing the issue of the strength of opposer’s marks, rather than as
a collateral attack on any of opposer’s pleaded registrations. The
Board also noted and entered the parties’ stipulated protective order.
Opposition No. 109,664
4
notice of reliance; the testimony deposition by opposer of
Stephen Kingbury, opposer’s direct marketing general
manager, with accompanying exhibits; and the testimony
depositions by applicant of Peter Kalmen, applicant’s
director of sales and marketing; Kenneth D. Jacob,
opposer’s professional systems general manager; and Timothy
Dorwart, opposer’s director of sales and marketing for
professional products, all with accompanying exhibits.
Both parties filed briefs on the case6 and an oral hearing
was held.
As a preliminary matter, we note opposer’s objection
to Kalmen Testimony Exhibits 52 and 53, which are
TrademarkScan trademark search reports. The testimony of
Mr. Kalmen adequately establishes the foundation for the
admissibility of this evidence.7 However, having said this,
these trademark search reports by a private third party are
of little, if any, persuasive value in this case. Exhibit
52 consists solely of a list of alleged registered marks
from which we can draw no conclusions. Exhibit 53 consists

6 Applicant originally filed its entire brief under seal. However,
following opposer’s objection and a discussion at the oral hearing,
applicant filed a redacted copy of its brief.
7 Opposer’s contention that this is inadmissable because it was not
produced during discovery is not well taken. Opposer has not pointed
to any specific discovery request to which applicant did not respond.
Further, Mr. Kalmen testified that the search was done “recently” in
relation to his testimony and, thus, it is likely that it was produced
within a reasonable period of time thereafter.
Opposition No. 109,664
5
of information regarding alleged pending trademark
applications and existing registrations. It is well
established that third-party registrations may not be made
of record merely be submission of information from a third-
party database. See Weyerhaeuser Co. v. Katz, 24 USPQ2d
1230 (TTAB 1992); and Trademark Trial and Appeal Board
Manual of Procedure (TMBP), Section 703.02(b). The
existence of third-party applications, even if properly
established, which they are not, is of little evidentiary
value.
Opposer “notes” that applicant failed to state the
purpose for which its materials were submitted under Notice
of Reliance. However, opposer has not objected to this
evidence and we consider the evidence to be properly of
record. We address the persuasiveness of this evidence in
our analysis.
The Parties
Opposer8 is a manufacturer of electronic audio products
that it sells directly to relevant consumers in the home

8 Opposer’s founder, Dr. Amar Bose, conducts research at the
Massachussets Institute of Technology in physical acoustics and
psychoacoustics, and holds patents in the field of acoustics.
(Opposer’s Exhibit 3D.) In being awarded the Inventor of the Year
Award in 1987 by Intellectual Property Owners, Inc., Dr. Bose’s
accomplishments are described, in part, as follows (Opposer’s Exhibit
5):
Amar G. Bose and William R. Short were granted a patent in
1986 for a loudspeaker system that employs a vibrating cone
Opposition No. 109,664
6
audio market and through its dealers in the professional
audio market. Opposer’s products are sold under the mark
BOSE along with a product or series mark. In the consumer
audio market, opposer uses, among other marks, the mark
ACOUSTIC WAVE on the “Acoustic Wave Music System” (“AWMS”),
a compact home audio system, and the mark WAVE on the
“Wave” radio, which may or may not also contain a CD
player.9 Mr. Dalwart testified that opposer manufactures
and sells power amplifiers only to the professional market;
and that neither the WAVE mark nor the ACOUSTIC WAVE mark
is used in connection with these products.
Opposer’s witness, Mr. Kingsbury, describes the
“Acoustic Wave Music System” (“AWMS”) as “an electronic
audio product that includes a power amplifier.” The
evidence establishes that the ACOUSTIC WAVE mark has been
in use on the AWMS compact home audio system since 1984;
that the AWMS sells for approximately $1000; that the AWMS

located inside an acoustic wave guide. The basis of the
new technology is a concept involving controlled
interaction of acoustical waves with moving surfaces … .
9 Opposer introduced evidence regarding its use, in the professional
audio market, of the mark ACOUSTIC WAVE CANNON on a bass speaker.
ACOUSTIC WAVE CANNON is a distinctly different mark than either WAVE or
ACOUSTIC WAVE. Opposer did not plead the use of the mark ACOUSTIC WAVE
CANNON in its notice of opposition, nor does the record indicate that
the issue of likelihood of confusion with respect to this mark has been
tried by the express or implicit consent of the parties. Thus, we have
considered this evidence for the limited purpose of establishing that
opposer does sell products in the professional audio market, but not
that it uses either of the marks in the pleaded registrations in this
market.
Opposition No. 109,664
7
is “based on wave technology”; and that the AWMS may be
used also as a portable public address system. (Opposer’s
Exhibit 4C.) One article (Opposer’s Exhibit 3B) states
that “the [AWMS] design and technology is based on a new
concept involving controlled interaction of acoustical
waves with moving surfaces.” Mr. Kingsbury testified that
opposer’s annual sales of its AWMS total more than $50
million; and that its AWMS annual advertising expenses
total more than $5 million. The ACOUSTIC WAVE mark appears
on the product and its packaging along with opposer’s BOSE
mark.
Similarly, opposer describes its “Wave” radio as “an
electronic audio product that includes a power amplifier.”
It is, essentially, a radio or radio with CD player, both
for home use, that sells for approximately $300-$500. The
mark WAVE has been in use in connection therewith since
1993. Mr. Kingsbury testified that opposer’s annual sales
of its Wave radio products are more than $100 million, with
total sales since 1993 of more than $250 million; and that
opposer’s annual advertising expenses for its Wave radio
products are more than $30 million, with advertising
expenses since 1993 for this product totaling more than $60
million.
Opposition No. 109,664
8
Applicant is a manufacturer of audio products,
principally power amplifiers, exclusively for the
professional audio market. Applicant has used its
POWERWAVE mark since November 11, 1994 on its “Powerlight,”
“PLX,” “CX,” and “DCA” series of amplifiers and power
amplifiers, which constitute 30% of applicant’s total
sales. Applicant uses the term “PowerWave Technology” in
connection with the switching power supply technology in
these series of amplifiers and power amplifiers.
Applicant’s witness, Mr. Kalmen, distinguished applicant’s
amplifiers for professional use from those for consumer use
stating that applicant’s amplifiers are too powerful to use
with a consumer audio system, require different types of
connectors, and have fans, which are considered too noisy
for consumer systems.
The cost to the end user of a POWERWAVE amplifier or
power amplifier is between $900 and $5,000. Applicant
sells its products through sales representatives and
contractors who are audio professionals. Because the
information has been submitted as confidential, we will
state only that applicant’s sales of its POWERWAVE
products, and its advertising in connection therewith, are
significant. Mr. Dorwart, opposer’s director of sales and
marketing for professional products, testified that he is
Opposition No. 109,664
9
familiar with applicant and its products and that
applicant’s reputation is as a manufacturer of good
quality, moderately-priced power amplifiers.
Both parties agree, essentially, on the elements
distinguishing the consumer audio market from the
professional audio market. The consumer audio market
consists principally of compact audio systems and audio
components sold to consumers for home or office use.
The professional audio market mainly provides audio
systems for stadiums, arenas, movie theaters, and other
large spaces. Opposer’s witness opined that the
professional market may include, or could include, systems
or components sold to recording artists, DJ’s, professional
musicians, and other music afficionados.
The evidence indicates that a professional audio
dealer or contractor will usually design a complete audio
system to permanently install in a new space under
construction or to retrofit an existing space. The
purchasing decision is made, usually after substantial
consultation, by the architect or engineer responsible for
that aspect of the project, or by the person within an
organization responsible for such a purchase.
Advertising in this market is aimed at audio
professionals through direct contact, trade shows and trade
Opposition No. 109,664
10
journals. Mr. Dorwart testified that opposer advertises
the concept of a custom sound solution, rather than
advertising individual components. Mr. Dorwart testified
that the design and installation of a custom professional
audio system by opposer averages from one year to eighteen
months, but can take as little as four months or as long as
four years. Mr. Dorwart testified that, for opposer, the
cost of the design portion ranges from $3,000 - $5,000 for
smaller venues, such as stores and restaurants, to $30,000
- $40,000 for large venues, such as stadiums and arenas.
The cost of the equipment and installation ranges from
$8,000 - $20,000 for small venues to $30,000 - $2 million
for large venues. Mr. Dorwart stated that, for North
America, opposer averages more than 1,000 contracts per
year for smaller venues and approximately fifteen to twenty
contracts per year for large venues.
Analysis
Inasmuch as certified copies of opposer’s
registrations are of record, there is no issue with respect
to opposer’s priority. King Candy Co., Inc. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA
1974).
Our determination of likelihood of confusion under
Section 2(d) must be based on an analysis of all of the
Opposition No. 109,664
11
probative facts in evidence that are relevant to the
factors bearing on the likelihood of confusion issue. In
re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973). Key considerations in this case are
whether and to what extent opposer’s marks are famous; and
the similarities and dissimilarities between the marks, the
goods, the channels of trade, and the class of purchasers.10
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976); and In re Azteca
Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999)
and the cases cited therein.
First, we consider opposer’s contention that its
pleaded marks are famous and entitled to a broad scope of
protection. Applicant concedes that opposer’s house mark,
BOSE, is famous, but argues that opposer’s WAVE and
ACOUSTIC WAVE marks are not famous. Opposer has introduced
no direct evidence of the alleged fame of these marks among
relevant consumers.11 Opposer’s only evidence in support of
its contention is sales and advertising figures in
connection with its WAVE and ACOUSTIC WAVE products.

10 Although applicant argues that lack of actual confusion is a
significant factor, we find little evidence in the record regarding the
opportunities for confusion to occur. Thus, we find this factor of
little persuasive value.
11 This statement is not meant to imply that direct evidence, such as
surveys, is required in order to determine whether a mark is famous.
Opposition No. 109,664
12
Opposer’s evidence indicates that it uses its BOSE mark in
connection with its various trademarks on its products.
The evidence includes a fair number of individual ads
wherein the mark BOSE also appears. Absent additional
evidence regarding the nature and extent of promotion or
consumer perception of the marks WAVE and ACOUSTIC WAVE
apart from the admittedly famous BOSE mark, we cannot
conclude that this evidence establishes the fame of these
pleaded marks. Nor is there evidence placing the sales and
advertising figures in any content from which to determine
how substantial the figures are for these types of
products. We conclude that opposer has not established
that its WAVE and ACOUSTIC WAVE marks are famous.
We consider, next, the goods of the parties.
Applicant’s identified goods are amplifiers and power
amplifiers – products that are components of an audio or
video system. On the other hand, opposer’s identified
goods are complete audio systems of one type or another,
rather than individual components of such systems.
Opposer’s WAVE mark is used and registered in connection
with various small audio electronics, ranging from radios
to compact stereo systems; and opposer’s ACOUSTIC WAVE mark
is used and registered in connection with loudspeaker
Opposition No. 109,664
13
systems12 and with a music system that includes an
amplifier. Opposer’s goods are not, however, amplifiers.13
Clearly, the parties’ goods are not the same. The
question is, rather, to what extent, if any, are the goods
related or of such a nature that, if identified by
confusingly similar marks, relevant consumers would believe
the parties’ goods come from the same source. The mere
fact that both parties’ goods may be considered part of the
general category of audio electronic products is
insufficient to warrant the conclusion that the goods are
so related.
Opposer argues, essentially, that since at least one
of its identified goods contains an amplifier and
applicant’s goods consist of amplifiers, the parties’ goods
are related. However, even with respect to opposer’s
ACOUSTIC WAVE Music System, the only product that is stated
to contain an amplifier, there is no indication that
consumers would be aware of the individual components
within the system. Nor is there evidence regarding whether
consumers would believe that loudspeaker systems or other

12 It is unclear whether opposer’s “loudspeaker systems” are complete
audio systems or components as there is very little evidence in the
record about these goods.
13 While opposer’s evidence indicates that opposer may sell amplifiers
as a separate audio component, it is clear that such goods are not
identified by either the WAVE or ACOUSTIC WAVE trademark.
Opposition No. 109,664
14
audio systems would originate from, or be sponsored by, the
same sources as audio components, such as amplifiers, if
identified by confusingly similar marks.
Thus, we conclude that the evidence is insufficient to
establish whether, or to what extent, any relationship
exists between the parties’ goods. Opposer has not
established a sufficient relationship between its goods and
applicant’s identified goods to warrant the conclusion
that, if registered in connection with confusingly similar
marks, there would be a likelihood of confusion as to
source or sponsorship.
We note that, regarding channels of trade, applicant
has argued that applicant presently sells it goods entirely
to the professional audio market; that products in this
market are very expensive, and are bought by knowledgeable
and sophisticated purchasers after careful consideration;
and that opposer’s products identified by the WAVE and
ACOUSTIC WAVE marks are sold entirely to the consumer audio
market. However, applicant’s argument is not well taken.
We must determine the issue of likelihood of confusion
based on the goods identified in the application. Both
opposer’s and applicant’s identifications of goods are
broadly worded, without any limitations as to channels of
trade or classes of purchasers. We must presume that the
Opposition No. 109,664
15
goods of applicant and opposer are sold in all of the
normal channels of trade to all of the usual purchasers for
goods and services of the type identified. See Canadian
Imperial Bank v. Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813
(Fed. Cir. 1987). In other words, because the evidence
establishes that amplifiers are audio components that are
sold in the professional audio market as well as in the
consumer audio market, albeit different models with
different specifications, we must conclude that applicant’s
goods encompass amplifiers and power amplifiers for both
the consumer and professional audio markets.
Turning to the marks, there is no question that, as
opposer argues, applicant’s mark, POWERWAVE, encompasses
opposer’s WAVE mark in its entirety and shares the WAVE
portion of opposer’s ACOUSTIC WAVE mark. However, our
inquiry does not end here.
Applicant contends that the marks are not confusingly
similar because their only common component is the
allegedly highly suggestive term “wave.” In this regard,
it is clear from the testimony of Mr. Kalmen, Mr. Kingsbury
and Mr. Dorwart that the term “acoustic wave” indicates a
“sound wave.” We take judicial notice of the definitions
of “acoustic” as “of or relating to sound or sound waves”
and of “wave” as “a rolling or undulating movement or one
Opposition No. 109,664
16
of a series of such movements passing along a surface or
through the air” and as “a radio wave.”14
Applicant submitted, under notice of reliance,
classified pages excerpts from various telephone books that
list, under “electronics” and “communications” headings,
company names that include the term “wave.”15 Although this
is only minimal evidence of the use of these company names,
and is not indicative of the extent of use, it is evidence
that consumers are likely to be familiar with the
appearance of the term “wave” in connection with
communications companies and electronics companies.
While we must base our consideration of the marks on a
comparison of the marks in their entireties, we are guided,
equally, by the well established principle that, in
articulating reasons for reaching a conclusion on the issue
of confusion, “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

14 Webster’s Third New International Dictionary, unabridged (1993).
15 We have previously discounted the value of the trademark search
reports submitted in connection with Mr. Kalmen’s testimony.
Applicant’s notice of reliance also includes excerpts from a Dunn and
Bradstreet Electronic Business Directory. Such evidence is not
adequate to show use of any mark listed therein. Tiffany & Co. v.
Classic Motor Carriages Inc., 10 USPQ2d 1835, 1839 at n. 5 (TTAB 1989).
Opposition No. 109,664
17
entireties.” In re National Data Corp., 732 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
Opposer’s mark WAVE for the identified goods can be
considered a double entendre suggesting both sound waves
and radio waves. Opposer’s mark ACOUSTIC WAVE, as it is
used to identify opposer’s “Acoustic Wave Music System” and
in connection with the goods identified in the pleaded
registration, is suggestive of sound waves. Opposer does
not argue otherwise. In fact, in view of opposer’s
advertising that touts its research in the field of
acoustics and its unique “wave technology,” we find
opposer’s marks to be highly suggestive in connection with
the respectively identified goods.
In view thereof, we find that the term POWER in
applicant’s mark, POWERWAVE, while also suggestive of
applicant’s goods, leads to a different connotation, as
well as a different appearance, than either of opposer’s
marks. This difference is sufficient to create a
distinctly different commercial impression than either of
opposer’s marks, when the parties’ marks are considered in
their entireties in connection with the respective goods.
In conclusion, opposer has not met its burden of proof
in showing that confusion is likely. In considering the
relevant factors determinative of likelihood of confusion,
Opposition No. 109,664
18
the differences between the parties marks and their
respective goods are sufficient to avoid a likelihood of
confusion. Based on the record before us, we see the
likelihood of confusion claim asserted by opposer as
amounting to only a speculative, theoretical possibility.
Decision: The opposition is dismissed.
E. W. Hanak
T. J. Quinn
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board