Chief Manufacturing Inc.

Trademark Trial and Appeal Board

Feb 1, 2008

No. 78634889 (T.T.A.B. Feb. 1, 2008)

Mailed:
February 1, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Chief Manufacturing Inc.
________

Serial No. 78634889
_______

Kyle T. Peterson of Patterson, Thuente, Skaar & Christensen
for Chief Manufacturing Inc.

Tracy Whittaker-Brown, Trademark Examining Attorney, Law
Office 111 (Craig D. Taylor, Managing Attorney).
_______

Before Bucher, Zervas and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On May 23, 2005, Chief Manufacturing Inc. filed an
intent to use application for the mark FUSION, in standard
character format, for goods ultimately identified as
“mechanical mounting systems, namely, mounting racks,
stands, tables and carts for liquid crystal displays,
plasma displays, and cathode ray tube displays, all for
industrial and commercial use,” in Class 9 (Serial No.
78634889). The Trademark Examining Attorney finally
refused registration under Section 2(d) of the Trademark
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78634889
2
Act of 1946, 15 U.S.C. §1052(d), on the ground that FUSION,
when used in connection with applicant’s goods, so
resembles FUSION, in typed drawing form (now known as
standard character format), for the goods set forth below,
as to be likely to cause confusion.1
Audio equipment and video equipment,
and components for audio and video
equipment, namely, amplifiers,
equalizers, radio tuners, audio tape
recorders and players, audio compact
disc recorders and players, speakers,
woofers, audio monitor speakers, LCD
display panels, television tuners,
video tape recorders and players, video
disc recorders and players, video
monitors, video screens, speaker
enclosures and grills, audio and video
cables, headphones; GPS receivers,
radio transmitters, batteries, battery
cables, capacitors, battery terminals,
fuse blocks, headphones, electronic
games, cables, connectors, terminal
blocks, gauges, radar detectors,
pagers, security alarms, alarm sirens,
in Class 9.

Our determination of likelihood of confusion 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 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,

1 Registration No. 3013514, issued November 8, 2005.
Serial No. 78634889
3
1203 (Fed. Cir. 2003); In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In any
likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities
between the goods. See Federated Foods, Inc. v. Fort
Howard 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. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. In re E. I. du Pont De Nemours &
Co., supra. In a particular case, any one of these means
of comparison may be critical in finding the marks to be
similar. In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB
1988). See also, In re White Swan Ltd., 9 USPQ2d 1534,
1535 (TTAB 1988). In this case, the marks are identical.
Despite the identity of the marks, applicant argues
that FUSION engenders a different commercial impression
when applied to mounting systems and to audio and video
Serial No. 78634889
4
equipment. According to applicant, when FUSION is used in
connection with mounting systems it is “highly descriptive”
because it conveys the impression of support provided by
the mounting systems and thereby “a union of different
elements.”2 On the other hand, applicant contends that when
FUSION is used in connection with audio and video
equipment, it suggests “well-engineered, state-of-the-art
equipment or components” or “advanced technology and an
association with music.”3 We are not persuaded by
applicant’s analysis. First, there is no objective
evidence supporting applicant’s contention. Second, the
alternative meanings of the word “fusion” could equally
apply to either product (e.g., when applied to mounting
systems, FUSION could engender the commercial impression of
well-engineered equipment, and when applied to audio and
video equipment, FUSION could engender the commercial
impression of a union of different elements to create a
desirable product).
Applicant also argues that FUSION is a weak mark
entitled to only a narrow scope of protection or
exclusivity of use. In support of this argument, applicant
contends that “there are over 100 registered or pending

2 Applicant’s Brief, pp. 6-7.
3 Applicant’s Brief, p. 7.
Serial No. 78634889
5
marks contain the word FUSION in International Class 9.”4
In its brief, applicant listed twelve such FUSION marks.
However, applicant did not submit copies of any third-party
FUSION registrations. Because the Board does not take
judicial notice of registrations, and because the
submission of a list of registrations is not sufficient to
make them of record, we cannot give applicant’s argument
any consideration. In re Delbar Products, Inc., 217 USPQ
859, 861 (TTAB 1981); In re Duofold Inc., 184 USPQ 638, 640
(TTAB 1974).5 Even if copies of the registrations were made
of record, the probative value of such registrations is
limited because the registrations are not evidence of the
use of the marks or of their impact in the marketplace, if
any. In re Delbar Products, Inc., supra; In re Duofold
Inc., supra. Finally, even if we were to deem the
protection to be accorded registrant’s FUSION mark as being
more limited than that for an undiluted mark, the
protection still extends to prevent the registration of a
suggestive mark that conveys the same commercial impression

4 Applicant’s February 2, 2007 Request for Reconsideration, p. 2.
5 To make registrations of record, soft copies of the
registrations or the complete electronic equivalent (i.e.,
printouts or electronic copies of the registrations taken from
the electronic search records of the USPTO) must be submitted.
Raccioppi v. Apogee Inc., 47 USPQ2d 1368, 1370 (TTAB 1998); TMEP
§710.03 (5th ed. 2007).
Serial No. 78634889
6
and that is used for related goods (see the discussion
infra). Likelihood of confusion “is to be avoided, as much
between ‘weak’ marks as between ‘strong’ marks.” King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974).
In view of the foregoing, we find the similarity of
the marks is a factor that strongly favors a finding that
there is a likelihood of confusion.
B. The similarity or dissimilarity and nature of the
goods.

In analyzing the goods at issue, we note that when the
marks in the application and the cited registration are
identical, a lesser degree of similarity between the
applicant’s goods and the registrant’s goods is required to
support a finding of likelihood of confusion. In re Opus
One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re
Concordia International Forwarding Corp., 222 USPQ 355, 356
(TTAB 1983). Moreover, it is well settled that the goods
of the applicant and the registrant do not have to be
identical or directly competitive to support a finding that
there is a likelihood of confusion. 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
Serial No. 78634889
7
circumstances that could, because of the similarity of the
marks used in connection therewith, give rise to the
mistaken belief that they emanate from or are associated
with a single source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
In this case, applicant is seeking to register FUSION
for “mechanical mounting systems, namely, mounting racks,
stands, tables and carts for liquid display crystal
displays, plasma displays, and cathode ray tube displays,
all for industrial and commercial use,” and the registered
mark is for, inter alia, audio and video equipment
including amplifiers, speakers, speaker enclosures,
electrical cables and connectors, radio tuners, LCD display
panels, video monitors, and video screens. The examining
attorney has made of record four third-party registrations
to support her argument that applicant’s mounting systems
are related to the registrant’s audio and video equipment.6

6 We have not considered two registrations based solely on
foreign filings pursuant to Section 44 of the Trademark Act of
1946. Applications filed under Section 44 do not require use in
commerce. Without use in commerce, the registrations have very
little probative value. In re Albert Trostel & Sons Co., supra;
In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988).
Serial No. 78634889
8
See the registrations set forth below:7
Mark
Registration
No.
Goods
ENERCISE 2703274 “… liquid crystal displays,
… television … monitors, …
television mounting racks
for use in connection with
circuited and wireless
entertainment systems”

2800284 “… amplifiers, … speakers
and speaker enclosures, …
electrical cables and
connectors, … radio tuners,
electronic equipment
cabinets, namely audio and
video equipment mounting
racks and parts therefore
[sic], namely, speaker
grills, shelves, rack screws
and washers, rack rails,
sliding drawers, covers and
panels …”
NYRIUS 2927829 “car audio and video
equipment, namely … LCD
screens, … loudspeakers, …
mobile video display
devices, … speaker stands,
tv brackets …”
ESA 2995848 “… televisions, … home
theater systems, … display
stands and mounts related to
… televisions, stereo
receivers, speakers, VCRs,
audio cassette players,
boomboxes, mini systems, and
home theater systems”

Third-party registrations based on use in commerce that
individually cover a number of items may serve to suggest

7 In the table of registrations, we have not included the entire
description of goods for each registration. We have only listed
the products found in the application and the cited registration.
Serial No. 78634889
9
that that the listed goods are a type that may emanate from
a single source. In re Albert Trostel & Sons Co., supra;
In re Mucky Duck Mustard Co., Inc., supra.
The Examining Attorney also submitted excerpts from
the Best Buy and Circuit City websites purportedly to prove
that electronics retailers sell both mounting systems and
audio and video equipment. We do not find this evidence
particularly persuasive because these two electronic retail
stores sell a wide variety of products, and the excerpts do
not show the same or similar marks used for the products at
issue. Just because mounting systems and audio and video
equipment are sold in the same large stores may not, in and
of itself, be sufficient to establish that the products are
related. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Nevertheless,
the Circuit City website has some probative value because
it shows mounts and stands advertised for use in connection
with television systems. The website advertises a MAGNAVOX
32” LCD HDTV complete with installation and mount, and a
ZENITH 20” LCD EDTV monitor including a table stand. This
is sufficient to show that mounts and stands are
complementary products to audio and video equipment because
they are intended to be used together. Visual Information
Institute v. Vicon Industries, 209 USPQ 179, 190 (TTAB
Serial No. 78634889
10
1979) (“the products, although not interchangeable, are
complementary in that they can be used together in the same
close circuit television system”).
In view of the foregoing, we find the similarity and
nature of the goods is a factor that favors a finding that
there is a likelihood of confusion.
C. The similarity or dissimilarity of established,
likely-to-continue trade channels.

Channels of trade refer to the method of distribution
(i.e., how and to whom the products are sold). Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700-1701 (Fed. Cir. 1992). In this
regard, applicant argues that because its mounting systems
“are more likely to be sold with furniture or hardware than
with electronics,” and because mounting systems and audio
and video equipment are sold in different retail
establishments, or at least in different sections of the
same retail store, the products at issue move in different
channels of trade.8 Unfortunately, applicant did not submit
any evidence to support its arguments regarding the
channels of trade.
As we discussed in the previous section of this
decision, mounting systems and audio and video equipment

8 Applicant’s Brief, p. 9.
Serial No. 78634889
11
are complementary products, and therefore can be marketed
to the same classes of consumers. In fact, as shown by the
Circuit City and Best Buy websites, the same retailers do
sell both types of products.
Moreover, the fact that retailers may sell mounting
systems and audio and video equipment in different sections
of their stores is not dispositive of the channels of trade
issue. Consumers shop for products, not necessarily brands
(i.e., a consumer goes to a store to buy a specific
product, rather than any product by a specific
manufacturer). Accordingly, consumers expect that
retailers will display related products together (i.e.,
mounting racks and stands with other mounting racks and
stands, and competing television and other video display
devices together). However, if a consumer is putting
together a video system for use in an industrial or
commercial setting, he/she may very well encounter both a
FUSION LCD display panel and a FUSION mounting rack or
stand for a liquid crystal displays, plasma displays, and
cathode ray tube displays at the same time. Under such
circumstances, a consumer may associate FUSION video
equipment and FUSION mounting rack or stand with a single
source.
Serial No. 78634889
12
Because the same consumers could buy both applicant’s
mounting systems and the registrant’s audio and video
equipment, and the same retailers may sell the products,
this factor also favors a finding that there is a
likelihood of confusion.
D. Balancing the factors.
In weighing the likelihood of confusion factors in
this case, we find that because the marks are identical and
the goods are complementary and move in the same channels
of trade, there is a likelihood of confusion.
Decision: The refusal to register is affirmed and
registration to applicant is refused.