CMH United Corp.

Trademark Trial and Appeal Board

Feb 13, 2015

No. 85863243 (T.T.A.B. Feb. 13, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 13, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re CMH United Corp.
_____

Serial No. 85863243
Serial No. 85863317
_____

Mark D. Passler of Akerman LLP,
for CMH United Corp.
Joanna E. H. Fiorella, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
_____

Before Quinn, Bergsman and Hightower,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
CMH United Corp. (“Applicant”) seeks registration on the Principal Register of
the marks KODIAK (in standard characters)1 and KODIAK MOBILE
TECHNOLOGy and design (shown below),2
1 Application Serial No. 85863243 was filed on February 28, 2013, based upon Applicant’s
claim of first use anywhere since at least as early as March 2011 and use in commerce since
at least as early as August 2011.
2 Application Serial No. 85863317 was filed on February 28, 2013, based upon Applicant’s
claim of first use anywhere since at least as early as March 2011 and use in commerce since
at least as early as August 2011.

Serial No. 85863243
Serial No. 85863317

both for “accessories for cellular phones and tablet computers, namely, cases, screen
protectors, styluses and cell phone battery chargers,” in Class 9.
In the KODIAK MOBILE TECHNOLOGY and design mark application,
Applicant described the mark as consisting “of the stylized wording ‘KODIAK
MOBILE TECHNOLOGY’ with 4 claw marks over the letter ‘O’ in ‘KODIAK’ and a
paw located within a circle over the letter ‘K’ in ‘KODIAK’.” Applicant disclaimed
the exclusive right to use the terminology “Mobile Technology.”
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s marks so resemble the registered mark KODIAK
NETWORKS (in typed drawing form) for the goods listed below as to be likely to
cause confusion:
Wireless telecommunications equipment consisting of
cellular mobile telecommunications switches; location and
equipment registers; packet data switching and gateways;
radio base stations; radio transmitters, receivers,
transceivers, repeaters; antennas, wireless customer
terminal software for enabling wireless services in mobile
telephones, and portable computers; transmission
equipment, namely, receivers, transceivers,
repeaters/regenerators; compressors, multiplexers; global
computer networking equipment, namely, routers,
gateways, bridges, nodes, servers, firewalls; global
computer network terminals and appliances for
interconnecting and interfacing with telecommunications
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networks; telecommunications traffic handling and
processing equipment for caching, compression,
multiplexing, protocol conversion, load balancing and
traffic management; operational support systems
comprising computer hardware and software for providing
customer service and transferring call records and billing
information; network management systems comprising
computer hardware and software for tracking all network
transactions and sending network alarms; test equipment
and performance measurement systems comprising
computer hardware and software for analyzing,
measuring and optimizing performance of the
aforementioned goods; software for operating and
controlling the aforementioned goods, in Class 9.3
Registrant disclaimed the exclusive right to use the word “Networks.”
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
We consolidate the appeals because the marks in the two applications are
similar, the goods are identical, and the records in the two applications are
essentially the same. References to the record are to application Serial No.
85863243 unless otherwise indicated.
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 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., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
3 Registration No. 3090558 registered on May 9, 2006; Sections 8 and 15 affidavits accepted
and acknowledged.
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analysis, two key 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.”). These factors, and any other relevant
du Pont factors in the proceeding now before us, will be considered in this decision.
A. The similarity of dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We turn first to the du Pont likelihood of confusion 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., 177
USPQ at 567. In a particular case, “finding of similarity as to any one factor (sight,
sound or meaning) alone ‘may be sufficient to support a holding that the marks are
confusingly similar.’” In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)
(citations omitted). See also In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB
1987). In comparing the marks, we are mindful that “[t]he 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 parties.” Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012) (citation omitted). See also San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem.,
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972 F.2d 1353 (Fed. Cir. June 5, 1992). The proper focus is on the recollection of the
average customer, who retains a general rather than specific impression of the
marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
1. KODIAK in standard character form.
Applicant is seeking to register the mark KODIAK in standard character form.
The mark in the cited registration is KODIAK NETWORKS in typed drawing form.
Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings. A typed mark is the legal equivalent of a standard character mark.
TMEP § 807.03(i) (January 2015). Marks presented in standard or typed characters
are not limited to any particular depiction. The rights associated with a mark in
standard or typed characters reside in the wording and not in any particular
display. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir.
2012); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983);
In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy
Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988).
In the registered mark, the name KODIAK is the dominant element because the
word NETWORKS is descriptive and has been disclaimed as evidenced by the fact
that Registrant’s goods are used for networking equipment (e.g., global computer
networking equipment, namely, routers, gateways, bridges, nodes, servers,
firewalls; global computer network terminals and appliances for interconnecting
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and interfacing with telecommunications networks). It is well-settled that
disclaimed, descriptive matter may have less significance in likelihood of confusion
determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”) (quoting In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1983)); In re Dixie Rests. Inc., 105 F.3d
1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc.,
60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”).
While noting that the name KODIAK is the dominant element of Registrant’s
mark, we are cognizant that the similarity or dissimilarity of the marks is
determined based on the marks in their entireties and that the analysis cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014); In re National Data Corp., 224 USPQ at 751. However, 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 a consideration of the marks in their entireties. In re National Data Corp., 224
USPQ at 751.
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The position of the word KODIAK as the first word of the mark KODIAK
NETWORKS further reinforces the importance of KODIAK as the dominant
element of the mark. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d
1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and remembered”). See also Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the
mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the
first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering
the marks, consumers will first notice the identical lead word).
Applicant’s mark KODIAK and the dominant element KODIAK of Registrant’s
mark KODIAK NETWORKS are identical. In similar circumstances, where the
registrant’s mark incorporates an applicant’s entire mark, the Board has found that
the marks are similar. See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to registrant’s mark ML
MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406,
407 (CCPA 1967) (THE LILLY as a mark for women's dresses is likely to be
confused with LILLI ANN for women's apparel including dresses); In re United
States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE for women's
clothing stores and women's clothing likely to cause confusion with CREST
CAREER IMAGES for uniforms including items of women's clothing). In United
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States Shoe, the Board observed that “Applicant's mark would appear to prospective
purchasers to be a shortened form of registrant's mark.” 229 USPQ at 709. See also
Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992)
(“[C]ompanies are frequently called by shortened names, such as, Penney's for J.C.
Penney's, Sears for Sears and Roebuck (even before it officially changed its name to
Sears alone), Ward's for Montgomery Ward's, and Bloomies for Bloomingdale's.”).
In view of the foregoing, we find that Applicant’s mark KODIAK is similar to
Registrant’s mark KODIAK NETWORKS.
2. KODIAK MOBILE TECHNOLOGY and design.
Applicant is also seeking to register the mark KODIAK MOBILE
TECHNOLOGY and design shown below:

We find that the name KODIAK is the dominant element of Applicant’s mark
because the name KODIAK is the largest and most prominent feature of Applicant’s
mark. It is the word KODIAK that catches the attention of consumers. Further,
Applicant has disclaimed the exclusive right to use the term MOBILE
TECHNOLOGY because it is merely descriptive.4
4 In the June 17, 2013 Office Action, the Trademark Examining Attorney required
Applicant to disclaim the exclusive right to use the term MOBILE TECHNOLOGY “because
it merely describes a use for applicant’s goods … namely, that they are products used for
devices featuring mobile technology.” In its December 17, 2013 response to the Office
Action, Applicant disclaimed the exclusive right to use the term MOBILE TECHNOLOGY.
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With respect to the design portion of Applicant’s mark, the words are normally
given greater weight because they would be used by consumers to request the
products. In re Viterra Inc., 101 USPQ2d at 1911 (citing CBS Inc. v. Morrow, 708 F.
2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)); Fashions Inc. v. Pannill
Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987).
To be sure, there are differences in the marks KODIAK MOBILE
TECHNOLOGY and design and KODIAK NETWORKS. But in giving greater force
and effect to the dominant portion of the marks (the word KODIAK), we find that
the similarities in appearance, sound, connotation and commercial impression
outweigh the dissimilarities.
B. The similarity or dissimilarity and nature of the goods.
In determining whether the goods are related, it is not necessary that the goods
listed in the application and the cited registration be similar or competitive in
character to support a holding of likelihood of confusion; it is sufficient for such
purposes that a party claiming damage establish that the goods are related in some
manner and/or that conditions and activities surrounding marketing of these goods
are such that they would or could be encountered by same persons under
circumstances that could, because of similarities of marks used with them, give rise
to the mistaken belief that they originate from or are in some way associated with
the same producer. Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at
1722; Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB
2010); Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB 1980);
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Oxford Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB
1978).
Where, as here, the marks are very similar, the degree of similarity between the
goods required to support a finding of likelihood of confusion declines. In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-1689 (Fed. Cir. 1993) (“even when
the 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”); Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650 (TTAB 2002); In re Opus One Inc., 60
USPQ2d 1812 (TTAB 2001). It is only necessary that there be a viable relationship
between the two to support a finding of likelihood of confusion. In re Concordia
International Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). The issue here,
of course, is not whether purchasers would confuse the parties’ goods, but rather
whether there is a likelihood of confusion as to the source of those goods. In re Rexel
Inc., 223 USPQ 830 (TTAB 1984).
Finally, under this du Pont factor, the Trademark Examining Attorney need not
prove, and we need not find, similarity as to each and every product listed in the
Class 9 description of goods. It is sufficient for a refusal based on likelihood of
confusion that relatedness is established for any item encompassed by the
identification of goods in the application and cited registration. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981);
Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
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The Trademark Examining Attorney introduced copies of numerous use-based,
third-party registrations comprising products that are in both Applicant’s
description of goods and the description of goods in the cited registration.5 Third-
party registrations which individually cover a number of different goods that are
based on use in commerce may have some probative value to the extent that they
serve to suggest that the listed goods are of a type which may emanate from the
same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).6
The registrations listed below are representative.
MARK REG.NO. GOODS
G4U 3950598 Network routers; battery chargers, carrying cases
and protective cases for cell phones
HTC 4191796 Wireless signal device gateways, extenders and
signal boosters, antennas, battery chargers, covers,
pouches, screen guards and protectors
VITALASC 4159186 Computer stylus, laptop carrying cases, battery
packs for laptops, tablet computers and cell phones,
computer network adapters, switches, routers, and
hubs, wireless network extenders,
ZMART 4402495 Computer network hubs, switches, and routers,
battery chargers, protective covers and cases for cell
phones, laptops and portable media players

5 July 31, 2013 and October 21, 2013 Office actions.
6 We did not insert the entire description of goods for each registration. We have listed only
the goods relevant in these appeals. Also, we did not consider Registration No. 4096966 for
the mark LINK NET or Registration No. 4282085 for the mark YBY VAMPIRE KILLER
because the registrations did not include goods in both Applicant’s description of goods and
the description of goods in the cited registration. Finally, we note that the Trademark
Examining Attorney submitted 4 registrations owned by IC Intracom Holdings, LLC, 2
registrations owned by Sprint Communications Company L.P., and 2 registrations owned
by Hon Hai Precision Co., Ltd. Multiple registrations owned by single entity are
unnecessary because they are cumulative.
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MARK REG.NO. GOODS
SYNRGIC 4408446 Carrying cases, holders, and protective cases,
battery chargers, antennas, mobile computing and
operating platforms consisting of data transceivers,
wireless networks and gateways for the collection
and management of data

The Trademark Examining Attorney also submitted evidence of the third parties
listed below using the same marks to identify products that are covered by both
descriptions of goods:
1. Apple (store.apple.com) advertises the sale of routers and iPad and iPhone
covers and cases and charging devices;7
2. Belkin (belkin.com) advertises the sale of surge protectors, charging devices,
screen protectors, smart phone cases, and tablet cases, styluses, as well as wireless
switches, motion kits for wireless control of home appliances and electronics,
routers, and range extenders;8
3. Motorola (motorola.com) advertises the sale of cases, power packs, and
chargers, as well as a bridge (a wireless connectivity device that increases
equipment efficiency), wireless controllers and switches, wireless access points to
extend efficiency, and antennas;9
4. Dell (dell.com) advertises tablet cases, batteries, styluses, and switches;10
7 June 17, 2013 Office Action.
8 June 17, 2013 Office Action.
9 June 17, 2013 Office Action.
10 January 30, 2014 Office Action.
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5. Hewlett Packard (shopping.hp.com) advertises tablet and folio cases,
styluses, charging stands, and networking switches;11
6. ASUS (asus.com) advertises the sale of equipment cases, backpacks, travel
covers, as well as routers, range extenders, bridges, and antennas;12
7. Rocketfish (rocketfishproducts.com) advertises the sale of cases for tablets,
charging devices, as well as extenders, including transmitters and receivers;13
8. Sonus (sonus.com) advertises the sale of replacement batteries and wireless
bridges;14
9. WD (wdc.com) advertises the sale of cases for portable hard drives and
servers;15
10. Samsung (samsung.com) advertises the sale of wireless charging pads,
styluses, carrying cases, and routers;16 and
11. Sony (sony.com) advertises the sale of cases, router switches, and power
supplies.17
Applicant argues that (i) the goods are entirely different, (ii) there is not one
single product in the descriptions of goods that are the same,18 and (iii) “this
11 January 30, 2014 Office Action.
12 August 20, 2014 Office Action.
13 August 20, 2014 Office Action.
14 August 20, 2014 Office Action.
15 August 20, 2014 Office Action.
16 August 20, 2014 Office Action.
17 August 20, 2014 Office Action.
18 Applicant’s Brief, p. 11.
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relationship [between] the goods is too attenuated to find product ‘relatedness.’”19
However, as indicated above, the issue is not whether consumers will confuse the
goods; rather, the issue is whether consumers will think that the goods emanate
from the same source. The evidence shows that although the goods are different,
they are of a type that may emanate from a single source.
Applicant references searches that it did in the USPTO search database
demonstrating that “[t]he overwhelming majority of suppliers of Registrant’s goods
(radio transmitters, receivers, repeaters, etc.) do not sell Applicant’s goods.
Similarly, the vast majority of suppliers of Applicant’s goods do not sell Registrant’s
goods.”20 Applicant contends that “more often than not, Applicant’s Goods and
Registrant’s Goods are not offered by a single source under the same trademark.”21
The Board has previously held that such sets of third-party registrations submitted
to suggest that the goods are not related, while relevant, do not necessarily prove
that the goods are not related because they do not negate the probative value of the
registrations submitted by the Trademark Examining Attorney.
It [the evidence submitted by applicant] simply consists of
registrations that list one of applicant's goods but do not
include any goods that are in the cited registration, or
registrations that list one of the goods in the cited
registration but do not include any of applicant's
identified goods. We give this evidence much less weight.
There is no requirement for goods to be found related that
all or even a majority of the sources of one product must
also be sources of the other product. Therefore, evidence
19 Applicant’s Brief, p. 13.
20 Applicant’s Brief, p. 14.
21 Applicant’s Brief, p. 13.
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showing only that the source of one product may not be
the source of another product does not aid applicant in its
attempt to rebut the evidence of the examining attorney.
Second, the mere fact that some goods are not included in
a registration's identification of goods does not establish
that the owner of the mark has not registered the mark
for those goods in another registration since, for example,
the registrant may have begun using the mark on those
goods at a later date.… The fact that applicant was able
to find and submit for the record these registrations of
marks for individual items does not rebut the examining
attorney's evidence showing the existence of numerous
third-party registrations using the same marks on a
variety of items, including applicant's and registrant's
goods. Therefore, contrary to applicant's argument (Reply
Brief at 7), while this evidence provides some indication
that there are many trademarks that are not registered
for both products, it does not rebut the examining
attorney's evidence that the goods are related.
In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009).
In an effort to rebut the inference we might draw from the third-party
registrations as serving to suggest that the goods are a type that may emanate from
the same source, “Applicant conducted an Internet search to see the manner in
which a number of the Examining Attorney’s cited marks were used and found that
there [sic] were either not in use at all, or they were used on goods that were sold
separately, or where used more accurately in connection with the retail sale of the
goods rather than as an actual brand.”22 However, Applicant’s evidence is not
sufficient to rebut the inference because there is no requirement that all the goods
listed in the registrations must be advertised on the Internet. Further, Applicant
submitted only one or two Internet excerpts for the few third-party marks it
22 Applicant’s Brief, p. 15.
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addressed to prove its point. For example, Applicant submitted only one excerpt to
show the mark HTC used in connection with mobile device accessories but not on
networking products. Finally, the Trademark Examining Attorney did not rely
solely on third-party registration evidence; the Trademark Examining Attorney also
submitted evidence of actual third-party use of marks in connection with the goods
listed in both descriptions of goods.
In its Reply Brief, Applicant asserts that manufacturers use different product
marks to distinguish their mobile accessories and networking devices.23 While many
manufacturers use different product marks, these manufacturers also display their
house marks (e.g., APPLE, BELKIN, SONY, etc.) in connection with these products.
House marks are no less important, and may be more so, than product marks in
identifying the source of the products so labeled. Even if consumers perceive these
marks to be house marks used in connection with other product marks, this would
not dispel confusion as to sponsorship or affiliation. “In general, use of a house mark
does not obviate confusion.” In re Mighty Leaf Tea, 94 USPQ2d at 1260; General
Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ 1584, 1602 (TTAB
2011).
We find that the goods are related.
C. Established, likely-to-continue channels of trade and classes of consumers.
The Trademark Examining Attorney submitted excerpts from the websites of
BEST BUY (bestbuy.com), GEEKS.com, and OfficeMax (officemax.com) to prove
23 Applicant’s Reply Brief, pp. 4-11.
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that these retailers sell the type of goods listed in both descriptions of goods and,
therefore, the goods move in the same channels of trade.24 Applicant argues that the
above-noted retailers are “mass marketers” who sell many things. However, because
BEST BUY, GEEKS.com, and OfficeMax are mass marketers does not alter the fact
that they sell the types of goods listed in both descriptions of goods. In fact,
Applicant notes that “Office Max [sic] has one online category for ‘wireless phone
cases & covers,’ and other [sic] for ‘networking equipment,’ with subcategories for
‘switches,’ ‘routers,’ ‘rack enclosures,’ etc.”25
Applicant also contends that “the evidence of record confirms that mobile
accessories are sold largely by online retailers specializing in merchandise (e.g.,
Zazzle, Skin It, etc. supra), mall kiosks, vending machines, and, of course, big box
electronics and general merchandise stores like Office Max [sic], Best Buy, and
Geeks.”26 The fact that mobile accessories may be sold in multiple channels of trade,
some of which do not include wireless networking equipment, does not change the
fact that mobile accessories and networking equipment also move in some of the
same channels of trade.
We find the goods in the application and the cited registration move in the same
channels of trade.
24 January 30, 2014 Office Action.
25 Applicant’s Brief, p. 18.
26 Applicant’s Reply Brief, pp. 11-12.
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D. The conditions under which and buyers to whom sales are made, i.e.
“impulse” vs. careful, sophisticated purchasing.

Applicant argues that the target consumers for the wireless networking
equipment listed in the cited registration are “specialized, credentialed network
engineers” “who are careful and sophisticated consumers, not susceptible to
confusion based on small similarities in trademarks on otherwise wholly disparate
goods.”27 According to Applicant’s counsel, these engineers request quotes from a
number of sales representatives for building networks comprising multiple pieces of
equipment. “After significant communications and exchange of ideas, the sales
representatives will submit their quotes to the engineer for all the products
necessary to set up their entire network. These quotes typically are hundreds of
thousands of dollars.”28
Registrant’s description of goods is not limited to network engineers for building
complex communications networks. The Belkin website (belkin.com) advertises
switches and motion kits for home appliances and electronics.29 The APPLE AirPort
Express router is for individuals to set up wireless networks in their home.30 The
Best Buy website advertises wireless switches, modems, and routers offered for sale
to the general public.31 Based on the foregoing, Applicant is trying to restrict the
nature of the goods, channels of trade and classes of consumers without establishing
27 Applicant’s Brief, p. 5.
28 Applicant’s Brief, pp. 5-6.
29 June 17, 2013 Office Action.
30 June 17, 2013 Office Action.
31 January 30, 2014 Office Action.
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that the proposed limitations are inherent in the nature of the goods. See 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).
While we have no doubt that consumers will exercise a heightened degree of care
purchasing wireless networking products, those same consumers may mistake one
similar trademark for another when such marks cover products in the same general
field because they are not likely to note the differences in the marks. Hydrotechnic
Corp. v. Hydrotech International, Inc., 196 USPQ 387, 392-93 (TTAB 1977);
Educational Development Corp. v. Educational Dimensions Corp., 183 USPQ 492,
496 (TTAB 1974). Even careful purchasers who do notice the difference in the
marks will not necessarily conclude that there are different sources for the goods,
but will see the marks as variations of each other, pointing to a single source. See,
e.g., Kangol Ltd. v. Kangaroos U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945, 1946
(Fed. Cir. 1992) (“What is important is not whether people will necessarily confuse
the marks, but whether the marks will be likely to confuse people into believing
that the goods they are purchasing emanate from the same source.”) (citations
omitted). Accordingly, we find this du Pont factor to be neutral.
E. Balancing the factors.
Because the marks are similar, the goods are related and the goods move in the
same channels of trade, we find that Applicant’s marks KODIAK and KODIAK
MOBILE TECHNOLOGY and design, both for “accessories for cellular phones and
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tablet computers, namely, cases, screen protectors, styluses and cell phone battery
chargers,” are likely to cause confusion with the registered mark KODIAK
NETWORKS for the goods set forth in that registration.
Decision: The refusals to register Applicant’s marks KODIAK and KODIAK
MOBILE TECHNOLOGY and design are affirmed.
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