Emissive Energy Corporation

Trademark Trial and Appeal Board

Jun 19, 2007

No. 78351319 (T.T.A.B. Jun. 19, 2007)

Mailed:
June 19, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Emissive Energy Corporation
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Serial No. 78351319
_______

Mark E. Tetreault of Barlow, Josephs & Holmes, Ltd. for
Emissive Energy Corporation.

John M. Gartner, Trademark Examining Attorney, Law Office
102 (Thomas V. Shaw, Managing Attorney)
_______

Before Bucher, Cataldo and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Emissive Energy Corporation filed an intent-to-use
application to register the mark 20/20, in standard
character format, for “flashlights.”1 Registration was
refused under Section 2(d) of the Lanham Act, 15 U.S.C.
§1052(d), on the ground that 20/20 for flashlights so
resembles Registration No. 2,990,217 for the mark 2020
DESIGN STUDIO for, inter alia, “electric lighting
fixtures,” in Class 11, and “design for others in the

1 Application Serial No. 78351319, filed January 13, 2004.
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78351319
2
field of general product lines in the field of lighting,”
in Class 42, as to be likely to cause confusion. The
registrant disclaimed the exclusive right to use the words
“Design Studio.” When the refusal was made final,
applicant appealed. Both the applicant and the examining
attorney filed briefs. For the reasons set forth below,
the refusal to register is affirmed.
Our determination of likelihood of confusion under
Section 2(d) of the Lanham Act is based on an analysis of
all the 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, 567
(CCPA 1973). The only evidence of record are copies of ten
(10) use based trademark registrations for marks used to
identify and distinguish both flashlights and electric
lighting fixtures, including Registration No. 3,088,423 for
the mark TIROS owned by applicant.
A. Similarity or dissimilarity and nature of the goods.

It is well settled that it is not necessary that the
goods of the applicant and registrant be similar or even
competitive to support a finding of likelihood of
confusion. Likelihood of confusion may be found if the
goods are related in some manner and/or if the
circumstances surrounding their marketing are such that
Serial No. 78351319
3
they would be likely to be encountered by the same persons
under conditions that could give rise to the mistaken
belief that they emanate from the same source. In re
Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB
1988); Seaguard Corporation v. Seaward International, Inc.,
223 USPQ 48, 51 (TTAB 1984).
In this case, the products identified by the
registrant’s mark are electric lighting fixtures and the
products identified by applicant’s mark are flashlights. A
“flashlight” is “a small, portable electric lamp powered by
dry batteries or a tiny generator.”2 An “electric lighting
fixture” is an electric light that is permanently, attached
or appended to a structure or building.3 Because both
products are electric lights (one portable and one fixed in
place), the nature of the goods (i.e., lighting) is
related.
In addition, the examining attorney has submitted ten
(10) registrations for both electric lighting and
flashlights. These registrations have probative value to
the extent that they serve to suggest that electric

2 Dictionary.com Unabridged (V 1.1) based on the Random House
Unabridged Dictionary (2006). See also The American Heritage
Dictionary of the English Language (2006). The Board may take
judicial notice of dictionary evidence. University of Notre Dame
du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372 , 217 USPQ 505 (Fed. Cir. 1983).
3 Id for the definition of “fixture.”
Serial No. 78351319
4
lighting fixtures and flashlights may emanate from the same
source. In re Infinity Broadcasting Corporation, 60 USPQ2d
1214, 1217-1218 (TTAB 2001); In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Muck Duck
Mustard Co., Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
The fact that third parties, as well as applicant, have
adopted and registered marks for electric lighting fixtures
and flashlights is probative of the fact that those
products may emanate from a single source.
In view of the foregoing, we find that the similarity
and nature of the goods favors a finding of likelihood of
confusion.
B. The conditions under which and buyers to whom sales
are made.

It is also well settled that the issue of likelihood
of confusion between pending applications and registered
marks must be determined on the basis of the goods or
services as they are identified in the application and
registration, rather than on what any evidence may show as
to the actual nature of the products, their channels of
trade, and/or the classes of purchasers. Canadian Imperial
Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987); In re Elbaum, 211 USPQ
639, 640 (TTAB 1981). Because there are no restrictions of
Serial No. 78351319
5
any kind in either the applicant’s or registrant’s
description of goods, we must therefore consider the
applicant’s flashlights and registrant’s electrical
lighting fixtures as if they were being sold in all of the
normal channels of trade to all of the normal purchasers
for such goods. Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, supra; Toys R Us v. Lamps R Us, 219 USPQ
340, 343 (TTAB 1983).
As indicated supra, neither applicant, nor the
examining attorney, submitted any evidence regarding the
actual nature of the products, their channels of trade,
and/or the classes of purchasers. Nevertheless, applicant
contends, without any evidentiary support, that
registrant’s electric lighting fixtures are typically found
at an electrical supply house, in a home lighting section
of a home improvement store or at a specialty light fixture
retailer, and concludes that registrant’s lighting fixtures
are purchased by commercial electrical designers, interior
designers, architects, electrical contractors, and building
products suppliers. (Applicant’s Brief, pp. 3-4).
Despite the fact that there are no restrictions in
applicant’s description of goods and that no evidence has
been presented as to the nature of applicant’s flashlights,
applicant asserts that applicant’s products are specialty
Serial No. 78351319
6
flashlights used for rugged military and law enforcement
applications (i.e., a high precision and high cost item).
Applicant’s products are, therefore, sold in specialty
supply catalogs that carry military and law enforcement
equipment, catalogs in the field of rugged outdoor use and
by specialty retailers such as Sharper Image and the
Discovery Stores. Thus, the typical customer for
applicant’s products include law enforcement officers,
members of the military, and persons who participate in
rugged outdoor activities. (Applicant’s Brief, p. 4).4
However, as indicated above, there are no restrictions
as to the channels of trade or classes of consumers in
either applicant’s description of goods or registrant’s
description of goods. Therefore, we must presume that
registrant’s electrical lighting fixtures and applicant’s
flashlights are sold in all channels of trade and to all
classes of consumers who would normally purchase such
products. Since both electric lighting fixtures and

4 While applicant has argued that registrant’s products and
applicant’s products move in different channels of trade, there
is no evidence of record regarding the channels of trade.
Without any restrictions in the descriptions of goods and without
any evidence as to channels of trade, we cannot make a finding of
fact as to the similarity or dissimilarity of the likely-to-
continue channels of trade.
Serial No. 78351319
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flashlights are products that are purchased by ordinary
consumers, the classes of consumers overlap.
In view of the foregoing, the class of purchasers is a
factor that favors finding a likelihood of confusion.
C. The similarity or dissimilarity of the marks.
We now turn 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. The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of overall commercial impression so that confusion as
to the source of the goods offered under the respective
marks is likely to result. 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 1835, 1741 (TTAB 1991), aff’d unpublished, No.
92-1086 (Fed. Cir. June 5, 1992). In making this
determination, we must consider the recollection of the
average purchaser who normally retains only a general,
rather than a specific, impression of the marks. Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
Serial No. 78351319
8
While marks must be compared in their entireties, it
is not improper to accord more or less weight to a
particular feature of a mark. In re National Data Corp.,
753 F.2d 1056, 24 USPQ2d 749, 751 (Fed. Cir. 1983). That a
particular feature of a mark is descriptive with respect to
the products at issue justifies giving less weight to that
portion of the mark. Id. In Registration No. 2,990,217,
the term “Design Studio” is descriptive and the exclusive
right to use “Design Studio” has been disclaimed. Thus,
because the term “Design Studio” is descriptive, it will
not be regarded as the dominant portion of the mark 2020
DESIGN STUDIO and “Design Studio” will generally be given
less weight than the more arbitrary 2020. In any event, we
are not persuaded that the term “Design Studio” offers
sufficient distinctiveness to create a different commercial
impression between 20/20 and 2020 DESIGN STUDIO.
Moreover, the significance of the number 2020 in
registrant’s mark 2020 DESIGN STUDIO is reinforced by its
location as the first word in the mark. 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 in the mind of a purchaser and
remembered”). See also Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
Serial No. 78351319
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(Fed. Cir. 1992)(upon encountering the marks, consumers
must first notice the identical lead word).
In comparing the two marks, we note that the
registrant’s mark incorporates the entirety of applicant’s
mark. Likelihood of confusion is often found where the
entirety of one mark is incorporated within another. In re
Denisi, 225 USPQ 624, 626 (TTAB 1985)(PERRY’S PIZZA for
restaurant services specializing in pizza and PERRY’S for
restaurant and bar services); Johnson Publishing Co. v.
International Development Ltd., 221 USPQ 155, 156 (TTAB
1982)(EBONY for cosmetics and EBONY DRUM for hairdressing
and conditioner); In re South Bend Toy Manufacturing
Company, Inc., 218 USPQ 479, 480 (TTAB 1983)(LIL’ LADY
BUGGY for toy doll carriages and LITTLE LADY for doll
clothing).
We do not find persuasive applicant’s argument that
the 2020 portion of registrant’s mark engenders the
commercial impression of a year designation. First, there
is no evidence regarding how registrant uses its mark and,
therefore, what commercial impression it is trying to
convey.5 Second, we believe that it is just as likely that

5 This argument might have carried more weight and been more
persuasive had applicant submitted evidence of registrant’s use
of its mark to show the commercial impression engendered thereby.
Serial No. 78351319
10
consumers will perceive 2020 as 20-20, rather than 2,020,
thereby creating the same commercial impression as
applicant’s mark. Finally, since both marks are used in
connection with lighting, it reasonable that the numbers
2020 in registrant’s mark 2020 DESIGN STUDIO and
applicant’s mark 20/20 will engender the same commercial
impression.
While there are obvious differences between
applicant’s mark 20/20 and registrant’s mark 2020 DESIGN
STUDIO, the slash in applicant’s mark and the descriptive
words “Design Studio” do not detract from the similarity
created by the use of the number 2020. We are satisfied
that when the marks are taken as whole, they are similar in
sound, appearance, meaning, and commercial impression.
Accordingly, the similarity or dissimilarity of the marks
is a factor that favors finding that there is a likelihood
of confusion.
D. Balancing the factors.
We find that because of the similarity of the marks,
the similarity of the goods, and the overlapping class of
consumers, there is a likelihood of confusion between
applicant’s mark 20/20 proposed for use in connection with
flashlights and registrant’s mark 2020 DESIGN STUDIO for
electrical lighting fixtures.
Serial No. 78351319
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Decision: The refusal to register under Section 2(d)
of the Lanham Act is affirmed.