Freedom Scientific, Inc.

Trademark Trial and Appeal Board

May 21, 2020

87907696 (T.T.A.B. May. 21, 2020)

Mailed: May 21, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Freedom Scientific, Inc.
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Application Serial No. 87907696
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Debra Deardourff Larsen of GrayRobinson, P.A. for Freedom Scientific, Inc.

Melissa Sturman, Trademark Examining Attorney, Law Office 125,
Heather Biddulph, Managing Attorney.
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Before Zervas, Bergsman and Adlin, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Freedom Scientific, Inc. (Applicant) filed an application to register on the
Principal Register the mark FUSION, in standard character form, for “Computer
software used to enhance video screen display and user’s documentation sold together
therewith for low-vision users,” in International Class 9.1
The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so

1 Serial No. 87907696, filed May 4, 2018, under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), based on Applicant’s claim of first use of its mark anywhere and in commerce as of
February 19, 1988.
This Opinion Is Not a
Precedent of the TTAB
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resembles the registered marks FUSION DICTATE2 and FUSION VOICE,3 both in
standard character form, and both for “computer software for use in dictation,” in
International Class 9, as to be likely to cause confusion. Dolby Systems, Inc.
(Registrant) is identified as the registrant for both registrations. Registrant disclaims
the exclusive right to use the words “Dictate” and “Voice” in its respective
registrations.
We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019), quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997), quoting DuPont,
177 USPQ at 567. “Not all of the DuPont factors are relevant to every case, and only
factors of significance to the particular mark need be considered.” Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018), quoting In re
Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). See also M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.

2 Registration No. 3007973 registered October 18, 2005; renewed.
3 Registration No. 3104860 registered June 13, 2006; renewed.
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2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”). “Each case must be decided on
its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v.
Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”), quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002).
I. The similarity or dissimilarity and nature of the goods.
As noted above, Applicant is seeking to register its mark for “computer software
used to enhance video screen display and user’s documentation sold together
therewith for low-vision users” and the description of goods in the cited registrations
is “computer software for use in dictation.”4 In other words, Applicant’s software

4 Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2020), accessed
May 19, 2020, defines “dictation” as “the act or manner of dictating for reproduction in
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enhances visuals while Registrant’s software is in the field of speech. To show that
the two software products are related, the Examining Attorney submitted excerpts
from the websites discussed below showing the use of similar marks for software
consisting of visuals and speech sold and used together:
•Cobra (bayareadigital.us) – software that combines speech, braille, and screen
magnification.5
COBRA prioritizes what it does on user’s requirements and
outputs this information from the computer screen into
speech, Braille or as a magnified form.6
COBRA provides screen reading software.
•Dolphin SuperNova Magnifier and Speech software (yourdolphin.com).7 The
website advertises the SuperNova Magnifier as follows:8
Experience SuperNova Magnifier’s crystal clear
magnification up to 64 times, high contrast colour schemes
and mouse pointers, and …
•Hear characters & words read aloud as you type, boosting
your confidence & your productivity

writing.” The RANDOM HOUSE UNABRIDGED DICTIONARY defines “dictating” as “to say or read
(something) aloud for another person to transcribe or for a machine to record.”
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v.
Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH,
78 USPQ2d 1375, 1378 (TTAB 2006).
5 September 7, 2018 Office Action (TSDR 13-14).
Citations to the examination record are to the USPTO Trademark Status and Document
Retrieval (TSDR) system by page number in the downloadable .pdf format.
6 Id. at 13.
7 Id. at TSDR 15-16.
8 Id.
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•Sit back and listen as your web pages, apps, documents &
emails are read to you
* * *
•The best touch screen magnification and speech for
Windows
A video presentation on the website identifies the features of the software as a
“Magnifier & Speech FOR LOW VISION.”
• Nuance.com
Nuance TALKS app for mobile handsets converts text on
the screen to highly intelligible speech. Nuance ZOOMS is
a sophisticated screen magnifying app. Together they
provide blind and low-vision impaired individuals access to
the digital world.9
•Kurzweil Education (kurzweiledu.com) offers a system that magnifies text for
learners with visual impairments, text-to-speech functions, audio note tools, and
“speak as typing helps learners self-regulate their writing.”10
•Apple (apple.com) offers dictation software and screen magnification software.11
Finally, Applicant’s specimen of use in the application at issue shows that it uses
magnification software and voice software together as part of its FUSION software.

9 Id. at 17.
10 April 1, 2019 Office Action (TSDR 15-19).
11 Id. at TSDR 22-23.
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This evidence shows software developers, including Applicant, sell software for
visual and speech applications together as complementary products. In addition,
consumers purchase and use such products together as complementary products. See
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed.
Cir. 1984) (finding bread and cheese to be related because they are often used in
combination, and stating: “Such complementary use has long been recognized as a
relevant consideration in determining a likelihood of confusion.”).
The evidence establishes a relationship between Applicant’s goods and those in
the cited registration because they are identified by the same marks offered for sale
by the same merchants on the same webpages. See In re Detroit Ath. Co., 903 F.3d
1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (crediting relatedness evidence that
third parties use the same mark for the goods and services at issue because “[t]his
evidence suggests that consumers are accustomed to seeing a single mark associated
with a source that sells both”).
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Applicant contends that the goods are not related because Applicant’s software is
“designed specifically for vision-impaired users” while Registrant’s software is for use
in dictation by professionals in the medical, legal, insurance, and engineering
industries.12
Consequently, the registered marks are not directed to
computer software used to enhance video screen display
and user's documentation sold together therewith for low-
vision users; rather, Registrant’s goods are directed to
professionals seeking computer software for use in
dictation in the medical, legal, insurance or engineering
industries.13
There are two problems with Applicant’s contention. First, we must consider the
goods as Applicant and Registrant describe them in the application and registration.
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion
that the question of registrability of an applicant’s mark must be decided on the basis
of the identification of goods set forth in the application regardless of what the record
may reveal as to the particular nature of an applicant's goods, the particular channels
of trade or the class of purchasers to which the sales of goods are directed.”). See also
Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973) (“Trademark cases involving the issue of likelihood of confusion must be
decided on the basis of the respective descriptions of goods”). Thus, notwithstanding

12 Applicant’s Brief, p. 11-12 (7 TTABVUE 12-13).
13 Id. at p. 13 (7 TTABVUE 14).
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Applicant’s argument regarding the actual scope of its own and the cited Registrant’s
commercial use of its mark, we may not limit, by resort to extrinsic evidence, the
scope of goods as identified in the cited registration or in the subject application. E.g.,
In re Dixie Rests. Inc., 41 USPQ2d at 1534; Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987), quoting
CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); In re La
Peregrina Ltd., 86 SPQ2d 1645, 1646 (TTAB 2008); In re Bercut-Vandervoort & Co.,
229 USPQ 763, 764 (TTAB 1986). Accordingly, Registrant’s dictation software is not
limited to any particular applications. Based on the description of goods, Registrant
could incorporate its dictation software into any system, even magnification systems
such as those offered by Applicant and the third parties identified in the record.
Second, the evidence submitted by the Examining Attorney shows that software
developers and retailers create and sell dictation systems together with magnification
software to improve the online experience of a visually impaired user. Relevant users
are accustomed to seeing the two types of software sold and used together.
We find that the goods are related.
II. Established, likely-to-continue channels of trade and classes of consumers.
The above-noted evidence that the Examining Attorney submitted shows that at
least some of the same classes of consumers both purchase and use software to
enhance the video display and enable dictation.
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III.The number and nature of similar marks in use in connection with similar
goods.
Applicant, in its brief, referred to a table listing 12 registrations incorporating the
word “Fusion” as part of marks for various computer hardware, software and
systems.14 Applicant had not previously submitted copies of the registrations during
the prosecution of the application. Therefore, Applicant did not timely submit the
evidence pursuant to Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), nor did it
properly submit the third-party registration evidence. See TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 710.03 (2018). However, because the Examining
Attorney did not object to the list of the third-party registrations and, in fact,
discussed them, we consider the Examining Attorney to have stipulated the list into
the record. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
§ 1203.02(e) (2019).
Perhaps the reason the Examining Attorney did not object to Applicant’s list of
third-party registrations and addressed them in her brief is that the listed
registrations are not relevant. The descriptions of goods in the third-party
registrations are not the same as or related to the Registrant’s “computer software
for use in dictation” or Applicant’s software for enhancing video screen displays. See
Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686
(Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for dissimilar
goods, as Board must focus “on goods shown to be similar”); In re i.am.symbolic, LLC,

14 Applicant’s Brief, pp. 14-16 (7 TTABVUE 15-17).
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866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (disregarding third-party
registrations for other types of goods where the proffering party had neither proven
nor explained that they were related to the goods in the cited registration); In re Thor
Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (the third-party registrations are of
limited probative value because the goods identified in the registrations appear to be
in fields which are far removed from the goods at issue). See also Key Chem., Inc. v.
Kelite Chem. Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is our
conclusion altered by the presence in the record of about 40 third-party registrations
which embody the word ‘KEY’. The great majority of those registered marks are for
goods unrelated to those in issue, and there is no evidence that they are in continued
use. We, therefore, can give them but little weight in the circumstances present
here.”).
The number and nature of third-party marks in use in connection with the same
or similar services is a neutral DuPont factor.
IV. The similarity or dissimilarity of the marks.
We now turn to the DuPont 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., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156
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USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling
or sound alone is likely to cause confusion.”) (citation omitted).
“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 parties.” Cai, 127 USPQ2d at 1801, quoting Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Midwestern
Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435,
1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992).
Applicant is seeking to register the mark FUSION and the cited marks are
FUSION VOICE and FUSION DICTATE. The marks are similar because they all
include the word “Fusion.” With respect to Registrant’s marks, the word “Fusion” is
the dominant part of the mark because the words “Voice” and “Dictate” are
descriptive when used in connection with dictation software. Accordingly, Registrant
disclaimed the exclusive right to use those words. It is well settled that disclaimed,
descriptive matter may have less significance in likelihood of confusion
determinations. See In re Detroit Ath. Co., 128 USPQ2d at 105 (citing In re Dixie
Rests., Inc., 41 USPQ2d at 1533-34); 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
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a conclusion on the likelihood of confusion.’”), quoting In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 752 (Fed. Cir. 1985); In re Code Consultants, Inc., 60 USPQ2d
1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”). There is nothing improper in stating that, for
rational reasons, we give more or less weight to a particular feature of a mark, such
as a common dominant element, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 224 USPQ at 751.
The significance of the word “Fusion” – and its dominance – is further reinforced
by its location as the first part of Registrant’s marks. See In re Detroit Ath. Co., 128
USPQ2d at 1049 (finding “the identity of the marks’ two initial words is particularly
significant because consumers typically notice those words first”); Palm Bay Imps.
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 Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will
first notice the identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., 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”). “[I]f
the dominant portion of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624, 624 (TTAB
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1985). The peripheral differences in this case being descriptive and trailing terms fail
to distinguish the marks.
While there is no explicit rule that we must find marks to be similar where
Registrant’s marks incorporate Applicant’s entire mark, the fact that Registrant’s
marks subsume Applicant’s mark increases the similarity between them. See In re
Mighty Leaf Tea, 601 USPQ2d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)
(applicant’s mark ML is similar to opposer’s mark ML MARK LEES both for personal
care and skin products); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660
(TTAB 2014) (applicant’s mark PRECISION is similar to opposer’s mark PRECISION
DISTRIBUTION CONTROL). See also Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d
324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY for women’s dresses is likely to
be confused with LILLI ANN for women's apparel including dresses); In re U.S. 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 U.S. Shoe, the Board observed,
“Applicant’s mark would appear to prospective purchasers to be a shortened form of
registrant’s mark.” 229 USPQ at 709. That is, consumers are likely to believe that
FUSION DICTATE and FUSION VOICE are the audio line of FUSION software.
Merriam-Webster.com defines “Fusion” as, inter alia,
2 : a union by or as if by melting: such as
a :a merging of diverse, distinct, or separate
elements into a unified whole
b :a political partnership: COALITION
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c :popular music combining different styles (such
as a jazz and rock)
d :food prepared using techniques and ingredients
of two or more ethnic or regional cuisines15
When used in connection with either software to enhance video screen displays or
dictation software, “Fusion” is an arbitrary term that has a similar meaning and
engenders a similar commercial impression when used with the respective software.
Although Applicant contends that the commercial impression is “distinctly different,”
Applicant does not explain why the meaning of the word FUSION is different or why
the commercial impressions engendered by the marks is different.16
We find that Applicant’s mark FUSION is similar to Registrant’s marks FUSION
VOICE and FUSION DICTATE in terms of appearance, sound, connotation and
commercial impression.
V. Conclusion
Because the marks are similar and the goods are related and are offered to the
same classes of consumers, we find that Applicant’s mark FUSION for “computer
software used to enhance video screen display and user’s documentation sold together
therewith for low-vision users” is likely to cause confusion with the registered marks
FUSION VOICE and FUSION DICTATE both for “computer software for use in
dictation.”
Decision: The refusal to register is affirmed.

15 Accessed May 20, 2020.
16 Applicant’s Brief, p. 9 (7 TTABVUE 10).