Hyatt

Trademark Trial and Appeal Board

Nov 18, 2008

No. 76611740 (T.T.A.B. Nov. 18, 2008)

Mailed: November 18, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Hyatt
________

Serial No. 76611740
_______

Robert E. Bushnell, Esquire for Diane M. and Richard G.
Hyatt.

Verna Beth Ririe, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Walters, Grendel and Taylor, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Diane M. and Richard G. Hyatt have filed an
application to register on the Principal Register the mark
IQ LOCK (in standard character format) for “electric,
electronic and electro mechanical locks and lock cylinders;
electronic keys; electric striking plates; units for
programming locks, cylinders and keys consisting of
handheld programming units for programming keys and
cylinders and parts for all the aforesaid goods; software
for programming lock cylinders and software for programming
THIS DISPOSITION
IS NOT A PRECEDENT
OF THE TTAB
Ser No. 76611740
2
keys for lock cylinders” in International Class 9.1 The
term “lock” has been disclaimed.
The examining attorney has refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on
the ground that applicants’ mark is confusingly similar to
the registered mark ASSA TWIN IQ (in standard character
format) for “metal locks and keys therefor; metal lock
cylinders; door and window fittings of metal; parts for all
the aforesaid goods” in International Class 6; and
“electric, electronic and electro-mechanical locks and lock
cylinders, electronic keys, electric striking plates; units
for programming locks; cylinders and keys consisting of
hand-held programming units for programming keys and
cylinders and parts for all the aforesaid goods; software
for programming keys for lock cylinders” in International
Class 9.2 The term “twin” has been disclaimed.
After the refusal was made final, applicants appealed
and requested reconsideration of the refusal.3 On August

1 Application Serial No. 76611740 filed September 16, 2004 and
asserting a bona fide intention to use the mark in commerce.

2 Registration No. 2700406 issued March 25, 2003.

3 The examining attorney initially cited pending application
Serial No. 78097899 as a potential bar to registration. However,
the examining attorney withdrew her reliance on that application
in the Final office action. Accordingly, applicants’ arguments
regarding the mark in Serial No 78097899 have not been considered
in this decision.
Ser No. 76611740
3
17, 2007, the examining attorney denied the request for
reconsideration and on August 29, 2007, this appeal was
resumed. Applicants and the examining attorney filed
briefs and an oral hearing was held. Applicants
subsequently requested a rehearing of the oral argument,
which was denied on September 26, 2008. For the reasons
discussed below, we affirm the refusal to register.
We preliminarily note that because applicants and the
examining attorney primarily focused their discussion on
applicants’ goods vis-à-vis the goods identified in
International Class 9 of the cited registration, we will do
the same.
Our determination of the issue of likelihood of
confusion is based on an analysis of all the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Ser No. 76611740
4
We first consider the du Pont factors which pertain to
the similarity or dissimilarity of the goods, channels of
trade and classes of purchasers. It is well settled that
likelihood of confusion is determined on the basis of the
goods as identified in the application and in the pleaded
registration. Hewlett-Packard Co. v. Packard Press, Inc.,
281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002).
Herein, the goods identified in the application are
“electric, electronic and electro mechanical locks and lock
cylinders; electronic keys; electric striking plates; units
for programming locks, cylinders and keys consisting of
handheld programming units for programming keys and
cylinders and parts for all the aforesaid goods; software
for programming lock cylinders and software for programming
keys for lock cylinders.” The goods identified in the
cited registration are “electric, electronic and electro-
mechanical locks and lock cylinders, electronic keys,
electric striking plates; units for programming locks;
cylinders and keys consisting of hand-held programming
units for programming keys and cylinders and parts for all
the aforesaid goods; software for programming keys for lock
cylinders”.4 Thus, the goods legally identical.

4 The only difference between applicants’ identified goods and
the goods of the cited registration is the presence of hyphens in
Ser No. 76611740
5
Despite acknowledging the identity of the goods,
applicants attempt to claim that the comparison of the
goods should not be based on the respective identifications
but rather on the basis of the actual nature of the goods.
While noting that their application is based on intent-to-
use, applicants particularly argue that registrant’s
product is a “unique niche product that capitalizes upon
the extensive use of ‘twin’ structures.” (Br. p. 10).
This argument is unavailing. An applicant may not restrict
the scope of the goods covered in the cited registration by
argument or extrinsic evidence. See In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
Applicants similarly attempt to claim that their goods
and registrant’s goods will travel in different trade
channels and be offered to different classes of consumers.
Specifically, applicants argue that:
… Registrant’s and Appellant’s [sic] goods move
through different channels of trade, are
expensive rather than low cost hardware store
inventory, and are not available for purchase
by ordinary consumers.
***
The goods associated with the cited mark are
marketed to property managements, commercial
construction suppliers, architects and owner-
operator sophisticated professionals.
Appellant’s goods on the other hand, are

two words in registrant’s identification. This difference is
inconsequential.

Ser No. 76611740
6
marketed to the customer service community,
that is, retailers, restaurants, banks vending
machine distributors and delivery and transit
services; there [sic] respective goods are
tailored to distinct and different markets and
require large item volume purchases by
sophisticated and discerning purchasers.

(Br. pp. 10 and 17). This argument likewise is unavailing.
Because the identical identifications of goods in
applicants’ application and the cited registration are not
restricted as to channels of trade or classes of
purchasers, we must presume that applicants’ locks and lock
accessories and registrant’s locks and lock accessories
will be offered in the same traditional channels of trade
for such goods, including, e.g., hardware stores and
building supply stores, and will be offered to the same
usual consumers for such goods, including contractors,
machine distributors and home owners seeking locks. See In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
We thus find the du Pont factors of the similarity of
the goods, channels of trade and classes of purchasers
strongly favor a finding of likelihood of confusion.
With respect to the conditions under which the
respective goods will be purchased, in the absence of any
limitations in the identification of both the application
and the cited registration, it must be presumed that both
applicants’ and registrant’s locks and lock accessories
Ser No. 76611740
7
will include both expensive and less expensive locks and,
as noted above, these products will be purchased both by
professional lock businesses and ordinary home owners.
Thus, the purchase of locks will encompass both some degree
of care in the purchasing decisions and a lack thereof.
However, even if these consumers exercise some degree of
care in their purchasing decisions, even careful purchasers
of goods can be confused as to source under circumstances
where substantially similar marks are used on identical and
closely related goods. See In re Research Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)
citing Carlisle Chemical Works, Inc. v. Hardman & Holden
Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970).
Accordingly, the du Pont factor pertaining to the care
with which the products are purchased does not aid
applicants’ position.
Considering then the marks, the examining attorney
maintains that applicants’ mark IQ LOCK and registrant’s
mark ASSA TWIN IQ are very similar and create a common
commercial impression because “both parties use, or intend
to use, the common, distinctive term ‘IQ’ to identify their
goods.” (Br. unnumbered p. 6). The examining attorney
argues that given the descriptive significance of the term
“lock” in applicants’ mark and “twin” in registrant’s mark,
Ser No. 76611740
8
the term “IQ” is the dominant portion of applicants’ mark
and the term “ASSA IQ” is the dominant portion of
registrant’s mark. Essentially, she further argues that
the mere deletion of registrant’s house mark ASSA from the
dominant portion of applicants’ mark does not serve to
avoid a likelihood of confusion between the two marks.
Applicants, in urging reversal of the refusal, argue
that the examining attorney has impermissibly dissected the
marks and improperly ignored the terms ASSA and TWIN in the
cited mark; that the term ASSA is the dominant element in
registrant’s mark; that the presence of registrant’s famous
house mark ASSA on any product negates a likelihood of
confusion; and that the applicants’ mark and the cited mark
create “distinct and readily discernable” overall
commercial impressions.
With respect to the marks, we keep in mind that when
marks would appear on identical goods, as they do here, the
degree of similarity necessary to support a conclusion of
likely confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). In determining the similarity or
dissimilarity of the marks, we must consider the marks in
their entireties in terms of sound, appearance, meaning and
commercial impression. Palm Bay Imports, Inc. v. Veuve
Ser No. 76611740
9
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). 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
their entireties that confusion as to the source of the
goods offered under the respective marks is likely to
result. Although we must compare the marks in their
entireties, one feature of a mark may be more significant
than another and it is not improper to give more weight to
this dominant feature in determining the commercial
impression created by the mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985) [“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 entireties. Indeed,
this type of analysis appears to be unavoidable.”] For
instance, as our principal reviewing court has observed,
“[t]hat a particular feature is descriptive or generic with
respect to the involved goods or services is one commonly
accepted rationale for giving less weight to a portion of
the mark.” See In re National Data Corp., 224 USPQ at 751.
In this case, applicants’ mark consists of two words,
the first being the word IQ, meaning “intelligence
Ser No. 76611740
10
quotient,”5 which appears to be arbitrary in connection with
the recited goods. The second word, LOCK, is used in the
identification to describe applicants’ goods and has been
disclaimed. As such, the term LOCK would not be looked to
by consumers as source identifying. Accordingly, the
dominant and distinguishing portion of applicants’ mark is
the word IQ.
Comparing, now, applicants’ mark, IQ LOCK, with the
cited registered mark, ASSA TWIN IQ, we note, first, that
applicants are correct that the mere fact that the two
marks share a common term does not necessarily mean that
the marks are confusingly similar. Here, however,
applicants have appropriated as the dominant part of their
mark an essential and dominant element of the cited
registered mark. In the cited registered mark, the word
TWIN has also been disclaimed, as it merely describes, as
noted by applicants, the “twin” structures used in
registrant’s products. As such, the term TWIN likewise
would not be viewed by purchasers as a source-indicating
element and thus does not serve to distinguish the two

5 The American Heritage Dictionary of the English Language (4th
ed. 2000). The Board may take judicial notice of dictionary
definitions, including online dictionaries which exist in printed
format. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789 (TTAB
2002). See also University of Notre Dame du Lac v. J. C. Gourmet
Foot Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser No. 76611740
11
marks. Nor do we find the house mark ASSA in the
registered mark sufficient to distinguish the marks.
Generally, likelihood of confusion is not avoided between
otherwise confusingly similar marks by adding or deleting a
house mark. See In re Chatam International Inc., 380 F.3d
1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Hewlett-Packard Co.
v. Packard Press Inc., supra; In re Apparel Ventures, Inc.,
229 USPQ 225 (TTAB 1986); and In re Riddle, 225 USPQ 630
(TTAB 1985). Because of the shared dominant term IQ, we
find the marks similar in appearance and sound.
Further, and contrary to applicants’ contention, we
find no difference in meaning or commercial impression to
distinguish the marks. The term IQ, at least on this
record, appears to be arbitrary in relation to the
identified goods, and applicants have not argued otherwise.
In addition, the word LOCK in applicants’ mark, and the
words ASSA and TWIN in registrant’s mark, do not
significantly change the commercial impression created by
the term IQ alone.
Despite the obvious differences in appearance and
sound, we find the marks in their entireties to be similar
in appearance, sound, meaning and commercial impression.
Accordingly, the du Pont factor of similarity of the marks
favors a finding of likelihood confusion.
Ser No. 76611740
12
Applicants essentially argue, citing to various
registrations purportedly owned by registrant for marks
including the term ASSA,6 that ASSA TWIN IQ is part of a
family of marks. Applicants conclude based on such use
that the term ASSA is the dominant part of the registered
mark.
This argument is not persuasive. Regardless of which,
if any, part of registrant’s mark is dominant, applicants
have appropriated a significant element of registrant’s
mark. See, e.g., Hewlett-Packard Co. v. Packard Press
Inc., 62 USPQ2d at 1004 (PACKARD TECHNOLOGIES and HEWLITT
PACKARD convey similar commercial impressions since
PACKARD, the dominant element of PACKARD TECHNOLOGIES is
identical to a “prominent” portion of HEWLITT PACKARD).
Furthermore, even if applicants had shown, which they have
not, that registrant uses the term ASSA as part of a family
of marks, this du Pont factor, if anything, would favor
registrant, not applicants.
Applicants also assert that there are at least 247
marks with an IQ component in classes 6 and 9, in

6 Applicants merely included a table in a previous response to an
office action (and repeated in the brief) setting forth the
serial and registration numbers and the marks. Although this
information was not properly submitted, because the examining
attorney did not object thereto, we will consider it of record
for whatever value it may have.

Ser No. 76611740
13
registrations and live and dead applications, and that
“[i]n view of this widespread occurrence of the IQ
component in International classes 6 and 9 without a
likelihood of confusion, … there is little, or no,
likelihood of confusion between Appellant’s mark and the
two cited marks7, because Appellant’s mark and two cited
marks create distinct and readily discernable overall
impressions.” (Brief, pp. 14-15). Applicants unsupported
assertion is unavailing. A mere statement that such
registrations (and applications) exist, without copies of
such registrations showing the mark, the registration
number, and the goods and/or services associated therewith,
has virtually no probative value. See TBMP § 1208.02 (2d
ed. rev. 2004).8 Applicants’ statement that “‘IQ is also a
term which is commonly recognized and frequently used not
only in the United States but anywhere in the word as
evidenced by 4,790,000 hits as a result of a quick Google

7 As previously noted, the examining attorney withdrew her
reference to the pending application.

8 Further, expired registrations and pending and abandoned
applications have no probative value. Action Temporary Services
Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309
(Fed. Cir. 1989)(“[A] cancelled registration does not provide
constructive notice of anything”), and the applications show only
that they have been filed. See Interpayment Services Ltd. v.
Docters & Thiede, 66 USPQ2d 1463 (TTAB 2003).

Ser No. 76611740
14
search of ‘IQ’”9 is similarly unsupported and devoid of
context and, accordingly, has no probative value.
Applicants also maintain that there have been no
instances of actual confusion between the marks. However,
there is nothing in the record to show that there have been
meaningful opportunities for such confusion to have
occurred, or that applicants have even commenced use of
their mark. More importantly, in the context of an ex
parte proceeding, “the lack of evidence of actual confusion
carries little weight.” In re Majestic Distilling Co., 65
USPQ2d at 1205.
After considering and balancing all of evidence as it
relates to the relevant du Pont factors, we conclude that
purchasers familiar with registrant’s metal locks and keys
therefor; metal lock cylinders; door and window fittings of
metal; parts for all the aforesaid goods” in Class 6; and
“electric, electronic and electro-mechanical locks and lock
cylinders, electronic keys, electric striking plates; units
for programming locks; cylinders and keys consisting of
hand-held programming units for programming keys and
cylinders and parts for all the aforesaid goods; software
for programming keys for lock cylinders sold under the mark
ASSA TWIN IQ would be likely to believe, upon encountering

9 (Br. p. 20).
Ser No. 76611740
15
applicants’ mark IQ LOCK for the some of the same goods,
that the goods originate from or are associated with or
sponsored by the same source.
Lastly, to the extent that any of the points raised by
applicants raised a doubt about the likelihood of
confusion, we resolve that doubt, as we must, in favor of
the prior registrant. In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).

Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.