InFocus Corporation

Trademark Trial and Appeal Board

Mar 19, 2019

87337539 (T.T.A.B. Mar. 19, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 19, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re InFocus Corporation
_____
Serial No. 87337539
_____
B. Anna McCoy of McCoy Russell LLP
for InFocus Corporation

Tara L. Bhupathi, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____
Before Mermelstein, Adlin, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
InFocus Corporation (“Applicant”) seeks registration on the Principal Register of
the mark for “video conferencing services, namely,
providing cloud-based telecommunications connections between video conferencing
Serial No. 87337539
- 2 -
systems for video calling” in International Class 38.1 The application contains the
following description of the mark: “The mark consists of the words INFOCUS in
stylized lettering. Color is not claimed as a feature of the mark.”
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark
INFOCUS MARKETING, in both standard characters,2 and the design form
, both with MARKETING disclaimed,3 and both for the
following services:
Mailing list preparation; business marketing and direct
mail consulting services; commercial mail receiving
agency, namely, providing specialized mail management
services; business information services, namely, gathering
and reporting information regarding e-mail addresses of
others that are made available to other companies for
commercial purposes; design of advertising materials for
others; addressing of envelopes; direct mail advertising
services in Int. Class 35;
Electronic transmission of mail and messages; e-mail data
services in Int. Class 38;

1 Application Serial No. 87337539 is based on Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), and has a filing date of February 15, 2017.
2 Registration No. 3959752 issued May 10, 2011 on the Principal Register, and has been
maintained.
3 Registration No. 3959753 issued May 10, 2011 on the Principal Register, and has been
maintained. The registration contains the following description of the mark: “The mark
consists of the word ‘INFOCUS’ above a red line, which is above the word ‘MARKETING,’
where an arrow extends from the ‘F’ to the center of the adjacent ‘O,’ and the ‘O’ has a bulls-
eye appearance, where the inner ring of the ‘O’ is red and the rest of the words ‘INFOCUS’
and ‘MARKETING’ is gray. The color(s) gray and red is/are claimed as a feature of the mark.”
Serial No. 87337539
- 3 -
Design printing for others; printing of advertising matter;
converting paper into mailing envelopes and other mailers
in Int. Class 40.
After the Examining Attorney made the refusal final, Applicant appealed. For the
reasons set forth below, we affirm the refusal to register.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record 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) (setting forth factors
to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc.,
380 F.3d 1340, 71 USPQ2d 1944, 1945 (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.”).
A. Similarity of the Marks
We first turn to the du Pont factor comparing the applied-for and cited marks,
which we consider “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du
Pont, 177 USPQ at 567). The test assesses not whether the marks can be
Serial No. 87337539
- 4 -
distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the services
offered under the respective marks is likely to result. Coach Servs. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom
Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). We remain mindful that
“marks must be considered in light of the fallibility of memory and not on the basis
of side-by-side comparison.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,
1085 (Fed. Cir. 2014).
Turning first to the cited standard character INFOCUS MARKETING, INFOCUS
is the most prominent element. INFOCUS dominates, both because as the first word
it “is most likely to be impressed upon the mind of a purchaser and remembered,”
Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) and
Palm Bay Imps., 73 USPQ2d at 1692, and because the only other word,
MARKETING, is disclaimed as generic for or descriptive of the services. See In re
Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (in
comparing THE DELTA CAFÉ to DELTA, the term CAFÉ lacks sufficient
distinctiveness to create a different commercial impression). Also, the cited standard-
character mark could be presented in the same font as Applicant’s mark, increasing
the similarity in appearance. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1909 (Fed. Cir. 2012) (holding that the specific font style of a mark cannot serve as
the basis to distinguish it from a mark in standard character form). INFOCUS
MARKETING and Applicant’s mark look and sound very similar.
Serial No. 87337539
- 5 -
Turning next to the other cited mark, INFOCUS also dominates this mark,
appearing in larger, bolder font than the disclaimed term, MARKETING. While
also has a design element, it is incorporated into the “F” and “O”
of INFOCUS, and reinforces that term with an arrow and bullseye suggesting that
the marketing services hit their focus. We do not agree with Applicant’s argument
that the relatively small design element in this cited registration, which is merely
incorporated into the letters “F” and “O” dominates that mark. Also, Applicant’s mark
includes a somewhat similarly shaped indentation in the “O”
and “C” of INFOCUS, albeit facing the other direction. Applicant argues that the
indentation is a beam of light. In any event, like the cited design mark, Applicant’s
mark includes a pointed feature, similar to the arrow in the cited design mark, and
in both marks the pointed features are directed horizontally. We find that the design
elements and otherwise fairly standard stylization of the marks are not significant
points of distinction.
The dominant INFOCUS element of the cited marks is more important, and
identical to the only word in Applicant’s mark, contributing to an overall similarity
in appearance, sound, meaning and impression. See In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching a
conclusion on the issue of confusion, 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
Serial No. 87337539
- 6 -
entireties”); see also Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Because of this shared term, the relative
insignificance of the stylization and design, and the generic or descriptive nature of
MARKETING in this context, we also find the overall connotation and commercial
impression of the marks to be quite similar. This du Pont factor weighs in favor of
likely confusion.
B. The Services
“[L]ikelihood of confusion can be found ‘if the respective [services] are related in
some manner and/or if the circumstances surrounding their marketing are such that
they could give rise to the mistaken belief that they emanate from the same source.’”
Coach Servs., 101 USPQ2d at 1722 (internal citations omitted). In analyzing the
second du Pont factor, we look to the identifications in the application and cited
registrations. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052
(Fed. Cir. 2018); Stone Lion Capital Partners, 110 USPQ2d at 1162; Octocom Sys.,
Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990).
The Examining Attorney submitted persuasive evidence that consumers are
accustomed to encountering under the same mark video conferencing services such
as Applicant’s as well as electronic transmission of mail and messages or email data.
For example:4

4 We do not find the Broadvoice web evidence probative as it does not appear to refer or relate
to video conferencing. May 17, 2017 Office Action at 16-17 (broadvoice.com). Similarly, the
BendTel website also does not directly refer to video conferencing. Id. at 32-35 (bendtel.com).
Serial No. 87337539
- 7 -
The VONAGE website shows various services offered
under that mark including “Video Conferencing” and
“SMS”5 and “Chat Apps.” The website also mentions “Cloud
capabilities.”6
The JIVE website features “web and video conferencing,
and cloud contact center to communicate better” including
cloud-based “VoIP, video conferencing, and contact center
products.” It also advertises the ability to “communicate
via voice, video, or chat using your web browser.” JIVE
even lists “Group text chat” as a feature of “Jive’s HD video
conference solution.”7
The Website of APPTIX promotes under that mark “Cloud
Solutions,” noting that “Apptix has integrated our hosted
email, voice, instant messaging, Web conferencing,
collaboration, and mobility services for a complete Unified
Communications package.”8
The VITEL GLOBAL website refers to its “cloud-based
telephone solution” that includes “Conference Bridging”9
and mentions that its “smart Voicemail system sends an
email as soon as a voice mail arrives.” The site also refers
to “Conference Calling-Conference Bridge” next to an icon
of a screen.10
GOOGLE promotes Google Duo, “a simple video calling
app” next to Google Allo, “a smart messaging app.”11
The website of AT&T COLLABORATE describes itself as a
“flexible solution [that] blends voice, video, IM, and

5 We take judicial notice of the Merriam-Webster.com definition of “SMS” as “a technology for
sending short text messages between mobile phones.” See Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
6 May 17, 2017 Office Action at 12-14 (vonage.com).
7 Id. at 21-27. (jive.com).
8 Id. at 30-31 (apptix.com).
9 Id. at 36 (vitelglobal.com).
10 Id. at 39-40.
11 Id. at 43 (google.com).
Serial No. 87337539
- 8 -
conferencing,” and “a hosted voice service that integrates
voice, video, web, and messaging.”12
The CENTURY LINK BUSINESS website promotes
“Conferencing and Collaboration” as well as “Email” under
that mark. Next to a photo of a video conference, a
description states that “Web Conferencing fully integrates
voice, web, and desktop video conferencing…” and later
notes that within the web conferencing an “instant
messenger (IM) application” is provided.13
The FRONTIER website promotes providing email,
texting, and conferencing under that mark, and the video
conferencing includes a “chat” feature.14
VERIZON’s website advertises cloud-based “Web, Voice
and Video Collaboration Tools” that encompass “3-Way
Calling” and “Voice Messaging to Email.”15
The FUZE website promotes “HD Audio-Video
Conferencing” and “Modern Group Messaging” under its
mark.16
The EZTALKS website advertises “Web Conferencing &
Video Conferencing” including an “Instant Messaging”
feature.17
CISCO promotes its CISCO WebEx video conferencing and
CISCO Spark “workspaces in the cloud” that “save your
messaging.”18

12 Id. at 49 (business.att.com).
13 Id. at 53-58 (centurylink.com).
14 Id. at 59-63 (business.frontier.com).
15 Id. at 65-67 (verizon.com).
16 December 5, 2017 Office Action at 6 (fuze.com).
17 Id. at 7-8 (eztalks.com).
18 Id. at 9-10 (webex.com).
Serial No. 87337539
- 9 -
The ZOOM website touts its “#1 Video Conferencing and
Web Conferencing Service” that includes “Business IM
Cross-Platform Messaging & File Sharing.”19
STARLEAF promotes “the StarLeaf app” for “Messaging”
and “Video Calling.”20
The TRUECONF website promotes its “Video
Conferencing” that includes “instant messaging, common
chats.”21
This marketplace evidence shows consumer exposure to the same mark for services
such as Applicant’s and Registrant’s.
Applicant argues against the relatedness of the services based on an improper
attempt to limit the identifications in the cited registrations. We find the plain
language in the cited registrations, “Electronic transmission of mail and messages; e-
mail data services,” clear and unambiguous, needing no “interpretation.” Cf. In re
Trackmobile, Inc., 15 USPQ2d 1152 (TTAB 1990) (considering extrinsic evidence to
interpret “vague” terminology with special meaning in the industry). Nevertheless,
Applicant argues that the recitation in the cited registrations must be “interpreted in
accordance with Rule 2.71(a),”22 which provides that “[t]he applicant may amend the
application to clarify or limit, but not to broaden, the identification of goods and/or
services….” 37 C.F.R. § 2.71(a). Applicant submitted the prosecution history of the
cited registrations to argue that the original identification of services in the
underlying applications must inform how we construe the final recitations in the

19 Id. at 11 (zoom.us).
20 Id. at 12 (starleaf.com).
21 Id. at 13-14 (trueconf.com).
22 7 TTABVUE 10 (Applicant’s Brief).
Serial No. 87337539
- 10 -
registrations. Applicant alleges that because the original language referred to “Email
services, namely transmission services with full scale reporting,” the current
language, “Electronic transmission of mail and messages; email data services” cannot
encompass “instant messaging services and general email provider utility services”
because they are outside the scope of the original identifications, in violation of Rule
2.71(a).23
We rejected an analogous argument in In re Solid State Design Inc., 125 USPQ2d
1409 (TTAB 2018), wherein the applicant contended that the cited registration’s
unrestricted recitation of “software” violated USPTO rules for specificity. We held
that regardless of the failure of the cited registration to indicate the function of the
software, as required by USPTO policy, the Board “lack[s] the authority to read
limitations into the identification.” Id. at 1413-14. We pointed to “the controlling
principle that where the goods in an application or registration are broadly described,
they are deemed to encompass ‘all the goods of the nature and type described
therein….’” Id. at 1413 (citing In re Jump Designs LLC, 80 USPQ2d 1370, 1374
(TTAB 2006)). Any issues an applicant has with the breadth of an identification in a
cited registration must be addressed through a consent from the owner of the cited
registration or seeking a restriction of the registration under Section 18 of the
Trademark Act, 15 U.S.C. § 1068. Id. at 1409. Thus, we decline to ignore the

23 7 TTABVUE 11 (Applicant’s Brief).
Serial No. 87337539
- 11 -
references in the cited registrations to electronic transmission of messages or limit
the references to email transmission and data services.24
This factor weighs in favor of likely confusion.
C. Trade Channels and Classes of Consumers
Turning to the trade channels and consumers, unrestricted identifications of
services such as those at issue here require us to presume that the services travel in
all the usual channels of trade for such services and are available to all potential
classes of ordinary consumers. We reject Applicant’s attempt to differentiate the
trade channels based on evidence that they actually are more limited than what
appears on the face of the identifications. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding that where
the identification is unrestricted, “we must deem the goods to travel in all appropriate
trade channels to all potential purchasers of such goods”). See also Levi Strauss & Co.
v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed.
Cir. 2013). The third-party marketplace evidence of relatedness of the services
discussed above demonstrates that video conferencing services such as those recited
in the application and electronic transmission of mail and messages or email data, as
identified in the cited registrations, are featured together on the same websites under

24 Even if we limited the scope of the identifications in the cited registrations, as Applicant
requests, the marketplace evidence discussed above establishes the relatedness of Applicant’s
video conferencing services and the services that would remain in the cited registrations. For
example, the APPTIX, VITEL GLOBAL, CENTURY LINK BUSINESS, and FRONTIER
website evidence suggests that consumers encounter these types of services under the same
mark.
Serial No. 87337539
- 12 -
the same marks, and would be encountered by the same consumers. The trade
channels and classes of consumers overlap. Thus, this factor weighs in favor of likely
confusion.
D. Sophisticated Purchasing
Without providing evidence, and instead relying only on the nature of the recited
services, Applicant contends that “customers would be shopping in a professional
capacity for business/organizational needs.”25 See In re Simulations Publ’ns, Inc., 521
F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief cannot take the
place of evidence.”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1339
(Fed. Cir. 2004) (“Statements of counsel . . . are not evidence.”). Applicant also
suggests that these services are in niche markets in which consumers are accustomed
to exercising care in shopping. In her brief, the Examining Attorney points to the lack
of evidence and further contends that sophistication in a particular field does not
immunize consumers from source confusion. She also implies that some of the
relevant consumers are “the public,” and emphasizes that we must assess likely
confusion from the standpoint of the least sophisticated potential purchaser.26
The relevant customers are not necessarily sophisticated. We find that consumers
of Applicant’s and Registrant’s services include ordinary members of the public, who
may video-conference with family and friends, or use email and messaging services.
Even in the business realm, the customers would encompass individual

25 7 TTABVUE 15 (Applicant’s Brief).
26 9 TTABVUE 16 (Examining Attorney’s Brief).
Serial No. 87337539
- 13 -
entrepreneurs and small businesses. Thus, the services may be offered to a broad
range of individuals and businesses, with widely varying degrees of experience, care
and sophistication, and we must consider the least sophisticated. See Stone Lion
Capital Partners, 110 USPQ2d at 1163 (“Accordingly, the Board properly considered
all potential investors for the recited services, including ordinary consumers seeking
to invest in services with no minimum investment requirement. Although the
services recited in the application also encompass sophisticated investors, Board
precedent requires the decision to be based ‘on the least sophisticated potential
purchasers.’”). This factor is neutral.
E. Lack of Actual Confusion Evidence
Applicant alleges that the marks have coexisted for the recited services for more
than four years without actual confusion.27 However, “uncorroborated statements of
no known instances of actual confusion are of little evidentiary value.” In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003) (citing In re
Bissett-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that
affidavit of applicant’s corporate president’s unawareness of instances of actual
confusion was not conclusive that actual confusion did not exist or that there was no
likelihood of confusion)). Regardless, we have no evidence of whether the extent and
circumstances of Applicant’s and the Registrant’s use was such as to give rise to

27 We do not find Applicant’s arguments based on other services probative, and in this ex
parte case, Applicant’s contention that it should be considered the senior user is unavailing.
In re Calgon Corp., 435 F.2d 596, 168 USPQ 278, 280 (CCPA 1971) (“As the board correctly
pointed out, ‘the question of priority of use is not germane to applicant’s right to register’ in
this ex parte proceeding.”).
Serial No. 87337539
- 14 -
meaningful opportunities for actual confusion to occur. In re Kangaroos U.S.A., 223
USPQ 1025, 1026‒27 (TTAB 1984). We find this factor neutral.
Decision: Based on the similarity of the marks, the related services that travel
in identical trade channels to the same classes of consumers, who would not
necessarily exercise great care in purchasing, confusion is likely. The refusal to
register Applicant’s mark is affirmed.