No. 92065367 (T.T.A.B. Nov. 26, 2018)

Innex, Inc.v.Chang Lu aka Katie Lu

Trademark Trial and Appeal BoardNov 26, 2018

No. 92065367 (T.T.A.B. Nov. 26, 2018)

This Opinion is not a Precedent of the TTAB Mailed: November 26, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ TRADEMARK TRIAL AND APPEAL BOARD _____ Innex, Inc. v. Chang Lu aka Katie Lu Cancellation No. 92065367 Christopher J. Day, of the Law Office of Christopher Day, for Petitioner Innex, Inc. Chang Lu aka Katie Lu, pro se Respondent. _____ Before Zervas, Kuczma and Heasley, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Innex, Inc. (“Petitioner”) filed a Petition for Cancellation of Chang Lu’s, aka Katie Lu, (“Respondent”), Trademark Registration No. 5080553 for the mark INNEXT (in standard characters) for: Carrying cases for cell phones; Carrying cases for mobile computers; Carrying cases specially adapted for electronic equipment, namely, mobile phones, smart phones, tablet computers; Carrying cases, holders, protective cases and stands featuring power supply connectors, adaptors, Cancellation No. 92065367 - 2 - speakers and battery charging devices, specially adapted for use with handheld digital electronic devices, namely, mobile phones, smart phones, tablet computers; Cases for mobile phones; Cell phone cases; Cell phone covers; Clear protective covers specially adapted for personal electronic devices, namely, mobile phones, smart phones, tablet computers; Fitted plastic films known as skins for covering and protecting electronic apparatus, namely, mobile phones, smart phones, tablet computers; Fitted plastic films known as skins for covering and providing a scratch proof barrier or protection for electronic devices, namely, MP3 players, mobile telephones, smart telephones, digital cameras, global positioning systems and personal digital assistants; Flip covers for smart phones; Protective covers and cases for cell phones, laptops and portable media players; Adjustable smartphone and PC tablet stabilizers and mounts; Armbands specially adapted for personal electronic devices, namely, mobile phones, smart phones; Audio speakers; Audio speakers that may be attached with adhesive to the abdominal area of pregnant women for the purpose of transmitting music or sounds to the fetus, not for medical purposes; Cases for music, audio and related electronic equipment, namely, cases for audio tuners, audio receivers, amplifiers, tape players, compact disc players, MP3 controllers/players, audio mixers, audio speakers in the nature of music studio monitors, microphones, audio speakers, compact discs, audio tapes, portable computers, antennas, phonographic record players, audio recording equipment, and the cables associated with all of the foregoing equipment; Cell phone backplates; Cell phone battery chargers; Cell phone battery chargers for use in vehicles; Consumer electronic products, namely, audio amplifiers, audio speakers, audio receivers, electrical audio and speaker cables and connectors, audio decoders, video decoders, speakers, power conversion devices, power converters, and power inverters; Devices for hands-free use of mobile phones; Ear phones; Earphone accessories, namely, earphone cushions, earphone pads, cord management systems, earphone cases, and earphone extension cords; Earphones; Earphones and headphones; Electronic charging devices for tablet PCs that also include features to secure and disinfect the tablet PCs; Electronic device to charge and secure tablet PCs; Electronic hubs for connecting mobile phones, smart phones, tablet computers Cancellation No. 92065367 - 3 - in an automobile; Hands free devices for mobile-phones; Harnesses specially adapted for holding electronic devices, namely, mobile phones, smart phones, tablet computers; Head-clip cell phone holders; Headsets for cellular or mobile phones; Headsets for mobile telephones; Keyboards for mobile phones; Leather protective covers specially adapted for personal electronic devices, namely, mobile phones, smart phones, tablet computers; Loudspeakers, headphones, microphones and CD players; Mobile phone cases featuring rechargeable batteries; Mobile telephone accessories, namely, belt clips; Monopods for handheld digital electronic devices, namely, mobile phones, smart phones; Music headphones; PC tablet mounts; Personal headphones for sound transmitting apparatuses; Personal headphones for use with sound transmitting systems; Portable vibration speakers; Protective cases for audio equipment in the nature of headphones; Protective covers and cases for tablet computers; Protective display screen covers adapted for use with mobile phones, smart phones, tablet computers; Stabilizers for PC tablets with protective cases; Stands adapted for mobile phones; Stands adapted for stereos and audio speakers; Stands adapted for tablet computers; Stands for personal digital electronic devices, namely, mobile phones, smart phones, tablet computers; Stereo headphones; Vinyl covers specially adapted for cell phones, MP3 players, laptops, computers, portable satellite radios, personal digital assistants, remote controls, and television satellite recorders; Wireless cellular phone headsets; Wireless indoor and outdoor speakers in International Class 9.1 Petitioner alleges that Respondent’s mark is likely to be confused under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), with its registered mark INNEX INNOVATIVE ACCESSORIES & Design, , and its “related marks,” used in connection with the promotion and sale of its goods and services, including the 1 Registration No. 5080553 issued on November 15, 2016, based on Application Serial No. 86818769, filed on November 12, 2015, alleging first use and first use of the mark in commerce as of October 25, 2015 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). Cancellation No. 92065367 - 4 - following services listed in its registration “wholesale distributorships featuring video games and video game accessories,” for which Petitioner claims use on a continuous basis since as early as February, 2004.2 Except for standing, and the allegations concerning her application for and ownership of the subject Registration, Respondent denies the allegations in her Answer to the Petition to Cancel.3 I. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file history for Respondent’s Registration No. 5080553 which is the subject of this proceeding. The record also includes the following evidence submitted by Petitioner: 1. Notice of Reliance submitted 1/11/2018 (7 TTABVUE): 2 Petitioner owns Registration No. 3741505, issued on January 26, 2010, Section 8 declaration accepted, for the mark INNEX INNOVATIVE ACCESSORIES & Design which includes the word “Innex” in a stylized text; “ACCESSORIES” is disclaimed; and color is not claimed as a feature of the mark. Petitioner pleaded other “related marks” that were not further identified in the Petition to Cancel and are therefore not considered. 3 Respondent also “affirmatively alleges” that as a result of her continuous substantial usage of the mark INNEXT, it is a valuable asset which carries considerable good will and consumer acceptance of products sold under the mark, such goodwill and widespread usage making the mark distinctive to Respondent. Answer ¶ 12, 4 TTABVUE 4. To the extent that the foregoing even amounts to an affirmative defense, it was not pursued at trial and was not addressed by either party in their briefs. Therefore, this claim was neither tried by implied consent under Fed. R. Civ. P. 15(b) nor argued by Respondent and we find, in accordance with the Board’s usual practice, that this claim has been waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013, aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Swatch AG (Swatch SA) (Swatch Ltd.) v. M.Z. Berger & Co., 108 USPQ2d 1463, 1465 n.3 (TTAB 2013), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015). Cancellation No. 92065367 - 5 - - Item # 1: TSDR listing and copy of Petitioner’s Registration No. 3741505 (7 TTABVUE 5-11), - Item # 2: Printout from https://www.amazon.com/iNNEXT-Blue ooth-Microphone-PlayStation-Camouflage/dp/B01NBUTVMN/ref=s r_1_1?ie=UTF8&qid=1515720638&sr=8-1&keywords=innext+head set accessed on 1/11/2018 showing Respondent’s “headsets” are a “video game accessory” (7 TTABVUE 12-24), - Item # 3: Printout from http://unabridged.merriam-webster.com/un abridged/next accessed on 1/11/2018 providing pronunciation of “next” (7 TTABVUE 25-27), - Item # 4: Printout from http://unabridged.merriam-webster.com/ unabridged/annex accessed on 1/11/2018 providing pronunciation of “annex” (7 TTABVUE 28-30), - Item # 5: Printout from https://www.walmart.com/cp/1229019 accessed on 1/11/2018 demonstrating headsets as a video game accessory (7 TTABVUE 31-34) and, - Item # 6: Printout from https://www.amazon.com/video-game-con soles-accessories/b?ie=UTF8&node=471304 accessed on 1/11/2018 demonstrating headsets as a video game accessory (7 TTABVUE 35- 43). 2. Declaration of Titi Ngoy, Chief Executive Officer of Petitioner and Exhibits A- E (8 TTABVUE 4-5, 6-119). Respondent submitted no evidence. Only Petitioner submitted a trial brief. II. Standing Standing is a threshold issue that must be proven by the plaintiff in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB 2010) (citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999)). Our primary reviewing court, the U.S. Court of Appeals for the Federal Circuit, has enunciated a liberal threshold for determining Cancellation No. 92065367 - 6 - standing, namely that a plaintiff must demonstrate that it possesses a “real interest” in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar, 111 USPQ2d at 1062; Ritchie v. Simpson, 50 USPQ2d at 1025; Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). A “real interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 50 USPQ2d at 1026. A belief in likely damage can be shown by establishing a direct commercial interest. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Petitioner’s standing is established by its ownership of pleaded Registration No. 3741505 for the mark INNEX INNOVATIVE ACCESSORIES & Design, which the record shows to be valid and subsisting. Cunningham v. Laser Golf, 55 USPQ2d at 1844; Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1301 (TTAB 2015). Additionally, Respondent has admitted Petitioner’s standing in her Answer. III. Priority Because both Petitioner and Respondent own registrations, priority is an issue, and therefore, Petitioner has the burden to prove it acquired trademark rights prior to Respondent’s first use. Brewski Beer Co. v. Brewski Bros. Inc., 47 USPQ2d 1281, 1284 (TTAB 1998). To establish priority on its likelihood of confusion claim under § 2(d) of the Trademark Act, Petitioner must prove by a preponderance of the evidence that, vis-à-vis Respondent, it owns proprietary rights in “a mark or trade name previously used in the United States . . . and not abandoned . . . .” Threshold.TV, Cancellation No. 92065367 - 7 - Inc. v. Metronome Enterprises, Inc., 96 USPQ2d 1031, 1036-37 (TTAB 2010) (citing Otto Roth & Co. v. Universal Foods Corp., 640 F. 2d 1317, 209 USPQ 40, 44 (CCPA 1981)). These proprietary rights may arise from a prior registration, prior trademark or service mark use, prior use as a trade name, prior use analogous to trademark or service mark use, or any other use sufficient to establish proprietary rights. Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002) (citing Otto Roth, 209 USPQ at 43). When an application or registration is made of record, competent evidence includes the filing date (i.e., its constructive use date) of a party’s application or registration for the relevant mark. The result is that Petitioner may rely on the filing date of its registration — without further proof — to establish its priority. Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009); Brewski Beer v. Brewski Bros., 47 USPQ2d at 1284 (“petitioner or respondent may rely on its registration for the limited purpose of proving that its mark was in use as of the application filing date”). Petitioner is the owner of Registration No. 3741505 for the mark INNEX INNOVATIVE ACCESSORIES & Design, , which was filed on June 29, 2007. Inasmuch as the application that matured into Respondent’s Registration No. 5080553 for the mark INNEXT has a constructive use date of November 12, 2015, and there is no evidence of any earlier use of Respondent’s mark, Petitioner has established priority. Cancellation No. 92065367 - 8 - IV. Likelihood of Confusion As the plaintiff in this proceeding, Petitioner bears the burden of proof, which encompasses the obligation of going forward with sufficient proof of the material allegations of the Petition for Cancellation. Sanyo Watch Co., Inc. v. Sanyo Elec. Co., Ltd., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir. 1982) (in a proceeding to test likelihood of confusion opposer “bears the burden of proof which encompasses not only the ultimate burden of persuasion, but also the obligation of going forward with sufficient proof of the material allegations of the Notice of Opposition”); see also Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001, 1007 (Fed. Cir. 1988) (because § 2(d) of the Trademark Act “provides that no trademark shall be refused unless it is shown that there is a likelihood of confusion with another mark, the requirement that the opposer both establish a prima facie case of likelihood of confusion and carry the ultimate burden of persuasion on that issue is proper”). Our determination under § 2(d) of the Trademark Act is based on an analysis of all of the relevant probative evidence in the record related to a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 568 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1722, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See Federated Foods, Inc., v. Fort Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). “Not all of the [du Pont] factors are relevant to every case, and only factors of significance to the particular Cancellation No. 92065367 - 9 - mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)). A. Similarity of the Marks In determining the similarity of the marks, we consider and compare the appearance, sound, connotation and commercial impression of the marks in their entireties. Palm Bay Imps. v. Veuve Clicquot, 73 USPQ2d at 1692. However, more or less weight may be given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Petitioner’s registered mark is INNEX INNOVATIVE ACCESSORIES and Design, i.e., , and Respondent’s mark is INNEXT. While the marks may be distinguishable in a side-by-side comparison, that is not the test for purposes of the likelihood of confusion analysis. Rather, the test is whether the marks in their entireties are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods and services offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721. Thus, the “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) (citation omitted). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Bay State Brewing Co., 117 USPQ2d 1958, Cancellation No. 92065367 - 10 - 1960 (TTAB 2016) (citing Spoons Rests., Inc., v. Morrison, Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed. Cir. 1992)); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). When a mark comprises both a word and a design, as does Petitioner’s mark, the word portion of the mark is normally accorded greater weight in determining whether the marks are similar because the word portion would be more likely to be impressed upon a consumer’s memory and used by consumers to request the services. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015); CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“[T]he verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed.”). The Board may “give greater force and effect to [a] dominant feature.” Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983) (citations omitted)). Here, the design element of Petitioner’s mark is entitled to less weight than the wording of the mark in our analysis because purchasers will likely use the wording of the marks, Petitioner’s INNEX INNOVATIVE ACCESSORIES, and Respondent’s INNEXT, in describing and requesting the goods and services. Therefore, the literal portion of Petitioner’s mark, and particularly the word INNEX shown in large letters above “Innovative Accessories,” displayed in smaller text underneath, is the dominant portion of its mark. The circle design around the letter “X” is not distinctive Cancellation No. 92065367 - 11 - or memorable and would not be articulated when the mark is pronounced. Thus, it does not lessen the impact of the dominance of the term “INNEX.” This is supported by the fact that Petitioner’s customers and suppliers know and refer to it by the single word “Innex.”4 “INNEX,” the dominant first word in Petitioner’s mark, is an arbitrary term followed by descriptive wording. The first word in Petitioner’s mark also begins with the same first five letters, “I-N-N-E-X,” as are found in Respondent’s mark INNEXT, so the pronunciation of Respondent’s INNEXT mark would be very similar to that of the first word in Petitioner’s mark.5 This similarity is significant as similarity in sound alone may be sufficient to support a finding of likelihood of confusion. See Centraz Indus. Inc. v. Spartan Chem. Co. Inc., 77 USPQ2d 1698, 1701 (TTAB 2006) (similarity in sound between ICE SHINE and ISHINE is so substantial that it outweighs any differences in appearance and meaning, the marks engender similar overall commercial impressions); Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985) (“the term ‘SEYCOS’ is simply so close in appearance and pronunciation to ‘SEIKO’ as to make source confusion inevitable when the marks are used in connection with identical goods”); In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983) (the linguistic component of applicant’s mark 4 Declaration of Titi Ngoy, Petitioner’s Chief Executive Officer, ¶ 13 (8 TTABVUE 5). 5 Petitioner’s evidence shows that the definitions of “NEXT” and “ANNEX” illustrate that the final sounds in both words are pronounced “neks.” citing to Merriam-Webster Unabridged at which indicates “next” is an adjective pronounced “\nekst, before a consonant also neks\,” Notice of Reliance, Item # 3 pp. 24-25 (7 TTABVUE 25-26); “annex” is a transitive verb pronounced “\ǝ- neks, ()a-¦neks\,” Item # 4 pp. 27-28 (7 TTABVUE 28-29). Cancellation No. 92065367 - 12 - ENTELEC & design and the cited registered mark INTELLECT are similar in appearance, substantially identical in pronunciation, contain the same number of syllables and have the same stress pattern, with the primary accent on the initial syllable; noting the final “T” in the registered mark, which is the only sound which serves to distinguish the marks when they are vocalized is discernible only if the mark is perfectly pronounced); Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469, 471 (TTAB 1975) (FINGER•MAGIC and RINGA•MAJIGS are substantially similar phonetically); Breon Labs. Inc. v. Vargas, 170 USPQ 532, 536 (TTAB 1971) (the resemblances between the marks BRONCO-FEDRIN and BRONKEPHRINE in both sound and appearance are of such nature that they frequently would sound alike when spoken and look so nearly alike when written that confusion is likely). Moreover, any slight differences in the sound of similar marks do not avoid the likelihood of confusion. See In re Energy Telecomms. & Elec., 222 USPQ at 351 (citing G.D. Searle & Co. v. Chas. Pfizer & Co., 265 F.2d 385, 121 USPQ 74 (7th Cir. 1959)). When comparing the literal portions of the marks in their entireties, they are similar in sound and appearance. This is particularly so in view of the fact that purchasers are generally more inclined to focus on the first word in any trademark or service mark. See Palm Bay Imps. v. Veuve Clicquot, 73 USPQ2d at 1692; see also Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of mark which is most likely to be impressed upon the mind of a purchaser and remembered” when making purchasing decisions). The similarities in sound and appearance between the marks are greater than their differences. Thus, Cancellation No. 92065367 - 13 - Respondent’s mark and the dominant first word in Petitioner’s mark are likely to be pronounced in the same way, and to convey the same meaning. Based on the foregoing, the strong similarities in appearance and sound between Respondent’s mark and Petitioner’s mark result in a similar commercial impression weighing in favor of a finding of likelihood of confusion. B. Similarity of Goods and Services Likelihood of confusion may be found if confusion is likely with respect to any item that comes within the identification of goods in Respondent’s registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016). Respondent’s mark is registered for various electronic products including headphones, personal headphones for sound transmitting apparatuses, personal headphones for use with sound transmitting systems, and consumer electronic products including electrical audio and speaker cables and connectors. Since at least as early as February 2004, Petitioner has been a distributor of video games and video game accessories under the registered mark INNEX INNOVATIVE ACCESSORIES & Design.6 Titi Ngoy, Petitioner’s Chief Executive Officer, testified that stereo headphones and headsets are a popular video game accessory that 6 Declaration of Titi Ngoy ¶ 3 (8 TTABVUE 4). Cancellation No. 92065367 - 14 - Petitioner has offered for sale and sold since at least as early as 2013.7 Additionally, Petitioner has offered for sale and sold other video game accessories under the mark INNEX INNOVATIVE ACCESSORIES & Design including audio speakers, and electrical audio and speaker cables and connectors, prior to Respondent’s constructive use date of November 12, 2015.8 Thus, Petitioner has used its mark in connection with its wholesale distributorship featuring video games and video game accessories, including some of the same items identified above that are listed in Respondent’s registration. It is well recognized that confusion in trade is likely to occur from the use of similar or the same marks for goods on the one hand and for services which deal with or are related to those goods on the other. In re Hyper Shoppes, 837 F.2d 463, 6 USPQ2d 1025, 1025 (Fed. Cir. 1988) (“retail grocery and general merchandise store services” recited in application would include sale of “wooden and upholstered furniture” recited in cited registration); Safety-Kleen Corp. v. Dresser Indus., Inc., 518 F.2d 1399, 186 USPQ 476, 480 (CCPA 1975) (reasonable likelihood that opposer’s cleaning equipment components and applicant’s cleaning apparatus leasing services would be attributed to same source); Wet Seal Inc. v. FD Mgmt. Inc., 82 USPQ2d 1629, 1639- 40 (TTAB 2007) (likelihood of confusion may result from the use by different parties 7 Titi Ngoy Decl. ¶¶ 4-5 (8 TTABVUE 4-5), Exhibit A 2013 Product Showcase INNEX Innovative Accessories catalog (8 TTABVUE 14-15) and Exhibit C, copy of an invoice evidencing a sale of headsets on August 25, 2014 (8 TTABVUE 114). 8 Titi Ngoy Decl. ¶¶ 7-8, 11 (8 TTABVUE 5) ¶ No. 6, Exhibit B INNEX Innovative Accessories Product Catalog Spring/Summer 2015 (8 TTABVUE 24, 58, 68) and Exhibit D, copy of an invoice evidencing a sale of audio/video cables and connectors on June 24, 2013 (8 TTABVUE 116). Cancellation No. 92065367 - 15 - of the same or similar marks in connection with goods, on the one hand, and services related to those goods, on the other); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (applicant’s identified clothing items are commercially related to opposer’s services of retail and mail order sales of various clothing items); In re Burroughs Corp., 2 USPQ2d 1532, 1534 (TTAB 1986) (registration of “BOSS” for distributorship services in field of furniture, equipment, parts and supplies for use with business machines such as computers, word processors, typewriters, adding machines, and calculators, was properly refused based on examining attorney’s conclusion that applicant’s services are so related to various writing, drawing, and painting implements, which are subject of registration of identical mark and similar marks, as to be likely to cause confusion as to source of applicant’s goods); Corinthian Broadcasting Corp. v. Nippon Electric Co., Ltd., 219 USPQ 733 (TTAB 1983) (applicant’s television picture transmitters and receivers are so related to opposer’s television broadcasting services that contemporaneous use of identical marks likely to cause confusion); Steelcase Inc. v. Steelcare Inc., 219 USPQ 433, 435 (TTAB 1983) (confusion is likely to occur from the use of similar marks for goods on the one hand and for services involving those goods and products on the other). It is not necessary that the respective goods and services be competitive in order to find that they are related for purposes of our likelihood of confusion analysis. That is, the issue is not whether consumers would confuse the goods and services themselves, but rather whether they would be confused as to the source of the goods and services. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The respective goods Cancellation No. 92065367 - 16 - and services need only be “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. v. Triumph Learning, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Here, the relatedness of Respondent’s goods and Petitioner’s services is apparent because Petitioner’s services include sales of some of the very goods identified in Respondent’s registration.9 C. Trade Channels and Classes of Purchasers As there are no limitations or restrictions as to trade channels or classes of purchasers in Respondent’s registration, the Board must presume that Respondent’s goods are marketed in all normal trade channels for the identified goods and to all normal classes of purchasers of them. See, e.g., Coach Servs. v. Triumph Learning, 101 USPQ2d at 1722; Cunningham v. Laser Golf, 55 USPQ2d at 1846 (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”); CBS Inc. v. Morrow, 218 USPQ 198, 199 (Fed. Cir. 1983) (where likelihood of confusion is asserted by an opposer with respect to a trademark for which an application for registration has been filed, the issue must be resolved on the basis of not only a comparison of the involved marks, but also on consideration of the goods 9 We need not consider Respondent’s remaining goods because likelihood of confusion as to any one of the products listed in its identification of goods is sufficient to support a conclusion that the cancellation should be sustained. Tuxedo Monopoly, 209 USPQ at 988 (likelihood of confusion must be found if there is likely to be confusion with respect to any items that come within the identification of goods in the application). Cancellation No. 92065367 - 17 - named in the application and in opposer’s registration and, in the absence of specific limitations in the application and registration, on consideration of the normal and usual channels of trade and methods of distribution). Thus, Respondent is not restricted to a particular channel of trade and there is a presumption that the recited goods move through normal wholesale and retail distribution channels. Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Paula Payne Prods. Co. v. Johnson Publ’g Co., Inc., 177 USPQ 76, 77 (CCPA 1973); In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018). Petitioner’s evidence establishes that Respondent’s goods and Petitioner’s wholesale distributorship services are closely related, involving some of the identical goods. Accordingly, such goods and services are apt to travel through the same channels of trade to the same classes of purchasers. The overlap in trade channels and purchasers are factors that weigh in favor of finding a likelihood of confusion. V. Conclusion After careful consideration of the record, we find that a likelihood of confusion exists between Respondent’s mark INNEXT and Petitioner’s mark INNEX INNOVATIVE ACCESSORIES & Design, . Respondent’s mark is very similar in sound and appearance to Petitioner’s mark resulting in a similar commercial impression. Additionally, Respondent’s goods are so related to Petitioner’s services, and so apt to travel through the same channels of trade to the same classes of customers, that the parties’ use of their respective marks on or in connection with their respective goods and services is likely to cause confusion. Cancellation No. 92065367 - 18 - Decision: The Petition to Cancel Registration No. 5080553 is granted and Registration No. 5080553 will be cancelled in due course.