IqinVision, Inc.

Trademark Trial and Appeal Board

Oct 7, 2005

No. 76300952 (T.T.A.B. Oct. 7, 2005)

Mailed: October 7, 2005
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re IQinVision, Inc.
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Serial No. 76300952
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Ellsworth R. Roston of Fulwider Patton Lee & Utecht for
IQinVision, Inc.

Michael Kazazian, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Quinn, Hohein and Hairston, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

IQinVision, Inc. has filed an application to register
on the Principal Register the mark "IQEYE3," in standard
character form, for "computerized digital cameras for use in
security and surveillance applications" in International Class
9.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the

1 Ser. No. 76300952, filed on August 16, 2001, which is based an
allegation of a date of first use anywhere and in commerce of April
2001.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 76300952
2
mark "EYE Q," which is registered on the Principal Register in
the special form shown below

for "digital cameras, photographic cameras and digital camera
peripherals, namely printers and scanners" in International Class
9,2 as to be likely to cause confusion, or to cause mistake, or
to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity or
dissimilarity in the goods or services at issue and the

2 Reg. No. 2,737,508, issued on July 15, 2003, which sets forth a date
of first use anywhere and in commerce of September 20, 2000.

Ser. No. 76300952
3
similarity or dissimilarity of the respective marks in their
entireties.3
Turning first to consideration of the respective goods,
applicant notes in its brief that its cameras are specifically
identified "as computerized digital cameras for use in security
and surveillance applications" while registrant's cameras are not
so identified. Applicant contends that because its cameras,
unlike those of the registrant, "are identified for use in a
precisely defined and limited field," "[t]here is accordingly no
likelihood of confusion between applicant's cameras and the
registrant's cameras." Applicant also states that it "is
prepared to provide a declaration that applicant has not
experienced any instances of confusion in the marketplace between
applicant's cameras and the registrant's cameras."
The Examining Attorney, on the other hand, correctly
points out in his brief that it is well settled that the issue of
likelihood of confusion is determined on the basis of the goods
or services as they are respectively identified in the particular
application and the cited registration. See, e.g., Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); Canadian Imperial Bank of
Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813,
1815-16 (Fed. Cir. 1987); CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d

3 The court, in particular, pointed out that: "The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods [or services] and differences
in the marks." 192 USPQ at 29.
Ser. No. 76300952
4
1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula Payne
Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973). In view thereof, and further citing In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981) and In re Optica
International, 196 USPQ 775, 778 (TTAB 1977), the Examining
Attorney persuasively argues that "since the identification of
the registrant's digital cameras is very broad, without
limitation as to a specific purpose or use, it is presumed that
the registration encompasses all goods of the type described,
including those in the applicant's more specific identification,
that they move in all normal channels of trade and that they are
available to all potential customers." We thus concur with the
Examining Attorney that:
[A]pplicant's argument that its cameras "are
identified for use in a precisely defined and
limited field," and its conclusion that there
is no likelihood of confusion because the
registrant's cameras "are not identified for
use in this precisely identified and limited
field," are without merit. The plain wording
in each identification indicates that the
goods consist of digital cameras, and the
registrant's goods are not limited to any
specific purpose or function.

Furthermore, we also agree with the Examining
Attorney's finding that the goods at issue herein are legally
identical in part since, as the Examining Attorney accurately
observes, it is clearly the case that "the registrant's broadly
identified 'digital cameras,' [being set forth] without any
limitation as to use or purpose, can be interpreted to encompass
all digital cameras, including those in the applicant's more

Ser. No. 76300952
5
specific identification." The contemporaneous use of the same or
similar marks in connection with such legally identical goods
would accordingly be likely to cause confusion as to the source
or sponsorship thereof. Moreover, as to applicant's claim that
it "has not experienced any instances of confusion in the
marketplace between applicant's cameras and the registrant's
cameras," suffice it to say that the record not only fails to
contain an affidavit, declaration or other evidence in support
thereof, but in any event an asserted lack of any incidents of
actual confusion is a meaningful factor only where the record
demonstrates that there has been appreciable and continuous use
by applicant of its mark in the same market(s) as those served by
registrant under its mark. See, e.g., Gillette Canada Inc. v.
Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Specifically,
there must be evidence showing that there has been an opportunity
for instances of actual confusion to occur and here the record is
devoid of any such proof. See, e.g., Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000).
Turning, therefore, to consideration of the respective
marks, applicant argues in its brief that its "IQEYE3" mark is
distinguishable from registrant's "EYE Q" mark. In particular,
applicant maintains that:
1. Applicant's mark is different from
the cited registration because applicant's
trademark includes the letter "I" at the
beginning of the mark. The letter has added
significance because it is the first letter
in applicant's mark[.] The cited reference
does not include the letter and certainly
does not include the letter "I" as the first
letter in the trademark.
Ser. No. 76300952
6

2. The cited reference constitutes a
design. Applicant's trademark does not
constitute a design. The appearance of
applicant's trademark is accordingly quite
different from the appearance of the
trademark in the cited registration.

3. Applicant's trademark includes the
numeral "3". There is no numeral in the
trademark of the cited registration.

Notwithstanding such differences, we agree with the
Examining Attorney that the marks at issue are confusingly
similar, especially when used in connection with legally
identical goods. As stated by our principal reviewing court in
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992), "[w]hen marks would
appear on virtually identical goods or services, the degree of
similarity necessary to support a conclusion of likely confusion
declines." Here, the Examining Attorney asserts, applicant's
mark "is highly similar to the [registrant's] mark ... because it
shares the identical term EYE in relation to the term IQ. The
Examining Attorney also insists that the "slight differences"
between the marks at issue fail to "obviate the similarity
between the marks ... [so as to ] overcome a likelihood of
confusion." In particular, the Examining Attorney contends that
"the shared dominant term EYE, used to create the phonetic term
IQ, is likely to cause the average consumer to retain a similar
overall commercial impression of the marks."
When considered in their entireties, it is obvious that
applicant's mark and registrant's mark share substantial
similarities in sound, appearance, connotation and commercial
Ser. No. 76300952
7
impression. Although, in registrant's "EYE Q" mark, it is the
word "EYE," rather than a letter "I" as in applicant's "IQEYE3"
mark, which in conjunction with the letter "Q" conveys the
meaning of the term "IQ," both marks still share and readily
project, in significant part, the connotation of the term "IQ."
Both marks also prominently feature the word "EYE," which in the
case of applicant's mark could be depicted, as it is in
registrant's mark, in lower case letters with the remaining
lettering in all capital letters, i.e., IQeye3. See, e.g.,
Phillips Petroleum Co. v. C. J. Webb, Inc. 442 F.2d 1376, 170
USPQ 35, 36 (CCPA 1971) [a mark registered in typed or standard
character form is not limited to the depiction thereof in any
special form]; and INB National Bank v. Metrohost Inc., 22 USPQ2d
1585, 1588 (TTAB 1992) ["[a]s the Phillips Petroleum case makes
clear, when [an] applicant seeks a typed or block letter
registration of its word mark, then the Board must consider all
reasonable manners in which ... [the word mark] could be
depicted"]. It consequently is not a valid argument to contend,
as applicant does, that there is a distinguishable difference in
appearance between its mark and registrant's "design" mark. See,
e.g., Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983), in which it was pointed out that (italics in
original):
[T]he argument concerning a difference
in type style is not viable where one party
asserts rights in no particular display. By
presenting its mark merely in a typed
drawing, a difference cannot legally be
asserted by that party. .... Thus, ... the
displays must be considered the same.
Ser. No. 76300952
8

In addition, the fact that applicant's mark ends with
the numeral "3" while registrant's mark does not contain such a
term or any other number is simply not a sufficient basis on
which to predicate a finding of no likelihood of confusion. In
this regard, it would appear from the nature of applicant's goods
that its computerized, digital security and surveillance cameras,
and registrant's legally identical digital cameras, would be
marketed primarily to sophisticated purchasers, such as home
and/or business security monitoring firms, rather than to
ordinary consumers. It is well established, however, that the
fact buyers are knowledgeable and discriminating as to the goods
required to meet their business equipment needs and therefore
would be expected to exercise care and deliberation in their
choice of goods "does not necessarily preclude their mistaking
one trademark for another" or that they otherwise are entirely
immune from confusion as to source or sponsorship. Wincharger
Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA
1962). See also In re Research & Trading Corp., 793 F.2d 1276,
230 USPQ 49, 50 (Fed. Cir. 1986); In re Decombe, 9 USPQ 1812,
1814-15 (TTAB 1988); and In re Pellerin Milnor Corp., 221 USPQ
558, 560 (TTAB 1983). Thus, even assuming that the sophisticated
purchasers of applicant's and registrant's goods would notice the
numeral "3" in applicant's mark, such number nonetheless would
most likely be regarded as suggesting, in conjunction with the
word "EYE," that applicant's "computerized digital cameras for
use in security and surveillance applications" provide a "third
Ser. No. 76300952
9
eye" with respect to providing protection of people and/or places
and things, just as registrant's digital cameras function so as
to provide an extra "eye" for watching and safeguarding purposes.
Accordingly, we conclude that purchasers who are
familiar or otherwise acquainted with registrant's stylized "EYE
Q" mark for, in particular, "digital cameras" would be likely to
believe, upon encountering applicant's substantially similar
"IQEYE3" mark for "computerized digital cameras for use in
security and surveillance applications," that such legally
identical products emanate from, or are otherwise sponsored by or
affiliated with, the same source.
Decision: The refusal under Section 2(d) is affirmed.