ISCA Technologies, Inc.

Trademark Trial and Appeal Board

Apr 24, 2019

87321402 (T.T.A.B. Apr. 24, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: April 24, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re ISCA Technologies, Inc.
_____

Serial No. 87321402
_____

Benjamin N. Diederich of the Law Office of Benjamin Diederich,
for ISCA Technologies, Inc.
William H. Dawe, III, Trademark Examining Attorney, Law Office 108,
Steven R. Berk, Managing Attorney.
_____

Before Zervas, Mermelstein, and Shaw,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
ISCA Technologies, Inc. (“Applicant”) seeks registration on the Principal Register
of the mark ACTTRA, in standard characters, for “Insecticides for agricultural use;
chemical compositions to attract and kill insects; insecticides and insect attractants
for use in pest control,” in International Class 5.1 Applicant states that “The wording
ACTTRA has no meaning in a foreign language.”

1 Application Serial No. 87321402 was filed on February 1, 2017, under Section 1(b) of the
Trademark Act, based upon Applicant’s claim of a bona fide intent to use the mark in
commerce.
Serial No. 87321402
- 2 -
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as used in connection
with the identified goods, so resembles the mark ACTARA, in typed form, for
“agricultural insecticides,” in International Class 5, as to be likely to cause confusion.2
When the refusal was made final, Applicant appealed. After a brief remand to
correct a procedural error, the appeal resumed. The case is fully briefed. We affirm
the refusal to register the mark.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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 Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the goods and the similarities between the marks. See 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.”). We discuss each du Pont
factor for which there is evidence or argument.

2 Registration No. 2482623, issued August 28, 2001; renewed. Prior to November 2, 2003,
“standard character” drawings were known as “typed” drawings.
Serial No. 87321402
- 3 -
A. The nature and similarity or dissimilarity of the goods, the established, likely-
to-continue trade channels, and the classes of purchasers.
We begin with the similarity of the respective goods. Applicant’s goods are
“Insecticides for agricultural use; chemical compositions to attract and kill insects;
insecticides and insect attractants for use in pest control.” Registrant’s goods are
“Insecticides for agricultural use.” Applicant’s and Registrant’s goods are identical in
part inasmuch as both identify agricultural insecticides. Applicant does not argue
otherwise. It is sufficient for a finding of likelihood of confusion if relatedness is
established for any item encompassed by the identification of goods within a
particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Because the goods are identical in part without restriction, we must presume that
they are sold in all normal trade channels and to all normal classes of purchasers for
such goods. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Thus, we consider Applicant’s and
Registrant’s trade channels and classes of purchasers to be the same. In re Yawata
Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are
legally identical goods, the channels of trade and classes of purchasers are considered
to be the same).
The du Pont factors regarding the similarity of the goods, channels of trade, and
classes of purchasers favor a finding of a likelihood of confusion.
Serial No. 87321402
- 4 -
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
Next, we consider the du Pont factor relating to the similarity of the marks. In
comparing the marks we must consider their 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, 1692 (Fed. Cir. 2005). Similarity
as to any one of these factors may be sufficient to support a finding that the marks
are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ
523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or
sound alone is likely to cause confusion.”); In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988). The emphasis of our analysis must be on the recollection of the
average purchaser, who normally retains a general, rather than specific, impression
of trademarks. 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).
Moreover, the identity of the goods reduces the degree of similarity between the
marks that is necessary for confusion to be likely. See, e.g., In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012); In re Mighty Tea Leaf, 601 F.3d 1342,
94 USPQ2d 1257, 1260 (Fed. Cir. 2010); Century 21 Real Estate Corp. v. Century Life
of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Both marks begin with the letter combination “ACT.” As the first portion of each
mark, “ACT” 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
Serial No. 87321402
- 5 -
(TTAB 1988). Although the similarity or dissimilarity of the marks is determined
based on the marks in their entireties, there is nothing improper in giving more or
less weight to a particular feature of a mark, provided the ultimate conclusion rests
on a consideration of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
In addition, ACTTRA and ACTARA vary by only one letter, resulting in a similar
appearance and sound. Applicant argues that its mark “is a two syllable word
pronounced as ‘ACK-tra’” whereas the cited mark “is a three syllable word
pronounced as ‘ac-TAR-a.’”3 This argument is unpersuasive. It is well settled that
there is no correct pronunciation of a mark. Viterra, 101 USPQ2d at 1912. For
example, Registrant’s mark also could be pronounced “ACT-a-ra” which sounds very
similar to the purported pronunciation of Applicant’s mark, “ACK-tra.” Given the
slight differences in the possible pronunciation of the last syllable or syllables of the
marks, consumers who hear the marks spoken by others might not notice, or could
easily forget, the difference. See Viterra, 101 USPQ2d at 1912; In re Energy
Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983) (“Slight differences in the
sound of similar marks do not avoid a likelihood of confusion.”).
When viewed in their entireties, we find the marks look similar and would sound
similar when consumers call for the goods with which they are used. See Viterra, 101
USPQ2d at 1911. Regarding connotation and commercial impression, the slight
variation in spelling does not impact whatever meaning attaches to the parties’

3 Applicant’s Br., p. 8, 4 TTABVUE 9.
Serial No. 87321402
- 6 -
respective marks, as each word appears to be fanciful and without a recognizable
connotation. We therefore find the connotation and commercial impression to be
similar as well because the spelling and possible pronunciation are so similar.
For the foregoing reasons, we find that the marks are similar. This du Pont factor
favors a finding of likelihood of confusion.
C. Conclusion
Having considered all the evidence and arguments on the relevant du Pont factors,
we conclude that there is a likelihood of confusion between Applicant’s mark,
ACTTRA, and Registrant’s mark, ACTARA, for identical-in-part goods, namely,
agricultural insecticides.

Decision: The refusal to register under Section 2(d) is affirmed.