Lifeworks Technology Group LLC

Trademark Trial and Appeal Board

Aug 8, 2018

No. 87127567 (T.T.A.B. Aug. 8, 2018)

Mailed: August 8, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board
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In re Lifeworks Technology Group LLC
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Serial Nos. 87127567 and 87127574
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Anna Vishev of the Law Office of Anna Vishev P.C.,
for Lifeworks Technology Group LLC.
Heather D. Thompson, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
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Before Shaw, Hightower and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Lifeworks Technology Group LLC (“Applicant”) seeks registration on the Principal
Register of the marks POWER BAR1 and PWR BAR,2 both in standard characters,
and both used in connection with “charging cables for electronic devices, namely, for

1 Application Serial No. 87127567, filed on August 4, 2016, based an allegation of a bona fide
intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b). The application includes a disclaimer of the term POWER apart from the mark as
shown.
2 Application Serial No. 87127574, filed on August 4, 2016, based an allegation of a bona fide
intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial Nos. 87127567 and 87127574
2
mobile phones, tablet computers, and computers” in International Class 9.
The Trademark Examining Attorney has refused registration of both of
Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on
the ground that each of Applicant’s marks so resembles the registered mark
POWERBAR, in standard characters, for “batteries, battery packs and battery
chargers for consumer electronic devices” in International Class 9,3 that use of
Applicant’s marks in connection with Applicant’s goods is likely to cause confusion or
mistake or to deceive.
After the Examining Attorney made the refusals final, Applicant appealed. By
order dated April 4, 2018, the Board (1) consolidated the appeals since the appeals
involve common questions of law and fact and the records are substantially similar,
and (2) suspended the consolidated appeal because the registration cited by the
Examining Attorney as a bar to registration in each appeal was subject to a Board
cancellation proceeding, i.e., Cancellation No. 92065745.4 Cancellation No. 92065745
has now been dismissed with prejudice in light of the petitioner’s withdrawal of the
petition to cancel without the respondent’s written consent.5 Accordingly, this
consolidated appeal is now resumed. We affirm the refusals to register.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of

3 Registration No. 4482290, issued on February 11, 2014.
4 See 8 TTABVUE in both application Serial Nos. 87127567 and 87127574.
5 See Cancellation No. 92065745, 20 TTABVUE.
Serial Nos. 87127567 and 87127574
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confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods. 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.”).
A. Similarities of the Marks
We initially address the first du Pont factor, “the similarity or dissimilarity of the
marks 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 proper test is not a side-by-side comparison of the marks, but
instead whether the marks are sufficiently similar in terms of their commercial
impression such that persons who encounter the marks would be likely to assume a
connection between the [owners].” Coach Servs. Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted).
Applicant’s marks are PWR BAR and POWER BAR. The cited mark is
POWERBAR. Applicant’s POWER BAR mark is virtually identical to the cited mark
POWERBAR except for a space between the words POWER and BAR in Applicant’s
mark. The space, however, does not significantly distinguish the cited mark
POWERBAR from Applicant’s POWER BAR mark. See, e.g., Mini Melts, Inc. v.
Serial Nos. 87127567 and 87127574
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Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016) (“The absence of a space
in Applicant's mark MINIMELTS does not meaningfully distinguish it from
Opposer's mark [MINI MELTS].”); Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ
48, 51 (1984) (“the marks [SEA GUARD and SEAGUARD] are, in contemplation of
law, identical”); In re Best Western Family Steak House, Inc., 222 USPQ 827, 827
(TTAB 1984) (BEEFMASTER and BEEF MASTER “are practically identical”);
Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d
1576, 222 USPQ 665 (Fed. Cir. 1984) (the presence or absence of a space between
virtually the same words, e.g., STOCKPOT and STOCK POT, is not a significant
difference). Because Applicant’s POWER BAR mark is practically identical to the
cited mark POWERBAR, the marks are substantially similar, if not identical, in
sound, appearance, connotation and commercial impression.
With regard to Applicant’s PWR BAR mark, we find that when the term PWR is
considered in the context of the Applicant’s listed charging cables for electronic
devices, the visual and phonetic interpretation is more likely to be that of a version
of the word “power.” That is, given that the Applicant’s charging cables are used to
provide power to the electronic devices with which they are used, consumers would
be inclined to view PWR as an abbreviation or acronym for the word “power.” Indeed,
the acronym dictionary definitions of record for the term PWR include a definition
defining the term PWR as “power.”6 Applicant argues, however, that because the
acronym PWR has multiple meanings (including “pressurized water reactor” or

6 March 14, 2017 Response to Office Action, TSDR pp. 9-12 (‘574 application).
Serial Nos. 87127567 and 87127574
5
“probably won’t reply”) and because these meanings are not present in Registrant’s
POWERBAR mark, confusion is unlikely.7
Applicant’s argument is unavailing. The fact that the term PWR has multiple
meanings in different contexts is not controlling. Cf. In re IP Carrier Consulting Grp.,
84 USPQ2d 1028, 1034 (TTAB 2007) (descriptiveness determined in relation to
services identified in application; the fact that a term has multiple meanings is not
controlling or relevant to the analysis as the term may be merely descriptive if one of
the meanings of the word is descriptive). Here, when consumers view Applicant’s
PWR BAR mark in connection with Applicant’s goods, consumers are likely to
perceive the term PWR to mean “power” for the reasons explained above.
In view of the foregoing, we find that Applicant’s PWR BAR mark and the cited
POWERBAR mark are not only visually and phonetically similar, but both marks
engender similar connotations and commercial impressions, particularly when
viewed in the context of the goods at issue.
Thus, the first du Pont factor strongly supports a conclusion that confusion is
likely.
B. Similarity of the Goods
We next turn to the comparison of the goods, the second du Pont factor, keeping
in mind the greater the degree of similarity between the marks, the lesser the degree
of similarity between the goods necessary to support a finding of likelihood of
confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). In making our

7 Applicant’s Appeal Brief, p. 4, 4 TTABVUE 5 (‘574 application).
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comparison, we consider the goods as identified in Applicant’s application vis-à-vis
the goods identified in the cited registration. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Hous. Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990); see also Hewlett-Packard Co. v. Packard Press Inc., 281 F.2d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir. 2002).
At the outset, we note that the goods in question are not identical. However, it is
not necessary that the goods be identical or even competitive in nature in order to
support a finding of likelihood of confusion, it being sufficient that the goods are
related in some manner and/or that the circumstances surrounding their marketing
be such that they would be likely to be encountered by the same persons under
circumstances that would give rise, because of the marks employed thereon, to the
mistaken belief that they emanate from the same source. Coach Servs., 101 USPQ2d
at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see
also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290
(Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). Evidence
of relatedness may include news articles and/or evidence from computer databases
showing that the relevant goods are used together or used by the same purchasers;
advertisements showing that the relevant goods are advertised together or offered by
the same manufacturer or dealer; and/or copies of prior use-based registrations of the
same mark for both Applicant's goods and the goods listed in the cited registrations.
In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding pepper sauce and agave
Serial Nos. 87127567 and 87127574
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related where evidence showed both were used for the same purpose in the same
recipes and thus consumers were likely to purchase the products at the same time
and in the same stores). The issue is not whether purchasers would confuse the goods,
but rather whether there is a likelihood of confusion as to the source of these goods.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 832 (TTAB 1984).
In support of his refusal, the Examining Attorney submitted internet evidence
demonstrating that third parties offer both charging cables and batteries and battery
chargers for electronic devices under the same mark. The evidence comprises
screenshots of the websites of the following companies: Battery on the Go, Tenergy,
Mophie, RavPower, Anker, AmazonBasics and Syncwire.8 The Examining Attorney
argues that the foregoing evidence establishes that the goods described in Applicant’s
involved applications and Registrant’s registration are related because the same
entity commonly manufactures the relevant goods, namely, battery packs and
chargers along with charging cables, and markets these goods under the same mark.9
In traversing the refusal, Applicant argues that (1) the goods at issue are not
identical, (2) its described cables are typically sold separately from the electronic
devices upon which they are designed to be used, and (3) Registrant’s batteries and

8 April 5, 2017 Office Action, TSDR pp. 7-73 (‘567 application); and April 5, 2017 Office Action,
TSDR pp. 7-73 (‘574 application).
9 Examining Attorney’s Appeal Briefs, p. 8, 6 TTABVUE 9.
Serial Nos. 87127567 and 87127574
8
battery packs are typically sold together with the electronic devices, and therefore
confusion is unlikely.10
We do not find Applicant’s arguments persuasive. We initially note that neither
Applicant’s identification nor Registrant’s identification contain any limitation that
the identified goods are sold separately from the electronic devices for which they are
used. Accordingly, both Applicant’s charging cables and Registrant’s batteries,
battery packs and battery chargers may be sold separately or with the electronic
devices with which they are used. Further, Applicant has not submitted any evidence
to demonstrate that its charging cables are sold separately from electronic devices or
that Registrant’s goods are sold with electronic devices. Even if Applicant had
submitted such evidence, it would be to no avail since our analysis of the relatedness
of Applicant's and Registrant's goods is based on the description of the goods set forth
in the application and registration at issue, not on extrinsic evidence of actual use.
See Octocom, 16 USPQ2d at 1787; Hewlett-Packard, 62 USPQ2d at 1004. Moreover,
while we acknowledge that the goods at issue are not identical and that they may
perform somewhat different functions, we nonetheless conclude, based on the third-
party evidence of record submitted by the Examining Attorney, that Applicant’s goods
and Registrant’s goods are related and are the types of goods that have been offered
under a single mark by a single entity such that, when identified by virtually identical
or substantially identical marks, as is the case here, confusion as to source is likely.
In re Shell Oil Co., 922 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“[E]ven

10 Applicant’s Appeal Briefs, pp. 3-4, 4 TTABVUE 4-5.
Serial Nos. 87127567 and 87127574
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when goods or services are not competitive or intrinsically related, the use of identical
marks can lead to the assumption that there is a common source.”).
Thus, the second du Pont factor also favors a finding of likelihood of confusion.
C. Similarities in Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third du
Pont factor. Because there are no limitations as to channels of trade or classes of
purchasers in either the applications or cited registration and the identified goods are
closely related, we must presume that the goods identified in the applications and
registration travel through all normal and usual trade channels for such goods, and
that they are sold to all classes of prospective purchasers for those goods, i.e.,
consumers who own electronic devices. Stone Lion Capital, 110 USPQ2d at 1161; see
also Coach Servs., 101 USPQ2d at 1723 (absent limitation “goods are presumed to
travel in all normal channels ... for the relevant goods”). The only probative evidence
relating to the trade channels through which the goods at issue travel is the third-
party website evidence submitted by the Examining Attorney discussed above. This
evidence shows that Applicant’s goods and Registrants’ goods may be provided in the
same online marketplace to similar or overlapping purchasers. Therefore, the third
du Pont factor also weighs in favor of finding a likelihood of confusion.
D. Sophistication of Consumers
We next consider Applicant's arguments under the fourth du Pont factor: the
conditions under which and buyers to whom sales are made, i.e., “impulse” versus
careful, sophisticated purchasing. du Pont, 177 USPQ at 567. Applicant argues that
consumers of Applicant’s products are sophisticated enough to understand that
Serial Nos. 87127567 and 87127574
10
Applicant’s use of its PWR BAR and POWER BAR marks for its charging cables is
not indicative of any affiliation with the Registrant.11
We find Applicant’s arguments unpersuasive. Our precedent requires that we
base our decision on the least sophisticated potential purchasers of the identified
goods. Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d
1030, 1039 (TTAB 2016) (citing Stone Lion Capital, 110 USPQ2d at 1163). The fact
that purchasers are sophisticated or knowledgeable in a particular field does not
necessarily mean that they are sophisticated or knowledgeable in the field of
trademarks or immune from source confusion. See In re Cynosure, Inc., 90 USPQ2d
1644 (TTAB 2009). With virtually identical or substantially identical marks and
related goods, even a careful, sophisticated consumer of such goods is not likely to
understand that the goods emanate from different sources, particularly where, as
here, there is evidence that the types of goods offered by both Applicant and
Registrant may emanate from a single source under a single mark. Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000).
This fourth du Pont factor is therefore neutral.
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Because we have
found that the marks at issue are either virtually or substantially identical; that
Applicant’s identified goods are related to Registrants’ goods and move in similar or

11 Id. at p. 4; 4 TTABVUE 5 in both application Serial Nos. 87127567 and 87127574.
Serial Nos. 87127567 and 87127574
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overlapping trade channels; and that they would be offered to the same or similar
classes of purchasers, we conclude that Applicant’s POWER BAR and PWR BAR
marks, as used in connection with the goods identified in its involved applications, so
resemble the cited mark POWERBAR as to be likely to cause confusion or mistake,
or to deceive under Section 2(d) of the Trademark Act.
Decision: The refusals to register Applicant’s POWER BAR and PWR BAR marks
under Section 2(d) of the Trademark Act are affirmed.