Navitas Systems

Trademark Trial and Appeal Board

Nov 4, 2013

No. 85547199 (T.T.A.B. Nov. 4, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: November 4, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Navitas Systems
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Serial No. 85547199
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Laura McFarland-Taylor of McFarland-Taylor Associates for Navitas Systems.

Darryl M. Spruill, Trademark Examining Attorney, Law Office 112 (Angela Wilson,
Managing Attorney).
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Before Kuhlke, Greenbaum and Adlin, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Navitas Systems (“applicant”) seeks registration of the mark CORE POWER,
in standard characters and with POWER disclaimed, for
Custom energy systems and related accessories comprised
of solar panels for the production of electricity, power
managers in the nature of electrical power supplies, fuel
cells, capacitors, power cables, electrical cable harnesses,
and integrated circuit modules attached to or plugged into
solar panels for the production of electricity; Custom
made battery packs, custom made battery chargers,
custom made power suppliers, and customized battery
testing equipment, namely, voltmeters, ground-fault
meters, conductance/marginality testers in the nature of
Serial No. 85547199
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electrical conductors, and electrical load-testers in
International Class 9.1

The examining attorney refused registration of the mark under Section 2(d)
of the Act, on the ground that applicant’s mark so resembles the previously-
registered mark CORRPOWER in typed form for
Rectifiers, power supplies, reference electrodes, electric
meters, remote log, tape, CD, disk and graph recorders to
record electrical measurements, electrical measurement
monitors, displays, test instruments for testing electric
current and corrosion levels, electrical corrosion monitors,
electronic probes for measuring corrosion and ground
potential, coupons for measuring resistance and corrosion,
computer hardware and computer software that analyzes
and makes recommendations in response to cathodic
protection and corrosion control problems in International
Class 92

that use of applicant’s mark in connection with applicant’s goods is likely to cause
confusion.
After the refusal became final, applicant appealed, its first request for
reconsideration was denied3 and applicant and the examining attorney filed briefs.
We affirm the refusal to register.

1 Application Serial No. 85547199, filed February 20, 2012 based on an alleged intent
to use the mark in commerce under Section 1(b) of the Act.
2 Registration No. 2449774, issued May 8, 2001 from an application filed January 20,
1999; renewed.
3 On April 16, 2013, the day its first motion for reconsideration was denied, applicant
filed with the examining operation, but not the Board, a second motion for reconsideration,
which is pending. Applicant’s Appeal Brief effectively subsumes its second motion for
reconsideration and this final decision constitutes a ruling on that motion as well as the
appeal.
Serial No. 85547199
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Analysis
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
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 Company, Inc., 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 similarities
between the goods and/or services. 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 of the
du Pont factors concerning which applicant or the examining attorney submitted
argument or evidence.
Turning first to the marks, we must compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imports
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
is not whether the marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently similar in terms of their
overall commercial impression so that confusion as to the source of the goods and
services offered under the respective marks is likely to result. San Fernando Elec.
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Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA
1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991).
In this case, applicant’s and registrant’s marks are highly similar in
appearance, with the only differences between the marks being that applicant’s
includes an “E” after COR while registrant’s includes an “R,” and applicant’s mark
includes a space before the word POWER while registrant’s does not. Furthermore,
during prosecution, applicant conceded that “Applicant’s mark and Registrant’s
mark are identical as to pronunciation,” Office Action response of September 1,
2012, and in its brief applicant admits that its mark “is phonetically similar to
Registrant’s mark.” Applicant’s Appeal Brief at 12. The marks also convey similar
or identical meanings, because CORR is not itself a word, and as applicant
concedes, the first part of registrant’s mark would be pronounced the same way as
CORE, the first part of applicant’s mark. In short, the marks create essentially the
same overall commercial impression, applicant does not argue to the contrary and
this factor therefore weighs heavily in support of a finding of likelihood of confusion.
As for the goods, their channels of trade and the conditions under which and
buyers to whom sales are made, it is settled that the goods need not be identical or
even competitive in order to support a finding of likelihood of confusion. It is
enough that the goods are related in some manner or that the circumstances
surrounding their marketing are such that they would be likely to be seen by the
same persons under circumstances which could give rise, because of the marks
used, to a mistaken belief that applicant’s and registrant’s goods originate from or
Serial No. 85547199
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are in some way associated with the same source or that there is an association
between the sources of the goods and services. Hilson Research, Inc. v. Society for
Human Resource Management, 27 USPQ2d 1423, 1432 (TTAB 1993); In re Melville
Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); Schering Corp. v. Alza Corp., 207
USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corp. v. Anixter Bros. Inc., 201
USPQ 851, 854 (TTAB 1978); In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978). The issue is not whether purchasers would confuse
the goods, but rather whether there is a likelihood of confusion as to the source of
the goods. In re Rexel Inc., 223 USPQ at 832.
Here, applicant offers “custom made power suppliers” while registrant offers
“power supplies,” and registrant’s “electric meters” encompass applicant’s
“voltmeters,” because a “voltmeter” is “[a]n instrument used for measuring the
difference in voltage between two points in an electric circuit.” Office Action of
November 4, 2012 (definition from “dictionary.com”). In other words, applicant’s
goods and registrant’s goods are in part identical.4
Moreover, the examining attorney has introduced evidence that a number of
marks are registered to different owners for certain of applicant’s goods on the one
hand and certain of registrant’s goods on the other, including: YINGLI SOLAR &
Design, Reg. No. 3893577 (“Battery chargers” and “Current rectifiers”);

4 We recognize that in addition to “custom made power suppliers,” applicant also
offers “electrical power supplies” as part of its “custom energy systems … comprised of solar
panels.” However, we may not read applicant’s identification of goods to suggest that its
“custom made power suppliers” or “voltmeters” -- which stand alone without modification
after the semicolon in applicant’s identification – are also sold as part of applicant’s “custom
energy systems … comprised of solar panels.” In re Midwest Gaming & Entertainment
LLC, 106 USPQ2d 1163, 1166 (TTAB 2013).
Serial No. 85547199
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SPACEQUEST, Reg. No. 4033884 (“solar panels” and “power supplies”); ,
Reg. No. 3985788 (“Solar panels for production of electricity” and “Power supplies”);
, Reg. No. 4087428 (“Battery chargers” and “electrical power supplies”);
TOPMARK, Reg. No. 4090684 (“Power supplies” and “Rectifiers”); P, Reg. No.
4085287 (“battery chargers” and “consumer type power supplies”); SESAME &
Design, Reg. No. 4148162 (“Power supplies electrical” and “Current rectifiers”);
HTT, Reg. No. 4035048 (“Battery chargers” and “Rectifiers”); MOTECH, Reg. No.
4134323 (“programmable power supplies” and “rectifiers”); and DYNAPOWER, Reg.
No. 4201702 (“AC and DC power supplies” and “rectifiers”). “Third-party
registrations which cover a number of differing goods and/or services, and which are
based on use in commerce, although not evidence that the marks shown therein are
in use on a commercial scale or that the public is familiar with them, may
nevertheless have some probative value to the extent that they may serve to
suggest that such goods or services are of a type which may emanate from a single
source.” See, In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1998); In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). The
examining attorney also introduced a blog posting entitled “Enabling a commodity
market in solar power: Dr. Smith’s electric meters,” which explains that electric
meters can be used in connection with solar power. Office Action of March 13, 2012.
In short, the evidence establishes that at least some of applicant’s goods and
Serial No. 85547199
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registrant’s goods are similar or related. See Tuxedo Monopoly, Inc. v. General Mills
Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion
must be found with respect to a class of goods or services in an application if there is
likely to be confusion with respect to any item that comes within the identification
of the goods or services in that class).5
Applicant stresses that its goods “cannot be purchased ‘off the shelf,’” and are
“custom made,” Applicant’s Appeal Brief at 11, and indeed, applicant’s identification
makes clear that its goods are “custom made.” However, registrant’s identification
of goods does not contain any limitations. Indeed, registrant’s goods are presumed
to encompass all goods of the type described and are presumed to move in all
normal channels of trade for those goods and be available to all classes of
consumers, including the consumers who purchase applicant’s custom-made
products. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d
1253, 1261 (Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374
(TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). In short, applicant’s
and registrant’s goods are at least related, presumed to travel in the same channels
of trade and may be offered to the same customers. These factors therefore also
weigh in favor of a finding of likelihood of confusion.

5 Applicant’s reliance on In re Cotter and Company, 179 USPQ 828 (TTAB 1973) is
misplaced. In that case, the applicant sought registration for a “metal primer” for use on
particular goods, not including automobiles, while the cited mark was registered “for the
undercoating of automobiles.” Here, applicant’s “custom made power suppliers” and
“voltmeters” and registrant’s “power supplies” and “electric meters” contain no analogous
limitations.
Serial No. 85547199
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Furthermore, while applicant’s goods are custom-made, applicant’s argument
that its and registrant’s goods are not available through “normal” channels of trade
is unsupported by the evidence of record. In fact, while applicant provided the
URL’s for its website and registrant’s website in its Office Action response of
September 1, 2012, this is not sufficient to make applicant’s or registrant’s website
of record. In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013) (“we have
made clear that providing hyperlinks to Internet materials is insufficient to make
such materials of record”); In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269,
1274 (TTAB 2012) (“a reference to a website’s internet address is not sufficient to
make the content of that website or any pages from that website of record”).
Applicant eventually submitted printouts from its and registrant’s websites with its
Appeal Brief and Reply Brief, but that was too late to make them of record.
Trademark Rule 2.142(d) (“The record in the application should be complete prior to
the filing of an appeal. The [Board] will ordinarily not consider additional evidence
filed with the Board by the appellant or by the examiner after the appeal is filed.”).6

6 More fundamentally, applicant’s argument that we should consider extrinsic
evidence regarding the nature of the goods is not well-taken. Even assuming that
registrant’s identification of goods is “somewhat unclear,” applicant’s untimely evidence
does not shed light on registrant’s identification or reveal that any terms in registrant’s
identification have a particular meaning, much less a “meaning in the trade.” Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); In re
Trackmobile, Inc., 15 USPQ2d 1152 (TTAB 1990). In any event, even if we were to consider
the untimely printouts applicant eventually submitted, they would not change our decision.
As the examining attorney points out, the materials from applicant’s and registrant’s
websites do not reveal how applicant or registrant markets or sells the relevant goods, or to
whom, and the specimen from registrant’s Sections 8 and 9 Affidavit reveals use of
registrant’s cited mark on what appear to be purely electrical products, with no apparent
relationship to corrosion monitoring or testing.
Serial No. 85547199
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While we accept that purchasers of applicant’s and registrant’s goods are
“sophisticated,” and likely to exercise care in purchasing decisions, it is settled that
even sophisticated purchasers are not immune from source confusion. This is
especially true where, as here, they are faced with highly similar marks and related
goods. See, In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed.
Cir. 1986); Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403,
168 USPQ 110, 112 (CCPA 1970); In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB
1988); see also, HRL Associates, Inc. v. Weiss Associates, Inc., 12 USPQ2d 1819
(TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL Associates, Inc., 902 F.2d 1546, 14
USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh
sophisticated purchasers, careful purchasing decision, and expensive goods). In
short, no evidence of record supports applicant’s argument that the conditions
under which and buyers to whom sales are made weighs against a likelihood of
confusion, but even assuming that this factor weighs against a finding of likelihood
of confusion, it is outweighed by the similarities between the involved and cited
marks, the relatedness of the goods and overlapping channels of trade.
There is no relevant evidence or argument concerning the remaining
likelihood of confusion factors, and we therefore treat them as neutral.
Conclusion
We have considered all of the evidence of record as it pertains to the relevant
du Pont factors, including applicant’s arguments and evidence, even if not
specifically discussed herein. In view of our findings that the marks are quite
Serial No. 85547199
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similar, that applicant’s and registrant’s goods are legally identical, in part, and
otherwise at least related and the channels of trade overlap, we find that use of
applicant’s mark for its identified goods is likely to cause confusion with the cited
registered mark, even assuming that the relevant purchasers are sophisticated. To
the extent that applicant’s arguments raise any doubt concerning the likelihood of
confusion, we resolve any such doubt in registrant’s favor. In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); In re Martin’s Famous
Pastry Shoppe, 223 USPQ at 1290.

Decision: The examining attorney’s refusal to register applicant’s mark
under Section 2(d) of the Act is affirmed.