Novalyst IT AG

Trademark Trial and Appeal Board

Sep 11, 2013

No. 79104646 (T.T.A.B. Sep. 11, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: September 11, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Novalyst IT AG
_____

Serial No. 79104646
_____

Dyan M. House of Carter Stafford Arnett Hamada & Mockler, PLLC for Novalyst IT
AG.

Martha L. Fromm, Trademark Examining Attorney, Law Office 106 (Mary I.
Sparrow, Managing Attorney).
_____

Before Seeherman, Zervas and Adlin, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
On August 12, 2011, Novalyst IT AG (“applicant”) filed a request for
extension of protection under Section 66(a) of the Trademark Act, 15 U.S.C. §
1141f(a), seeking registration of the mark shown below

for:
Serial No. 79104646
2

Providing user access to a global computer network;
providing user access to computer programmes in data
networks; providing access to the internet; internet
service provider services, namely, providing multiple user
bandwidth and dedicated access to the internet to enable
electronic access to computer software, websites, software
applications, electronic databases, digital content, and
business computer software applications of others
accessible via the internet in International Class 38; and

Updating of computer software; updating of websites for
others; design and development of computer software;
design and development of computer systems; computer
programming; engineering; design and development of
electronic data security systems; computer services,
namely, electronic data storage by providing data storage
facilities; technological services, namely, research in the
field of computer networking hardware, computer security
technology and computer datacenter architecture;
technical support services, namely, technical
administration of servers for others and troubleshooting
in the nature of diagnosing server problems; computer
security services, namely, restricting access to and by
computer networks; design, development and
implementation of software for authenticating digital
signatures; computer services, namely, designing and
implementing websites for others in International Class
42 (the “application”).1

The application includes a color claim and the following description: “The mark
consists of a gold computer chip with black lines. On top of the computer chip is a
red letter I surrounded by a circular grey arrow. To the right of the design element
is the wording SMART OPENID in black, on two lines.”
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-

1 The request for extension of protection is based on International Registration No.
1096037, issued August 12, 2011.
Serial No. 79104646
3

registered mark OpenID, in standard characters, for “Computer software for
authentication, identity management, security, information sharing, social
networking, messaging, and personal communications,” that use of applicant’s mark
in connection with applicant’s services is likely to cause confusion.2
After the refusal was made final, applicant appealed, its request for
reconsideration was denied and applicant and the examining attorney filed briefs.
We affirm the refusal to register.
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.

2 Registration No. 2046127, issued March 18, 1997; renewed.
Serial No. 79104646
4

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.
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).
The focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Of course, one feature of a mark may be more significant than another, and it
is not improper to give more weight to the dominant feature of a mark in
determining its commercial impression. In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be unavoidable.”).
In this case, a significant element of applicant’s mark is “Smart OpenID”;
“OpenID” is the entirety of the cited mark. As a result, the marks create similar
Serial No. 79104646
5

overall commercial impressions. See, International Paper Co. v. Valley Paper Co.,
468 F.2d 937, 175 USPQ 704 (CCPA 1972) (DATA for “writing, typewriter and
printing paper” confusingly similar to DATA-SPEED for “paper sold in bulk rolls or
bulk reams for conversion only into business forms”); In re Rexel Inc., 223 USPQ
830, 832 (TTAB 1984) (“we are firmly of the opinion that purchasers who encounter
applicant’s ‘LITTLE GOLIATH’ stapler kits and registrant’s ‘GOLIATH’ large
diameter woodcased pencils are likely to believe … that both products emanate from
or are in some way associated with the same source”); Johnson Publishing Co. v.
International Development Ltd., 221 USPQ 155 (TTAB 1982) (EBONY for cosmetics
confusingly similar to EBONY DRUM for hairdressing and conditioner).
While applicant argues that its mark creates a different overall commercial
impression from the cited mark because OPENID is only one of several elements of
applicant’s mark, we disagree. The additional elements are subordinate to the term
OPENID, which the two marks share, and which serves as the primary source
indicator in applicant’s mark. See, Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court
has noted that the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data, 224
USPQ at 752) and In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB
1987) (holding that “if one of the marks comprises both a word and a design, then
the word is normally accorded greater weight because it would be used by
purchasers to request the goods or services” and “because applicant’s mark shares
Serial No. 79104646
6

with registrant’s mark that element responsible for creating its overall commercial
impression, the marks are confusingly similar”). The examining attorney has
introduced a dictionary definition which establishes that “smart” means “equipped
with, using, or containing electronic control devices, as computer systems,
microprocessors.” Office Action of December 15, 2011. Thus, this term in
applicant’s mark is suggestive. As for the design element consisting of the letter “i”
surrounded by a gray arrow, while it is noticeable, it is still subordinate to SMART
OPENID. We also point out that “I” or “i” can mean ‘Internet’” when used in
connection with services such as applicant’s. See, In re Zanova Inc., 59 USPQ2d
1300, 1304 (TTAB 2001). Applicant’s computer chip design is entitled to less weight
because it is suggestive of applicant’s computer network and software-related
services. Cunningham, 222 F.3d at 943, 55 USPQ2d at 1846; see also, In re Kysela
Pere et Fils Ltd., 1268 (“because of the laudatory suggestive nature of the crown
design and the carrier nature of the ovals, the absence of these elements from
applicant’s mark and/or presence of them in the cited marks are not sufficient to
distinguish the marks”). In any event, even “[t]he addition of a distinctive term,
which is not a house mark, does not necessarily result in marks that are dissimilar.”
In re Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1269 (TTAB 2009).
We find that SMART OPENID is the portion of applicant’s mark that will be
articulated and remembered by consumers, and used by them to request applicant’s
services. M.C.I. Foods, Inc. v. Brady Bunte, 96 USPQ2d 1544, 1551 (TTAB 2010);
see also, CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983).
Serial No. 79104646
7

As noted, the term SMART does not have the same source-identifying significance
as OPENID, so that the addition of SMART does not serve to distinguish the marks.
Furthermore, we note that in a presentation made during the IIW (Internet Identity
Workshop) conference, applicant used not only the involved mark, but also OPENID
alone, which is identical to the cited mark. Applicant’s Request for Reconsideration
Ex. A. This belies applicant’s argument that one or more of the other elements of
its mark serves as its primary source indicator.
In short, to the extent that applicant’s mark looks and sounds different from
registrant’s, the dissimilarities are outweighed by the similarity arising out of
applicant’s mark containing OPENID, which is identical to the entirety of
registrant’s mark. We find that the descriptive and suggestive elements of
applicant’s mark are entitled to less weight than the shared and more distinctive
term OPENID, which is most responsible for any meaning applicant’s and
registrant’s marks may convey. The marks convey the same commercial
impression. Finally, because registrant’s mark is in standard characters, it may be
displayed in any font, size or other manner, including in a manner similar to how
applicant displays the wording in its mark. See, e.g., In re Viterra Inc., 671 F.3d
1358, 101, USPQ2d 1905, 1909 (Fed. Cir. 2012) (citations omitted). This factor
therefore weighs in favor of a finding of likelihood of confusion.
We now turn to a comparison of the services. We must first address
applicant’s argument that the owner of the cited registration is a “mere
standardization organization,” and “does not produce any software products.”
Serial No. 79104646
8

Applicant’s Appeal Brief at 6.3 This argument is unavailing because registrant’s
cited registration is registered on the Principal Register for software products, and
is therefore entitled to the presumptions of Section 7(b) of the Trademark Act.
Applicant may not challenge the validity of the cited registration in the context of
this ex parte proceeding. In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1534-35 (Fed. Cir. 1997).
Therefore, we compare the services identified in the application and cited
registration. It is settled that the services need not be identical or even competitive
in order to support a finding of likelihood of confusion. It is enough that the
services 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 services originate from or are in some way
associated with the same source or that there is an association between the sources
of the 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

3 Applicant argues, and has introduced some evidence (a Wikipedia article) that
registrant is a “mere standardization organization.” Applicant’s Office Action Response of
June 15, 2012 at 7 and Ex. A. This is not relevant to our analysis as we are bound to
consider registrant’s identification of goods, rather than extrinsic evidence about
registrant’s activities. In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB
1986); see also, Tuxedo Monopoly, Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981); In re Thor Tech Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009).

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Serial No. 79104646
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MOMEET (Registration No. 4176982). “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). In addition, the examining attorney
introduced printouts from websites showing that the following companies offer,
under the same mark, services similar to applicant’s Class 42 services and goods
similar to registrant’s: SafeNet, Inc. (computer security services and security
software), Symantec Corp. (computer security services and communications and
security software) and Equifax (computer security services and security software).
Office Action of July 23, 2012. In short, the evidence establishes that at least some
of applicant’s services in each class and registrant’s goods are 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).
Furthermore, applicant’s “design and development of computer software” and
“computer programming” services are complementary and therefore related to
registrant’s computer software, in that the end result of applicant’s development
Serial No. 79104646
11

and programming services could be the goods identified in the registration, i.e.
“computer software for authentication, identity management, security, information
sharing, social networking, messaging and personal communications.” More
specifically and to the point, the involved application and cited registration make
clear that applicant and registrant both provide computer security-related products
and services. In fact, applicant’s “engineering, design and development of electronic
data security systems,” “computer security services, namely restricting access to
and by computer networks” and “design, development and implementation of
software for authenticating digital signatures” all relate directly to, and could result
in software directly competitive with, “computer software for authentication,
identity management, security.” See generally, In re RSI Systems LLC, 88 USPQ2d
1445, 1450 (TTAB 2008) (“Applicant’s software for processing images and the ‘680
registrant’s imaging services that convert documents from one medium to another
are very similar. Consumers familiar with the ‘680 registrant’s document imaging
services are likely to assume that registrant is now the source of software that
performs some of the same functions.”); In re Association of the United States Army,
85 USPQ2d 1264, 1271 (TTAB 2007) (“For the same reasons as those discussed
above in connection with our finding that applicant’s association services are
related to registrant’s employment and career related services, we likewise find that
applicant’s services are related to registrant’s downloadable software to the extent
that such software includes ‘career education’ as part of its subject matter.”). It is of
course settled that goods and services may be related. In re Hyper Shoppes (Ohio),
Serial No. 79104646
12

Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (BIGGS for retail grocery and
general merchandise store services likely to be confused with BIGGS for furniture);
In re Thomas, 79 USPQ2d 1021, 1024 (TTAB 2006) (“It is clear that consumers
would be likely to believe that jewelry on the one hand and retail stores selling
jewelry on the other emanate from or are sponsored by the same source if such
goods and services are sold under the same or similar marks.”). At the very least,
applicant’s software-related security services and registrant’s security software are
complementary, and thus could give rise to source confusion. See Octocom Systems
Inc. v. Houston Computers Services, Inc., 918 F.2d 937, 16 USPQ2d 1783, 1788 (Fed.
Cir. 1990) (modems and computer programs are commonly used together in
networking). See also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565,
223 USPQ 1289, 1290 (Fed. Cir. 1984); In re Toshiba Medical Systems Corp., 91
USPQ2d at 1272.
Because applicant’s identification of services contains no limitations with
respect to channels of trade, applicant’s services are presumed to encompass all
services of the type described, and the services are presumed to move in all normal
channels of trade for those services and be available to all classes of consumers.
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). To the extent that the
identification of goods in the cited registration specifies certain channels of trade,
they are so broad (“information sharing” and “personal communications”) as to
Serial No. 79104646
13

encompass a wide range of fields, and in any event it is clear from the
identifications of goods and services that both applicant and registrant provide or
intend to provide authentication and security-related products and services.
Consumers seeking to secure a computer network may have a choice between
retaining applicant to provide its security services or purchasing registrant’s
security software, and those familiar with applicant’s security services may also
encounter registrant’s software, and vice versa. Furthermore, applicant’s evidence
regarding the IIW conference (discussed infra) establishes that in fact there is some
overlap between the channels of trade and relevant consumers. In short,
applicant’s and registrant’s identifications of goods and services establish that their
channels of trade overlap. Accordingly, this factor also weighs in favor of a finding
of likelihood of confusion.
Applicant strenuously argues that the “relevant consumer base” is
“sophisticated,” and likely to exercise care in purchasing decisions. While there is
no evidence of record which supports this contention, we accept, based on
applicant’s identification of services, which shows that applicant’s services are
technical, that the purchasers of applicant’s services are sophisticated. However, it
is settled that even sophisticated purchasers are not immune from source confusion.
This is especially true where, as here, they are faced with similar marks and related
goods and services. 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-
Serial No. 79104646
14

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 any
event, 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 their goods and services and the overlapping channels of
trade. Quite simply, even if sophisticated and careful consumers were to notice the
differences in the marks, they would not ascribe the differences to different sources
of the goods and services, but would instead see the marks as merely variations of
each other.
Finally, applicant argues that confusion is unlikely because there is no
evidence of actual confusion and registrant “has not objected” to applicant’s use of
its mark. With respect to actual confusion, there is no evidence in the record
regarding the extent of applicant’s use of its mark, and therefore no evidence
regarding whether there has been a meaningful opportunity for confusion to occur.
Barbara's Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the
probative value of the absence of actual confusion depends upon there being a
significant opportunity for actual confusion to have occurred). In this connection,
we note that applicant’s application is based on Section 66(a) of the Trademark Act,
rather than use in the United States. The lack of actual confusion is accordingly of
little relevance. See, In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
Serial No. 79104646
15

1205 (Fed. Cir. 2003) (“Majestic’s uncorroborated statements of no known instances
of actual confusion are of little evidentiary value … A showing of actual confusion
would of course be highly probative, if not conclusive, of a high likelihood of
confusion. The opposite is not true, however. The lack of evidence of actual
confusion carries little weight … especially in an ex parte context.”) (citation
omitted).
As for registrant not objecting to applicant’s use of the involved mark,
applicant states that it “has used its Mark, including without limitation, in
presentations to the relevant, sophisticated consumer group at IIW, a conference
organized in connection with the Identity Commons group, which includes
Registrant.” Applicant’s Appeal Brief at 8. With its request for reconsideration,
applicant submitted printouts of slides it used during those presentations in
Mountain View, California. Applicant’s Request for Reconsideration Ex. A.
Applicant also submitted evidence which appears to show that registrant is part of
a working group associated with the conference organizers, and perhaps the
conference itself. Id. Ex. B. In other words, applicant would have us treat the fact
that it and registrant were involved in the same conference or group as some sort of
consent or acquiescence by registrant to applicant’s use of the mark. There is no
evidence regarding whether registrant is in fact aware of applicant’s mark or use
thereof, however. More importantly, we cannot regard the mere fact that both
applicant and registrant were involved with the same conference as tantamount to
registrant’s consent to registration of applicant’s mark. The Board must of course
Serial No. 79104646
16

give great deference to consent agreements. Amalgamated Bank of New York v.
Amalgamated Trust & Savings Bank, 842 F.2d 1270, 6 USPQ2d 1305 (Fed. Cir.
1988). However, we cannot conclude from the evidence herein that registrant has
consented to applicant’s registration of its mark. In re Majestic Distilling, 315 F.3d
at 1311, 65 USPQ2d at 1205-06. (“there has been no consent agreement executed
between Majestic and Stroh … no presumption can be made that Stroh consents to
Majestic’s use of the mark or that Stroh has determined or admits that confusion of
the public by Majestic’s concurrent use of the mark is unlikely”).4
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 similar,
and that applicant’s services and registrant’s goods are related and the channels of
trade overlap, we find that use of applicant’s mark for its identified services is likely
to cause confusion with the cited registered mark, despite the fact 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.

4 Furthermore, as the examining attorney points out, even if registrant does not object
to applicant’s use of the involved mark, it may object to applicant’s registration of the mark.
Serial No. 79104646
17

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