NuVision U.S., Inc.

Trademark Trial and Appeal Board

Jun 10, 2011

No. 77720572 (T.T.A.B. Jun. 10, 2011)

Mailed:
June 10, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re NuVision U.S., Inc.
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Serial No. 77720572
_______

Stacie K Smith and Ray K. Harris of Fennemore Craig, for
NuVision U.S., Inc.

Amy L. Kergate, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Mermelstein, Bergsman and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

NuVision U.S., Inc. (“applicant”) filed an application to
register the mark FLATSCREEN CONNOISEUR, in standard character
form, for goods identified as “home theatre products, namely
televisions, LCD televisions, plasma televisions, flat panel
televisions and DVD players,” in International Class 9.1 The
Trademark Examining Attorney refused registration of applicant’s

1 Serial No. 77720572, filed April 23, 2009, pursuant to Section 1(b)
of the Trademark Act, 15 U.S.C. §1051(b), claiming a bona fide intent
to use the mark in commerce, and disclaiming the exclusive right to
use the term “FLATSCREEN” apart from the mark as shown.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77720572
2
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§1052(d), on the ground that applicant’s mark so resembles the
registered mark CONNOISSEUR, in standard character form, for
“sound equipment, namely, loudspeakers,” in International Class
9,2 that when used on or in connection with applicant’s
identified goods, it is likely to cause confusion or mistake or
to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs, and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
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 or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry

2 Registration No. 3188740, issued December 26, 2006.
Serial No. 77720572
3
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 as to which
applicant or the examining attorney submitted argument or
evidence.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The mark in
the cited registration consists entirely of the word
CONNOISSEUR. The examining attorney has submitted a definition
of this term as meaning “a person with expert knowledge or
training, especially in the fine arts; a person of informed and
discriminating taste.”3 Applicant accordingly urges us to find
the term to be descriptive of registrant’s identified goods. We
decline to do so, and find it to be distinctive, a presumption
to which registrant is entitled with a mark registered on the
Principal Register.
Applicant’s mark consists of the words “FLATSCREEN
CONNOISSEUR.” We find the disclaimed term “flatscreen” to be
descriptive of the “televisions” and “flat panel televisions”

3 American Heritage Dictionary (4th ed. 2000).
Serial No. 77720572
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for which applicant seeks registration. Accordingly,
“CONNOISSEUR” is clearly the dominant term in applicant’s mark.
In re National Data Corp., 224 USPQ 749, 751 (Fed. Cir. 1985)
(“[T]here 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.”). In this
regard, the marks have similar connotations and commercial
impressions; specifically, consumers may mistakenly believe that
FLATSCREEN CONNOISEUR is a derivative of the CONNOISSEUR line.
As for the appearance and sound of the marks, although
applicant’s mark contains FLATSCREEN as an additional element to
CONNOISSEUR, our precedent has found that adding a descriptive
word to a mark does not necessarily obviate likelihood of
confusion. In re Denisi, 225 USPQ 624, 626 (TTAB 1985) (“the
fact that [applicant’s] mark herein [PERRY’S PIZZA] incorporates
the descriptive term ‘pizza’ as part of the mark presented for
registration does not obviate the likelihood of confusion with
the mark of the cited registration [PERRY’S]”); Johnson
Publishing Co. v. International Development Ltd., 221 USPQ 155,
156 (TTAB 1982) (EBONY for cosmetics and EBONY DRUM for
hairdressing and conditioner); In re South Bend Toy
Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB 1983) (LIL’
LADY BUGGY for toy doll carriages is likely to cause confusion
Serial No. 77720572
5
with LITTLE LADY for doll clothing because “the word ‘buggy’ is
clearly descriptive of applicant’s doll carriage products” and
“would fail to alter the perceived identity of the dominant and
more arbitrary ‘LITTLE LADY’ and ‘LIL’ LADY’ elements of these
marks”). Accordingly, applicant’s mark FLATSCREEN CONNOISSEUR
is very similar to registrant’s mark CONNOISSEUR.
Applicant argues that the Board should take into account
how the marks are how used. Specifically, applicant argues that
both applicant and the registrant use their respective marks
with their “house marks,” which alleviates confusion. However,
what is at issue in this appeal is solely the mark that
applicant seeks to register, FLATSCREEN CONNOISSEUR. Similarly,
the cited registration, as registered, consists solely of the
term CONNOISSEUR. Thus, these are the marks that we must
consider and compare in our 2(d) analysis, regardless of “house
marks” that either party may also use in practice in conjunction
with the marks at issue here today. In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1688, 1690 n.4 (Fed. Cir. 1993). See also
Chesebrough-Pond’s Inc. v. Soulful Days, Inc., 228 USPQ 954, 956
(TTAB 1985); Fort Howard Paper Co. v. Marcal Paper Mills, Inc.,
189 USPQ 305, 307 (TTAB 1975) (the presumptions under Section 7
of the Trademark Act apply to the registered mark).
Finally, applicant argues that the term “CONNOISSEUR” has
been registered so often that the addition of the term
Serial No. 77720572
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“FLATSCREEN” is a determinative source-identifying difference.
See Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313
(TTAB 2005) (NORTON MCNAUGHTON ESSENTIALS allowed to register
despite opposition from owner of ESSENTIALS). In this regard,
we sustain the examining attorney’s objection to the evidence
applicant submitted for the first time with its appeal brief,
including the evidence regarding third-party registrations. We
also hasten to add, however, that even had we considered these
few use-based third-party registrations, it would not have
changed our decision as only three are active registrations.
Third-party registrations may be used to show that a term has
been commonly registered for its suggestive meaning. Absent
evidence of actual use however, third-party registrations have
little probative value because they are not evidence that the
marks are in use on a commercial scale or that the public has
become familiar with them. See Smith Bros. Mfg. Co. v. Stone
Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the
purchasing public is not aware of registrations reposing in the
U.S. Patent and Trademark Office). See also In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983).

[I]t would be sheer speculation to draw any
inferences about which, if any of the marks
subject of the third party (sic)
registrations are still in use. Because of
this doubt, third party (sic) registration
evidence proves nothing about the impact of
Serial No. 77720572
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the third-party marks on purchasers in terms
of dilution of the mark in question or
conditioning of the purchasers as their
weakness in distinguishing source.

In re Hub Distributing, Inc., 218 USPQ at 286.

Meanwhile, we note that even weak marks are entitled to
protection against registration of a similar mark for similar
goods. See Giant Food Inc. v. Rosso and Mastracco, Inc., 218
USPQ 521 (TTAB 1982).
On the balance, we find that, viewing the marks in their
entireties, the dissimilarities of the marks are outweighed by
their similarities. Accordingly, we find this du Pont factor to
weigh in favor of finding a likelihood of consumer confusion.

The Goods and Channels of Trade

In determinining the similarity or dissimilarity of the
goods, we note that the more similar the marks at issue, the
less similar the goods or services need to be for the Board to
find a likelihood of confusion. In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001). It is only necessary that there be a
viable relationship between the goods or services to support a
finding of likelihood of confusion. In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Goods or
services need not be identical or even competitive in order to
support a finding of likelihood of confusion. Rather, it is
enough that the goods or services are related in some manner or
Serial No. 77720572
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that some 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
or intended to be used therewith, to a mistaken belief that they
originate from or are in some way associated with the same
producer or that there is an association between the producers
of each parties’ goods or services. In re Melville Corp., 18
USPQ2d 1386 (TTAB 1991).
Applicant’s identified goods are “home theatre products,
namely televisions, LCD televisions, plasma televisions, flat
panel televisions and DVD players,” while the cited registration
includes “sound equipment, namely, loudspeakers.” The examining
attorney has submitted numerous copies of use-based, third-party
registrations covering goods of the type in both the application
and the cited registration. Examples are Registration No.
3127341 (“loudspeakers” and “televisions; DVD players”); 3610226
(“loudspeakers” and “televisions”); 3395831 (“loudspeakers” and
“televisions; DVD players”); 3600183 (“loudspeakers” and “DVD
players”); 3331239 (“loudspeakers” and “DVD players”); 3399884
(“loudspeakers” and “DVD players”); 2864779 (“loudspeakers” and
“televisions”); 2932811 (“loudspeakers” and “DVD players”);
3412631 (“loudspeakers” and “televisions; flat panel
televisions”); 3185915 (“loudspeakers” and “DVD players”);
3207663 (“loudspeakers” and “DVD players”); and 3677985
Serial No. 77720572
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(“loudspeakers” and “televisions”). Copies of use-based, third-
party registrations may serve to suggest that the goods are of a
type which may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
The examining attorney also submitted evidence from various
websites to show that various companies, including Sony, Sharp,
Panasonic, Bose, Samsung, and Pioneer sell both “loudspeakers,”
as identified by the cited registration, and either
“televisions” (including in some cases more specifically “plasma
televisions” or “flat panel televisions”) or “DVD players” as
identified by the application.
Additionally, there is nothing in the recital of goods in
either the cited registration or the application that limits
either registrant’s or applicant’s channels of trade. In the
absence of specific limitations in the registration, we must
presume that registrant’s goods will travel in all normal and
usual channels of trade and methods of distribution. Squirtco
v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir.
1983). See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992) (because there are no limitations as to channels of trade
or classes of purchasers in either the application or the cited
registration, it is presumed that the registration and the
application move in all channels of trade normal for those
services, and that the services are available to all classes of
Serial No. 77720572
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purchasers for the listed services). Since there are no
limitations on the channels of trade in applicant’s
identification of goods either, we must make the same
presumption with regard to applicant’s goods. In other words,
there is nothing that prevents the registrant’s loudspeakers
from being sold in the same channels of trade and to the same
classes of consumers that purchase applicant’s televisions and
DVD players (and vice versa). Furthermore, since both
“loudspeakers” on the one hand, and applicant’s various types of
“televisions” and its “DVD players” on the other may be used as
complementary products, including in “home theatre” systems as
specified in applicant’s identification of goods, the target
consumers of both registrant and applicant may overlap.
Accordingly, we find that these du Pont factors also weigh in
favor of finding a likelihood of consumer confusion.
Consumer Sophistication
Applicant urges us to consider consumer sophistication. In
this regard, applicant has submitted evidence of press releases
indicating that “NuVision is the premium manufacturer of flat
screen TVS for the luxury market,” with televisions ranging in
price from $799 to $12,499. (appl’s brochure). Applicant also
submitted a Q&A with its vice chairman, David Hester, quoting
him as saying, “On average, our jobs run at about 80,000
Serial No. 77720572
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dollars, of which 20,000 or 20 percent of that is in video.”
(Luxury DE January 15, 2010).
However, as indicated above, we are bound by the
description of goods in the application and the cited
registration. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) (“[t]he authority is legion that the question of
registrability of an applicant’s mark must be decided on the
basis of the identification of goods set forth in the
application regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the sales
of goods are directed.” [citations omitted]). Thus, we cannot
resort to such extrinsic evidence to restrict the prices of
applicant’s or registrant’s goods. See In re Bercut-Vandervoort
& Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant
goods are expensive wines sold to discriminating purchasers must
be disregarded given the absence of any such restrictions in the
application or registration). We must presume that both
applicant’s televisions and DVD players and registrant’s
loudspeakers would be sold at all the usual prices for such
goods, which may include relatively inexpensive products sold to
average consumers. Accordingly, this factor weighs against
applicant.
Serial No. 77720572
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Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the pertinent du
Pont likelihood of confusion factors. We conclude that with
similar marks with similar connotations used on similar and
complementary goods, travelling through the same or similar
channels of trade, there is a likelihood of confusion between
applicant’s mark FLATSCREEN CONNOISSEUR for the goods for which
it seeks registration and the registered mark CONNOISSEUR for
the items identified therein.
Decision: The refusal to register is affirmed.