Pixel Power Ltd.

Trademark Trial and Appeal Board

Jul 18, 2013

No. 85322505 (T.T.A.B. Jul. 18, 2013)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: July 18, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Pixel Power Ltd.
________

Serial No. 85322505
_______

James R. Menker of Holley & Menker PA for Pixel Power Ltd.

Sara N. Benjamin, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Zervas, Cataldo and Shaw,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

On May 17, 2011, applicant, Pixel Power Ltd., filed
the involved application under Section 1(b) of the
Trademark Act to register on the Principal Register the
mark CHANNELMASTER in standard characters. The application
recites the following goods, as amended:
computer apparatus and instruments for generating
graphics, sound and/or text for use in the
production and broadcasting of television content
for use by broadcasters, outside broadcast truck
companies, play out facilities, post production
houses, venues and sports complexes; computer
graphics software; computer software for
generating graphics, sound and/or text for
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broadcasting and/or production purposes; computer
graphics apparatus, namely graphics cards and
computer graphics boards; character generators in
the nature of computer hardware for use in the
production of text, video, sound or graphics
content for broadcast and production purposes;
computer hardware for processing graphics

in International Class 9.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, as intended to be used in connection with
applicant’s goods, so resemble the following marks,
previously registered by the same entity on the Principal
Register:
for “antennas and accessories
therefor,” in International Class 9;1 and
CHANNEL MASTER, in typed or standard characters for
amplifiers, transmission lines, antennas, antenna
rotators, and accessories therefor and parts
thereof

in International Class 9;2

master antenna television antennas,
preamplifiers, amplifiers, hi "Q" traps, sound
carrier reducers, band rejection filters, RF
attenuators, antenna mixing units, band
separators/joiners, converters, filters, line
powered amplifiers, line splitters, wall tapoffs,
line tapoffs, line equalizers and transformers,
connectors, coaxial cable, coaxial cable ground

1 Registration No. 0598429 issued on November 23, 1954. 2nd
renewal.
2 Registration No. 0693777 issued on March 1, 1960. 3rd renewal.
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clamps, coaxial cable grounding blocks, AC/DC
line voltage blocks, cable strippers, crimping
tools, field strength meters and flush plates,
surface housings, and twin lead adaptors
therefor; citizens band mobile CB antennas, base
station CB antennas and mounts, coaxial cable,
antenna rotators and whips, adaptors, connectors
and band rejection filters therefor;

in International Class 9;3

business TV satellite transmitter and reception
equipment; namely, M.M.D.S. (multi-channel,
multi-point distribution systems) equipment;
namely, receive antennas and down convertors
using super high frequency channels to receive
television programming via terrestrial
microwaves; broadband microwave equipment;
namely, terrestrial CARS-band microwave
transmitters and receivers, dual carrier
generators (pilot tones) and status monitors;
satellite TV antennas, satellite TV antenna
mounts, satellite TV antenna polarizers,
satellite TV antenna accentuaters and
electronics; VSAT (very small aperture terminal)
equipment for two way interactive audio/video
satellite; namely, satellite antenna reflectors,
transmitters, receivers, polarizers, mounts,
actuators and parts therefor; BTV (business TV)
equipment for one way receive only and two way
interactive audio/video satellites; namely,
satellite antenna reflectors, transmitters,
receivers, polarizers, actuators, mounts, and
parts therefor

in International Class 9;4 and
radio frequency receivers, amplifiers, antennas,
antenna rotators and antenna system components,
namely, antenna installation mounts; electronic
parts and accessories for the aforementioned
goods

3 Registration No. 1248040 issued on August 16, 1983. 1st
renewal.
4 Registration No. 1786524 issued on August 10, 1995. 1st
renewal.
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in International Class 95 as to be likely to cause
confusion. In addition, the examining attorney, in
accordance with Trademark Rule 2.32(a)(6), 37 CFR §
2.32(a)(6), required applicant to amend its identification
of goods to specify with greater particularity the
“computer apparatus and instruments” recited therein. When
the refusal and requirement were made final, applicant
appealed. Applicant and the examining attorney have filed
briefs on the matters under appeal.
Preliminary Matters
Before turning to the substantive grounds for refusal,
we note that in its appeal briefs applicant objects to
evidence submitted by the examining attorney with her
denial of applicant’s third request for reconsideration on
the ground that it was directed to the Section 2(d) refusal
while the request for reconsideration was solely directed
toward the requirement for a more definite identification
of goods. We disagree that the examining attorney’s
submission of this evidence was improper. We observe in
that regard that in all three of its requests for
reconsideration, applicant presents arguments directed both
toward the Section 2(d) refusal and the requirement for a

5 Registration No. 2616404 issued on September 10, 2002. 1st
renewal.
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more definite identification of goods. Thus, we agree with
the examining attorney that the evidence submitted with her
denial of applicant’s third request for reconsideration is
proper. We note in any event that had we not considered
such evidence in our determination of the issues on appeal,
the result would be the same.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are 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., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Registration No. 0693777
For purposes of our likelihood of confusion
determination, we will concentrate our discussion on cited
Registration No. 0693777 for the mark CHANNEL MASTER, in
typed or standard characters for
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amplifiers, transmission lines, antennas, antenna
rotators, and accessories therefor and parts
thereof

in International Class 9. If likelihood of confusion is
found with regard to this registration, it will be
unnecessary for us to consider the other cited
registrations. See In re Max Capital Group Ltd., 93 USPQ2d
1243, 1245 (TTAB 2010). On the other hand, if we find
confusion unlikely with regard to this registration, we
would so find with regard to the other cited registrations
for the same marks that recite goods that are, at best, no
more similar to those identified in the involved
application.
Similarity of the Marks
We turn to the first du Pont factor, i.e., whether
applicant’s mark and registrant’s mark are similar or
dissimilar when viewed in their entireties in terms of
appearance, sound, connotation and overall commercial
impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005).
In this case, applicant acknowledges (brief, p. 11)
that its CHANNELMASTER mark and registrant’s mark CHANNEL
MASTER “consist of the same words.” To state the obvious,
“channelmaster” is the equivalent of “channel master” and
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the truncation of the terms into a compound word in
applicant’s mark does not create any meaningful difference
in their respective commercial impressions. See In re L.C.
Licensing Inc., 49 USPQ2d 1379, 1381 (TTAB 1998) (LIZ SPORT
and LIZSPORT engender the same commercial impression); and
In re Strathmore Products, Inc., 136 USPQ 81, 82 (TTAB
1962) (the contraction of a term does not alter the
essential identity of the character and meaning between the
full word and its contraction).
As a result, applicant’s mark is essentially identical
in appearance, sound, connotation and commercial impression
to registrant’s mark. In view of the above, the factor of
the similarity of the marks weighs heavily in favor of
likelihood of confusion.
Similarity of the Goods, Channels of Trade and Class
of Customers
We next compare applicant’s goods with those of
registrant. In making our determination under the second
du Pont factor, we look to the goods as identified in the
involved applications and cited registration. See Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority
is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the
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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.”). See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods.”).
In this case, we begin by observing that applicant’s
goods include various computer products used for broadcast
and production purposes, and also for computer graphics.
Registrant’s goods include amplifiers, antennas and
transmission lines, without recited limitations as to their
use or purpose. Thus, as recited, registrant’s goods must
be presumed to be used for any purposes suitable therefor,
including broadcasting. As a result, we find the goods to
be complementary on the face of their respective
identifications.
Further, the examining attorney has made of record
approximately thirty use-based third-party registrations
which show that various entities have adopted a single mark
for goods of a kind similar to those identified in
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applicant’s application and the cited registration. The
following examples are illustrative:
Registration No. 3546446 “computers, computer
monitors, computer keyboards, computer
peripherals, namely, printers, video cards, audio
cards, antennas, antenna parts and fittings;”

Registration No. 3910211 “computer peripheral
devices, interfaces and peripheral devices for
computers, antenna filters, antennas, antennas
for wireless communications apparatus, car
antenna, audio amplifier;”

Registration No. 3189906 “video effect
generators, prerecorded computer software for use
in photo and video image processing and editing,
computer graphics processors and software
therefor, amplifiers, antennas;” and

Registration No. 3180906 “computer graphics
boards, computer graphics software, graphics
cards, sound cards, antennas, amplifiers.”

Third-party registrations which individually cover a number
of different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993).
Applicant argues that its goods move in specific
channels of trade, namely broadcasting and production
companies. Applicant has not limited its channel of trade
to broadcasting and production companies in its
identification, thus this argument is not well taken. Even
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if applicant intended to limit its goods that its goods to
use in the broadcasting and production field, there are no
such limitations recited in registrant’s identification of
goods. See Octocom Systems, Inc. v. Houston Computers
Services Inc., 16 USPQ2d at 1787.
Thus, the recitation of the respective goods
themselves as well as the foregoing evidence demonstrate
that applicant’s goods are of a type that are related to or
otherwise may be encountered with those of registrant, and
may be offered in the same channels of trade to the same
class of purchasers. As a result, these du Pont factors
also favor a finding of likelihood of confusion.
Neither applicant nor the examining attorney has
discussed any of the remaining du Pont factors. We note,
nonetheless, that none seems to be applicable, inasmuch as
we have no evidence with respect to them.
In light of the foregoing, we conclude that consumers
familiar with registrant’s goods sold under its above-
referenced mark would be likely to believe, upon
encountering applicant’s goods rendered under its mark that
the goods originated with or are associated with or
sponsored by the same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
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doubt is required to be resolved in favor of the prior
registrant. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289
(Fed. Cir. 1984).
Identification of Goods
The examining attorney argues that the wording
“computer apparatus and instruments” in the context of the
identified goods, namely
computer apparatus and instruments for generating
graphics, sound and/or text for use in the
production and broadcasting of television content
for use by broadcasters, outside broadcast truck
companies, play out facilities, post production
houses, venues and sports complexes; computer
graphics software; computer software for
generating graphics, sound and/or text for
broadcasting and/or production purposes; computer
graphics apparatus, namely graphics cards and
computer graphics boards; character generators in
the nature of computer hardware for use in the
production of text, video, sound or graphics
content for broadcast and production purposes;
computer hardware for processing graphics

is indefinite. Specifically, the examining attorney argues
(brief, unnumbered p. 7) that the wording at issue
“encompasses a long list of differing items” including
“computers, computer hardware, computer peripherals,
keyboards, cameras, microphones, computer chips, graphics
cards, graphics boards,” etc.
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Applicant, for its part, argues (brief, p. 9) that the
wording in question meets the requirements of Trademark Act
and Rules because they specify the intended use and users
of the goods and “a non-expert in the field of trademarks
or in the field of the Applicant’s goods would clearly
understand what the goods are, what they do and who would
use them.” In support of its position, applicant made of
record entries from the USPTO’s Trademark Acceptable
Identification of Goods and Services (Trademark ID Manual)
in which the wording “apparatus and instruments” is part of
acceptable identifications of goods and services.
We observe, however, that none of the entries made of
record by applicant include the wording “computer apparatus
and instruments.” We further note that none of the third-
party registration evidence made of record by the examining
attorney recites such wording. In this case, we find that,
notwithstanding that applicant’s identification of goods
recites the intended uses of the “computer apparatus and
instruments,” such wording is indefinite because it may
embrace goods as diverse as computer hardware, including
hard drives, memory cards, graphics cards or boards;
computer driver, utility or applications software; and/or
computer peripherals, including monitors, cables, and
transceivers. As such, the wording is indefinite and the
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examining attorney’s requirement for additional
specification is correct.
Summary
Decision: The refusal to register under Section 2(d)
of the Trademark Act, and the requirement for a more
definite identification of goods, are affirmed.