Seung-Beom Hong

Trademark Trial and Appeal Board

May 26, 2010

No. 77608467 (T.T.A.B. May. 26, 2010)

Mailed: May 26, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Seung-Beom Hong
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Serial No. 77608467
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Ashok Tankha for Seung-Beom Hong.

Kevin S. Corwin, Trademark Examining Attorney, Law Office
112 (Angela Bishop Wilson, Managing Attorney).
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Before Walters, Holtzman and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Seung-Beom Hong filed an application to register on
the Principal Register the mark show below

for the following goods: “electric lamps; electric
lighting fixtures; electric luminaires; lamps; lighting
devices for showcases; lighting fixtures; lights for use in
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 77608467
2
illuminating signs and displays; projector lamps;
spotlights; wall lights” in International Class 11.1
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 resembles the mark CROSSLIGHT,
previously registered in standard characters on the
Principal Register for “solar light fixtures, namely,
indoor and outdoor solar powered lighting units and
fixtures,” in International Class 11,2 as to be likely to
cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs on
the matter under appeal.
Likelihood of Confusion
Our determination of the issue of likelihood of

1 Application Serial No. 77608467 was filed on November 6, 2008,
based upon applicant’s assertion of his bona fide intent to use
the mark in commerce in connection with the identified goods.
The application, as filed, included a disclaimer of CROSS LITE.
In addition, applicant submitted the following description of the
mark and color statement: The mark consists of a stylized image
of the word CROSS in bold upper case font written horizontally
and the word LITE in bold upper case font written vertically and
perpendicular to the letter O in the word CROSS; Color is not
claimed as a feature of the mark.
2 Registration No. 3573091 issued February 10, 2009.

Ser No. 77608467
3
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).
Similarity of the Goods and Their Trade Channels
We begin by comparing 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 application 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
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
Ser No. 77608467
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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, applicant’s broadly identified “lighting
fixtures” must be presumed to include registrant’s more
narrowly identified “solar lighting fixtures, namely,
indoor and outdoor solar powered lighting units and
fixtures.” Thus, as identified, applicant’s “lighting
fixtures” encompass registrant’s more narrowly identified
goods.
In addition, the examining attorney submitted evidence
from commercial Internet websites in which goods of the
type offered by both applicant and registrant are available
for sale. These websites include floodlightingstore.com
and lampsplus.com. This evidence demonstrates that the
products at issue move in the same channels of trade. We
note in addition that there is no evidence of record that
solar powered lighting fixtures travel in trade channels
that are mutually exclusive of other lighting fixtures that
do not rely on solar power. On the contrary, the above-
referenced Internet evidence suggests that such goods,
including those identified in the subject application and
cited registration, may be purchased at the same retail
Ser No. 77608467
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outlets. Thus, the evidence of record points to an overlap
in potential consumers.
We conclude, based upon their respective
identifications and the evidence of record, that
applicant’s goods are related to those of registrant with
the sole distinction that registrant’s goods are solar
powered. Finally, there is no evidence of record to
suggest that solar powered and non-solar powered light
fixtures cannot be used for the same illumination purposes
providing that sufficient sunlight is available or, for
that matter, that such goods necessarily are incompatible.
The foregoing demonstrates that applicant’s goods are
of a type that are related to or otherwise may be
encountered with those of registrant, and this du Pont
factor favors a finding of likelihood of confusion.
Furthermore, inasmuch as neither applicant’s
identification of goods nor that of registrant recites any
limitations to any specific channels of trade, we presume
an overlap and that the goods would be offered in all
ordinary trade channels for these goods and to all normal
classes of purchasers. See In re Linkvest S.A., 24 USPQ2d
1716 (TTAB 1992). See also Octocom Systems, Inc. v.
Houston Computers Services Inc., supra. We note in
addition that the Internet evidence made of record by the
Ser No. 77608467
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examining attorney supports a finding that applicant’s
goods in fact move in the same trade channels as those of
registrant. Further, in view of our finding that the goods
of applicant encompass those of registrant, and the lack of
restrictions to the trade channels, the goods must be
presumed to be sold to the same class of purchasers. See
In re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
Accordingly, both applicant’s and registrant’s goods
are presumed to move in the same channels of trade and be
available to the same classes of potential consumers. See
In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). This du Pont
factor also favors a finding of likelihood of confusion.
Similarity of the Marks
We turn then 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). We note initially that the test
under the first du Pont factor 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
Ser No. 77608467
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that confusion as to the source of the goods offered under
the respective marks is likely to result. 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 (TTAB 1975).
In this case, applicant’s mark,

is highly similar to registrant’s mark, CROSSLIGHT, in that
both consist of the identical term “CROSS” and the nearly
identical terms “LITE” in applicant’s mark and “LIGHT” in
that of registrant. As a result, the marks are highly
similar in appearance and sound. Indeed, if we view
applicant’s mark as a stylized depiction of “CROSS LITE,”
it is nearly identical to the mark CROSSLIGHT in the cited
registration.
Further, even if applicant’s mark is perceived as
“LITE CROSS,” we are not persuaded that reversing the order
of the words in the marks makes a significant difference in
commercial impression. As the Board has previously stated:
Ser No. 77608467
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Further, the reversal in one mark of the
essential elements of another mark may serve as a
basis for a finding of no likelihood of confusion
only if the transposed marks create distinctly
different commercial impressions. See Bank of
America National Trust and Savings Assn. v.
American National Bank of St. Joseph, 201 USPQ
842 (TTAB 1978), and cases cited therein. Here,
where the goods in question are legally
identical, and where both marks, when applied to
the goods in question, are likely to be perceived
by purchasers as signifying that the product sold
thereunder busts through, or breaks up, rust, we
agree with the Examining Attorney that the marks
create substantially similar commercial
impressions, and there is a likelihood of
confusion. Cf. In re Inco, 154 USPQ 629 (TTAB
1967) [“GUARDIAN OF POSTURE for mattresses versus
“POSTURGUARD” for mattresses – registration
refused], and McNamee Coach Corp. v. Kamp-A-While
Industries, Inc. v. 148 USPQ 765 (TTAB 1965)
[“KING KAMPER” for camping trailers versus “KAMP
KING KOACHES” for campers – registration
refused].

See In re Nationwide Industries, Inc., 6 USPQ2d 1882,
1884 (TTAB 1988)(RUST BUSTER for rust-penetrating spray
lubricants confusingly similar to BUST RUST for penetrating
oil). In this case, to the extent that potential consumers
will ascribe a particular connotation to “CROSSLIGHT” and
“LITE CROSS,” it appears that both connote lights in a
shape of a cross or crossed lights, i.e., variations on the
same connotation. Although there may be subtle differences
in the meanings of the marks when they are subjected to
close analysis, we do not believe that consumers will
undertake such an analysis. The test for likelihood of
Ser No. 77608467
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confusion is not whether the marks can be distinguished
when subjected to a side-by-side comparison. Also, in
evaluating similarities between the marks, the emphasis
must be 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 (TTAB 1975).
Registrant’s mark CROSSLIGHT and applicant’s mark LITE
CROSS, or CROSS LIGHT, in stylized form, to the extent that
either mark has a recognized meaning, convey similar
meanings and commercial impressions when used in connection
with lighting fixtures. Both marks suggest lights arranged
in a cross shape. Thus, when the marks are considered in
their entireties, we find that they are similar in sound,
appearance, meaning and commercial impression. Finally, we
note that applicant cannot avoid a finding of likelihood of
confusion by disclaiming the wording in its mark. As a
result, this du Pont factor also favors a finding of
likelihood of confusion.
Sophistication of Purchasers
Finally, applicant contends that purchasers of the
involved goods will exercise a higher than ordinary degree
of care because they will readily distinguish between
applicant’s electrically powered lights and registrant’s
Ser No. 77608467
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solar powered lights. However, the evidence of record
simply does not support a finding that applicant’s or
registrant’s goods are available only to sophisticated
purchasers or are otherwise restricted solely to expensive
fixtures that are likely to be purchased by discriminating
buyers. Further, even assuming arguendo that purchases of
applicant’s and registrant’s goods would involve a
deliberate decision-making process, this does not mean that
the purchasers are immune from confusion. As we view the
present case, the high degree of similarity of the marks
and the similarity between the goods outweigh any
sophisticated purchasing decision. See 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]. See also In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50
(Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112
(CCPA 1970) [“Human memories even of discriminating
purchasers...are not infallible.”].

Ser No. 77608467
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Summary
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 sold under its mark that the
goods originated with or are associated with or sponsored
by the same entity.
Decision: The refusal to register is affirmed.