Telect, Inc.

Trademark Trial and Appeal Board

May 30, 2002

No. 75921736 (T.T.A.B. May. 30, 2002)

5/30/02

Paper No. 10
ejs

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Telect, Inc.
________

Serial No. 75/921,736
_______

Mark W. Hendricksen of Wells St. John PS for Telect, Inc.

Ellen Awrich, Trademark Examining Attorney, Law Office 116.
_______

Before Seeherman, Quinn and Drost, Administrative Trademark
Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Telect, Inc. has appealed from the final refusal of
the Trademark Examining Attorney to register MEGAWAVE as a
trademark for “fiber optic cables; fiber optic termination
cabinets; fiber optic cable frameworks for housing fiber
optic termination cabinets; fiber optic terminal blocks;
fiber optic connector cabinets, frames and blocks; fiber
optic patchcords; fiber optic jumper cables; and multi-
THIS DECISION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/921,736
2
fiber optic cable connectors for cross-connecting fiber
optic telecommunications equipment.”1
Registration has been refused pursuant to Section 2(d)
of the Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s mark so resembles the mark MEGAWAVE CORPORATION
and design, as shown below, and with the word CORPORATION
disclaimed, previously registered for “custom manufacture
of antennas” in Class 40; “engineering, design, testing and
consultations in the field of electromagnetics, antennas
and radio wave propagation” in Class 42; and “computer
software for analyzing electromagnetics related problems;
and antennas” in Class 92 as to be likely, if used on
applicant’s identified goods, to cause confusion or mistake
or to deceive.

The appeal has been fully briefed, but an oral hearing
was not requested.3

1 Application Serial No. 75/921,736, filed February 17, 2000,
and asserting a bona fide intention to use the mark in commerce.
2 Registration No. 2,099,890, issued September 23, 1997.
3 In its reply brief applicant makes the statement that “It
seems that the predominant references cited by the examiner
relate to the fiber optic cable recitation more than the other
Ser No. 75/921,736
3
Our determination 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). In any likelihood
of confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We find that the marks are very similar in appearance,
pronunciation and connotation. Applicant’s mark consists
of the term MEGAWAVE, while the cited mark is the identical
word, followed by the word CORPORATION, which does not have

goods identified in this application. Applicant would be willing
to exclude or delete the ‘fiber optic cable’ if deemed necessary,
but based on the argument and case law set forth above, thinks
that should be unnecessary.” p. 3. We have given no
consideration to this comment. This mention of a possibility
certainly does not amount to a request for an amendment to the
identification. If applicant had wished to amend the
identification, the proper procedure would be to submit a request
for remand. Moreover, requests for remand are granted only upon
a showing of good cause, and the fact that applicant waited until
its reply brief even with its half-hearted suggestion of amending
its identification would not constitute good cause, given that
the references cited by the Examining Attorney were submitted
during the course of examination, and before the notice of appeal
was even filed.

It is also noted that, in its main brief, applicant states that
it “would be willing to specifically exclude antennas from its
description of goods, if acceptable to the Board and/or
examiner.” p. 5. Such a request is unacceptable for the reasons
stated above; moreover, because “antennas” are not part of
applicant’s identification of goods, such an amendment would
serve no purpose.

Ser No. 75/921,736
4
source-identifying significance, as indicated by the fact
that it has been disclaimed. Nor does the design element
in the registered mark serve to distinguish the marks. It
is a mere swirl which might be suggestive of an antenna or
merely an abstract design; in either case, it is the word
portion of the cited mark by which the registrant’s goods
and services will be referred to, and consequently, it is
the word portion which will be noted and remembered. See
In re National 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 a consideration of the marks
in their entireties); In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987) (in evaluating the similarities of
marks, a particular feature or portion of a mark can thus
be accorded greater weight if it would make an impression
upon purchasers that would be remembered and relied upon to
identify the goods or services).
Turning next to a consideration of the goods and
services, we must first comment on what applicant’s goods
are. In the application as originally filed, applicant
identified its goods as “telecommunications equipment;
fiber optic cable termination cabinets, frames and blocks;
Ser No. 75/921,736
5
and fiber optic cable connector cabinets, frames and
blocks; fiber optic pigtails; fiber optic patchcords and
jumpers; and multi-fiber optic cable assemblies for cross-
connecting fiber optic communications equipment.” The
Examining Attorney objected to some of the terms, such as
“equipment” and “assemblies,” in the original
identification because they were indefinite, and found
other terms, such as “frames and blocks,” to be
unacceptable. Applicant then amended its identification to
that listed in the first paragraph of this opinion, and
specifically deleted “telecommunications equipment.” It
should be noted that, although applicant has, in arguing
against any likelihood of confusion, described its goods as
being typically used by telephone service providers, there
is no such limitation in the identification.
It is well-established that it is not necessary that
the goods and/or services of the parties be similar or
competitive, or even that they move in the same channels of
trade to support a holding of likelihood of confusion. It
is sufficient that the respective goods and/or services of
the parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods and/or services are such that they would or could be
encountered by the same persons under circumstances that
Ser No. 75/921,736
6
could, because of the similarity of the of the marks, give
rise to the mistaken belief that they originate from the
same producer. In re International Telephone & Telegraph
Corp., 197 USPQ 910, 911 (TTAB 1978).
In this case the Examining Attorney has demonstrated
the requisite relationship through excerpts of articles
taken from the NEXIS data base. These excerpts show that
fiber optic cables are part of antenna systems, and that
fiber optic cables and antennas are used together in
communications systems:
Andrew Corp’s InCell fiber-optic
distributed antenna system for in-
building wireless communications
extends radio frequency coverage in
hard-to-penetrate indoor areas.
“Global Telephony,” February 2001

BriteCell is a single or multi-ban
fiber-optic distributed antenna system.
“Airports,” September 12, 2000

Signals are passed from the antenna to
the workstation via fiber-optic links.
“Journal of Electronic Defense,” August
1, 2000

Ortel also makes a variety of products
for satellite communications such as a
fiber-optic antenna distribution system
for applications such as high-
definition television and broadcast
centers.
“Weekly Corporate Growth Report,”
February 14, 2000

...trying to perfect a concept largely
articulated by British
Ser No. 75/921,736
7
Telecommunications P.L.C: small
wireless communications devices--
essentially antennas--attached to
fiber-optic lines every few hundred
feet.
“The New York Times,” January 1, 2000

Connecting the wireless antennas will
be a wireline and fiber optic cable
network owned by TEPSP.
“Newsbytes,” September 13, 1999

By using a fiber optic distribution
system to feed the antennas inside the
shopping mall, far higher densities of
cellular users can be supported. ...The
NTL installation consists of over six
miles of fiber-optic cabling,
connecting 36 antennas located
throughout the shopping malls back to a
multi-user equipment room on the roof
of the building.
“Newsbytes,” August 23, 1999

The wireless company’s antenna is
connected to an underground fiber-optic
trunk cable--the Internet backbone of
the country.
“Albuquerque Tribune,” November 5, 1998

It beams voice and data at more than 10
megabits per second to a hub antenna,
which feeds it into a fiber-optic
network, bypassing the slower local
phone lines.
“USA Today,” June 3, 1998.

Applicant argues that the customers for its fiber
optic products and the registrant’s antennas and antenna
design, testing, etc. services are different because
applicant’s goods are “typically utilized by telephone
service providers who merely pass voice and data
Ser No. 75/921,736
8
transmissions through their lines to their final
destination,” while “antennas, the custom manufacture of
antennas, and software for analyzing electromagnetics
related to antennas deal with the transmission through air
of RF [radio frequency] and other signals.” Applicant also
asserts that the market channels are different for consumer
antennas and industrial applications.
To the extent that applicant may be attempting to
distinguish its goods from the registrant’s goods and
services based on the specific types of goods and services
on which the respective marks are used, and the actual
customers for those goods and services, such a distinction
is not permitted. The question of likelihood of confusion
must be determined on the basis of an analysis of the mark
as applied to the goods and/or services recited in
applicant’s application vis-à-vis the goods and/or services
recited in the cited registration, rather than what the
evidence shows the goods and/or services to be. See
Canadian Imperial Bank of Commerce v. Wells Fargo Bank, NA,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987); In re
William Hodges & Co. Inc., 190 USPQ 47 (TTAB 1976). As
identified, applicant’s fiber optic cables, fiber optic
termination cabinets, fiber optic terminal blocks, etc. are
not limited to use by telephone service providers, and
Ser No. 75/921,736
9
could be used in the same systems which use applicant’s
antennas. Nor are the registrant’s antennas and related
services limited to specific types of antennas or specific
consumers. In fact, although applicant suggests that the
registrant’s antennas are for “the consumer antenna side,”
the registrant’s website material which was submitted by
applicant indicates that its antennas are for use by the
military and the automobile industry.4
Applicant’s primary argument is that the purchasers
for the applicant’s and registrant’s respective goods are
services are sophisticated. Applicant asserts that they
are “typically engineers with a particular need or
specification for an antenna or for telecommunications
equipment, such as fiberoptics.” We do not dispute that
the purchasers for applicant’s and the registrant’s goods
and services would be knowledgeable, sophisticated and
careful consumers. However, because of the close
relationship between the goods and services, with antennas
and fiber optic cables actually being used in the same
system, even sophisticated purchasers are likely to be

4 Applicant refers in its brief to an attached Exhibit A
consisting of material from the registrant’s website. No such
exhibit was attached and, indeed, any evidence newly submitted
with the brief could not be considered. However, applicant did
timely submit such material with its response to the first Office
action, and it is to this material which we assume the brief
refers.
Ser No. 75/921,736
10
confused by the use of the substantially similar marks at
issue herein.
Finally, applicant contends that “the term MEGA and
WAVE, when considered in the field of antennas, are low in
the spectrum of distinctiveness and not entitled to broad
protection individually or in combination as applied to
antennas.” Brief, p. 5. Although MEGAWAVE has a certain
suggestive connotation, there is no evidence of third-party
usage or registration which would lead us to conclude that
MEGAWAVE CORPORATION and design is a weak mark. It is
certainly strong enough to prevent the registration of the
substantially similar mark MEGAWAVE for goods as related as
those in this case.
Decision: The refusal of registration is affirmed.