Travel Retail Distribution Group, Inc.

Trademark Trial and Appeal Board

Dec 13, 2016

No. 86529674 (T.T.A.B. Dec. 13, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: December 13, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Travel Retail Distribution Group, Inc.
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Serial No. 86529674
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William S. Parks, William S. Parks, PLLC,
for Travel Retail Distribution Group, Inc.
Kyle D. Simcox, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
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Before Quinn, Wolfson, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Travel Retail Distribution Group, Inc. seeks registration on the
Principal Register of the mark GIGS (in standard characters) for “audio headphones
and earphones including wired and wireless headphones and earphones and audio
headphones and earphones with noise canceling features,” in International Class 9.1

1 Application Serial No. 86529674 was filed on February 10, 2015, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and in
commerce since October 10, 2013.
Serial No. 86529674
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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied
to the goods identified in the application, so resembles the marks GIG (in standard
characters) and , both previously registered on the Principal Register to
the same owner for “loudspeakers” in International Class 9,2 as to be likely to cause
confusion, to cause mistake, or to deceive.
We affirm the refusal to register.
Before turning to the merits of the appeal, we address two evidentiary and
procedural matters. First, we sustain the Examining Attorney’s objection to the
evidence attached to Applicant’s appeal brief as untimely submitted. See Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d); Trademark Trial and Appeal Board Manual of
Procedure (TBMP) § 1207.01 (2016); In re Midwest Gaming & Entm’t LLC, 106
USPQ2d 1163, 1165 n.3 (TTAB 2013). We have given these documents no
consideration.
Second, Applicant’s brief is single-spaced and therefore does not conform to
Trademark Rule 2.126(b), 37 C.F.R. § 2.126(b). See In re Cordua Rests. LP, 110
USPQ2d 1227, 1229 n.2 (TTAB 2014), aff’d, 823 F.3d 594 (Fed. Cir. 2016). We exercise
our discretion to consider the brief because it does not appear that the content would
exceed the 25-page length limit had it been properly formatted. Trademark Rule
2.142(b)(2), 37 C.F.R. § 2.142(b)(2).

2 Registration Nos. 4565272 and 4565330, both issued July 8, 2014. The description of the
latter mark states: “The mark consists of the word mark ‘GIG’ with the last ‘G’ reversed.”
Serial No. 86529674
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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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (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 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 first address the du Pont likelihood of confusion factor focusing on “‘the
similarity or dissimilarity of the marks 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).
For purposes of our likelihood of confusion analysis, we focus on cited Registration
No. 4565272 for the mark GIG in standard characters, which we find to be the more
relevant cited mark for our analysis. Accordingly, if we find a likelihood of confusion
as to this mark, we need not find it as to Registrant’s stylized mark . On
the other hand, if we do not find a likelihood of confusion with Registrant’s standard
character mark, we also would not reach that conclusion as to the other cited
registration. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Serial No. 86529674
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Applicant’s mark is GIGS and the cited mark is GIG. The marks are identical
except that Applicant’s mark is plural. It is well-established that the singular and
plural forms of the same term generally do not create such different commercial
impressions that confusion would be avoided. See, e.g., In re Belgrade Shoe Co., 411
F.2d 1352, 162 USPQ 227 (CCPA 1969); Wilson v. Delaunay, 245 F.2d 877, 114 USPQ
339, 341 (CCPA 1957); Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d
1347, 1355 (TTAB 2014) (stating that it is well-established that singular and plural
forms of the same term are essentially the same mark); In re Strategic Partners Inc.,
102 USPQ2d 1397, 1399 (TTAB 2012). We find there to be no material difference
between the plural form GIGS and the singular GIG constituting these marks.
Because Applicant’s mark is essentially identical to the cited mark, the first
du Pont factor weighs strongly in favor of a finding that confusion is likely.
We next consider the second du Pont factor, the similarity of the goods. The test
is not whether consumers would be likely to confuse the goods, but rather whether
they are likely to be confused as to their source. In re Anderson, 101 USPQ2d 1912,
1919 (TTAB 2012). Therefore, to support a finding of likelihood of confusion, it is not
necessary that the goods be identical or even competitive. It is sufficient that the
goods are related in some manner, or that the circumstances surrounding their
marketing are such that they would be encountered by the same persons in situations
that would give rise, because of the marks, to a mistaken belief that they originate
from the same source or that there is an association or connection between the sources
of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
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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 Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1689 (Fed. Cir. 1993); In re Opus One Inc., 60 USPQ2d 1812, 1815
(TTAB 2001). Where, as here, the involved marks are substantially identical, it is
only necessary that there be a viable relationship between the goods to support a
finding of likelihood of confusion. In re Iolo Techs. LLC, 95 USPQ2d 1498, 1499 (TTAB
2010); In re Thor Tech, 90 USPQ2d at 1636.
We must make our determination regarding the similarities between the goods
based on how they are identified in the subject application and cited registration,
respectively, not on any extrinsic evidence of actual use. Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014);
Octocom Sys. Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). A likelihood of confusion may be found with respect to a
particular class based on any item within the identification of goods for that class.
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981).
As noted, the goods identified in the cited registration are “loudspeakers,” and
Applicant’s goods are “audio headphones and earphones including wired and wireless
headphones and earphones and audio headphones and earphones with noise
canceling features.” The Examining Attorney submitted evidence that the respective
identified goods are related, including website printouts demonstrating that at least
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ten third parties produce or market under a single mark both loudspeakers and
headphones, earphones, or both, including the following:
• BOSE3
• POLK4
• SKULLCANDY5
• BOWERS & WILKINS6
• JABRA7
• CREATIVE8
• SAMSUNG9
• SOL REPUBLIC10
• SONY11
• HARMAN12

This evidence demonstrates that there is a viable relationship between the kinds of
goods identified in the application and cited registration, which may emanate from a
single source under the same mark.

3 May 18, 2015 Office Action at 7-27 (from bose.com and crutchfield.com).
4 Id. at 28-35 (from polkaudio.com).
5 December 8, 2015 Final Office Action at 11-12 (from skullcandy.com).
6 Id. at 13-17 (from bowers-wilkins.com).
7 Id. at 18-32 (from jabra.com).
8 Id. at 33-44 (from us.creative.com).
9 Id. at 45-46 (SAMSUNG LEVEL BOX MINI speaker and SAMSUNG LEVEL ON Wireless
PRO headphones, from Samsung.com).
10 Id. at 47-60 (from amazon.com).
11 Id. at 61-73 (from sony.com).
12 May 18, 2015 Office Action at 36-37 (JBL BY HARMAN, from jbl.com); December 8, 2015
Final Office Action at 7-10 (HARMAN/KARDON HARMAN, from harmankardon.com).
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In addition, the Examining Attorney made of record 16 existing use-based, third-
party registrations covering loudspeakers as well as earphones, headphones, or
both.13 While these registrations are not evidence that the marks shown therein are
in use or that the public is familiar with them, they nonetheless have probative value,
suggesting that the identified goods are of a kind which are produced or marketed by
a single source under a single mark. In re Anderson, 101 USPQ2d at 1919; In re Davey
Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).
We find that the offer of Applicant’s headphones and earphones under the mark
GIGS is likely to lead to a mistaken belief that Applicant’s identified goods originate
from the same source as Registrant’s loudspeakers offered under the mark GIG. In
our likelihood of confusion analysis, this finding under the second du Pont factor
supports a conclusion that confusion is likely.
Finally, we address Applicant’s argument that purchasers of both its goods and
Registrant’s are unlikely to be confused by Applicant’s use of its mark because they
“are sophisticated and careful. That is, consumers of high quality audio equipment
typically take care to investigate such goods before purchasing them.”14
This argument, which is unsupported by any evidence, is unpersuasive. Neither
the application nor the cited registration is restricted to “high quality audio
equipment.” We must treat the identified goods as including inexpensive as well as
“high quality” earphones, headphones, and loudspeakers, and therefore presume that

13 December 8, 2015 Final Office Action at 77-124.
14 Applicant’s Appeal Brief at 8, 4 TTABVUE 9.
Serial No. 86529674
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purchasers include ordinary consumers who may buy such goods on impulse. In re
Bay State Brewing Co., 117 USPQ2d 1958, 1960 n.4 (TTAB 2016); see also Stone Lion,
110 USPQ2d at 1163 (recognizing Board precedent requiring consideration of the
“least sophisticated consumer in the class”). Even assuming that consumers of the
identified goods are sophisticated, moreover, it is settled that careful or sophisticated
purchasers “are not immune from source confusion where similar marks are used in
connection with related [goods or] services.” Stone Lion, 110 USPQ2d at 1163-64
(quotation omitted); see also In re Research & Trading Corp., 793 F.2d 1276, 230
USPQ 49, 50 (Fed. Cir. 1986) (“Human memories even of discriminating purchasers
. . . are not infallible.”) (quotation omitted).
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, as they pertain to the relevant du Pont likelihood of
confusion factors. We have found that Applicant’s mark is essentially identical to the
cited mark, and that the goods identified in the subject application and cited
registration are related. To the extent that any other du Pont factors are relevant, we
treat them as neutral.
We find that Applicant’s mark, when used in association with the goods identified
in the application, is likely to cause confusion with the mark in cited Registration
No. 4565272.
Decision: The refusal to register Applicant’s mark is affirmed.