Trend Electronics Inter-national, Inc.

Trademark Trial and Appeal Board

May 9, 2008

No. 77003068 (T.T.A.B. May. 9, 2008)

Mailed: May 9, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Trend Electronics International, Inc.
________

Serial No. 77003068
_______

Niti Duggal of Roy, Kiesel, Keegan & DeNicola for Trend
Electronics International, Inc.

Rebecca M. Eisinger, Trademark Examining Attorney, Law
Office 102 (Karen M. Strzyz, Managing Attorney).
_______

Before Zervas, Cataldo and Taylor, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Trend Electronics International, Inc. has filed an
application to register on the Principal Register the mark
VISTA ACOUSTICS (in standard character format) for “audio
and video electronic equipment for homes and vehicles,
namely speakers, amplifiers, receivers, and audio and
video controllers and control systems” in Class 9.1 In

1 Application Serial No. 77003068, filed on September 20, 2006,
and based on an allegation of a bona fide intention to use the
mark in commerce.

THIS OPINION IS NOT A
PRECEDENT OF
THE TTAB
Serial No. 77003068
2
response to a request from the examining attorney,
applicant disclaimed the term “ACOUSTICS.”
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, on the ground
that applicant’s mark, when applied to applicant’s goods,
so resembles the previously registered marks VISTA2 (in
typed format) and VISTA and design3, shown below,

both for “computer conferencing components, namely,
computer hardware and software for distributing
teleconferencing signals, video cameras, video monitors,
speakers, video and audio recorders, computer keyboards,
power supplies and microphones.” The registrations are
owned by the same entity.
When the refusal was made final, applicant requested
reconsideration, which was denied by the examining
attorney on September 7, 2007. Applicant subsequently
appealed. Both applicant and the examining attorney have

2 Registration No. 2919754, issued January 18, 2005.

3 Registration No. 2919755, issued January 18, 2005.

Serial No. 77003068
3
filed briefs.4 For the reasons discussed below, we reverse
the refusal to register.
Before turning to the merits of this case, we must
address an evidentiary matter. Applicant has made of
record two lists of third-party applications and
registrations (consisting of the serial and registration
numbers, the mark, and whether the application is “Live”
or “Dead”) for marks containing the term “VISTA” obtained
from the TESS database of the United States Patent and
Trademark Office (USPTO). We observe that while this
evidence is in an improper format, it nonetheless was
timely filed and, moreover, because the examining attorney
did not object to these lists or advise applicant that
copies of the registrations were necessary, we will
consider them as being of record. See TMBP § 1207.03 (2d
ed. rev. 2004). However, a mere listing of third-party
marks, without any accompanying indication of the goods
and/or services associated therewith, has virtually no

4 The evidence attached to applicant’s brief is the same
as that previously submitted with applicant’s request for
reconsideration. Accordingly, it is already of record as
part of the application file, and its submission was
unnecessary. See ITC Entertainment Group Ltd. v. Nintendo
of America Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998)
(submission of duplicative papers is a waste of time and
resources, and is a burden upon the Board).

Serial No. 77003068
4
probative value. See TBMP § 1208.02 (2d ed. rev. 2004),
and the authorities cited therein. Further, the expired
registrations and pending and abandoned applications
identified in the lists are also of no value. See Action
Temporary Services Inc. v. Labor Force Inc., 870 F.2d
1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989)(“[A] cancelled
registration does not provide constructive notice of
anything”); Interpayment Services Ltd. v. Docters &
Thiede, 66 USPQ2d 1463 (TTAB 2003)(applications show only
that they have been filed).
Turning to the merits of the case, 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 Company, Inc.,
315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). Each of
these factors may, from case to case, play a dominant
role. du Pont, 476 F.2d at 1361, 177 USPQ at 567.
We first consider the similarity or dissimilarity of
the goods which we think plays a dominant role in our
analysis. It is well settled that the question of
likelihood of confusion must be determined based on an
analysis of the goods or services recited in applicant’s
Serial No. 77003068
5
application and the goods or services recited in the cited
registrations. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ 2d
1715 (TTAB 1991). Further, we must keep in mind that there
is no rule that (a) certain goods are per se related, and
(b) that there must be a likelihood of confusion from the
use of similar marks in relation to such goods. See e.g.,
Information Resources Inc. v. X*Press Information Services,
6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer
hardware and software); Hi-Country Foods Corp. v. Hi
Country Beef Jerky, 4 USPQ2d 1169, 1171 (TTAB 1987)
(regarding food products); and In re Quadram Corp., 228
USPQ 863, 864 (TTAB 1985) (regarding computer hardware and
software); and In re British Bulldog, Ltd., 224 USPQ 854,
855-56 (TTAB 1984) and cases cited therein (regarding
clothing).
Applicant’s goods are identified as “audio and video
electronic equipment for homes and vehicles, namely
speakers, amplifiers, receivers, and audio and video
controllers and control systems” and registrant’s goods
are identified as “computer conferencing components,
namely, computer hardware and software for distributing
teleconferencing signals, video cameras, video monitors,
Serial No. 77003068
6
speakers, video and audio recorders, computer keyboards,
power supplies and microphones.” Applicant argues that
its goods are not closely related to registrant’s goods.
Applicant specifically argues:
While both types of goods may be broadly
classified as electronic products, a casual
connection of this sort cannot justify a finding
that the two are competitive or highly related as
to likelihood of confusion.
***
... [T]he electronic products associated with
registrant’s marks are designed for computer-
conferencing applications, and are not identical
nor similar to the Applicant’s electronic
products designed for home entertainment or
automotive applications. In today’s modern era,
electronic products and accessories have become
highly advanced, and are fined [sic] tuned for
specific and different applications, with
customers being able to appreciate these
differences.

(Brief, p. 13).

The examining attorney, by contrast, argues that:
Applicant’s goods “audio and video electronic
equipment for homes and vehicles, namely,
speakers” are the same as registrant’s goods
“computer conferencing components, namely, …
speakers” because they encompass each other:
applicant’s goods as identified could be used
for computer conferencing, and registrant’s
goods may be used anywhere that is normal for
computer conferencing components, including
homes (especially in home-office telework
contexts) and vehicles. Applicant’s contention
that its and registrant’s goods are restricted
to very specific users, uses or markets is not
supported by the straightforward language of
the identifications.

Serial No. 77003068
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(Brief, at unnumbered p. 14). The examining attorney goes
on to argue that applicant’s remaining goods “audio and
video electronic equipment for homes and vehicles, namely,
… amplifiers, receivers, and audio and video controllers
and control systems” are related in commerce to
registrant’s “computer conferencing components, namely, …
video monitors, speakers, video and audio recorders, and
microphones. In support of this contention, the examining
attorney made of record six use-based, third-party
registrations purportedly showing that various trademark
owners have adopted a single mark for audio and video
electronic equipment and computer conferencing components.
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. In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993).
In addition, the examining attorney submitted web
pages from five manufacturers and retailers who offer such
goods as video cameras, speakers, audio recorders and
players, and video monitors as well as amplifiers,
audio/video receivers and audio/video controllers. The
websites include: http://creative.com; http://
Serial No. 77003068
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circuitcity.com, http://www.bhphotovideo.com,
http://www.walmart.com, and http://www.sonystyle.com.
As regards the examining attorney’s contention that
some of the goods (speakers) are identical, we find that
the examining attorney is reading the identifications too
broadly. While “speakers” appear in both identifications,
the identifications limit the parties’ goods to particular
uses. That is, applicant’s speakers are identified as
audio and video electronic equipment targeted for use in
homes and vehicles while registrant’s speakers are
identified as components of computer conferencing
equipment and targeted to computer based applications. We
thus find the examining attorney’s assertion that
applicant’s speakers could be used for computer
conferencing too speculative in the absence of anything in
the record to demonstrate such overlap in function. We
hasten to add that in construing the plain meaning of the
written descriptions, and in considering the arguments of
applicant and the examining attorney on this issue, we
have not permitted applicant to impermissibly restrict
either its own or registrant’s identifications of goods,
which it may not do.
Looking at the third-party registrations relied upon
by the examining attorney, we find that only two of the
Serial No. 77003068
9
six recite goods of the type identified in both
applicant’s application and the cited registrations. The
other four registrations do not recite both audio and
video equipment targeted for use in homes and vehicles and
computer conferencing components. The two relevant
registrations are: Registration No. 3172651 which
recites, inter alia, “audio and video components, namely
speakers … amplifiers … [and] stereo speakers” and
“computer speakers”; and Registration No. 3186248 which
recites, inter alia, “audio speakers” and “computer
monitors.” These two third-party registrations are not
sufficient to establish that applicant’s audio and video
electronic equipment for homes and vehicles, namely,
speakers, amplifiers, receivers, and audio and video
controllers and control systems are related to
registrant’s computer conferencing components, namely
computer conferencing components, namely, computer
hardware and software for distributing teleconferencing
signals, video cameras, video monitors, speakers, video
and audio recorders, computer keyboards, power supplies
and microphones.
Similarly, we do not find the Internet evidence
particularly probative of the relatedness of the goods.
The first web page is from the Creative Worldwide website.
Serial No. 77003068
10
The excerpt shows digital cameras and a list of other
products, including, speaker systems and PC peripherals,
presumably available through the site. However, it is
unclear as to the nature of the PC peripherals and whether
these goods are manufactured by a single manufacturer.
The second web page is from the Circuit City website.
The excerpt shows different categories of goods, such as
home theater systems, receivers, amplifiers and speaker
systems presumably available for purchase. The excerpt
does not, however, reference any computer components of
any kind.
The third web page is from B&H Photo Video. The
excerpt shows different categories of goods presumably
available for purchase, including amplifiers and speakers.
The excerpt also shows a menu topic entitled “Computers &
Solutions.” We cannot infer from the vague reference to
computers that goods of the type identified in both
applicant’s application and the cited registrations are
available via this site.
The fourth web page is from the Wal-Mart website.
Again, the excerpt only references home theater goods.
There is no evidence that audio and video electronic
equipment for homes and vehicles and computer conferencing
components are identified by the same marks. In addition,
Serial No. 77003068
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from its web pages we observe that Wal-Mart is a third-
party retailer that sells a wide variety of home theater
goods manufactured by others as opposed to manufacturers
of audio and video electronic equipment and computer
conferencing components.
The last web page is from the Sony Style website.
While there is a notation to computers on the reference
bar, the only goods shown on the excerpt are home audio
components.
As discussed above, we find no basis in this record
for concluding that the goods of applicant and registrant
are related or that the goods are such that they would
likely to be assumed to emanate from a common source,
because similar marks are used on them.
Further, while the identifications of the cited
registrations do not explicitly limit the goods to
commercial applications, as written, these types of goods
ordinarily are intended for business uses.5 As such, there

5 The record also confirms that registrant’s goods are not for
home or vehicle use. Specifically, applicant submitted web
pages describing registrant’s goods wherein the applications
were listed as:
• Video conferencing, collaboration, and data sharing for
classrooms, large groups, executive board rooms and custom
applications
• Meetings and distance learning sessions for corporations,
government agencies, other enterprise organizations
• Distance learning for K-12, colleges and universities,
adult education, continuing education and training
Serial No. 77003068
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is little to no overlap in the channel of trade and
classes of purchasers. Accordingly, this factor does not
weigh in favor of finding a likelihood of confusion.
With respect to the conditions of sale, applicant
argues that “the fact that these goods are [of] the type
that [are] expensive and purchased infrequently … supports
the argument that the nature of the purchasing decision
will be careful and sophisticated.” (Brief, p. 14).
Applicant supported its position with information obtained
from registrant’s website and an affidavit from its
president, Mitch Irving, which tend to suggest that both
applicant’s and registrant’s products are expensive and
would be purchased with care. For example, registrant’s
goods are described as follows:
The Vista VX-P Media Station is based on
the original VISTA VX line but feature a
greater array of input/output options.
In addition to the five cameras, the VX-P
has three microphone inputs, an audio
line in/out, VCR in/out and three USB
ports. The device will work with wired
or wireless LANs and uses the H.323 video
protocol. The VX-P Media Station starts
at $14,500.

• Videoconferencing platform for system integrators
(Request for reconsideration, exh. F).

Serial No. 77003068
13
(Request for Reconsideration, exh. F). Also, Mr. Irving,
in his affidavit, attests that applicant’s goods are
“relatively complex and expensive, costing up to hundreds
of dollars.” (Request for reconsideration, exh. J).
The examining attorney, in response, states that
“[a]pplicant has supported this argument with evidence.”
(Brief, unnumbered p. 16). However, citing to In re
Decombe, 9 USPQ 1812 (TTAB 1988); and In re Pellerin
Milnor Corp., 221USPQ 558 (TTAB 1983), she maintains that
the fact that purchasers are sophisticated or
knowledgeable in the field of electronic goods does not
mean that they are knowledgeable in the field of
trademarks or immune from source confusion; and that “the
alleged computer savvy of the relevant consumers does not
obviate the likelihood of confusion.” (Brief, unnumbered
p. 16).
While it is true that sophistication in purchasing
decisions does not equate to knowledge in the field of
trademarks, herein these purchasers are likely to be
careful in their purchasing decisions, especially with
regard to the purchase of registrant’s computer
conferencing components, which are expensive and would not
be purchased on impulse.
This factor thus weighs in applicant’s favor.
Serial No. 77003068
14
Applicant, relying on lists from a search of the TESS
database for the term “vista” and results from a search of
the Google search engine for the keywords “vista,” “vista
audio,” “vista cameras,” “vista amplifiers” and “vista
receivers,” contends that “the term VISTA is weak for the
goods due to being diluted on the register for the goods”
(id.), and because there is widespread third-party use of
the term VISTA. This argument is unavailing. As
previously explained, the listing of applications and
registrations from the USPTO’s TESS data base are of
little to no probative value. Similarly, the results
summaries from the Google search are of little value,
except in a couple of instances where applicant submitted
an entire web page, because there is insufficient
information to determine how the terms are used in
context. See In re Fitch IBCA Inc., 64 USPQ 1058, 1060
(TTAB 2002). The two complete Internet references showing
VISTA formative marks for related goods are not sufficient
to support a finding that the term VISTA is weak for audio
and video electronic equipment for homes and vehicles
and/or computer conferencing components.
Accordingly, we find the du Pont factor of the number
and nature of similar marks used on similar goods neutral.
Serial No. 77003068
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Last, we consider the similarity of applicant’s mark
and the cited registered marks. Applicant argues that when
the marks are viewed in their entireties, its mark differs
from those of the cited registrations, in sight, sound and
meaning.6 The examining attorney, by contrast, argues that
when the marks are so viewed, they are similar. We agree
with the examining attorney. Applicant’s mark is VISTA
ACOUSTICS. The registered marks are VISTA and VISTA and
design. While there are differences between the marks,
namely the addition of the term “ACOUSTICS” to applicant’s
mark and the stylization and the noticeable eye design in
the cited VISTA and design mark, the marks share the
dominant term VISTA. In particular, the dominant portion
of applicant’s mark is VISTA; as the descriptive term
“acoustics” is subordinate in nature. In the VISTA and
design mark, the term VISTA is the more dominant portion
because the word portion is more likely to be impressed
upon a purchaser’s memory and used in calling for the
goods. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593,
1596 (TTAB 2001). Thus, due to the shared term VISTA, we

6 Applicant also asserts that the term VISTA is descriptive and
not distinctive of either party’s goods. Such a contention,
particularly with respect to the cited marks, constitutes an
impermissible collateral attack on their validity and will not
be entertained in this appeal. See e.g., In re Peebles Inc., 23
USPQ2d 1795 (TTAB 1992); and In re C. F. Hathaway Co., 190 USPQ
343 (TTAB 1976).
Serial No. 77003068
16
find that applicant’s mark is similar to the cited marks in
appearance, sound and overall commercial impression.
In balancing the factors discussed above, we find
that the examining attorney has not established that there
is a likelihood of confusion between applicant’s mark and
the cited marks. Although the marks are similar, because
the goods as identified are distinctly different and there
is insufficient evidence to demonstrate that the goods are
related, we conclude that purchasers and prospective
purchasers of registrant’s computer conferencing
components, namely, computer hardware and software for
distributing teleconferencing signals, video cameras,
video monitors, speakers, video and audio recorders,
computer keyboards, power supplies and microphones, as
provided under its VISTA and VISTA and design marks, would
not be likely to believe, if they encounter applicant’s
audio and video electronic equipment for homes and
vehicles, namely speakers, amplifiers, receivers, and
audio and video controllers and control systems, which are
rendered under its VISTA ACOUSTICS mark, that the
respective goods emanate from, or are sponsored by or
associated with, the same source.

Serial No. 77003068
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Decision: The refusal to register under Section 2(d)
of the Trademark Act is reversed as to both Registration
No. 2919754 and Registration No. 2919755.