Vipower Inc.

Trademark Trial and Appeal Board

Aug 31, 2004

No. 76425400 (T.T.A.B. Aug. 31, 2004)

Mailed: 8/31/04
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Vipower Inc.
________
Serial No. 76425400
_______
Bruce H. Troxell of Troxell Law Office PLLC for Vipower
Inc.
Anne Madden, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______
Before Simms, Seeherman and Drost, Administrative Trademark
Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Vipower Inc. has appealed from the final refusal of
the Trademark Examining Attorney to register ViPowER1 in the
stylized form shown below for goods identified as:
External electrical relay distribution
boxes for computer peripherals,
external controller of burning record
for compact disks, Electrical cable
with connector, CD-ROM writers, DVD ROM
1 We have used upper and lower case letters in referring to
applicant’s mark and the cited registered mark in an attempt to
convey their stylization.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76425400
2
machines, flash memory reader, ac/dc
power supply, 7-port system external
cable, IDE interface adapter, mobile
rack adapter, keyboard mouse, monitor,
Computer network hubs, CD duplicator,
Blank smart cards, mp3player, DVD
player and computer mainframe
computer.”2
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 VIPower, in the
stylized form shown below, and registered for
“semiconductors, transistors, integrated circuits, hybrids
circuits”3 that as used on applicant’s goods, it is likely
to cause confusion or mistake or to deceive.
Applicant and the Examining Attorney have filed appeal
briefs. Applicant did not request an oral hearing.
2 Application Serial No. 76425400, filed June 26, 2002,
asserting first use on June 1, 1997 and first use in commerce on
October 29, 1997. The identification, with its capitalization
and pluralization of some items and not others, is as it was
submitted by applicant.
3 Registration No. 1647224, issued June 11, 1991; Section 8 and
15 affidavits accepted and received, respectively; renewed.
Ser No. 76425400
3
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). In any likelihood of confusion analysis,
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). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
With respect to the marks, they are identical in
pronunciation4 and connotation. Although there are some
differences in their appearances, we find that overall they
convey the same commercial impression. In this connection,
we are not persuaded by applicant’s argument that, because
of the stylization, its mark gives the impression of the
4 Applicant has noted that the Office records list “VIP POWER”
as a “pseudo mark” for the cited registration, and argues from
this that the pseudo mark has a different pronunciation from its
mark. Listing something as a pseudo mark is a convenience
created by the Office for searching purposes. The actual mark is
not affected by the Office’s characterization, and it does not
affect the pronunciation of the mark. Thus, applicant’s mark and
the cited mark, being composed of the identical letter string,
would be pronounced the same.
Ser No. 76425400
4
word VIPER. Although the letters “ow” in the mark are in
lower case, while V, P and ER are in upper case, because of
the distance between “ViP” and “ER,” we do not believe that
consumers will view the mark as containing or signifying
the word “VIPER.” 5 Moreover, because of the prominence of
“ViP” caused by both the upper case letters and the
relative tightness of the letters due to the narrowness of
the letter “i,” consumers are likely to take note of the
“ViP” portion of the mark. This, of course, is the same
portion which stands out in the cited mark. Although we
hasten to add that we have compared the marks in their
entireties, it is permissible to give greater weight to a
particular feature of a mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Here,
the VIP portion of both is prominent, giving rise to a
similarity in appearance that is even greater than the fact
that they consist of the same term “VIPOWER.” The identity
of the term, pronunciation, connotation, and commercial
impression weighs heavily against the applicant. See In re
Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1566,
223 USPQ 1289, 1289-90 (Fed. Cir. 1984).
5 The “i” is depicted as a lower case letter, so it cannot even
be said that the VIPER is in all capital letters.
Ser No. 76425400
5
We turn next to a consideration of the goods, keeping
in mind that the greater the degree of similarity between
the applicant's mark and the cited registered mark, the
lesser the degree of similarity between the applicant's
goods or services and the registrant's goods or services
that is required to support a finding of likelihood of
confusion. In re Opus One Inc., 60 USPQ2d 1812 (TTAB
2001). If the marks are the same or almost so, it is only
necessary that there be a viable relationship between the
goods or services in order to support a holding of
likelihood of confusion. In re Concordia International
Forwarding Corp., 222 USPQ 355 (TTAB 1983).
Both applicant’s and the registrant’s goods include
computer components. Applicant argues that its mark is
used on a variety of computer and computer peripheral
devices, and is not utilized on individual electronic
components, which it asserts are the goods identified in
the cited registration. Applicant has asked the Board to
take judicial notice “of the realities of the electronic
industry in which it is extremely rare for a single source
to manufacture and market both computer and peripheral
hardware, and individual electronic components.” Brief,
p. 4. We decline to take such notice. We cannot say that
applicant’s characterization of the realities of the
Ser No. 76425400
6
electronic industry is generally known or cannot reasonably
be questioned.
Further, the third-party registrations made of record
by the Examining Attorney suggest otherwise. For example,
the mark RAPIER is registered for, inter alia, computer
hardware, routers, hubs, media converters, and integrated
circuits (Reg. No. 2735173), and PLEXMASTER is registered
for, inter alia, computer peripherals, integrated circuits,
compact disc players, and CD-ROM, CD-R and CD-RW drives.
Although applicant’s goods are not the same as the
goods identified in the cited registration, it is not
necessary that the goods be identical in order to support a
finding of likelihood of confusion. In re International
Telephone & Telegraph Corp., 197 USPQ 910 (TTAB 1978). As
the Court said in Recot Inc. v. M.C. Becton, 214 F.3d 1322,
54 USPQ2d 1894, 1898 (Fed. Cir. 2000), “even if the goods
in question are different from, and thus not related to,
one another in kind, the same goods can be related in the
mind of the consuming public as to the origin of the goods.
It is this sense of relatedness that matters in the
likelihood of confusion analysis.”
Here, the goods are all computer hardware components
which can be and are used together. This, and the evidence
of the third-party registrations, which indicates that some
Ser No. 76425400
7
of the goods identified in both the application and the
cited registration are sold by the same entities, is
sufficient to demonstrate the requisite relatedness of the
goods, when viewed in the context of the other duPont
factors discussed herein. See Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002).
Further, the Examining Attorney has stated that there
are no third-party registrations for “VIPOWER” marks for
computer-related goods which would suggest that the term
“VIPOWER” has a meaning or significance for such goods.
Nor is there any evidence of third-party use of similar
marks. Thus, the registered mark VIPower must be regarded
as an arbitrary and strong mark, which is entitled to a
broad scope of protection. That protection extends to
prevent the registration of applicant’s virtually identical
mark for its identified computer hardware products.
We recognize that the registrant’s goods are for
internal computer parts, such that the common purchasers of
applicant’s and the registrant’s goods are sophisticated.
However, in prior cases we have stated that even
sophisticated purchasers are not immune from confusion.
See In re Pierce Foods Corporation, 230 USPQ 307 (TTAB
1986). That is particularly true in situations like the
Ser No. 76425400
8
present, where the marks are virtually identical. Even a
sophisticated purchaser is not likely to differentiate
between two trademarks which consist of the same arbitrary
term, and have only minor stylistic differences, but will
assume that the marks identify goods emanating from a
single source.
Finally, to the extent that there is any doubt on the
issue of likelihood of confusion, it is a well-established
principle that doubt must be resolved against the newcomer
and in favor of the prior user or registrant. See In re
Pneumatiques, Caoutchouc Manufacture et Plastiques Kleber-
Colombes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973). See also
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687 (Fed.
Cir. 1993).
Decision: The refusal of registration is affirmed.