Wide-Tech Electronic International Ltd

Trademark Trial and Appeal Board

Jun 19, 2013

No. 85473558 (T.T.A.B. Jun. 19, 2013)

Decision Mailed:
June 19, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Wide-Tech Electronic International Ltd.
________

Serial No. 85473558
_______

Catherine A. Shultz of Kinney & Lange PA for Wide-Tech Electronic
International Ltd.

James B. Lovelace, Trademark Examining Attorney,
Law Office 117 (Brett Golden, Managing Attorney).
_______

Before Bergsman, Wellington and Shaw,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Wide-Tech Electronic International Ltd. (applicant) has
filed an application to register the mark on the
Principal Register for goods identified as “DVD players, video
discs player, LCD/LED digital photo frame for displaying digital
pictures, video clips and music, television with LCD displays and
televisions with LED displays, televisions with incorporated DVD
players, Audio hi-fi system comprising stereo amplifier and audio
speakers sold as a unit; radios; remote control apparatus for
radios, televisions and stereos; audio speakers for other than
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 85473558

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car stereos; electronic docking stations” in International Class
9.1
Registration has been finally refused under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
applicant’s mark, when applied to its goods, so resembles the
registered marks ZENON (in standard character format) on the
Principal Register for “audio equipment for cars, namely,
stereos, speakers, amplifiers, equalizers, crossovers and speaker
housings” in International Class 9,2 and XENON EMERALD (in
standard character format) for, inter alia, “apparatus for
recording, transmission or reproduction of images” in
International Class 9,3 as to be likely to cause confusion, or to
cause mistake, or to deceive.
Applicant has appealed and briefs have been filed.
Examining Attorney’s Objection
With its appeal brief, applicant attached eight exhibits
containing printouts from various websites. The examining
attorney has objected to these materials because they were not
previously submitted and thus are untimely. We agree with the
examining attorney and, with the exception of one exhibit
comprising a dictionary definition,4 the materials attached to

1 Serial No. 85473558, filed on November 15, 2011, based on an
allegation of an intent to use the mark in commerce under Section
1(b).
2 Reg. No. 3526414 issued on November 4, 2008.
3 Reg. No. 4030573 issued on January 4, 2011.
4 Exhibit 1 is a printout of a dictionary definition for the term
“emerald,” sourced from the Merriam-Webster website. The Board takes
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applicant’s brief are given no further consideration. Rule
2.142(d); see also, TBMP Section 1203.02(e).
We turn now to the merits of the refusal to registration.
Likelihood of Confusion
Our determination 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 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). In view of the fact that two
registrations, owned by two separate parties, have been cited as
bars to registration of the application, we address them
individually vis-à-vis the application in discussing the relevant
factors.
The Goods
We turn first to the relatedness of the goods. It is well
settled that the question of likelihood of confusion must be

judicial notice this dictionary definition. Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). We note that Exhibit 2
contains printouts from a “what is the definition of” website;
however, we cannot attribute any authoritative value to this website
and thus do not take judicial notice of any information contained
therein.
Serial No. 85473558

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determined based on an analysis of the goods recited in
applicant’s application vis-à-vis the goods identified in the
cited registrations. In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1690 n.4 (Fed. Cir. 1993); and Canadian Imperial
Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir.
1992). Furthermore, likelihood of confusion may be found based
on any item that comes within the identification of goods in the
involved application or registration. Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981).
i. The Application and Registration No. 3526414

As recited above, the goods in the application include,
inter alia, “audio hi-fi system comprising stereo amplifier and
audio speakers sold as a unit; radios,” and the goods identified
in the registration are “audio equipment for cars, namely,
stereos, speakers, amplifiers, equalizers, crossovers and speaker
housings.” We agree with the examining attorney that these goods
are legally identical inasmuch as both identifications may be
construed as covering stereos (radios) for use in cars. The
record further establishes that applicant’s goods, even where not
identical to those of registrant, are closely related. The
examining attorney has submitted numerous, third-party, use-based
registrations showing that the same mark has been registered for
both auto and home stereo devices. Although these registrations
are not evidence that the marks are in use or that consumers are
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familiar with them, they do suggest that applicant’s and
registrant’s goods are of a type that may emanate from a single
source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988). In addition, the examining attorney submitted
printouts from several online retail websites featuring
automobile audio equipment as well as home stereo devices; this
evidence also reflects that the same manufacturer may produce
both goods.
ii. The Application and Registration No. 4030573
Here again, certain goods identified in the application are
legally identical to goods listed in this cited registration.
Specifically, the registered goods listed as “apparatus for
recording, transmission, or reproduction of images” are broad
enough to encompass “DVD players, video discs player, LCD/LED
digital photo frame for displaying digital pictures, video clips
and music, television with LCD displays and televisions with LED
displays, televisions with incorporated DVD players.” The
registered goods must be presumed to encompass all goods of the
type described. See In re Jump Designs, 80 USPQ2d 1370, 1374
(TTAB 2006); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992). In addition, the examining attorney also submitted
several third-party, use-based registrations showing that the
same mark has been registered for registrant’s and applicant’s
goods; again, this indicates that it would not be uncommon for
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one entity to produce these goods under the same mark. In re
Albert Trostel, 29 USPQ2d at 1783.
In arguing against the refusal, applicant asserts that
“apparatus for recording, transmission or reproduction of images”
is “overly broad on its face and needs to be interpreted in light
of the evidence included in the registration.” Brief, p. 7
Applicant contends that, when read in conjunction with the other
goods in the registration’s identification, it is evident that
the aforementioned item “refers to photographic cameras and
similar devices.” Id. This argument, however, is unavailing
because the Board must read the identification of goods as it is
written, without any limitation as to the nature of the goods
based on other separately-listed items in the same
identification. Cf. In re Thor Tech Inc., 90 USPQ2d 1634 (TTAB
2009)(Board will not read a limitation as to a specific item in
the identification of goods in pari materia with the other goods
listed in the identification of goods). In this case, the
“apparatus for recording...” is, as the examining attorney
pointed out, accepted as a sufficiently definite good in the
Office’s U.S. Acceptable Identification of Goods and Services
Manual. Moreover, “apparatus for recording...” is separated from
other goods in the registration by a semicolon which, under
standard examination practice, represents a separate distinct
category of goods or services. See TMEP Section 1402.01(a)
(“Semicolons should generally be used to separate distinct
Serial No. 85473558

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categories of goods or services within a single class.”).
Finally, we would be remiss if we did not point out that even if
we were, as applicant would have us, to construe the registered
goods as being used solely in the field of photography, we note
that applicant’s goods include a still-related item, namely, the
“LCD/LED digital photo frame for displaying digital pictures.”
In sum, we conclude that applicant’s goods are, in part,
legally identical to certain goods in each of the cited
registrations. Even where not legally identical, the record
establishes that applicant’s goods are closely related to goods
in both cited registrations.
Accordingly, this du Pont factor also weighs in favor of
finding a likelihood of confusion.
Trade Channels/ Consumers
Because the goods identified in the application vis-à-vis
those listed in each of the cited registrations are in-part
identical, we must presume that the channels of trade and classes
of purchasers are the same. See Genesco Inc. v. Martz, 66 USPQ2d
1260, 1268 (TTAB 2003) (“Given the in-part identical and in-part
related nature of the parties' goods, and the lack of any
restrictions in the identifications thereof as to trade channels
and purchasers, these clothing items could be offered and sold to
the same classes of purchasers through the same channels of
trade.”); and In re Smith and Mehaffey, 31 USPQ2d 1531, 1532
(TTAB 1994) (“Because the goods are legally identical, they must
Serial No. 85473558

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be presumed to travel in the same channels of trade, and be sold
to the same class of purchasers.”). Moreover, there are no
restrictions or limitations in the respective identifications of
goods so we must presume the identified goods in the
registrations and the application are offered in all channels of
trade which would be normal therefor, and that they would be
purchased by all potential buyers thereof. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).
Finally, there is insufficient evidence to support
applicant’s argument that the relevant consumers are
sophisticated or that the respective products are so expensive to
presume a higher degree of care in their purchasing decisions.
Accordingly, the du Pont factors involving trade channels
and classes of purchasers weigh in favor of finding a likelihood
of confusion.
The Marks
Turning to our comparison of the marks, we now examine the
similarities and dissimilarities of the marks in their
appearance, sound, meaning, and commercial impression. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In
situations such as the present case, where the marks would appear
at least in part on identical goods, the degree of similarity
between the marks that is necessary to support a finding of
likely confusion declines. Century 21 Real Estate Corp. v.
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Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992).
i. XENON and ZENON (Reg. No. 3526414)
These two marks are visually distinguished solely by their
first letter. The stylization in the applied-for mark is hardly
unique or very distinctive; in any event, we must assume the
registered standard character mark may appear in the same font.
Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1258-59 (Fed. Cir. 2011). In terms of how each mark
may be spoken, it has often been stated that there is no
“correct” pronunciation of trademarks and that consumers may even
pronounce a mark differently from that intended by the owner of
the mark. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1912 (Fed. Cir. 2012) and Centraz Indus. Inc. v.
Spartan Chem. Co., 77 USPQ2d 1698, 1701 (TTAB 2006). Here, it is
clearly reasonable to say that both marks may be pronounced in
the same manner. That is, consumers who pronounce applicant’s
mark, XENON, as this term is defined, will pronounce the initial
letter “X” like the letter “Z.”5
As to connotation and commercial impression, applicant is
correct that its XENON possesses a defined meaning (see fn 5),
whereas the registered mark, ZENON, is apparently a coined term

5 The Board notes that the dictionary provides the pronunciation “zē’
nŏn” and the term is defined as “a colorless, odorless, highly
unreactive gaseous element found in minute quantities in the
atmosphere...” The American Heritage Dictionary of English Language
(4th Ed. 2009).
Serial No. 85473558

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without any defined meaning.6 However, to the extent that
consumers associate applicant’s mark with the gaseous element, we
find it reasonable that consumers will also believe that the
registered mark is merely a misspelling of the term “xenon.” In
which case, any connotation or commercial impression resulting
from the gaseous element meaning would be applicable to both
marks. Ultimately, given the near identity of the marks and that
one may be perceived as merely a misspelling of the other, any
possible distinction based on the aforementioned defined meaning
is minimal. In this vein, we keep in mind the reality that
consumers are seldom afforded the opportunity to compare the
marks alongside each other.
The test 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 that confusion as
to the source of the goods or services 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.

Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844,
1848 (TTAB 2004). See also Grandpa Pidgeon's of Missouri, Inc.
v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973).
ii. XENON and XENON EMERALD (Reg. No. 4030573)

6 The Board verified the absence of a dictionary definition entry for
“zenon” in Merriam-Webster’s The Third International Dictionary of the
English Language (Unabridged version, 1993). Applicant’s argument
that this term “has historically been used as a surname” is not
supported by the record. Brief, p. 5.
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With respect to these two marks, the obvious point of
similarity stems from applicant’s attempt to adopt for its own
mark the first element of the registered mark XENON EMERALD. The
question thus is whether the addition of the latter term EMERALD
in the registered mark suffices for purposes of distinguishing
the two marks.
Applicant asserts that “EMERALD cannot be seen as a
descriptive or generic term for apparatuses that record,
transmit, or reproduce images” and “the addition of the word
EMERALD to Registrant’s mark creates a distinct commercial
impression from Applicant’s mark, as the word EMERALD is an
arbitrary mark that will catch the attention of consumers.”
Brief, p. 4.
The examining attorney, on the other hand, notes that it is
the primary element of the registered mark that applicant seeks
to adopt as its own and that XENON is an arbitrary term in
connection with the respective goods. He also argues that XENON
“must be considered strong in the context of [both marks] because
it is arbitrary and not diluted with respect to the relevant
goods.” Brief, (unnumbered) p. 5-6. Lastly, he asserts that to
the extent consumers “realize the apparent differences between
the marks, they could still reasonably assume...that applicant’s
goods sold under the ‘XENON’ mark constitute a new or additional
line from the same source as the goods sold under the ‘XENON
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EMERALD’ mark with which they are acquainted or familiar.” Id.
at 6.
For the reasons set forth by the examining attorney, we
agree that the respective marks are extremely similar. Indeed,
the Board has often found a likelihood of confusion where the
entirety of one mark is incorporated within another. See, In re
Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir.
2010) (applicant's mark ML is similar to registrant's mark ML
MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d
324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for
women's dresses is likely to be confused with LILLI ANN for
women's apparel including dresses); In re United States Shoe
Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE for women's
clothing stores and women's clothing likely to cause confusion
with CREST CAREER IMAGES for uniforms including items of women's
clothing). The chances for confusion are clearly increased when
the incorporated mark is arbitrary and would not otherwise be
perceived as weak or diluted by consumers in connection with the
goods.
This is not to say we can ignore the latter term EMERALD in
the registered mark. We agree with applicant that the record
does not reveal this term to be descriptive or otherwise lacking
in strength. However, as already noted, XENON too is an
arbitrary term in connection with identified goods. Furthermore,
it has not been shown that registrant’s mark, XENON EMERALD,
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possesses any special meaning other than merely being the
combination of the two terms. We agree too with the examining
attorney that the presence or absence of the term EMERALD after
the common term XENON, may be mistakenly understood by consumers
as merely signifying a variant line of goods from the same
source. Ultimately, the absence of EMERALD in applicant’s mark
does not outweigh the overall similarity of the marks.
In sum, because of the strong similarity of two registered
marks with applicant’s mark, this du Pont factor weighs in favor
of finding a likelihood of confusion with respect to both of the
cited registrations.
Balancing of Factors
We have considered all evidence of record as well as the
arguments put forth by applicant and the examining attorney.
Upon our review and balancing the relevant likelihood of
confusion factors, we find there would be a likelihood of
confusion with respect to each of the two cited registrations.
That is, we conclude that applicant’s mark XENON (stylized) on
“audio hi-fi system comprising stereo amplifier and audio
speakers sold as a unit; radios” is likely to cause confusion
with the registered mark ZENON on “audio equipment for cars,
namely, stereos, speakers, amplifiers, equalizers, crossovers and
speaker housings.” We make the same conclusion with respect to
applicant’s mark being used on “DVD players, video discs player,
LCD/LED digital photo frame for displaying digital pictures,
Serial No. 85473558

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video clips and music, television with LCD displays and
televisions with LED displays, televisions with incorporated DVD
players” and the registered mark XENON EMERALD on “apparatus for
recording, transmission, or reproduction of images.”
Decision: The refusal under Section 2(d), based on both
cited registrations, is affirmed.