WIKO

Trademark Trial and Appeal Board

Apr 8, 2019

EX (T.T.A.B. Apr. 8, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 8, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re WIKO
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Serial No. 79187934
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H. David Starr of Muncy, Geissler, Olds & Lowe, P.C.
for WIKO

Jonathan R. Falk, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
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Before Adlin, Heasley, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background and Evidentiary Matter
WIKO (“Applicant”) requested an extension of protection seeking registration on
the Principal Register of the mark WIKO GAME CHANGER in standard characters
for:
Telephones, mobile telephones, smartphones, component
parts of mobile telephones and smartphones; accessories
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for mobile phones and smartphones, namely, earpieces,
headsets, in-ear headphones, hands-free microphones,
hands-free kits, covers, cases and protective covers for
mobile telephones and smartphones, charging units for
mobile telephones and smartphones, batteries for mobile
telephones, stands and docking stations for connecting
mobile telephones and smartphones; stands specially
designed for holding mobile telephones and smartphones,
digital tablets and handheld computers; accessories for
digital tablets and hand-held computers, namely,
earpieces, headsets, in-ear headphones, hands-free kits,
kits being hands-free kits, covers, cases and protective
covers for digital tablets and hand-held computers,
chargers for digital tablets and hand-held computers,
batteries for digital tablets and hand-held computers;
stands and docking stations specially designed for holding
digital tablets and hand-held computers; recorded
computer operating programs for use with smartphones
and computer tablets, covers and bags adapted for laptops,
mobile telephones and digital tablets in International
Class 9.1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two
registered marks, owned by different entities:
WICO in standard characters for “Computer stylus;
Instrument to facilitate text-messaging in the nature of a
stylus-type device that is attached to the hand for use in
conjunction with personal digital assistants” in
International Class 9 (‘905 Registration).2

1 Application Serial No. 79187934 is based on Section 66(a) of the Trademark Act, 15 U.S.C.
§ 1141f(a), relying on International Registration Number 1271789, and has a filing date of
April 8, 2016.
2 Registration No. 4255905 issued December 11, 2012, and has been maintained.
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GAMECHANGER in standard characters for “Computer
application software for mobile phones” in International
Class 9 (‘759 Registration).3

After the Examining Attorney made the refusal final, Applicant requested
reconsideration and appealed. After the Examining Attorney denied reconsideration,
the appeal resumed, and the case has been briefed.
Before turning to the merits, we sustain the Examining Attorney’s objection to
Applicant’s reliance on links in its Appeal Brief to its website and Facebook page.
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), provides that the record should be
complete prior to the filing of an appeal. See also In re Procter & Gamble Co., 105
USPQ2d 1119, 1120 (TTAB 2012) (applicant’s discussion in its brief of third-party
registrations not considered because the registrations were not properly introduced
during the examination process); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 1203.02(e) (2018) (“Evidentiary references made in briefs but
not supported by timely submissions may not be considered.”). In addition, providing
links to content on the Internet does not by itself suffice to introduce the websites or
underlying material into evidence. See In re Olin, 124 USPQ2d 1327, 1331 n.15
(TTAB 2017) (citing In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013)).
II. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on the likelihood of confusion. In re E.I. Du Pont de

3 Registration No. 3800759 issued June 8, 2010, and has been maintained.
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Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors
to be considered, hereinafter referred to as “Du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). Two key
considerations are the similarities between the marks and the relatedness of the
goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir.
2004); 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.”).
A. Similarity of the Marks
We first turn to the Du Pont factor comparing WIKO GAME CHANGER to each
of the cited marks “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imps., 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). The test assesses not whether the marks can be
distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom
Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
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1. ‘905 Registration: WICO
In comparing WIKO GAME CHANGER to WICO, the Examining Attorney asserts
that because the first word of the applied-for mark is “virtually identical” to, and
phonetically equivalent to, the cited mark, they also create a similar impression and
are similar overall. He argues that the additional wording GAME CHANGER does
not distinguish Applicant’s mark from the cited mark. Applicant counters that the
GAME CHANGER element in its mark sufficiently distinguishes them, and that even
the arguably common element differs, because consumers would be more likely to
perceive the cited mark WICO as suggesting or evoking “wilco” than as similar to
WIKO. Elsewhere in its Brief, Applicant also argues that its mark conveys the
impression that “‘WIKO is changing the game’ or ‘Game Changer’ would be
understood as a particular product under the WIKO line of products.”4
We find the marks similar overall. WIKO in Applicant’s mark looks nearly
identical to WICO. Indeed, as the first word in Applicant’s mark, WIKO is “most likely
to be impressed upon the mind of a purchaser and remembered.” Presto Prods., Inc.
v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). WIKO and WICO are
spelled almost the same, and the Board has often found in analogous circumstances
that marks differing by only a single letter are confusingly similar. See Interlego AG
v. Abrams/Gentile Entm’t Inc., 63 USPQ2d 1862, 1863 (TTAB 2002) (“Obviously, the
marks LEGO and MEGO are extremely similar in that they differ simply by one
letter.”); In re Total Quality Grp. Inc., 51 USPQ2d 1474, 1476 (TTAB 1999)

4 11 TTABVUE 10 (Applicant’s Brief).
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(“Applicant’s mark STRATEGYN and registrant’s mark STRATEGEN are phonetic
equivalents and differ by only one letter.”). They also likely would have the same
pronunciation, as often the letter “C” followed by the letter “O” is pronounced as a
hard “C,” in which case the cited mark would sound the same as the WIKO element
of Applicant’s mark. See Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460
(CCPA 1962) (TINTZ merely a phonetic spelling of “tints”). We do not agree with
Applicant’s unsupported contention that consumers would view the cited mark as
more similar to “wilco” than to WIKO, given that WIKO and WICO look and sound
more alike. Here, WIKO and WICO, as apparently coined terms, have no particular
meaning, and thus also convey a similar commercial impression that comes from their
visual similarity and phonetic equivalence.
Also as to commercial impression, we agree with Applicant’s acknowledgment that
in the context of its WIKO GAME CHANGER mark, “‘Game Changer’ could be
understood as a particular product under the WIKO line of products.”5 But given the
strong similarity between WIKO and WICO, consumers could just as easily view
“GAME CHANGER” as a particular product under the WICO line. Given this, while
the GAMECHANGER wording in Applicant’s mark creates some difference, the
addition of this term to the nearly identical term WIKO does not obviate the
similarity in the marks. See Apple Comput. v. TVNET.net Inc., 90 USPQ2d 1393, 1396
(TTAB 2007) (VTUNES.NET vs. ITUNES); cf. Coca-Cola Bottling Co. v. Jos. E.
Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL

5 11 TTABVUE 10 (Applicant’s Brief).
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LANCER and design and BENGAL confusingly similar); In re Mr. Recipe, LLC, 118
USPQ2d 1084, 1090 (TTAB 2016) (JAWS DEVOUR YOUR HUNGER and JAWS
confusingly similar). Rather, consumers could easily be confused between WICO and
WIKO, and therefore be confused as to the marks in their entireties, to the extent
they view WIKO as a house mark naming the product line.
We therefore find the marks similar overall in appearance and sound, as well as
in commercial impression. See Nat’l Data Corp., 224 USPQ at 751 (“[I]n articulating
reasons for reaching a conclusion on the issue of confusion, 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 consideration of the
marks in their entireties”); see also Stone Lion Capital Partners v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). This factor supports a
likelihood of confusion.
2. ‘759 Registration: GAMECHANGER
Turning to the comparison of the cited GAMECHANGER mark to WIKO GAME
CHANGER, we start with the premise that consumers would view the GAME
CHANGER portion of Applicant’s mark as the product name, as Applicant has
alleged.6 This portion of Applicant’s mark is identical to the cited mark, except for the
space, which is inconsequential. See, e.g., Seaguard Cor. V. Seaward Int’l, Inc., 223
USPQ 48, 51 (TTAB 1984) (“‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation
of law, identical”); In re Best W. Family Steak House, Inc., 222 USPQ 827, 827 (TTAB

6 11 TTABVUE 10 (Applicant’s Brief).
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1984) (“There can be little doubt that BEEFMASTER and BEEF MASTER are
practically identical”). GAMECHANGER and WIKO GAME CHANGER therefore
look and sound similar because of the common wording.
Turning to the connotation, to the extent that Applicant contends, without
evidentiary support, that its mark would be understood as “WIKO is changing the
game,” while the cited GAMECHANGER mark would convey “something to do with
sports or games,”7 we disagree that the same term would have a different meaning
for Applicant’s mobile phone-related goods on the one hand and Registrant’s mobile
phone software on the other. As to commercial impression, consumers viewing the
GAME CHANGER component of WIKO GAME CHANGER as a product name in a
line of WIKO products illustrates how the marks would be perceived as alike in their
overall meaning and commercial impression, regardless of the additional matter in
Applicant’s mark. WIKO, perceived as the product line name, would do little to
alleviate confusion. Thus, while we consider Applicant’s WIKO GAME CHANGER in
its entirety, Applicant’s own characterization of its mark conveys how consumers
could likely find its mark confusingly similar to GAMECHANGER. See Nat’l Data
Corp., 224 USPQ at 751; see also Stone Lion Capital Partners, 110 USPQ2d at 1161.
This factor supports a likelihood of confusion.
B. The Goods, Trade Channels, and Classes of Consumers
[“[L]ikelihood of confusion can be found ‘if the respective products are related in
some manner and/or if the circumstances surrounding their marketing are such that

7 Id.
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they could give rise to the mistaken belief that they emanate from the same source.’”
Coach Servs., 101 USPQ2d at 1722 (internal citations omitted).] In analyzing the
second Du Pont factor, we look to the identifications in the application and cited
registrations. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052
(Fed. Cir. 2018); Stone Lion Capital Partners, 110 USPQ2d at 1162; Octocom Sys.,
Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). “[I]t is sufficient for finding a likelihood of confusion if relatedness is
established for any item encompassed by the identification of goods [or services]
within a particular class in the application.” In re Aquamar, Inc., 115 USPQ2d 1122,
1126, n.5 (TTAB 2015); see also Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
1. The Goods in the ‘905 Registration: WICO
The ‘905 Registration identifies computer styluses among its goods, and
Applicant’s goods include “component parts of mobile telephones and smartphones”
as well as a variety of accessories for mobile phones and smartphones, such as phone
and tablet cases and protective covers and earpieces. The Examining Attorney
submitted persuasive evidence that consumers are accustomed to encountering the
applied-for and cited goods under the same mark. For example:
The Best Buy website shows phone and tablet cases as well
as styluses under the same INSIGNIA mark.8

8 July 28, 2016 Office Action at 24-26 (bestbuy.com).
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The Best Buy website features APPLE styluses and
APPLE “Accessories” for smartphones and tablets.9
The Target website offers styluses and tablet cases under
the same TARGUS mark.10
The Target website promotes the GRIFFIN Zig Zag Stylus
as well as the GRIFFIN Technology Survivor tablet case.11
The Samsung website offers styluses and earpieces under
the SAMSUNG mark.12
The Samsung website offers styluses and tablet covers with
the GALAXY mark.13
Overall, this evidence demonstrates that Applicant’s goods are related to the goods
in the ‘905 Registration. We reject Applicant’s argument that the lack of “third-party
registrations containing the goods of both the Applicant and the cited registrant” is
fatal to the refusal.14 Applicant points to no case law for the proposition that any
specific type of evidence, much less third-party registration evidence in particular, is
essential. Where the record, such as in this case, includes substantial evidence of
consumer exposure to the relevant goods being offered under the same mark, this
suffices to establish relatedness regardless of whether the record also includes use-
based third-party registrations. See, e.g., Detroit Athletic Co., 128 USPQ2d at 1051-
52 (affirming relatedness of goods and services where the record included

9 Id. at 27-28.
10 September 18, 2017 Office Action at 15-16 (target.com).
11 Id. at 17-18.
12 Id. at 10-12 (Samsung.com).
13 Id.
14 11 TTABVUE 13 (Applicant’s Brief).
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marketplace evidence of a single mark for both, but no third-party registrations
listing the same goods and services under one mark). The second Du Pont factor
therefore weighs in favor of a finding of likely confusion as to the ‘905 Registration.
2. The Goods in the ‘759 Registration: GAMECHANGER
This cited registration includes “[c]omputer application software for mobile
phones” while Applicant identifies goods that include “recorded computer operating
programs for use with smartphones and computer tablets.” The Examining Attorney
has alleged that the cited registration’s broad identification of computer application
software for mobile phones encompasses Applicant’s operating programs for
smartphones. See, e.g., In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137
(TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). Based on the
language in the identifications, Applicant does not dispute the Examining Attorney’s
assertion. Applicant’s only argument against the relatedness of these goods
impermissibly attempts to collaterally attack and limit the identification in the cited
registration, which Applicant contends is “an obsolete and overruled identification in
contravention of the Office’s current policy.”15 According to Applicant, we should
consider extrinsic marketplace evidence of the alleged nature of the registrant’s
software to narrow the identification and distinguish it from Applicant’s goods.
However, we may not do so, as we find the plain language in the cited registration

15 11 TTABVUE 11 (Applicant’s Brief).
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clear and unambiguous, needing no interpretation. Cf. In re Trackmobile, Inc., 15
USPQ2d 1152 (TTAB 1990) (considering extrinsic evidence to interpret “vague”
terminology with special meaning in the industry). Therefore, we must rely on the
identifications of goods, not extrinsic evidence. Octocom Sys., 16 USPQ2d at 1787.
We rejected an argument very similar to Applicant’s in In re Solid State Design
Inc., 125 USPQ2d 1409 (TTAB 2018), wherein the applicant contended that the cited
registration’s unrestricted recitation of “software” violated USPTO rules for
specificity, and should be limited to software of a particular type. We held that
regardless of the failure of the cited registration to indicate the function of the
software, as required by current USPTO policy, the Board “lack[s] the authority to
read limitations into the identification.” Id. at 1413-14. We pointed to “the controlling
principle that where the goods in an application or registration are broadly described,
they are deemed to encompass ‘all the goods of the nature and type described ….’” Id.
at 1413 (citation omitted). Any issues an applicant has with the breadth of an
identification in a cited registration must be addressed by obtaining consent from the
owner of the cited registration or seeking a restriction of the registration under
Section 18 of the Trademark Act, 15 U.S.C. § 1068. Id. at 1409.
Considering the identifications in the cited registration and application, we find
that on their face, both include programs and software for mobile phones, such that
they at least are complementary and related. See Hewlett-Packard Dev. Co. v. Vudu,
Inc., 92 USPQ2d 1630, 1633 (TTAB 2009) (computer software and personal and
gaming computers could be used together and are complementary and related).
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Considering this and bearing in mind the Examining Attorney’s unrebutted
assertion, the second Du Pont factor therefore also weighs in favor of a finding of
likely confusion as to the ‘759 Registration.
3. Trade Channels and Classes of Consumers
Because Applicant’s goods and the goods in the ‘759 Registration are for use on
the same devices by the same users, we find at least some overlap in the trade
channels and consumers. As to the ‘905 Registration, the third-party Internet
evidence discussed above also shows that these goods are promoted and sold through
the same websites to the same consumers. Thus, at least some of the trade channels
and consumers are the same, and the third Du Pont factor also weighs in favor of a
finding of likely confusion as to both cited registrations.
III. Conclusion
The overall similarity of these marks for related goods that move in some of the
same channels of trade to the same classes of customers renders confusion likely as
to both cited registrations.
Decision: The refusal to register Applicant’s mark is affirmed.