THIS OPINION IS NOT APRECEDENT OF THE TTABMailed:September 18, 2012UNITED STATES PATENT AND TRADEMARK OFFICE_____Trademark Trial and Appeal Board_____
In re
Apple
Inc.
_____Serial No. 85019762
_____
Lisa G. Widup, Senior Intellectual Property Counsel for Apple Inc.Andrew Rhim, Trademark Examining Attorney, Law Office 101 (Ronald R. Sussman, ManagingAttorney)._____Before Taylor, Bergsman and Lykos, Administrative Trademark Judges.Opinion by Bergsman, Administrative Trademark Judge:Applicant seeks registration on the Principal Register for the mark shown below:for the following goods identified in the application, as amended:Computer software for use in reviewing, storing, organizing, andplaying pre-recorded audio content, sold as a feature of handheldmobile digital electronic devices comprised of digital audio and
Serial No. 850197622video players, handheld computers, personal digital assistants, andelectronic personal organizers, in International Class 9.
1
The Trademark Examining Attorney refused registration under Section 2(d) of theTrademark Act of 1946, 15 U.S.C. § 1052(d), on the ground that applicant’s mark is likely tocause confusion with the registered mark shown below for,
inter alia,
“providing temporary useof nondownloadable software for adding music and video profiles on the internet, for listening toMP3’s and for sharing MP3’s and music playlists with others,” in Class 42.
2
Preliminary IssueApplicant attached copies of third-party registrations to its appeal brief. Trademark Rule2.142(d), 37 CFR § 2.142(d), provides that the record in the application should be complete priorto the filing of an appeal. To the extent that the evidence attached to applicant’s brief has nototherwise been made of record, it has been given no consideration.
See
the discussion regardingthe strength of the mark in the cited registration below.Likelihood of ConfusionOur determination under Section 2(d) is based on an analysis of all of the probative factsin 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
1
Application Serial No. 85019762 was filed on April 21, 2010, based upon use in commerce.
2
Registration No. 3484512, issued August 12, 2008.
Serial No. 850197623
re Majestic Distilling Company, Inc.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).In any likelihood of confusion analysis, two key considerations are the similarities between themarks and the similarities between the services.
See Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandatedby §2(d) goes to the cumulative effect of differences in the essential characteristics of the goodsand differences in the marks”). These factors, and any other relevant
du Pont
factors in theproceeding now before us, will be considered in this decision.A. The similarity or dissimilarity of the marks in their entireties as to appearance, sound,connotation and commercial impression and the strength of the registered mark.We turn first to the
du Pont
likelihood of confusion factor focusing on the similarity ordissimilarity of the marks in their entireties as to appearance, sound, connotation and commercialimpression.
In re E. I. du Pont De Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA1973). In a particular case, any one of these means of comparison may be critical in finding themarks to be similar.
In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988);
In re LamsonOil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). As in this case, where both marks are designmarks, the similarity of the marks must be analyzed on the basis of their visual similarity.
In reVienna Sausage Manufacturing Company,
16 USPQ2d 2044, 2047 (TTAB 1990).In comparing the marks, we are mindful that the test is not whether the marks can bedistinguished when subjected to a side-by-side comparison, but rather whether the marks aresufficiently similar in terms of their overall commercial impression so that confusion as to thesource of the goods and services offered under the respective marks is likely to result.
SanFernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1,3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc.,
23 USPQ 1735, 1741 (TTAB 1991),
aff’d unpublished,
No. 92-1086 (Fed. Cir. June 5, 1992). When the marks are placed side-by-
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