Force Technology

Trademark Trial and Appeal Board

Jun 19, 2009

No. 79040079 (T.T.A.B. Jun. 19, 2009)

Mailed: 6/19/09

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Force Technology
________

Serial No. 79040079
_______

Marsha G. Gentner and Robert S. Pierce of Jacobson Holman
for Force Technology.

Charisma Hampton, Trademark Examining Attorney, Law Office
112 (Angela Wilson, Managing Attorney).
_______

Before Quinn, Hairston and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Force Technology filed an application to register the
mark SEASENSE (standard character form) for
nautical and optical apparatus and
instruments, namely, accelerometers,
wave gauges, bending moment sensors,
sensors for measuring green water on
ship deck, gyrocompasses, gyroscopes,
motion reference units, wind and
draught sensors, optical frequency
metrology devices; apparatus and
instruments for weighing, measuring,
signaling, checking, life saving and
teaching, namely, meteorological
instruments, sensing and signaling
devices for dynamic positioning of
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 79040079
2
ships, and for measurement of ship hull
motion and acceleration, current sea
state and wave motion, green water on
ship deck, parametric roll, and ship
hull load; blank magnetic data carriers
and blank optical discs; computers;
computer programs for use in dynamic
positioning of ships and for real-time
onboard ship heavy weather decision
support, monitoring of ship behavior
and heavy sea navigation; downloadable
software for use in dynamic positioning
of ships and for real time onboard ship
heavy weather decision support,
monitoring of ship behavior and heavy
sea navigation; data processing
apparatus, namely data processors;
navigation apparatus and instruments,
namely, global positioning system
(GPS), programmable logic controller
(PLC), computer, computer software,
transponder, transducer, transmitters,
receivers, interfaces for computers,
and interfaces for detectors (in
International Class 9);

printed matter, namely, manuals,
handbooks and instructional and
teaching material in the field of
metrology, dynamic position systems,
and maritime navigation, sensing and
measuring systems; computer program
manuals for dynamic positioning of
ships and for real time onboard ship
heavy weather decision support,
monitoring of ship behavior and heavy
sea navigation (in International Class
16); and

scientific services, namely, scientific
research and development, creation of
control programs for automated
measurement, assembly, adjustment, and
related visualization; data acquisition
and collection for calibration and
coordinate-measurement purposes,
measurement evaluations in the field of
Ser. No. 79040079
3
maritime navigation, ship performance
and monitoring, and meteorology;
technological services, namely,
technological consultation in the field
of maritime technology, dynamic
positioning, meteorology, metrology,
sensor based process control, computer
hardware systems, and sensor and
measurement technologies; design and
testing of ships, offshore structures
and maritime facilities, navigation and
meteorological computerized systems,
and dynamic positioning computer
controlled systems; installation,
design and development of computer
software (in International Class 42).1

The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s mark, when used in
connection with applicant’s goods, so resembles the
previously registered mark SEA SENSE (“SEA” disclaimed) for
metal fasteners for marine use, namely,
shackles, snap hooks, swivel hasps,
clamps, clips, screws, bolts, and
washers; marine boat anchors; metal
chains for anchors; metal hooks for
boats; metal ladders for boats; metal
locks for oars; metal cleats for
attachments to boats; metal drain plugs
for boats; metal safety chains, metal
locks, and metal plugs for boat
trailers, metal safety chains; non-
electric cables, namely winch cables;
metal u-bolts for boat trailers; metal
outboard motor locks; marine boat
engine parts, namely metal non-
prefabricated fuel lines and fuel line

1 Application Serial No. 79040079, filed April 18, 2007, based on
International Registration No. 0928366, issued April 18, 2007.
Ser. No. 79040079
4
fittings; metal drain plugs fitted for
boats (in International Class 6);

fuel filters, fuel primer bulbs, and
engine flushers in the nature of a
mechanical valve to flush salt and
ocean residue from marine engines; boat
trailer parts, namely winchers;
hydraulic jacks for boat trailers (in
International Class 7);

hand operated jacks for boat trailers
(in International Class 8);

electric switches, fuses, plugs and
sockets for marine use; unfitted
antenna mounts for boats; electrical
wiring harnesses and electric light
connection plugs for boat trailers;
navigation lights for boats (in
International Class 9);

spotlights and solar-heated showers for
boats (in International Class 11);

boat paddles and oars; cleats for
attachment to boats; beverage holders
fitted for attachment to boats; air
horns for boats and component part
therefor, namely, compressed air
canisters for air horns for boats;
trailer stands; boat trailer hitch
component parts, namely, trailer balls
and fitted trailer ball covers, tail
lights for boat trailers; trailer parts
for boats, namely, metal bow stops and
metal bow rollers, metal trailer
rollers, and roller shafts; fitted
antenna mounts for boats; marine boat
engine parts, namely prefabricated fuel
lines and fuel line fittings;
structural parts for trolling motors,
namely trolling motor electrical
connectors for boats; ball bearings for
boat trailer wheels (in International
Class 12); and

Ser. No. 79040079
5
cord, rope, all-purpose straps for
marine use, and tie down straps and
winch straps for boat trailers; padding
materials not of rubber or plastic for
boat trailer bunks (in International
Class 22).2

When the refusal was made final, applicant appealed.3
Applicant and the examining attorney filed briefs.
Applicant argues that the goods are not related, and
that the examining attorney’s evidence does not establish
to the contrary. According to applicant, its goods are
sophisticated, scientifically advanced instruments that are
not sold through retail channels. Applicant claims that
the examining attorney’s characterization that the goods
fall within the “marine and nautical industry” is
“nonsensical and broad” because “it does not distinguish
between the obvious difference of freshwater versus
saltwater navigation or between pleasure craft or large
ships used for commercial navigation.” Further, applicant
contends that restrictions to these trade channels can be

2 Registration No. 2569168, issued May 14, 2002; Section 8
affidavit accepted, Section 15 affidavit acknowledged.
3 The examining attorney, in the final refusal, also indicated
that the identification of goods remained indefinite in certain
respects. Subsequently in the appeal brief, the examining
attorney stated that the requirement relating to the
identification was withdrawn and that the only issue on appeal is
the Section 2(d) refusal. In view thereof, the examining
attorney’s objection to the attachment of applicant’s
Registration No. 3547046 to the appeal brief, submitted in
connection with the identification issue, is considered moot.
Ser. No. 79040079
6
inferred in the respective identifications of
goods/services.
The examining attorney maintains that the marks are
similar and that the goods and/or services are closely
related. The examining attorney argues that both applicant
and registrant are providing goods in the nautical
navigation industry. In support of the refusal the
examining attorney introduced third-party registrations
that purportedly show that goods and/or services of the
type listed in the involved application and cited
registration are related. Also made of record are excerpts
from third-party websites purportedly showing that the same
on-line retailers sell the types of goods of both applicant
and registrant. As to trade channels and sophistication of
purchasers, the examining attorney points out that
applicant’s contentions relating thereto are not supported
by evidence.
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 Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
Ser. No. 79040079
7
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).
With respect to the involved marks, we 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). Applicant’s mark SEASENSE and registrant’s
mark SEA SENSE are identical in sound and, in terms of
appearance, the marks differ by only a space between the
words “SEA” and “SENSE” in registrant’s mark. This space
likely would not even be noted by consumers and, in any
event, the space is hardly a basis upon which to find that
the marks are dissimilar in appearance.
As to meaning, we find that the marks are both
suggestive, but that they convey different connotations
when used in connection with the specifically different
goods and/or services involved herein (see discussion,
infra). The word “sense” has various meanings, including
“[the ability] of certain mechanical devices to detect
physical phenomena, as light, temperature, radioactivity,
Ser. No. 79040079
8
etc.” Random House Dictionary (2009).4 Applicant’s mark
SEASENSE, when used in connection with applicant’s
scientific and navigational instruments, suggests that the
goods “sense” marine conditions (e.g., heavy seas or
meteorological events). The word “sense” also means “the
recognition of something as fitting; something that is
sensible or reasonable; the value or worth of something;
merit.” Random House Dictionary (2009) Registrant’s mark
SEA SENSE, for marine hardware and parts, conveys the idea
of “good sense” or “common sense”; that is to say, the use
of registrant’s goods makes “good sea sense.”
As a result of their different meanings when applied
to the goods and services of applicant, and the goods of
registrant, the marks create different commercial
impressions, notwithstanding the fact that they are
identical in sound and virtually identical in appearance.
See, e.g., In re Sears, Roebuck and Co., 2 USPQ2d 1312
(TTAB 1987)(CROSS-OVER for bras held not likely to be
confused with CROSSOVER for ladies’ sportswear, the Board
finding that the term was suggestive of the construction of
applicant’s bras, but was likely to be perceived by

4 Dictionary definitions are proper subject matter of judicial
notice. See. e.g., In re Styleclick.com, 58 USPQ2d 1523, 1525
(TTAB 2001).
Ser. No. 79040079
9
purchasers either as an entirely arbitrary designation or
as being suggestive of sportswear that “crosses over” the
line between informal and more formal wear when applied to
ladies’ sportswear); In re British Bulldog, Ltd., 224 USPQ
854 (TTAB 1984)(PLAYERS for men’s underwear held not likely
to be confused with PLAYERS for shoes, the Board finding
that the term PLAYERS implies a fit, style, color and
durability adapted to outdoor activities when applied to
shoes, but “implies something else, primarily indoors in
nature” when applied to men’s underwear); and In re Sydel
Lingerie Co., Inc., 197 USPQ 629 (TTAB 1977)(BOTTOMS UP for
ladies’ and children’s underwear held not likely to be
confused with BOTTOMS UP for men’s clothing, the Board
finding that the term connotes the drinking phrase “Drink
Up” when applied to men’s suits, coats and trousers, but
does not have this connotation when applied to ladies’ and
children’s underwear).
With respect to the second du Pont factor, it is well
established that the goods and/or services of the parties
need not be similar or competitive, or even offered through
the same channels of trade, to support a holding of
likelihood of confusion. It is sufficient that the
respective goods and/or services of the parties are related
in some manner, and/or that the conditions and activities
Ser. No. 79040079
10
surrounding the marketing of the goods and/or services are
such that they would or could be encountered by the same
persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief
that they originate from the same source. See Hilson
Research, Inc. v. Society for Human Resource Management, 27
USPQ2d 1423 (TTAB 1993); and In re International Telephone
& Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). With
respect to the goods and/or services, it is also well
settled that the question of likelihood of confusion in the
present case must be determined based on an analysis of the
goods and services recited in applicant’s application vis-
à-vis the goods identified in the cited registration. 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). The
issue, of course, is not whether purchasers would confuse
the goods and/or services, but rather whether there is a
likelihood of confusion as to the source of the goods
and/or services. In re Rexel Inc., 223 USPQ 830 (TTAB
1984).
After close consideration of the respective
identifications of goods and/or services, we find that the
examining attorney’s evidence falls short in establishing a
Ser. No. 79040079
11
sufficient relationship between registrant’s goods and
applicant’s goods and services upon which to base a finding
of likelihood of confusion.
We agree with applicant’s assessment that its goods
and services involve “sophisticated, scientifically
advanced instruments” whereas registrant’s goods are more
in the nature of marine hardware and parts. Terminology in
applicant’s identifications of goods and services such as
“heavy weather,” “heavy sea” and “maritime navigation” add
support to applicant’s arguments in distinguishing its
goods and services from registrant’s goods. The involved
goods and/or services are distinctly different and
noncompetitive.
The mere fact that applicant’s goods and services and
registrant’s goods all fall under the broad category of
“nautical” or “marine” goods and services is too tenuous a
connection upon which to base a finding that they are
sufficiently related for purposes of likelihood of
confusion. To demonstrate that goods are related, it is
not sufficient that a particular term may be found which
may broadly describe the goods. See In re W.W. Henry Co.,
82 USPQ2d 1213, 1215 (TTAB 2007). When we examine the
specific items in the identifications, they do not appear
Ser. No. 79040079
12
to be related in a manner that would be likely to cause
confusion.
In saying the above, we recognize that the examining
attorney has provided excerpts from the websites of three
online retailers of nautical goods (Bass Pro Shops, Boaters
World and Jamestown Distributors). These retailers sell a
wide variety of nautical products, ranging from hardware
for boat trailers (i.e., one of the type of goods listed in
the cited registration) to handheld GPS receivers (i.e,
applicant’s identification includes a global positioning
system) intended for use with smaller recreational crafts.
This is consistent with the excerpt of registrant’s website
showing that registrant’s goods are available for sale at
other retailers such as K Mart, Sports Authority and Wal-
Mart. Further, on the websites of the online retailers,
the products are sold under different “categories,” such as
“trailer parts” and “receivers.” Moreover, the different
types of goods are not sold under the same mark. Simply
put, the examining attorney’s evidence does not establish
that the very different goods and/or services involved in
this appeal would be sold in the same trade channels and be
bought by the same purchasers. To the extent that both
applicant’s sophisticated scientific instruments and
registrant’s marine parts and hardware conceivably could be
Ser. No. 79040079
13
purchased by the same company (e.g., a cruise ship line or
a marine freighter line), it is likely that the disparate
goods would be bought by different purchasing departments.
See Electronic Design & Sales Inc. v. Electronic Data
Systems Corp., 954 F.2d 713, 21 USPQ2d 1388, 1390-91 (Fed.
Cir. 1992) (“[T]he mere purchase of the goods and services
of both parties by the same institution does not, by
itself, establish similarity of trade channels or overlap
of customers.” Likelihood of confusion “must be shown to
exist not in a purchasing institution, but in a customer or
purchaser.”). In any event, the fact that disparate goods
in the same general field may be sold by a retailer will
not necessarily support a finding that confusion is likely.
See, e.g., Federated Foods, Inc. v. Ft. Howard Paper Co.,
192 USPQ at 26.
The examining attorney also introduced ten third-party
registrations of marks that, according to the examining
attorney, are used by a single entity for both types of
goods and services as those involved herein. Third-party
registrations that individually cover different items and
that are based on use in commerce serve to suggest that the
listed goods and/or services are of a type that may emanate
from a single source. See In re Albert Trostel & Sons Co.,
Ser. No. 79040079
14
29 USPQ2d 1783 (TTAB 1993); and In re Mucky Duck Mustard
Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
The examining attorney’s argument, as set forth in the
brief, is as follows:
Both the applicant and the registrant
are providing goods for use in the
marine and nautical industry.
Moreover, in the first out-going Office
Action, the examining attorney attached
third-party registrations to show other
entities using applicant’s overly broad
terminology of “nautical apparatus and
instruments,” “apparatus and
instruments for weighing, measuring,
signaling, checking,” “navigation
apparatus and instruments,” etc. to
identify goods found in the cited
registration. For example, U.S.
Registration No. 3025644 identifies
“nautical apparatus, namely power
operated boat lifts;” U.S. Registration
No. 2717797 identifies “marine
navigation instruments, namely course
protractors, parallel rulers, dividers
and measured lead line for determining
depth of water,” and “gasoline and
diesel fuel filters and separators, and
intake water filters for marine
engines,” “floodlights, and
searchlights,” and “metal marine
hardware and fittings;” and U.S.
Registration No. 1422567 identifies
both “navigation signal lights” and
“electric lighting fixtures and parts
therefore for marine use.” Moreover,
the attached third-party registrations
demonstrated entities that provide the
goods identified in the cited
registration also provide the services
identified in the application.
Specifically, U.S. Registration No.
2935265 identifies both “antennas” and
“computer consultancy services,
Ser. No. 79040079
15
software development services,
providing online tracking, locating and
monitoring of maritime vessels via a
global computer network; providing
information on weather, water depths,
cartography, satellite images of shore
line, water temperatures and
identification of ocean live via a
global computer network.”

As argued by applicant, however, these eleven
registrations are not probative of the examining attorney’s
position on the relatedness of the goods and/or services.
One of the registrations is the cited registration. Three
of the registrations, Nos. 1421027, 2482475 and 2544454,
cover only manuals for use in connection with marine
topics, such as vessel repair and navigation. Reg. No.
2890869 covers only printed matter that, in any event,
specifically excludes nautical material. Reg. No. 3025644
covers only boat lifts, and Reg. No. 1422567 covers only
lighting products for marine use. Reg. No. 2237952 covers
only computer software and instructional manuals sold as a
unit for marine navigation. The remaining three
registrations do not cover the specific types of goods
and/or services at issue in this appeal. Finally, insofar
as applicant’s identification includes the terminology
“nautical and optical apparatus and instruments,”
“apparatus and instruments for weighing, measuring,
signaling, checking,” and “navigation apparatus and
Ser. No. 79040079
16
instruments,” in each instance this prefatory language is
immediately followed by “namely” and a listing of specific
goods of that type, all specifically different from
registrant’s goods. Thus, we do not see the relevance of
the examining attorney’s argument relating thereto.
Based on the record before us, we see the likelihood
of confusion refusal as amounting to only a speculative,
theoretical possibility, notwithstanding the use of similar
marks in the broad field of nautical goods and services.
Language by our primary reviewing court is helpful in
resolving the likelihood of confusion issue in this case:
We are not concerned with mere
theoretical possibilities of confusion,
deception, or mistake or with de
minimis situations but with the
practicalities of the commercial world,
with which the trademark laws deal.

Electronic Design & Sales Inc. v. Electronic Data Systems
Corp., 21 USPQ2d at 1391 (Fed. Cir. 1992), citing Witco
Chemical Co. v. Whitfield Chemical Co., Inc., 418 F.2d
1403, 1405, 164 USPQ 43, 44-45 (CCPA 1969), aff'g 153 USPQ
412 (TTAB 1967).
Decision: The refusal to register is reversed.