Gigatech Products, Inc.

Trademark Trial and Appeal Board

Aug 27, 2020

88347166 (T.T.A.B. Aug. 27, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 27, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re GigaTech Products, Inc.
_____

Serial No. 88347166

_____

Mark B. Garred of Stetina Brunda Garred & Brucker,
for GigaTech Products, Inc.

William T. Verhosek, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
_____

Before Zervas, Bergsman and Kuczma,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
GigaTech Products, Inc. (“Applicant”) seeks registration on the Principal Register
of the combined mark

Serial No. 88347166
- 2 -
for “computer and technology communications instruments, namely, cables for
electrical and optical signal transmission systems; networking transceivers; and
memory modules” in International Class 9.1 The mark is described as consisting of
“the literal element ‘GT’ with two interlocking patterned circles in superscript
immediately following the literal element of the mark.”
The Examining Attorney refused registration pursuant to Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to
cause confusion with the registered standard character mark HUAWEI GT for goods
including “network communication equipment, namely, … Transceivers” in
International Class 9.2
After the refusal was made final, Applicant appealed. Applicant and the
Examining Attorney filed briefs. We affirm the refusal to register.
I. Preliminary Issues
Applicant set forth its Internet address for the first time in its brief,3 and the
Examining Attorney objected to its presentation. “To make Internet material
properly of record, the offering party must provide the full address (URL) for the web
page, and the date it was accessed or printed, either by the information displayed on

1 Application Serial No. 88347166, filed on March 19, 2019 pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming first use and first use in commerce on January
31, 2009.
2 Registration No. 5225573, owned by Huawei Technologies Co., Ltd.
3 Applicant states, “[a]s is apparent from even a cursory review of Appellant’s web site
(https://www.gigatechproducts.com/), these goods are not targeted to the average consumer,
but rather to the business sector for companywide networking.” Applicant’s brief at p. 8,
4 TTABVUE 9.
Serial No. 88347166
- 3 -
the web page itself, or by providing this information in an Office action or an
applicant’s response.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 1208.03 (June 2020). Additionally, the record in an application should be
complete prior to the filing of an appeal. Trademark Rule 2.142(d), 37 C.F.R.
§2.142(d). We therefore sustain the objection and do not consider the website.
II. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973) (“DuPont”); see also Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005);
In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we keep in mind that “[t]he
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.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
“Not all of the [DuPont] factors are relevant to every case, and only factors of
significance to the particular mark need be considered.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In
re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)).
The DuPont factors addressed by Applicant and the Examining Attorney are
discussed below.
Serial No. 88347166
- 4 -
a. Similarity of Goods, Trade Channels and Classes of Consumers
We evaluate the relatedness of the respective goods based on their identifications
in the subject application and cited registration.4 Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); see also
Octocom Sys. Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an
applicant's mark must be decided on the basis of the identification of goods set forth
in the application regardless of what the record may reveal as to the particular nature
of an applicant's goods, the particular channels of trade or the class of purchasers to
which the sales of goods are directed.”); Paula Payne Prods. v. Johnson Publ’g Co.,
473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue
of likelihood of confusion must be decided on the basis of the respective descriptions
of goods.”). Each identification of goods must be given its broadest possible
interpretation. In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB
2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015);
Venture Out Props. LLC v. Wynn Resorts Holdings, LLC, 81 USPQ2d 1887, 1893
(TTAB 2007).
Further, it is sufficient for a refusal based on likelihood of confusion that
relatedness is established for any item encompassed by the identification of goods in
a particular class. Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335,

4 Applicant’s arguments regarding how the goods are actually used, and Applicant’s and
Registrant’s different niche areas, are hence arguments we need not further consider.
Serial No. 88347166
- 5 -
209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409
(TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). We thus focus
on the “computer and technology communications instruments, namely …
networking transceivers” (for Applicant) and “network communication equipment,
namely … Transceivers” (for Registrant) as did the Examining Attorney and
Applicant in their briefs.
A “transceiver” in the context of “networking” is defined as a device that performs
both “transmitter” and “receiver” functions.5 “For example, on an Ethernet network,
a transceiver is the hardware that connects a host interface (e.g. an Ethernet
controller) to a local area network.”6 “Network” is defined as “a system of computers
and peripherals that are able to communicate with each other.”7 “Instrument” is
defined as “a means by whereby something is achieved, performed or furthered.”8
“Network communications equipment” in Registrant’s identification of goods is a
broad term which includes “computer and technology communications instruments.”
“Equipment” and “instruments” are essentially the same in purpose and function.
“Transceivers” in Registrant’s identification of goods includes any kind of network

5 From http://foldoc.org/transceiver; webpage submitted with the August 1, 2019 Office
Action, TSDR 2.
6 Id.
7 https://www.merriam-webster.com/dictionary/network (accessed August 14, 2020). We take
judicial notice of this definition. The Board may take judicial notice of dictionary definitions,
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), including online dictionaries that exist
in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006).
8 https://www.merriam-webster.com/dictionary/instrument (accessed August 21, 2020). We
also take judicial notice of this definition.
Serial No. 88347166
- 6 -
communication transceivers and includes networking transceivers, including those
for computer and technology communications. We therefore find that Applicant’s
goods are encompassed within Registrant’s goods and hence legally identical.
Because the goods are legally identical, we must presume that they are sold in all
normal trade channels and to all normal classes of purchasers for such goods. See
Stone Lion Capital, 110 USPQ2d at 1161. Thus, we consider Applicant’s and
Registrant’s trade channels and classes of purchasers for these goods to be the same.
In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same).
The DuPont factors regarding the similarity of the goods, trade channels and
purchasers favors a finding of likelihood of confusion.
b. Similarity of Marks
We now compare Applicant’s and the cited Registrant’s marks for similarities and
dissimilarities in appearance, sound, connotation and commercial impression. Palm
Bay Imps., 73 USPQ2d at 1692.
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
offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at
1721. Under actual marketing conditions, consumers do not necessarily have the
luxury of making side-by-side comparisons between marks, and must rely upon their
Serial No. 88347166
- 7 -
imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259
(TTAB 1980).
Although we must consider the mark as a whole, “in 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 … .” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
In addition, we keep in mind that because certain of the goods in Applicant's
application and in the cited registration are legally identical, the degree of similarity
between the marks necessary to find a likelihood of confusion in the opposition is
reduced. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed.
Cir. 2012); Mighty Leaf Tea, 94 USPQ2d at 1260; Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); In re J.M.
Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987).
The marks are similar in that the both include the letter combination “GT” and
they are dissimilar in light of Applicant’s addition of a design element and
Registrant’s inclusion of the term HUAWEI. The typeface of the lettering in
Applicant’s mark is not a point of distinction between the marks. It is well settled
that typed or standard character marks, such as Registrant’s mark, could be used in
any typeface, including that of Applicant’s mark. Citigroup Inc. v. Capital City Bank
Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (registrant is
“entitled to depictions of the standard character mark regardless of font style, size,
Serial No. 88347166
- 8 -
or color[.]”). The design is not particularly distinctive — it comprises two interlocking
patterned circles in superscript, and would not be articulated when pronouncing
Applicant’s mark. When evaluating a composite mark consisting of words and a
design, the word portion is normally accorded greater weight because it is likely to
make a greater impression upon purchasers, be remembered by them, and be used
by them to refer to or request the goods and/or services. In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing Viterra, 101 USPQ2d at 1908).
Applicant argues that the term HUAWEI is the dominant term in Registrant’s
mark and distinguishes the marks because “Hauwei [sic] is a Chinese multinational
telecom company that employs over 300,000 people worldwide and whose reported
sales for 2018 exceeded one $100 billion dollars. They are frequently mentioned in
the media. In this regard, HAUWEI [sic] is the portion of the mark which enjoys
source identifying significance, with the term GT clearly being merely ancillary
thereto.”9
We are not persuaded by Applicant’s argument. First, it has no evidentiary
support. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed.
Cir. 2018) (citing Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d
1616, 1622 (Fed. Cir. 2005) (“Attorney argument is no substitute for evidence.”)).
Second, as noted earlier in this opinion, the registration is owned by Huawei
Technologies Co., Ltd. The addition of trade names and house marks to otherwise
identical terms often does not avoid likelihood of confusion, and “such [an] addition

9 Applicant’s brief at p. 7, 4 TTABVUE 8.
Serial No. 88347166
- 9 -
may actually be an aggravation of the likelihood of confusion as opposed to an aid in
distinguishing the marks so as to avoid source confusion.” In re Christian Dior, S.A.,
225 USPQ 533, 534 (TTAB 1985) (citations omitted) (finding applicant’s LE CACHET
DE DIOR confusingly similar to CACHET); In re C.F. Hathaway Co., 190 USPQ 343
(TTAB 1976) (HATHAWAY GOLF CLASSIC is similar to GOLF CLASSIC); see also
In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558, 559 (CCPA 1972)
(stating that the addition of a trade name will make consumers think that the
products have a common origin or that the companies merged); Nike Inc. v. WNBA
Enters. LLC, 85 USPQ2d 1187, 1201-02 (TTAB 2007) (applying principle that “the
addition of a trade name or house mark or other such matter to one of two otherwise
similar marks will not serve to avoid a likelihood of confusion”). Here, consumers
would encounter the legally identical goods under the marks, and could easily assume
that they come from the same source, which sometimes adds the HUAWEI mark to
GT and sometimes does not. Thus, despite the addition of the term HUAWEI, the
commercial impression, sound and appearance of the marks remains similar.
Turning to the meaning of “GT,” Applicant argues that “GT is a somewhat common
ancillary term often encountered by consumers when it accompanies a more
dominant source indicating term, particularly in the field of automobiles (e.g.,
Mustang GT)”; and that “it is unlikely that consumers would confuse Appellant’s GT
composite mark, which itself is just an abbreviated form of the Owner’s name, i.e.,
GigaTech, with the globally recognizable brand Hauwei [sic].”10 We are not persuaded

10 Id.
Serial No. 88347166
- 10 -
by these arguments, which also are not supported by any evidence in the record.11
Even if true that the term GT has significance in the field of automobiles, we do not
see what relevance this term has in the context of transceivers or even that
consumers of transceivers would make a connection to GT in the field of automobiles.
As to consumer recognition of the term “GT” as an abbreviation for Applicant’s name,
Applicant’s name is not part of the applied-for mark and hence need not appear in
conjunction with Applicant’s mark.
In light of the foregoing, we find that the DuPont factor regarding the similarity
of the marks favors a finding of likelihood of confusion.
c. Sophistication/Purchaser Care
Applicant argues that “their goods are targeted to highly knowledgeable
discriminating purchasers as opposed to more ordinary consumers of mass market
consumer electronics.”12 Again, Applicant provides no evidence to support its
argument, and ignores the fact that the goods are legally identical based on the
identifications of goods. From the identifications of goods we can conclude that such
goods are not average consumer goods and that the average purchaser would use
some elevated care in his or her purchases due to the technical nature of the goods
and their interaction with other elements that are part of a network. However, as has
been frequently stated, even sophisticated purchasers are not immune from source
confusion, and we find this especially true in the present case where we have similar

11 Applicant did not submit any evidence at all into the record.
12 Applicant’s brief at p. 8, 4, TTABVUE 9.
Serial No. 88347166
- 11 -
marks and legally identical goods. See i.am.symbolic, llc, 116 USPQ2d at 1413 (citing
In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986));
see also Stone Lion Capital, 110 USPQ2d at 1163-64; In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
The DuPont factor regarding purchaser care and sophistication weighs slightly
against a finding of likelihood of confusion.
d. Conclusion
We have considered all of the evidence in the record and the arguments of
Applicant and the Examining Attorney. The marks are similar, certain goods are
legally identical, and the purchasers and trade channels for such goods are presumed
to be identical. There is no evidence of any third parties using or registering marks
with the term GT. Even though purchasers will likely exercise some care and have
some sophistication, we conclude that on balance, confusion between Applicant’s
mark for its goods would be likely with Registrant’s mark for its goods.
Decision: The refusal to register is affirmed for all the goods included in the
application.