Microchip Technology Incorporatedv.Mobility Corporation

Trademark Trial and Appeal Board

Aug 2, 2018

No. 91230315 (T.T.A.B. Aug. 2, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: August 2, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Microchip Technology Incorporated
v.
Mobility Corporation

_____

Opposition No. 91230315
_____

Ray K. Harris of Fennemore Craig PC
for Microchip Technology Incorporated.

Richard E. Ballard of Law Office of Richard E. Ballard Inc.
for Mobility Corporation.

_____

Before Cataldo, Hightower and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Mobility Corporation (“Applicant”) filed an application to register the mark shown
below for
Blank electronic storage media; Blank USB flash drives;
Backup drives for computers, mobile phones, tablet
computers, and handheld computers; External flash drives
featuring a microcontroller, wireless transceiver, and
software for encryption and decryption of digital files,
namely, audio, video, text, binary, still images, graphics
Opposition No. 91230315
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and multimedia files; Downloadable mobile applications
for use on a mobile phone or handheld computing device to
interface with an external electronic storage device to
store, retrieve, manage, view and play digital files;
Wireless communication and electronic storage devices
featuring flash memory for secure backup, transfer, and
sharing of digital files, namely, audio, video, text, binary,
still images, graphics, and multimedia files in
International Class 9.

1
Microchip Technology Incorporated (“Opposer”) opposes registration of
Applicant’s mark on the ground of likelihood of confusion under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d). Opposer has pleaded ownership of the registered
mark: 2 for “semiconductor devices and integrated circuits” in

1 Application Serial No. 86587282 was filed on April 03, 2015 under Section 1(a) alleging a
date of first use and use in commerce of May 6, 2014. “Mobility Corporation” is disclaimed.
The description of the mark states: “The mark consists of The letter “M” formed by two
parallel lines following one unconnected oblique line, surrounded by a filled-in circle and with
the words ‘Mobility Corporation’ in stylized lettering under the circle.” Color is not claimed
as a feature of the mark.
References to the briefs and the record refer to the Board’s TTABVUE docket system.
2 Registration No. 2390711 issued October 3, 2000; renewed.
Opposition No. 91230315
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International Class 9; and the mark: 3 for “semiconductors
and integrated circuits” in International Class 9.
Applicant filed an answer denying the salient allegations in the notice of
opposition and asserting affirmative defenses in the form of amplifications of its
denial of likelihood of confusion.4
Applicant did not take testimony or otherwise submit any evidence. Only Opposer
filed a trial brief.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the involved application. In addition, Opposer
introduced by way of notice of reliance printouts from the TESS (Trademark
Electronic Search System) electronic database of Applicant’s application and
Opposer’s pleaded registrations, and a screen printout of Applicant’s website pages.
Opposer also submitted deposition testimony of Ms. Rhonda Dufseth, senior technical
publications manager of Opposer.

3 Registration No. 1554466 issued September 5, 1989; renewed. “Microchip” disclaimed.
4 These are not true affirmative defenses and merely supplement Applicant’s denials of
likelihood of confusion. H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1718 n.2 (TTAB
2008).
Opposition No. 91230315
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II. Standing
Opposer has properly made its pleaded registrations of record by submitting
current copies from the USPTO electronic database showing the current status and
title of the registrations. 9 TTABVUE 6-15; Trademark Rule 2.122(d)(2), 37 C.F.R. §§
2.122(d)(2). In view thereof, we find Opposer has established its personal interest in
this proceeding and proven its standing. See Empressa Cubana Del Tabaco v. Gen.
Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton
Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
III. Priority
Because Opposer has made its pleaded registrations of record and shown they are
valid and subsisting, priority is not an issue in this case as to the goods recited in
those registrations. 9 TTABVUE 6-15. King Candy, Inc. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
IV. Likelihood of Confusion
We now turn our attention to the likelihood of confusion analysis. We consider
Opposer’s pleaded registered marks vis-à-vis the mark in the involved application.
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1162 (Fed. Cir. 2014). In our analysis we will focus on the registered mark
, Registration No. 2390711, which is most similar to Applicant’s mark.
Opposition No. 91230315
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If we find that there is a likelihood of confusion with this mark, there is no need for
us to consider the likelihood of confusion with Opposer’s other mark. Conversely, if
we find there is no likelihood of confusion with this mark, we would find no likelihood
of confusion with Opposer’s other mark which incorporates with the
word MICROCHIP. Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913,
1917 (TTAB 2015).
Our determination under Trademark Act Section 2(d) is based on an analysis of
all of the facts in 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). In any likelihood of confusion analysis, two key
considerations are the similarities between the goods and the similarities between
the marks. See 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.”). Opposer must establish that there is a likelihood of
confusion by a preponderance of the evidence.
A. Strength of the mark
We first consider the strength of Opposer’s mark. The strength of a mark rests on
the extent to which “a significant portion of the relevant consuming public …
recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC v.
Opposition No. 91230315
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Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017)
(citing Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)). This factor involves assessing
the mark “‘along a spectrum from very strong to very weak.’” Joseph Phelps, 122
USPQ2d 1734 (internal citations omitted). In determining the strength of a mark, we
consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. Bell’s Brewery, Inc. v. Innovation Brewing 125
USPQ2d 1340, 1345 (TTAB 2017). Commercial strength may be shown by direct
evidence which would include declarations or surveys. Weider Publ’ns, LLC v. D&D
Beauty Care Co., 109 USPQ2d 1347, 1354 (TTAB 2014). Commercial strength also
may be measured indirectly, by volume of sales and advertising expenditures and
factors such as length of use of the mark, widespread critical assessments, notice by
independent sources of the goods identified by the mark, and general reputation of
the goods. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1056
(TTAB 2017) (citing Weider Publ’ns, 109 USPQ2d at 1354).
Concerning conceptual strength, we find that Opposer’s mark is
arbitrary in connection with semiconductor devices and integrated circuits and
therefore is inherently distinctive. As for marketplace strength, Opposer’s witness
indicated in her testimony that Opposer’s composite mark has been in use since 1988.
Dufseth test. 10 TTABVUE 11. The witness also testified that Opposer’s current sales
for its pleaded marks and other brands are approximately $1 billion per quarter. Id.
Opposition No. 91230315
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at 27, 29-30. Opposer’s witness did not testify as to any actual sales figures for any of
its brands. Opposer also advertises the mark, although the amount of
advertising was not disclosed, either in dollars or other relevant measures such as,
for example, the number of consumer impressions generated. Id. at 28-29.5
Based on the evidence of record, Opposer has argued that its mark has
achieved fame.
However, we find that Opposer’s evidence fails to demonstrate commercial
strength at the high end of the spectrum for Opposer’s mark or even at the
middle end of the spectrum. There is no evidence suggesting that the mark is
conceptually weak, but we do not find Opposer’s witness’ testimony sufficient to
establish whether Opposer has achieved marketplace recognition. Opposer did not
provide evidence of the degree of its advertising or promotion of the mark nor any
evidence of the extent of actual sales in connection with the brand. The witness

5 Opposer’s witness also testified regarding annual surveys conducted by an unspecified
entity called EE Times asking embedded engineers “open-ended questions about their
microcontroller preferences and future buys,” where Opposer is “consistently very high in the
responses as far as companies from which they want to buy.” Dufseth test. 10 TTABVUE 15-
17. The witness testimony regarding the EE Times survey is too non-specific to carry any
probative weight. The testimony does not explain what the EE Times is, and if this is a
publication, what manner of publication it might be. We do not know who the viewership or
readership of EE Times is, the extent of any such viewership or readership, who is responsible
for its content or whether it is a standard in the industry or an outlier. The survey itself was
not made of record, nor do we have any specifics about the survey.
Opposition No. 91230315
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testimony is too non-specific and carries little, if any, probative weight. See ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1245 (TTAB 2015).
We accordingly find that Opposer’s mark is inherently distinctive and accord
Opposer’s mark the normal scope of protection to which inherently distinctive marks
are entitled.
B. Similarity of the Marks
As to the similarity or dissimilarity of the marks, we analyze “the marks in their
entireties as to appearance, sound, connotation and commercial impression.” In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting In re
E.I. du Pont, 177 USPQ at 567); see also Palm Bay Imports 1772, 73 USPQ2d at 1691
(quoting In re E.I. du Pont, 177 USPQ at 567). “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Triumph Learning, LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
Applicant’s mark is and Opposer’s mark is
. In comparing the marks, we first note that Applicant’s mark
Opposition No. 91230315
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incorporates a stylized letter “M” that is nearly identical to Opposer’s mark in its
entirety. In cases such as this, a likelihood of confusion frequently has been found.
“When one incorporates the entire arbitrary mark of another into a composite mark,
the inclusion of a significant, nonsuggestive element will not necessarily preclude a
likelihood of confusion. An inclusion of a merely suggestive or descriptive element, of
course, is of much less significance in avoiding a likelihood of confusion.” Wella Corp.
v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977)
(CALIFORNIA CONCEPT and surfer design is similar to the mark CONCEPT)
(internal citations omitted).
Applicant’s mark and Opposer’s mark are similar in appearance in that both
marks include a capital letter “M” with nearly identical stylization inside a shaded or
dark circle. The marks differ in appearance in that Applicant’s mark includes the
descriptive terms “mobility corporation,” while in Opposer’s mark, the upper right
quadrant of the circle has a straight edge, and the letter “M” extends to the edges of
the circle.6 The marks are similar in sound in that the letter “M” in both marks would
be pronounced the same if verbalized but also differ in sound due to the inclusion of
“mobility corporation” in Applicant’s mark. The marks are similar in connotation and
commercial impression due to the stylized letter “M” but also differ due to the
additional terms in Applicant’s mark. Overall we find the marks more similar than
dissimilar.

6 In its brief, Opposer describes the mark as a “large shaded circle containing the stylized ‘M’
letter, which is formed by three separate white parallelograms” where the stylized “M”
“touch[es] the circumference of the shaded circle.” 11 TTABVUE 14.
Opposition No. 91230315
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C. Similarity or Dissimilarity of the Goods and Channels of Trade, Classes
of Purchasers and Conditions of Purchase
We next consider the du Pont factor involving the relatedness of the involved
goods, as well as the du Pont factors involving their established, likely-to-continue
trade channels, classes of consumers and conditions of purchase.
Turning first to the similarity or dissimilarity of the goods, it is established that
our analysis must be based on a comparison of the goods identified in the application
and the pleaded registration(s). See, e.g., Coach Servs., 101 USPQ2d at 1722; Octocom
Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990).
In comparing the goods, the issue is not whether purchasers would confuse
Applicant’s and Opposer’s goods, but rather whether there is a likelihood of confusion
as to the source of those goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439
(TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). It is not necessary
that the goods be identical or even competitive in nature in order to support a finding
of likelihood of confusion. The goods need only be “related in some manner or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Coach Servs., 101 USPQ2d
at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Although as stated, we consider the relatedness of the goods based on the
respective identifications set forth in the application and registration, “[w]hen
identifications are technical or vague and require clarification, it is appropriate to
consider extrinsic evidence of use to determine the meaning of the identification of
Opposition No. 91230315
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goods.” In re C.H. Hanson Co., 116 USPQ2d 1351, 1355 (TTAB 2015) (citing Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); In re
Trackmobile, 15 USPQ2d 1152, 1154 (TTAB 1990)). Because the description of the
goods provides only basic information and the goods are technical, we consider
extrinisic evidence in the nature of witness testimony to determine the specific
meaning of the description of Opposer’s goods as well as website information related
to Applicant’s goods.
Opposer’s goods are identified as “semiconductor devices and integrated circuits.”
A semiconductor is defined as “a substance, as silicon or germanium, with electrical
conductivity intermediate between that of an insulator and a conductor: a basic
component of various kinds of electronic circuit element (semiconductor device) used
in communications, control, and detection technology and in computers.”7 Random
House Unabridged Dictionary (2018), dictionary.com. An integrated circuit is defined
as “a circuit of transistors, resistors, and capacitors constructed on a single
semiconductor wafer or chip, in which the components are interconnected to perform
a given function.” Id. A microcontroller is defined as “an integrated circuit that
contains a microprocessor along with memory and associated circuits and that
controls some or all of the functions of an electronic device (such as a home appliance)
or system.” Merriam-Webster Dictionary (2018), merriam-webster.com. According to

7 See Embarcadero Technologies Inc. v. RStudio Inc., 105 USPQ2d 1825, 1832 (TTAB 2013)
(“The Board may take judicial notice of definitions obtained from dictionaries that (1) are
available in a printed format, (2) are the electronic equivalent of a print reference work, or
(3) have regular fixed editions.”). A semiconductor is also defined as a “semiconductor device.”
Random House Unabridged Dictionary (2018), dictionary.com.
Opposition No. 91230315
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witness testimony, Opposer’s semiconductor devices and integrated circuits include
microcontroller products which are a type of good that is embedded into a product,
being placed and used on a circuit board as part of the product. Dufseth test. 10
TTABVUE 13, 15, 16. Opposer’s semiconductor devices and integrated circuits are
not sold as a consumer finished end product but are sold to someone in the “embedded
market” who is making a product that uses a circuit board and who needs a particular
type of semiconductor device or integrated circuit (microcontroller or microcontroller
product part) for a particular function of the product. Id. at 13, 16.
Applicant’s goods are identified as:
Blank electronic storage media; Blank USB flash drives;
Backup drives for computers, mobile phones, tablet
computers, and handheld computers; External flash drives
featuring a microcontroller, wireless transceiver, and
software for encryption and decryption of digital files,
namely, audio, video, text, binary, still images, graphics
and multimedia files; Downloadable mobile applications
for use on a mobile phone or handheld computing device to
interface with an external electronic storage device to
store, retrieve, manage, view and play digital files;
Wireless communication and electronic storage devices
featuring flash memory for secure backup, transfer, and
sharing of digital files, namely, audio, video, text, binary,
still images, graphics, and multimedia files.
As to Applicant’s products, Opposer has focused on Applicant’s “[e]xternal flash
drives featuring a microcontroller, wireless transceiver, and software for encryption
and decryption of digital files, namely, audio, video, text, binary, still images,
graphics and multimedia files” and “[w]ireless communication and electronic storage
devices featuring flash memory for secure backup, transfer, and sharing of digital
files.” Opposer submitted into evidence print-outs from Applicant’s website showing
Opposition No. 91230315
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and describing two prototypes of Applicant’s credit-card flash drives that provide
secure storage, GPS tracking and wireless backup for use with mobile phones, tablets
and computers. The webpages include photographs that show the finished product
attached to a mobile phone and also show that internally, the credit card sized flash
drive contains a circuit board.
Opposer asserts that because it “sells semiconductor products (microcontrollers)
that include memory chips and encryption and security components” and “Applicant
sells encrypted flash drives which feature microcontrollers and other memory and
encryption components,” its goods and Applicant’s goods are similar and “nearly
identical.”8 11 TTABVUE 16.
As is apparent from the identification and the website photographs, Applicant’s
external flash drives and wireless communciation and electronic storage devices
featuring flash memory are finished products. Opposer’s identified goods by their
intrinsic nature, are component parts sold to original equipment manufacturers for
use in the manufacture of finished products. This is corroborated by the testimony of
record.
Q. So Microchip’s product would be used in an integrated circuit that’s
put together by some outside company, not by Microchip itself?

A. We don’t do end consumer products, if that’s what you meant.

Q. Okay. So someone designing a lift for a window in an automobile
would purchase your component and use that to build the bigger system?

8 Applicant’s website includes the following statement: “SAFEGUARD Card Drive™: The
World’s First Encrypted Trackable Secured Credit Card Flash Drive that utilizes patented
high level encryption security (patent pending).” 9 TTABVUE 17, 18; 10 TTABVUE 52, 53.
Opposition No. 91230315
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A. Yes. The circuit board that made up that – that made that utility.

Dufseth test. 10 TTABVUE 15-16.
Opposer’s “semiconductor devices and integrated circuits” are discrete products
that may be a component part of but do not encompass Applicant’s goods. We must
therefore conclude that, contrary to Opposer’s assertion, the parties’ identified goods
are not legally identical.
The dictionary definition shows that a microcontroller is a type of integrated
circuit and the witness testimony indicates that Opposer’s semiconductor devices and
integrated circuits include microcontrollers. Applicant’s identification on its face
shows that its external flash drive contains a microcontroller, with the website
evidence indicating that the external flash drive internally contains a circuit board.
However, this evidence is not sufficient to establish that there is a commercially
significant relationship between these two products.9 Ms. Dufseth’s testimony was
speculative on the point of whether Opposer’s semiconductor devices and integrated
circuits (microcontrollers and security parts) could be a component part of Applicant’s
flash device,10 but even if this were so, Opposer’s semiconductor devices and

9 To accept Opposer’s reasoning at face value would logically require a finding that every
finished embedded product that contains a semiconductor device or integrated circuit
(microcontroller), if marketed under a mark similar to Opposer’s own, would be presumed to
emanate from Opposer. In some instances that might be a reasonable and logical conclusion
but in this case we are not persuaded.
10 In response to counsel’s question about whether Applicant’s device would be designed by
an engineer, Ms. Dufseth “assume[s] so” and she also testified that it is “possible” for Opposer
to supply a security part for Applicant’s electronic storage devices or a microcontroller for
Applicant’s external flash memory drives:
Q. Would that [electronic storage devices featuring flash memory for secured backup] involve
security parts that could potentially be supplied by Microchip?
A. It could be possible.
Opposition No. 91230315
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integrated circuits are substantially different from a secure flash drive or external
storage drive in intended use or purpose.
Applicant’s goods are a finished product intended for encrypted storage of digital
files, whereas Opposer’s semiconductor devices and integrated circuits are used as a
component placed on a circuit board. The dictionary definitions and Opposer’s own
testimony indicates many diverse products include semiconductor devices and
integrated circuits in the form of an embedded microcontroller or microcontroller
part, e.g., garage door opener, window lift for automobile and a coffeemaker. Dufseth
test. 10 TTABVUE 13, 15. The fact that Opposer’s semiconductor devices and
integrated circuits may be incorporated into many types of automated finished
products does not, per se, support Opposer’s claim herein.
Additionally, and most significant, is the fact that it has not been shown that it is
the general practice for producers of semiconductor devices and integrated circuits to
produce and sell embedded products such as external flash drives and electronic
storage devices featuring flash memory, much less under the same mark, or that it is
the usual industry practice in the embedded product market, as is prevalent in some
industries, to promote and identify by trademark the components or essential
ingredients of the particular finished products so that purchasers and/or prospective

Q. Does the product also contain components such as a microcontroller that could come from
Microchip Technology?
A. It would be possible, yes.
Q. Is there any reason that you're aware of that a Microchip Technology microcontroller could
not be used in such a product?
A. It’s possible for a Microchip microcontroller to be used in such a product.
Dufseth test. 10 TTABVUE 21, 23, 26.
Opposition No. 91230315
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purchasers will or could have an opportunity to associate the two with a single
product and possibly with a single producer. See, e.g., Esso Standard Oil Co. v. E. F.
Drew & Co., 227 F.2d 171, 125 USPQ 404 (CCPA 1960) (ACTO-VATE for water
softener sold exclusively to laundries not likely to be confused with ACTO for
petroleum sulphonates sold to manufacturers for use as ingredients of water
softeners); In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993) (PHOENIX,
when applied to leather sold in bulk, not likely to be confused with PHOENIX, when
applied to all-purpose sports bags, luggage, attaché cases, portfolio briefcases, and
handbags); E. I. du Pont de Nemours & Co. v. Arbora Int’l, S.A., 189 USPQ 584 (TTAB
1976) (EVAX for sanitary compresses, packs and napkins, sanitary tampons and
bandages, all made from paper not likely to be confused with ELVAX for synthetic
resinous plastic materials which are often used as a component of finished paper
products); In re Rexall Drug & Chem. Co., 159 USPQ 447 (TTAB 1968) (XYLON for
thermoplastic resins which may be used in the manufacture of plastic utensils not
likely to be confused with ZYLON for finished plastic products); In re Coated
Products, Inc., 147 USPQ 293 (TTAB 1965) ( for pressure sensitive plastic
letters, numerals and characters (finished products) not likely to be confused with
STICKEE for pressure sensitive label stock (raw material)).
As to trade channels, there are no restrictions with regard to the goods as
identified in the pleaded registrations and the involved application. Therefore, it is
presumed that Opposer’s goods and Applicant’s goods move in all channels of trade
Opposition No. 91230315
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normal for those goods, and that they are available to all classes of purchasers for
those goods. See Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901,
177 USPQ 76, 77-78 (CCPA 1973). Opposer concludes that because of the lack of
restrictions for either Opposer or Applicant, consumers will encounter the parties’
products in similar trade channels. However, this principle does not help the party
asserting a likelihood of confusion “when the dispute involves the comparison of
different goods or services,” “unless there is further evidence that would permit a
comparison of the normal trade channels for the parties’ respective goods or services.”
See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1743 (TTAB 2014).
Opposer argues that both “Applicant and Opposer operate and advertise products
within the same segment of the electronics and integrated components market”11 and
that they directly compete against each other in the electronics industry. 11
TTABVUE 17, 18. Opposer’s witness testified that Opposer and Applicant “operate
in the same spaces,”12 Dufseth Test., 10 TTABVUE 24-25, but did not further

11 The term “integrated components market” used by Opposer’s counsel has not been defined
in the record nor explained by Opposer’s witness.
12 Q. Do you feel that the use of the M design on the Mobility Corporation product could be
confusing to hobbyists?
A. Yes.
Q. Do you feel that it could be confusing to trained engineers?
A. Yes.
Q. Could it be confusing to suppliers who deal with Microchip Technologies?
A. Yes. …
Q. And why do you say that?
A. I say that because the design, their M design is virtually identical to ours and because the
companies are operating in the same spaces, anyone who sees that mark would assume that
Microchip were involved with that product.
Opposition No. 91230315
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elaborate, and we find this testimony too vague to support a finding that the parties
are direct competitors and operate in the same channels of trade. Although certainly
both goods could be categorized as being offered in the electronics industry, one a
component part and one a finished product, this is insufficient to show relatedness.
See Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1310
(Fed. Cir. 2002) (“A broad general market category is not a generally reliable test of
relatedness of products.”); Cooper Indus., Inc. v. Repcoparts USA, Inc., 218 USPQ 81,
84 (TTAB 1983) (“the mere fact that the products involved in this case (or any
products with significant differences in character) are sold in the same industry does
not of itself provide an adequate basis to find the required ‘relatedness”’).
Opposer also has asserted that the trade channels through which the parties offer
their goods are similar based on the fact that both parties advertise their respective
goods through the Internet on their own websites. However, “the mere fact that goods
and services may both be advertised and offered through the Internet is not a
sufficient basis to find that they are sold through the same channels of trade.”
Parfums de Couer Ltd. v. Lazarus, 83 USPQ2d 1012, 1021 (TTAB 2007). See also
Federated Foods, 192 USPQ at 29 (evidence that the only link between the goods is
that they are sold in the same area of a supermarket is not sufficient to establish that
the goods are related); Inter IKEA Sys., 110 USPQ2d at 1743 (“that applicant could
conceivably sell its nutritional, herbal, vitamin and mineral supplements through a
retail store, catalogs and over the internet does not prove that opposer’s goods and

Dufseth Test. 10 TTABVUE 24-25.
Opposition No. 91230315
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services and applicant’s goods and services move through the same channels of trade
and are sold to the same classes of consumers”); Sports Authority Michigan Inc. v. PC
Authority Inc., 63 USPQ2d 1782, 1794 (TTAB 2001) (“merely because both parties …
use similar methods of advertising does not mean that their respective services will
be offered to consumers under circumstances and through channels of trade which
would create a likelihood of confusion”).
Opposer also argues in its brief that the sales conditions are similar in that both
parties sell products on their websites and that someone searching the Internet for
electronic components, microcontrollers, and other encrypted memory products
online would encounter reseller websites with both parties’ goods (“[c]onsumers
searching for Opposer’s goods online are likely to locate Applicant’s product offerings,
and vice versa”). 11 TTABVUE 17, 18. However, other than counsel’s argument, there
is no specific testimony or evidence that supports these statements, and attorney
argument does not substitute for evidence.13 See Gemtron Corp. v. Saint-Gobain
Corp., 572 F.3d 1371, 91 USPQ2d 1409, 1415 (Fed. Cir. 2009) (reasoning that a
party’s “unsworn attorney argument … is not evidence” and thus cannot rebut record
evidence); 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.”).

13 While Opposer references witness testimony for these points, Dufseth test. 10 TTABVUE
30, the testimony was simply that both Applicant and Opposer have websites advertising
their products. Id. at 29. Applicant’s webpages, submitted with Opposer’s notice of reliance
and as an exhibit to the Dufseth testimony, discuss a prototype product but do not indicate
the goods are available for purchase. The notice of reliance also states the relevance of
Applicant’s webpage as “demonstrat[ing] Applicant advertises its mark in conjunction with
flash drive storage products that relate to computers and similar electronic devices, including
microcontrollers.” 9 TTABVUE 3; 10 TTABVUE 52-59.
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As to classes of purchasers, there is no testimony or other evidence regarding the
purchasers of Applicant’s goods. We presume based on the identification that they
would be sold to the general consumer as they are electronic storage for use in
connection with laptops, tablets and mobile phones all of which are general consumer
products. Opposer states in its brief that Opposer’s customers are “likely to be trained
engineers and individual electronic component hobbyists.” 11 TTABVUE 15-16. We
find Ms. Dufseth’s testimony was vague and ambiguous as to the purchasers of its
goods. Although Opposer’s witness testimony indicates that a component of its
market is sales to hobbyists, she did not further specify the type of hobbyists that buy
its goods. It also is not entirely clear what role engineers have in purchasing
Applicant’s goods. Opposer’s witness testimony indicates that the individuals who
work with its product at the companies that manufacture embedded products are
called embedded engineers, and Opposer identifies those embedded engineers as its
“core audience” in connection with testimony regarding the EE Times survey
mentioned in n.5 supra that asks about embedded engineers’ microcontroller
preferences and future buys. Dufseth test. 10 TTABVUE 15-16, 24. However, what
the witness meant by “core audience” and the embedded engineer’s role, if any, in
purchasing Opposer’s goods in connection with their work for companies that
manufacture embedded products was not explained. Dufseth test. Id. at 15-16. To the
extent some of these embedded engineers, who are the users of the goods, influence
purchasers at the companies that manufacture embedded products, they would be
considered relevant persons. Electronic Design & Sales Inc. v. Electronic Data
Opposition No. 91230315
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Systems Corp., 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992) (“[W]hile not all
‘users’ are necessarily relevant persons … we broadly construe purchasers and
potential purchasers to include those persons, such as some users, who might
influence future purchasers. For commercially sold items, only those users who might
influence future purchasers can be considered “‘relevant persons.’”).
As to conditions of sale, we would expect nearly all, if not all, of Opposer’s
purchasers would be highly sophisticated. See Electronic Design & Sales, 21 USPQ2d
at 1392 (finding purchasers sophisticated based on identification of opposer’s and
applicant’s goods). On its face, Opposer’s goods are not for the general consuming
public, and the prospective purchasers of these goods would be knowledgeable,
sophisticated purchasers who are designing products that use circuit boards and are
likely to exercise a higher degree of care in purchasing the goods.
To the extent that the purchasers of Applicant’s and Opposer’s goods do overlap,
any such overlap would be de minimis. The “likely” purchasers described by Opposer
would be sophisticated and knowledgeable about the products they are buying.
Considering the nature of Opposer’s goods (which are to be used with and placed on
circuit boards), these purchasers would not be likely to think that the parties’
products emanate from or are otherwise associated with or sponsored by the same
source. Electronic Design & Sales, 21 USPQ2d at 1388; Calypso Technology Inc. v.
Calypso Capital Management LP, 100 USPQ2d 1213, 1223 (TTAB 2011) (extent of
potential confusion de minimis due to limited number of overlapping potential
purchasers and their sophistication).
Opposition No. 91230315
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VII. Conclusion
We have considered all of the evidence pertaining to the relevant du Pont factors,
as well as Opposer’s arguments with respect thereto (including any evidence and
arguments not specifically discussed in this opinion).14 We find that Opposer has
failed to prove, by a preponderance of evidence, that there is a likelihood of confusion
between the marks at issue. Based on the limited record introduced by Opposer, and
keeping in mind that Opposer has the burden of proof of establishing its likelihood of
confusion claim by a preponderance of the evidence, we see Opposer’s likelihood of
confusion claim as amounting to only a speculative, theoretical possibility,
notwithstanding that similar marks are involved. The differences between the goods,
coupled with their channels of trade and conditions of purchase, persuade us that
confusion is unlikely to occur among consumers in the marketplace. 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, 21 USPQ2d at 1391, 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).

14 To the extent that any other du Pont factors for which no evidence or argument was
presented may be applicable, we treat them as neutral.
Opposition No. 91230315
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In balancing the relevant du Pont factors, we conclude that there is no likelihood
of confusion.15
Decision: The Opposition is dismissed.

15 We need not consider the issue of likelihood of confusion with respect to Opposer’s pleaded
Registration No. 1554466 in view of our finding of no likelihood of confusion with respect to
Registration No. 2390711. See Multisorb Techs., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171
(TTAB 2013); In re Max Capital Group Ltd., 93 USPQ2d 1243, 1243 (TTAB 2010).