PowerDesigners, LLC

Trademark Trial and Appeal Board

Jul 20, 2006

No. 76155141 (T.T.A.B. Jul. 20, 2006)

Mailed:
July 20, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Power Designers, LLC
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Serial No.76155141
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Eric W. Ibele of Neider & Boucher, S.C. for Power
Designers, LLC

Kathleen M. Vanston, Trademark Examining Attorney, Law
Office 103 (Michael Hamilton, Managing Attorney)
_______

Before Seeherman, Quinn and Walsh, Administrative Trademark
Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Power Designers, LLC has appealed from the final
refusal of the Trademark Examining Attorney to register
POWER TRAC as a trademark for a “vehicle battery charge
monitor.”1 Registration has been refused pursuant to
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on

1 Application Serial No. 76155141, filed Ocyober 30, 2000, based
on Section 1(b) of the Trademark Act (intent-to-use).

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76155141
2
the ground that applicant’s mark so resembles the mark
POWERTRAK, previously registered for “electronic controller
and software for monitoring voltage, current and
temperature of batteries,”2 that, if used on applicant’s
goods, it is likely to cause confusion or mistake or to
deceive.
Applicant and the Examining Attorney have filed
briefs. Applicant did not request an oral hearing.
We affirm the refusal of registration.
Before turning to the substantive issue in this
appeal, we note that the Examining Attorney has objected to
additional evidence submitted by applicant with its appeal
brief because it is untimely. The objection is well taken.
Trademark Rule 2.142(d) provides that the record should be
complete prior to the filing of an appeal. Accordingly,
these additional submissions have not been considered. We
add that even if they had been properly made of record,
they would have no effect on our decision herein, as the
determination of likelihood of confusion must be made on
the basis of the goods as they are identified in the
application and in the cited registration. See Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, N.A., 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).

2 Registration No. 2571837, issued May 21, 2002.
Ser No. 76155141
3
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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
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). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Applicant’s mark is POWER TRAC; the cited mark is
POWERTRAK. The marks are obviously identical in
pronunciation and connotation. While there are slight
differences in appearance, the differences are not
sufficient to distinguish the marks. Even though the
registrant’s mark is depicted without a space, the two
words that comprise the mark are readily apparent. And
although the last letters of each mark differ, in each mark
the term will immediately be recognized as a misspelling of
TRACK. Consumers are not likely to note or remember this
minor difference in the last letter of the marks; in fact,
Ser No. 76155141
4
to the extent that they are aware that there is a
misspelling in the mark, they are likely to misremember
whether that misspelling is “TRAC” or “TRAK.” Under actual
marketing conditions, consumers do not necessarily have the
luxury of making side-by-side comparisons between marks,
and must rely upon their imperfect recollections. Dassler
KG v. Roller Derby Skate Corporation, 206 USPQ 255 (TTAB
1980). Thus, we find that the marks are similar in
appearance, and convey identical commercial impressions.
This du Pont factor of the similarity of the marks strongly
favors a finding of likelihood of confusion.
The greater the degree of similarity in the marks, the
lesser the degree of similarity that is required of the
products or services on which they are being used in order
to support a holding of likelihood of confusion. In re
Concordia International Forwarding Corp., 222 USPQ 355, 356
(TTAB 1983). Here, the identification in the cited
registration is “electronic controller and software for
monitoring voltage, current and temperature of batteries,”
while applicant’s goods are identified as a “vehicle
battery charge monitor.” Both products, as identified, are
monitors, and the battery charge that applicant’s goods
monitor would necessarily involve the monitoring of voltage
and current. Applicant has confirmed this, explaining that
Ser No. 76155141
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its “POWER TRAC DT and SP Series Battery Data Logger
monitors, tracks and logs various battery performance
indicia, including voltage, temperature, current, and amp-
hours of charge and discharge.” Brief, p. 2. As such, its
product appears to perform many of the same functions as
the registrant’s identified goods, which monitor voltage,
current and temperature of batteries. Thus, applicant’s
goods and the registrant’s goods are highly similar, if not
identical.
Applicant has pointed out that its goods are
classified in Class 12, while the cited registration is in
Class 9. As the Examining Attorney has explained, the
classification of goods and services by the U.S. Patent and
Trademark Office is a purely administrative determination
and has no bearing on the issue of likelihood of confusion.
National Football League v. Jasper Alliance Corp., 16
USPQ2d 1212, n. 5 (TTAB 1990) (The classification system
was established for the convenience of the Office rather
than to indicate that goods in the same class are
necessarily related or that classification in different
classes indicates that they are not related).3

3 The Examining Attorney stated in her brief that applicant’s
goods are properly classified in Class 9, and that the Office
erroneously classified them in Class 12. That issue is not
before us on appeal, but we note that Examining Attorneys have
the discretion, either before or after publication, to amend the
Ser No. 76155141
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Applicant does not really dispute the similarity of
the goods or, more precisely, applicant has not discussed
how the goods are different. Rather, its principal
argument is that “it does not appear that registrant is
currently using the registered mark.” Brief, p. 2. This
is a collateral attack on the validity of the registration,
and it may not be pursued in the context of an ex parte
proceeding. See In re Dixie Restaurants, supra, and cases
cited therein. As the Court pointed out in Cosmetically
Yours, Inc. v. Clairol Inc., 424 F.2d 1385, 1387, 165 USPQ
515, 517 (CCPA 1970), "it is not open to an applicant to
prove abandonment of [a] registered mark" in an ex parte
registration proceeding; thus, the "appellant's argument
... that [a registrant] no longer uses the registered mark
... must be disregarded." Therefore, as long as the
registration of registrant’s mark remains on the Register,
we must accord the it the presumptions provided by Section
7(b) of the Statute, and treat it as valid.
Both applicant and the Examining Attorney have limited
their arguments to the du Pont factors of the similarity of
the marks and the similarity of the goods. Because of

classification of applications by Examiner's Amendment without
prior approval by the applicant. Accordingly, if applicant were
to appeal our decision and be successful, the Examining Attorney
would have the right to issue an Examiner's Amendment prior to
the publication of the mark. See TMEP §707.02.
Ser No. 76155141
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this, and because no evidence has been submitted on other
factors, we, too, have limited our discussion to these
factors. To the extent that any other factors are
applicable, we must treat them as neutral.
Because of the very close similarity of the marks and
the similarity of the goods, we find that applicant’s use
of POWER TRAC for its identified goods is likely to cause
confusion with the cited registration for POWERTRAK.
Decision: The refusal of registration is affirmed.