Swan Song, Inc.v.Swan Song Audio LLC

Trademark Trial and Appeal Board

Feb 26, 2020

91240005 (T.T.A.B. Feb. 26, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: February 26, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Swan Song, Inc.
v.
Swan Song Audio LLC

_____

Opposition No. 91240005

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Gary D. Krugman and Kevin G. Smith of Sughrue Mion PLLC for Swan Song, Inc.

Anthony J. Crocker, pro se for Swan Song Audio LLC

_____

Before Kuczma, Goodman and Heasley,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Swan Song Audio LLC (“Applicant”) applied to register the mark SWAN SONG
AUDIO (in standard characters, with AUDIO disclaimed) for the following
International Class 9 goods:1 “Consumer electronic products, namely, audio

1 Application Serial No. 87576829 was filed on August 21, 2017 under Section 1(a) alleging
a date of first use and first use in commerce of October 2, 2015.
References to the briefs and the record are to the Board’s TTABVUE docket system.
Opposition No. 91240005
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amplifiers, audio speakers, audio receivers, electrical audio and speaker cables and
connectors, audio decoders, video decoders, speakers, power conversion devices,
power converters, and power inverters.”
Swan Song, Inc. (“Opposer”) opposes registration of Applicant’s mark on the
grounds of likelihood of confusion and fraud. Opposer pleads adoption and use of
SWAN SONG in connection with phonograph records and ownership of Registration
No. 1014054 for the mark for phonograph records in
International Class 9.2
Applicant filed an answer generally denying the salient allegations in the notice
of opposition.3
Opposer and Applicant filed briefs and Opposer filed a reply brief.4
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 files of the involved application. Opposer made its
registration of record by attaching to its notice of opposition a copy of its registration

2 Issued June 24, 1975; renewed.
3 4 TTABVUE. Although presented in an informal format, the Answer constitutes a formal
written response to the Notice of Opposition where Applicant has responded to the allegations
in the Notice of Opposition.
4 Opposer did not address the fraud claim in its brief. We consider the fraud claim waived.
See Corporacion Habanos S.A. v. Guantanamera Cigars Co., 86 USPQ2d 1473, 1474 n.2
(TTAB 2008).
Opposition No. 91240005
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from the USPTO’s Trademark Status and Document Retrieval (TSDR) electronic
database showing status and title. Opposer also filed the pleaded registration under
a notice of reliance. Trademark Rule 2.122(d)(2), 37 C.F.R. § 2.122(d)(2), 5 TTABVUE.
Opposer filed additional notices of reliance on Internet materials, 6 TTABVUE, on
official records of the USPTO (a copy of Applicant’s earlier filed abandoned
application), 7 TTABVUE, and on third-party registrations, 8 TTABVUE. Applicant
did not submit any evidence during its testimony period.
II. Objections
Applicant attached exhibits to its brief in the form of website print-outs, provided
hyperlinks in its brief, and provided excerpts from websites in its brief. In its reply
brief, Opposer has moved to strike the exhibits and excerpts, or asked that the Board
give them no consideration.
The website print-outs, and the excerpted Internet materials embedded into the
brief, were not submitted during Applicant’s trial period and are untimely. See Norris
v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *2
(TTAB 2019). We have not considered this evidence nor Applicant’s discussion of
them. The hyperlinks and the discussion of their contents in the brief also have not
been considered. This evidence is untimely as it was not submitted during the trial
period and is in improper form. Id. See also In re Future Ads LLC, 103 USPQ2d 1571,
1572 n.3 (TTAB 2012) (The Board “will not utilize a link or reference to a website’s
internet address to access the site to consider whatever content may appear
therein.”).
Opposition No. 91240005
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Opposer also has objected to statements in Applicant’s brief that could be
considered trial testimony. As Applicant did not introduce any testimony during its
trial period, we will consider these statements as arguments, not testimony.
Applicant has argued that Opposer’s mark should be declared “dead” and that
Opposer has misled the USPTO as to the nature of its goods. 11 TTABVUE 10.
Opposer asserts that these arguments are a collateral attack on its registration. To
the extent that Applicant’s allegations constitute a collateral attack on Opposer’s
registration, they are impermissible, as Applicant’s compulsory counterclaim was
dismissed as untimely.5 Accordingly, no consideration has been given to Applicant’s
arguments in this regard.
III. Standing
Opposer has established its standing through its submission of a TSDR printout
for its pleaded registration, which demonstrates that the registration is valid and
subsisting, and owned by Opposer. See, e.g., Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (party’s ownership of pleaded
registration establishes standing). Applicant “does not dispute that Swan Song Inc.
has a registered mark with the Trademark and Patent office.” 11 TTABVUE 7.

5 On September 10, 2019, Applicant filed notice of the filing of a petition to cancel Opposer’s
pleaded registration, and on September 19, 2019, a copy of the electronic filing receipt. The
petition for cancellation was assigned proceeding No. 92072220 and was dismissed with
prejudice on October 9, 2019. In this opposition proceeding, the Board ruled that Applicant’s
petition to cancel would be given no consideration. 15 TTABVUE.
Opposition No. 91240005
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IV. Priority
Because Opposer’s pleaded registration is of record, and Applicant’s petition to
cancel Opposer’s pleaded registration was dismissed as untimely, priority is not an
issue with respect to the goods covered by Opposer’s pleaded registration. King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
V. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all probative 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) (“DuPont”); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “Not all of the du Pont factors are
relevant to every case, and only factors of significance to the particular mark need be
considered.” In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir.
2010).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. 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.”). We discuss the DuPont factors for which there is argument and evidence
below.
Opposition No. 91240005
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A. Similarity or Dissimilarity of the Marks
We compare Opposer’s mark and Applicant’s mark
SWAN SONG AUDIO for similarities and dissimilarities in appearance, sound,
connotation and commercial impression. See Palm Bay Imp., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005).
The test, under the first DuPont factor, 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 or services offered under the respective marks
is likely to result. Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading Jewelers Guild, Inc. v. LJOW
Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
The marks must be considered in their entireties, but “‘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, provided the ultimate conclusion rests on consideration of the marks in
their entireties.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051
(Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985)).
Opposition No. 91240005
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In comparing the marks, we initially find that the dominant term in Applicant’s
mark is SWAN SONG. Although Applicant’s mark includes the term AUDIO, this
term is descriptive, if not generic, of Applicant’s goods and has been disclaimed. See
Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846 (quoting In re National Data,
224 USPQ at 752 (“Regarding descriptive terms, this court has noted that the
descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion”)); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702
(TTAB 2001) (disclaimed matter is “less significant in creating the mark’s commercial
impression”). The significance of the term SWAN SONG as the dominant element of
Applicant’s mark is reinforced by its placement as the first part of Applicant’s mark.
See Palm Bay Imp. Inc., 73 USPQ2d at 1692 (“Veuve” is the most prominent part of
the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the
first word to appear on the label.).
Opposer’s mark contains both words and a design. For a composite mark
containing both words and a design, the word portion is usually more likely to
indicate the origin of the goods because it is more likely to be impressed upon a
purchaser’s memory and to be used when requesting the goods. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (citations omitted).
Opposer’s mark contains design elements that are not separate from the literal
portion of the mark, but are incorporated into the letter “S” used in both SWAN and
SONG. Each design appears to suggest a swan with some other elements, and we
have no doubt that consumers will recognize each design as a highly-stylized letter
Opposition No. 91240005
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“S.” Additionally, the letter “S” swan design would be seen and understood by
customers as reinforcing the words SWAN SONG. For the reasons discussed, we find
the dominant portion of Opposer’s mark is the literal portion, SWAN SONG, with the
design elements subordinate.
In sum, the dominant portion of Opposer’s mark, SWAN SONG, is identical to the
dominant portion of Applicant’s mark. Although we have pointed to the dominant
portions of the parties’ marks, we acknowledge the fundamental rule in this situation
that the marks must be considered in their entireties. See Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1134 (Fed. Cir. 2015).
Given the commonality of SWAN SONG in the marks, even when we factor in the
design portion in Opposer’s mark and the additional disclaimed wording AUDIO in
Applicant’s mark, we find that the marks are similar in sound and appearance.
Further, the marks convey similar meanings (i.e., the final performance or act) and
have similar commercial impressions, even with the additional matter added to each
party’s mark.6 When the marks are compared in their entireties, including the
additional disclaimed word in Applicant’s mark and the design features of Opposer’s

6 We take judicial notice of the dictionary definition for swan song:
1: a song of great sweetness said to be sung by a dying swan
2: a farewell appearance or final act or pronouncement
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/swan%20song
(accessed February 21, 2020). The Board may take judicial notice of dictionary definitions
in printed or online format. See In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).

Opposition No. 91240005
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mark, we find the marks engender similar overall impressions so that consumers,
upon encountering the marks, are likely to be confused. This first DuPont factor
weighs in favor of a finding of a likelihood of confusion.
B. Similarity of the Goods
The second DuPont factor assesses the similarity or dissimilarity of the parties’
goods. The parties’ respective goods need not be similar or even competitive to find
that they are related for purposes of our likelihood of confusion analysis, but need
only be “related in some manner and/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.” See Coach Servs. v. Triumph Learning LLC, 101 USPQ2d at
1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
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. In re Cook Medical Tech. LLC, 105 USPQ2d 1377,
1380 (TTAB 2012). If goods are complementary in nature, or used together, this
relatedness can support a finding of likelihood of confusion. See, e.g., In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984).
While acknowledging that the parties’ goods are “obviously not identical,” Opposer
submits that the goods are “clearly closely related products.” Opposer asserts that
Opposition No. 91240005
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“[p]honograph records, to be played and heard, must be played on a device (turntable)
which requires a receiver, speakers and/or an amplifier.”7 9 TTABVUE 12.
Opposer submitted Internet website evidence showing on-line and retail outlets
that offer phonograph records and audio equipment. Opposer’s notice of reliance, 6
TTABVUE. Opposer’s notice of reliance states that this evidence is relevant to show
“that the respective goods of the parties are closely related products which may and
do emanate from a single source.” Id. at 3.
We have not relied on this Internet evidence for the truth of the matters asserted
therein, but only for what it shows on its face. Specifically, we have considered what
these sources state, rather than the truth of what they state. None of these websites
show on their face that phonograph records and audio speakers, audio receivers, and
audio amplifiers are sold under the same mark. However, the website evidence does
show that consumers may have been exposed to the same retail stores offering these
goods.
Also to show relatedness, Opposer submitted over sixty third-party registrations
that it asserts cover “phonograph records, and also for audio amplifiers and/or audio

7 Opposer submitted the file wrapper of Applicant’s abandoned application Serial No.
86008474 for the mark SWAN SONG AUDIO as “relevant to show that the U.S. Patent and
Trademark Office has, on at least one occasion, had the opportunity, at the examination level,
to find likelihood of confusion from the use of the mark SWAN SONG AUDIO … in view of
the existence of Opposer’s registered SWAN SONG mark for phonograph records.” Opposer’s
notice of reliance, 7 TTABVUE 2-3. Opposer’s brief does not address this evidence in
connection with the second DuPont factor. But we note that prior decisions and actions of
examining attorneys of the USPTO are not binding upon the Board, and have very little
evidentiary value in an opposition proceeding. The Board must make its own findings of fact
on the evidence before it and need not adopt the conclusions reached by an examining
attorney in an earlier application. In re Nett Designs, Inc., 236 F.3d 1339, 1342, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (each application must be considered on its own merits).
Opposition No. 91240005
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speakers and/or audio receivers.” Opposer’s notice of reliance, 8 TTABVUE. Opposer
argues that “[t]he third party registrations of record … are probative to show that
these respective products are of a kind that may and do emanate from a single source
under a single mark.” 9 TTABVUE 12.
Third-party registrations are not evidence that the marks shown therein are in
commercial use, or that the public is familiar with them. However, the registrations
“may have some probative value to the extent that they serve to suggest that the
listed goods and/or services are of a type that may emanate from a single source.” In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993). See also, In
re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
Nineteen of the third-party registrations submitted by Opposer do not cover the
relevant goods and are not probative.8 As to the remaining registrations, we find 14
of these have probative value as they are limited to a single class of goods and do not
include a broad array of unrelated goods. In particular, while the other third-party
registrations may include phonograph records and audio receivers, or audio speakers
or audio amplifiers, their probative value is negated by the variety of diverse and
unrelated goods and/or services covered. In re Princeton Tectonics, Inc., 95 USPQ2d
1509, 1510-11 (TTAB 2010) (“The diversity of the goods identified in this registration
diminishes the probative value in establishing that any two items identified in the
registration are related.”).

8 These registrations do not cover audio amplifiers or audio speakers or audio receivers but
cover cases for those goods.
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For example, among the many goods identified in these registrations, four of the
registrations also cover eyewear and/or eyewear accessories, three of the registrations
also cover various types of batteries, seven of the registrations also cover cameras or
camera equipment, five of the registrations also cover mobile or smart phones, eight
of the registrations also cover various computer hardware and software, one
registration also covers transistors and capacitors, and one registration also covers
water treatment equipment, water meters and wind turbine controllers.
Registrations such as these, which cover a wide variety of goods and services, do not
suggest, or are at least much less likely to suggest, that particular goods and services
within the parties’ identifications are of the type that may emanate from a single
source. In re Mucky Duck, 6 USPQ2d at 1470 n.6.
Upon consideration of the evidence, we find that the goods are related. It is
common knowledge that phonograph records are used with audio equipment. See e.g.,
M.C.I. Foods, Inc. v. Brady Bunte, 96 USPQ2d 1544, 1552 (TTAB 2010) (finding
Mexican food and tortilla chips complementary stating “[i]t is common knowledge
that Mexican food is served with tortilla chips.”). The third-party registrations
themselves also show that the goods are complementary and thus related as they are
offered under the same mark. See e.g., Joel Gott Wines LLC v. Rehoboth Von Gott Inc.,
107 USPQ2d 1424, 1432 (TTAB 2013) (finding that third-party registrations covering
both wine and water were probative of the relatedness of those beverages). The
Internet evidence shows on its face that consumers may have been exposed to these
goods being sold in the same retail location. Additionally, consumers familiar with
Opposition No. 91240005
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Opposer’s mark for phonograph records could well believe that Applicant’s mark
reflects a brand extension into audio equipment.
Accordingly, the second DuPont factor weighs in favor of a finding of likelihood of
confusion.
C. Channels of Trade and Classes of Purchasers
The third DuPont factor requires us to consider the similarity or dissimilarity of
the trade channels and classes of purchasers for the goods. Because there are no trade
channel limitations in either Applicant’s or Opposer’s identification of goods in the
application and in the pleaded registration, we must presume that the goods, as
identified, are marketed in all normal and usual trade channels for such goods and
to all normal classes of purchasers for such goods. See Octocom Systems Inc. v.
Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990).
As indicated above, Opposer submitted Internet evidence from six websites
showing on-line and retail outlets that offer phonograph records and audio
equipment.
One of the websites to which Opposer refers, Htfr.com, is the website of a foreign
entity that is located in the United Kingdom. The website shows on its face that the
goods are offered in British pounds and appear to be directed to local consumers.
Although the website states “worldwide mail order store,” there is no evidence of
United States consumer exposure to this website. As for the other five websites, two
of the websites (Merlesrecordrack.com and Clintonstreetrecordandstereo.com) only
Opposition No. 91240005
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offer vintage, not new audio equipment, as well as vintage and new vinyl records.
Opposer has not established that this is a normal channel of trade for Applicant. Of
the remaining three websites, one offers new audio equipment and new and used
vinyl records, while the other two websites offer new and used audio equipment as
well as new and used vinyl records:
Vinylren.com offers “new and used vinyl records and CDs”
and “vintage audio equipment from well known brands,”
and “new and used media and audio equipment.”
Musicdirect.com offers vinyl records and “high end audio
equipment” which includes speakers, amplifiers and stereo
receivers.
Acousticsounds.com offers vinyl records, including pre-
owned, and speakers, amplifiers and receivers.
We find that this evidence, although small in number, is sufficient to establish
that the parties’ goods may be offered in overlapping channels of trade. We find the
third DuPont factor also weighs in favor of a finding of likelihood of confusion.
D. Conditions of Sale
The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse vs. careful sophisticated purchasing.”’ DuPont,
177 USPQ at 567.
Applicant argues that purchasers of the parties’ goods are sophisticated. However,
there is no evidence that the consumers of phonograph records and the identified
audio equipment would exercise a heightened degree of care. While purchasers of
audio equipment might exercise a higher degree of care than purchasers of
phonograph records, this would not overcome likelihood of confusion in the case of
Opposition No. 91240005
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similar marks. Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d
1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating
purchasers...are not infallible.”). Overall, we find this DuPont factor to be neutral.
E. Fame of Opposer’s Mark
The fifth DuPont factor considers the fame of the prior mark. DuPont, 177 USPQ
at 567.
In its brief, Opposer acknowledges that there is no evidence in the record that its
mark is famous. Accordingly, we find this DuPont factor neutral.
F. Evidence of third-party use of Similar Marks on Similar Goods
The sixth du Pont factor “considers ‘[t]he number and nature of similar marks in
use on similar goods [or services].”’ DuPont, 177 USPQ at 567.
While acknowledging that there is no evidence in the record on this factor,
Opposer submits that the evidence weighs in its favor. Applicant, on the other hand,
points to the existence of another user of SWAN SONG.9 We find this DuPont factor
neutral.
G. Nature and Extent of any Actual Confusion
The seventh DuPont factor considers the nature and extent of any actual
confusion. DuPont, 177 USPQ at 567.

9 Applicant argues that there is a use of SWAN SONG in Japan. Aside from this being mere
argument, the sixth factor considers use in the United States, not foreign use.
Opposition No. 91240005
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As Opposer points out, there is no evidence of actual confusion. This DuPont factor
also is neutral.
H. Any Other Established Fact Probative of the Effect of Use
Another DuPont factor discussed by the parties is whether Applicant acted in bad
faith in seeking registration of its involved mark. Under the thirteenth DuPont factor,
evidence of an applicant’s bad faith adoption of its mark is relevant to our likelihood
of confusion analysis. L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1890 (TTAB
2008). Establishing bad faith requires a showing that the applicant intentionally
sought to trade on the opposer’s good will or reputation. See Big Blue Products Inc. v.
International Business Machines Corp., 19 USPQ2d 1072, 1076 (TTAB 1991).
As probative of bad faith, Opposer points to Applicant’s “course of conduct” in
filing a second application for the same mark for nearly identical goods after
abandoning its earlier application due to the USPTO’s refusal of registration, where
Opposer’s registration was cited against that application under Section 2(d).
Applicant argues that the rejection of the prior application was based on phono-
preamplifiers, omitted from the current application, which Applicant no longer
manufactures due to a change in business focus.
Applicant’s re-filing of an application after abandoning an earlier application is
insufficient evidence from which to infer that Applicant intended to trade on
Opposer’s goodwill. A finding of bad faith must be supported by evidence of an intent
to confuse, rather than mere knowledge of another’s mark or even an intent to copy.”
See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 92 USPQ2d 1769,
Opposition No. 91240005
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1782 (2d Cir. 2009) (“[T]he only relevant intent is intent to confuse. There is a
considerable difference between an intent to copy and an intent to deceive.”)).
The existence of only one abandoned application to register the same mark for
nearly identical goods does not support an inference that Applicant has engaged in a
pattern of bad faith conduct. Cf. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1442
(TTAB 2012) (applicant demonstrated a pattern of filing applications to register
various well-known marks with the intention to trade off of opposer’s famous marks).
Although the evidence indicates that Opposer’s registration was cited against
Applicant’s earlier filed application as the blocking registration, it is apparent from
Applicant’s answer and its arguments in its brief that it believed the parties’ goods
were different and the marks were different (because Applicant had not adopted
Opposer’s manner of display) such that there would be no confusion among the public.
Therefore, it is the opinion of Swan Song Audio LLC that
the two marks can coexist as Swan Song Inc and Swan
Song Audio LLC are not in the same business. Swan Song
Inc does not make records, manage artists, manufacturer
and distribute audio reproduction equipment, and is not
even directly visible to the modern consumer. Swan Song
Audio LLC has nothing to do with records but does
manufacturer and distribute audio reproduction
equipment and is visable [sic]. Applicant’s Brief at 11
TTABVUE 10.

We find the record insufficient to support a finding of bad faith. Accordingly, we
find this DuPont factor is neutral.
Opposition No. 91240005
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VI. Conclusion
In view of the similarities of the marks, the relatedness of the goods and
overlapping trade channels, we find confusion likely.

Decision: The opposition is sustained and registration to Applicant’s application
Serial No. 87576829 is refused.