Amazon Technologies, Inc.v.Foxconn Interconnect Technology Limited

Trademark Trial and Appeal Board

Apr 9, 2020

91236517 (T.T.A.B. Apr. 9, 2020)

Mailed: April 9, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Amazon Technologies, Inc.
v.
Foxconn Interconnect Technology Limited
_____

Opposition No. 91236517
_____

Christopher T. Varas of Kilpatrick Townsend & Stockton LLP
for Amazon Technologies, Inc.

Morton J. Rosenberg, Nicole B. Rackiewicz, and Christopher D. Reaves of Rosenberg,
Klein & Lee for Foxconn Interconnect Technology Limited.
_____

Before Kuhlke, Bergsman and English, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Foxconn Interconnection Technology Limited (Applicant) seeks registration on the
Principal Register for the mark DUOECHO (stylized), reproduced below, for the
products listed below:
Amplifiers; cabinets for loudspeakers; acoustic
diaphragms; headphones; horns for loudspeakers;
loudspeakers; microphones; sound transmitting
This Opinion Is Not a
Precedent of the TTAB
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apparatus; megaphones; portable media players, in
International Class 9.1

The mark consists of the stylized word “Duoecho.” Applicant does not claim color as
a feature of the mark.
Amazon Technologies, Inc. (Opposer) filed a Notice of Opposition against the
registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), alleging that Applicant’s mark so resembles Opposer’s ECHO and
AMAZON ECHO marks for, inter alia, “personal assistant and ‘smart’ voice-
controlled speaker devices that can wirelessly deliver content, stream audio, and
feature a host of other useful and entertaining skills” as to be likely to cause
confusion.2 Opposer pleaded ownership of eight prior-filed applications for ECHO or

1 Application Serial No. 87284546, filed December 29, 2016, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming first use of the mark anywhere and in
commerce as of July 1, 2016. During the course of this proceeding, Applicant filed a motion
to amend the filing basis of its application to Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b) (intent to use). 18 TTABVUE. The Board granted Applicant’s motion.
19 TTABVUE.
2 Notice of Opposition ¶2 (1 TTABVUE 12). Opposer also pleaded a claim of dilution that it
did not argue in its brief. Accordingly, we hold that Opposer waived its dilution claim.
Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013)
(petitioner’s pleaded descriptiveness and geographical descriptiveness claims not argued in
brief deemed waived), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1426 n.3 (TTAB 2013) (opposer’s pleaded
descriptiveness claim not argued in brief deemed waived); SwatchAG (Swatch SA) (Swatch
Ltd.) v. M.Z. Berger & Co., 108 USPQ2d 1463, 1465 n.3 (TTAB 2013) (opposer’s pleaded
claims not argued in its brief deemed waived), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed.
Cir.2015).
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AMAZON ECHO. After the Board instituted this proceeding, the USPTO issued the
five registrations listed below:3
•Registration No. 5469992 for the mark ECHO, in standard character form, for,
inter alia, “audio players and recorders, media players and recorders, power adapters
and remote controls for smart audio speakers,” in International Class 9;4
•Registration No. 5470187 for the mark ECHO, in standard character form for,
inter alia, “cloud-connected and voice controlled smart audio speakers,” in
International Class 9;5
•Registration No. 5469991 for the mark AMAZON ECHO, in standard character
form, for, inter alia, “audio players and recorders, media players and recorders, power
adapters and remote controls for smart audio speakers,” in International Class 9;6
•Registration No. 5392405 for the mark AMAZON ECHO, in standard character
form, for, inter alia, “voice controlled personal assistant devices integrating services
provided via apps and software applications, cloud-connected and voice controlled
smart audio speakers,” in International Class 9;7 and

3 If a party pleads a pending application in the notice of opposition, it may make the resulting
registration of record at trial without having to amend its pleading to assert reliance on the
registration. See UMG Recordings, Inc. v. Charles O’Rourke, 92 USPQ2d 1042, 1045 n.12
(TTAB 2009).
The USPTO also issued Registration Nos. 4760324 and 4760325 but those registrations are
for disparate services that do not move this case forward. Therefore, we give the marks and
services in those two registrations no further consideration.
4 Registered May 15, 2018, based on Serial No. 86616053 filed April 30, 2015.
5 Registered May 15, 2018, based on Serial No. 86982507 filed April 30, 2015.
6 Registered May 15, 2018, based on Serial No. 86616046 filed April 30, 2015.
7 Registered January 30, 2018, based on Serial No. 86982481 filed April 30, 2015.
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•Registration No. 5688421 for the mark AMAZON ECHO, in standard character
form, for, inter alia, “computer hardware consisting of stand-alone voice controlled
information devices, namely, cloud-connected and voice-controlled smart audio
speakers with virtual assistant capabilities,” in International Class 9.8
Applicant, in its Answer, denied the salient allegations in the Notice of Opposition.
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 subject application.
In addition, the parties stipulated that the specimens of use in Opposer’s pleaded
applications (now registrations) and Applicant’s application are authentic and
admissible to show how the parties use the marks on the products.9
A. Opposer’s evidence
1. Notice of reliance on copies of Opposer’s pleaded registrations printed
from the USPTO Trademark Status and Document Retrieval System
(TSDR) showing the current status of and title to the registrations;10

2. Notice of reliance on the following:

a. Applicant’s responses to Opposer’s first set of interrogatories;11

b. Applicant’s supplemental responses to Opposer’s first set of
interrogatories;12

8 Registered March 5, 2019, based on Serial No. 86447411 filed November 6, 2014.
9 32 TTABVUE.
10 33 TTABVUE.
11 34 TTABVUE 19-35.
12 34 TTABVUE 37-54.
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c. Applicant’s responses to Opposer’s requests for admission;13

d. Applicant’s supplemental response to Opposer’s requests for
admission;14

e. Applicant’s responses to Opposer’s request for production of
documents;15 and

f. Applicant’s supplemental responses to Opposer’s request for
production of documents.16

3. Notice of reliance on screenshots of websites purportedly showing the
use of the marks ECHO and AMAZON ECHO and public recognition of
those marks;17 and

13 34 TTABVUE 154-180. The proffering party may not introduce denials to admission
requests under notice of reliance. Trademark Rule 2.120(k)(3)(i), 37 C.F.R. § 2.120(k)(3)(i);
N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501 n.11 (TTAB 2015)
(Board considered only opposer’s admissions, not denials, in response to applicant’s requests
for admission); Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1477 (TTAB 2014) (concurrent
use defendant’s objection to submission of denial to admission request sustained; “rule does
not extend to denials”); Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1957 (TTAB
2008) (denials to requests for admission inadmissible). “[U]nlike an admission (or a failure to
respond which constitutes an admission), the denial of a request for admission establishes
neither the truth nor the falsity of the assertion, but rather leaves the matter for proof at
trial. Cf. Fed. R. Civ. P. 36(b).” Life Zone Inc. 87 USPQ2d at 1957 n.10.
14 34 TTABVUE 182-208.
15 34 TTABVUE 222-232. Responses to a request for production of documents introduced
through a notice of reliance are admissible solely for purposes of showing that a party has
stated that there are no responsive documents; documents produced in response to the
requests are generally not admissible by notice of reliance alone. Trademark Rule
2.120(j)(3)(ii), 37 C.F.R. § 2.120(j)(3)(ii); see also City Nat’l Bank v. OPGI Mgmt. GP
Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674 n.10 (TTAB 2013) (responses to document
production requests are admissible solely for purposes of showing that a party has stated
that there are no responsive documents); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d
1036 n.7 (TTAB 2012) (written responses to document requests indicating that no documents
exist may be submitted by notice of reliance); Calypso Tech. Inc. v. Calypso Capital Mgmt.
LP, 100 USPQ2d 1213, 1217 n.8 (TTAB 2011); Nike Inc. v. Maher, 100 USPQ2d 1018, 1020-
21 n.2 (TTAB 2011); Spirits Int’l B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim Satis
Kooperatifleri Birligi, 99 USPQ2d 1545, 1547-48 n.5 (TTAB 2011); L.C. Licensing Inc. v.
Berman, 86 USPQ2d 1883 n.5 (TTAB 2008).
16 34 TTABVUE 234-244.
17 35 TTABVUE.
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4. Notice of the reliance on the specimens of use in Opposer’s pleaded
applications (now registrations) and Applicant’s application.18

B. Applicant’s evidence
1. Notice of reliance on copies of third-party registrations consisting of the
word “Echo” or a variation thereof;19

2. Notice of reliance on screenshots of webpages of third parties selling
products on Opposer’s AMAZON.COM website that consist of the word
“Echo” or variations thereof;20 and

3. Notice of reliance on decisions from the Japanese and Chinese patent
offices purportedly to show that Applicant’s mark is not similar to
Opposer’s marks and that Opposer’s marks are not famous.21

II. Standing
Standing is a threshold issue which plaintiffs must prove in every inter partes
case. To establish standing in an opposition or cancellation proceeding, a plaintiff
must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable basis’ for
its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270,
111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports, Inc., v. Lacy,

18 36 and 37 TTABVUE. As noted above, the parties stipulated that the specimens are
admissible. 32 TTABVUE.
19 38 TTABVUE.
20 39 TTABVUE.
21 40 TTABVUE. Trademark rights are territorial in nature and the protection of a trademark
in a certain country depends exclusively on the law of that country. See Miles Labs., Inc. v.
Int’l Diagnostic Tech., Inc., 220 USPQ 438, 445 (TTAB 1983), aff’d, 746 F.2d 798, 223 USPQ
977 (Fed. Cir. 1984). Accordingly, information and decisions relative to trademark disputes
in foreign jurisdictions are not controlling on a determination of a party’s right to register in
the United States. See Boston Chicken Inc. v. Boston Pizza Int’l Inc., 53 USPQ2d 1053, 1055
(TTAB 1999); Societe Civile des Domaines Dourthe Freres V. S.A. Consortium Vinicole de
Bordeaux et de la Gironde, 6 USPQ 1205 (TTAB 1988); Faberge, Inc. v. Dr. Bador GmbH &
Co., 219 USPQ 848 (TTAB 1983); Beck & Co. v. Package Distribs. of Am., Inc., 198 USPQ 573,
575 n. 4 (TTAB 1978); Hiram Walker & Sons, Inc. v. Canadian Distilleries Ltd., 176 USPQ
156 (TTAB 1972). Accordingly, we do not consider these decisions.
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102 USPQ2d at 1041); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025
(Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982). The Court of Appeals for the Federal Circuit has enunciated
a liberal threshold for determining standing in Board proceedings. Ritchie, 50
USPQ2d at 1030.
Opposer has established its standing by properly introducing into evidence its
pleaded registrations showing the status of the registrations and their title in
Opposer. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1844 (Fed. Cir. 2000) (plaintiff’s two prior registrations suffice to establish plaintiff’s
direct commercial interest and its standing); N.Y. Yankees P’ship v. IET Prods. &
Servs., Inc., 114 USPQ2d at 1501. Applicant, in its brief, did not challenge Opposer’s
standing.
III. Priority
Because Opposer’s pleaded registrations are of record, and Applicant has not
counterclaimed to cancel any of them, priority is not at issue with respect to the
marks and goods identified in the registrations. Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974)).
IV. Likelihood of Confusion
We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113
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USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen DuPont
factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests. Inc.,
105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997), quoting DuPont, 177 USPQ
at 567). “Not all of the DuPont factors are relevant to every case, and only factors of
significance to the particular mark need be considered.” Cai v. Diamond Hong, Inc.,
901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). See also M2 Software,
Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006);
ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)
(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”). “Each case must be decided on its
own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde,
475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”). See also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
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likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. The similarity or dissimilarity and nature of the goods.
As noted above, Applicant is seeking to register its mark for, inter alia, sound
transmitting apparatus and portable media players. Opposer’s Registration No.
5469992 for the mark ECHO and Registration No. 5469991 for the mark AMAZON
ECHO are registered for, inter alia, media players. Opposer’s media players
encompass Applicant’s portable media players. See In re Solid State Design Inc., 125
USPQ2d 1409, 1412-15 (TTAB 2018) (where the goods in an application or
registration are broadly described, they are deemed to encompass all the goods of the
nature and type described therein); In re Hughes Furniture Indus., Inc., 114 USPQ2d
1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture.’”).
Likewise, Applicant’s sound transmitting apparatus encompasses (i) audio
players in Opposer’s Registration No. 5469992 for the mark ECHO and Registration
No. 5469991 for the mark AMAZON ECHO, (ii) “cloud-connected and voice controlled
smart audio speakers” in Opposer’s Registration No. 5470187 for the mark ECHO
and Registration No. 5392405 for the mark AMAZON ECHO and (iii) “cloud-
connected and voice-controlled smart audio speakers with virtual assistant
capabilities” in Opposer’s Registration No. 5688421 for the mark AMAZON ECHO.
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Under this DuPont factor, Opposer need not prove, and we need not find,
similarity as to each product listed in the description of goods. It is sufficient to find
there is a likelihood of confusion where any item encompassed by the identification
of goods in a particular class in the application and registration are related. Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 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); In re Aquamar, Inc., 115 USPQ2d 1122,
1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if
relatedness is established for any item encompassed by the identification of goods
within a particular class in the application.”).
Applicant argues that there are obvious visual differences between the products
of the parties such that “it is plain that the average consumer would not mistake
Opposer’s goods for Applicant’s, or vice versa, based on their appearance.”22 The
problem with this argument is that the issue is not whether purchasers would confuse
the parties’ goods, but rather whether there is a likelihood of confusion as to the
source of these goods. See In re Cook Medical Techs. LLC, 105 USPQ2d 1377, 1380
(TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624
(TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). Further, we must consider
the goods as the parties describe them in the application and registrations. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937,

22 Applicant’s Brief, p. 27 (42 TTABVUE 29).
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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”).
We find that the goods are in part legally identical.
B. Established, likely-to-cont inue channels of trade and classes of consumers.
Because the goods described in the application and Opposer’s registrations are in
part legally identical, we presume that the channels of trade and classes of
purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (identical goods are presumed to travel in same channels of
trade to same class of purchasers) (cited in Cai, 127 USPQ2d at 1801 (“With respect
to similarity of the established trade channels through which the goods reach
customers, the TTAB properly followed our case law and ‘presume[d] that the
identical goods move in the same channels of trade and are available to the same
classes of customers for such goods….’”)); 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); United
Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); Am. Lebanese
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Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022,
1028 (TTAB 2011).
Applicant contends that it is inequitable to consider this factor as favoring
Opposer because Opposer has placed Applicant’s products for sale on its Amazon.com
website and thereby creating a favorable DuPont factor for itself. In other words,
Opposer’s actions have caused the products of the parties to move in the same
channels of trade.23 There are two problems with this argument. First, there is no
testimony explaining how Opposer selects products such as Applicant’s products to
sell on Opposer’s Amazon.com website or whether Applicant or its resellers contacted
Amazon.com. There is only argument by Applicant’s counsel. “Attorney argument is
no substitute for evidence.” Cai, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v.
Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005).
Second, the fact that the parties offer their products for sale on Amazon.com does
not overcome the presumption that in part identical goods are offered in the channels
of trade to the same class of consumers. Further, Applicant’s argument is
counterintuitive because the sale of different products on a website such as
Amazon.com has little probative value because Amazon.com sells virtually
everything. Cf. Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed.
Cir. 2000); (“the law is that products should not be deemed related simply because
they are sold in the same kind of establishments”); Federated Foods, 192 USPQ at 29
(“A wide variety of products, not only from different manufacturers within an

23 Applicant’s Brief, pp. 22-23 and 29-30 (42 TTABVUE 24-25 and 31-32).
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industry but also from diverse industries, have been brought together in the modern
supermarket for the convenience of the customer. The mere existence of such an
environment should not foreclose further inquiry into the likelihood of confusion from
the use of similar marks on any goods so displayed.”); Morgan Creek Prods., Inc. v.
Foria Int’l, Inc., 91 USPQ2d 1134, 1142 (TTAB 2009) (“It has long been held that the
mere fact that two different items can be found in a supermarket, department store,
drugstore or mass merchandiser store is not a sufficient basis for a finding that the
goods are related.”); Shoe Factory Supplies Co. v. Thermal Eng’g Co., 207 USPQ 517,
526 (TTAB 1980) (“This contention [to equate different or unrelated goods by urging
that they are all sold in supermarkets, department stores, and similar
establishments] has been rejected...”).
C. Strength or Weakness of Opposer’s marks.

In determining the strength of a mark, we consider both its inherent strength,
based on the nature of the mark itself, and its commercial strength, based on
marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d
1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both
by its conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-
72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent
strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., 80
USPQ2d 1881, 1899 (TTAB 2006); 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:80 (5th ed. 2020) (“The first enquiry focuses on the inherent
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potential of the term at the time of its first use. The second evaluates the actual
customer recognition value of the mark at the time registration is sought or at the
time the mark is asserted in litigation to prevent another’s use.”). Market strength is
the extent to which the relevant public recognizes a mark as denoting a single source.
Tea Board of India v. Republic of Tea Inc., 80 USPQ2d at 1899.
First, we analyze the inherent or conceptual strength of Opposer’s marks on the
spectrum of distinctiveness. Judge Friendly in Abercrombie & Fitch Co. v. Hunting
World, Inc., 537 F.2d 4, 189 USPQ 759, 764 (2d Cir. 1976), formulated four categories
of trademarks that lie along a spectrum. When arranged “in an ascending order which
roughly reflects their eligibility for trademark status and the degree of protection
accorded,” these four categories are generic, merely descriptive, suggestive, and
arbitrary or fanciful marks. Id. See also In re N.C. Lottery, 866 F.3d 1363, 123
USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing Abercrombie for the four categories of
marks); Chippendales, 96 USPQ2d at 1684 (same).
The RANDOM HOUSE UNABRIDGED DICTIONARY (2020) defines “Echo” as “a
repetition of sound produced by the reflection of sound waves from a wall, mountain,
or other obstructing surface.”24

24 Dictionary.com accessed April 2, 2020. See also Merriam-Webster.com accessed April 2,
2020) (“the repetition of a sound caused by reflection of sound waves.”). The Board may take
judicial notice of dictionary definitions, including online dictionaries that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d
594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96
USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB
2006).
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To show that the word “Echo” is a conceptually weak mark entitled to only a
narrow scope of protection, Applicant introduced 24 third-party registrations
incorporating the word “Echo” or variations thereof that have varying degrees of
probative value based on the relevancy of the description of goods. Third-party
registrations are probative to show the sense in which a mark is used in ordinary
parlance, similar to a dictionary. See Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (citing Tektronix, Inc. v.
Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976) (even if “there is
no evidence of actual use” of “third-party registrations,” such registrations “may be
given some weight to show the meaning of a mark in the same way that dictionaries
are used”). Applicant introduced the third-party registrations listed below:
•Registration No. 3837649 for the mark ECHO for digital audio recorder and
playback player;25
•Registration No. 3842725 for the mark I-ECKO for, inter alia, speakers;26
•Registration No. 4732348 for the mark ECHODESIGN for audio speakers;27
•Registration No. 4550919 for the mark EARJAX ECHO for portable speakers;28
•Registration No. 5561334 for the mark ECHOBOX for earphones, headphones,
and audio speakers;29

25 38 TTABVUE 23.
26 38 TTABVUE 25.
27 38 TTABVUE 54.
28 38 TTABVUE 48.
29 38 TTABVUE 65. Applicant introduced an advertisement for this product posted on
Amazon.com at 39 TTABVUE 32.
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•Registration No. 4239871 for the mark EKO for loudspeakers and amplifiers;30
•Registration No. 5211421 for the mark ECO for, inter alia, loudspeakers and
portable media players;31
•Registration No. 4420324 for the mark ECO for, inter alia, loudspeakers,
amplifiers, CD players, and radio transmitters for automobiles;32
•Registration No. 4865559 for the mark ECHOPARK for musical instrument
amplifiers;33
•Registration No. 4305895 for the mark ECHO METER for audio recorders for
recording wildlife audio signals;34
•Registration No. 4072682 for the mark ECKO-CLIPZ for headphones;35
•Registration No. 4389367 for the mark ECHODESIGN for earbuds, earphones,
and headphones;36
•Registration No. 4426783 for the mark EKOCYCLE for headphones;37
•Registration No. 3718235 for the mark ECHOSONIC for guitar amplifiers;38

30 38 TTABVUE 36.
31 38 TTABVUE 60.
32 38 TTABVUE 43.
33 38 TTABVUE 56.
34 38 TTABVUE 39. Applicant introduced an advertisement for this product posted on
Amazon.com at 39 TTABVUE 21.
35 38 TTABVUE 27.
36 38 TTABVUE 41.
37 38 TTABVUE 46.
38 38 TTABVUE 21. Applicant introduced an advertisement for this product posted on
Amazon.com at 39 TTABVUE 12.
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•Registration No. 4126015 for the mark ECHOSTAR for, inter alia, computer
hardware and software for controlling the operation of audio and video devices and
for playing audio, video, television, and movies;39
•Registration No. 3235450 for the mark ECHOSTOP (Supplemental Register) for
microphones incorporating and for use with acoustic echo cancellers;40 and
•Registration No. 4162632 for the mark ECHOTUBEZ for headsets for cellular or
mobile phones.41
In addition to the third-party use associated with the third-party registrations
noted above, Applicant introduced webpages from Opposer’s AMAZON.COM website
advertising the Dunlop Echoplex delay guitar effects pedal.42
The dictionary definition, third-party registrations, and third-party use show that
the word “Echo” and variations thereof are suggestive of Opposer’s audio players and
recorders, media players, and audio speakers because they convey the commercial
impression of repeating or echoing sound.43
Applicant argues, in essence, that ECHO is not inherently distinctive (i.e., not
suggestive).

39 38 TTABVUE 29.
40 38 TTABVUE 17.
41 38 TTABVUE 32. Applicant introduced an advertisement for this product posted on
Amazon.com at 39 TTABVUE 16.
42 39 TTABVUE 6. According to the advertisement, the ECHOPLEX includes “echo warmth
and modulation” and “varies delay tone from pristine to dark and dirty.” One of the reviews
said that the product is “a sonic sculpting tool.” 39 TTABVUE 8.
43 While arguing that ECHO is an arbitrary mark, Opposer concedes that there is an
argument that ECHO could be suggestive as applied to a smart speaker because it “talks
back.” Opposer’s Brief, p. 21 (41 TTABVUE 27).
Opposition No. 91236517

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Opposer asserts that “the common element of the parties’
marks—ECHO—is inherently distinctive for speakers.” 41
TTABVUE 19 (Brief 13). However, Opposer provides no
evidence for the assertion that “echo” is inherently
distinctive for speakers per se. Indeed, as discussed in
detail below with regard to the sixth DuPont factor, the
assertion is just not true, as “echo” is a relatively common
element in numerous marks for a wide variety of audio
equipment. This is not surprising, as an “echo” intrinsically
relates to sound, and is easily associated with goods having
to do with sound or anything audible, in the minds of both
consumers and product manufacturers.44
However, we cannot consider an argument that Opposer’s ECHO marks are not
inherently distinctive (i.e., they are descriptive or generic) when Applicant has not
filed petitions to cancel the marks in Opposer’s pleaded applications/registrations.
See Trademark Rule 2.106(b)(3)(ii), 37 C.F.R. § 2.106(b)(3)(ii) (“An attack on the
validity of a registration pleaded by an opposer will not be heard unless a
counterclaim or separate petition is filed to seek the cancellation of such
registration.”). The registrations of the marks in Opposer’s pleaded applications (now
registrations) are prima facie evidence of the validity of the registered marks and of
the registration of the marks, of Opposer’s ownership of the marks, and of Opposer’s
exclusive right to use the registered marks in commerce on or in connection with the
goods specified in the registrations. Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b).
We now turn to the commercial strength of Opposer’s marks ECHO and AMAZON
ECHO. Opposer, in its Notice of Opposition, alleges, “ECHO has become famous in

44 Applicant’s Brief, p. 24 (42 TTABVUE 26).
Opposition No. 91236517

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the minds of consumers.”45 Opposer also argues, in its brief, that both marks are
strong and famous.46 Fame, if it exists, plays a dominant role in the likelihood of
confusion analysis because famous marks enjoy a broad scope of protection or
exclusivity of use. A famous mark has extensive public recognition and renown. Bose
Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir.
2002); Recot Inc. v. M.C. Becton, 54 USPQ2d at 1897; Kenner Parker Toys, Inc. v. Rose
Art Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).
We may measure fame indirectly by the volume of sales of and advertising
expenditures for the goods and services identified by the marks at issue, “the length
of time those indicia of commercial awareness have been evident,” widespread critical
assessments and through notice by independent sources of the products identified by
the marks, as well as the general reputation of the products and services. Bose Corp.
v. QSC Audio Prods. Inc., 63 USPQ2d at 1305-06 and 1309.
Because of the extreme deference that we accord a famous mark in terms of the
wide latitude of legal protection it receives, and the dominant role fame plays in the
likelihood of confusion analysis, the party asserting that its mark is famous has the
duty to prove it clearly. Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1720 (Fed. Cir. 2012) (citing Leading Jewelers Guild Inc. v. LJOW
Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007)).

45 Notice of Opposition ¶8 (1 TTABVUE 19).
46 Opposer’s Brief, pp. 18-24 (41 TTABVUE 24-30).
Opposition No. 91236517

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Finally, in the likelihood of confusion analysis, “fame ‘varies along a spectrum
from very strong to very weak.’” Joseph Phelps Vineyards, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
Opposer introduced the evidence discussed below to prove its ECHO and
AMAZON ECHO marks are famous. The evidence we list below is representative of
unsolicited media attention about AMAZON ECHO and ECHO products posted on
websites comprising product reviews, sales, and announcements about design
awards. When reviewing this evidence, we keep in mind that evidence posted on
websites has limited probative value because it is admissible only to show what is
printed, not the truth of what is printed. See Safer Inc. v. OMS Investments Inc., 94
USPQ2d 1031, 1040 (TTAB 2010). In other words, the articles themselves do not
prove the extent of sales, product features, awards, etc. stated therein; the articles
are proof only that those statements were printed (e.g., what the author wrote and
what was read).
•“Amazon has sold more than 100 million Alexa devices,” CNET.com (January 4,
2019).
Holiday sales of the Echo Dot also exceeded Amazon’s
expectations.
Amazon has sold more than 100 million devices with its
Alexa smart assistant built in.
Sales of the Echo Dot during the holidays also exceeded
Amazon’s expectations, the company said. In addition,
nearly one million people signed up to receive invites to buy
the Echo Auto, a dash-mounted device that brings location-
sensitive Alexa functionality to any car.
Opposition No. 91236517

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* * *
Last month, Amazon released vaguer year-end stats about
its Alexa smart assistant and Amazon Echo devices. It said
the number of people who use Alexa every day – and who
own more than one Echo device – doubled in 2018. It also
said it sold tens of millions of Echo devices last year.47
•“Everything you need to know about the Amazon Echo,” CNET.com (September
21, 2018)
The Amazon Echo is the biggest tech breakout in recent
memory - - a voice activated, internet-connected “smart
speaker” with a built-in virtual assistant named Alexa that
can answer your questions, follow your instructions and
control your smart home devices. As Amazon likes to put
it, the Echo is a Star Trek computer for your home.
Now approaching its fourth year, the Echo and its multiple
offshoots, including the mini-sized Echo Dot and the
touchscreen-equipped Echo Show, have found their way
into millions of homes around the world.48
* * *
After the Echo became a clear hit with the mainstream,
Amazon doubled down and began releasing a number of
offshoot devices designed to broaden the appeal of Alexa’s
voice interface. All of them offer the same Alexa features in
different packages and with different features that might
interest different kinds of people.49
* * *
The Echo had the market to itself for about a year before
any real competition showed up. But these days, the smart
speaker category is about as crowded as it gets.
[Competitors include GOOGLE HOME smart speaker,
APPLE Siri-activated HomePod, HARMON KARDON

47 35 TTABVUE 136.
48 35 TTABVUE 20.
49 35 TTABVUE 22.
Opposition No. 91236517

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Cortana-powered Invoke smart speaker, and third-party
speakers such as SONOS ONE smart speaker].50
* * *
The easiest place to get one of Amazon’s Echo devices is
from Amazon itself, but you’ll also find them at major
retailers like Best Buy, Bed Bath & Beyond, Staples, Sears
and Home Depo. Amazon is also selling them in-store at
Whole Foods Grocery stores.51
•“T3 Awards 2018: Amazon Echo wins big in Smart Home product gong show,”
T3.com (September 23, 2018), announcing the AMAZON ECHO SPOT of the “Best
Smart Home Tech” award.52
•“Notable Consumer Product Award Core77 Design Awards 2016,”
DesignAwards.core77.com (undated)53
•“Why Amazon’s Echo & Alexa won our Smart Home Platform of the Year award,”
Wareable.com (November 24, 2016), announcing that Amazon Echo and Alexa won
the Wareable Tech award for the Smart Home Platform because they were adept at
pulling together all the devices that comprise a smart home.54
•“Amazon Sells Alexa’s Smart-Home Technology in Lennar Model Homes,”
Bloomberg.com (May 9, 2018)

50 35 TTABVUE 24. “Amazon Sells Alexa’s Smart-Home Technology in Lennar Model
Homes,” Bloomberg.com (May 9, 2018) (5 TTABVUE 28).
“How to set up multiroom music playback with Amazon Echo,” theverge.com (January 17,
2019) refers to SONOS as speakers that are better than ECHO or AMAZON ECHO speakers.
51 35 TTABVUE 25.
52 35 TTABVUE 148-149.
53 35 TTABVUE 142.
54 35 TTABVUE 157.
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Looking to sell its customers on the latest and greatest
smart-home technology, builder Lennar Corp. flirted with
Siri. Now it’s decided to go steady with Alexa.
Lennar’s model homes -- equipped with video doorbells,
Sonos speakers and Amazon.com Inc.’s voice-activated
Echo (known by its wake-word, “Alexa”) -- will double as
Amazon Experience Centers, the tech giant said
Wednesday.55
•PC Mag (pcmag.com) rated AMAZON ECHO and AMAZON ECHO DOT four and
one-half stars out of five in “The Best Smart Speakers for 2019” (January 4, 2019).56
Opposer’s products were the highest rated speakers.
•“Amazon Echo review: A perfect 10,” zdnet.com (December 17, 2014)
When Amazon announced the Echo recently, many didn’t
know what to make of it. The cylindrical tower is an audio
system that is always connected to the web.57
* * *
Should you buy one?
That’s usually the first question I get asked about a new
gadget, and I rarely make recommendations of this nature.
I am making an exception about the Amazon Echo because
I think it can bring great value to most folks. I think most
people will like the Amazon Echo even at full price.
It’s a reasonably goods audio system at its base level, and
the interaction with Alexa adds a lot of value. It is very
useful when you need information to just ask Alexa to get
it. After only a few hours of using the Echo you will likely
find, as I did, that you are already coming to rely on Alexa.
. . .
There’s something about the Amazon Echo that takes me
back to my childhood and having an invisible friend in the

55 35 TTABVUE 28.
56 35 TTABVUE 55.
57 35 TTABVUE 68.
Opposition No. 91236517

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room. I believe that is part of the magic of the Amazon Echo
and Alexa.58
•“The Amazon Echo Is More Than a Bluetooth Speaker -- It’s a Bedtime Buddy,”
Vox.com (February 9, 2015).
With Amazon Echo, it was love at first sight. Make that
technolust: After hearing just the barest inkling of what it
was, I knew it was meant for me.
* * *
But I wouldn’t urge anyone to use the Echo as a primary
music speaker. The sound is good enough, but it’s not
awesome. I prefer the Sonos Play:1 speaker in my bedroom
for a more satisfying listening experience.59
•“Amazon Echo Review: Second Generation, Still in First Place,” Wall Street
Journal (wsj.com) (October 25, 2017).
1. The Echo is the smart-speaker sweet spot.60
* * *
The real reason to buy an Echo has nothing to do with good
looks or mics. It’s all about invisible Alexa.61
•“Review: Why the Amazon Echo (2nd Gen) Is a No-Brainer Buy,” GearPatrol.com
(October 21, 2017).
The Amazon Echo is going on three years old, and even
though it’s only been around for a short time, it has
popularized the idea of a smart speaker in every home. Yet
the competition is fiercer, and voice commands are no
longer a novelty. So, how does the second-generation Echo

58 35 TTABVUE 70-71.
59 35 TTABVUE 75.
60 35 TTABVUE 80.
61 35 TTABVUE 81.
Opposition No. 91236517

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($99) stack up to the Google Home and other, newer smart
speakers – not to mention its predecessor?62
Opposer’s showing of fame is lacking; for example, there is no testimony or
evidence regarding sales, advertising, or market share. That the record is “replete
with product reviews” is unsurprising, especially if it is true that Echo had the market
to itself for about a year before any real competition showed up.63 Moreover, the
reviews of record were limited to online magazines targeting a techno centric
audience in comparison to the popular daily press in metropolitan areas. We find that
the Opposer’s marks fall in the middle of spectrum of from very strong to very weak.
See Joseph Phelps Vineyards, 122 USPQ2d at 1734.
Considering the record as a whole, Opposer’s marks fall within the normal scope
of protection to which inherently distinctive suggestive marks are entitled.
D. The similarity or dissimilarity of the marks.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014)); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d
728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”) (citation omitted).

62 35 TTABVUE 91.
63 35 TTABVUE 24.
Opposition No. 91236517

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In comparing the marks, we are mindful that where, as here, the goods are in part
legally identical, the degree of similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity between the goods. Coach
Servs., 101 USPQ2d at 1721; Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85
USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Prod. Inc. v. Ing-Jing
Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
“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.” Cai, 127 USPQ2d at 1801 (quoting Coach Servs., 101 USPQ2d
at 1721). See also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685
F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v.
JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d
1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer,
who retains a general rather than specific impression of the marks. Geigy Chem.
Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971);
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus.,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are
sound transmitting apparatus, media players, audio players, “cloud-connected and
Opposition No. 91236517

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voice controlled smart audio speakers” and “cloud-connected and voice-controlled
smart audio speakers with virtual assistant capabilities,” the average customer is an
ordinary consumer.
Opposer’s marks are AMAZON ECHO and ECHO both in standard character
form. Applicant’s mark is . Marks presented in standard
characters are not limited to any particular depiction. The rights associated with a
mark in standard characters reside in the wording, and not in any particular display.
Thus, Opposer is entitled to depict its marks in any manner, regardless of the font
style, size, or color, and Opposer may display its marks in a manner similar to
Applicant’s mark. See Viterra, 101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City
Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument
that for purposes of determining whether two marks are similar, a mark in a typed
drawing (equivalent to modern standard character format) is distinct from such mark
in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot
legally be asserted by that party.” (emphasis in original)). Thus, Opposer could
display its ECHO and AMAZON ECHO marks as shown below:

AMAZON
Opposition No. 91236517

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Applicant’s stylized DUOECHO mark incorporates the entirety of Opposer’s
ECHO mark. While there is no explicit rule that we must find the marks similar
where Applicant’s mark incorporates all of Opposer’s mark, the fact that Opposer’s
ECHO mark is subsumed by Applicant’s mark increases the similarity of the two
marks. See, e.g., See China Healthways Inst. Inc. v. Xiaoming Wang, 491 F.3d 1337,
83 USPQ2d 1123, 1125 (Fed. Cir. 2007) (applicant’s mark CHI PLUS is similar to
opposer’s mark CHI both for electric massagers); Coca-Cola Bottling Co. of Memphis,
Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105
(CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water and
ginger ale is likely to cause confusion with BENGAL for gin); In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for
medical magnetic resonance imaging diagnostic apparatus confusingly similar to
TITAN for medical ultrasound diagnostic apparatus); Broadcasting Network Inc. v.
ABS-CBN Int’l, 84 USPQ2d 1560, 1568 (TTAB 2007) (respondent’s mark ABS-CBN
is similar to petitioner’s mark CBN both for television broadcasting services); In re
El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO
COMBOS for food items is similar to MACHO for restaurant entrees).
Applicant’s mark and Opposer’s marks AMAZON
ECHO and ECHO are similar because they share the term “Echo.” Merriam-
Webster.com defines “Duo” as a “duet” or “pair.”64 Applicant advertises its

64 35 TTABVUE 161. Merriam-Webster.com defines a “duet” as “a composition for two
performers.”
Opposition No. 91236517

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DUOECHO speakers as “a pair of sleek design stereo speakers with aluminum body,
4 high-quality speaker drivers delivers stunning stereo sound.”65
About DUOECHO
DUOECHO is an unusual bluetooth speaker. You can enjoy
the stunning stereo field from 2 speakers and carry it as a
single unit with its magnetic connectivity.
Most bluetooth speakers do not offer a true stereo speaker
setup. Our goal was to design an uncompromising high
fidelity stereo experience. Inspired by the simplicity of
bamboo. DUOECHO provides pure and natural sound to
you.66
DUOECHO means two repetitions of sound (i.e., two echoes) and engenders the
commercial impression of stereo sound from two speakers. Consumers may
mistakenly believe that Applicant’s DUOECHO product is a variation or stereo line
of products of the ECHO and AMAZON ECHO products indicating two speakers or
superior stereo sound. In this regard, Applicant’s mark differs from most of the third-
party registrations and uses discussed above because here DUO precedes and
modifies ECHO whereas, in all but two of the other third-party marks, ECHO is the
first term in the mark.

65 Kickstarter.com (35 TTABVUE 166). “The DuoEcho Mark was first used on speakers
introduced through a Kickstarter campaign which launched in the United States at least as
early as July 1, 2016 and Applicant began solicitation of orders from United States consumers
in accordance with the Kickstarter launch.” Applicant’s Supplemental Answer to Opposer’s
Interrogatory No. 2 (34 TTABVUE 40).
66 Kickstarter.com (35 TTABVUE 167).
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We find that Applicant’s mark is similar to
Applicant’s marks AMAZON ECHO and ECHO in their entireties in terms of
appearance, sound, connotation and commercial impression.
E. The lack of any reported instances of actual confusion.67
Applicant is unaware of any reported instances of actual confusion.68 Presumably,
Opposer is unaware of any reported instances of actual confusion because if it were,
Opposer would have introduced testimony or evidence relating to actual confusion.
Nevertheless, the absence of any reported instances of confusion is meaningful only
if the record indicates appreciable and continuous use by Applicant of its mark for a
significant period in the same markets as those served by Opposer under its marks.
Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010),
aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011); Gillette Canada Inc. v. Ranir
Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In other words, for the absence of actual
confusion to be probative, there must have been a reasonable opportunity for
confusion to occur. Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287
(TTAB 2007) (the probative value of the absence of actual confusion depends upon
there being a significant opportunity for actual confusion to have occurred); Red
Carpet Corp. v. Johnstown Am. Enter. Inc., 7 USPQ2d 1404, 1406-1407 (TTAB 1988);

67 The lack of any reported instances of confusion includes DuPont factor 7 (the nature and
extent of any confusion) and DuPont factor 8 (the length of time during and conditions under
which there has been concurrent use without evidence of actual confusion).
68 Applicant’s supplemental responses to Opposer’s Interrogatory Nos. 14 and 15. (34
TTABVUE 47-48).
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Central Soya Co., Inc. v. N. Am. Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he
absence of actual confusion over a reasonable period of time might well suggest that
the likelihood of confusion is only a remote possibility with little probability of
occurring.”).
It is unclear when Applicant began using its DUOECHO (stylized) trademark.
The DuoEcho Mark was first used on speakers introduced
through a Kickstarter campaign which launched in the
United States at least as early as July 1, 2016 and
Applicant began solicitation of orders from United States
consumers in accordance with the Kickstarter launch. The
first speaker bearing the DuoEcho Mark was shipped to the
United States at least as early as January 26, 2017.
Foxconn has not as of this date determined whether the
Kickstarter campaign can be used as a First Use Date in
Commerce and to be completely sure that there is no doubt
as to the First Use Dates, Foxconn amended its Trademark
Application to an Intent to Use Application. When a
determination is made as to the efficacy of the Kickstarter
campaign initialization with respect to First Use Dates,
Foxconn will make a decision of the First Use Date as of
the date of the Kickstarter campaign or at least as early as
January 26, 2017.69
Assuming we use July 1, 2016 as Applicant’s first use date, and since Applicant
served its supplemental interrogatory response on November 23, 2018, there has been
28 months of simultaneous use without any reported instances of actual confusion.
However, with the exception of screenshots of the Kickstarter.com (August 6, 2019),70
Behance.net (August 7, 2019),71 and Amazon.com (August 8, 2018) websites,
Applicant did not introduce any testimony or evidence regarding its sales, advertising

69 Applicant’s supplemental response to Opposer’s interrogatory No. 2 (34 TTABVUE 40-41).
70 34 TTABVUE 40-51.
71 34 TTABVUE 53-57.
Opposition No. 91236517

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or other marketing efforts for its DUOECHO (stylized) products. In other words,
there is no testimony or evidence regarding how long the above-noted websites were
posted, how many people viewed those websites, or if any people who visited those
websites purchased Applicant’s products. Based on this record, we are unable to make
a finding of fact as to whether there has been a reasonable opportunity for confusion
to occur.
This DuPont factor is neutral.
F. Conclusion
Because the marks are similar, the goods are in part legally identical, and there
is an unrebutted presumption that the parties offer their goods in the same channels
of trade to the same classes of consumers, we find that Applicant’s mark
for “amplifiers; cabinets for loudspeakers; acoustic
diaphragms; headphones; horns for loudspeakers; loudspeakers; microphones; sound
transmitting apparatus; megaphones; portable media players” is likely to cause
confusion with Opposer’s registered marks for ECHO and AMAZON ECHO for, inter
alia, media players, audio players, “cloud-connected and voice controlled smart audio
speakers,” and “cloud-connected and voice-controlled smart audio speakers with
virtual assistant capabilities.”
Decision: The opposition is sustained.