Autometric, Inc.

Trademark Trial and Appeal Board

Jun 24, 1997

EX (T.T.A.B. Jun. 24, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB June 24, 1997
Paper No. 15
TJQ
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Autometric, Incorporated
________
Serial No. 74/480,683
_______
Jim Zeeger for applicant.
Esther A. Belenker, Senior Trademark Attorney, Law Office
103 (Kathryn Erskine, Managing Attorney).
_______
Before Simms, Quinn and Hohein, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by Autometric,
Incorporated to register the mark ZOOM 500/SC for
"stereoscope components, namely, modular attachment for
image processing and exploration including computer software
embedded therein."1
The Senior Trademark Attorney has refused registration
under Section 2(d) of the Act on the ground that applicant's

1Application Serial No. 74/480,683, filed January 19, 1994,
alleging dates of first use of January 20, 1992. The word
"zoom" is disclaimed apart from the mark.
Ser No. 74/480,683
2
mark, when applied to applicant's goods, so resembles the
previously registered mark ZOOM 500 for "stereoscopes, light
tables for film transparency viewing and accessories, namely
eyepieces and objectives" as to be likely to cause
confusion.
When the refusal was made final, applicant appealed.2
Applicant and the Senior Trademark Attorney have filed
briefs.
Applicant essentially argues that the term "zoom" lacks
distinctiveness as applied to the goods of registrant and
applicant, and that the marks, when considered in their
entireties as applied to different goods, are not likely to
cause confusion. In support of its arguments, applicant
submitted a dictionary listing for the term "zoom", as well
as eight third-party registrations of marks which include
"zoom" as a part thereof.3 Applicant further maintains that
the goods are bought by sophisticated purchasers.

2The Senior Trademark Attorney also issued a final refusal on
the basis that the specimens were unacceptable because they are
promotional materials that did not show trademark use, and on
the basis that applicant had failed to indicate the meaning of
"500 SC" or "SC." In her appeal brief, the Senior Trademark
Attorney withdrew these final refusals. More specifically, the
Senior Trademark Attorney noted applicant's explanation that the
specimens are point of sale materials which are distributed with
the goods; she also noted that the specimens show a picture of
the goods in close proximity to the mark, and include
information necessary to order the goods. The Senior Trademark
Attorney further accepted applicant's statement that "SC" means
"soft copy."
3During the prosecution phase applicant submitted printouts of
twenty-one third-party registrations retrieved from what appears
to be the USPTO's CD-ROM on registered trademarks. With its
appeal brief applicant filed photocopies of eight of the third-
party registrations. The Senior Trademark Attorney, in her
Ser No. 74/480,683
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The Senior Trademark Attorney contends that the marks
are similar and that the goods are closely related such that
confusion is likely to occur even among sophisticated
purchasers. The Senior Trademark Attorney submitted, with
her appeal brief, a dictionary definition of "stereoscope",
of which we take judicial notice: "An optical instrument
used to impart a three-dimensional effect to two photographs
of the same scene taken at slightly different angles and
viewed through two eyepieces."
A determination of likelihood of confusion requires an
analysis of the relevant factors listed in In re E.I. duPont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
In any likelihood of confusion analysis under Section 2(d)
of the Act, two key considerations are the similarities
between the marks and the similarities between the goods.
With respect to the similarity between the goods,
applicant does not seriously dispute this factor. Indeed,
there is a close relationship between registrant's
stereoscopes and applicant's stereoscope components. The
stereoscopes and components therefor are assumed to move in
the same channels of trade to the same classes of
purchasers.

brief, has considered this evidence to be of record, discussing
the probative value of it.
The submission of third-party registration evidence by way of
a printout from the USPTO's CD-ROM is sufficient to make the
evidence of record. In view thereof, we have considered all of
the third-party registrations made of record by applicant in
reaching our conclusion.
Ser No. 74/480,683
4
We also find that the marks ZOOM 500 and ZOOM 500/SC
are similar. Applicant has adopted the entirety of
registrant's mark and merely added the letters "SC" to it.
And, as disclosed by applicant, these letters mean "soft
copy". This terminology, as shown by applicant's specimens
("For image analysts who want the best of both
worlds...hardcopy and softcopy...in one system."), would
appear to be descriptive as applied to stereoscopes. Thus,
purchasers familiar with registrant's ZOOM 500 stereoscopes
might well believe that applicant's ZOOM 500/SC stereoscope
components originate from the same source; that is, that
applicant's goods are components sold by registrant to
enhance the softcopy capability of registrant's
stereoscopes. Simply put, the marks in their entireties
sound alike, look alike, and have similar connotations as
applied to the goods of registrant and applicant.
The third-party registrations do not compel a different
result. We acknowledge the dictionary definition of the
term "zoom" and the descriptiveness/suggestiveness of the
term "zoom" for these types of goods. As often stated,
however, the registratios do not show the extent of actual
use of the registered marks or of the familiarity of the
relevant purchasing public with them. Smith Brothers Mfg.
Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 462-463
(CCPA 1973). In any event, we note that none of the
registrations is for stereoscopes.
Ser No. 74/480,683
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We recognize applicant's point that purchasers of
registrant's and applicant's goods are sophisticated.
However, even sophisticated purchasers are not immune from
source confusion. We find this to be especially the case
here where the marks are so similar and the goods are
closely related.
To the extent that any of the points raised by
applicant cast doubt on our decision, we resolve that doubt,
as we must, in favor of the prior registrant. In re Hyper
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir.
1988).
We conclude that purchasers familiar with registrant's
stereoscopes and related goods sold under the mark ZOOM 500
would be likely to believe, upon encountering applicant's
mark ZOOM 500/SC for stereoscope components, namely, modular
attachment for image processing and exploration including
computer software embedded therein, that the goods
originated with or are somehow associated with or sponsored
by the same source.
Ser No. 74/480,683
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Decision: The refusal to register is affirmed.
R. L. Simms
T. J. Quinn
G. D. Hohein
Administrative Trademark Judges
Trademark Trial and Appeal Board
Ser No. 74/480,683
7