Behavioral Recognition Systems, Inc.

Trademark Trial and Appeal Board

Oct 8, 2008

No. 77079919 (T.T.A.B. Oct. 8, 2008)

Mailed: October 8, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Behavioral Recognition Systems, Inc.
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Serial Nos. 77079919 and 77080183
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B. Todd Patterson of Patterson & Sheridan for Behavioral
Recognition Systems, Inc.

Lesley LaMothe, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
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Before Walters, Holtzman and Rogers, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Behavioral Recognition Systems, Inc. has filed
applications to register the standard character mark AISIGHT
and the mark shown below on the Principal Register for
“computer hardware and behavior recognition software which
enables video surveillance cameras to monitor abnormal
behavior,” in International Class 9.1 The design mark
includes the following description: “The mark consists of a

1 Serial Nos. 77079919 and 77080183, both filed January 10, 2007, based
on allegations of a bona fide intention to use the marks in commerce.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 77079919 and 77080183

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rectangle in which appears a capital A and capital I in a
vertical orientation. The letters SIGHT appear to the right
of [the] rectangle.”

The examining attorney has issued a final refusal to
register in each application under Section 2(d) of the
Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s marks so resemble the word mark EYESITE,
previously registered for a variety of goods and services,
shown below, that, if used on or in connection with
applicant’s goods, they would be likely to cause confusion
or mistake or to deceive.
Registration No. 2728551 [registered June 24, 2003; based on
a United Kingdom registration under Section 44(e), with a
claim of priority under Section 44(d)]
Owner: Motion Media Technology Limited
Goods and Services:
“Security and surveillance apparatus, namely burglar and
security alarms, motion sensors, closed circuit television
cameras; Remote audio and video surveillance systems, alarm
verification systems, remote audio and video entry systems
and video traffic monitoring systems, all comprising of
[sic] either closed circuit television cameras, or burglar
and security alarms, or motion sensors, or photographic and
video cameras, or video monitors, or video cassette
recorders and players, or radio pagers, or radio telephones
and transmitters, or microphones, or amplifiers, or
speakers, or telephones, or automatic telephone dialers, or
switchboards, or intercoms, or communication servers, or
transmission cables, or computer hardware or software for
Serial No. 77079919 and 77080183

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use in audio and video surveillance and alarm verification;
remote audio and video surveillance systems as above applied
to telehealth, telemedicine, e-health, e-medicine, e-
healthcare and home based telehealthcare; Video conferencing
equipment, namely telephones, video phones and video
monitors; video conferencing equipment, namely telephones,
video phones and video monitors applied to telehealth,
telemedicine, e-health, e-medicine, e-healthcare and home
based telehealthcare; Telecommunication systems comprising
automatic telephone dialers, telephone receivers, telephone
transmitters, telephone answering sets, switchboards,
intercoms, caller identification boxes, facsimile machines,
communication servers, radio pagers, radio telephones,
transmitters; telecommunication systems as above applied to
telehealth, telemedicine, e-health, e-medicine, e-healthcare
and home based telehealthcare; Computer software for
operating, controlling and monitoring audio and video
surveillance systems, alarm verification systems and video
telephony systems, in the fields of security systems and
telephones, radio and video communications; computer
hardware for telephone and video exchange and transmission;
Telecommunication cables, computer and electrical cables and
modems, transmission cables and optical fibres and pertinent
connectors; Photographic cameras, video cameras, digital
cameras, video cassette recorders and players, blank video
cassettes, tape players and recorders, microphones,
amplifiers and speakers; Telephone hand sets, telephone head
sets, keypads, display apparatus, namely monitors, slide
projectors, photographic projectors, projection screens and
television sets; Parts, modules and components for the
aforesaid goods,” in International Class 9.

“Security and surveillance apparatus, namely burglar and
security alarms, motion sensors, closed circuit television
cameras; Remote audio and video surveillance systems, alarm
verification systems, remote audio and video entry systems
and video traffic monitoring systems, all comprising of
[sic] either closed circuit television cameras, or burglar
and security alarms, or motion sensors, or photographic and
video cameras, or video monitors, or video cassette
recorders and players, or radio pagers, or radio telephones
and transmitters, or microphones, or amplifiers, or
speakers, or telephones, or automatic telephone dialers, or
switchboards, or intercoms, or communication servers, or
transmission cables, or computer hardware or software for
use in audio and video surveillance and alarm verification;
remote audio and video surveillance systems as above applied
to telehealth, telemedicine, e-health, e-medicine, e-
healthcare and home based telehealthcare; Video conferencing
equipment, namely telephones, video phones and video
Serial No. 77079919 and 77080183

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monitors; video conferencing equipment, namely telephones,
video phones and video monitors applied to telehealth,
telemedicine, e-health, e-medicine, e-healthcare and home
based telehealthcare; Telecommunication systems comprising
automatic telephone dialers, telephone receivers, telephone
transmitters, telephone answering sets, switchboards,
intercoms, caller identification boxes, facsimile machines,
communication servers, radio pagers, radio telephones,
transmitters; telecommunication systems as above applied to
telehealth, telemedicine, e-health, e-medicine, e-healthcare
and home based telehealthcare; Computer software for
operating, controlling and monitoring audio and video
surveillance systems, alarm verification systems and video
telephony systems, in the fields of security systems and
telephones, radio and video communications; computer
hardware for telephone and video exchange and transmission;
Telecommunication cables, computer and electrical cables and
modems, transmission cables and optical fibres and pertinent
connectors; Photographic cameras, video cameras, digital
cameras, video cassette recorders and players, blank video
cassettes, tape players and recorders, microphones,
amplifiers and speakers; Telephone hand sets, telephone head
sets, keypads, display apparatus, namely monitors, slide
projectors, photographic projectors, projection screens and
television sets; Parts, modules and components for the
aforesaid goods,” in International Class 38.

“Consultation services relating to the design, installation
and operation of telecommunications systems and networks;
consultation in the field of telecommunications design and
product development; leasing of surveillance apparatus;
remote visual and audio monitoring of alarm systems;
monitoring burglar and security alarms.” In International
Class 42.

Applicant has appealed the refusal in each application
and both applicant and the examining attorney have filed
briefs in these cases. In view of the common issues of law
and fact, we have considered and determined the refusals to
register in each application in this single opinion.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
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confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.
Regarding, first, the marks, the examining attorney
contends that the only phonetic difference between
applicant’s marks and the registered mark is the letter “A,”
that this will not affect the pronunciation of applicant’s
mark to any significant degree, and that, therefore, the
marks are likely to be perceived as phonetically equivalent;
that, visually, the “A” in applicant’s mark is insufficient
to distinguish the marks and, while the words EYESITE and
AISIGHT are visually different, they are identical in
connotation.
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Applicant acknowledges that “eyesite” is a common
misspelling of “eyesight,” but contends that the prefix “AI”
distinguishes the marks visually because it is distinctive
and the dominant portion of its mark, arguing that SIGHT and
SITE are suggestive of surveillance equipment. Applicant
contends that the marks are likely to be perceived as
aurally different because the prefix of its marks is likely
to be pronounced with a long “A” and long “I” sound, but
applicant acknowledges that there is no correct
pronunciation of a mark and that "a host of other
pronunciations are possible and likely." (Brief, p. 5.)
Finally, applicant contends that the connotations of the
marks differ, arguing that the registered mark, EYESITE, is
likely to be perceived as suggestive of surveillance
equipment, whereas its marks are “not necessarily suggestive
of applicant’s goods, particularly in light of the variety
of potential pronunciations” and that “a potential customer
could even understand applicant’s proposed mark as
suggesting artificial intelligence (A-I-SIGHT), a
connotation not readily identifiable with the registered
mark.” (Brief, p. 6.)
We agree with applicant that the marks have the noted
differences. However, these differences are not sufficient
to distinguish them. The question is not whether the marks
can be distinguished when they are compared side-by-side,
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but whether the marks convey similar commercial impressions,
such that consumers will view the marks as indicating
services emanating from the same source. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). The
focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression
of trademarks. Nike Inc. v. WNBA Enter. LLC, 85 USPQ2d
1187, 1199-1200 (TTAB 2007).
As applicant admits, “sight” and “site” are likely to
be perceived as equivalent. As noted, there is no one
correct pronunciation of a trademark, and the “AI” prefix to
applicant’s marks may be subject to several pronunciations,
including “long A followed by long I,” “long A,” or “long
I.” See In re Teradata Corp., 223 USPQ 361, 362 (TTAB
1984). However, because the “AI” prefix is followed by the
word SIGHT and “eyesight” is a common word, consumers are
likely to perceive of applicant’s marks as equivalent to the
word “eyesight.” This is particularly true with applicant’s
design mark, in which the letter “I” is the largest letter
in the mark and the first letter “A” is so small as to
appear to be a dot over the “I.” The additional design
elements in applicant’s design mark are minimal and the dark
rectangle merely highlights the initial “I” in applicant’s
mark. The registered mark is in standard character format
and, thus, registrant could conceivably display its mark in
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any manner, including using the same font and contrasting
letters that appear in applicant’s design mark. 37 C.F.R. §
2.52(a); In re Pollio Dairy Products Corp., 8 USPQ2d 2012,
2015 (TTAB 1988) (when registering mark in block letters,
registrant remains free to change the display of its mark at
any time).
We find that applicant’s marks and the registered mark,
when viewed in their entireties, are quite similar in terms
of appearance, sound, connotation and commercial impression.
Turning, next, to consider the goods and services
involved in this case, the examining attorney contends that
the goods are closely related. The examining attorney
submitted excerpts “from three online retail establishments
that offer security surveillance systems which include
surveillance equipment, computer hardware and behavior
recognition software”; and concluded that “[t]he evidence
demonstrates that companies offering remote video
surveillance systems realize the importance of including
behavior recognition software as an added component to
surveillance systems to improve quality, promote efficiency
and allow for rapid response” and that “[c]learly, the goods
of applicant and registrant overlap, are complementary, are
used together and travel in the same trade channels to the
same class of purchaser.” (Brief, unnumbered p. 12.)
Serial No. 77079919 and 77080183

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Following are excerpts from the evidence submitted by the
examining attorney:
www.video-surveillance-guide.com – “Video
surveillance technology used to be rather
simplistic. That is simply not the case anymore.
… The latest advancement in video security systems
is the integration of behavior recognition
capabilities.”

www.oki.com – press release – “Oki Electric
Industry Co., Ltd. today announced it has added a
‘Behavior Recognition Function’ to its remote
video surveillance system, VisualCast®SS. This
new function detects and alerts suspicious
behavior and intrusions.”

www.securitysales.com – “Sophisticated behavior
recognition software available today – also
generically called intelligent video – can
recognize a human being, distinguish the person
from an inanimate object and accurately determine
the number of people in the camera area, where
they are going, and where they have been.”

Applicant contends that the respective goods are
“clearly distinguishable, particularly in the mind of a
potential customer.” (Brief, p. 6.) Applicant states that
the registration “clearly describes typical security and
surveillance equipment used primarily for the protection of
a facility, such as a store or office building. In
contrast, applicant’s mark is strictly associated with more
advanced technology, i.e., behavior recognition software.
Behavior recognition is an emerging technology for advanced
monitoring systems and particularly sophisticated
customers.” (Brief, p. 7.) Applicant states that its
software “recognizes, remembers and tracks objects frame by
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frame in order to learn what is normal or ‘acceptable’
behavior or patterns for a given situation. While security
monitoring is one potential use of the system, other example
situations include traffic monitoring or swimming pool
monitoring for abnormal behavior such as a traffic accident
or a person not moving in a pool.” (Response, August 28,
2007.) Applicant submitted a definition of “abnormal” as
“not typical, usual, or regular; not normal; deviant.” (The
American Heritage Dictionary of the English Language, 4th
ed. 2000, www.bartleby.com.) Applicant concludes that the
potential customers of the respective goods are different;
and that these customers would not expect the respective
goods to be produced by the same manufacturer.
The question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computers Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Further, it is a general rule that goods or services need
not be identical or even competitive in order to support a
Serial No. 77079919 and 77080183

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finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer or
that there is an association between the producers of the
parties’ goods or services. In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991), and cases cited therein; and Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002).
Registrant’s International Class 9 goods include
“surveillance apparatus,” “remote audio and video
surveillance systems,” “computer hardware or software for
use in audio and video surveillance,” among other goods.
Based on the evidence of record and applicant’s own
statements, these identified goods clearly encompass
applicant’s identified “computer hardware and behavior
recognition software which enables video surveillance
cameras to monitor abnormal behavior.” Behavior recognition
software is a component of sophisticated video surveillance
systems. To this extent, applicant’s and registrant’s goods
are legally identical. The registrant’s goods are not
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limited so as to exclude behavior recognition software, as
applicant argues.
Further, inasmuch as the identifications of goods in
both the involved application and the cited registrations
are not limited to any specific channels of trade, we
presume an overlap and that these identical goods would be
offered in all ordinary trade channels for these goods and
to all normal classes of purchasers. See In re Linkvest
S.A., 24 USPQ2d 1716 (TTAB 1992). In other words, we
presume the customers and trade channels for both
applicant’s and registrant’s surveillance systems
incorporating behavior recognition software are the same.
Applicant contends that, by their nature, its goods are
advanced, complicated and expensive systems that are
purchased with care by sophisticated buyers; that applicant
must install and extensively train its customers on the use
of its systems. We do not dispute this contention, but
because the marks are so similar, and the goods are in part
legally identical, even sophisticated and careful purchasers
are not immune to source confusion.
When we consider the record and the relevant likelihood
of confusion factors, and all of applicant's arguments
relating thereto, including those arguments not specifically
addressed herein, we conclude that in view of the
substantial similarity in the commercial impressions of
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applicant’s marks, AISIGHT, both in standard character and
design formats, and registrant’s mark, EYESITE, their
contemporaneous use on the related goods and services
involved in this case is likely to cause confusion as to the
source or sponsorship of such goods and services.
Further, to the extent that any doubts might exist as
to the correctness of this conclusion, we resolve such
doubts against applicant. See Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698
(Fed. Cir. 1992); Ava Enterprises Inc. v. Audio Boss USA
Inc., 77 USPQ2d 1783 (TTAB 2006); Baseball America Inc. v.
Powerplay Sports Ltd., 71 USPQ2d 1844 (TTAB 2004).
Decision: The refusal under Section 2(d) of the Act is
affirmed in each of the two applications herein.