Brigade Electronics plc

Trademark Trial and Appeal Board

Jan 12, 2007

No. 79006447 (T.T.A.B. Jan. 12, 2007)

Mailed: January 12, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Brigade Electronics plc
________

Serial No. 79006447
_______

Joel H. Bock of Cook, Alex, McFarron, Manzo, Cummings & Mehler,
Ltd. for Brigade Electronics plc.

Scott M. Sisun, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______

Before Seeherman, Holtzman and Taylor, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Brigade Electronics plc
(applicant) to register the mark BACKALARM (in standard character
format) for "reversing alarm for motor vehicles" in Class 12.1
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that

1 Application Serial No. 79006447, filed September 21, 2004 under
Section 66(a) of the Trademark Act.

THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Serial No. 79006447
2
applicant's mark, when applied to applicant's goods, so resembles
the registered mark BAC-A-LARM (in typed form) for "vehicular
electrical back-up alarms" in Class 12 as to be likely to cause
confusion.2
When the refusal was made final, applicant appealed. Briefs
have been filed.
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 confusion issue. In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between
the marks and the similarities or dissimilarities between the
goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to the goods, keeping in mind that the
question of likelihood of confusion is determined on the basis of
the identification of goods set forth in the application and
registration, without limitations or restrictions as to the
actual nature of the goods, their channels of trade and/or
classes of purchasers that are not reflected therein. See J & J
Snack Foods Corp. v. McDonald's Corp., 932 F.2d 1460, 18 USPQ2d
1889 (Fed. Cir. 1991); and Octocom Systems Inc. v. Houston

2 Registration No. 2609204, issued August 20, 2002.
Serial No. 79006447
3
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990).
Applicant's goods are "reversing alarms for motor vehicles"
and registrant's goods are "vehicular electrical back-up alarms."
The wording may differ slightly but the goods are legally
identical - both are back-up alarms for vehicles. Applicant's
reversing alarms, which are not restricted to a type of power,
fully encompass registrant's back-up alarms which are
electrically powered. The examining attorney has introduced
excerpts of articles and product catalogues obtained from various
websites showing that "reversing" alarms and "back up" alarms are
interchangeable terms used to refer to the same devices.
According to the evidence, these devices are used to provide
warning signals when operating a vehicle in reverse gear.
Portions of the website printouts are reproduced below (emphasis
added).
Point of View: Dangers of Unevaluated Reversing
Alarms
...
In 1971, the Occupational Safety and Health
Administration required a reverse signal alarm on all
construction vehicles whose operator has an obstructed
rear view. The RSA must be activated whenever reverse
gear is engaged, whether or not the vehicle is moving,
and it must sound an intermittent beep...
...
Absence of Data
In 1991, Gerard Scannell, the assistant secretary at
OSHA wrote Senator Tom Harkin stating, "An analysis
was made in 1971 when standards were first
Serial No. 79006447
4
promulgated. At that time, it was determined that
back-up alarms saved lives."...
...
www.heavyequipmentnews.com

Hunter Industries in Safety First > Wayne Chomohus:
Sound the alarm!
Thursday 19 August 2004
Reversing alarms can be very effective in some
situations - and very ineffective in others. Back-up
alarms are necessary on many...
www.forkliftaction.com

PRODUCT RANGE
...
Horns:
Signal horns, supertone horns, buzzer, fanfare horns
and reversing alarms (Back-Up alarms).
www.Hella.com (product catalogue)

Category: Automotive\Accessories
Preco - Preco Electronics - Safety Products for
Commercial Vehicles...Backup Alarms - Back-up Alarms -
Reversing Alarms...
www.elecdir.com ("Electronics and Electrical Web
Directory")

Because the goods are legally identical, we must presume
that the channels of trade for the respective goods are the same,
and further that the goods are offered to all potential
purchasers. Applicant does not dispute that the goods are
identical, but argues that "the conditions present in the market
place and the sophistication of the purchasers" weigh against a
finding of likelihood of confusion. In particular, applicant
argues that "purchasers in this area purchase alarms based not on
Serial No. 79006447
5
the name but on the specifications of the alarm, for example, the
current and voltage required by the alarm to operate, the decibel
level of the alarm, the size of the unit and the actual sound of
the alarm."
Applicant's assertion that trademarks play no part in the
decision to purchase these products is specious and misses the
point. The point is that while the decision to purchase a
specific alarm might be based on the characteristics of the
alarm, consumers choosing an alarm with specific characteristics
might purchase one instead of another based on the source of the
goods, and hence the trademark does play a role in the purchasing
decision.
It is reasonable to assume that commercial purchasers, such
as owners and operators of commercial vehicles, comprise the
relevant public for back-up alarms, and that such purchasers
would be knowledgeable about the products and would exercise some
degree of care in their purchasing decisions. However, even
knowledgeable and careful purchasers of goods can be confused as
to source under circumstances where similar marks are used on
identical goods. See In re Research Trading Corp., 793 F.2d
1276, 230 USPQ 49, 50 (Fed. Cir. 1986) citing 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.").
Serial No. 79006447
6
Thus, we turn to a consideration of the marks. In
determining the similarity or dissimilarity of marks, we must
consider the marks in their entireties in terms of sound,
appearance, meaning and commercial impression. See du Pont,
supra. See also Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
Applicant contends that registrant's mark BAC-A-ALARM and
applicant's mark BACKALARM are different in appearance, arguing
that applicant's mark "lacks the idiosyncratic hyphenations" and
"also lacks the peculiar spelling of the registered mark."
Applicant further argues that the two marks create different
commercial impressions. In applicant's view, BACKALARM, without
hyphens, "has the feel or impression of functionality and
sophistication." Applicant concludes that the differences in
appearance and commercial impression are sufficient to avoid
confusion.
We note that there are certain visual differences in the
marks. Unlike applicant's mark BACKALARM, the syllables in
registrant's mark BAC-A-LARM are hyphenated and the word BACK is
misspelled as BAC. However, these differences in appearance are
not particularly significant when we consider the overall
similarities in the marks. The letters and their arrangement in
each mark are virtually the same. In addition, BACKALARM and
BAC-A-LARM are identical in sound. They are phonetic equivalents
Serial No. 79006447
7
that would both be pronounced as "back alarm." Further,
BACKALARM and BAC-A-LARM, when viewed in the context of the
goods, back-up alarms, have the identical meaning in relation to
those goods, and they create the same or at least similar overall
commercial impressions. The asserted image of "functionality and
sophistication" that applicant attributes to its mark escapes us
and would surely be lost on the average consumer. We do not find
that the hyphens and misspelling in registrant's mark affect the
commercial impression in any significant way.
Contrary to applicant's apparent contention, the marks do
not have to be similar in all respects, that is, in sound,
appearance, meaning and commercial impression, in order to
support a finding of likelihood of confusion.3 See Interstate
Brands Corp. v. McKee Foods Corp., 53 USPQ2d 1910 (TTAB 2000);
and Educational Development Corporation v. Educational Dimensions
Corporation, 183 USPQ 492 (TTAB 1974). As the Court stated in In
re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed. Cir.
2003) at p. 1062, "similarity is not a binary factor but is a
matter of degree." See also Nautilus Group Inc. v. ICON Health
and Fitness Inc., 372 F.3d 1330, 71 USPQ2d 1173, 1184 (Fed. Cir.

3 In this regard, applicant's contention that the examining attorney's
"decision" that similarity in sound alone may be sufficient to support
a likelihood of confusion "is fatally flawed and must be reversed" is
meritless. The examining attorney's statement of the law is correct,
as are the cases the examining attorney relied on to support it.
Applicant's baseless criticism of those cases as having "ignored the
teachings of the DuPont decision" has been given no consideration.

Serial No. 79006447
8
2004) ("In general, the greater the similarity between the two
marks at issue, the greater the likelihood of confusion.").
In this case, while we have considered the differences in
the marks, we find that the identity in sound and meaning and the
similarity in commercial impression far outweigh the slight
differences in appearance. Purchasers who are familiar with
registrant's mark BAC-A-LARM for back-up alarms, would be likely
to believe, upon encountering applicant's mark BACKALARM for the
identical goods, that the goods originated with or are in some
way connected with the same entity. Even if purchasers remember
registrant's mark as having hyphens and a misspelling, they are
likely to perceive BACKALARM as simply a slightly different
version of registrant's mark rather than as identifying a
different source for the goods.
While the mark BAC-A-LARM may be suggestive of registrant's
goods, and therefore not entitled to a broad scope of protection,
the mark is at least entitled to protection from registration of
this highly similar mark for identical goods. See In re Colonial
Stores, Inc., 216 USPQ 793 (TTAB 1992). See also King Candy Co.
v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109
(CCPA 1974) (likelihood of confusion is to be avoided as much
between weak marks as between strong marks).
Serial No. 79006447
9
In view of the similarity of the marks, and because the
goods as well as the trade channels and purchasers for the goods
are identical, we find that confusion is likely.
Decision: The refusal to register on the ground of Section
2(d) of the Trademark Act is affirmed.