CE Distribution, LLC

Trademark Trial and Appeal Board

Feb 14, 2005

No. 76432582 (T.T.A.B. Feb. 14, 2005)

Mailed: February 14, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CE Distribution, LLC
________

Serial No. 76432582
_______

Bennett Evan Cooper of Steptoe & Johnson LLP for CE Distribution,
LLC.

Katherine Stoides, Trademark Examining Attorney, Law Office 110
(Chris Pedersen, Managing Attorney).
_______

Before Hohein, Holtzman and Drost, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

CE Distribution, LLC has appealed from the final refusal of
the trademark examining attorney to register the mark MOD for
"audio speakers" in International Class 9.1
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when applied to applicant's goods, so resembles

1 Application Serial No. 76432582, filed July 22, 2002, based on an
allegation of first use and first use in commerce on January 17, 2002.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76432582
2
the mark ULTRAMOD for "audio processors for broadcasting and
automatic gain controls, fidelity controls, bass, treble and
loudness controls, clippers and density modulators," as to be
likely to cause confusion.2
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular
attention to the factors most relevant to the case at hand,
including the similarity of the marks and the relatedness of the
goods or services. Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)("The fundamental
inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods [or
services] and the differences in the marks.").
When the relevant factors in this case are considered, we
find there is no likelihood of confusion.
Turning first to the marks, applicant argues that "ULTRA" is
the dominant part of registrant's mark and that, as such, it
serves to distinguish the marks in both sound and appearance.
Applicant further argues that the word "MOD" has different

2 Registration No. 1873111 issued January 10, 1995; renewed.

Serial No. 76432582
3
connotations in relation to the respective goods. In the context
of registrant's goods, the term "MOD" would be perceived,
according to applicant, as an abbreviated form of "modulate" or
"modulation." In support of this contention, applicant has
submitted a dictionary definition of "mod" as "modulation"; a
definition of "modulation" as meaning "[t]he process of sending a
control signal to a sound source so as to change the character of
the sound"; and definitions of "modulate" as "to adjust the
pitch, tone, or volume of" and "to vary the frequency, amplitude,
phase, or other characteristic of (electromagnetic waves)."
Applicant also refers to printouts from registrant's website
describing registrant's equipment as "[u]sable for just keeping
into check any modulation overshoots, or to maximize modulation
density"; providing "Modulation control"; and "maintain[ing] the
modulation peak envelope at its maximum level."
Applicant maintains that its own mark, in contrast, is
intended to suggest the slang meaning of "mod" as an abbreviation
of "modern." To support its position, applicant refers to
definitions of "mod" obtained from both standard and slang
dictionaries; advertising materials describing applicant's
speakers as "Modern with a Touch of English"; and its specimens
depicting "MOD" in the distorted rounded letters associated with
the 1960s "mod" style. Applicant has also submitted displays of
Serial No. 76432582
4
the Monkees guitar logo and the album cover design for the
Beatles "Rubber Soul" record as examples of this "mod" style.
The examining attorney, on the other hand, argues that
"MOD," as a term that is neither generic nor descriptive of the
identified goods, "dominates the commercial impression
communicated by the marks" and that "ULTRA," as a laudatory term,
is of little trademark significance. The examining attorney
contends that applicant's actual style of use is immaterial since
applicant is seeking registration of its mark in typed form, and
she concludes that, in any event, "MOD" has the same connotation
of either "modulation" or the slang meaning of "modern" in
relation to both applicant's and registrant's goods. The
examining attorney has made of record a definition of "speaker"
as "loudspeaker" and a definition of "loudspeaker" as "a device
that converts electric signals to audible sound." She has also
attached to her brief dictionary definitions of the terms
"modulate" and "modulation"3 with similar definitions to those
provided by applicant.
We find that MOD and ULTRAMOD, both presented in typed form,
are similar in sound and appearance. The term MOD is applicant's
entire mark, and is visually and aurally a significant part of

3 The American Heritage Dictionary of the English Language, Third
Edition, copyright 1992 (electronic version). The Board may properly
take judicial notice of dictionary definitions, including online
dictionaries which exist in printed format. See In re
CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002).
Serial No. 76432582
5
the registered mark. We disagree with applicant that "ULTRA" is
the dominant part of registrant's mark. As a laudatory modifier
of "MOD," indicating a superior quality or level of "MOD"
products, the term "ULTRA" is of less significance than "MOD" and
does not serve to distinguish the marks in sound or appearance.
On the other hand, we are not convinced that the marks
convey the same meaning. The meaning of a mark must be
determined in relation to the identified goods. Registrant's
goods are audio processors for broadcasting and automatic gain
controls, fidelity controls, bass, treble and loudness controls,
clippers and density modulators. It is clear from the dictionary
definitions, registrant's website materials and the
identification itself, that "modulation" has a particular meaning
in the context of registrant's goods, and, in particular, density
modulators and audio processors used in the broadcasting field.
Registrant's audio processors are devices that send signals to a
sound source or regulate some characteristic of the signals or
the sound. Thus, we find that the term "MOD," in the context of
registrant's goods, would be perceived as a shortened form of
"modulation" rather than a shortened form of "modern," and that
the mark ULTRAMOD, as a whole, is more likely to suggest a level
of performance rather than a degree of style.
However, the meaning of "MOD" in relation to applicant's
goods is less apparent. There is nothing of record to indicate
Serial No. 76432582
6
that audio speakers modulate sound or that modulation has
anything to do with speakers. The dictionary definitions
provided by the examining attorney indicate that a "loudspeaker"
(audio speaker) is a device that "converts" electric signals to
audible sound rather than a device such as registrant's that
sends a control signal to a sound source or regulates some
characteristic of the sound. Thus, we are not convinced that the
meaning conveyed by applicant's mark would be "modulate" rather
than "modern," or that the overall commercial impressions of both
marks would be the same.
Turning to the goods, applicant contends that its speakers
are not finished consumer products but are, instead, raw frame
speakers or loudspeakers used as parts for use in amplifiers by
hobbyists and musicians. Based on the printouts from
registrant's website which show, according to applicant, that
registrant's products modulate radio signal levels for
broadcasting, applicant argues that its speakers would have no
function at all in the broadcast market for transmission
purposes. Applicant further argues that the respective goods are
expensive products sold, not to ordinary consumers, but to
technically sophisticated and highly discriminating purchasers.
The examining attorney argues, on the other hand, that
applicant's audio speakers are related to registrant's audio
processors "because they are both used for sound processing
Serial No. 76432582
7
purposes." In support of this contention, the examining attorney
relies on the previously mentioned dictionary definitions of
"speaker" as "a loudspeaker" and of "loudspeaker" as "a device
that converts electric signals to audible sound." Based on these
definitions, the examining attorney reasons that "as the
registrant identifies its goods in broad terms and has not
restricted [the] type of audio processors, it is presumed that
these goods include all types of audio processors to be used in
all channels of trade." The examining attorney further argues
that since applicant has not limited the channels of trade for
its audio speakers, it must be presumed that applicant's goods
"are offered everywhere that is normal for such audio speakers,
including the broadcasting channels of trade in which the
registrant's goods move" and that applicant's contentions
regarding the sophistication of purchasers for registrant's goods
"is unsubstantiated and speculative."
We must consider the issue of likelihood of confusion in the
context of the identifications of goods in the respective
application and registration, and in the absence of specific
limitations, on the basis of all of the normal and usual channels
of trade for the respective goods. Canadian Imperial Bank of
Commerce v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1493, 1 USPQ2d
1813 (Fed. Cir. 1987); and CBS, Inc. v. Morrow, 708 F.2d 1579,
218 USPQ 198 (Fed. Cir. 1983).
Serial No. 76432582
8
Applicant's goods, as identified, are not restricted to a
particular type of speakers, or to particular channels of trade
or classes of purchasers for the speakers. Therefore, we must
presume that applicant's speakers encompass all types of audio
speakers, including finished speakers, that the speakers are used
for all the usual purposes, including use for home music systems,
and that the speakers would be sold in all the usual outlets and
to all the usual purchasers for such goods, including ordinary
consumers.
Registrant's identification of goods, on the other hand,
does contain a restriction: its "audio processors" are "for
broadcasting." It is clear that this restriction limits the
market for registrant's audio processors. It is also clear that
the restriction limits the type of audio processors to equipment
that would be used in the broadcasting field. What is not clear
to us from the description of the goods is whether audio speakers
would be a type of audio processing equipment used in
broadcasting. We take judicial notice of a definition of
"broadcasting" as the "transmission of radio or television
signals."4 There is nothing in the definition of "broadcasting"
itself and no other evidence of record to indicate that radio and
television broadcast transmissions would involve the use of

4 See Microsoft Encarta College Dictionary (2001).
Serial No. 76432582
9
"audio speakers" or that those goods would form any part of a
broadcast transmission system.
The Board's analysis in In re Trackmobile, Inc., 15 USPQ2d
1152, 1153-54 (TTAB 1990) is instructive here:
"The terms 'mobile railcar movers' and 'light railway
motor tractors' are somewhat vague to members of this
Board who possess no special knowledge about such
equipment. ... [W]hen the description of goods for a
cited registration is somewhat unclear, as is the case
herein, it is improper to simply consider that
description in a vacuum and attach all possible
interpretations to it when the applicant has presented
extrinsic evidence showing that the description of goods
has a specific meaning to members of the trade."

Registrant's audio processors are highly technical and
specialized goods. It would be improper to find these goods
related to applicant's speakers solely on the simplistic basis
that they both "process sound." The evidence of record,
including the dictionary definitions and registrant's website
materials, certainly presents enough information to at least
raise a question as to whether audio speakers would have any use
or function in connection with audio processors for broadcast
purposes. Therefore, it was incumbent on the examining attorney
to present at least some evidence to support her position that
the audio processing equipment used by broadcasters would be
broad enough to include the specific type of audio processing
equipment provided by applicant or to show that the respective
goods are otherwise related.
Serial No. 76432582
10
The goods in the registration that appear to be the closest
to audio speakers are "bass, treble and loudness controls."
However, these goods are clearly not the same as speakers, and
since the examining attorney has presented no evidence or even
argument in this regard, we are left to speculate as to whether
the goods are commercially related. The mere fact that both
"audio speakers" and "bass, treble and loudness controls" may
fall into the same broad category of sound processing equipment
is insufficient to establish that the goods are so related.
In view of the cumulative effect of the differences in the
marks and the differences in the respective goods, we find that
there is no likelihood of confusion.5
Decision: The refusal to register is reversed.

5 We would also point out that the overlapping customers for
registrant's audio processors for broadcasting and applicant's speakers
would be those in the broadcasting field. These customers, contrary to
the examining attorney's contention, must be presumed to have some
degree of technical or specialized knowledge and therefore to be more
sophisticated than ordinary consumers.