Champlain Cable Corporation

Trademark Trial and Appeal Board

Oct 1, 2020

87625822 (T.T.A.B. Oct. 1, 2020)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: October 1, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Champlain Cable Corporation
_____

Serial No. 87625822
_____

Mark Levy of Law Office of Mark Levy,
for Champlain Cable Corporation.
Andrew Crowder-Schaefer, Trademark Examining Attorney, Law Office 104,
Zachary B. Cromer, Managing Attorney.
_____

Before Wellington, Kuczma and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Champlain Cable Corporation, seeks registration of the mark EXRAD
ERGOFLEX (in standard characters) on the Principal Register for “battery cable,
insulated copper door wires covered in flexible jacket material ,” in International
Class 9.1
The Trademark Examining Attorney refused registration under Section 2(d) of the

1 Application Serial No. 87625822 filed on September 28, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use of the mark
and first use in commerce as of August 1, 2016.
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Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used
in connection with the identified goods, so resembles the registered mark
for “cables, electric; electric wires; electric wires and cables;
electrical terminal boxes; electrical terminal blocks; connections for electric lines;
couplings, electric; wire connectors; electric junction boxes; electrical plugs and
sockets; plug connectors; electrical connectors; electric connectors ,” in International
Class 9,2 as to be likely to cause confusion.
When the refusal was made final, Applicant filed a request for reconsideration,
which was denied. Applicant then filed an appeal. The appeal is fully briefed.
We affirm the refusal.
I. Evidentiary Issue

Applicant requested remand of the application on October 7, 2019, one week before
filing its appeal brief, to make of record three documents it planned to rely upon in
the appeal: a page from Registrant’s website; a dictionary definition of “wire”; and an
affidavit from Applicant’s vice president of business development.3 Applicant then did
rely on those documents in its appeal brief filed on October 14, 2019.
On October 31, 2019, the Board denied Applicant’s request for remand for lack of
good cause.4 The Examining Attorney now objects to the late-filed evidence that was
included in Applicant’s brief.

2 Registration No. 5460465, issued May 1, 2018.
3 8 TTABVUE.
4 13 TTABVUE.
Serial No. 87625822
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We sustain the Examining Attorney’s objection with regard to webpage and
declaration evidence, which will not be considered. However, we overrule his objection
with regard to the dictionary definition and will consider it.5
II. Applicable Law
The fundamental purpose of Trademark Act § 2(d) is to prevent confusion as to
source, and to protect registrants from damage caused by registration of confusingly
similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ
327, 331 (1985). Our analysis is based on all of the probative evidence of record. In re
E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”). In making our determination, we consider each DuPont factor for which
there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);

5 The Board may take judicial notice of definitions from dictionaries, 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).
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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.”).
A. Similarity or Dissimilarity of the Goods and Trade Channels

We begin our analysis with the second and third DuPont factors. The second
DuPont factor considers the “similarity or dissimilarity and nature of the goods or
services as described in an application or registration,” In re Detroit Athletic Co., 903
F.3d 1296, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at
567), and the third DuPont factor considers the “similarity or dissimilarity of
established, likely-to-continue trade channels.” Id. at 1052. It is “not necessary that
the goods be identical or even competitive to support a finding of a likelihood of
confusion.” Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective goods are
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.’” Id.
Moreover, we need not find similarity as to each and every good listed in an
applicant’s identification of goods. It is sufficient for a refusal based on likelihood of
confusion that relatedness is established for any item encompassed by the
identification of goods or services in a particular class in the application. See SquirtCo
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v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a
single good from among several may sustain a finding of likelihood of confusion);
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981) (likelihood of confusion must be found if there is likely to be confusion
with respect to any item that comes within the identification of goods or services in
the application).
The Examining Attorney argues that Registrant’s broadly described “electric
wires and cables” encompass Applicant’s more narrowly described “battery cable” and
“insulated copper door wires covered in flexible jacket material .”6 He also provided
Internet evidence consisting of pages from five third-party websites pages to show
that “electrical cables and wire goods include battery cables and insulated copper
wires covered in flexible jacket material”:7
 AWC Allied Wire & Cable – offering a variety of wire and cables
including automotive wire and battery cables, as well as insulated
copper wires with nylon jacket, as a subset of its wire and cable goods;8

 Philatron Wire & Cable – offering battery cables and insulated flexible
copper wire power cables as a subset of its wire and cable goods;9

 Prestolite Wire – offering an assortment of electrical wire and cable
products, including batter cables and flexible, jacketed insulated copper
wire;10

6 19 TTABVUE 10.
7 Id. at 11.
8 August 1, 2019 Final Office Action, TSDR 9-17.
9 Id. at 18-30.
10 Id. at 31-35
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 Velvac – offering a variety of electrical cables including battery cables
and jacketed cable wires;11 and

 Wiringproducts.com – offering a variety of electrical wire and cable
products such as batter cables including flexible, jacketed, copper
battery cables, and flexible, jacketed, insulated copper electrical wires.12

Based on a comparison of the goods and the evidence provided, the Examining
Attorney asserts that the parties’ goods are legally identical.13
Applicant “strenuously disagrees” that that its goods are encompassed by
Registrant’s goods because they do not specifically include “battery cables” or
“insulated door wires covered in flexible jacket materials .”14 Applicant offered
dictionary definitions of “wire” as meaning “metal in the form of a usually very
flexible thread or slender rod,” and “a thread of rod of such material.” Based on these
definitions, Applicant makes the following argument:15
Note that insulation does not appear in this definition. A vast difference
in goods exists between electric wires/cables (the goods recited in the
registered mark) and insulated copper door wires covered in flexible
jacket material (the goods recited in Appellant’s mark). Wires and
insulated wires are as different from each other as peeled
bananas and banana [sic] with their skin intact. There is simply no
likelihood of confusion between peeled and intact bananas just as there
is no likelihood of confusion between bare and insulated wires, especially
for technically sophisticated customers of electrical components.

Applicant’s argument is unavailing. Just as a registration for bananas covers all
bananas, peeled or unpeeled, a registration for electrical wires covers all wires,

11 Id. at 36-39.
12 Id. at 40-45.
13 19 TTABVUE 12.
14 11 TTABVUE 13.
15 Id (emphasis added).
Serial No. 87625822
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insulated or uninsulated. Moreover, the issue is not whether the goods would be
confused, but whether they are related and to what extent. We find that the goods
are legally identical.
We therefore must also assume that the relevant purchasers and channels of trade
are identical and overlapping to the same extent. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); In re Smith &
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are legally
identical, they must be presumed to travel in the same channels of trade, and be sold
to the same class of purchasers.”).
The second and third DuPont factors strongly support a finding of likelihood of
confusion.
B. Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athletic 128 USPQ2d at1051 (quoting 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, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 Fed.
Appx. 516 (Fed. Cir. 2019).
The test is not whether the marks can be distinguished in a side -by-side
Serial No. 87625822
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comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods offered under the respective marks is
likely to result. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Our focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB
2014); Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688
(CCPA 1969) (many consumers “may have but dim recollections from having
previously seen or heard one or the other of the involved marks.”). In making our
determination, we keep in mind that the more closely related the goods are, the more
“the degree of similarity [between the marks] necessary to support a conclusion of
likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of America,
970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
The Examining Attorney argues that the marks are “essentially identical in sound
and highly similar in appearance and commercial impression” because Applicant’s
mark EXRAD ERGOFLEX includes the word portion of Registrant’s mark
.16 Although Registrant’s mark is stylized and “contains a design
element of a stylized electrical cable and plug design … [n]othing about this design
… alters the meaning or commercial impression of the shared wording

16 19 TTABVUE 7.
Serial No. 87625822
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ERGOFLEX.”17
Applicant concedes that the marks are identical in part, but asserts nonetheless
that the marks are different in appearance, sound, and meaning when considered in
their entireties.18 According to Applicant, “[i]t is the first word in [Applicant’s] mark,
EXRAD, that distinguishes its mark from the registered mark” because ERGOFLEX
in both marks is “merely a combination of the descriptive prefix ERGO, meaning
‘work,’ and the descriptive suffix FLEX, meaning ‘flexible,’” which is “highly
suggestive of the flexibility of the goods.”19
While it is often the first part of a mark that is most likely to be impressed upon
the mind of a purchaser and remembered when making purchasing decisions, see
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005), that is not always the case. See e.g.,
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014) (“Board did not err in finding that ‘STONE LION
CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial impression’ to
‘LION CAPITAL’ and ‘LION.’”); In re U.S. Shoe Corp., 229 USPQ 707 (TTAB 1985)
(finding CAREER IMAGE likely to be confused with mark CREST CAREER
IMAGES).
As the Examining Attorney notes, Applicant did not provide any evidence to

17 Id. at 8.
18 11 TTABVUE 9.
19 Id. at 12.
Serial No. 87625822
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support its asserted definitions of ERGO as “work,” and FLEX as “flexible.” However,
we take judicial notice of the term “FLEX,” which means “bend,” so part of term
ERGOFLEX appears suggestive of cables and wires that flex or bend. But that does
not resolve the matter because suggestive marks are inherently distinctive and
entitled to appropriate protection against the registration of confusingly similar
marks. See Maytag Co. v. Luskin’s, Inc., 228 USPQ 747, 750 (TTAB 1986) (“there is
nothing in our trademark law which prescribes any different protection for
suggestive, nondescriptive marks than that which is accorded arbitrary and fanciful
marks”); In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“the fact
that a mark may be somewhat suggestive does not mean that it is a ‘weak’ mark
entitled to a limited scope of protection”).
Applicant also points to its purported ownership of a prior registration for the
mark EXRAD as a basis for contending that its applied-for mark EXRAD ERGOFLEX
is distinct from Registrant’s ERGOFLEX mark:20
The EXRAD portion of Appellant’s mark therefore acts as a strong, well -
known umbrella brand. The word ERGOFLEX … is an integral part of
the composite mark, EXRAD ERGOFLEX. In effect, “ERGOFLEX is in
the shade of the EXRAD umbrella, much as the word “zero” in COKE
ZERO (Reg. No. 5,771,915) is under the COKE umbrella (Reg. No.
2,490,517) or “light” in BUD LIGHT (Reg. No. 1,694,621) is under the
BUD umbrella (Reg. No. 0,666,367). Appellant’s customers are very
familiar with Appellant’s mark and are not expected to ignore its
significance as part of the subject composite mark, EXRAD ERGOFLEX,
nor be confused as to the source of goods sold thereunder 21

Applicant provided no evidence regarding its purported ownership of a prior

20 Id. at 10.
21 Id. at 12.
Serial No. 87625822
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registration for EXRAD which, in any event, is of no moment, since a registration is
not evidence of use of the mark or that the public is familiar with it. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). And Applicant’s analogy of its
mark EXRAD ERGOFLEX to the marks COKE ZERO and BUD LIGHT is inapposite.
The terms “ZERO” and “LIGHT” in those examples are clearly descriptive or generic,
which is not the case here.
As discussed earlier, Registrant’s mark, like any mark registered on the Principal
Register, is presumed to be inherently distinctive. In re Fiesta Palms LLC, 85
USPQ2d 1360, 1363 (TTAB 2007) (cited in In re Fat Boys Water Sports LLC, 118
USPQ2d 1511, 1517 (TTAB 2016). Nevertheless, Applicant argues that Registrant’s
ERGOFLEX mark is weak as “highlighted by numerous coexisting marks in Class 9
which encompass these elements.”22 However, as observed by the Examining
Attorney, Applicant provided no evidence to support its contention that numerous
marks “encompassing these elements” are in use and coexisting. Accordingly, we find
that Registrant’s mark is a mark of ordinary strength entitled to all protections
accorded to marks registered on the Principal Register consistent with Trademark
Act Section 7(b), 15 U.S.C. § 1051(b).
Inasmuch as ERGOFLEX comprises the entirety of Registrant’s mark, Applicant
has adopted Registrant’s mark in its entirety, and there is simply no other element
in Registrant’s mark to give any weight or to distinguish the marks. It is long
established that the mere addition of a term to a registered mark generally does not

22 Id.
Serial No. 87625822
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obviate the similarity between the marks nor does it overcome a likelihood of
confusion under Trademark Act § 2(d). See Coca-Cola Bottling Co. v. Jos. E. Seagram
& Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (BENGAL and BENGAL
LANCER); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 54 C.C.P.A. 1295, 153
USPQ 406 (CCPA 1967) (THE LILLY and LILLI ANN); In re Toshiba Med. Sys. Corp.,
91 USPQ2d 1266 (TTAB 2009) (TITAN and VANTAGE TITAN); and In re Chatam
Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (GASPAR ’S ALE and
JOSE GASPAR GOLD).
Considering the Applicant’s and Registrant’s marks in their entireties, we find
them similar in appearance, sound, connotation and commercial impression. The first
DuPont factor thus also supports a finding of likelihood of confusion.
C. Purchasing Conditions
The fourth DuPont factor considers “[t]he conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. On the one hand, circumstances suggesting care in purchasing may
tend to minimize the likelihood of confusion between similar marks. See, e.g., In re
N.A.D., Inc., 754 F.2d 996, 999-1000, 224 USPQ 969, 971 (Fed. Cir. 1985) (concluding
that, because only sophisticated purchasers exercising great care would purchase the
relevant goods, there would be no likelihood of confusion merely because of the
similarity between the marks NARCO and NARKOMED).
On the other hand, the fact that purchasers are sophisticated or knowledgeable in
a particular field does not mean they are immune to source confusion. See In re Shell
Serial No. 87625822
- 13 -
Oil Co., 26 USPQ2d at 1690 (“even sophisticated purchasers can be confused by very
similar marks”); Top Tobacco, LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170
(TTAB 2011). Board precedent requires our decision to be based “on the least
sophisticated potential purchasers.” Stone Lion Capital Partners, L.P. v. Lion Capital
LLP, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A.,
100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 110
USPQ2d 1679 (TTAB 2014).
Applicant argues that its goods “are purchased with care only by informed,
professional, deliberative buyers – often employees of original equipment
manufacturers (OEMs) – who have a full understanding of the source of the goods
they are purchasing,” whereas Registrant’s goods “are intended for use by the general
public.”23 Applicant’s contentions are unsupported by the evidence and unavailing.
Because the identification of goods in the application and cited registration are legally
identical and neither identification is limited in any manner, our decision must be
based on “the least sophisticated potential purchasers,” who may not exercise a
heightened degree of care. Stone Lion, 110 USPQ2d at 1163.
Accordingly, the fourth DuPont factor favors a finding of likelihood of confusion.
D. Actual Confusion
Applicant points to the absence of evidence of actual confusion, the seventh
DuPont factor, as weighing in its favor, DuPont, 177 USPQ at 567, but we accord no
probative value to that contention, which has no evidentiary support. Accordingly,

23 Id. at 15-17.
Serial No. 87625822
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Applicant’s “uncorroborated statements of no known instances of actual confusion are
of little evidentiary value.” In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d
1201, 1205 (Fed. Cir. 2011) (citing In re Bissett-Berman Corp., 476 F.2d 640, 642, 177
USPQ 528, 529 (CCPA 1973)). “[W]hile examples of actual confusion may point
toward a finding of a likelihood of confusion, an absence of such evidence is not
compelling in support of a finding of no likelihood of confusion.” In re Integrated
Embedded, 120 USPQ2d 1504, 1515 (TTAB 2016).
The seventh DuPont factor is therefore neutral in our analysis.

III. Conclusion
In sum, we find that the marks are similar in overall appearance, sound,
connotation, and commercial impression, and that the goods are legally identical and
travel in the same trade channels to the same classes of purchasers. Accordingly,
Applicant’s mark is EXRAD ERGOFLEX is likely to cause confusion with
Registrant’s mark for the goods recited in the application and
cited registration.
Decision: The refusal to register is affirmed.