Cimmetry Systems Inc.

Trademark Trial and Appeal Board

Feb 28, 2001

No. 75465820 (T.T.A.B. Feb. 28, 2001)

2/28/01
Paper No. 13
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cimmetry Systems Inc.
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Serial No. 75/465,820
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Lawrence E. Abelman of Ableman, Frayne & Schwab for
Cimmetry Systems Inc.
Leslie L. Richards, Trademark Examining Attorney, Law
Office 106 (Mary I. Sparrow, Managing Attorney).
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Before Quinn, Hairston and Walters, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Cimmetry Systems Inc. has appealed from the final
refusal of the Trademark Examining Attorney to register the
mark CIMMETRY SYSTEMS and design, as shown below,
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/465,820
2
for the following goods and services:
computer software for use in document format
support, namely document display, document
printing, file access, network file access,
linking files, markup, all in file formats,
consolidation of files; viewing, downloading
and printing of files from a global computer
network; and viewing, copying and printing
e-mail attachments to documents in class 9;
computer education and training services in
class 41; and
technical support for others in the field of
computers; computer consultation; custom
design of computer software for others in
class 42.1
Applicant has disclaimed the word “SYSTEMS” apart from the
mark as shown and the application contains the statement
that “The mark consists of the words CIMMETRY SYSTEMS with
the letters CS in a rectangle.”
Registration has been refused pursuant to Section 2(d)
of the Trademark Act, 15 U.S.C. §1052(d), on the ground
that applicant’s mark, if used in connection with the
identified goods and services, would so resemble the mark
SYMMETRY registered for “computers,”2 as to be likely to
cause confusion or mistake or to deceive.
1 Serial No. 75/465,820 filed April 10, 1998; asserting a bona
fide intention to use the mark in commerce.
2 Registration No. 1,496,641 issued July 19, 1988; Section 8
affidavit accepted; Section 15 affidavit received.
Ser No. 75/465,820
3
Applicant and the Examining Attorney have filed
briefs, but an oral hearing was not requested.
The Examining Attorney maintains that the marks are
confusingly similar in overall commercial impression and
that the computer software and computer services applicant
intends to offer under the involved mark are closely
related to registrant’s computers. In connection with the
refusal, the Examining Attorney submitted eighteen third-
party registrations of marks which cover computer software,
computer education and training services, computer
consultation services, and/or computer software design for
others, on the one hand, and computers, on the other hand.
This evidence was submitted to support the Examining
Attorney’s position that the same entities offer computers
as well as computer software and computer services under
the same mark.
Applicant, in urging reversal of the refusal to
register, contends that the marks are dissimilar; that its
computer software and computer services are different from
registrant’s computers; that the relevant purchasers of its
goods and services use a high degree of care; and that
registrant’s SYMMETRY mark is entitled to only a narrow
scope of protection. Applicant submitted copies of four
Ser No. 75/465,820
4
third-party registrations of marks which include the word
SYMMETRY.
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, two key considerations are the
similarities between the marks and the similarities between
the goods and services. Federated Food, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
With respect to the marks, we recognize that
registrant’s mark SYMMETRY and the CIMMETRY portion of
applicant’s mark sound alike. However, when we consider
the marks in their entireties, and particularly the visual
impact of applicant’s mark, there are specific differences
between registrant’s SYMMETRY mark and applicant’s CIMMETRY
SYSTEMS and design mark. Not only is the CIMMETRY portion
of applicant’s mark spelled differently from registrant’s
mark SYMMETRY, but applicant’s mark includes the word
“SYSTEMS,” which although disclaimed, cannot be ignored,
and a prominent design feature with the fanciful letters
“CS”. This results in a mark that, when considered in its
Ser No. 75/465,820
5
entirety, is different in overall commercial impression
from registrant’s mark.
Insofar as the goods and services are concerned, we
note the third-party registrations submitted by the
Examining Attorney which have probative value to the extent
that they suggest that the listed goods and services are of
a type which may emanate from a single source. In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993). While we find that this evidence is sufficient to
establish that the involved goods and services are
commercially related, there are, nonetheless, specific
differences between applicant’s specialized computer
software for use in document format support and computer
services, on the one hand, and registrant’s computers, on
the other hand.
An argument made by applicant requires comment
although it did not affect our decision herein. With
respect to applicant’s argument that registrant’s SYMMETRY
mark is entitled to a narrow scope of protection, we note
that none of the third-party registrations submitted by
applicant cover goods and services of the type involved in
this appeal or goods and services which are even arguably
related thereto. In short, the third-party registrations
do not establish that the word SYMMETRY is highly
Ser No. 75/465,820
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suggestive or otherwise weak as an element of marks for
computer goods and services.
In view of the cumulative differences between the
marks SYMMETRY and CIMMETRY SYSTEMS and design and the
involved goods and services, we find that there is no
likelihood of confusion in this case.
Decision: The refusal to register under Section 2(d)
of the Act is reversed.