EmissiveEnergy Corporation

Trademark Trial and Appeal Board

May 24, 2006

No. 78440691 (T.T.A.B. May. 24, 2006)

Mailed:
24 May 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Emissive Energy Corporation
________

Serial No. 78440691
_______

Mark E. Tetreault of Barlow, Josephs & Holmes, Ltd., for
Emissive Energy Corporation.

Alex Seong Keam, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Hohein, Hairston, and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On June 24, 2004, applicant Emissive Energy
Corporation filed an intent-to-use application (No.
78440691) to register on the Principal Register (in
standard character form) the term:
T2
for “flashlights” in Class 11.
The examining attorney has refused to register
applicant’s mark under Section 2(d) of the Trademark Act,
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 78440691
2
15 U.S.C. § 1052(d), because of Registration No. 2,591,220,
issued July 9, 2002, for the mark (in standard character
form):
SLIQUE T2
for “electric lighting fixtures” in Class 11.
The examining attorney’s position is that applicant’s
“mark is essentially the registered mark with one element
deleted.” Brief at unnumbered p. 3. Furthermore, the
examining attorney argues that “applicant cannot now
dispute the registrant’s use of the mark or a portion
thereof.” Brief at unnumbered p. 5. Finally, the
examining attorney introduced numerous registrations that
show that the same mark has been registered by a common
entity for flashlights and electric lighting fixtures,
including one (No. 2,564,808) apparently owned by
applicant. A sample of these registrations include: Nos.
2,372,511 (flashlights and electrical lighting fixtures);
2,586,147 (flashlights, electrical nightlights, electrical
lighting fixtures, table lamps, wall lamps, and desk
lamps); 2,717,502 (table and desk lamps, electric night
lights, flashlights, electric lighting fixtures, and lamp
shades); 2,655,043 (electric lighting fixtures, lamps,
electric nightlights, and flashlights); and 2,663,283
Ser No. 78440691
3
(electric lighting fixtures, electric lighting tubes and
flashlights).1
Applicant responds by arguing (Brief at 2-3) that:
Registrant’s mark SLIQUE T2 is registered in
connection with electric light fixtures.
Specifically, the Applicant presented evidence in the
response dated July 27, 2005 that detailed the actual
products sold by the registrant in connection with the
mark SLIQUE T2. The SLIQUE T2 product is described in
the Registrant’s product literature as an “under
cabinet/display subminiature fluorescent” task
lighting fixture. Further, the product literature
clearly designates that the lighting fixture utilizes
T2 subminiature fluorescent lamps.

Applicant attached a page that apparently describes
registrant’s SLIQUE T2 product. The page has a column
labeled “Specifications” and it contains the following
headings: Construction, Diffuser, Finish, Installation
Features, Labels, Lamps, and Lifetime Guarantee. Under
“Construction,” the specification lists the following

1 The examining attorney also submitted an article from the
Internet entitled “Lighting Fixtures & Equipment” but it appears
to be, at best, equivocal support for the examining attorney’s
position:
SBI has released an in-depth analysis of the $16.5 billion
U.S. lighting fixture and equipment industry. The study
covers all industry sectors of this growing and profitable
market including:
- Residential Lighting Fixtures
- Commercial/Industrial Lighting Fixtures
- Portable Electric Lamps
- Outdoor Lighting Fixture[s] and Equipment
- Flashlights & Related Products
- Non-Electric Lighting Fixtures and Lamps using
their own power source
The story does not show that flashlights and light fixtures
originate from a common source.
Ser No. 78440691
4
information: “Extruded aluminum housing with injection
molded polycarbonate endcaps. Internal specular aluminum
asymmetric reflector.” More directly under “Lamps,” the
following information (emphasis added) is set out:
1 or 2 FM11/H or FM13/H T2 subminiature fluorescents.
Supplied with 3000K tri-phosphor lamps. Optional
4100K lamps are available. 10,000 hour rated average
lamp life. CRI 80.

Furthermore, applicant argues that the term T2 is a
model or grade designation and it is merely descriptive of
registrant’s goods. However, applicant (brief at 3)
distinguishes its T2 mark for its goods:
In contrast, the Applicant is selling portable LED
flashlights using the various flashlight brand names
T1, T2, T3, T4 and T5. The Applicant has adopted
these trademarks because this particular line of high
brightness flashlights is manufactured and marketed as
a tactical/police grade of lights. The Applicant has
therefore adopted the T designation to evoke the
underlying tactical designation of the flashlights.
With regard to the T2 brand of the present
application, the T2 does not indicate any particular
model, component, lamp, grade or level of flashlight,
it is simply utilized to differentiate the Applicant’s
line of flashlights from others selling competitive
flashlights.

After the examining attorney made the refusal final,
this appeal followed.
When there is a question of likelihood of confusion,
we analyze the facts as they relate to the relevant factors
set out in In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). See also In re E. I.
Ser No. 78440691
5
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); and Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1896 (Fed. Cir. 2000). In considering the
evidence of record on these factors, we must keep in mind
that “[t]he 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.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976).
In this case, we begin by looking at the relationship
between the goods, flashlights and electric lighting
fixtures. The examining attorney’s evidence of
registrations certainly suggests that these goods are
related. In re Infinity Broadcasting Corp. of Dallas, 60
USPQ2d 1214, 1217-18 (TTAB 2001) (“The registrations show
that entities have registered their marks for both
television and radio broadcasting services. Although these
registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they
nevertheless have probative value to the extent that they
serve to suggest that the services listed therein,
including television and radio broadcasting, are of a kind
which may emanate from a single source. See, e.g., In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
Ser No. 78440691
6
1993); and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d
1467, 1470 at n. 6 (TTAB 1988)"). We add that while the
goods are related, it is also clear that they are not
identical.
The next question concerns whether the marks in their
entirety are similar. We compare their similarities in
sound, appearance, meaning, and commercial impression.
“When it is the entirety of the marks that is perceived by
the public, it is the entirety of the marks that must be
compared.” Opryland USA Inc. v. Great American Music Show
Inc., 970 F.2d 847, 23 USPQ 1471, 1473 (Fed. Cir. 1992).
However, “there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of the mark, provided [that] the
ultimate conclusion rests on consideration of the marks in
their entireties.” In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
The comparison of the marks in this case is fairly
straightforward. Neither mark contains a design or
stylization. Registrant’s mark is for the term SLIQUE T2
while applicant’s mark is simply T2. Obviously, the marks
are similar because they both contain the same term T2.
They are different inasmuch as registrant’s mark adds the
term SLIQUE. The term SLIQUE is phonetically similar to
Ser No. 78440691
7
the word “sleek.” There is no evidence that either term is
highly suggestive or has any meaning in the relevant trade.
The term SLIQUE is a significant feature of registrant’s
mark. When the terms SLIQUE T2 and T2 are compared, the
addition of the word SLIQUE at the beginning of
registrant’s mark changes the appearance, sound, meaning,
and commercial impression of the marks. It is a difficult
term to overlook and we have no reason to believe that
consumers will discount the term when they encounter it.
Furthermore, when we look at the term T2, there is
evidence that at least with respect to registrant’s
electric lighting fixtures, the term is highly suggestive.
Applicant has submitted evidence to show that registrant
itself uses the term in the following manner: “1 or 2
FM11/H or FM13/H T2 subminiature fluorescents.” This
evidence suggests that the term may have some suggestive
meaning in the trade. It also indicates that SLIQUE would
be the dominant part of the registrant’s mark.
Here, when we compare applicant’s and registrant’s
marks and goods, we find that, while flashlights and
electric lighting fixtures are related, they are not
identical and there are significant differences between the
goods themselves. The marks themselves are different
inasmuch as SLIQUE T2 contains the word SLIQUE, which is a
Ser No. 78440691
8
significant term absent from applicant’s mark. Considering
these factors, we conclude that confusion is not likely in
this case. Bongrain International (American) Corp. v.
Delice de France, Inc., 811 F.2d 1479, 1 USPQ2d 1775, 1779
(Fed. Cir. 1987) (The “statute refers to likelihood, not
the mere possibility, of confusion”). See also Champagne
Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373,
47 USPQ2d 1459, 1460 (Fed. Cir. 1998) (“CRISTAL and CRYSTAL
CREEK evoke very different images in the minds of relevant
consumers”).
Decision: The refusal to register is reversed.