IQ Hong Kong, Ltd.

Trademark Trial and Appeal Board

Dec 19, 2008

No. 77195403 (T.T.A.B. Dec. 19, 2008)

Mailed: 12/19/08

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re IQ Hong Kong, Ltd.
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Serial No. 77195403
_______

Mark D. Schneider of Gifford, Krass, Sprinkle, Anderson &
Citkowski for IQ Hong Kong, Ltd.

Ingrid Eulin, Trademark Examining Attorney, Law Office 111
(Craig D. Taylor, Managing Attorney).
_______

Before Quinn, Rogers and Mermelstein, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

IQ Hong Kong, Ltd. filed an application to register
the mark SEE for “dynamo powered toys, namely, electronic
toy vehicles, insects and animals” in International Class
28.1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 77195403, filed June 1, 2007, alleging
first use anywhere and first use in commerce on February 1, 2007.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 77195403
2
§1052(d), on the ground that applicant’s mark, when used in
connection with applicant’s goods, so resembles the
previously registered mark SEE’S for “children’s multiple
activity toys, and party favors in the nature of small
toys”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.3
We first turn our attention to an evidentiary matter.
Applicant submitted with its appeal brief evidence
identified as Exhibits A, B, C and D. The examining
attorney, in her brief, notes that applicant “has provided
copies of new and previously provided evidence.” The
examining attorney specifically objects to the untimely
submission of the new evidence identified as document B2 of
Exhibit C, and the documents comprising Exhibit D.
Applicant did not respond to the objection in its reply
brief.
The objection is well taken in part. Trademark Rule
2.142(d) provides that the record in the application should
be complete prior to the filing of an appeal. The Board
will ordinarily not consider additional evidence after the

2 Registration No. 1549260, issued July 25, 1989; Section 8
affidavit accepted, Section 15 affidavit acknowledged.
3 The examining attorney’s request in her brief to take judicial
notice of the dictionary definitions of the term “see” is
granted.
Ser. No. 77195403
3
appeal is filed. See TBMP §1207.01 (2d ed. rev. 2004).
Document B2 of Exhibit C, a photo of packaging for one of
applicant’s toys, was submitted for the first time with the
appeal brief and, thus, is untimely. Exhibit D comprises a
TESS printout of several registrations owned by registrant,
together with photocopies of some of the registrations.
The TESS printout was submitted for the first time with
applicant’s request for reconsideration; at the time of
this earlier submission, the photocopies of the
registrations did not accompany the TESS search summary.
Inasmuch as the TESS printout was timely introduced, it
properly forms part of the record. The photocopies of the
registrations, however, do not form part of the record.
Accordingly, the examining attorney’s objection to
document B2 of Exhibit C and the photocopies of the
registrations included in Exhibit D is sustained. We
hasten to add, however, that even if this evidence were
considered, we would reach the same result on the merits of
this appeal.
With respect to the likelihood of confusion issue,
applicant asserts that its mark SEE is an acronym for
“Safety, Ecology and Economy” inasmuch as its goods do not
require batteries. The registered mark SEE’S, according to
applicant, is the possessive surname of Mary See, a candy
Ser. No. 77195403
4
maker in the early twentieth century. Thus, applicant
contends, the marks convey significantly different
commercial impressions. Applicant also argues that
punctuation is important in distinguishing the marks in
terms of appearance, with an apostrophe “S” included in the
registered mark. In support of its position applicant
submitted excerpts from registrant’s website, a TESS
printout of certain registered marks of registrant, and an
example of applicant’s packaging. As to the goods,
applicant claims that its goods are not small toys and that
the reasonably sophisticated nature of its toys would
exclude them from consideration as a party favor.
The examining attorney maintains that the marks are
“highly similar” in that the only difference between them
is the possessive apostrophe “S” in the registered mark,
which does not distinguish them. As to the goods, the
examining attorney contends that applicant and registrant
both are providing small novelty-type toy items, and that
applicant’s toys are capable of being used as party favors.
In support of the refusal the examining attorney introduced
dictionary definitions of the terms “see” and “party
favor,” and excerpts of applicant’s website.
Our determination of likelihood of confusion is based
on an analysis of all of the probative facts in evidence
Ser. No. 77195403
5
that are relevant to the factors set forth in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also In re Majestic Distilling Co., Inc., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
With respect to the marks, we must compare the marks
in their entireties as to appearance, sound, connotation
and commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test, under the
first du Pont factor, is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression that confusion
as to the source of the goods and services offered under
the respective marks is likely to result. The focus is on
the recollection of the average purchaser, who normally
retains a general rather than a specific impression of
Ser. No. 77195403
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trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
The marks SEE and SEE’S look and sound alike. We
acknowledge that the marks may convey different
connotations in that “see” is a commonly understood and
recognized word meaning, among other things, “to perceive
with the eye,”4 whereas the term “See’s,” given the
apostrophe and subsequent “s,” may be perceived as the
possessive form of the surname “See.” We find, however,
that any difference is clearly outweighed by the
similarities in sound and appearance. The marks engender
very similar overall commercial impressions. The
possessive form of the registered mark has little, if any,
significance for consumers in distinguishing the two marks.
See, e.g., Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339,
341 (CCPA 1957); and Georgia-Southern Oil Inc. v.
Richardson, 16 USPQ2d 1723, 1725 (TTAB 1990).
The similarity between the marks SEE and SEE’S weighs
in favor of finding a likelihood of confusion.
Insofar as the goods are concerned, if the marks are
the same or almost so as in the present case, it is only

4 Consumers are far more likely to ascribe the common meaning to
“see” than its acronym meaning invented by applicant. Unless one
is looking at the packaging for applicant’s toys, a consumer is
not likely to even be aware of the acronym meaning suggested by
applicant.
Ser. No. 77195403
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necessary that there is a viable relation between the goods
and/or services to support a holding of likelihood of
confusion. See In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1689 (Fed. Cir. 1993); and In re Opus Wine
Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). The issue, of
course, is not whether purchasers would confuse the goods,
but rather whether there is a likelihood of confusion as to
the source of the goods. In re Rexel Inc., 223 USPQ 830
(TTAB 1984).
In comparing the goods, we also note that the question
of likelihood of confusion must be determined based on an
analysis of the goods recited in applicant’s application
vis-à-vis the goods identified in the cited registration.
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.
4 (Fed. Cir. 1993); and Canadian Imperial Bank v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992).
Where the goods in the application at issue and/or in the
cited registration are broadly identified as to their
nature and type, such that there is an absence of any
restrictions as to the channels of trade and no limitation
as to the classes of purchasers, it is presumed that in
scope the identification of goods encompasses not only all
the goods of the nature and type described therein, but
that the identified goods are offered in all channels of
Ser. No. 77195403
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trade which would be normal therefore, and that they would
be purchased by all potential buyers thereof. In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Both the involved application and cited registration
include goods that may be broadly characterized as toys.
Registrant’s toys include small toys used as party favors,5
while applicant’s toys, contrary to the gist of its
remarks, likewise include small toys (albeit dynamo-
powered) as shown by the specimen of record. Although
applicant argues that its toys would not be used as party
favors, there is nothing in the record to support this
proposition.
As identified, the goods are likely to travel in
similar trade channels such as toy stores and the toy
departments of mass merchandisers.6 Further, the same

5 The dictionary definitions of record uniformly define “party
favor” as “a small gift given to a guest at a party, as a
souvenir.” See, e.g., www.dictionary.com.
6 In referencing registrant’s web page, applicant contends that
registrant is a candy manufacturer, and that registrant’s goods
would be sold only in registrant’s candy stores. The problem
with this argument is that there is no such restriction in
registrant’s identification of goods, and we must presume that
registrant’s toys would travel in all of the normal trade
channels for such goods. Further, applicant may not restrict the
scope of registrant’s goods through the use of extrinsic
evidence. In re Bercut-Vandervoort & Co., 229 USPQ 763, 764
(TTAB 1986). “While we are sympathetic to applicant’s concern
about the scope of protection being given to the cited
registrations, applicant is not without remedies...Applicant may,
of course, seek a consent from the owner of the cited
registrations, or applicant may seek a restriction under Section
Ser. No. 77195403
9
classes of purchasers, including ordinary consumers, would
buy the respective goods. Given that the goods include
small toys, nothing more than ordinary care would likely be
utilized in purchasing decisions.
We conclude that consumers familiar with “children’s
multiple activity toys, and party favors in the nature of
small toys” of registrant, sold under the mark SEE’S, upon
encountering applicant’s mark SEE for “dynamo powered toys,
namely, electronic toy vehicles, insects and animals,” are
likely to believe that the respective toys originate from
or are associated with or sponsored by the same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior
registrant. In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.

18 of the Trademark Act, 15 USC §1068.” See In re N.A.D. Inc.,
57 USPQ2d 1872, 1874 (TTAB 2000).