Linux Networx, Inc.

Trademark Trial and Appeal Board

May 23, 2008

No. 78854514 (T.T.A.B. May. 23, 2008)

Mailed: May 23, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Linux Networx, Inc.
________

Serial No. 78854514
_______

Thomas M. Hardman of Madson & Austin for Linux Networx,
Inc.

Linda A. Powell, Trademark Examining Attorney, Law Office
117 (Loretta C. Beck, Managing Attorney).
_______

Before Walters, Kuhlke and Bergsman, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Linux Networx, Inc. seeks registration on the
Principal Register of the mark LNXI (standard character
format) for goods identified as “cluster computer system
hardware comprising central processing units (CPUs),
computers and servers; cluster computer system software for
high performance computations; supercomputer systems
comprising central processing units (CPUs), computers and
servers; supercomputer systems central processing units
(CPUs), computers and servers designed for use with open
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78854514
2
source computer operating systems; computer hardware and
computer networks consisting of multiple computers;
computer software, namely, operating system software for
enhancing high performance and high availability computer
hardware and computer networks; computer software for the
setup, configuration and management of cluster computer
systems and supercomputer systems, computer operating
system software and multiple computers in a networked
environment,” in International Class 9, and services
identified as “computer consultation; design of high
performance and high availability computer systems, cluster
computer systems, supercomputer systems, multiple computer
systems and computer networks,” in International Class 42.1
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used with its identified goods and
services, so resembles the registered mark LINUX (in typed
form) for “computer operating system software to facilitate
computer use and operation,” in International Class 9, as
to be likely to cause confusion, mistake or deception.2

1 Application Serial No. 78854514, filed April 5, 2006, alleging
a bona fide intention to use the mark in commerce under Section
1(b) of the Trademark Act, 15 U.S.C. §1051(b).

2 Registration No. 1916230, issued September 5, 1995, renewed.
Serial No. 78854514
3
When the refusal was made final, applicant appealed
and filed a request for reconsideration. On August 24,
2007, the examining attorney denied the request for
reconsideration. Thereafter, the appeal was resumed and
fully briefed. We affirm the refusal to register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence 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,
two key considerations are the similarities between the
marks and the similarities between the goods and services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We begin our analysis by first noting that during the
prosecution of this application, applicant submitted a copy
of the licensing agreement between it and registrant,
regarding applicant’s use of the mark LINUX. As the
examining attorney correctly indicates, the license permits
applicant to use the mark LINUX, but “the license is not
permission to register the registrant’s mark that is the
subject of the agreement.” Br. p. 7 (emphasis in
Serial No. 78854514
4
original). This licensing agreement clearly does not
support applicant’s position with regard to its
registration of LNXI.
We turn first to a consideration of the goods and
services identified in the application and the cited
registration. It is well settled that goods and services
need not be similar or competitive in nature to support a
finding of likelihood of confusion. The question is not
whether purchasers can differentiate the goods and services
themselves, but rather whether purchasers are likely to
confuse the source of the goods and services. See Helene
Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). Further, we must consider the cited
registrant’s goods as they are described in the
registration and we cannot read limitations into those
goods. See Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1987). If the cited
registration describes goods broadly, and there is no
limitation as to the nature, type, channels of trade or
class of purchasers, it is presumed that the registration
encompasses all goods of the type described, that they move
in all channels of trade normal for these goods, and that
Serial No. 78854514
5
they are available to all classes of purchasers for the
described goods. See In re Linkvest S.A., 24 USPQ2d 1716
(TTAB 1992).
Applicant’s “supercomputer systems central processing
units (CPUs), computers and servers designed for use with
open source computer operating systems” are designed for
use with registrant’s type of software, and applicant’s
“computer software, namely, operating system software for
enhancing high performance and high availability computer
hardware and computer networks” is encompassed by
registrant’s broad identification “computer operating
system software to facilitate computer use and operation.”
In fact, it is clear from the record that all of
applicant’s goods are designed to be compatible and/or used
with registrant’s specific goods. For example, applicant’s
original identification of goods included the following
statement, “supercomputer systems running the Linux
operating system.” In addition, the following appears on
applicant’s website “LNXI – The Linux Supercomputing
Company...This range of Linux Supercomputers blends price
performance value with a total systems approach.”
Applicant’s December 14, 2006 Response pp. 32-33.
Applicant argues that its software is different and
that “[t]he operating system software that is associated
Serial No. 78854514
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with the cited mark does not satisfy all of the functional
requirements of ‘high performance ... computer hardware and
computer networks’ that are provided by Applicant’s goods.”
Br. pp. 9-10 (emphasis in original). However, there is no
limitation in registrant’s identification to exclude
functional requirements of high performance computer
hardware. Moreover, it is clear from the record that
registrant’s goods, at a minimum, form the base of or are
in some way integrated into applicant’s goods.
With regard to applicant’s services, “computer
consultation; design of high performance and high
availability computer systems, cluster computer systems,
supercomputer systems, multiple computer systems and
computer networks,” the following expert from applicant’s
website illustrates how its services are related to
registrant’s goods:
We offer a range of Services to support all
stages of our customers’ supercomputing
deployment and operations. Our commitment is to
deliver the best Linux supercomputing experience
in the industry.

Applicant’s December 14, 2006 Response p. 29.

Applicant’s design and consulting services include the
use of registrant’s operating software. As noted by the
examining attorney:
Serial No. 78854514
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The applicant’s services are presumed to be in
support of software and hardware compatible with
the registrant’s computer operating system and
derivations of the registrant’s computer
operating software.

Br. p. 11.

With regard to the channels of trade, applicant argues
that:
Applicant’s goods will not be marketed in the
same stores, through the same outlets, or to the
same customers as the goods associated with the
cited registration. Accordingly, there is no
evidence that consumers will encounter these
goods in situations likely to cause confusion.

Br. p. 9.

First, there are no specific limitations in either the
registration or the subject application, thus, we must
presume that applicant’s and registrant’s goods will be
sold in the some of the same channels of trade and will be
bought by the some of the same classes of purchasers. See
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1813 (Fed. Cir. 1987); and In re Smith and
Mehaffey, 31 USPQ2d 1531 (TTAB 1994). Applicant’s
arguments regarding its actual channels of trade and
attempts to limit registrant’s channels of trade fail
inasmuch as one may not restrict the scope of registrant’s
identification of goods by extrinsic evidence. See In re
Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
Serial No. 78854514
8
Moreover, to the extent applicant’s systems incorporate the
LINUX operating system the goods and services are traveling
through the same channels of trade.
In view of the above, the du Pont factors of the
relatedness of the goods and services, and the channels of
trade favor a finding of likelihood of confusion as to the
mark in the cited registration.
We turn now to the first du Pont factor, i.e., whether
applicant’s mark LNXI and registrant’s mark LINUX are
similar or dissimilar when compared in their entireties in
terms of appearance, sound, connotation and commercial
impression. The analysis is not whether the marks can be
distinguished when compared side-by-side. Rather, we must
determine whether the marks are sufficiently similar that
there is a likelihood of confusion as to source and, in
making this determination, we must consider the
recollection of the average purchaser who normally retains
a general, rather than specific, impression of trademarks.
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975). In this case, the average purchaser is a
sophisticated or knowledgeable consumer in the field of
cluster computers, supercomputers and complex computer
networks, as well as licensing LINUX operating systems.
Serial No. 78854514
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See the discussion infra regarding the sophistication of
the overlapping purchasers.
The appearance of the marks is very similar in that
applicant’s mark LNXI comprises the consonants LNX in the
same order as they appear in the cited mark LINUX. This
similarity is accentuated because the two marks are similar
in size: LINUX has 5 letters and LNXI has 4 letters. In
addition, because LINUX is advertised in connection with
applicant’s LNXI computers, the potential consumers will
tend to focus on the similarities of the marks, rather than
the differences.
With regard to the connotation of the respective
marks, LNX is a known abbreviation for registrant’s mark
LINUX. See June 10, 2006 Office Action, pp. 23-24,
www.acronymfinder.com (LNX means LINUX (operating system)).
Thus, within the context of these goods and services the
connotation of the marks LNXI and LINUX is identical.
Applicant’s argument that the connotation of its mark
is different because LNXI is the abbreviation of its trade
name is not persuasive. First, typically an abbreviation
of a company name would consist of the first letters of
each word, not the randomly selected capitalized letters.
More importantly, we must analyze the marks as they appear
in the drawing and applicant’s trade name is not included
Serial No. 78854514
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in the drawing. It has been noted that the derivations of
letter marks and acronyms are of no particular
significance. See Aerojet-General Corp. v. Computer
Learning and Systems Corp., 170 USPQ 358, 362 (TTAB 1971).
See also Edison Brothers Stores, Inc. v. Brutting E. B.
Sport-International GmbH, 230 USPQ530, 533 (TTAB 1986).
The addition of “I” to the end of applicant’s mark is
not sufficient to distinguish the appearance or connotation
from the registered mark LINUX or its recognized
abbreviation, i.e., LNX. Trademarks may be confusingly
similar in appearance despite the addition, deletion or
substitution of letters. Weiss Associates Inc. v. HRL
Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir.
1990) (TMM held confusingly similar to TMS, both for
software); Canadian Imperial Bank of Commerce, N.A. v.
Wells Fargo Bank, 81 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987) (COMMCASH held confusingly similar to COMMUNICASH,
both for banking services). Moreover, as noted by the
examining attorney “given the propensity for software to be
numerically labeled by number for subsequent versions of
the original, the term is as easily interpreted as the
Arabic Numeral “1,” or as a Roman Numeral “I” in the
context of software.” Br. p. 7. Thus, the addition of “I”
can serve to increase the likelihood of confusion by
Serial No. 78854514
11
indicating to a potential consumer that this is a
particular version of a LINUX or LNX system.
Applicant argues that the marks are not pronounced the
same in that “applicant’s mark is pronounced L-N-X-I, with
each letter being pronounced individually [and t]his sounds
nothing like the cited mark,” LINUX. Br. p. 7. The
examining attorney asserts that the first three letters of
applicant’s mark, LNX, and registrant’s mark LINUX are
phonetic equivalents and thus there is a similarity in
sound. The examining attorney points to the public’s
awareness of the “phonetic spellings of words via vanity
license plates and text messaging on telephones and
computers.” Br. p. 5.
There is no proper pronunciation of a trademark
because it is impossible to predict how the public will
pronounce a particular mark and correct pronunciation
cannot be relied on to avoid a likelihood of confusion.
See Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ
461 (TTAB 1985). In keeping with this guideline, we are
not persuaded by the examining attorney’s argument with
regard to the public’s perception as illustrated by vanity
license plates. Similarly, we cannot accept that the only
way LNXI would be pronounced is by its separate letters.
We find this element neutral in our analysis.
Serial No. 78854514
12
Overall we find that the marks LNXI and LINUX have a
very similar commercial impression, in particular given the
connotation in view of registrant’s known acronym LNX and
the practice in the software industry to number various
versions of products. Therefore, the factor of the
similarity of the marks weighs in favor of likelihood of
confusion.
Finally, applicant’s arguments regarding the fourth du
Pont factor, i.e., the conditions under which and buyers to
whom sales are made, i.e., impulse versus careful,
sophisticated purchasing, do not lead us to a different
conclusion. Applicant argues that the purchasers of its
goods are exclusively sophisticated purchasers and that the
purchasing decision is made with care. Specifically,
applicant argues:
In the present situation, Applicant’s goods are
high end goods that are associated with cluster
computers, supercomputers, and extremely complex
computer networks. Such supercomputers and
cluster computers are extremely complex,
expensive, and are marketed only to
sophisticated, high-end purchasers. In contrast,
the goods of the cited registration are operating
systems – i.e., the mark is used in connection
with the open source operating system that was
originally designed by Linus Torvalds. The
purchasers of Applicant’s goods clearly
understand the differences between the LINUX
operating system and the supercomputers/cluster
computers and related software associated with
Applicant’s mark. The purchasers of these
products need high performance computers to
Serial No. 78854514
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perform specialized computing tasks.... Because
Applicant’s mark is used in connection with
complex, expensive cluster computers or
supercomputers, and because purchasers of
Applicant’s goods are highly sophisticated, this
factor supports a finding that there is no
likelihood of confusion.

Br. p. 9.

We accept that purchasers of applicant’s goods and
services would have some degree of sophistication and
exercise a higher level of care in their purchasing
decision. However, as the examining attorney notes, the
fact that purchasers are sophisticated or knowledgeable in
a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks
or immune from source confusion. See In re Decombe, 9
USPQ2d 1812 (TTAB 1988). We find that to the extent this
factor weighs in favor of applicant it does not outweigh
the other relevant du Pont factors in this case.
In conclusion, we find that because the marks are
similar, the goods and services are related, and the
channels of trade and purchasers overlap, confusion is
likely between applicant’s mark and the mark in the cited
registration.
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.