Mad DogMultimedia, Inc.

Trademark Trial and Appeal Board

May 15, 2006

No. 78407114 (T.T.A.B. May. 15, 2006)

Mailed:
May 15, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Mad Dog Multimedia, Inc.
________

Serial No. 78407114
_______

AnneMarie Kaiser of Knobbe, Martens, Olson & Bear, LLP for
Mad Dog Multimedia, Inc.

Tracy Whittaker-Brown, Trademark Examining Attorney, Law
Office 111 (Craig D. Taylor, Managing Attorney).
_______

Before Seeherman, Hairston and Grendel, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration on the Principal Register
of the mark MEGASTOR in standard character (typed) form for
goods identified in the application, as amended, as
“computer components and peripherals, namely, internal DVD-
RW drives and external DVD-RW drives.”1

1 Serial No. 78407114, filed April 23, 2004. The application is
based on applicant’s asserted bona fide intent to use the mark in
commerce. Trademark Act Section 1(b), 15 U.S.C. §1051(b).

THIS OPINION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78407114
2
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that, as applied to applicant’s goods, the mark
so resembles the mark MEGASTORAGE, previously registered on
the Principal Register in standard character form for
“audio and video disc players, and audio and video disc
changers,”2 as to be likely to cause confusion, to cause
mistake, or to deceive. Trademark Act Section 2(d), 15
U.S.C. §1052(d). We affirm the refusal to register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003); In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).

2 Registration No. 2159379, issued May 19, 1998. Affidavits
under Sections 8 and 15 accepted and acknowledged. The
registration is owned by Sony Kabushiki Kaisha TA Sony
Corporation.

Ser. No. 78407114
3
Under the first du Pont factor, we must determine
whether applicant’s mark, MEGASTOR, and the cited
registered mark, MEGASTORAGE, are similar or dissimilar
when compared in their entireties in terms of appearance,
sound, connotation and commercial impression. See Palm Bay
Imports, Inc., supra. The test 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 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
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
In terms of appearance, we find that MEGASTOR and
MEGASTORAGE, both of which are depicted in standard
character form in the application and cited registration,
respectively, are identical but for the last three letters
in the cited registered mark, “AGE.” The marks consist of
or include the same first eight letters, i.e., MEGASTOR.
That basic point of similarity in the marks’ appearances is
of greater significance than the sole point of
Ser. No. 78407114
4
dissimilarity between the marks, i.e., the additional
letters “AGE” in the cited registered mark.
In terms of sound, we find that the marks are
identical but for the last syllable of the cited registered
mark, “AGE.” Applicant’s mark MEGASTOR sounds the same as
the first two syllables of the cited registered mark, a
point of similarity between the marks which is of greater
significance than the sole point of dissimilarity between
the marks, i.e., the additional syllable “AGE” at the end
of the cited registered mark.
In terms of connotation, we find as follows. The
“MEGA” component with which each of the marks starts means
the same thing in each mark, i.e., “large,” “surpassing
other examples of its kind; extraordinary.”3 We are not
persuaded that this term is merely descriptive, as argued
by applicant. At most, it is suggestive of the goods at
issue.
Next, the evidence of record includes the following
dictionary definitions of “storage” and “store”:4

3 This definition from The American Heritage® Dictionary of the
English Language (4th ed. 2000) is of record.

4 Both definitions are from The American Heritage® Dictionary of
the English Language (4th ed. 2000).

Ser. No. 78407114
5
“storage”:

Abbr. stge., stor.
1. a. The act of storing goods or the state of
being stored. b. A space for storing goods. c.
The price charged for keeping goods stored. 2.
The charging or regenerating of a storage
battery. 3. Computer Science. The part of a
computer that stores information for subsequent
use or retrieval.

“store”:
NOUN: 1. A place where merchandise is offered
for sale; a shop. 2. A stock or supply
reserved for future use: a squirrel’s store of
acorns. 3. stores. Supplies, especially of
food, clothing, or arms. 4. A place where
commodities are kept; a warehouse or
storehouse. 5. A great quantity or number; an
abundance.

TRANSITIVE VERB: 1. To reserve or put away
for future use. 2. To fill, supply, or stock.
3. To deposit or receive in a storehouse or
warehouse for safekeeping. 4. Computer
Science. To copy (data) into memory or onto a
storage device, such as a hard disk.

Based on this dictionary evidence, we find, first, that
because “stor.” is specifically identified as an
abbreviation for “storage,” to that extent the “STOR”
component of applicant’s mark and the “STORAGE” component
of the cited registered mark are similar in meaning..
However, we also find persuasive applicant’s contention
that “STOR” in its mark could be perceived by purchasers as
a misspelling of the word “store,” and that as applied to
Ser. No. 78407114
6
applicant’s goods, “STOR” would have the “computer science”
transitive verb meaning quoted above, i.e., “to copy (data)
into memory or onto a storage device, such as a hard disk.”
“STORAGE,” as it appears in the cited registered mark and
as applied to the registrant’s goods, would have the
connotation of “the act of storing goods or the state of
being stored,” or “a space for storing goods.” The “goods”
being stored in this context would be compact discs (CDs)
or digital video discs (DVDs), as well as the data
contained on such discs.
We agree with applicant’s contention that, as applied
to the respective goods, the respective marks have slightly
different specific connotations. MEGASTORAGE as applied to
registrant’s goods connotes “providing an extraordinary
space for storing goods, i.e., discs and digital data,” and
MEGASTOR as applied to applicant’s goods connotes “an
extraordinary ability to copy data into memory or onto a
storage device.” However, despite this difference in the
specific connotations of the marks, we find that the marks
share a more basic similarity in connotation at the core;
they both connote “extraordinary ability to store.” This
basic and underlying similarity in connotation is more
significant, in our comparison of the marks, than any
difference in the more specific connotations of the marks.
Ser. No. 78407114
7
Turning finally to a comparison of the marks in terms
of overall commercial impression, we reject applicant’s
argument that the marks present different commercial
impressions because both applicant and registrant always
use their house marks in conjunction with the marks at
issue. Our comparison of the marks must be based on the
marks as they appear in the drawings of the application and
registration, respectively, neither of which includes a
house mark. See Frances Denney v. Elizabeth Arden Sales
Corp., 263 F.2d 347, 120 USPQ 480 (CCPA 1959); INB National
Bank v. Metrohost Inc., 22 USPQ2d 1585 (TTAB 1992); Blue
Cross and Blue Shield Association v. Harvard Community
Health Plan Inc., 17 USPQ2d 1075 (TTAB 1990). When we make
that comparison, we find that applicant’s mark and the
cited registered mark are similar rather than dissimilar in
terms of overall commercial impression. Each of the marks
comprises a composite consisting of the designation MEGA
joined to a form of the word STORE. This basic similarity
outweighs any specific points of dissimilarity between the
marks.
Comparing the marks in their entireties as to
appearance, sound, connotation and overall commercial
impression, we conclude that the marks are similar rather
Ser. No. 78407114
8
than dissimilar. The first du Pont factor accordingly
weighs in favor of a finding of likelihood of confusion.
We turn next to the second du Pont factor, which
requires us to consider the similarity or dissimilarity
between the goods identified in the application and in the
cited registration. It is settled that it is not necessary
that the respective goods be identical or even competitive
in order to support a finding of likelihood of confusion.
That is, the issue is not whether consumers would confuse
the goods themselves, but rather whether they would be
confused as to the source of the goods. It is sufficient
that the goods be related in some manner, or that the
circumstances surrounding their use be such that they would
be likely to be encountered by the same persons in
situations that would give rise, because of the marks used
thereon, to a mistaken belief that they originate from or
are in some way associated with the same source or that
there is an association or connection between the sources
of the respective goods. See In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991);
and In re International Telephone & Telegraph Corp., 197
USPQ 910 (TTAB 1978).
Ser. No. 78407114
9
The record includes dictionary definitions of the
words “player” and “changer” appearing in the cited
registration’s identification of goods.5 “Player” is
defined as “a machine that reproduces recorded audio or
audiovisual material.” “Changer” is defined as “a device
that causes each of a series of audio or audiovisual
recordings to be played automatically: a record changer; a
compact disk changer.”
Applicant has submitted a printout from its website,
which includes the following pertinent text describing the
features of applicant’s goods:

The MegaSTOR 6-in-1 supports the newest DVD+R
standard (DVD+R DL) thus allowing you to store
up to 80% more data on one disc. If you are an
audio enthusiast, office professional or movie
fanatic, the MegaSTOR 6-in-1 is YOUR versatile
entertainment and largest capacity storage
solution. Because MegaSTOR is a Dual Format
burner and is backward compatible to support
single layer media, you will have the
flexibility to write or rewrite on ANY CD-R,
CD-RW, DVD±R or DVD±RW media. All of these
features in one great product combined with our
industry leading 2 Year Warranty enforce Mad

5 Both definitions are from The American Heritage® Dictionary of
the English Language (4th ed. 2000). We take judicial notice of
these definitions, submitted by applicant with its brief.

Ser. No. 78407114
10
Dog Multimedia’s commitment to Uncompromising
Excellence.

...

Features

● 16X DVD±R Writer
Simplify! Convert your old VCR tapes to a
manageable number of DVD discs that will last
for generations. Create digital photo albums
that will last forever! Supports all popular
formats including DVD-Video, DVDData, DVD+R,
DVD-R and DVD-RW.

...

● 16X DVD-ROM
Access your movies fast – 140ms average access
time. Watch your favorite home movies that you
create or your favorite movies. Supports DVD-R
discs, Video discs and Photo CDs.

...

Applicant argues that its goods and the registrant’s
goods are not identical and are used for different
purposes. That is, applicant’s goods are a computer
peripheral product used to store data on discs, a function
which registrant’s disc players and changers does not
perform, because they are home entertainment products used
only to play or reproduce data on discs. However, it
appears from the material quoted above that one feature of
applicant’s product (“16X DVD-ROM”) is that it may be used
to “watch your favorite movies,” presumably on the user’s
computer screen. To that extent, the goods appear to be
Ser. No. 78407114
11
similar in that they can be used for the same purpose,
i.e., watching movies on DVD.
Moreover, even if these goods are not identical in
terms of function, we find that they are similar because
they are compatible products. Applicant’s product,
according to its product specification sheet quoted above,
can be used to “convert your old VCR tapes to a manageable
number of DVD discs.” It is apparent that the user would
be able to use applicant’s product to create or duplicate
DVDs which then could and would be played using disc
changers and players like registrant’s.6 It is likely that
a purchaser with a collection of VCRs who intends to
upgrade his or her home entertainment system would be in
the market for both an optical drive like applicant’s to
convert VCRs to DVD, and for a DVD player like registrant’s
upon which to play the newly-created DVDs. Applicant’s
goods and registrant’s goods thus are similar and related
to that extent.
Finally, the record shows that purchasers are likely
to expect that DVD drives like applicant’s and disc players

6 The websites of certain of applicant’s competitors, made of
record by the Trademark Examining Attorney, tout the
compatibility of their drives with DVD players. These include
registrant Sony itself, which states that its DVD Burners create
discs which “play back in most DVD players,” and LaCie, which
states that its DVD Duplicators “are compatible with nearly all
DVD players and DVD-ROM drives.”
Ser. No. 78407114
12
and changers like registrant’s may originate from a single
source under a single mark. The Trademark Examining
Attorney has submitted at least eight third-party
registrations which include both types of products in their
identifications of goods.7 Although such registrations are
not evidence that the marks shown therein are in use or
that the public is familiar with them, they nonetheless
have probative value to the extent that they serve to
suggest that the goods listed therein are of a kind which
may emanate from a single source under a single mark. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993); and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467
(TTAB 1988). The record also includes a printout from
registrant’s website which shows that registrant itself, in
addition to marketing the disc players and changers
identified in the registration, also markets “DVD Burners”
(“Burn your movie files to DVD”) which appear to be similar
to applicant’s goods, albeit not under the registered
MEGASTORAGE mark.
Based on this record, we find that applicant’s goods
and registrant’s goods, as identified in the application

7 See, e.g., Registration Nos. 2502344, 2632538, 2845234,
2629182, 2764923, 2787133, 2848397, and 2787333, attached to the
Trademark Examining Attorney’s final Office action.

Ser. No. 78407114
13
and registration respectively, are similar and related
under the second du Pont factor. This factor weighs in
favor of a finding of likelihood of confusion.
We also find that applicant’s and registrant’s goods
are marketed in the same trade channels and to the same
classes of purchasers. Both products are sold at retailers
like Circuit City, as is shown by the website evidence
applicant itself has submitted. Applicant argues that the
goods appear in different sections of the retailer’s store
and/or on different pages of the retailer’s website
(“computers” vs. “home entertainment products”), but we do
not find this to be dispositive. It appears from the
Circuit City website evidence applicant has submitted that
the display of the two products is separated only by a few
mouse clicks. In any event, as noted above, it is likely
that a purchaser looking to upgrade his or her home
entertainment system would be in the market for both
products. We find that the third du Pont factor, i.e., the
similarity or dissimilarity of trade channels, weighs in
favor of a finding of likelihood of confusion.
We are not persuaded by applicant’s contention that
purchasers of these products necessarily are sophisticated,
careful purchasers. Although applicant’s goods and
registrant’s goods might not be impulse purchases, they
Ser. No. 78407114
14
nonetheless are ordinary consumer items which would be
purchased with ordinary care. The fourth du Pont factor
therefore does not weigh significantly in applicant’s
favor, contrary to applicant’s argument.
Applicant has submitted printouts of three third-party
registrations of marks which include the designation MEGA
covering Class 9 goods.8 These registrations are not
probative evidence of “use of similar marks on similar
goods” under the sixth du Pont factor. See Olde Tyme Foods
Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed.
Cir. 1992). Nor does this evidence support applicant’s
argument that MEGA is a merely descriptive designation as
applied to these goods. As discussed above, we find that
MEGA is at best suggestive.
Weighing all of the evidence of record as it pertains
to the du Pont likelihood of confusion factors, we conclude
that a likelihood of confusion exists. The marks are
similar, the goods are similar and related, and they are

8 The other eight TESS printouts submitted by applicant are for
pending or abandoned applications, which are of no probative
value.
Ser. No. 78407114
15
marketed in the same trade channels to the same classes of
ordinary purchasers. These facts all weigh in favor of a
finding of likelihood of confusion. To the extent that any
doubts might exist, we resolve such doubts against
applicant. See In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687 (Fed. Cir. 1993); In re Hyper Shoppes (Ohio)
Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In
re Martin’s Famous Pastry Shoppe, Inc., supra.

Decision: The refusal to register is affirmed.