NeoPhotonics Corporation

Trademark Trial and Appeal Board

Oct 10, 2008

No. 78331853 (T.T.A.B. Oct. 10, 2008)

Decision Mailed:
October 10, 2008
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re NeoPhotonics Corporation
________

Serial No. 78331853
_______

Irene Eckert and Kyle T. Peterson of Patterson, Thuente, Skaar &
Christensen for NeoPhotonics Corporation.

Won T. Oh, Trademark Examining Attorney, Law Office 114 (K.
Margaret Le, Managing Attorney).
_______

Before Hohein, Kuhlke and Cataldo, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

NeoPhotonics Corporation is the owner of an application
to register the mark "NEO" on the Principal Register in standard
character form for "optical network components, namely, lasers,
detectors, cables, resonators, connectors, filters, phase-
shifters, and splitters, all for use in communications networks"
in International Class 9.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that

1 Ser. No. 78331853, filed on November 22, 2003, which is based on an
allegation of a bona fide intention to use such mark in commerce.

THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 78331853
2
applicant's mark, when applied to its goods, so resembles the
mark "NEO," which is registered on the Principal Register by the
same registrant in standard character form2 and in the stylized
format reproduced below3

for, in each instance, the following goods in International Class
9, as to be likely to cause confusion, or to cause mistake, or to
deceive:
television, video and audio signal
processing, switching and generating
equipment, namely, frame synchronizers, audio
synchronizers, audio delays, audio
embedders/deembedders, audio processors, logo
generators and inserters, syncgenerators and
inserters, time code generators and
inserters, video and audio distribution and
processing amplifiers, analog to digital
converters, digital to analog converters,
color encoders and decoders, clock system
drivers, clock displays, automation system
comprising computer hardware and software for
controlling, monitoring, adjusting,
optimizing or operating the aforesaid goods,
and broadcast facilities; video and audio
noise reducers, video and audio compression
systems, namely[,] computer software,
hardware and multi-rate coder-decoders,
codecs, for decreasing audio, video,
television, or data file size or transmission
bandwidth and decoding or decompressing
compressed content to substantially restore
the original audio, video, television or data
content; test and reference generators,
format converters, converters of standard
television and video signals to and from high
definition formats, aspect ratio converters,
closed caption and other ancillary data

2 Reg. No. 3,081,094, issued on April 18, 2006, which sets forth a date
of first use anywhere and in commerce of April 21, 2001.

3 Reg. No. 3,081,095, issued on April 18, 2006, which sets forth a date
of first use anywhere and in commerce of June 26, 1992; renewed.

Ser. No. 78331853
3
processing equipment, namely, computer
hardware, software, and electronic equipment
for the insertion, deletion, and/or
modification of ancillary data associated
with video, audio, or television content;
multiplexers, embedders, deembedders and
demultiplexers, routers, switchers and
switching routers, equipment enclosures,
remote control panels, and computer software
for controlling and monitoring the aforesaid
goods, all for industrial use.

Applicant has appealed and briefs have been filed.4 We
reverse the refusal to register.

4 Referring, in its initial brief, to the statement in its request for
reconsideration of the final refusal that "[l]ists of distributors and
outlets ... can be found on the Registrant's and Appellant's web
sites," applicant adds in its initial brief that, "[n]evertheless, the
lists of distributors and outlets for Registrant's goods (Exhibit A)
and Appellant's goods (Exhibit B) are attached hereto." While the
Examining Attorney, in denying the request for reconsideration, made
no mention of either applicant's reference to lists of distributors
and outlets or the websites on which such allegedly could be found, in
his brief the Examining Attorney has objected to consideration of
applicant's Exhibits A and B on the basis that such evidence is
untimely under Trademark Rule 2.142(d) because it was not submitted
prior to the filing of the appeal. Although applicant, in its reply
brief, contends that such evidence was made of record with its request
for reconsideration because it had "directed the Examining Attorney to
the web sites of the Registrant and the Appellant with respect to the
lists of distributors and outlets, we sustain the Examining Attorney's
objection to the printed lists furnished with applicant's initial
brief. As stated in In re Planalytics Inc., 70 USPQ2d 1454, 1457
(TTAB 2004), "[a] mere reference to a website does not make the
information of record," the Board pointing out, among other things,
that:

Regarding website information, it is important that
the party actually print out the relevant information and
[timely] supply it to the examining attorney for several
reasons. First, applicant, by referring the examining
attorney to its website, acknowledges that there is relevant
information on its website. It is applicant's
responsibility to provide the information to the examining
attorney. Websites often contain voluminous information and
links to other websites. ... [T]he applicant [is] to
provide information, not simply to send the examining
attorney on a scavenger hunt through a website in search of
relevant information.

In addition, ... [i]nformation on websites is
transitory and subject to change at any time at the owner's
discretion. .... If applicant intended to put the relevant
portions of the website in the record, it is not clear what
Ser. No. 78331853
4
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). See also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). However, as indicated in Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976), in
any likelihood of confusion analysis, two key considerations are
the similarity or dissimilarity in the goods at issue and the
similarity or dissimilarity of the respective marks in their
entireties.5 See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). Here, inasmuch as

is in the record. If applicant's ... [action] were to be
considered sufficient, it would raise an issue as to what a
reviewing tribunal is allowed to consider. Would we be
permitted to consider any information on the website
regardless of when it was posted?

Finally, while we cast no aspersions on applicant's
intentions in this case, we observe that applicant's ...
[action] is fraught with potential for abuse. In effect, an
applicant can deflect the examining attorney from
information it has in its possession by simply referring the
examining attorney to its website. An applicant controls
its own website. To the extent that there is information on
the website that is harmful to its claim of registrability,
applicant has time to remove that information before it
responds to the examining attorney's requirement for
information. Second, as discussed above, websites are
transitory, and it is not clear what information is on the
website at any given time.

70 USPQ2d at 1458.

5 The court, in particular, pointed out that: "The 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."
192 USPQ at 29.

Ser. No. 78331853
5
applicant's mark and registrant's mark are identical6 in all
respects,7 the focus of our inquiry is accordingly on the
similarity or dissimilarity of the respective goods, along with
the related factors of the similarity or dissimilarity of
established, likely-to-continue trade channels and the conditions
under which and buyers to whom sales are made, i.e. "impulse"
versus careful, sophisticated purchasing.
As the Examining Attorney properly notes in his brief,
where the marks at issue are identical, as is the case herein,
"the relationship between the [respective] goods ... need not be
as close to support a finding of likelihood of confusion as might
apply where differences exist between the marks," citing In re
Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); Amcor, Inc. v.
Amcor Industries, Inc., 210 USPQ 70, 78 (TTAB 1981); and TMEP
Section 1207.01(a) (5th ed. 2007). Thus, as the Examining
Attorney also accurately observes, while it is well settled that
goods need not be identical or even competitive in nature in
order to support a finding of likelihood of confusion, it is
still the case that the goods must be related in some manner

6 Because applicant's mark is in standard character form (which was
formerly known as typed form), it includes any reasonable manner of
display thereof, including the stylized format utilized by registrant.
See, e.g., Phillips Petroleum Co. v. C. J. Webb, Inc., 442 F.2d 1376,
170 USPQ 35, 36 (CCPA 1971) [a mark registered in standard character
or typed format is not limited to the depiction thereof in any special
form]; and INB National Bank v. Metrohost Inc., 22 USPQ2d 1585, 1588
(TTAB 1992) ["[a]s the Phillips Petroleum case makes clear, when [an]
applicant seeks a typed or block letter registration of its word mark,
then the Board must consider all reasonable manners in which ... [the
word mark] could be depicted"].

7 Applicant, as the Examining Attorney accurately observes in his
brief, "does not contest that its mark is identical to the registered
marks."

Ser. No. 78331853
6
and/or that the circumstances surrounding their marketing are
such that they would be likely to be encountered by the same
persons under situations that would give rise, because of the
marks employed in connection therewith, to the mistaken belief
that they originate from or are in some way associated with the
same producer or provider. See, e.g., In re Opus One Inc., 60
USPQ2d 1812, 1815 (TTAB 2001); Monsanto Co. v. Enviro-Chem Corp.,
199 USPQ 590, 595-96 (TTAB 1978); and In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
The Examining Attorney, in this regard, maintains that
applicant's goods are "sufficiently related" to registrant's
goods because, as evidenced by copies of the excerpts he has made
of record from "several websites showing that the same fiber
optic networks can be used both for communication services and
television broadcast" services, it is the case that "applicant's
goods that are used in optic[al] communication[s] networks may
also be used for television signal processing." Specifically,
the Examining Attorney has introduced pages from the "Verizon"
website advertising that its "Verizon FiOS TV" is "[p]owered by
the most advanced fiber-optic network straight to your home" and
that such network also includes "FiOS Internet" service; that the
"Comcast" website offers "BUNDLED PACKAGES" of "DIGITAL CABLE"
television services, "HIGH-SPEED INTERNET" services and "DIGITAL
VOICE" services; and that the "SureWest" website likewise touts
"bundled offerings [which] include an array of advanced digital
TV, high-speed Internet, local and long-distance telephone, and
wireless services" over its "fiber optic network." Moreover,
Ser. No. 78331853
7
absent the evidence attached to applicant's initial brief, the
Examining Attorney insists that "there is nothing in the record
that supports applicant's contention that its goods are in
separate channels of trade from the registrant's goods."
Furthermore, the Examining Attorney contends that even
if the respective purchasers of applicant's and registrant's
goods were the same or similar and were also considered to be
sophisticated purchasers in view of the highly technical nature
of the respective goods, the fact that customers for such goods
are knowledgeable in a particular field does not necessarily mean
that they are sophisticated or discriminating in the field of
trademarks or immune from source confusion, citing In re Decombe,
9 USPQ2d 1812, 1814-15 (TTAB 1988); and In re Pellerin Milnor
Corp., 221 USPQ 558, 560 (TTAB 1983). Finally, the Examining
Attorney asserts that he has "provided evidence that the
communications industry and ... television broadcasting services
are highly related." According to the Examining Attorney:
The evidence [of record] shows that the
[respective] goods are in the same channels
of trade because it shows the purchasers of
applicant's goods are the same purchasers of
registrant's goods. These websites shows
[sic] the class of purchasers for both
applicant's goods and the registrant's goods.
Companies such as Comcast®, Verizon® and
Surewest® will purchase applicant's optical
network components to build the
infrastructure to provide the broadcast
services that ... [they] will provide with
the registrant's goods.

It is well established that the issue of likelihood of
confusion must be determined on the basis of the goods as they
are set forth in the application and the cited registration.
Ser. No. 78331853
8
See, e.g., Octocom Systems Inc. v. Houston Computer Services
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990);
Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed. Cir. 1987); CBS Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983);
Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed.
Cir. 1983); and Paula Payne Products Co. v. Johnson Publishing
Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973). However,
even though the marks at issue at identical, it is still the case
that where, as here, the respective goods on their face are
distinctly different, it is incumbent upon the Examining Attorney
to present evidence showing that there is at least a viable
commercial relationship between the respective goods in order to
establish that contemporaneous use of the marks at issue would be
likely to cause confusion. See, e.g., In re Opus One Inc.,
supra, citing In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687,
1689-91 (Fed. Cir. 1993). We agree with applicant that, in this
instance, the Examining Attorney has failed to meet his burden of
proof.
Applicant, by way of background, asserts in its initial
brief that, as to the respective goods, it is the case that
(italics in original):
Registrant's goods (hardware) are used
in association with processing, switching and
generating television, video and audio
signals. The products, as noted in the
identification of goods, are electronics that
are generally used in the production of
television and video programming, such as
electronic devices used to synchronize audio
with the appropriate video/picture frame
(frame synchronizers). The goods associated
Ser. No. 78331853
9
with Registrant's mark are not the signals
themselves; provision of television and radio
programmes [sic] belongs to International
Class 041. As noted in Registrant's
identification of goods, Registrant's goods
can be used to create and insert a logo in
the programming (log generators and
inserter), to generate time codes and insert
the time codes (time code generators and
inserters), to convert standard television
and video signals to and from high definition
formats (format converters) and to convert an
aspect ratio picture to another aspect ratio
picture (aspect ratio converter).

Registrant's goods are generally used in
broadcast production and post production
facilities, for example, news control rooms
where news programs are created, including
inserting pre-recorded video. These
facilities require Registrant's analog to
digital converters and digital to analog
converters to produce their products. These
facilities actually make the programming, and
are not merely distributors of programming.
As noted above, the goods/equipment
associated with Registrant's mark is used to
synchronize frames of video with audio, to
generate and insert logos for placement on
programming (e.g. NBC peacock), and includes
video and audio compression systems, and
closed caption processing equipment, for
example. Registrant provides its products to
create a fully integrated environment for the
streamlined production and processing of
content in professional television program
production and video program operations. The
Registrant's goods are not associated with
optical network components.

Appellant's mark is associated with
optical network components, namely, lasers,
detectors, cables, resonators, connectors,
filters, phase-shifters, and splitters, all
for use in communications networks. ...
Appellant's goods are intended for use in
fiber optic networks (infrared wavelengths,
waveguides, transport of information). It is
noteworthy that Appellant's goods are optical
network components, that is, components
associated with optical fibers, as indicated
in the identification of goods' use of the
term "optical." Hence, it is understood
since the goods are all associated with an
Ser. No. 78331853
10
optical network, that the components would
all be optically-oriented, for example, the
splitter would likely be a beam splitter,
because the splitter is associated with an
optical network.

Applicant's goods are utilized in
communications networks, such as computer and
communications networking, using optical
fibers. Applications include fiber optic
connections to homes and buildings linking
computers, and high speed Internet
connections. Appellant's goods are based
upon light technology. Hence, the goods
associated with the two marks are very
different, are based on different technology,
and are used for very different applications
and purposes.

In view thereof, applicant persuasively argues in its
initial brief that there simply is not a viable commercial
relationship between the goods at issue (italics in original):
As discussed above, Registrant's goods
of television, video and audio signal
processing, switching, and generating
equipment, as well as the other goods listed
in the identification of goods, are distinct
as compared to Appellant's goods of optical
network components, namely, lasers,
detectors, cables, resonators, connectors,
filters, phase-shifters, and splitters. The
products associated with Registrant's mark do
not compete with the goods associated with
Appellant's mark. The nature of the products
is also distinct, with Registrant's good
(hardware) generally used in the production
of programming, as compared to Appellant's
goods (optical components) generally used in
communications networks. These factors weigh
against a finding of a likelihood of
confusion.

We also concur with applicant's assertion that, in light of the
differences apparent from the goods on their face and the lack of
any evidence to the contrary from the Examining Attorney, the
respective goods would be marketed and sold in different channels
Ser. No. 78331853
11
of trade to different customers. Specifically, as applicant
contends in its initial brief:
The channels of trade for the goods
associated with Registrant's marks and
Appellant's mark are distinct. The channels
of trade are distinct, to a large extent,
because the goods are distinct. Registrant's
goods are sold through specialty outlets.
The specialty outlets include professional
post resellers, broadcast resellers, videotek
[sic] resellers, and system integrators.
These specialty outlets may provide an
integrated system (e.g. a digital master
control panel for a television station) that
incorporates the Registrant's products or may
make equipment recommendations or sales that
include Registrant's products.

Applicant's goods are sold through
specialty distributors to the communications
market. ....

The distinct nature of the channels of
trade for the goods associated with
Registrant's goods, as compared to the
channels of trade associated with Appellant's
goods, works against finding a likelihood of
confusion.

Again, the Examining Attorney has offered no evidence to suggest
to the contrary.
Additionally, applicant points out in its initial brief
that the actual and prospective purchasers for the respective
goods are dissimilar. In particular, applicant maintains that
(italics in original):
The purchasers of the products
associated with the Registrant's marks are
distinct from the purchasers of the goods
associated with the Appellant's mark. The
purchaser's [sic] of the goods associated
with the Registrant's mark are, for example,
television studios (programming production
facilities), professional video facilities
involved in post production, editing, and so
on, and businesses supplying systems (e.g.,
system integrators) to facilities such as
Ser. No. 78331853
12
corporations (e.g. for a media room) and
television stations. Here, the purchasers
would exhibit a high degree of care in
purchasing the goods because, for example,
the goods must be fit for the purpose (e.g.
as part of a post-production system for
synchronizing audio with the video;
converting an aspect ration picture to
another aspect ration picture; providing
closed captioning), and must be compatible
with the equipment already in place. Hence,
if the facility does not have the expertise,
then a system integrator may be involved in
recommending equipment and assisting the
television studio, video post-production
studio, or other such facility, in the
purchase of the proper equipment. In either
case, with assistance or not, the purchaser
of Registrant's goods is one knowledgeable in
the goods and a sophisticated purchaser.

Further, the cost associated with the
Registrant's goods would be relatively
expensive. It is important to note that the
Registrant's goods are directed to industrial
use, not the home consumer, and hence the
goods are directed to the professional user
and not the home amateur. Thus, great care
would be taken in making the purchase, at
least due to considerations of cost, fitness
for use, and compatibility with the other
components in a production system.

Purchasers of Appellant's good are
generally in the communications industry
using the products (e.g. optical components),
for example, to network computers or create
high speed Internet connections with
computers. Here, too, the purchasers would
exhibit a high degree of care ... to ensure
that the product is capable of performing the
desired function, as expected. The cost of
the product and the network it may be part of
may be reasonably expensive, and "down time"
may be even more expensive.

As is readily apparent from applicant's arguments, its
goods and those of registrant are distinctly different products
which would be marketed through specifically different channels
of trade to different classes of highly sophisticated purchasers.
Ser. No. 78331853
13
In consequence thereof, it is highly unlikely that the respective
goods would be encountered by the same purchasers under
circumstances which could give rise to the mistaken belief that
such goods originate from a common source, notwithstanding the
identity of the marks at issue. We agree instead with applicant
that the evidence furnished by the Examining Attorney fails to
substantiate his contentions that "the communications industry
and ... television broadcasting services are highly related" and
that, in particular, the respective goods "are in the same
channels of trade because ... [such evidence] shows the
purchasers of applicant's goods are the same purchasers of
registrant's goods" in that "[c]ompanies such as Comcast®,
Verizon® and Surewest® will purchase applicant's optical network
components to build the infrastructure to provide the broadcast
services that ... [they] will provide with the registrant's goods."
Specifically, while applicant concedes in its reply
brief that the previously mentioned pages from the "Verizon,"
"Comcast" and "SureWest" websites "may show use of a fiber optic
network for delivering television signals and providing access to
the Internet, for example," applicant also accurately observes
that "the website printouts do not show use of Appellant's
products for television signal processing" (italics in original).
Thus, as applicant notes, "a fiber optic network may carry
television signals, for example, to a home, but [it] does not
process television signals" (italics in original). Applicant's
goods, therefore, find applications which "include fiber optic
connections to homes and buildings linking computers, and high
Ser. No. 78331853
14
speed Internet connections," serving "as a conduit facilitating
passage and delivery of these signals." By contrast,
registrant's goods, as applicant observes in its reply brief,
"focus more on television signal processing" and, as previously
mentioned, "are used in professional video facilities involved in
post-production, editing, and so on; in newsroom control rooms,
and generally in the production of television and video
programming, not in distribution of television programming"
(italics in original). As a consequence of the fact that
applicant's goods pertain to optical components for
communications networks while registrant's goods relate to
television signal processing, applicant persuasively points out
in its reply brief that:
As such, potential purchasers of Appellant's
goods would likely be companies in the field
of communications who are concerned with
communication transmission (i.e. Comcast®,
Verizon® and Surewest®) whereas potential
purchasers of Registrant's goods would likely
be involved in television production and
editing (NBC, Worldwide Pants Incorporated).
Further, the Examining Attorney has not shown
that companies such as Comcast®, Verizon® and
Surewest® use ... or require equipment like
registrant's goods to provide television
programs .... Consequently, the Examining
Attorney has not shown that the purchasers of
Appellant's goods are the same purchasers of
Registrant's goods.

Similarly, while the Examining Attorney also made of
record pages from the websites of Ram Electronics, NexTag and
Communications & Energy Corporation illustrating various products
used with audio/video, cable television and satellite television
systems such as diplexers, antennas, multiswitches, signal
splitters, RF splitters, modulators, amplifiers and filters, and
Ser. No. 78331853
15
cables and F-connectors, applicant accurately observes in its
initial brief that the goods shown "are made of coaxial cable or
are for use with coaxial cable" and that "[n]owhere in the
supplied pages are optical fibers noted or optical network
components (italics in original). Thus, "the supplied pages do
not address Appellant's goods" and hence fail to demonstrate any
relationship thereof to goods like those of registrant.
It accordingly appears, as set forth by applicant in
its initial brief, that as to the evidence which is properly of
record, the Examining Attorney "has misunderstood the nature of
the Registrant's goods and Appellant's goods, and their
respective uses." In particular, applicant tellingly notes that
(underlining and italics in original):
The Examining Attorney appears to have
mistaken the provision of services, such as
television program distribution to the home
and Internet connection to the home, with
Registrant's and Appellant's goods. ....
For example, the Comcast® web page ... shows
that Comcast® offers cable television
services, i.e., is a television program
distributor, (which is distinct as compared
to creating television programming and
requiring Registrant's goods, such as a logo
generator and inserter or an audio
synchronizer). Further, companies may
provide cable television services (that is,
distribute television programming to the
home), telephone service (to the home), and
Internet connection (to the home). However,
it is the services that may travel through
similar channels of trade (through "the cable
guy" and coaxial cable). This provision of
services is distinct as compared to
Registrant's and Appellant's goods, which
each travel through different channels of
trade.

Finally, even if the record contained evidence
demonstrating that those who create television programming and/or
Ser. No. 78331853
16
audio/video content, and hence would be likely to utilize
registrant's goods in connection therewith, also maintain their
own optical communications network, and thus would be likely to
use applicant's goods as components thereof, it would still be
the case, as set forth in, for instance, Astra Pharmaceutical
Products, Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 220
USPQ 786, 791 (1st Cir. 1983), that in order for a likelihood of
confusion to exist, "it must be based on confusion of some
relevant person; i.e., a customer or user, and there is always
less likelihood of confusion where goods are ... purchased and
used by highly specialized individuals after careful
consideration." Here, it is manifest that none of the goods at
issue are consumer items which would require the exercise only of
ordinary care in their procurement. Instead, the commercial and
industrial products at issue on their face are not only
distinctly different goods sold for specifically different
purposes, but they clearly would be bought only by highly
knowledgeable, discriminating and sophisticated purchasers after
thorough deliberation rather than on impulse. As our principal
reviewing court has pointed out, such "sophistication is
important and often dispositive because sophisticated end-users
may be expected to exercise greater care." Electronic Design &
Sales Inc. v. Electronic Data Systems Corp., 954 F.2d 713, 21
USPQ2d 1388, 1392 (Fed. Cir. 1992).
We accordingly conclude on this record that in the
absence of a showing of a viable commercial relationship between
applicant's and registrant's goods, the contemporaneous use by
Ser. No. 78331853
17
applicant of its "NEO" mark in connection with "optical network
components, namely, lasers, detectors, cables, resonators,
connectors, filters, phase-shifters, and splitters, all for use
in communications networks," would not be likely to cause
confusion with registrant's use of the identical mark "NEO," in
either standard character or stylized form, in connection with
various items of "television, video and audio signal processing,
switching and generating equipment ... for industrial use."
Decision: The refusal under Section 2(d) is reversed.