This Opinion is Not a Precedent of the TTAB

Mailed: March 27, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

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Trademark Trial and Appeal Board _____

In re Ebatte Holdings Ltd.

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Serial No. 87956171 _____

Charles Ho of Barron & Young Intellectual Property Ltd. for Ebatte Holdings Ltd. James Hill, Trademark Examining Attorney, Law Office 115,

Daniel Brody, Managing Attorney.

_____ Before Cataldo, Wellington and Dunn, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Ebatte Holdings Ltd., seeks registration on the Principal Register of

the mark (in stylized form), identifying the following goods:

Batteries; lithium ion batteries; lithium polymer batteries; batteries for heavy equipment; batteries for construction equipment; batteries for wheel tractors; batteries for vehicles; marine batteries; high tension batteries; batteries for medical device; batteries for electrically heated clothing; batteries for electrically heated vests; batteries for electrically heated gloves; batteries for electrically heated boots; batteries for motorcycle; batteries for electric bicycles; batteries for unmanned aerial vehicle; batteries for sports equipment; mobile power supply; batteries for lighting; batteries for electronic cigarettes; battery jars; battery

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boxes; chargers for electric batteries; plates for batteries, in International Class 9.1

The Trademark Examining Attorney has refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that

, when used in connection with the identified goods, so resembles

the mark (in stylized form), issued on the Principal Register and

identifying the following goods:

Solar batteries; Solar panels for production of electricity; Battery chargers; Battery boxes; Batteries; Accumulators; Battery packs; Battery monitors; Battery cases; Batteries, electric, for vehicles; Batteries for lighting; Cell phone battery chargers; Electrical cells and batteries; Mobile phone cases featuring rechargeable batteries; Rechargeable electric batteries; Solar-powered rechargeable batteries; wireless charger; Alarm installations and alarms; Flashing and steady safety lights; Time switches, in International Class 92

as to be likely to cause confusion, mistake or deception.

When the refusal was made final, Applicant appealed and filed a Request for

Reconsideration. When the Examining Attorney denied the Request for

Reconsideration, Applicant requested remand of the involved application to the

Examining Attorney for consideration of additional evidence. When the Examining

1 Application Serial No. 87956171 was filed on June 11, 2018, solely asserting June 8, 2018 as a priority filing date under Trademark Act Section 44(d), and indicating its intention to rely upon Section 44(e) as a basis for registration. Applicant subsequently submitted a copy of Hong Kong Registration No. 304556656, issued on June 8, 2018, and amended its filing basis to Section 44 (e). 2 Registration No. 4908215 issued on March 1, 2016.

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Attorney continued the refusal of registration upon remand, this appeal resumed.

The Examining Attorney and Applicant filed briefs. We affirm the refusal to register.

I. Likelihood of Confusion

When the question is likelihood of confusion, we analyze the facts as they relate

to the relevant factors set out in In re E. I. du Pont de Nemours & Co. (du Pont), 476

F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co.,

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

relatedness of the goods or services. See Federated Foods, Inc. v. Fort Howard Paper

Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).

A. Relatedness of the Goods and their Channels of Trade

With regard to the goods, channels of trade and classes of consumers, we must

make our determinations under these factors based on the goods as they are

identified in the application and cited registration. See In re Dixie Rests. Inc., 105

F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Stone Lion Capital

Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.

2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001

(Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Computer Servs. Inc., 918 F.2d 937, 16

USPQ2d 1783, 1787 (Fed. Cir. 1990). “This factor considers whether ‘the consuming

public may perceive [the respective goods or services of the parties] as related enough

to cause confusion about the source or origin of the goods and services.’” In re St.

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Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting

Hewlett Packard, 62 USPQ2d at 1004).

In this case, the goods identified in the involved application and cited registration

are, in part, identical. Applicant’s “batteries; battery boxes; and chargers for electric

batteries” are identical to the “batteries; battery boxes; and battery chargers”

identified in the cited registration. In addition, both the application and registration

identify more specific types of batteries that are subsumed among the generally

identified “batteries” identified in each. Thus, Applicant’s more specifically identified

types of batteries are legally identical to the more broadly identified “batteries” in the

cited registration, and vice versa. See, e.g., Southwestern Mgmt., Inc. v. Ocinomled,

Ltd, 115 USPQ2d 1007, 1025 (TTAB 2015) (With a broad identification of goods or

services, “we must presume that the [goods or] services encompass all [goods or]

services of the type identified”).

In addition, the Examining Attorney introduced five third-party registrations

identifying, inter alia, batteries in addition to other goods recited in both the involved

application and cited registration.3 As a general proposition, although use-based,

third-party registrations alone are not evidence that the marks shown therein are in

use or that the public is familiar with them, they nonetheless may have some

probative value to the extent they serve to suggest that the goods are of a kind that

emanate from a single source. See In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-

3 September 28, 2018 first Office Action at .pdf 9-23.

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18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB

1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).

It is settled that we may find a likelihood of confusion when only one item in a

class of goods is commercially similar to the other party’s goods. See Tuxedo

Monopoly, Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988

(CCPA 1981) (It is sufficient for a finding of likelihood of confusion if the relatedness

is established for any item encompassed by the identification of goods within a

particular class in the application); see also Research in Motion Limited v. Defining

Presence Marketing Group, Inc. et al, 102 USPQ2d 1187 (TTAB 2012) (“Likelihood of

confusion must be found if there is likely to be confusion with respect to any item that

comes within the identification of goods in the application.”); Hewlett-Packard

Development Company, L.P. v. Vudu, Inc., 92 USPQ2d 1630, 1633 n.4 (TTAB 2009)

(“it is sufficient if likelihood of confusion is found with respect to use of the mark on

any item that comes within the description of goods in the application or

registration.”) (internal citations omitted).

In view of our findings that Applicant’s goods are identical in part, and otherwise

related, to the goods in the cited registration, the second and du Pont factor weighs

heavily in favor of finding a likelihood of confusion.

There are no limitations in the identifications of goods with respect to channels

of trade or classes of customers in either the involved application or cited

registration. Accordingly, we must presume that both Applicant and the owner of

the cited registration offer various batteries, battery boxes and battery chargers at

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all price points to all typical classes of consumers through identical distribution

channels. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.

2012) (even though there was no evidence regarding channels of trade and classes

of consumers, the Board was entitled to rely on this legal presumption in

determining likelihood of confusion); see also Genesco Inc. v. Martz, 66 USPQ2d 1260,

1268 (TTAB 2003) (“Given the in-part identical and in-part related nature of the

parties’ goods, and the lack of any restrictions in the identifications thereof as to

trade channels and purchasers, these clothing items could be offered and sold to

the same classes of purchasers through the same channels of trade”). Because

the goods are widely offered to the general public, potential customers include

ordinary purchasers of batteries and related goods. Accordingly, the third du Pont

factor heavily favors a finding of likelihood of confusion.

B. Strength of the Mark in the Cited Registration

We next evaluate the strength of the registered mark and the scope of protection

to which it is entitled. The fifth du Pont factor is the “fame” or strength of the prior

mark, and the sixth factor is the number and nature of similar marks in use for

similar goods or services. Du Pont, 177 USPQ at 567. In determining strength of a

mark, we consider both inherent strength, based on the nature of the mark itself, and

commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96

USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its

conceptual strength (distinctiveness) and its marketplace strength (secondary

meaning).”).

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Turning first to inherent strength, the registered mark appears to

suggest an electrical or electronic battery. Otherwise, there is no indication in the

record of the possible meaning of the mark. As such, appears, at worst,

to suggest a characteristic of the goods and, as such, is inherently distinctive as

applied thereto. There is no evidence regarding the registered mark’s commercial or

marketplace strength.4

Applicant argues that “Registrant’s mark is indisputably weak and that the

weakness of Registrant’s mark enables consumers to readily distinguish differences

between Registrant’s mark and Appellant’s mark.”5 In support of this contention,

Applicant introduced copies of thirteen third-party registrations retrieved from a

search of the USPTO’s Trademark Search and Data Retrieval (TSDR) database for

“BAT” formative marks, listed below, for batteries and related goods.6

4 Because of the nature of the evidence required to establish the fame of a registered mark, the Board normally does not expect an examining attorney to submit evidence as to the fame of the cited mark in an ex parte proceeding. See In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006). 5 10 TTABVUE 11. 6 Applicant’s June 24, 2019 Request for Remand, 7 TTABVUE 6-28. Applicant further submitted copies of three registrations for variations of the mark BATTERICH, owned by the same entity, identifying batteries and related goods. 7 TTABVUE 30-37. The chart below was provided by Applicant at 7 TTABVUE 3 and 10 TTABVUE 9.

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As noted above, we find that the registered mark appears to be at worst

suggestive, but remains inherently distinctive as applied to the identified goods.

There is no evidence of third-party use of the term EBAT. Cf. In re FabFitFun, Inc.,

127 USPQ2d 1674 (TTAB 2018) (“While Applicant has not presented specific evidence

concerning the extent and impact of these uses, it nevertheless presented ‘evidence

of these marks [incorporating the phrase 'smokin' hot'] being used in internet

commerce’ for the cosmetics and mascara identified in the cited registration.”).

However, there is the above evidence of third-party registrations of less similar BAT

marks for batteries and related goods. Cf. Juice Generation, Inc. v. GS Enters LLC,

794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin

Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797

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F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015). None of the marks in the

above third-party registrations contains the term “EBAT,” but rather the marks

include different terms preceding “BAT,” such as “MON,” “BUZZ,” and “GOLD.” We

therefore find that the registered mark is to be accorded, at worst, a

slightly narrower than normal scope of protection to which inherently distinctive

marks are generally entitled. See Joseph Phelps Vineyards, LLC v. Fairmont

Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that

likelihood of confusion fame varies along a spectrum from very strong to very weak).

C. Similarity/Dissimilarity of the Marks

We consider Applicant’s mark and the registered mark

, and compare them “in their entireties as to appearance, sound,

connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot

Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.

2005) (quoting DuPont, 177 USPQ at 567). The marks “must be considered … in light

of the fallibility of memory.” St. Helena Hosp., 113 USPQ2d at 1085 (quoting San

Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1

(CCPA 1977)). The proper focus is on the recollection of the average consumer, who

retains a general rather than specific impression of the marks. Winnebago Indus.,

Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v.

Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).

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The applied-for mark and the registered mark

are similar in appearance in that Applicant’s mark consists of the

entire wording of the registered mark, with the addition of the letters “TE” at the end.

The marks bear a strong similarity in lettering and construction, and would have

similar pronunciations. While there is no correct pronunciation of trademarks, it

stands to reason that the two marks will be verbalized in a very similar manner by

consumers. See, e.g., In re Teradata Corp., 223 USPQ 361, 362 (TTAB 1984) (“as we

have said many times, there is no ‘correct’ pronunciation of a trademark”).

With respect to the meanings of the marks, Applicant submitted the following

dictionary definition of “batte” – Obsolete, rare, Hasty, in a hurry.7 However, there is

no indication as to the extent, if any, to which consumers encountering Applicant’s

mark will be aware of this obsolete and obscure meaning.8 Nor is there any indication

that the term “EBATTE” possesses any recognized meaning. Thus, on this record it

is most likely that consumers will view the term “EBATTE” in the context of the

involved goods as suggesting an electric or electronic battery. To the extent

consumers would ascribe a meaning to the word “EBAT” comprising the registered

mark, it is likely that they also would perceive it as connoting an electrical or

7 April 17, 2019 Request for Reconsideration at .pdf 20. Definition retrieved from OED Oxford English Dictionary. 8 Indeed, the OED Oxford English Dictionary definition made of record by Applicant notes the following 15th Century example of “batte” in context: “With porke bou seethe bo fatte, Grynde brede and peper and be not batte.” Id.

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electronic battery. Thus, to the extent the terms comprising the marks have any

meaning, on this record the meaning would be the same.

Applicant argues that the term “BAT” is familiar while the term “BATTE” is

unfamiliar, and that the Federal Circuit “has thoroughly established that consumers

are able to distinguish familiar concepts from unfamiliar ones.9 As applied to

batteries, both terms are likely to be viewed as shortened versions of “battery,” and

thus both may appear familiar. Moreover, Applicant’s argument dissects the involved

marks by neglecting to consider the presence of the letter “E” at the beginning of both.

Thus, the case at bar is different from, for example, Oakville Hills Cellar, Inc. v.

Georgallis Holdings, LLC, 826 F.3d 1376, 119 USPQ2d 1286, 1288 (Fed. Cir. 2016) in

which the Court of Appeals for the Federal Circuit affirmed this tribunal’s finding

that “customers would likely find the term MAYA to be some-what familiar, while

finding MAYARI unfamiliar.” In that case, the term MAYA was found to have a

recognized meaning while the meaning of MAYARI was found to be so esoteric as to

likely be without known meaning. On the record of this ex parte appeal, neither the

term “EBAT” comprising the registered mark nor the term “EBATTE” comprising the

applied-for mark have any recognized meaning. Simply put, a consideration of the

marks and as a whole, as well as the evidence of

record, do not support Applicant’s contentions.

9 4 TTABVUE 14.

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Similarly, and as discussed above, we are not persuaded by Applicant’s arguments

and evidence that the registered mark is so weak and entitled to such

a narrow scope of protection, that consumers are conditioned to distinguish between

it and the applied-for mark based upon the subtle distinctions between them. Cf.

Juice Generation, 115 USPQ2d 1671, 1674-75.

Neither are we convinced by Applicant’s contention that

Registrant’s mark EBAT also clearly refers to the Registrant, Shenzhen BAT Electronic Technology Co. Ltd. BAT is in turn presumably an initialism of Registrant’s Chinese name 贝安特 (romanized as bèi ān tè in the Hanyu Pinyin system). Such a link would be recognized by consumers familiar with Registrant’s brand, eliminating all likelihood of confusion.10

The evidence of record simply does not support Applicant’s speculative contention

that consumers will associate the mark with the Registrant’s Chinese

name or an initialism thereof.

Finally, we note that, “[w]hen marks would appear on virtually identical ... [goods

or] services, the degree of similarity [of the marks] necessary to support a conclusion

of likely confusion declines.” See Century 21 Real Estate Corp. v. Century Life of

America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992), cert. denied, 506 U.S. 1034

(1994). See also ECI Division of E-Systems, Inc. v. Environmental Communications

Inc., 207 USPQ 443, 449 (TTAB 1980).

10 10 TTABVUE 16.

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Considering the marks in their entireties, we find that and

are far more similar than dissimilar in appearance and sound. The

marks further are similar in connotation or meaning, to the extent a meaning will be

ascribed to either mark. We find, as a result, that the differences between the marks

are outweighed by their similarities. Considered in their entireties, we find that the

marks convey similar overall commercial impressions. This du Pont factor thus

supports a finding that confusion is likely.

D. Conclusion

We find that the Applicant’s goods and the goods identified in the cited

registration are identical or legally identical in part and otherwise related, and are

presumed to move in common channels of trade to the same classes of consumers. We

further find Applicant’s mark and the mark in the cited registration are more similar

than dissimilar, and no evidence of record establishes that the registered mark is so

weak in connection with the goods at issue to overcome the identity in part of the

goods and similarity of the marks. We find, therefore, that confusion is likely between

Applicant’s mark and the mark in the cited

registration.

Decision: The refusal to register based on likelihood of confusion under Section

2(d) of the Trademark Act is affirmed.