UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/683661
MARK: VIEW2
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CORRESPONDENT ADDRESS: |
RESPOND TO THIS ACTION: http://www.gov.uspto.report/teas/eTEASpageD.htm
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/main/trademarks.htm
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APPLICANT: eVGA Corporation
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.
THIS IS A FINAL ACTION.
This Office action is in response to applicant’s communication filed on August 25, 2008.
REFUSAL BASED ON LIKELIHOOD OF CONFUSION
GENERAL PRINCIPLES IN DETERMINING LIKELIHOOD OF CONFUSION
In this case, the following factors are the most relevant: similarity of the marks, similarity of the goods and/or services, and similarity of trade channels of the goods and/or services. See In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593 (TTAB 1999); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999); TMEP §§1207.01 et seq.
COMPARISON OF THE MARKS
The applicant’s mark VIEW2 and the registrant’s stylized mark VIEW2 create the same commercial impression because they both contain the term “view” and “2” and are identical in sound, appearance and meaning.
The applicant argues “VIEW2 is not a fanciful term. It clearly describes the characteristics of the product of the registrant. It is also not a suggestive term. . . Virtually nobody requires any thought whatsoever to ascertain what a “VIEW2” is used for. It is therefore not a suggestive term.” Response 2. The applicant further argues, “As we compare the entireties of Applicant’s VIEW2 and Registrant’s VIEW2 it is evident that Registrant’s mark means the Descriptive term VIEW squared. Said another way, it means VIEW multiplied times VIEW. Applicant’s mark on the other hand contains no superscript and no space and thus is a character string that is not even a word in English or any other known language. Thus “VIEW2” is either suggestive or fanciful in connection to applicant’s goods.” The applicant provides absolutely no evidence to support it position and the examining attorney respectfully disagrees with the applicant’s unsupported conclusions.
The Court of Appeals for the Federal Circuit and the Trademark Trial and Appeal Board have recognized that marks deemed “weak” or merely descriptive are still entitled to protection against the registration by a subsequent user of a similar mark for closely related goods and/or services. This protection extends to marks registered on the Supplemental Register. TMEP §1207.01(b)(ix); see, e.g., In re Clorox Co., 578 F.2d 305, 18 USPQ 337 (C.C.P.A. 1978); In re Hunke & Jochheim, 185 USPQ 188 (TTAB 1975). Therefore, even if the applicant’s arguments that VIEW2 is somehow descriptive while VIEW2 is fanciful were persuasive, the marks as a whole still create the same commercial impression, could be pronounced the same and applicant’s use of such a highly similar mark to the Registrant’s would lead to consumer confusion.
COMPARISON OF GOODS
Applicant’s “video monitors” are related to registrant’s “Computer workstations comprising keyboards, mouse, memory and storage devices, namely blank hard disks, blank tapes, blank floppy disks, blank CD-ROMS, and blank DVDs; video display cards, sound cards, hard drives for computers, floppy drives for computers, DVD rom, namely, blank DVD-ROMS for sound and video playing and recording, DVD-ROM writers, and DVD-ROM drives; DVD burner, CD burner, computer monitors, computer peripherals, motherboard, central processing units, computer disk drives, operating system software, and instructional manuals sold as a unit therewith; projectors, namely, video projectors, slide projectors, picture projectors, movie projectors; and television sets” because the goods are sold in same channels of trade and to the same consumer.
“Applicant contends that its describes goods “Video Monitors” are not the same as Registrant’s description of goods. Applicant contends that its goods and Registrant’s goods are not sold through the same marketing channels.” Again the applicant provides absolutely no evidence to support its conclusion, and the examining attorney is not persuaded.
CONCLUSION
In view of the foregoing, the refusal to register under Section 2(d) of the Trademark Act is continued and made final.
PROPER RESPONSE TO FINAL
(1) Submitting a response that fully satisfies all outstanding requirements, if feasible; and/or
(2) Filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class.
37 C.F.R. §§2.6(a)(18), 2.64(a); TBMP ch. 1200; TMEP §714.04.
In certain rare circumstances, a petition to the Director may be filed pursuant to 37 C.F.R. §2.63(b)(2) to review a final Office action that is limited to procedural issues. 37 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining petitionable matters). The petition fee is $100. 37 C.F.R. §2.6(a)(15).
/Jennifer M. Martin/
Examining Attorney, L.O. 116
(571) 272-9193; (571) 273-9116 (fax)
Jennifer.Martin@uspto.gov
RESPOND TO THIS ACTION: Applicant should file a response to this Office action online using the form at http://www.gov.uspto.report/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail. For technical assistance with the form, please e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned examining attorney. Do not respond to this Office action by e-mail; the USPTO does not accept e-mailed responses.
If responding by paper mail, please include the following information: the application serial number, the mark, the filing date and the name, title/position, telephone number and e-mail address of the person signing the response. Please use the following address: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451.
STATUS CHECK: Check the status of the application at least once every six months from the initial filing date using the USPTO Trademark Applications and Registrations Retrieval (TARR) online system at http://tarr.uspto.gov. When conducting an online status check, print and maintain a copy of the complete TARR screen. If the status of your application has not changed for more than six months, please contact the assigned examining attorney.