United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88488253
Mark: BRAVO
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Correspondence Address: 201 SOUTH MAIN STREET, SUITE 1800
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Applicant: NLU Products, L.L.C.
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Reference/Docket No. 24441.130
Correspondence Email Address: |
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The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: September 10, 2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
ADVISORY – PRIOR-FILED APPLICATION
In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits applicant’s right to address this issue later if a refusal under Section 2(d) issues.
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Applicant’s mark is “BRAVO” (in standard character form) for “protective cases for smartphones, smart watches, and tablet computers”.
The six registrants are as follows:
Registration Number |
Mark |
Goods |
Registration Number 5722879 (Reg. No. ‘879) |
“BRAVOEAR” (in stylized form) |
For, in relevant part, “audio headphones; ear buds; ear phones; earphone accessories, namely, earphone cushions, earphone pads, earphone cases; earphones; earphones and headphones; headphones; headsets for cellular or mobile phones; headsets for mobile telephones; headsets for use with computers; personal headphones for sound transmitting apparatuses; personal headphones for use with sound transmitting systems; stereo headphones; wireless cellular phone headsets; wireless headsets for smartphones; wireless indoor and outdoor speakers”; |
Registration Number 5540172 (Reg. No. ‘172) |
“BRAVO MAKER” (in standard character form) |
For, in relevant part, “computer keyboards; computer mouse; earphones; protective cases for smartphones”; |
Registration Number 5333923 (Reg. No. ‘923) |
“CRAZY BRAVO” (in stylized form) |
For, in relevant part, “cases for smartphones; earphones and headphones”;
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Registration Number 5058520 (Reg. No. ‘520) |
“BRAVO VIEW” (plus design) |
For, in relevant part, “audio speakers; consumer electronic products, namely, … audio speakers”; |
Registration Number 5211563 (Reg. No. ‘563) |
“BRAVO AUDIO” (plus design) |
For, in relevant part, “computers; earphones; headphones”; |
Registration Number 5337748 (Reg. No. ‘748) |
“TARGET BRAVO” (in standard character form) |
For, in relevant par, “protective cases for cell phones”. |
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
Similarity of the Marks
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)); TMEP §1207.01(b).
In the present case, the parties’ marks are similar in sound and appearance because they all feature the same term, namely, “BRAVO”. Marks may be confusingly similar in appearance where similar terms or phrases or similar parts of terms or phrases appear in the compared marks and create a similar overall commercial impression. See Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1495, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); TMEP §1207.01(b)(ii)-(iii).
Moreover, the design and/or stylization present in Reg. Nos. ‘879, ‘923, ‘520 and ‘563 is insufficient to obviate the similarities between the marks. First, as to the design feature present in Reg. Nos. ‘520 and ‘563, when evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar. In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).
Second, as to both the stylization and design present in Reg. Nos. ‘879, ‘923, ‘520 and ‘563, this additional matter also does not obviate the similarities between the parties’ marks because applicant’s mark is presented in standard characters. A mark in typed or standard characters may be displayed in any lettering style; the rights reside in the wording or other literal element and not in any particular display or rendition. See In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); 37 C.F.R. §2.52(a); TMEP §1207.01(c)(iii). Thus, a mark presented in stylized characters and/or with a design element, such as Reg. Nos. ‘879, ‘923, ‘520 and ‘563 in this case, generally will not avoid likelihood of confusion with a mark in typed or standard characters because the word portion could be presented in the same manner of display. See, e.g., In re Viterra Inc., 671 F.3d at 1363, 101 USPQ2d at 1909; Squirtco v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir. 1983) (stating that “the argument concerning a difference in type style is not viable where one party asserts rights in no particular display”).
Therefore, in view of the above, the parties’ marks are confusingly similar in terms of sound, appearance and commercial impression.
Relatedness of the Goods
A likelihood of confusion also exists because the goods of the parties are legally related. Applicant offers protective cases for smartphones, smart watches and tablet computers. Registrant for Reg. No. ‘879 offers various headphones, earphones, earbuds, headsets and speakers. Registrant for Reg. No. ‘172 offers computer keyboards and mouse, earphones and cases for smartphones. Registrant for Reg. No. ‘923 offers cases for smartphones, earphones, and headphones. Registrant for Reg. No. ‘520 offers audio speakers. Registrant for Reg. No. ‘563 offers computers, earphones and headphones and registrant for Reg. No. ‘748 offers protective cases for cell phones. These goods are related because they are identical, encompassed by the other, and/or commonly provided in the marketplace in a manner that consumers would be likely to believe that they emanate from the same source.
In this case, as to Reg. No. ‘748, the goods in the application and registration are identical as they relate to “protective cases for smartphones”. Therefore, it is presumed that the channels of trade and classes of purchasers are the same for these goods. See Cai v. Diamond Hong, Inc., __ F.3d __, 27 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)). Thus, as to Reg. No. ‘748, these goods of the applicant and registrant are related.
As to Reg. Nos. ‘172 and ‘923, the registrations use broad wording to describe “cases for smartphones”, which presumably encompasses all goods of the type described, including applicant’s more narrowly identified “protective cases for smartphones”. See, e.g., In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Thus, as to Reg. Nos. ‘172 and ‘923, these goods of the applicant and registrants are legally identical. See, e.g., In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018) (citing Tuxedo Monopoly, Inc. v.Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336, 209 USPQ 986, 988 (C.C.P.A. 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); Baseball Am. Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1847 n.9 (TTAB 2004)).
Additionally, these goods of the parties also have no restrictions as to nature, type, channels of trade, or classes of purchasers and are “presumed to travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). Thus, applicant’s and registrants’ goods are related.
In this case, as to all of the registrants’ goods and applicant’s goods, the parties’ offer accessories for mobile devices, various electronics and/or computer-related goods that are often provided by the same entity under the same brand. As such, when highly similar marks are used in connection with such goods, a consumer would be likely to believe that these goods originate from the same source. The attached Internet evidence consists of screenshots from websites of such providers of the relevant goods under a single source. See http://www.lg.com/; http://www.samsung.com/; http://www.apple.com/. This evidence establishes that the same entity commonly manufactures and/or provides the relevant goods and markets the goods under the same mark, the relevant goods are sold or provided through the same trade channels and used by the same classes of consumers in the same fields of use. Thus, applicant’s and registrant’s goods are considered related for likelihood of confusion purposes. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
Conclusion
Therefore, consumers who are familiar with the registrant’s headphones, earphones, earbuds, headsets and speakers offered in connection with the mark “BRAVOEAR”, the registrant’s computer goods, earphones and cases for smartphones offered in connection with the mark “BRAVO MAKER”, the registrant’s cases for smartphones, earphones, and headphones offered in connection with the mark “CRAZY BRAVO”, the registrant’s audio speakers offered in connection with the mark “BRAVO VIEW” (plus design), the registrant’s computers, earphones and headphones offered in connection with the mark “BRAVO AUDIO” (plus design), and registrant’s protective cases for cell phones offered in connection with the mark “TARGET BRAVO”, upon encountering applicant’s accessories for mobile devices offered in connection with the mark “BRAVO”, are likely to be confused and believe that the goods originate from the same source. As a result, registration is refused under Section 2(d) of the Trademark Act.
Although applicant’s mark has been refused registration, applicant may respond to the refusal(s) by submitting evidence and arguments in support of registration.
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE:
Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
ASSISTANCE
How to respond. Click to file a response to this nonfinal Office action
Rhoda Nkojo
Examining Attorney
Law Office 117
(571) 272-8468
Rhoda.Nkojo@uspto.gov
RESPONSE GUIDANCE