Friday, June 30, 2006

TTAB Reverses 2(d) Refusal of "T1" For Flashlights, Finding Lighting Fixtures Not Related

Finding no evidence that flashlights, on the one hand, and fluorescent lamps and electric light fixtures, on the other, are associated with a common source, the Board reversed a Section 2(d) refusal to register the mark T1 for "flashlights, namely hand held portable flashlights having light emitting diode lighting elements." The PTO had deemed the mark confusingly similar to the mark T-1, registered for "electric fluorescent lamps, electric light fixtures and retrofit kits composed of electric fluorescent lamps. In re Emissive Energy Corp., Serial No. 78358172 (June 15, 2006) [not citable].

Applicant's T1 Brand flashlight

The Examining Attorney took the position that the marks are "virtually identical," and that "both parties offer lighting related goods." Applicant Emissive maintained that, based on Registrant's website, the cited mark T-1 is merely a model or grade designation and therefore "does not serve to distinguish the goods of the Registrant."

Registrant's T-1 Brand lighting fixture

The Board understandably agreed that the marks are virtually identical,but Emissive's attack on the cited registration not only lacked sufficient evidentiary support but was also out-of-bounds: "an impermissible collateral attack on the validity of the cited registration."

As to the relatedness of the goods, the Board noted that there is no per se rule that all lighting products are related. Moreover, the involved goods "do not appear to be complementary items that are used or purchased together."

"Indeed, we have no evidence in this case that flashlights and fluorescent lamps and electric light fixtures are associated with a common source. We also have no evidence that prospective purchasers are likely to encounter these items in such a manner that they would assume that there is a relationship between their sources. The simple fact that both applicant's and registrant's goods are used to provide light is not enough, by itself, to show that the goods are related."

The Board therefore reversed the refusal to register.

TTABlog comment: This same applicant recently escaped from a 2(d) refusal of the mark T2 for flashlights, in a decision TTABlogged here. The same Board panel found flashlights and electric lighting fixtures to be related, based on a different Examining Attorney's submission of third-party registration evidence. However, the marks T2 and SLIQUE T2 were deemed sufficiently different to avoid a likelihood of confusion.

The record there, as here, did not include any evidence of use of the designations T-1, T-2, T-3, etc. in the lighting field to designate the size of light bulbs. Several TTABlog readers (one of whom majored in theatrical lighting) have written to inform me that this "T" sizing system is in common use. One wonders what size bulbs are used in the T1 brand flashlight and the T-1 brand lighting fixtures?

Text Copyright John L. Welch 2006.


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