Friday, June 09, 2006

World Cup 2006 Begins; TTAB Reverses 2(d) Refusal of "T2" for Flashlights

I thought I might attract some foreign surfers with the first part of this headline. I'm planning to take the afternoon off to watch the opening matches of the World Cup. I'm not too sanguine about the USA's chances of advancing beyond the group stage. Lackluster performances in three May friendlies (against minnows Morocco, Venezuela, and Latvia) make me wonder how the Yanks can get by either the Czech Republic or Italy. But we shall see. The defense is looking good, but where will the offense come from?

But sometimes the unexpected happens, like the TTAB overturning two Section 2(d) refusals and granting a request for reconsideration in the same week. The third goooooaaaal! in that jurisprudential hat trick was tallied in In re Emissive Energy Corp., Serial No. 78440691 (May 24, 2006) [not citable], wherein the Board found the mark T2 for flashlights not confusingly similar to the registered mark SLIQUE T2 for electric lighting fixtures.

The Examining Attorney relied on third-party registrations to demonstrate that the goods are related -- i.e., he submitted numerous registrations showing that the same mark has been registered by a common entity for flashlights and electric lighting fixtures (including one owned by Applicant). See Albert Trostel and Mucky Duck in that regard.

T2 brand flashlight

The pivotal issue, then, was the similarity of the marks. The Board found that SLIQUE is a "significant feature of registrant's mark," and that, when the two marks are compared, "the addition of the word SLIQUE at the beginning of registrant's mark changes the appearance, sound, meaning, and commercial impression of the marks."

Moreover, the Board noted that "there is evidence that at least with respect to lighting fixtures, the term [T2] is highly suggestive." The Board based this finding on the following usage made by registrant in its product literature: "1 or 2 FM11/H or FM13/H T2 subminiature fluorescents." According to the Board, this evidence "suggests that the term may have some suggestive meaning in the trade." [TTABlog comment: I fail to see it]. According to the Board, this evidence "also indicates that SLIQUE would be the dominant part of the registrant's mark."

SLIQUE T2 brand lighting fixture

Because the goods, albeit related, are not identical and have "significant differences," and because the applied-for mark lacks the "significant term" SLIQUE, the Board concluded that confusion is not likely, and flagged the PTO offside.

TTABlog comment: I don't know why the Board didn't just say that the marks are sufficiently different to avoid confusion. The discussion about the weakness of T2 was a bit dim (i.e., unenlightened).

TTABlog postscript: A reader reports that T2 is a an industry-standard term for a fluorescent light bulb of a certain (miniatures) size (see. e.g., here). Apparently that information never made it into the PTO record, but it may help explain why the panel found "T2" to be suggestive of electric lighting fixtures.

Text Copyright John L. Welch 2006.


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