KORD for Audio Equipment Confusable with KORDZ for Connectors, Says TTAB
The Board affirmed a Section 2(d) refusal to register the mark KORD for audio equipment, including speakers, finding the mark likely to cause confusion with the mark KORDZ, registered on the Supplemental Register, for "Cable connectors; Home theater products, namely, LCD; Electronic interconnecters [sic] for audio and video signals." Third-party registrations for marks containing the word "kord" or "cord" demonstrated that the term, by itself, has a descriptive significance vis-a-vis electrical cables and connectors, but they did not establish that the cited mark is so weak that confusion with applicant's mark would be avoided. In re MS Electronics LLC, Serial No. 85755706 (December 5, 2014) [not precedential].
The Board, not surprisingly, found the marks to be "extremely similar" in appearance and pronunciation, and identical in meaning and overall commercial impression.
Applicant pointed to third-party registrations of AUTAC RE-TRAK-TUL KORDS, KORD KING, KOIL KORD, and KOILED KORDS for electric cords in an attempt to show that the cited mark is so weak that even the slight difference between KORD and KORDZ distinguished the marks. The Board pointed out, however, that third-party registrations have little probative value on the issue of likelihood of confusion absent evidence that the marks are in use on a commercial scale and the public is familiar with them.
Although Registrant’s mark has been registered on the Supplemental Register for goods that maybe informally referred to as 'cords,' and would thus be considered highly suggestive in connection with the goods involved, the third-party registrations do not establish that the cited mark is so weak that the public would not be confused upon encountering Applicant’s mark used on related goods.
Moreover, the Board observed once again, even weak marks are entitled to protection, including marks registered on the Supplemental Register.
Turning to the goods, applicant's audio equipment includes some goods that are typically connected by cables. In short the involved goods are complementary and are likely to be purchased together and used together. See, e.g., In re Sela Prods., LLC, 107 USPQ2d 1580 (TTAB 2013) (purchasers of surge protectors for home theater systems would encounter wall mounts and brackets used in connection with such systems).
Applicant argued that registrants sells only HDMI-related products that are unrelated to its audio equipment. The Board, however, pointed out that an applicant may not restrict the scope of goods covered by a cited registration by introducing intrinsic evidence. The registration is broadly worded and encompasses all types of connectors, including those used with applicant's equipment.
Finally, applicant argued that the purchasers of the goods are knowledgeable about the differences in high-end cables. The Board noted, however, that there are no limitations in the application or the cited registration regarding classes of consumers or channels of trade. And in any case, even careful purchasers may be confused by highly similar marks used on related and/or complementary goods.
And so the Board found confusion likely, and it affirmed the refusal.
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TTABlog note: Do you think there is any chance that the registrant could convince a court to stop applicant from using the mark KORD? I highly doubt it.
Text Copyright John L. Welch 2014.