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 In re MS Electronics LLC, Serial No. 85755706 (December 5, 2014) [not precedential].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.
posted by John L. Welch @ 12/09/2014
4 comments
4 Comments:
The TTAB never fails to surprise me. Let's see, where to begin? First, Kordz should have been refused as generic for any audio or video connector cable - guitar cords, speaker cords, HDMI cord, etc??? Ever hear of them TTAB? Walk into a Beat Buy, Guitar Center, Apple Store or RADIO shack and maybe you will see a few thousand of these things.
Second, if you allowed,KORD for connectors, why not Kord for a speaker? Would a consumer really be confused by the concurrent use of these two marks?
The TTAB lives in a bizarro trademark world. Maybe they should live in the real business world instead of some theoretical alternative trademark universe.
The only people being confused here are the TTAB.
Another case where a USDC would likely have a different result.
Of course the TTAB has limited jurisdiction, but a perfect example of why the TTAB decisions should have no precedent on other courts.
This applicant cannot register, but as noted by John - can they still use it?
We shall see what the Supreme Court says soon I guess.
@Anonymous1: Harsh! Registrant’s earlier Reg. No. 3016401 (CORDZ) and Reg. No. 3812273 (KORDZ) were both registered on the Supplemental Register without any involvement by the TTAB. The current application for KORD was refused under Section 2(d) (Likelihood of Confusion) with KORDZ. Had the Board sua sponte ruled on a statutory ground (e.g., genericness) unrelated to any refusal in the ex parte prosecution, one might anticipate charges of a bizarro, alternate universe.
@Anonymous2: You and John make a valid point. From the inception of the U.S. trademark registration system, likelihood of confusion determinations under the statute have necessarily focused on the commonly understood meanings of English-language words in a registrant’s listing of products or services. Sometimes this imperfect system resembles an ivory tower. However, changing that would likely demand major statutory amendments, or at the very least, quite different directions from the Court of Appeals for the Federal Circuit.
In response to Reg. No. 3016401 (CORDZ) and Reg. No. 3812273 (KORDZ), they are both registered to the same company which is why there was no conflict. Secondly, KORDZ does indeed focus mostly on HDMI currently, but has through its history included in it's lineup interconnects for line audio, S/PDIF digital and speaker cable, along with assorted AV electronics devices, architectural speakers and TV brackets.
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