Friday, April 26, 2019

POWER TECHON Confusable with POWER TECH for Extension Cords, Says TTAB in ACR Proceeding

In what may be the first opinion written by recently appointed Judge Jonathan Hudis, the Board sustained an opposition to registration of the mark POWER TECHON for, inter alia, electrical power extension cords, finding a likelihood of confusion with the registered mark POWER TECH for "Electric extension cords for use with portable electric hand tools, and sold through retail outlets including hardware, plumbing, electrical, and farm supply stores." Applicant argued, without success, that the mark POWER TECH is so inherently weak that it should not preclude registration of the applied-for mark. Gehr Industries, Inc. v. Ming’s Mark Inc., Opposition No. 91238658 (April 25, 2019) [not precedential] (Opinion by Judge Jonathan Hudis).

Of course, since the goods are identical (in part), a lesser degree of similarity between the marks is needed to support a finding of likely confusion. Also, these identical goods are presumed to travel i the same channels of trade. Applicant had filed a motion to amend its identification of goods to "power inverters," but the Board found that even if it granted the motion, confusion would still be likely, since the evidence showed that extension cords and power inverters may be used together, and thus are complementary and related goods.

Opposer's POWER TECH mark is presumed to be valid and distinctive, under Section 7(b) of the Lanham Act. Moreover, opposer submitted evidence of marketplace strength, while applicant's list of registered marks containing the words POWER or TECH in class 9 was of no probative value. Nonetheless,  the Board recognized that the POWER TECH mark "is on the weaker end of the spectrum conceptually, " but even weak are "still entitled to protection under Section 2(d) of the Trademark Act against the registration by a subsequent user of a similar mark for goods that are legally identical in-part and otherwise related, as is the case here."

Comparing the marks, the Board found that the similarities strongly weighed in opposer's favor.

Because the parties’ marks differ only in their last two letters, they would likely be pronounced similarly. Even with the addition of the letters “… ON” at the end of the word “TECH …” the commercial impression of “TECH” still comes through. Overall, the marks still look and sound similar and suggest that the goods have “TECH” features. 

Finally, applicant pointed to a consent agreement entered into by Opposer Gehr in 2007, involving the identical marks POWER TECH. But the Board found that agreement irrelevant, noting that applicant had reached no such agreement. "Thus, no presumption can be made that Gehr would consent to the use or registration of marks similar to POWER TECH in connection with goods identical or complimentary to the goods recited in Ming’s ‘824 Application. Obviously, by virtue of this proceeding, any such presumption would be incorrect."

And so the Board sustained the opposition.

Read comments and post your comment here.

TTABlog comment: This cases was submitted via ACR on February 21, 2019.

Text Copyright John L. Welch 2019.


At 6:58 PM, Anonymous Anonymous said...

Opposer appears to have benefited from the presumption of distinctiveness created by an examiner's treatment of TECH as distinctive way back in the early 1980s. I wonder if the applicant would have had any luck with a counterclaim petition to cancel rather than a naked assertion that a Principal Register mark is weak.


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