Thursday, November 03, 2005

"IQEYE3" and "eye Q" Design Marks Confusingly Similar, Says TTAB.

Although struggling somewhat to explicate why the marks are confusingly similar, the Board affirmed a Section 2(d) refusal to register the mark IQEYE3 for "computerized digital cameras for use in security and surveillance applications," finding it likely to cause confusion with the registered mark shown immediately below, for, inter alia, digital cameras. In re IQinVision, Inc., Serial No. 76300952 (October 7, 2005) [not citable].

The Board agreed with Examining Attorney Michael Kazazian that the goods of the parties are "legally identical in part." Applicant IQinVision feebly and hopelessly contended that its goods "are identified for use in a precisely defined and limited field," whereas Registrant's cameras are not so identified. The Examining Attorney "persuasively" countered that:

"since the identification of the registrant's digital cameras is very broad, without limitation as to a specific purpose or use, it is presumed that the registration encompasses all goods of the type described, including those in applicant's more specific identification, that they move in all normal channels of trade and that they are available to all potential customers."

Turning to the marks, the Board once again noted that "[w]hen marks would appear on virtually identical goods or services, the degree of similarity necessary to support a conclusion of likely confusion declines."

Applicant argued that its mark is distinguishable because of the letter "I" that begins its mark, the inclusion of a design in the cited mark, and the appearance of the numeral "3" in its mark.

The Board, however, agreed with the PTO that the marks are "confusingly similar:" the marks "share substantial similarities in sound, appearance, connotation and commercial impression." The Board explained:

"Although, in registrant's 'EYE Q' mark, it is the word 'EYE,' rather than a letter 'I' as in applicant's 'IQEYE3' mark, which in conjunction with the letter 'Q' conveys the meaning of the term 'IQ,' both marks still share and readily project, in significant part, the connotation of the term 'IQ.' Both marks prominently feature the word 'EYE,' which in the case of applicant's mark could be depicted, as it is in registrant's mark, in lower case letters with the remaining lettering in all capital letters, i.e., IQeye3."

Because Applicant's mark is in block letters, the Board must consider all reasonable manners in which the mark might be depicted. Applicant therefore cannot validly argue that there is a "distinguishable difference in appearance between its mark and registrant's 'design' mark."

Finally, the inclusion of a "3" at the end of Applicant's mark was an insufficient difference on which to find confusion unlikely.

"even assuming that the sophisticated purchasers of applicant's and registrant's goods would notice the numeral '3' in applicant's mark, such number nonetheless would most liklely be regarded as suggesting, in conjunction with the word 'EYE,' that applicant's 'computerized digital cameras for use in security and surveillance applications' provide a 'third eye' with respect to providing protection of people and/or places and things, just as registrant's digital cameras function so as to provide an extra 'eye' for watching and safeguarding purposes."

As a last gasp, Applicant asserted that it "has not experienced any instances of confusion," but the Board noted that the record not only was devoid of any support for that statement (e.g., an affidavit), but also there was no evidence showing that there has been an opportunity for actual confusion to occur.

Text Copyright John L. Welch 2005.


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