Friday, June 29, 2018

TTAB Reverses 2(d) Refusal of CARAT for Airplane Connectivity Services: Unrelated to Broadcasting Services

The Board reversed a refusal to register the mark CARAT (Stylized) for aircraft connectivity services that enable transmission of data to and from aircraft. The USPTO deemed the mark likely to cause confusion with the registered mark CARAT (standard characters) for "radio and television broadcasting services." However, the examining attorney did not provide any evidence of an overlap in trade channels or purchasers. In re P.G.A. Electronic, Serial No. 79191002 (June 25, 2018) [not precedential] (Opinion by Judge Albert Zervas).

The Marks Not surprisingly, the Board found the marks to be identical in sound, connotation, and commercial impression. As to appearance, the marks are legally identical, since registrant's standard character mark could be displayed in the same font as the applied-for mark.

The Services: The examining attorney pointed to seven existing registrations that cover both broadcasting services across various platforms, and data transmission services. He also provided webpages from three large telecommunications companies, but only one referred to television and radio services for aircraft.

The Board did not disagree with the examining attorney that registrant's customers include airline passengers (DirectTV offers programming on airplanes). But the examining attorney did not identify the purchasers of applicant's services. Although airline passengers may be the ultimate beneficiary of applicant's services, the evidence did not show that passengers are consumers of applicant's services "or would even be aware that Applicant is the entity providing the connectivity services."

Passengers do not participate in purchasing decisions involving an airplane’s connectivity services. Based on Applicant’s recitation of services, and the dearth of evidence in the record suggesting otherwise, we find that purchasers of Applicant’s services are "professionally trained and technical experts in the field of aircraft equipment, installation, maintenance and use thereof," as identified by Applicant. The question, then, is whether this group of purchasers are also purchasers of radio and television broadcasting services.

The Board found nothing in the record to show that the professionally trained individuals would also purchase radio and television broadcasting services. Nor was there evidence that the normal channels of trade for the involved services intersect. It also appeared that the relevant potential purchasers - who are not airline passengers - would be knowledgeable and sophisticated and would exercise greater care in their purchasing decisions.

Conclusion: The du Pont factors regarding channels of trade and classes of purchasers outweighed the other factors, and so the Board reversed the refusal.

Read comments and post your comment here.

TTABlog comment: Don't airline passengers (i.e., the general public) also purchase broadcasting services, like DirectTV? Yes, but the overlapping purchasers are sophisticated and careful.

Text Copyright John L. Welch 2018.


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