Tuesday, June 26, 2018

TTAB Test: Is GUARDIAN AUDIO for Professional Audio Gear Confusable With EGUARDIAN for Consumer Electronics?

The USPTO refused registration of the mark GUARDIAN AUDIO for "audio equipment for use in commercial entertainment systems for use in large public venues, namely, amplifiers, speakers, receivers; all of the foregoing sold only to sound contractors for commercial installation, and to sound production companies, and none of which are targeted to or designed for use by the general consuming public," finding the mark likely to cause confusion with the registered mark EGUARDIAN for various "appliances and consumer electronic devices," including televisions, stereos, and audio and video recorders. How do you think this appeal came out? In re David Mottinger, Serial No. 87222396 (June 21, 2018) [not precedential] (Opinion by Judge Frances Wolfson).

The Marks: Not surprisingly, the Board found the word GUARDIAN to be the dominant portion of applicant's mark, since it appears as the first word in the mark and the word AUDIO is descriptive of audio equipment and has been disclaimed. The dominant word in the cited mark is also GUARDIAN. The letter "E" generally refers to electronics and describes a feature of registrant's goods. The Board concluded that the marks are similar in appearance, pronunciation, connotation, and overall commercial impression due to the common term GUARDIAN.

The Goods: The Board observed that it is not necessary for all the goods in the application and cited registration to be related in order to support a likelihood of confusion finding. It is sufficient if there is likely confusion as to any item in the application.

Examining Attorney Jonathan Robert Falk submitted seven use-based third-party registrations covering "amplifiers, speakers or receivers" and "public address system accessories," on the one hand, and "appliances and consumer electronic devices" such as televisions and cd players on the other. The evidence, though not extensive, was adequate to support a finding that the involved goods are related.

Channels of Trade: The cited registration has no restriction as to trade channels or classes of consumers, and in particular the term "appliances" is not limited to home electronics. The registration therefore covers televisions, stereos, and audio and video recorders that may be sold to sound contractors and sound production companies.

Thus, the restriction "sold only to sound contractors for commercial installation, and to sound production companies, and none of which are targeted to or designed for use by the general consuming public" in the application is not a material factor in our likelihood of analysis because Registrant’s description of goods is not restricted to any specific channels of trade.

Conclusion: The Board found conclusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: I think this could have gone either way.

Text Copyright John L. Welch 2018.


At 11:31 AM, Blogger Larry75 said...

I am surprised that the owner of the application apparently did not seek a concurrent use agreement with the owner of the cited mark; or if it did, that the owner of the cited mark refused to sign a concurrent use agreement, inasmuch as the applicant appears to be able to to establish use since around 2008 while the owner of the new registration, which is not yet incontestable, has only claimed use of the mark since 2013. Assuming that there has been no evidence of confusion between the two uses, and the presumptive care of professional installers with respect to audio equipment, it seems to me that these marks could coexist without any problems; and the owner of the cited mark would wish to avoid the expenses of a cancellation proceeding with an uncertain outcome.


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