Monday, October 01, 2012

TTAB Affirms 2(d) Refusal of POWERWAVE BUS SYSTEM Over POWERWAVE for Electrical Power Distributions Units

Is this a WYHA? Methinks so. In a mere nine pages, the Board affirmed a Section 2(d) refusal of the mark POWERWAVE BUS SYSTEM for "structured electrical busses comprising electrical power connectors, electrical power distribution units, and electric power supplies for use with electric power equipment, not for use with radio frequency power amplifiers, not for use with audio frequency power amplifiers, and not for use with power supplies for arc welders" [BUS SYSTEM disclaimed]. The Board found the mark likely to cause confusion with the registered marks POWERWAVE and POWERWAVE TECHNOLOGIES [TECHNOLOGIES disclaimed] for "converters" and "electrical power distribution units." In re Power Distribution, Inc., Serial No. 77825939 (September 29, 2012) [not precedential]. [Corrected from "precedential" here].

Applicant contended that the term POWERWAVE is highly suggestive and that the applied-for mark creates a distinctive commercial impression because of the inclusion of BUS SYSTEM.  It pointed to dictionary definitions of "power" and "wave" and to two third-party registrations for marks that include the term POWERWAVE.

The Board, however, perceptively observed that BUS SYSTEM is disclaimed in Applicant's mark, and TECHNOLOGIES is disclaimed in one of the two cited registrations. Ergo, it concluded that POWERWAVE is the dominant element in all three marks. As to the third-party registrations, two is not a significant number, and furthermore the registrations "are not evidence of use of the marks." In short, the third-party registrations have "minimal probative value."

Not surprisingly, the Board found Applicant's mark and Registrant's marks to be "highly similar in appearance, sound, connotation and commercial impression."

As to the goods, Registrant's "electrical power distribution units" are identical to the "electrical power distribution units" sold as a component of applicant’s structured electrical busses. Based on Applicant's identification of goods, it was unclear whether Applicant's distribution units are sold with its busses as a unit, or are sold separately. The Board therefore assumed that Applicant's distribution units are sold separately. Applicant's limitation as to the use of its goods was irrelevant, since Registrant's identified goods are not restricted as to use.

Moreover, even assuming that the goods are not identical, they are closely related because "they both consist of electrical power distribution products used for similar purposes, namely, for the distribution of electrical power." Examining Attorney John Kelly submitted website evidence stating that electrical power distribution busway systems are used to distribute electrical power throughout buildings. The Board found it "entirely appropriate ... to consider extrinsic evidence in order to ascertain the significance of the goods. See In re Edwards Life Sciences, 94 USPQ2d 1399 (TTAB 2010). [TTABlogged here].

Because the involved application and registrations do not contain any restrictions as to channels of trade, the Board presumed that the goods move in all normal channels of trade and are available to all potential customers. [Isn't that redundant: the goods are available to all potential customers? - ed.].

Given the nature of the involved products, the Board found that purchasers would be sophisticated and knowledgeable, and would be "highly familiar" with the use and purpose of both parties’ products. However, it noted that even sophisticated purchasers are not necessarily sophisticated in the field of trademarks or immune from source confusion. [Does that imply that trademark attorneys are immune from source confusion? - ed.]

Balancing the relevant du Pont factors, the Board found confusion likely and it affirmed the refusal.

Text Copyright John L. Welch 2012.


At 1:43 PM, Anonymous Anonymous said...

Is this decision actually precedential? The PDF seems to indicate that.

At 2:35 PM, Blogger John L. Welch said...

I have been told by two judges that it is not precedential, but was erroneously so labeled. A revised opinion will issue.


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