This Opinion is Not a
`Precedent of the TTAB
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`Mailed: June 29, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`Trademark Trial and Appeal Board
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`In re IBrand Accessories LLC
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`Serial No. 86185362
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`Matthew H. Swyers of The Trademark Company,
`for IBrand Accessories LLC.
`Michael P. Keating, Trademark Examining Attorney, Law Office 101,
`Ronald R. Sussman, Managing Attorney.
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`Before Quinn, Zervas and Shaw,
`Administrative Trademark Judges.
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`Opinion by Quinn, Administrative Trademark Judge:
`IBrand Accessories LLC (“Applicant”) seeks registration on the Principal
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`Register of the mark BULLETPROOF SCREEN PROTECTOR (in standard
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`characters) (SCREEN PROTECTOR disclaimed) for “display screen protectors for
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`providing shade and privacy specially adapted to electronic devices, namely,
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`laptops, cell phones, and personal digital assistants” in International Class 9.1
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`1 Application Serial No. 86185362, filed February 5, 2014 under Section 1(b) of the
`Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intention to use the mark in
`commerce.
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`Application Serial No. 85185362
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`The Trademark Examining Attorney refused registration under Section 2(d) of
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`the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
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`used for Applicant’s goods, so resembles the previously registered mark
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`BULLET-PROOF SHIELDS (in standard characters) for “protective sheet for
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`covering laptop computers, MP3 players, ipods, personal digital assistance [sic],
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`mobile phones and other electronics” in International Class 92 as to be likely to
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`cause confusion.3
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`When the Examining Attorney made the refusal final, Applicant appealed.
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`Applicant and the Examining Attorney filed briefs. We affirm the refusal.4
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`Applicant argues that the goods are different; more specifically, Applicant
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`asserts that its goods “consist of a drop-proof, shock proof clear film placed over the
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`screen of the named devices to dim the light emitted by the phone screen, thereby
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`prohibiting the vision of what is displayed on the screen from a side view,” and “also
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`provide shade from the sun.” (4 TTABVUE 10). Applicant contrasts its goods with
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`Registrant’s goods, which are “used with hard shell cases for [electronic devices].”
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`Id. As to the marks, Applicant argues that the Examining Attorney improperly
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`dissected the marks, and that any likelihood that consumers will be confused is
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`2 Registration No.3640795, issued June 16, 2009. In passing we note that the identification
`impermissibly includes a registered trademark (Reg. No. 2835698 for IPOD), and that
`“personal digital assistance” should be “personal digital assistants.”
`3 We note that the cited registration recently passed its sixth anniversary. Office records do
`not show the filing as yet of a Section 8 affidavit of continued use, but as indicated in
`Section 8(a)(3) of the Trademark Act, 15 U.S.C. § 1058(a)(3), Registrant may file the
`affidavit within a grace period of six months after the sixth anniversary date. See
`Trademark Rule 2.160(a); TMEP § 1604.04 (2015). In any event, Applicant did not request
`a suspension of the appeal. See TBMP § 1213 (2014).
`4 Citations to the briefs in this opinion are to the TTABVUE docket entry number and the
`electronic page number where the statement appears.
`2
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`

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`Application Serial No. 85185362
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`removed by the inclusion of the words “SCREEN PROTECTOR” in Applicant’s
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`mark that explicitly tells consumers what they are buying, whereas the word
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`“SHIELD” in Registrant’s mark “suggests a cover, protecting the hardware of the
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`phone or device.” (4 TTABVUE 11). Applicant asserts that Applicant’s goods are
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`sold via its website, www.ibrandaccessories.com, trade shows and social media,
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`whereas Registrant’s goods are sold on Registrant’s website www.handstands.com
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`and Amazon.com. (4 TTABVUE 11-12). Applicant also argues that its goods “are
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`geared toward people who are interested in phone accessories with a purpose other
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`than protecting the phone or device’s outer body, such as providing privacy and
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`shade to allow users to be able to read their display screen in the sun,” contrasted
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`with Registrant’s goods which target “people who are prone to dropping their device,
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`and want a form of protection to keep the device from cracking and breaking.” (4
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`TTABVUE 12). Applicant introduced the affidavit of Muhammad Khalid.
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`The Examining Attorney maintains that the marks are similar and that the
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`goods are identical. In support of the refusal, the Examining Attorney submitted
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`dictionary definitions, and copies of pages retrieved from the websites of Applicant
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`and Registrant, as well as those of third parties in the industry.
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`Our determination under Section 2(d) is based on an analysis of all of the facts
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`in evidence that are relevant to the factors bearing on the likelihood of confusion. In
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`re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In
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`any likelihood of confusion analysis, two key considerations are the similarities
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`3
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`Application Serial No. 85185362
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`between the marks and the similarities between the goods. See Federated Foods,
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`Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
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`With respect to the first du Pont factor, we must compare the marks in their
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`entireties as to appearance, sound, connotation and commercial impression to
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`determine the similarity or dissimilarity between them. Palm Bay Imports, Inc. v.
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`Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
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`1689, 1691 (Fed. Cir. 2005), quoting In re E. I. du Pont de Nemours & Co., 177
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`USPQ at 567. “The proper test is not a side-by-side comparison of the marks, but
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`instead ‘whether the marks are sufficiently similar in terms of their commercial
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`impression’ such that persons who encounter the marks would be likely to assume a
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`connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668
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`F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). The focus is
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`on the recollection of the average purchaser, who normally retains a general rather
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`than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC,
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`110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190
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`USPQ 106 (TTAB 1975).
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`Although marks must be considered in their entireties, it is settled that one
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`feature of a mark may be more significant than another, and it is not improper to
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`give more weight to this dominant feature in determining the commercial
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`impression created by the mark. In re National Data Corp., 753 F.2d 1056, 224
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`USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing improper in stating that, for
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`rational reasons, more or less weight has been given to a particular feature of a
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`4
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`Application Serial No. 85185362
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`mark, provided the ultimate conclusion rests on consideration of the marks in their
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`entireties. Indeed, this type of analysis appears to be unavoidable.”).
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`With respect to Applicant’s mark, the generic term “SCREEN PROTECTOR”
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`has been disclaimed apart from the mark. In view of the generic nature of this
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`disclaimed term, this portion of the mark plays no source-indicating function in this
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`mark. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34
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`(Fed. Cir. 1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the
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`dominant portion of the mark THE DELTA CAFE). As to Registrant’s mark, the
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`term “SHIELDS” is, at the very least, highly suggestive.
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`Accordingly, the dominant portion of Applicant’s mark, BULLETPROOF, is
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`essentially identical to the dominant portion of Registrant’s mark, BULLET-
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`PROOF. The marks BULLETPROOF SCREEN PROTECTOR and BULLET-
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`PROOF SHIELDS are similar in appearance, sound, and meaning (suggesting that
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`the goods will protect electronic device screens from forceful impacts). Given these
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`similarities, the marks engender virtually identical overall commercial impressions.
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`The first du Pont factor weighs heavily in favor of a finding of likelihood of
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`confusion.
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`As to the second du Pont factor, in making our determination regarding the
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`relatedness of the goods, we must look to the goods as identified in the application
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`and the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
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`746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014), quoting Octocom Sys., Inc.
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`v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
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`5
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`Application Serial No. 85185362
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`1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). Applicant’s
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`goods are identified as “display screen protectors for providing shade and privacy
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`specially adapted to electronic devices, namely, laptops, cell phones, and personal
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`digital assistants”; Registrant’s goods are “protective sheet for covering laptop
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`computers, MP3 players, ipods, personal digital assistance [sic], mobile phones and
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`other electronics.”
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`Because the goods identified in the cited registration have no limitations or
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`restrictions, it is presumed that as recited the goods encompass all goods of the type
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`identified. See Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901,
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`177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119
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`USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992). Thus,
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`we must presume that Registrant’s goods encompass all types of protective sheets,
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`including those for providing shade and privacy. As such, the goods are legally
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`identical. Moreover, in point of fact, the respective websites of Applicant and
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`Registrant confirm that their goods are both in the nature of protective covers for
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`the screens of electronic devices.
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`Inasmuch as the goods identified in the application and the cited registration are
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`legally identical, we must presume that the channels of trade and classes of
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`purchasers are the same. See In re Yawata Iron & Steel Co., 403 F.2d 752, 159
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`USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels
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`of trade and classes of purchasers are considered to be the same); American
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`Lebanese Syrian Associated Charities Inc. v. Child Health Research Institute, 101
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`6
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`Application Serial No. 85185362
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`USPQ2d 1022, 1028 (TTAB 2011). See also In re Viterra Inc., 671 F.3d 1358, 101
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`USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding
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`channels of trade and classes of consumers, the Board was entitled to rely on this
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`legal presumption in determining likelihood of confusion). The goods are likely to be
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`sold through the same trade channels (e.g., online retailers of accessories for
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`electronic devices) to the same classes of purchasers (e.g., ordinary consumers).
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`As indicated earlier, the record includes the affidavit of Mr. Khalid, an
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`individual who apparently is affiliated with Applicant, yet no formal title or job
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`responsibility is indicated. In any event, the affiant claims that his statements are
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`based “upon my own knowledge.” Mr. Khalid believes that there is no likelihood of
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`confusion between the marks. The affidavit is accompanied by pages from
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`Applicant’s and Registrant’s websites.
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`Mr. Khalid makes numerous statements relating to the goods, which include the
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`following: Applicant’s and Registrant’s goods are specifically different; and
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`Applicant’s goods are marketed through its website, trade shows and social media,
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`and are sold through its website and mobile retail stores, whereas Registrant’s
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`goods are sold through Registrant’s website and Amazon.com.
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`Mr. Khalid’s statements, and the exhibits attached to the affidavit, are largely
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`irrelevant to our analysis. An applicant may not restrict the scope of the goods
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`covered in its application or in the cited registration by argument or extrinsic
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`evidence. In re Midwest Gaming & Entertainment LLC, 106 USPQ2d 1163, 1165
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`(TTAB 2013), In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008), In re
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`7
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`

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`Application Serial No. 85185362
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`Bercut-Vandervoort & Co., 229 USPQ2d 763, 764 (TTAB 1986). Thus, any specific
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`differences between the actual natures of the goods are irrelevant in our analysis.
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`As noted earlier, Applicant’s and Registrant’s goods comprise a sheet or film that
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`offers protection for the screens of electronic devices. Further, neither of the
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`identifications of goods includes any of the limitations in trade channels highlighted
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`by Mr. Khalid.
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`The legal identity of the goods, and the presumed identity in trade channels and
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`purchasers are factors that also weigh heavily in favor of a finding of likelihood of
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`confusion.
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`We conclude that purchasers familiar with Registrant’s “protective sheet for
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`covering laptop computers, MP3 players, ipods, personal digital assistance [sic],
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`mobile phones and other electronics” sold under the mark BULLET-PROOF
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`SHIELDS would be likely to mistakenly believe, upon encountering Applicant’s
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`mark BULLETPROOF SCREEN PROTECTOR for “display screen protectors for
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`providing shade and privacy specially adapted to electronic devices, namely,
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`laptops, cell phones, and personal digital assistants,” that the goods originate from
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`or are associated with or sponsored by the same entity.
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`Decision: The refusal to register is affirmed.
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`8