Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE LINKVEST S.A.
Serial No. 74/005,053
September 23, 1992
Issued: January 3, 1992
Robert J. Patch for applicant.
Trademark Examining Attorney
Law Office 6
(Myra K. Kurzbard, Managing Attorney)
Before Rooney, Simms, and Hohein
Applicant, Linkvest S.A., a Swiss corporation, has appealed from the final refusal of the Trademark Examining Attorney to register the mark LINKIT for computer software for data integration and transfer, under Section 2(d) of the Act, 15 USC 1052(d), on the basis of Registration No. 1,375,533, issued December 17, 1985, covering the mark shown below for computer programs recorded on magnetic disks. [FN1]
We agree with the Examining Attorney that the respective marks are nearly identical in appearance and are identical in sound and commercial impression. With respect to the goods, the question of likelihood of confusion must be determined on the basis of the goods set forth in applicant's application and those in the cited registration, rather than on what any evidence may show those goods to be. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed.Cir.1987). Registrant's goods are broadly identified as computer programs recorded on magnetic disks, without any limitation as to the kind of programs or the field of use. Therefore, we must assume that registrant's goods encompass all such computer programs including those which are for data integration and transfer. We must also assume that they would travel in the same channels of trade normal for those goods and to all classes of prospective purchasers for those goods. In re Elbaum, 211 USPQ 639 (TTAB 1981). So viewed, we agree with the Examining Attorney that registrant's goods encompass applicant's computer programs.
Nevertheless, applicant argues that the computer industry is an enormous field wherein purchasers are aware of "commercial compartmentalization." Further, it is argued that computer software companies are specialized and that the ordinary purchaser would not expect the manufacturer of computer programs recorded on magnetic disks to be the source for computer programs for data integration and transfer. For the reasons noted above, applicant's argument is unpersuasive. We agree with what the Examining Attorney has stated, brief, 10:
The Board has stated that "even sophisticated purchasers are not immune from source confusion where identical marks are applied to related sorts of goods ... Expertise in a particular field does not necessarily endow one with expertise in connection with the use of a trademark ... Furthermore, despite the Applicant's characterization of computer purchasers as sophisticated consumers, the growing tendency is for computers and computer programs to be purchased and operated by the general public. Business, home and educational use of computers has expanded the computer market to encompass many poorly informed and unsophisticated purchasers ... [Citations omitted.]
*2 Decision: The refusal of registration is affirmed.
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 74/005,053, filed November 24, 1989, claiming priority under Section 44(d), 15 USC 1126(d), on the basis of Swiss Registration No. 372,835, filed May 24, 1989.