The USPTO refused registration of the mark DATA ATOM for various computer services, finding the mark likely to cause confusion with the registered mark ATOMIC DATA, in standard character and design form, for overlapping computer services. Applicant argued that the marks differ in sound and appearance, and further that “atomic data” is a widely used generic or descriptive term entitled to little protection. How do you think this came out? In re Cloud Crowding Corp., Serial No. 86191213 (April 11, 2019) [not precedential] (Opinion by Judge Christopher Larkin).

The Board first considered whether ATOMIC DATA is a weak mark and therefore not entitled to a broad scope of protection, or whether the words have a particular meaning that imbues the mark with a different connotation and commercial impression than applicant’s mark.

Applicant relied on a declaration from a corporate officer stated that “atomic data” is a widely recognized generic term that refers to “data elements that represent the lowest level of detail.” The Board, however, gave no weight to those assertions since applicant did not establish that the declarant is qualified as an expert regarding the meaning or trademark significance of the term, or that he has personal knowledge about its use in the industry. The declarant did authenticate several webpages confirming his stated meaning of the term.

Significantly, the Board found no evidence of use of “atomic data” for the services identified in the application and cited registration.

While Applicant’s evidence suffices to show that the phrase “atomic data” has a particular meaning as the lowest or most elemental level of information, we cannot find, on this record, that the cited mark ATOMIC DATA is weak “and would be entitled to a very limited scope of protection.”

Turning to the issue of the word order, the question was whether the two marks convey different commercial impressions. The Board observed that “[f]rom the standpoint of the average purchaser of the legally identical computer-related consulting and support services, DATA ATOM and ATOMIC DATA both connote data at the elemental level.”

The Board concluded that the similarity in meaning “is more significant than, and outweighs, the modest dissimilarities in sound and appearance.” It therefore affirmed the refusal to register.