The Board affirmed a Section 2(d) refusal to register ECHO 911 for “Computer software used to manage, store, and deliver enhanced emergency telecommunications information in the nature of E911 and 911 infrastructure and emergency location information for individuals in the event of an emergency,” finding a likelihood of confusion with the registered mark ECHO112 for “Computer software, namely, smartphone application that is a lifesaving application that sends the user’s location to local emergency services, worldwide.” The “overly aggressive” approach of applicant’s counsel, his “personal” attacks on the examining attorney, and his” numerous misguided or misleading arguments” surely did not help applicant’s cause. In re RedSky Technologies, Inc., Serial No. 87411583 (December 19, 2019) [not precedential] (Opinion by Deputy Chief Judge Mark A. Thurmon).

The marks: The Board found the term ECHO to be the distinctive portion of each mark. The “911” element of applicant’s mark is not distinctive, as shown by applicant’s own evidence. Examining Attorney Gidette Cuello submitted evidence showing that the “112” sequence “is used in many parts of the world to reach emergency services, and that dialing 112 in the United States usually results in the call going to a 911 call center.” Applicant’s own evidence demonstrated that “112” is known as an emergency services phone number to a substantial number of consumers in the United States.

Considering the marks in their entireties, the Board found them to be similar in sound and appearance. The marks are also similar in meaning, since the sequences 911 and 112 have similar meanings. “The commercial impressions made by the marks within the relevant market are also similar, and perhaps somewhat more so due to the similar role played by the 911 and 112 number sequences, when used as phone numbers.”

In sum, the Board found the marks to be “substantially similar,” and thus the first du Pont factor weighed in favor of affirmance of the refusal.

The goods: The Board observed that the involved software products concern communication in emergencies, and both products provide location information for an individual. Applicant’s broad description of goods “necessarily encompasses deployment through a smartphone application.” Applicant attempted to read limitations into its identification of goods by referring to extrinsic evidence, but the Board pointed out that it must consider the goods as identified in the application and registration at issue.

Similarly, applicant attempted to narrow the scope of its channels of trade, but the Board noted that there are no such limitations in the involved application. Both applicant and registrant offer their software through smartphone apps; the evidence showed that hundreds of apps relating to emergency services are offered through the Apple app store and the Google Play store. Thus the channels of trade overlap.

Applicant argued that its software is expensive and is purchased by sophisticated custom like universities. Again, however, applicant’s identification of goods contained no such limitations, and so the applicable standard of care is that of the least sophisticated consumer. In any event, the Board gave this factor little weight.

Strength of the cited mark: There was no evidence as to the market strength of the registered mark ECHO112. However, because the mark is distinctive, it does have some inherent strength. “This fact tends to increase the likelihood of confusion, but because the evidence on this issue is thin, we place little weight on this factor in our analysis.”

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

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TTABlog comment: Why would one think that a personal attack on the examining attorney would impress the Board? Moreover, the Board had this to say:

We note, in particular, that Applicant’s counsel asserted in the Request for Reconsideration: “If a death or injury occurs if a person dial 112 [sic] in an emergency situation and no emergency help arrives, the Examining Attorney, her management and the U.S. Trademark Office could potentially be liable for a claim under the Federal Tort Claims Act for negligence or other wrongful or ‘tortious’ conduct.” Request for Reconsideration at 77-78 (internal citation omitted). This statement is inflammatory, irrelevant, and entirely inappropriate. The issue before the Office is whether Applicant’s mark is registrable, not whether consumers should use the 112 numbers to reach emergency services. Such over-the-top arguments do not help Applicant’s case. Counsel is reminded that proceedings before the Office are to be conducted with decorum and courtesy. Trademark Rule 2.192

Text Copyright John L. Welch 2019.