Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA746082
`
`Filing date:
`
`05/12/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Petition for Cancellation
`
`Notice is hereby given that the following party requests to cancel indicated registration.
`
`Petitioner Information
`
`Name
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`Ubiquiti Networks, Inc.
`
`Corporation
`
`Citizenship
`
`Delaware
`
`2580 Orchard Parkway
`San Jose, CA 95131
`UNITED STATES
`
`Cynthia R. Adwere
`Law Office of Cynthia R. Adwere
`2625 Middlefield Road #360
`Palo Alto, CA 94306
`UNITED STATES
`cynthia@adwerelaw.com Phone:6503465750
`
`Registration Subject to Cancellation
`
`Registration No
`
`3411726
`
`International Re-
`gistration No.
`
`NONE
`
`Registrant
`
`APPLE INC.
`
`Registration date
`
`04/15/2008
`
`International Re-
`gistration Date
`
`NONE
`
`CUPERTINO, CA 95014
`UNITED STATES
`
`Goods/Services Subject to Cancellation
`
`Class 009. First Use: 2005/10/12 First Use In Commerce: 2005/10/12
`All goods and services in the class are cancelled, namely: [ Remote controllers for audio
`devices,video devices and personal computers ] computer software for controlling the operation of
`audio and video devices and for viewing, searching and/or playing audio, video, television, internet
`radio, photographs and other digital images, andother multimedia content
`
`Grounds for Cancellation
`
`Abandonment
`
`Fraud on the USPTO
`
`Trademark Act Section 14(3)
`
`Trademark Act Section 14(3); In re Bose Corp.,
`580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir.
`2009)
`
`Attachments
`
`Petition to Cancel.pdf(1113760 bytes )
`Exhibit 1.pdf(3784569 bytes )
`Exhibit 2.pdf(4375311 bytes )
`Exhibit 3.pdf(1087859 bytes )
`
`

`

`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`
`Signature
`
`/Cynthia R. Adwere/
`
`Name
`
`Date
`
`Cynthia R. Adwere
`
`05/12/2016
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Reg. No. 3.41 1.726
`
`1
`
`) )
`
`)
`)
`
`) )
`
`) 1
`
`) )
`
`Ubiquiti Networks, Inc..
`
`Petitioner,
`
`v.
`
`Apple Inc..
`
`Registrant.
`
`PETITION TO CANCEL
`
`Petitioner. Ubiquiti Networks,
`
`lnc.._ a Delaware corporation, with an address at 2580 Orchard
`
`Parkway, San Jose. California, 95131. believes that it is or will be damaged by Reg. No. 3.41 1.726 for the
`
`mark FRONT ROW: that the application resulting in Reg. 3.41 1.726 was fraudulently filed;
`
`that a
`
`fraudulent Sections 8 & IS Declaration of Continued Use and Incontestability was filed in support of Reg.
`
`No. 3.41 1,726; that a valid Section 8 Declaration was not timely filed; and that the FRONT ROW mark.
`
`which is the subject of Reg. No. 3.411.726. has been abandoned by Registrant. Accordingly. Petitioner
`
`hereby petitions to cancel Reg. No. 3.41 1.726.
`
`As grounds for this Petition it is alleged that:
`
`1. Petitioner
`
`is a next-generation communications technology company that develops proprietary
`
`technologies.
`
`lt designs and offers for sale a wide variety of equipment used in wireless
`
`communications.
`
`including wireless networking products and the software used to operate the
`
`devices. Petitioner is developing a new line of wireless equipment for media streaming and wireless
`
`audio and video equipment.
`
`Petition to Cancel
`
`I
`
`

`

`ts.) On June 30, 2015, Petitioner filed Trademark App. Ser. No. 86l679.026 on the basis of Section 1(b)
`
`of the Lanham Act (“Act") with the USPTO for the mark FRONT ROW for use. as amended,
`
`in
`
`connection with "digital media streaming devices." digital electronic devices for recording,
`
`organizing. transmitting. manipulating and reviewing iexl, data. image and aadiofiles.‘ digital video
`
`recorders; network video recorders: digital video cameras: video cameras: video streaming devices:
`
`remote controllers for audio devices and video devices” in Class 009.
`
`(A printout of the USPTO
`
`record for this application is attached hereto as Exhibit I).
`
`3. Registration No. 3.41 1.726 was cited as a § 2(d) bar to registration of App. Ser. No. 86/679,026 under
`
`the Act. and that citation ultimately resulted in a final rejection of Petitioner‘s application on
`
`November 12, 2015.
`
`(See Exhibit 1).
`
`4. Petitioner has a reasonable basis for its belief that it will be unable to overcome this § 2(d) bar, and
`
`will. consequently, be damaged by the continued existence of Reg. No. 3,41 1,726.
`
`5. According to USPTO records. App. Ser. No. "iii/821.120 (which matured to Registration No.
`
`3.41 1.726) for the mark FRONT ROW was filed on February 22. 2006 by Apple Inc. on the basis of
`
`Section 1(3) of the Act, claiming a priority date of September 1, 2005 and a first use date of October
`
`12. 2005 in connection with
`
`“remote controllers for audio devices. video devices and personal
`
`computers; computer software for controlling the operation of audio and video devices and for
`
`viewing. searching and/or playing audio. video.
`
`television.
`
`internei radio, photographs and other
`
`digital images. and other multimedia conieni” in Class 009. (A printout of the USPTO record for this
`
`registration is attached hereto as Exhibit 2).
`
`6. Upon information and belief Registrant never advertised. distributed or sold “remote conirollers for
`
`audio devices. video devices and personal compulers'" under the FRONT ROW mark.
`
`instead. the
`
`FRONT ROW mark was used exclusively in connection with software. Nonetheless. Registrant
`
`asserted the mark was in use in connection with all of the listed goods “at least as early as” October
`
`12. 2005.
`Petition to Cancel
`
`{a}
`
`

`

`Upon information and belief Registrant‘s false statement regarding Registrant’s use of the FRONT
`
`ROW mark in connection with "remote controllers for audio devices. video devices and personal
`
`computers" was made in full knowledge of its falsity and was made with the intent to deceive the
`
`USPTO. Accordingly, App. Ser. No. 78/821,120 was void ab iniiio. and no registration should have
`
`issued therefrom.
`
`Accordingly, Petitioner prays for cancelation of Reg. No. 3.411.726 on the basis of fraud in the
`
`originally filed application, and prays that this Petition to Cancel be sustained in favor of Petitioner.
`
`According to USPTO records. App. Ser. No. 78/821,120 was approved for publication and registered
`
`on April 15. 2008 under Reg. No. 3.41 1.726. (See Exhibit 2).
`
`Upon information and belief Registrant discontinued use of the FRONT ROW trademark in July of
`
`2011 with the release of Registrant’s OS X Lion v. 10.7 operating system and iTunes v. 10.4
`
`software.
`
`Upon information and belief Registrant discontinued support for Registrant’s FRONT ROW software
`
`in July of 2011 with the release of its OS X Lion v. 10.7 operating system and iTunes v. 10.4
`
`software.
`
`According to the USPTO records, on June 4. 2013. Registrant filed a Section 8 Declaration of
`
`Continued Use in connection with the software goods listed in Reg. No. 3.411.726, declaring that
`
`“The mark is in use in commerce on or in connection with thefollowing goods or services listed in ilze
`
`existing registrationfor this specific class: ‘compurer sofnvarefor controlling the operation ofaudio
`
`and video devices andfor viewing, searching and/or playing audio. video. television. internet radio,
`
`photographs and other digital images. and other multimedia content "I (See Exhibit 2).'
`
`10.
`
`ll.
`
`12.
`
`‘ Petitioner notes that although Registrant indicated in its Section 8 & 15 Declaration that “remote coniroilersjbr
`audio devices. video devices and personal compuiers" should be deleted from the registration, those goods were not
`deleted until Registrant‘s Section 7 Request was granted on November 3. 2015 pursuant to negotiations with
`Petitioner.
`
`Petition to Cancel
`
`L4)
`
`

`

`13. According to the USPTO records, Registrant’s declaration in support of its Section 8 Declaration
`
`stated that the FRONT ROW mark was in current use as ofJune 4, 2013. (See Exhibit 2).
`
`14. According to the USPTO records. on June 4, 2013, Registrant filed a Section 15 Declaration of
`
`Continued Use in connection with the software goods listed in Reg. No. 3,411.726, declaring that
`
`“For the remaining goods or services [computer software for controlling the operation ofaudio and
`
`video devices and for viewing, searching and/or playing audio, video.
`
`television.
`
`internet radio,
`
`photographs and other digital
`
`images. and other multimedia content].
`
`the mark has been
`
`continuously used in commercefor five (5) consecutive years after the date of registration. or the date
`
`of publication under Section 12(6). and is still in use in commerce on or in connection with these
`
`goods or services." (See Exhibit 2).
`
`15. Upon information and belief, Registrant's FRONT ROW mark had not been used in commerce by
`
`Registrant since 201 1, and was not in use in commerce on June 4. 2013 when the Sections 8 & 15
`
`Declaration was filed. (See Exhibit 3).
`
`16. Upon information and belief Registrant’s false statements in the Sections 8 & 15 Declaration
`
`regarding continuous and current use of the FRONT ROW mark in commerce was made in full
`
`knowledge of its falsity and was made with the intent to deceive the USPTO and circumvent the
`
`cancelation of Reg. No. 3.411.726. The FRONT ROW mark was not
`
`in use in commerce by
`
`Registrant at any time during the period between August 201 1 and June 4, 2013.
`
`17. Accordingly, Petitioner prays for cancelation of Reg. No. 3,411,726 on the basis of the fraudulent
`
`filing of the Sections 8 & 15 Declaration; and that this Petition to Cancel be sustained in favor of
`
`Petitioner.
`
`18. Alternatively, Petitioner prays for cancelation of Reg. No. 3,411,726 on the basis that no valid
`
`Section 8 Declaration was filed during the requisite time period: and that this Petition to Cancel be
`
`sustained in favor of Petitioner.
`
`Petition to Cancel
`
`4
`
`

`

`I9. Upon information and belief Registrant has not used its FRONT ROW mark since July of 201 I and
`
`has no intention to resume use of its mark in connection with the goods remaining in Reg. No.
`
`3,411,726. (See Exhibit 3).
`
`20. Accordingly. Petitioner prays for cancelation of Reg. No. 3,41 1,726 on the basis of abandonment; and
`
`that this Petition to Cancel be Sustained in favor of Petitioner.
`
`WHEREFORE. Petitioner prays that Reg. No. 3.4! 1.726 be canceled under one or more of its prayers for
`
`relief, and that this Petition to Cancel be sustained in favor of Petitioner.
`
`Date: May; 12, 2016
`
`8
`
`41
`
`Respectfully submitted.
`
`Cynthia R. Adwere
`Law Office of Cynthia R. Adwere
`Attorneyfor Petitioner
`
`Law Office of Cynthia R. Adwere
`2625 Middlefteld Rd # 360
`
`Palo Alto, California 94306-2516
`Telephone: 650-346-5750
`flflhifllélgflgrglflzcom
`File No.: UBN-762
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and complete copy of the foregoing Petition to Cancel Reg. No. 3,41 1,726 and attached
`Exhibits have been served on Registrant by mailing said copy on date shown below. via United States Postal Service
`as first class mail, postage prepaid. in an enveiope addressed to:
`
`JOHN DONALD
`
`Apple Inc.
`1 infinite Loop
`MS 169-31PL
`
`Cupertino, CALIFORNIA. 95014
`
`Executed this E2‘h day ofMay, 2016.
`
`/.
`L5,};- /g‘
`
`{31 a
`
`Petition to Cancel
`
`5
`
`

`

`Generated on: This page was generated by TSDH on 2016-05-10 17.21 '46 EDT
`Mark: F FONT ROW
`
`Exhibit 1
`
`FRONT ROW
`
`U8 Serial Number: 86679026
`
`Filed as me RF: Yes
`Register: Principal
`
`Mark Type: Trademark
`
`Application Filing Jun 30. 2015
`Date:
`
`Currently TEAS RF: Yes
`
`Status: A line! Ollice action refusrng registration has been sent ilssued) because: lhe applicant neither seilsiied nor overcame all requirements
`andior refusals prewousiy raised The applicant may respond by tiling (l) a request for reconsideration. andior (2) an appeal to the
`Trademark Trial and Appeal Board To view all documents in this file. click on the Trademani Document Retrieval iinli at the top of this
`page
`
`Status Date: Nov 12. 2015
`
`
`
`
`
`____..m.._..__
`
`Mark Literal FRONT ROW
`Elma“:
`.
`
`Mark [ti—formation W
`
`_.w__._———...-t.w.___— __“.WWW.
`
`W“—
`
`Standard Character Yes The mark consists of standard characters wnhoul claim to any particular lonl style, Size. or color
`Cialrri:
`
`Mark Drawing 4 - STANDARD CHARACTER MARK
`
`Type:
`
`
`
`Goods and. Sery‘ices
`
`Nata: The {allowing symbols indicate that the registrantiownei has amended the goodsissrvtoes:
`
`c Sraciratfi 1 indicate deleted goodsiservices.
`0 Double perenmesm ii
`ll identity any goodsisemcas not claimed in a Section 15 affidavit of moontestabrlrty; and
`- Asterisks ‘ .1 identity additional (new) wording in the goodsfierwzes.
`
`For: digital media streaming det'lces. digital electronic dances for recording, organizing. transmtting. mnipulaung and revrewing text. data
`image and audio illes. digital video recorders. network Video recorders. digital Video cameras. Video cameras. Video streaming dewces.
`remote controllers for audio devices and video devrces
`
`International 009 - Primary Class
`Clesetesl:
`Class Status: ACTIVE
`
`1.1.8 Cheetos): 021. 023. 025. 036. 038
`
`Basie: 1rd)
`Basis Information Case Level
`
`
`Filed Use: No
`
`Filed ITU: Yes
`
`Filed “D: No
`
`Filed “E: No
`Filed 66).: No
`
`Currently Use: No
`
`Currently rru: Yes
`
`Currently «D: No
`
`Currently “E: No
`Currently 66A: No
`
`Amended Use: No
`
`Amended nu: No
`
`Amended «D: No
`
`Amended 44E: No
`
`Fliod No Bails: No
`
`Currently No Basie: No
`
`current Owner! sljnformation _
`
`Owner Name: Ubidulti Networks. inc
`
`Owner Address: 2560 Orchard Parkway
`San Jose. CALIFORNIA 95131
`UNITED STATES
`
`Legal Entity Type: CGHPORATlON
`
`State or Country DELAWARE
`Where Organized:
`
`

`

`Attorney/Congggndence Information
`
`Attorney Name: Cynthia R Adwere
`
`Attorney Primary cynth:a@aoware|aw.oom
`EmIII Address:
`
`Corrupondonl CYNTHIA Fl. ADWEI—‘IE
`Name/Adan“: Law Office Of Cynthta FI Adwere
`2826 MIadIeIieId Ra It 360
`Pale Afro, CALIFORNIA 94306-2516
`UNITED STATES
`
`Phone: 650-346-5750
`
`“Nancy at “not!
`
`Docket Number: UBNJSZ
`
`Attorney Email Yes
`Authorlznd:
`
`Comm
`
`Cormpondmt :- cynthm®aawgrelgw com
`mall:
`
`Correspondent a- Yes
`mall Authorized:
`
`W.-_._____W
`
`MW.M:.!9LE2W
`
`,
`
`_._..........Wk
`
`m
`Nov 12‘ 2015
`Nov. 12‘ 2015
`
`Nov 12, 2015
`Oct 23, 2015
`Oct. 22, 2015
`Oct. 22. 2015
`
`mm
`NOTIFICATION OF FINAL REFUSAL EMAILED
`FINAL REFUSAL E-MAILED
`
`FINAL REFUSAL WRITTEN
`TEASI'EMAIL CORRESPONDENCE ENTERED
`CORRESPONDENCE RECEIVED IN LAW OFFICE
`TEAS RESPONSE TO OFFICE ACTION RECEIVED
`
`NOTIFICATION OF NON-FINAL ACTION E-MAILED
`Oct. 14. 2015
`NON-FINAL ACTION E-MAILED
`0C1. 14, 2015
`NON-FINAL ACTION WRITTEN
`Oct 14, 2015
`ASSIGNED TO EXAMINER
`Oct. 03, 2015
`NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM
`Jul. 07. 2015
`
`
`NEW APPLICATION ENTERED IN TFIAMJul. 03, 2015
`
`TM Staff and Location [Aroma—EIT—
`
`TM Attorney: POLZER. NATALIE M
`
`Current Location: TMEG LAW OFFICE 108. EXAMINING
`ATTORNEY ASSIGNED
`
`TI sum Imormauon
`
`Law Office LAW OFFICE 108
`Asstgned:
`Filo mutton
`
`Date In LocstIon: Nov 12. 2015
`
`mw
`
`83175
`38889
`38889
`
`6325
`6325
`83175
`83175
`
`

`

`.
`To:
`
`Subjm:
`Sent:
`
`5mm;
`
`I
`Ubiquiti Networks, Inc.MW
`
`"'M._
`
`U.S. TRADEMARK APPLICATION NO. 86679026 - FRONT ROW - UBN~762
`1 “121201523013 PM
`'
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`lgafihmt - 4!
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`Aflaghggm. ~ 45
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`Atgghmgnt - 62
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`gmhmgnt m g}
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`Attachmgznt — 66
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`Attachmt ~ 74
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`mm
`Au_achmgt - 76
`Amghmgm - 77
`mam-.73
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`

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`W M
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`m11mg! - 109
`Attachment - _I I0
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`finachmme 142
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`Aggy;hmcgt — I41
`Aggmmgt - lfi
`Attachment - I45
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`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANTS TRADEMARK APPLICATION
`
`U5. APPLICATION SERIAL N0. 86679026
`
`MARK: FRONT ROW
`
`CORRESPONDENT ADDRESS:
`
`CYNTHIA R. ADWERI:
`Law Office Of Cynthia R Adwer:
`2625 Muddlcflcld Rd {.1 360
`Paln Alto. CA 9430645 If)
`
`APPLICANTI Uhiquixi NCIWDrks, Inc.
`
`CORRESRINDENT'S REP‘ERENCWKET
`NO:
`
`UHNv-IGZ
`CORRESPONDENT III-MAIL ADDRESS:
`cynlhiafil‘adwerelau .cnm
`
`*86679026*
`
`CLICK HERE TO RESPOND TO THIS
`LETTER:
`MI
`:Iinvrums In. milrndc'ulurkshomlrrs
`
`I13“ Harms. s I
`
`
`
`
`VIEW YUI R AF'F’I .lI,.'A'I'lI)N HU-
`
`STRICT DEADLINE T0 RESPOND TO THIS LETTER
`To AVOID ABANDONMI—LN’I‘ 0F APPI..ICANT'S TRADEMARK APPIICA'I‘ION, 'I'HE USPI‘O MUST RECEIVE APPLICANTS
`COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE-MAILING DATE BELOW.
`
`OFFICE ACTION
`
`ISSUIUMAILING DATE: I I! | ZI'ZIHS
`
`THIS IS A FINAL ACTION.
`
`[NTRODUC[1ON
`
`This Office action is in response 10 applicant's communication filed on III/2230! 5.
`
`

`

`In a previous Office action dated l0/I-lf2014. the trademark examining attorney refused registration of the applied-for mark based on the
`following: Trademark Act Section 2(d) for a likelihood of confusion with a registered mark.
`
`Next. although not required. with the response to Office action. the applicant provided an amended identification of goods. The amended
`identification of goods is acceptable.
`
`
`
`However. the applicant‘s arguments concerning the likelihood of confusion refusal have been considered and found unpersuasivc for the reasons
`set forth below. Therefore, the refusal tinder Trademark Act Section 2Id) is now made FINAL with respect to 1‘5. Registration No. 3-“ I726 .
`See IS U.S.C. §l052(d); 3'7 (ll-IR. §2.63(b).
`
`general Principles in Determining Likelihood of ConLusjon
`
`Trademark Act Section 2(d) bars registration of an appliedvfor mark that so resembles a registered mark that it is likely a potential consumer
`would be confused. mistaken. or deceived as to the source of the goods andIor services of the applicant and registrant. See 15 U.S.C. § |052(d).
`A determination of likelihood of confusion under Section 2(d) is made on a case—by case basis and the factors set forth in In re E. I. do Pont de
`Nemonrs & Co.. 476 F.2d l357. 136] . I77 USI’Q 563. 567 (C.C.P.A. 1973) aid in this determination. Cirigroup Inc. v. Capital City Bank Grp..
`Inez. 637 F.3d l344. H49. 98 USPQ2d I253. l256 (Fed.(fir. 20l 1) (citing Orr-Line Caroline. Inc. v. Am. Onliite. Inca. 229 F.3d IOSO. l085. 56
`USPQ2d t47t, 1474 (Fed. Cir. 2000)). Not all the alt: Pom factors. however. are necessarily relevant or of equal weight. and anyone of the
`factors may control in a given case. depending upon the evidence of record. Cirigroup Inc. v. Capital City Bank Grp.. Inc. 637 F.3d at [355. 98
`USPQZd at 1260; In re Majestic: Distilling (30.. 3I5 F.3d 13!]. ISIS. 65 [lSPQ2d l20l. |204 (Fed. Cir. 2003): see In re E. I. do Particle
`Nentours & C0,.476 F.2d at 1361-62. l7? USl’Q at 567.
`
`In this case. the following factors are the most relevant: similarity of the marks. similarity and nature of the goods. and similarity of the trade
`channels of the goods. See In re Viterra Inc..67l F.3d l358. l36l-62. 101 IlSl‘QZd l905. I908 (Fed. Cir. 2012); In re Dakr'n's Miniatures Inc. .
`59 USPQZd 1593. l595~96 ('ITAB l999i;TMf-1P§§l207.01 erseq.
`
`The Marks
`
`In a likelihood of confusion determination. the marks in their entiretics are compared for similarities in appearance. sound, connotation. and
`commercial impression.
`In re E. I. do Port! dc Nemours‘ & Co.. 476 F.2d 1357. I36]. I77 USPQ 563. 567 (C.C.P.A. I973): TMEP §l207.0l(b)-
`03)”)-
`
`In the present case. applicant’s mark is FRONT ROW and registrant’s mark is FRONT ROW. Thus. the marks are identical in terms of
`appearance and sound. In addition. the connotation and commercial impression of the marks do not differ when considered in connection with
`applicant’s and registrant‘s respective goods.
`
`Therefore. the marks are confusingly similar.
`
`The examining attomey notes that the applicant failed to provide any arguments against the similarity of the marks.
`
`The Goods and Chung of Trade
`
`The applicant’s goods. namely. “ digital media streaming devices; digital electronic devices for recording. organizing, transmitting. manipulating
`and reviewing text. data. image and audio files; digital video recorders; network video recorders; digital video cameras: video cameras: video
`streaming devices: remote controllers for audio devices and video devices" are closely related to the registrant's goods. namely “computer
`software for controlling the operation of audio and video devices and for viewing. searching and/or playing audio, video, television. intemet
`radio, photographs and other digital images. and other multimedia content“ because the goods listed are the type of software and digital and
`electmnic goods that may be used together. emanate from a single source and be marketed and sold together under the same channels of trade.
`
`Please see attached Internet evidence. This evidence establishes that the same entity commonly mnnufactures/produces/provides the relevant
`goods.e.g. media devices. digital and electronic devices and software. and markets the goods under the same mark. the relevant goods are sold
`or provided through the same trade channels and used by the same classes of consumers in the same fields of use. the goods are similar or
`complementary in terms of purpose or function. Therefore. applicant‘s and registrant’s goods are considered related for likelihood of confusion
`purposes. See. e.g.. In re Davey Prods. Pry Ltd.. 92 USPQ2d l 198. [202—04 (TTAB 2009); In re Toshiba Med. .S'ys. Corp.. 91 liSPQZd l266.
`l268-69. 127l—72 (TTAB 2009).
`
`Where evidence shows that the goods at issue have complementary uses. and thus are often used together or otherwise purchased by the same
`purchasers for the same or related purposes. such goods have generally been found to be sufficientty related such that confusion Would be likely
`
`

`

`if they are marketed under the same or similar marks. See In re Martin '5 Famous Pastry Shoppe. Inc. .748 F.2d |565. 1567. 223 USPQ IZSQ.
`1290 (Fed. Cir. I984} (holding bread and cheese to be related because they are often used in combination and noting that "lsluch complementary
`use has long been recognised as a relevant consideration in determining a likelihood of confusion"): In re Toshiba Med. Sys. Corp,_ 9] USPQQd
`[266. 1272 (TTAB 2009) (holding medical MRI diagnostic apparatus and medical ultrasound devices to be related. based in part on the fact that
`such goods have complementary purposes because they may be used by the same medical personnel on the same patients to treat the same
`disease); In re Hester Indus. Inc.. 231 USPQ 88] . 882-83 (FMB I986) (holding bread and frozen chicken pans to be related because they are
`complementary goods that are appropriate for use together in sandwiches and may otherwise be sold to the same purchasers for use in a single
`meal); In re Vienna Sausage Mfg. Co.. 230 USPQ 799. 799—800 ('FI'AB I986) (holding sausage and cheese to be related because they are
`complementary goods that may be used together in recipes. sandwiches. and hers d‘ocuvrcs); PoIo Fashions. Inc. r. In Loren. Ind. 224 USPQ
`509. 5| 1 (TI‘AB I984) (holding bath sponges and personal products. such as bath oil. soap. and body lotion. to be related because they are
`complementary goods that are likely to be purchased and used together by the same purchasers). Here. the attached Internet evidence
`demonstrates that the goods at issue have complementary uses. and thus are often used together or otherwise purchased by the same purchasers
`for the same or related purposes. Thus. the goods are related.
`
`Evidence obtained from the Inlemet may be used to support a determination under Section 2(d) that goods andior services are related. See. c.g..
`In re 6.3.1. Tile & Stone. Inc.. 92 USPQ2d 1366. I37i (TTAB 2009): In re Paper Doll Pronmrions. Inc. 34 USPQ2d I660. |668 (TTAB 2007).
`The Internet has become integral to daily life in the United States. with Census Bureau data showing approximately threerquarters of American
`households used the Inlemet in 2013 to engage in personal communications. to obtain news. information, and entertainment. and to do banking
`and shopping. See In re Nieves dc Nieves LLC. 1 l3 USPQZd 1639. l642 (WAR 2015) (taking judicial notice of the following two official
`
`government publications: (”Thom File & Camille Ryan. [15. Census Bureau. Am. Cmty. Survey Reports ACSv28. Computer & Internet Use
`in the United States: 20B (2014). avoiIobIe at htt
`:r’r‘n n uncensus. 1micmitcntidaindTenstlstlibrnr I ublicationsile Idiacsiacs-le.
`f. and (2) The
`Nat'l Telecomms. & Info. Admin. & Econ. & Statistics Admin.. Exploring the Digital Nation: America '3 Emerging Online Experience (2013).
`available or hit
`:iiwwwntiadoc.noviiilcstntiat iublicationst'ux )lol‘tn r
`the tliuitzil
`tuition . antericas cmcrnin - onlinc cx‘ cricncc. dt'
`. Thus.
`
`
`
`the widespread use of the lntemet in the United States suggests that Internet evidence may be probative of public perception in trademark
`examination.
`
`Additionally. the trademark examining attorney has attached evidence from the thl’l‘O‘s X-Search database consisting of a number of third—
`party marks registered for use in connection with the same or similar goods as those of both applicant and registrant in this case. This evidence
`shows that the goods listed therein. namely. streaming devices. digital electronic devices for recording. organizing. transmitting. manipulating
`and reviewing text. data. image and audio files. video recorders. video cameras. remote controls for audio and video devices. computer software
`for controlling the operation of audio and video devices. andior computer software for viewing. searching. and/or playing audio. video. digital or
`other multimedia content. are of a kind that may emanate from a single source under a single mark. See In re Aquantor. Inc.. I IS USPQZd l I22.
`I 126 n5 ("I‘TAB 2015) (citing In re Mtwky Duck Mustard Ca. 6 USPQZd L467. [470 n.6 (TTAB £988”: In re Albert TrosteI & Sons C0,. 29
`LISPQZd 1783. ”85-86 (T'I‘AB I993): TMEP§I207.0I(d)(iii).
`
`The applicant argues that. as amended. the goods in the instant application are "digital media streaming devices; digital electronic devices for
`recording. organizing. transmitting. manipulating and reviewing text. data. image and audio files; digital video recorders; network video
`recorders; digital video cameras; video cameras; video streaming devices; remote controllers for audio devices and video devices" and therefore.
`are unrelated and different from the goods covered by the cited registration. This argument is not persuasive.
`
`First. the goods andlor services of the parties need not be identical or even competitive to find a likelihood of confusion. See Orr-line Coraline
`Inc. v. Am. Online Inc, 229 F.3d 1080. l086. 56 USPQZd 147] , I475 (Fed. Cir. 2000); Recot. Inc. v. Breton. 214 F.3d i322. I329. 54 USPQ2d
`1894. 1898 (Fed. Cir. 2000) ("lElven if the goods in question are different from. and thus not related to. one another in kind, the same goods can
`be related in the mind of the consuming public as to the origin of the goods"): TMEP §1207.0I(a)(i).
`
`The respective goods and/or services need only be “related in some manner and/or if the circumstances surrounding their marketing Ibel such
`that they could give rise to the mistaken belief that [the goods and/or servicesl emanate from the same source." Coach Servo" Inc. v. Triumph
`Learning LLC.668 F.3d I356. ”69. i0! LlSPQ2d l7l3. |722(ch.Cir.2012) (quoting 7-Eleven Inc‘. v. WechsIer.83 USl’QZd I7l5. I724
`(TI‘AB 2007)); TMEP §l207.0l(a)(i).
`
`Moreover. where the marks of the respective parties are identical or virtually identical. the relationship between the relevant goods andIor
`services need not be as close to support a finding of likelihood of confusion. See In re Shell Oil Co. 992 F.2d l204. 1207. 26 USI’Q’Zd 1687,
`I689 (Fed. Cir. 1993); in re House Beer. LLC, I I4 USPQZd 1073. I077 (TTAB ZOIS): In re Davey Prods. Pty Ltd. 92 USI’QZd l I98. 1202
`(TTAB 2009); TMEP §1207.0l(a). As explained above. the marks at insue are identical; therefore, the relationship between the goods need not
`be as close to support a finding of likelihood of confusion.
`
`It is not necessary to Show actual conquion to
`Next. the test under Trademark Act Section 2(d) is whether there is a likelihood of confusion.
`establish a likelihood of confusion. Herbko Int'l. Inc. v. Kappa Books. Inc. .308 F.3d [156. 1165. 64 USPQ2d I375. I380 (Fed. Cir. 2002)
`(citing Giant Food. Inc. v. Nation '5 Foodservice. Inc. . 7l0 F.2d l565. 157l . 2 l8 USPQ 390. 396 (Fed. Cir. 1983)): TMEP §l207.01(d)(ii). The
`Trademark Trial and Appeal Board stated as follows:
`
`

`

`lAlpplicant’s assertion that it is unaware of any actual confusion occurring as a result of the contemporaneous use of the marks of
`applicant and registrant is of little probative value in an ex parte proceeding such as this where we have no evidence pertaining to the
`nature and extent of the use by applicant and registrant {and thus cannot ascertain whether there has been ample opportunity for confusion
`to arise, if it were going to): and the registrant has no chance to be heard from (at least in the absence of a consent agreement. which
`applicant has not submitted in this case).
`
`in re Kangaroos USA... 223 USPQ l025. l026—27 ("NAB 1984).
`
`Additionally. the fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are
`sophisticated or knowledgeable in the field of trademarks or immune from source confusion. TMEP §l207.0 | (d)(vii}: see. 9.3. . Stone Lion
`Capital Partners. LP v. Lion Capital LLP. 746 F.3d. [3 l7. I325. lit) USPQZd l 157.
`| 163-64 (Fed. Cir. 20M): Tap Tobacco LP v. N. All.
`Operating '30.. lOl USPQZd ”63. H70 (TTAB 201]).
`
`When the relevant Consumer includes both professionals and the general public. the standard of care for purchasing the goods is that ol' the least
`sophisticated potential purchaser. Stone Lion Capital Partners. LP v. Lion Capital LLP. 746 F.3d. I317. l325. l l0 USPQZd l I57. l 163 (Fed.
`Cir. 20l4izAlfaceli Corp. v. Anticancer, Inc..7l USPQZd l30l. l306 {TTAB 2004).
`
`Consequently, consumers familiar with the registrant's mark FRONT ROW may assume. albeit falsely. that the goods offered under the
`applicant's mark FRONT ROW originate with the registrant. Similarly, consumers familiar with the applicant’s mark may assume. albeit
`falsely. that the goods offered under the registrant‘s mark originate with the applicant. The Trademark Act not only guards against the
`misimprcssion that the senior user is the source of the junior user's goods andfor services. but it also protects against "reverse confusion," that
`is. thejunior user is the source of the senior user’s goods andior services.
`In re Shell Oil Co. 992 F.2d 1204. l208. 26 USPQ2d 1687, [690
`(Fed. Cir. I993); Fisons Horticulture. Inc. v. Vigor!) Indust. Inca, 30 F.3d 466. 474-75, 3] USPQZd L592. 1597-98 (3d Cir. I994); Bailiff. Ltd. v.
`Federated Dep'r Stores . Inc. 841 Fld 486. 490-9] . 6 USPQZd “87. l l90-9l (2d Cir. 1988).
`
`Conclusion
`
`Considering the marks at issue, the applicant’s mark FRONT ROW is similar to the registrant‘s mark FRONT ROW because the marks are
`both comprised of the same terms FRONT ROW. The applicant’s goods are Closely related to the registrant's gnods because the goods listed
`are the type of software and digital and electronic goods that may be used together. emanate from a single source and be marketed and sold
`together under the same channels of trade.
`
`Thus, in view of the foregoing. the refusal to register under Section 2(d) of the Trademark Act is continued and made FINAL.
`
`to
`
`Action
`
`Applicant must respond within six months of the date of issuance of this final Office action or the application will be abandoned.
`§ l062t’b); 37 (LFR. §2.65(a). Applicant may respond by providing one or both of the following:
`
`[5 U.S.C.
`
`(I)
`
`(2)
`
`A response that fully satisfies all outstanding requirements and/or resolves all outstanding refusals.
`
`An appeal to the Trademark Trial and Appeal Board. with the appeal fee of SlOO per class.
`
`37 CPR. §2.63(b)( l )-(2): TMEP §7l4.04; see 37 CPR. §2.6(a)( l8); TBMP ch. l200.
`
`In certain rare circumstances, an applicant may respond by filing a petition to the Director pursuant to 37 C.F.R. §2.63(b)(2) to review
`procedural issues. TMEP $14.04; see 37 CPR. §2.l46(h); TBMP § l20l.05: TMEP §l704 (explaining petitionable matters). The petition fee
`is $l00. 37 C.F.R. §2.6(a