IP Law Daily, TRADEMARK—TTAB: ‘TEMPCUBE’ mark for temperature and humidity monitoring devices survives opposition challenge, (Jul 26, 2024)

By Saurabh Kashyap, B.A., LL.B., LL.M.

Opposer failed to establish likelihood of confusion with its common law TEMP STICK mark.

In a non-precedential decision, the Trademark Trial and Appeal Board (TTAB) denied an opposition filed by Ideal Sciences, Inc. against Nimble Wireless Inc.’s application to register the standard character mark TEMPCUBE. The TTAB concluded that Ideal Sciences failed to establish a likelihood of confusion between the TEMPCUBE mark and its own common law TEMP STICK mark for wireless temperature and humidity monitoring devices (Ideal Sciences, Inc. v. Nimble Wireless Inc., No. 91273845 (T.T.A.B. July 25, 2024)).

Background. The opposer, Ideal Sciences, Inc., and the applicant, Nimble Wireless Inc., operate within the wireless temperature and humidity monitoring device market. Nimble Wireless applied to register the proposed mark TEMPCUBE on the Principal Register for a variety of goods in International Class 9, including wireless and smart thermometers, hygrometers, alarms, and other electronic devices for monitoring and tracking temperature and humidity. Ideal Sciences opposed this registration under Section 2(d) of the Trademark Act, alleging that using TEMPCUBE would likely cause confusion among consumers with its common law TEMP STICK mark for similar goods.

Statutory entitlement. The Board noted that Ideal Sciences needed to show its opposition fell within the zone of interests protected by the statute and had a plausible claim of harm. By providing evidence of its use and pending application for the TEMP STICK mark, Ideal Sciences established a legitimate commercial interest, aligning with the standards set in Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020).

Likelihood of confusion analysis. The Board's likelihood of confusion analysis was guided by the factors outlined in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).

Strength of opposer’s mark. The TTAB assessed the inherent and commercial strength of the TEMP STICK mark. It concluded that the mark was conceptually weak due to its descriptive nature. Evidence showed that "TEMP" was commonly used in the temperature sensing and monitoring devices market, weakening its distinctiveness. The Board referenced In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010), which discussed the conceptual and market strength of marks, concluding that TEMP STICK did not possess significant inherent strength due to its descriptive elements.

Similarity of the marks. The Board compared the TEMPCUBE and TEMP STICK marks regarding appearance, sound, connotation, and commercial impression. It found that although both marks shared the "TEMP" element, the differences in the remaining elements ("CUBE" vs. "STICK") were sufficient to distinguish them. This was particularly significant given the crowded field of similar marks within the market. The Board cited Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee, 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) highlighting that the overall commercial impression and the descriptive nature of the terms made the marks sufficiently distinct to avoid confusion.

Similarity of the goods, trade channels, and consumer classes. The TTAB recognized that both parties’ goods were nearly identical and that there was some overlap in trade channels, such as sales through Amazon. However, it also noted that consumers of these products might exercise a degree of care in their purchasing decisions, given the nature and price of the goods. The Board emphasized that despite the overlap, the conceptual weakness of the TEMP STICK mark reduced the likelihood of confusion. The TTAB referred to Octocom Sys., Inc. v. Hous in its analysis. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990), which states that the identification of goods must be decided based on the application's terms, not on extraneous factors.

Third-party use. Nimble Wireless presented evidence of numerous third-party registrations that included the term "TEMP" for similar goods. The Board considered this evidence significant, demonstrating that "TEMP" was a commonly used and weak term in this market segment, reducing the likelihood of confusion. The TTAB noted that the extensive third-party use diluted the distinctiveness of the TEMP STICK mark.

Actual confusion. Ideal Sciences presented no substantial evidence of actual confusion. The Board found this lack of evidence notable, especially given the proximity of the products in online marketplaces. They noted that despite the opportunity for confusion, as evidenced by the products being listed in proximity on platforms like Amazon, no instances of actual confusion were documented. This absence of actual confusion further supported the conclusion that confusion was not likely, aligning with the reasoning in Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018).

Conclusion. Balancing the relevant factors, the TTAB found that the weakness of the TEMP STICK mark, the crowded field of similar marks, and the differences between the marks outweighed the similarities in goods and trade channels. Consequently, the Board denied the opposition, allowing the TEMPCUBE application to proceed to publication.

The Case is Opposition No. 91273845.

Judge: Elgin, J.

Attorneys: Joshua D. Mertzlufft (Mertzlufft Law PLLC) for Ideal Sciences, Inc. Kevin Haynie (Your Trademark Attorney) for Nimble Wireless Inc.

Companies: Ideal Sciences, Inc.; Nimble Wireless Inc.

Cases: Trademark USPTO