Pathway Innovation & Techs. v. HangZhou Zero Zero Tech. Co.
| Docket Number | 92067884,92068617 |
| Decision Date | 31 May 2023 |
| Parties | Pathway Innovation and Technologies, Inc. v. HangZhou Zero Zero Technology Co., Ltd. |
| Court | United States Patent and Trademark Office. United States Patent and Trademark Office, Trademark Trial and Appeal Board |
This Opinion is Not A Precedent of the TTAB
Brian M. Taddonio and Trevor Q. Coddington of Insigne PC, for Pathway Innovation and Technologies, Inc.
Harris A. Wolin of Myers Wolin LLC, for HangZhou Zero Zero Technology Co., Ltd.
Before Bergsman, shaw, and Lynch, Administrative Trademark Judges.
HangZhou Zero Zero Technology Co., Ltd. ("Respondent") owns a supplemental Register registration for the mark HoVER CAMERA, in standard characters, for "cameras for drones excluding document cameras," in International Class 9,[1] and a Principal Register registration for the mark HOVER CAMERA PASSPORT, in standard characters, for "drones; camera drones," in International Class 12.[2]
In its Petitions for Cancellation, Pathway Innovation and Technologies, Inc. ("Petitioner") seeks cancellation of Respondent's registrations under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the basis of likelihood of confusion with the registrations listed below owned by Petitioner:
• Registration No. 3813714 for the mark HOVER CAM and design, reproduced below, for "electronic digital imaging devices for use in copying, printing, scanning, video capturing and/or transmitting documents and images," in International Class 9.[3]
(Image Omitted)
Petitioner in the registration, describes the mark as follows:
In its Answers, Respondent denied the salient allegations of the Petitions for Cancellation.
The Board sua sponte consolidated Cancellation Nos. 92067884 and 92068617 in its September 11, 2018 order.[6] When the Board consolidates cases, they may be presented on the same record and briefs. However, consolidated cases do not lose their separate identity because of consolidation. Each proceeding retains its separate character and requires the filing of separate pleadings and entry of a separate judgment. See Dating DNA LLC v. Imagini Holdings Ltd., 94 U.S.P.Q.2d 1889, 1893 (TTAB 2010).
When we cite to the record, we refer to TTABVUE, the Board's docketing system by docket entry and page (e.g., 84 TTABVUE 27).
Before proceeding to the merits of the refusal, we address an evidentiary matter. Both parties have filed numerous objections to testimony and expert reports. Because a cancellation proceeding is akin to a bench trial, the Board is capable of assessing the proper evidentiary weight to be accorded the testimony and expert reports, taking into account the imperfections surrounding the admissibility of such testimony and evidence. As necessary and appropriate, we will point out any limitations in the testimony or otherwise note that we cannot rely on the testimony and evidence in the manner sought. We have considered all of the testimony and evidence introduced into the record. In doing so, we have kept in mind the various objections the parties have raised and we have accorded whatever probative value the subject testimony and evidence merit. See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 U.S.P.Q.2d 1477, 1479 (TTAB 2017), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017); U.S. Playing Card Co. v. Harbro, LLC, 81 U.S.P.Q.2d 1537, 1540 (TTAB 2006). See also Poly-America, L.P. v. Ill. Tool Works Inc., 124 U.S.P.Q.2d 1508, 1510 (TTAB 2017) ().
The record includes the pleadings, and pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Respondent's registration files.[7] In addition, Petitioner attached copies of its pleaded registrations printed from the USPTO Trademark Status and Document Retrieval (TSDR) system showing the current status and title to the Petitions for Cancellation, thus making them of record pursuant to Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d).[8]
The parties introduced the following testimony and other evidence:
A. Petitioner's testimony and evidence
1. Testimony declaration of Mark Keegan, a principal of Keegan &Donato Consulting, a consulting firm with expertise in consumer surveys, introducing his expert report determining the extent, if any, to which there is a likelihood of confusion among consumers between Respondent's HOVER CAMERA camera drones and Petitioner's HOVERCAM document cameras;[9]
2. Notice of reliance on Respondent's responses to Petitioner's first set of request for admissions Nos. 9, 23, 24, 32, 33, 40, 41, 48 and 50;[10] 3. Notice of reliance on Respondent's responses to Petitioner's first set of interrogatories Nos. 8, 9, 14, 15, 17, 25 and 30; [11]
4. Notice of reliance on Respondent's response to Petitioner's second set of interrogatories No. 31;[12]
5. Notice of reliance on dictionary definitions, an excerpt from the Acronym Finder website (acronymfinder.com), and third-party websites to show "cam" is an abbreviation for "camera."[13]
6. Notice of reliance on screen shots from third-party retailer websites;[14] 7. Notice of reliance on excerpts from Petitioner's website (hovercam.com);[15] 8. Notice of reliance on excerpts from Respondent's website (zerozero.tech);[16]
9. Notice of reliance on third-party Internet materials purportedly to show the trade shows Petitioner attends and awards it has won;[17] 10. Notice of reliance on excerpts from Petitioner's social media accounts;[18]
11. Testimony declaration of James Chavez, Petitioner's field engineer, to introduce a purported instance of confusion;[19]
12. Notice of reliance on an excerpt from the ZDNET.com website;[20] and 13. Testimony declaration of Ji Shen, Petitioner's founder, owner, and Chief Executive Officer;[21]
B. Respondent's testimony and evidence
1. Testimony declaration of Hal Poret, President of Hal Poret, LLC, an expert in trademark surveys regarding consumer perception, introducing his expert report;[22]
2. Testimony declaration of Andres Justicia Doll, Vice President of Flight Operations or Aerodyne Measure, introducing his expert report;[23] > Cross-examination testimony of Andres Justicia Doll;[24]
3. Testimony declaration of Tong Zhang, Respondent's Chief Technology Officer;[25] > Cross-examination testimony of Tong Zhang;[26]
4. Notice of reliance on Petitioner's supplemental responses to Respondent's first of interrogatories Nos. 3-6, 8, 9, 18, 19, and 21-33;[27]
5. Notice of reliance on copies of third-party registrations and their prosecution files for HOVER-formative marks;[28] and
6. Notice of reliance on third-party websites.[29]
C. Petitioner's rebuttal testimony and evidence
1. Notice of reliance on third-party websites purportedly to show "a video projector drone, a projector drone that turns any surface into a video screen, and a drone that can project holographic images";[30]
2. Notice of reliance on a third-party website to purportedly to show that a drone can safely operate indoors;[31] and
3. Notice of reliance on third-party websites purportedly to show use of HOVERCAM and HOVER CAM in connection with Respondent's goods.[32]
Entitlement to a statutory cause of action is an element of the plaintiff's case in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 U.S.P.Q.2d 11277 (Fed. Cir. 2020), cert. denied, 141 S.Ct. 2671 (2021); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 U.S.P.Q.2d 10837 (Fed. Cir. 2020), cert. denied, 142 S.Ct. 82 (2021); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 U.S.P.Q.2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief in damage proximately caused by the registration of the mark. Corcamore, 2020 U.S.P.Q.2d 11277 at *4. See also Empresa Cubana, 111 U.S.P.Q.2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 U.S.P.Q.2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 U.S.P.Q. 185, 189 (CCPA 1982); Spanishtown Enters., 2020 U.S.P.Q.2d 11388, at *1 (TTAB 2020).
Here Petitioner's registration of the marks in its pleaded registrations establish that it is entitled to petition to cancel the registrations of Respondent's marks. Cunningham v. Laser Golf Corp., 222...
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