United States Court of Appeals,Federal Circuit.

In re ELECTROLYTE LABORATORIES, INC.

No. 90-1062.Sept. 5, 1990.

Editors Note: This opinion was originally publishedat 913 F.2d 930. It is published here as corrected.

Review was sought of decision of the Trade-mark Trial and Appeal Board refusing registrationof mark for a dietary potassium supplement. TheCourt of Appeals, Pauline Newman, Circuit Judge,held that there was no likelihood of confusion andit was error to focus on the “K+” in both markswhere the design of the marks was substantially dif-ferent.

Reversed.

West Headnotes

[1] Trademarks 382T 1322

382T Trademarks382TVII Registration

382TVII(B) Proceedings Concerning FederalRegistration

382Tk1315 Judicial Review or Interven-tion

382Tk1322 k. Scope of Review. MostCited Cases

(Formerly 382k230)Determination of likelihood of confusion as

ground for refusing registration of trademark is re-viewed as a question of law.

[2] Trademarks 382T 1097

382T Trademarks382TIII Similarity Between Marks; Likelihood

of Confusion382Tk1093 Relationship Between Marks

382Tk1097 k. Examination and Compar-ison; Construction as Entirety. Most Cited Cases

(Formerly 382k181)Likelihood of confusion as ground for refusing

registration of trademark depends on the overall im-pression of the marks, and no element of the markis ignored simply because it is less dominant orwould not have trademark significance if usedalone; appropriate weight is given to effect of fea-tures common to both marks, and there is no gener-al rule as to whether letters or design will dominatein composite marks. Lanham Trade-Mark Act, §2(d), (e)(1), 15 U.S.C.A. § 1052(d), (e)(1).

[3] Trademarks 382T 1098

382T Trademarks382TIII Similarity Between Marks; Likelihood

of Confusion382Tk1093 Relationship Between Marks

382Tk1098 k. Appearance, Sound, andMeaning. Most Cited Cases

(Formerly 382k185)Spoken or vocalizable element of design mark,

taken without design, need not of itself serve to dis-tinguish the goods; both visual and oral indiciamust be weighed in the context in which they oc-cur, in determining whether there is likelihood ofconfusion preventing registration of mark. LanhamTrade-Mark Act, § 2(d), (e)(1), 15 U.S.C.A. §1052(d), (e)(1).

[4] Trademarks 382T 1098

382T Trademarks382TIII Similarity Between Marks; Likelihood

of Confusion382Tk1093 Relationship Between Marks

382Tk1098 k. Appearance, Sound, andMeaning. Most Cited Cases

(Formerly 382k190)Mark “K+” in a particular design served as a

whole to distinguish dietary potassium supplementfrom another potassium supplement using mark

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“K+EFF,” and thus registration of the former markwas not precluded on ground of likelihood of con-fusion; it was error to focus on the “K+” in bothmarks where the design of the marks was substan-tially different. Lanham Trade-Mark Act, § 2(d),(e)(1), 15 U.S.C.A. § 1052(d), (e)(1).

*646 Timothy J. Martin, Lakewood, Colo., argued,for appellant.

Albin F. Drost, Associate Sol., Office of the Sol.,Arlington, Va., argued for the Com'r of Patents andTrademarks. With him on the brief was Fred E.McKelvey, Sol., Woodbridge, Va.

Before NEWMAN, ARCHER, and ALARCON,FN* Circuit Judges.

FN* Judge Arthur L. Alarcon, UnitedStates Court of Appeals for the Ninth Cir-cuit, sitting by designation.

Pauline NEWMAN, Circuit Judge.We reverse the decision of the Trademark Trial andAppeal Board (TTAB) of the United States Patentand Trademark Office, refusing to register on thePrincipal Register the following mark of ElectrolyteLaboratories, Inc. for a dietary potassium supple-ment:

DiscussionThe TTAB held that Electrolyte's mark is likely tocause confusion FN1 with the following*647 markfor a dietary potassium supplement.

FN1. 15 U.S.C. § 1052(d) states:

No trademark by which the goods of theapplicant may be distinguished from thegoods of others shall be refused registra-tion on the principal register on accountof its nature unless it-

* * * * * *

(d) Consists of or comprises a markwhich so resembles a mark registered inthe Patent and Trademark Office or amark or trade name previously used inthe United States by another and notabandoned, as to be likely, when appliedto the goods of the applicant, to causeconfusion, or to cause mistake, or to de-ceive....

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The letter “K” in both marks is the chemicalsymbol for potassium. “EFF” is said to be an abbre-viation of “effervescent”. The examining attorneyhad withdrawn an earlier rejection on the groundthat K+ was “merely descriptive”, 15 U.S.C. §1052(e)(1), of the potassium ion, that is, of solublepotassium. However, both sides treat K+ as thesymbol of the potassium ion.

[1][2] Determination of likelihood of confusionis reviewed as a question of law. Kimberly-ClarkCorp. v. H. Douglas Enterprises, Ltd., 774 F.2d1144, 1146, 227 USPQ 541, 542 (Fed.Cir.1985). Itis necessarily a subjective determination, In reBurndy Corp., 49 CCPA 967, 300 F.2d 938, 940,133 USPQ 196, 197 (1962), and the effect of adesign or style of letters, as any determination oflikelihood of confusion, depends on the particularfacts. See generally In re E.I. DuPont de Nemours& Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567(CCPA 1973) (identifying factors that may be rel-evant). In this case the goods are similar, as are thechannels of trade; and the marks have common fea-tures. The similarities and dissimilarities betweenthe two marks must be considered, for likelihood ofconfusion depends on the overall impression of themarks. Specialty Brands, Inc. v. Coffee Bean Dis-tributors, Inc., 748 F.2d 669, 673, 223 USPQ 1281,1283 (Fed.Cir.1984) (considering the commercialimpression of marks applied to similar goods in thesame trade channels).

Electrolyte argues that since “K+” is descript-ive, that portion of both marks is entitled to littleweight in determining their overall effect on theconsumer. However, no feature of a mark is ig-nored, Massey Junior College, Inc. v. Fashion Insti-tute of Technology, 492 F.2d 1399, 181 USPQ 272(CCPA 1974), and appropriate weight is given tothe effect of features common to both marks. In reNational Data Corp., 753 F.2d 1056, 1058, 224USPQ 749, 751 (Fed.Cir.1985).

More dominant features will, of course, weighheavier in the overall impression of a mark. GiantFoods, Inc. v. Nation's Foodservice, Inc., 710 F.2d

1565, 218 USPQ 390 (Fed.Cir.1983). There is nogeneral rule as to whether letters or design willdominate in composite marks; nor is the dominanceof letters or design dispositive of the issue. No ele-ment of a mark is ignored simply because it is lessdominant, or would not have trademark signific-ance if used alone. See Spice Islands, Inc. v. FrankTea & Spice Co., 505 F.2d 1293, 184 USPQ 35(CCPA 1974) (improper to ignore portion of com-posite mark).

[3] The TTAB, explaining its holding that con-fusion was likely, stated that consumers would say“K-plus” and “K-plus-eff” when calling for theproducts. However, the spoken or vocalizable ele-ment of a design mark, taken without the design,need not of itself serve to distinguish the goods.The nature of stylized letter marks is that they par-take of both visual and oral indicia, and both mustbe weighed in the context in which they occur. See,e.g., Georgia-Pacific Corp. v. Great Plains BagCo., 614 F.2d 757, 760, 204 USPQ 697, 699(CCPA 1980):

It must be remembered that [registrant's] trade-mark consists of highly stylized letters and istherefore in the gray region between pure designmarks which cannot be vocalized and word markswhich are clearly intended to be.

In Georgia-Pacific the court observed that evenif the letter portion of a design mark could be vo-calized, that was not dispositive of whether therewould be likelihood of confusion. A design isviewed, not spoken, and a stylized letter design cannot be treated simply as a word mark. Burndy, 300F.2d at 940, 133 USPQ at 197.

[4] We conclude that the TTAB erred in itsdominant focus on the K+ in both marks, to thesubstantial exclusion of the other elements of bothmarks. Electrolyte's mark is a composite of whichthe design is a significant feature thereof. The EFFin the registrant's mark is also *648 significant. Al-though the symbols and abbreviations can be pro-nounced, they are not identical, and the design of

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the marks is substantially different. We concludethat Electrolyte's mark, viewed as a whole, servesto distinguish its goods from those of others.

The Board's holding of likelihood of confusionis

REVERSED.

C.A.Fed.,1990.In re Electrolyte Laboratories, Inc.929 F.2d 645, 16 U.S.P.Q.2d 1239

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