The U.S. Court of Appeals for Federal Circuit held that the mere fact that both parties’ products are physically identical does not render them related for purposes of determining a likelihood of confusion. M2 Software, Inc. v. M2 Communications, Inc., 2006 U.S. App. LEXIS 13936 (Fed. Cir. 2006) (Mayer, J.). Rather, despite the common use of "M2" in each party’s mark and use of the respective marks on CDs, the court must examine the uses of each party’s product.
The opposer, M2 Software, owned a trademark registration for M2 for CD-ROMs providing information in the field of music and film. The applicant, M2 Communications, applied for the mark "M2 Communications" for CD-ROMs providing information in the fields of medicine and pharmaceuticals. During prosecution M2 Communications disclaimed "communications" apart from the mark. Nevertheless, the Trademark Trial and Appeal Board (TTAB) granted judgment in favor of M2 Communications, finding confusion not likely, and dismissed the
