9Q Ventures, LLC

Trademark Trial and Appeal Board

Sep 12, 2019

87651076 (T.T.A.B. Sep. 12, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 12, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re 9Q Ventures, LLC
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Serial No. 87651076
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Daniel M. Cislo and Kristin B. Kosinski of Cislo & Thomas LLP for
9Q Ventures, LLC
Matthew Howell, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Cataldo, Wellington, and Adlin,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
9Q Ventures, LLC (“Applicant”) seeks registration of the mark MONEY
CONFIDENCE (in standard characters, MONEY disclaimed) on the Principal
Register for “Adult series of books in the nature of providing personal finance
information and education for adults, particularly in preparation for future
retirement to grow an adults' net worth, not intended to be used or distributed to
children,” in International Class 16.1

1 Application Serial No. 87651076 was filed on October 18, 2017, and is based on Applicant’s
claim of a first use of the mark in commerce on September 5, 2017. The goods were originally
Serial No. 87651076
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The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following
registered marks, owned by the same entity:

Reg. No. 5091832)2 for the following goods:

Downloadable materials in the nature of glossaries, activity books and sheets
featuring games, quizzes and puzzles, and teaching materials, namely, lesson
plans and instructional guides, all in the field of personal finance for children,
in International Class 9; and

Printed educational materials in the nature of supplements to magazines in the
field of personal finance for children, in International Class 16.

MONEY CONFIDENT KIDS
(Reg. Nos. 4457964 and 4979059)3 covering goods and services including those
listed above in Classes 9 and 16.

The words MONEY and KIDS are disclaimed in each of the cited registrations.
After the refusal was made final, Applicant requested reconsideration and
appealed to this Board. Reconsideration was denied, proceedings were resumed, and
the appeal has been briefed. For the following reasons, we affirm the refusal to
register.

identified in the application without the “adult(s)” references; Applicant amended the
identification to its current version after the refusal to registration was made “final.” See
Request for Reconsideration (filed on February 5, 2019).
2 Registration No. 5091832 issued on November 29, 2016.
3 Registration No. 4457964 issued on December 31, 2013, Section 8 and 15 affidavits filed.
Registration No. 4979059 issued on June 14, 2016.
Serial No. 87651076
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I. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71
USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”).
A. The Similarity of the Marks
Under the first du Pont factor, we compare Applicant’s mark MONEY
CONFIDENCE to the cited marks and MONEY CONFIDENT
KIDS “in their entireties as to appearance, sound, connotation and commercial
impression.” Viterra, 101 USPQ2d at 1908 (quoting du Pont, 177 USPQ at 567); see
also Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014). “The marks ‘must be considered ... in light of the
fallibility of memory’ and ‘not on the basis of side-by-side comparison.”’ In re St.
Helena Hosp., 113 USPQ2d at 1085 (quoting San Fernando Elec. Mfg. Co. v. JFD
Serial No. 87651076
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Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). The proper
focus is on the recollection of the average consumer, who retains a general rather
than specific impression of the marks. In re FabFitFun, Inc., 127 USPQ2d 1670, 1675
(TTAB 2018). Under actual marketing conditions, consumers do not necessarily have
the luxury of making side-by-side comparisons between marks, and must rely upon
their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255,
259 (TTAB 1980).
The involved marks are very similar because both begin with the same or very
similar wording – MONEY CONFIDENCE and MONEY CONFIDENT. For this
reason, the marks bear a strong visual and aural resemblance. We do not ignore the
fact that the registered mark includes the additional, disclaimed term KIDS at the
end of the mark. With respect to the cited stylized mark, KIDS appears in a different
stylized font that is set apart and less prominent. This helps reinforce the combined
wording MONEY CONFIDENT in Registrant’s stylized mark. Moreover, as we often
point out, the initial elements of marks are generally more important in creating an
impression on consumers, particularly for purposes of recalling the marks. See Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 73 USPQ2d at 1692
(“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve”
is the first word in the mark and the first word to appear on the label); Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992), cert. denied, 506 U.S. 1034 (1994) (upon encountering the marks,
consumers will first notice the identical lead word); Presto Prod. Inc. v. Nice-Pak
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Prod., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and remembered”).
The overall connotations and commercial impressions conveyed by the marks are
also quite similar. Applicant’s MONEY CONFIDENCE mark and Registrant’s
MONEY CONFIDENT KIDS marks are all likely to be understood in the context of
personal finance educational materials as suggesting that the goods will help the user
of the materials acquire knowledge and confidence to handle their personal financial
affairs. The addition of the descriptive and disclaimed term KIDS in the registered
marks does little to alter this meaning. Rather, it merely signifies that children are
the intended learners and will perhaps be the beneficiaries of Registrant’s
educational materials.
We make our finding as to the overall similarity of the marks keeping in mind
that the shared term MONEY is descriptive of the respective goods and has been
disclaimed; descriptive and disclaimed terms generally have less significance in
likelihood of confusion determinations. See Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court
has noted that the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp.,
753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 41
USPQ2d at 1533-34; In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB
2001) (disclaimed matter is often “less significant in creating the mark’s commercial
impression”). Nevertheless, MONEY is not only the first element of each mark, it is
Serial No. 87651076
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also immediately followed by a variation of the same word, CONFIDEN[CE or T].
Indeed, it is the combination of these terms that makes the marks resemble each
other very closely in sight, sound, connotation and commercial impression. See Shen
Mfg. v. Ritz Hotel, Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1355 (Fed. Cir. 2004) (“The
disclaimed elements of a mark, however, are relevant to the assessment of similarity
… This is so because confusion is evaluated from the perspective of the purchasing
public, which is not aware that certain words or phrases have been disclaimed.”);
Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 144 USPQ 433 (CCPA 1965).
Finally, Applicant argues that “the elements ‘money’ and ‘confident’ or ‘confidence’
are used extensively and this undermines its commercial strength because consumers
have become familiar with a multiplicity of the same or similar marks and can
distinguish them based on minor differences.”4 However, Applicant did not properly
submit any evidence to support this claim.5 Thus, we cannot find any commercial or
marketplace weakness with respect to the registered marks or combination of the
shared terms MONEY CONFIDEN[T, ENCE]. .
Accordingly, we find the marks in their entireties are very much alike and this du
Pont factor supports a finding of a likelihood of confusion.

4 6 TTABVUE 12.
5 Applicant attached, for the first time with its brief, the “Declaration of Kristin B. Kosinski,”
and attached Internet printouts as exhibits thereto. The Examining Attorney’s objection to
the late submission of the declaration and attached materials is sustained. Trademark Rule
2.142(d) (the record in an application file should be complete prior to the filing of an appeal).
We have not considered the declaration and exhibits. See In re Inn at St. John's, LLC, 126
USPQ2d 1742, 1744 (TTAB 2018); In re Fiat Grp. Mktg. & Corp. Commc'ns S.p.A, 109
USPQ2d 1593, 1596 (TTAB 2014).
Serial No. 87651076
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B. Relatedness of Goods and Channels of Trade
We next consider the second and third du Pont factors, the similarity of the goods
and their channels of trade. We must make our determinations as to these factors
based on the goods as they are identified in the application and cited registration. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The Examining Attorney points out that the general subject matter of both
Applicant’s series of books and Registrant’s downloadable and printed educational
materials is the same – personal finance. There are some specific restrictions in the
identifications, namely, Applicant’s books target adults exclusively and involve
retirement planning whereas Registrant’s goods are “for children.” However, the
Examining Attorney characterizes this as a “small difference in audience,” and points
to evidence showing various third parties offering educational materials in the field
of personal finance to adults as well as children, or showing that the same titles of
personal finance materials can be purchased in both print and electronic format.6
This evidence, comprising printouts from six different websites, includes the McGraw
Hill Education site (wwwq.mheducation.com) advertising “Personal Finance” books

6 8 TTABVUE
Serial No. 87651076
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in both “Higher Ed Product” as well as for “Student Edition … Grades 9-12.”7 The
same screenshots also provide electronic (digital) and print “purchase options.”
Likewise, “Wiley Pathways Personal Finance” is offered on the Wiley website
(www.wiley.com) in both “E-Book” and “Paperback.”8 The Houghton Mifflin Harcourt
website also advertises a variety of “personal finance” books and educational
materials that are aimed at a variety of age levels, e.g., “Grade 9-12” and “The
Mathematics of Finance … Investments. This very practical series will help
adolescents and adults alike to understand mathematics as it relates to their
everyday lives…”9
Applicant disputes the relatedness of the goods and asserts they are “widely
different given the incomparable stages in life … the fact that adults would likely
seek out specific materials geared toward children when teaching them about
finances,” and “[b]y contrast, adults/ consumers would likely seek out entirely
different materials for their own purposes.”10 Applicant concludes that these
consumers “would not mistakenly buy or seek out registrant’s goods . . . for children
in order to educate themselves.”11
Applicant’s arguments, however, address differences in intended audiences of the
goods and ignores evidence that the involved educational materials are in the field of

7 Attached to Office Action issued on August 7, 2018, at TSDR pp. 2-6.
8 Id. at p. 7.
9 Id. at pp. 10-12.
10 6 TTABVUE 10.
11 Id.
Serial No. 87651076
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personal finance and may be found in the same trade channels. The involved goods
are essentially reading materials intended to educate the reader on personal finance
matters and, in spite of the age-difference and learning level of the personal finance
reading materials, the involved goods may be offered to the same consumer. The
evidence shows they may be found in the same trade channels. Applicant itself
acknowledges in its argument that adult consumers may look to buy Registrant’s
goods on behalf of their children and seek to purchase Applicant’s books to improve
their own personal finance knowledge. In which case, the consumer may peruse the
personal finance books and educational materials advertised by online retail sites like
Houghton Mifflin Harcourt or McGraw Hill Education and find such materials for
adult and youth readers. Furthermore, consumers familiar with Registrant’s
materials may very well assume that Applicant’s materials are the adult version of
Registrant’s.
Accordingly, the du Pont factors of the similarity of the goods and channels of
trade weigh heavily in favor of likelihood of confusion.
II. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the marks are very similar, and the identified goods
are closely related and will move through some of the same channels of trade to the
same classes of purchasers. We therefore find that Applicant’s mark, MONEY
CONFIDENCE, is likely to cause confusion with the cited marks MONEY
CONFIDENT KIDS and .
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Decision: The refusal to register Applicant’s mark is affirmed.