Alchepi LLC

Trademark Trial and Appeal Board

Jun 27, 2018

No. 87118333 (T.T.A.B. Jun. 27, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 27, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Alchepi LLC
_____

Serial No. 87118333
_____

Kevin P. Hartley of Trust Tree Legal, P.C.,
for Alchepi LLC.
Jennifer D. Richardson, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____

Before Kuczma, Hightower, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Alchepi LLC (“Applicant”) seeks registration on the Principal Register of the
proposed mark CHROMATIC in standard characters for (as amended) “online social
networking in the field of photo sharing and excluding services related to arts other
than photography,” in International Class 45.1

1 Application Serial No. 87118333 was filed on July 27, 2016 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), on the basis of Application’s allegation of a bona fide
intention to use the mark in commerce. The identification of services when the application
was filed was “Social Media.”
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the mark CHROMATIK in standard characters shown in Registration
No. 4735560 for “providing a web site enabling people to collaborate, perform, teach,
share, learn, and purchase music, creative arts, and education related software,
services, and content,” in International Class 42,2 as to be likely, when used in
connection with the services identified in the application, to cause confusion, to cause
mistake, or to deceive.
After the Examining Attorney made the refusal final, Applicant appealed and
requested reconsideration, which was denied. The case is fully briefed.3 We affirm the
refusal to register.
I. Record on Appeal
The record on appeal consists of the following:
1. Definitions of the phrases “social media” (MERRIAM-WEBSTER DICTIONARY
(merriam-webster.com)), “creative arts” (reference.com), and “the arts”

2 The cited registration issued on May 12, 2015. It covers various goods in International Class
9 and services in International Class 35 that were not cited by the Examining Attorney as a
basis for the refusal of registration.
3 We note that Applicant attached five exhibits to its main brief. 7 TTABVUE 18-41. It
appears that many (and possibly all) of them are duplicative of Applicant’s previously
submitted evidence. Rather than engaging in a time-consuming comparison of the
attachments to the brief and the previously filed material to determine which material, if
any, was not previously submitted and therefore is not properly of record (see Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d)), we have only considered material filed during
prosecution of the application. See In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1080 (TTAB
2010). In that manner, we have excluded from consideration material attached to the briefs
which is duplicative of earlier filings, as well as any newly-submitted, and improper,
material.
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(wikipedia.com), made of record by the Examining Attorney,4 and a
definition of “chromatic” (OXFORD LIVING DICTIONARIES), made of record by
Applicant;5
2. Search results from searches on the term “Chromatik” and “Chromatic”
using the Google search engine, made of record by Applicant;6
3. Screenshots from the Internet website of the cited registrant, made of
record by Applicant;7
4. Third-party registrations covering the same or similar services as in the
application and cited registration, made of record by the Examining
Attorney;8
5. Screenshots from Internet websites offering online social networking
services and services that allow the sharing of photographs and music,
made of record by the Examining Attorney;9
6. Webpages regarding the pronunciation of “chromatic” with a “hard c”
sound, made of record by the Examining Attorney;10

4 November 9, 2016 Office Action at 5; May 9, 2017 Office Action at 26-27; November 29, 2017
Denial of Request for Reconsideration at 13.
5 November 8, 2017 Request for Reconsideration at 13. There is no definition of “chromatik”
in the record.
6 April 17, 2017 Response to Office Action at 2-5.
7 Id. at 6-10.
8 May 9, 2017 Office Action at 2-20.
9 Id. at 21-26, 28-38, 40-42.
10 Id. at 43-46. One of the pages from MACMILLAN DICTIONARY references the “British English
pronunciation of chromatic.” Id. at 43. We have given this page no consideration in our
decision. Cf. In re Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1592 n.4 (TTAB 2018)
(noting that British dictionary definitions may not reflect perceptions of U.S. consumers).
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7. Third-party registrations reflecting pairs of marks registered for the same
or similar services, where the marks differ only in the last letter (e.g., EPIC
and EPIK); made of record by Applicant;11 and
8. Internet webpages regarding whether photography is a creative art, made
of record by the Examining Attorney.12
II. Analysis of Likelihood of Confusion Refusal
Section 2(d) of the Trademark Act prohibits the registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We consider each du Pont factor that is relevant and
for which there is record evidence. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc.,
450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015).
Two key factors in every § 2(d) case are the similarity of the marks and the
similarity of the goods or services, because 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.” Federated Foods, Inc. v. Fort Howard Paper Co.,

11 November 8, 2017 Request for Reconsideration at 2-12.
12 November 29, 2017 Denial of Request for Reconsideration at 2-15.
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544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Applicant and the Examining Attorney
both address these key factors,13 and Applicant also addresses the third and fourth
du Pont factors, the similarity or dissimilarity of the relevant trade channels, and the
conditions under which and buyers to whom sales are made, respectively, as well as
the claimed limited scope of protection that the cited mark should be afforded due to
its descriptiveness.14 7 TTABVUE 5-8, 15-16. We turn first to the similarity or
dissimilarity of the marks.
A. Similarity or Dissimilarity of the Marks
The first du Pont factor considers “‘the similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression.’”
Palm Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567).
“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) (citing In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)). “The proper test is not a side-
by-side comparison of the marks, but instead whether the marks are sufficiently
similar in terms of their commercial impression such that persons who encounter the

13 Applicant does so in its main brief in connection with its discussion of the du Pont factors
regarding the channels of trade and classes of customers. 7 TTABVUE 6-7.
14 Applicant does not expressly associate this argument with any particular du Pont factor, 7
TTABVUE 15-16, but argues that “[c]ourts have regularly found pairs of word marks that
include overlapping elements are sufficiently distinct to signify different sources (and thus,
for both marks to register), even where the marks apply to the same or related goods or
services” and that this is “especially true where the overlapping elements of the marks are
descriptive.” Id. at 15. Accordingly, we will address this argument in connection with the first
du Pont factor regarding the similarity or dissimilarity of the marks.
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marks would be likely to assume a connection between the parties.” Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012) (quotation omitted). “The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks.” In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018). As discussed
below, the average consumer here is a user of social media for social networking and
the sharing of photographic materials.
Applicant’s mark is CHROMATIC in standard characters, while the cited mark is
CHROMATIK in standard characters. Both nine-letter marks contain the same first
eight letters C-H-R-O-M-A-T-I, and differ only by the letter (C or K) that appears at
the end of the shared eight-letter string. The record shows that the final letter “c” in
the word “chromatic” is pronounced with a “hard c” (“k”) sound,15 such that
Applicant’s mark is pronounced “kroh-mat-ik,” exactly as the cited mark is
pronounced. The marks are thus identical in sound, and Applicant does not contend
otherwise. Instead, Applicant claims “that there was an inordinate amount of focus
on the ‘sound’ element at the expense of the other relevant considerations,” 4
TTABVUE 9-10, and that because of the different letters “c” and “k” at the end of the
marks, “the appearance, sight, and commercial impression of ‘CHROMATIC’ are
different from those of ‘CHROMATIK.’” Id. at 10.16

15 May 9, 2017 Office Action at 46 (dictionary.com).
16 Applicant invokes the “anti-dissection rule,” 7 TTABVUE 9, under which “likelihood of
confusion cannot be predicated on the dissection of a mark, that is, on only one part of a
mark.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Applicant
argues that the “mere identification of common elements between two marks does not mean
that a likelihood of confusion exists.” 7 TTABVUE 8-9. As illustrated by the cases cited by
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With respect to appearance, Applicant argues that “the spelling difference lies in
the final letter, which is especially important to marks’ appearance and commercial
impression” because “psychological research demonstrates that the final letters of
words are especially important in language processing.” Id. (citing K. Rayner, R.L.
Johnson, & S.P. Liversedge, Raeding wrods with jubmled lettres: There is a Cost, 17
PSYCH. SCIENCE 192 (2006), which is not of record). Applicant also points to pairs of
third-party registrations of marks for similar services in which the paired marks
differ only by the presence of “C” or “K” at the end, id. at 10-12,17 as well as the results
of “Google searches of each trademark at issue,” which Applicant claims “further
demonstrate that the spelling difference between the marks makes consumer
confusion unlikely.” Id. at 12.18
With respect to the connotation and commercial impression of the marks,
Applicant argues that “the word ‘chromatic’ has two distinct definitions, one visual
and one musical. ‘Chromatic’ can mean either ‘relating to or produced by color’ or

Applicant, id. at 9, the anti-dissection rule most commonly comes into play when at least one
of the subject marks contains multiple elements. See Nat’l Data (THE CASH
MANAGEMENT EXCHANGE and CASH MANAGEMENT ACCOUNT); In re Hearst Corp.,
982 F.2d 493, 25 USPQ2d 1238 (Fed. Cir. 1992) (VARGA GIRL and VARGAS); In re
Electrolyte Labs. Inc., 929 F.2d 645, 16 USPQ2d 1239 (Fed. Cir. 1990) (K+EFF and K+ and
design); Spice Islands, Inc. v. Frank Tea and Spice Co., 505 F.2d 1293, 184 USPQ 35 (CCPA
1974) (SPICE TREE (with and without a design) and SPICE ISLANDS (with and without a
design)); Massey Junior College, Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272
(CCPA 1974) (FIA FASHION INSTITUTE OF AMERICA and design, and FASHION
INSTITUTE OF TECHNOLOGY). We reject Applicant’s suggestion that the Examining
Attorney “dissected” the marks into CHROMATI-C and CHROMATI-K, but we will, of course,
consider the marks in their entireties, taking into account their similarities as well as their
differences.
17 November 8, 2017 Request for Reconsideration at 2-11.
18 April 17, 2017 Response to Office Action at 2-5.
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‘relating to or using notes not related to the diatonic scale.’” Id. at 13.19 According to
Applicant, its mark CHROMATIC “plays on the former, visual definition,” while the
cited mark CHROMATIK “plays on the latter, musical definition,” in the context of
the services identified in the application and cited registration. Id. at 14. Applicant’s
argument regarding the different meanings of the mark is premised not on the
identifications of services in the application and cited registration, but rather on the
manner in which “consumers will encounter the marks through the internet,
marketing materials, and real-world trade channels.” Id.
Finally, as noted above, Applicant argues that the cited mark “is descriptive by
virtue of its reliance on the musical definition, and is therefore entitled to limited
protection that should not preclude Applicant’s Mark from registering.” 7 TTABVUE
15.
The Examining Attorney argues generally that “despite the minor difference in
spelling, the marks CHROMATIC and CHROMATIK are identical in sound and
meaning and nearly identical in appearance such that the overall commercial
impression of the marks is the same.” 9 TTABVUE 6. With respect to appearance, the
Examining Attorney rejects Applicant’s reliance on the cited psychological literature
regarding the significance of the last letter in words because “[a]s demonstrated by
the title of the article referenced by applicant, this research relates to a reader’s
ability to read and process jumbled words by using the first and last letter for word
identification.” Id. The Examining Attorney rejects Applicant’s evidence of the

19 November 8, 2017 Request for Reconsideration at 13.
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registration of other pairs of word marks differing in their last letter on the ground
that the involved marks and services differ from those here, id. at 7-8, and that
“[p]rior decisions and actions of other trademark examining attorneys in registering
other marks have little evidentiary value and are not binding upon the USPTO or the
Trademark Trial and Appeal Board.” Id. at 8.
With respect to the different meanings of the marks claimed by Applicant, the
Examining Attorney argues that “there is nothing in registrant’s mark (such as the
word ‘scale’) from which to draw the conclusion that consumers will attribute a
different meaning to registrant’s mark or are more likely to understand the mark as
being a reference to the name of a musical scale as opposed to a reference to colors.”
Id. She also notes that “registrant’s services are not limited to music-related services
and instead includes [sic] services related to creative arts, such that both meanings
of ‘chromatic’ would be relevant in connection with registrant’s services.” Id. at 8-9.
She argues that “the likely interpretation of the marks will be ‘pertaining to color or
colors,’ because applicant’s services relate to photography and registrant’s services
relate to creative arts, which encompasses [sic] photography, and color is an aspect of
photography.” Id. at 5.
Finally, in response to Applicant’s claim that the cited mark is merely descriptive,
the Examining Attorney notes that the cited mark is registered on the Principal
Register and is entitled to the statutory presumptions of distinctiveness, but that
even if the cited mark were descriptive, it is nevertheless “entitled to protection under
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Section 2(d) against the registration by a subsequent user of a similar mark for closely
related services.” Id. at 9.
As discussed above, the marks are identical in sound, and we find that they are
also similar in appearance and meaning. With respect to appearance, we have long
held that “it is often the first part of a mark which is most likely to be impressed upon
the mind of a purchaser and remembered.” Presto Prods. Inc. v. Nice-Pak Prods., 9
USPQ2d 1895, 1897 (TTAB 1988). Applicant does not provide a persuasive rationale
to depart from this general principle here, where the marks’ first eight letters C-H-
R-O-M-A-T-I are identical, the different final letters “C” and “K” yield an identical
pronunciation of the marks, and we must focus on “the recollection of the average
customer, who retains a general rather than specific impression of the marks.”
Aquitaine Wine USA, 126 USPQ2d at 1184. Applicant relied on the cited
psychological journal article during prosecution, but did not make it of record.20 Even
if the article “demonstrates that the final letters of words are especially important in
language processing,” 4 TTABVUE 10, as Applicant contends, it does not change our
analysis that CHROMATIC and CHROMATIK are highly similar.
The third-party registrations cited by Applicant have no probative value with
respect to the similarity between the subject marks. “Neither the Board nor any
Trademark Examining Attorney is bound by decisions of Examining Attorneys to
register prior marks. To the contrary, ‘the [US]PTO must decide each application on
its own merits, and decisions regarding other registrations do not bind either the

20 April 17, 2017 Response to Office Action at 1.
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[USPTO] or the [reviewing] court.’” U.S. Warriors Ice Hockey Program, 122 USPQ2d
1790, 1793 n.10 (TTAB 2017) (quoting In re Boulevard Entm’t, 334 F.3d 1336, 67
USPQ2d 1475, 1480 (Fed. Cir. 2003)). Applicant concedes as much in its reply brief.
10 TTABVUE 7. We agree with Applicant that the “Patent and Trademark Office
clearly has an interest in uniform application of the law to trademark applications,”
10 TTABVUE 7, but we fail to see how that agency goal is compromised here, where
the third-party registrations involve different marks and services, and were issued
based on different records. Cf. U.S. Warriors Ice Hockey, 122 USPQ2d at 1793
(rejecting the applicant’s argument that its application should be allowed because its
existing registration for a nearly identical mark for identical services had coexisted
with the cited registration for more than three years).
We also fail to see the relevance of results of the Google searches conducted on the
words “chromatic” and “chromatik.” The searches were apparently intended by
Applicant to replicate a consumer’s search, conducted by entering each word into the
search engine, 7 TTABVUE 12-13, but conducting such a search presupposes, rather
than demonstrates, that the consumer was able to distinguish the marks on the basis
of their appearance.
We find that the different final letters in the marks do not affect the visual
similarity created by the identical first eight letters in the marks, and that the marks
are similar in appearance when considered in their entireties.
Applicant’s argument for dissimilarity is strongest with respect to the connotation
and commercial impression of the marks. The record shows that the word “chromatic”
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has two meanings, one pertaining to color and the other to the musical scale,21 and
where marks consist of a word that has different meanings in different contexts,
dissimilarity in commercial impression may exist notwithstanding the similarity or
even identity of the marks in appearance and sound. Coach Servs., 101 USPQ2d at
1721-22 (finding that “substantial evidence supports the Board’s determination that
[applicant’s] COACH mark, when applied to educational materials, brings to mind
someone who instructs students, while [opposer’s] COACH mark, when used with
luxury leather goods, including handbags, suitcases, and other travel items, brings to
mind travelling by carriage”). Applicant argues that consumers will attribute the two
different meanings of “chromatic” to the marks in the context of the involved services,
specifically that “Applicant’s Mark, which pertains to a photo-sharing application,
invokes the color-related definition of the word ‘chromatic,’ whereas the Cited Mark
can only be reasonably understood as invoking the different, musical definition of
‘chromatic.’” 10 TTABVUE 4.22
As noted above, however, Applicant’s argument is premised on the registrant’s
actual use of the cited mark, not on the identification of services in the cited
registration. Indeed, in its reply brief, Applicant argues that “consumers are
generally unfamiliar with the contents of trademark registrations” and that “there is
no evidence that the Cited Mark has ever been used in connection with any

21 November 8, 2017 Request for Reconsideration at 13.
22 By making this argument, Applicant concedes that the cited mark is otherwise similar
enough to CHROMATIC to be understood to have one of the two meanings of that word even
though the cited mark is spelled differently.
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photography or visual-art-related services.” 10 TTABVUE 5. These arguments are
unpersuasive because we must consider the possible meaning of the cited mark
CHROMATIK in the context of the services identified in the cited registration, not in
the context of the registrant’s current actual use of the registered mark, or the
hypothetical search of “a database of trademark registrations” posited by Applicant.
Id. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1749 (Fed. Cir.
2017) (in considering first du Pont factor, Board “properly analyzed likelihood of
confusion based on the mark as applied to the goods recited in [the applicant’s]
application compared to registrants’ marks and the goods recited in their
registrations”); In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed.
Cir. 2014) (in considering first du Pont factor, Board properly determined that marks
had similar connotations on the basis of the services identified in the application and
cited registration, rather than on the basis of extrinsic evidence of actual use).
The pertinent services in the cited registration are “providing a web site enabling
people to collaborate, perform, teach, share, learn, and purchase music, creative arts,
and education related software, services, and content.” As discussed below in
connection with the second du Pont factor, these broadly identified services must be
construed as providing a website that enables people to share materials pertaining to
photography, as well as materials pertaining to music, which is separately listed in
the identification.23 Consumers of materials pertaining to the creative arts, including

23 Applicant argues in its reply brief that “the text of [the registrant’s] description of services
also indicates that the musical definition is primary” because the identification “refers to
‘music’ before it makes the reference to ‘creative arts’ on which the Examining Attorney
seizes.” 10 TTABVUE 5. Applicant cites no authority for the proposition that we must (or
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photography, would likely understand the mark CHROMATIK to relate to color, the
meaning that Applicant attributes to its mark in the context of its own photography-
related services, irrespective of whether persons sharing or purchasing materials
pertaining to music would likely understand CHROMATIK to have a musical
connotation. Although “chromatic” has different meanings in different contexts, we
find that the CHROMATIC and CHROMATIK marks are similar in connotation and
commercial impression in the context of the services identified in the application and
cited registration, once again taking into account “the recollection of the average
customer, who retains a general rather than specific impression of the marks.”
Aquitaine Wine USA, 126 USPQ2d at 1184.
Finally, we reject Applicant’s argument that the registered mark “is descriptive
by virtue of its reliance on the musical definition, and is therefore entitled to limited
protection . . . .” 7 TTABVUE 15. Regardless of the definition of CHROMATIK in the
context of the services identified in the cited registration, the registration issued on
the Principal Register without a requirement of a showing of acquired distinctiveness
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), and a “mark that is
registered on the Principal Register is entitled to all Section 7(b) presumptions
including the presumption that the mark is distinctive and moreover, in the absence
of a Section 2(f) claim in the registration, that the mark is inherently distinctive for

even may) read the identification of services as giving primacy to the cited portion. We must
give equal weight to all portions of the identification of services in the absence of punctuation
or other indicia within the identification itself that justifies construing it to give primacy to
a particular portion. Cf. In re C.H. Hanson Co., 116 USPQ2d 1351, 1354-55 (TTAB 2015).
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the goods [or services].” Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881,
1889 (TTAB 2006). Moreover, the record is devoid of any evidence of use or
registration of CHROMATIC-formative marks, which might suggest the commercial
weakness of CHROMATIK as a source identifier, see Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015), or that the word CHROMATIK is conceptually
weak because it “‘has a normally understood and well recognized descriptive or
suggestive meaning . . . .” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (quoting 2 MCCARTHY ON TRADEMARKS &
UNFAIR COMPETITION § 11:90 (4th ed. 2015)). See also In re Morinaga Nyugyo
Kabushiki Kaisha, 120 USPQ2d 1738, 1745-46 (TTAB 2016) (third-party
registrations may show conceptually weakness of a mark or an element of a mark).
On this record, we find that the cited mark is inherently distinctive and has not been
diluted and, as such, it is entitled to an ordinary, as opposed to a limited, scope of
protection. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ
108, 109 (CCPA 1974).
The marks are identical in sound, and similar in appearance, connotation, and
commercial impression, and there is nothing in the record showing that the cited
mark is weak and should be given only a narrow scope of protection. This du Pont
factor supports a finding of a likelihood of confusion.
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B. Similarity or Dissimilarity of the Services
This du Pont factor concerns the “similarity or dissimilarity and nature of the
goods or services as described in an application or registration . . . .” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014). The analysis of this factor is premised on the identifications of
services in the application and in the cited registration. Id. at 1161-63; Octocom Sys.,
Inc. v. Houston Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). The identified services need not be identical or even competitive to find a
likelihood of confusion. See, e.g., On-line Careline Inc. v. Am. Online Inc., 229 F.3d
1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). “[L]ikelihood of confusion can be found
‘if the respective [services] are related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.’” Coach Servs., 101 USPQ2d at 1722
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
The services identified in the application are “online social networking in the field
of photo sharing and excluding services related to arts other than photography.” The
services identified in the cited registration are “providing a web site enabling people
to collaborate, perform, teach, share, learn, and purchase music, creative arts, and
education related software, services, and content.” The Examining Attorney argues
that Applicant’s “services feature the ability to share photos while social networking”
and that the registrant’s “services function to allow users to share content in the field
of creative arts via a website, which encompasses sharing photos via a website
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because photography is a creative art form.” 9 TTABVUE 10. According to the
Examining Attorney, “the photo sharing feature of applicant’s services is the same as
the photo-sharing function of registrant’s services,” and “because applicant’s services
feature the ability to share photos and the registrant’s services function to allow users
to share photos, the consumers of the services will be the same, namely, consumers
who would like to share photos.” Id.
The Examining Attorney argues alternatively that even if the registrant’s services
cannot be interpreted to encompass the function of sharing photographs, “the
evidence demonstrates that online social networking services featuring the ability to
share photos and websites enabling users to share music are commonly provided
together, under a single mark, via the same website.” Id. at 11.
As noted above, in its main brief, Applicant discusses the second du Pont factor in
connection with the channels of trade and classes of customers for the involved
services.24 Applicant concedes that the Examining Attorney “is correct that the
language of the registration controls analysis of the relatedness of goods and
services—indeed, as defined in du Pont, that factor is ‘the relatedness of the goods or
services as described in the application and registration(s).” Id. at 7 (quoting
du Pont, 177 USPQ at 567). Applicant nonetheless criticizes the Examining Attorney
for focusing “exclusively on the language of Registrant’s registration” and “seizing on
the fact the Registrant’s registration refers to ‘creative arts’ as well as music, and

24 Applicant accuses the Examining Attorney of conflating the du Pont factors regarding the
similarity of the services, the channels of trade, and the classes of customers, 7 TTABVUE 7-
8, but Applicant itself does so in its main appeal brief. 7 TTABVUE 5-8.
Serial No. 87118333
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disregarding all ‘extrinsic evidence’ concerning ‘actual use’ of the Cited Mark.” Id.
Applicant itself focuses entirely on a comparison of its services to the services
provided through the registrant’s website, arguing that “Applicant and Registrant
occupy completely different markets and are not in competition in any sense” because
“Applicant’s Mark is associated with a photo-sharing social media application,” while
“the Cited Mark is associated with a sheet music database website that also has some
features intended to help users learn music.” 7 TTABVUE 6.
Applicant does not discuss the identifications of services, or the relatedness of the
identified services per se, until its reply brief, where it notes that “the Examining
Attorney argues that ‘creative arts’ [in the cited registration] encompasses [sic]
‘photography,’ and therefore that Registrant’s Services (which including sharing
‘music, creative arts, and education related software’) are related to Applicant’s
Services (‘online social networking in the field of photo sharing’) . . . .” 10 TTABVUE
2. Applicant claims that the fundamental flaw with this argument is that it “leaps
from the conclusion that both Registrant’s Services and Applicant’s services relate to
‘creative arts,’ at the broadest level, to the conclusion that consumers are therefore
likely to encounter Registrant’s Services and Applicant’s Services together in the
marketplace and, therefore, confuse the source of the respective services.” Id. at 3.
Applicant returns to the actual use of the cited mark, however, discussing the
registrant’s “sheet-music-focused website” and arguing that “whether both [uses]
might be classified as relating to ‘creative arts’ is, ultimately, beside the point.” Id. at
4.
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As Applicant acknowledges, 7 TTABVUE 7, our analysis of the similarity of the
services must be based on their identifications in the application and cited
registration. See Stone Lion, 110 USPQ2d at 1161-63. We cannot consider Applicant’s
extrinsic evidence of the registrant’s current use of the CHROMATIK mark, or
Applicant’s argument that the mark “is associated with a sheet music database
website that also has some features intended to help users learn music,” id. at 6,
because it is well settled “that ‘. . . it is the identification of [services] that controls,
not what extrinsic evidence may show about the specific nature of the [services]. . .
An applicant may not restrict the scope of the [services] covered in the cited
registration by argument or extrinsic evidence.’” In re Midwest Gaming & Entm’t
LLC, 106 USPQ2d 1163, 1165 (TTAB 2013) (quoting In re La Peregrina Ltd., 86
USPQ2d 1645, 1647 (TTAB 2008)). We must give the identification of services in the
cited registration its full scope regardless of the current actual use of the mark by the
registrant. See, e.g., In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1092 (TTAB 2016).
The services identified in the cited registration are, by their terms, similar in
nature and function to the services identified in the application. Applicant’s services
involve “online social networking in the field of photo sharing,” while the services
identified in the registration involve a website “enabling people to . . . share . . .
creative arts . . . .” Both services have the similar purpose and function of enabling
the online sharing of materials, and the record reflects and corroborates the common
knowledge that photography is one of the “creative arts” that may be shared through
Serial No. 87118333
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the website identified in the cited registration.25 Applicant conceded as much when it
amended its own identification of services to “exclud[e] services related to arts other
than photography” (emphasis added),26 and in its reply brief, Applicant does not
dispute the Examining Attorney’s conclusion that “creative arts” includes
photography, but only her additional conclusion “that consumers are therefore likely
to encounter Registrant’s services and Applicant’s Services together in the
marketplace and, therefore, confuse the source of the respective services.” 10
TTABVUE 3.

25 May 9, 2017 Office Action at 26 (“Creative arts include drama or theater, music, film,
creative writing, graphic design, photography and visual arts.”) (reference.com), 27
(Wikipedia entry defining “The arts” to include photography) (wikipedia.org), 28 (stating that
photography “is a creative art form as well as an omnipresent cultural force that both mirrors
and shapes everyday life”) (sfmoma.org); November 29, 2017 Denial of Request for
Reconsideration at 5, 9 (stating that Canvazone mobile application “is a professional social
network app targeting creatives such as Artists, DJ/Music Producers, Dancers,
Photographers, Fashionistas & their Fans” and “A fusion of Facebook, LinkedIn &
Instagram-niched toward Artists, DJ/Music Producers, Dancers, Photographers,
Fashionistas & people who love these art forms) (canvazone.com), 10-11 (stating that “The
creative arts span many fields and disciplines” and showing “photos from our photographer
directory”) (artisticnetwork.net); 14-15 (stating that “Photography is a creative art.”)
(photography-schools.com).
26 November 8, 2017 Request for Reconsideration at 1. While this exclusion limits the scope
of Applicant’s services, it has no effect on the scope of the services identified in the cited
registration. See, e.g., Mr. Recipe, 118 USPQ2d at 1091 (although the applicant’s recitation
of services was restricted to “streaming of audiovisual material via an Internet channel
providing programming related to cooking,” its services were deemed related to the cited
registrant’s services “video recording in all formats featuring motion pictures” because the
registrant’s “description of goods identifies motion pictures without any limitation as to
subject matter, which means that Registrant’s motion pictures may feature cooking in some
form or manner.”); In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992) (noting that, where
registrant’s goods were broadly identified as “computer programs recorded on magnetic
disks,” without any limitation as to the kind of programs or the field of use, it must be
assumed that registrant’s goods encompass all such computer programs, including computer
programs of the type offered by applicant, that they travel in the same channels of trade
normal for such goods, and that they are available to all classes of prospective purchasers of
those goods).
Serial No. 87118333
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We agree with the Examining Attorney that the term “creative arts” in the
identification of services in the registration encompasses photography, and the
website identified in the cited registration thus must be deemed to enable the sharing
of photographs, giving it a function very similar if not identical to that of Applicant’s
services, which enable “online social networking in the field of photo sharing.” On the
basis of the identifications of the services, they must be deemed to provide similar
ways for persons to share the same type of photographic materials online, and we find
them to be related. Cf. Mr. Recipe, 118 USPQ2d at 1093 (finding that the “streaming
of audiovisual material via an Internet channel related to cooking” was related to
“video recordings in all formats featuring motion pictures” because those goods and
services were “simply different conduits for presenting content”).
The Examining Attorney also introduced Internet evidence that she argues shows
that “online networking services featuring the ability to share photos and websites
enabling users to share music are commonly provided together, under a single mark,
via a single website.” 9 TTABVUE 11. We reproduce below screenshots from three of
the websites.27

27 The Examining Attorney offers these website as proof of her fallback position that the
online sharing of photographs and music are related services. They also show, of course, that
Applicant’s “online social networking in the field of photo sharing” and the registrant’s
“enabling people to . . . share . . . creative arts . . . .” through a website are related services.
Serial No. 87118333
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28

28 May 9, 2017 Office Action at 32.
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29
30

29 May 9, 2017 Office Action at 36.
30 Id. at 42.
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In its reply brief, Applicant dismisses this evidence on the ground that “whether
some companies provide both types of services is not the relevant inquiry,” 10
TTABVUE 7, claiming that the relevant test is whether it is “commonly expected that
the applicant’s goods and registrant’s goods would come from the same source.” Id. at
8 (citing Trademark Manual of Examining Procedure (“TMEP”) Section
1207.01(a)(1)). Applicant argues that to credit this evidence would be to give the
registered mark “much broader protections than those to which it is entitled,” id.,
analogizing doing so to finding that “any trademarks that Netflix holds in relation to
its digital streaming services could prevent the registration of a small mom-and-pop
shoe store’s marks because there are companies out there—like Amazon—that offer
both digital streaming services and retail shoe sales.” Id. Applicant cites a non-
precedential decision, In re Biowish Techs. Int’l Inc., Serial No. 86739178 (TTAB
March 7, 2018), for the proposition that “[s]uch broad arguments have previously
been rejected for reasons that apply with equal force here.” Id. at 8-9.
These arguments are unavailing. We are not bound by the non-precedential
Biowish decision, In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593,
1596 n.6 (TTAB 2014), but it is inapposite here in any event. In Biowish, the Board
found that the registrant’s goods, identified as “cleaning preparations for household
purposes,” were not related to the applicant’s goods, identified as “fruit and vegetable
wash.” The Board found that the registrant’s goods did not encompass the applicant’s
goods even though both goods “may perhaps fall within the exceedingly broad and
varied category of ‘cleaning products,’” and that even if both goods were considered
Serial No. 87118333
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“‘cleaning products, that is also not enough by itself to establish that the goods are
related.” 14 TTABVUE 2-3 (Serial No. 86739178). The Board held that “‘a finding
that the goods are similar is not based on whether a general term or overarching
relationship can be found to encompass them both.” Id. at 3 (quoting Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010) (internal
citations omitted)).31 The Board found that although both products were different
types of cleaning products, they performed different functions and had different
purposes. Id. at 4.
The Board rejected as insufficient proof of relatedness a number of examples of
third-party Internet uses of the same mark for both goods. The Board acknowledged
that “[t]his is the type of evidence which often supports a finding that goods are
related,” but found that the examining attorney’s evidence was insufficient in that

31 Applicant incorporates citations of Edwards Lifesciences, In re W.W. Henry Co., 82 USPQ2d
1213 (TTAB 2007), and Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303
(Fed. Cir. 2002) from Biowish. 10 TTABVUE 3 (citing 14 TTABVUE 3 (Serial No. 86739178)).
Applicant also cites In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993), and
another non-precedential decision, Veleno v. Todd, Opp. No. 91229357 (TTAB April 6, 2018),
for the proposition that merely because the services “relate to ‘creative arts,’ at the broadest
level,” consumers are not likely to encounter them in the marketplace and confuse their
source. 10 TTABVUE 3-4. Edwards Lifesciences, W.W. Henry, and Veleno are distinguishable
for the same reasons that Biowish itself is distinguishable, namely, that the finding that the
services here are related is not based on a “general term or overarching relationship [that]
can be found to encompass” the services. Edwards Lifesciences, 94 USPQ2d at 1410. As the
Board acknowledged in Biowish, 14 TTABVUE 3 (Serial No. 86739178), the language from
Bose cited by Applicant is dicta, 10 TTABVUE 3, and the Federal Circuit in Bose actually
found that the Board had erred in its determination that the goods were not related because,
as here, “there is ample evidence of relatedness from the text of the registrations alone.” 63
USPQ2d at 1310. Albert Trostel is distinguishable because the Board’s finding of no likelihood
of confusion turned on the sophistication of purchasers, the fact that the cited registration
issued over the applicant’s then-subsisting registration of the applied-for mark for similar
goods, and the fact that the “registrant itself (through its counsel), has expressed the opinion
that there is no likelihood of confusion,” 29 USPQ2d at 1786, factors that are not present
here.
Serial No. 87118333
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case because “the fruit and vegetable wash products are promoted as healthy to
ingest, whereas the household cleaning products are promoted as suitable for
cleaning various surfaces in the home,” id. at 8, and because “the fruit and vegetable
products are typically offered on different sections of the website than the household
cleaning products, or the websites offer a variety of products, well beyond those that
merely ‘clean.’” Id. at 8-9. The Board also found that the goods were offered on the
same websites “not because of the type of product (i.e. that both products can be used
to ‘clean’), but because the products share extraneous characteristics,” namely that
they were organic or environmentally-friendly products. Id. at 12. The Board
concluded that the goods were not related because a consumer would not use a
product used to clean floors or furniture to clean foods. Id. at 9.
The record here does not share the characteristics of the record in Biowish. The
services as identified in the application and cited registration are similar not because
they “relate to ‘creative arts,’ at the broadest level,” 10 TTABVUE 3-4, in the manner
in which the Board found that the identified goods in Biowish “may perhaps fall
within the exceedingly broad and varied category of ‘cleaning products,’” 14
TTABVUE 2 (Serial No. 86739178), or because they share some “general term or
overarching relationship.” Id. at 3. They are similar because, as discussed above, the
term “creative arts” in the identification of services in the registration includes
photography, the subject matter of the online photo sharing services identified in the
application, such that the registrant’s services must be deemed to encompass the
sharing of photographs online. As a result, both sets of services allow users to do the
Serial No. 87118333
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same thing, share photographs online, unlike the goods in Biowish, which the Board
found “perform different functions, with Applicant’s goods being better understood as
a cooking/food/agricultural-related product than as a household cleaning product.” Id.
at 4.
The websites in the record here show the simultaneous offering of social
networking and photograph sharing services, and of photograph sharing and music
sharing services, not because, as in Biowish, those services “share extraneous
characteristics,” id. at 12, or because the websites are in the nature of “modern
supermarkets” that bring together a “wide variety of products, not only from different
manufacturers within an industry but also from diverse industries,” id. at 11 (quoting
Federated Foods, 192 USPQ at 29). The websites in the record here show that the
pertinent services are offered together under the same mark because the services are
similar in function and purpose, namely, to enable the online sharing of materials in
the course of social networking. We find that the Examining Attorney’s Internet
evidence is probative of the relatedness of the services. See, e.g., C.H. Hanson, 116
USPQ2d at 1355-56; In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202 (TTAB
2009).
For the reasons discussed above, we find that the services as identified in the
application and cited registration are related, and that this du Pont factor supports
a finding of a likelihood of confusion.
Serial No. 87118333
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C. Channels of Trade and Classes of Customers
The third du Pont factor is the “similarity or dissimilarity of established, likely-
to-continue trade channels,” while the fourth du Pont factor is the “conditions under
which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated
purchasing.” du Pont, 177 USPQ at 567. Applicant argues that these du Pont “factors
are not strictly restricted to descriptions in applications and registrations,” 7
TTABVUE 7, and criticizes the Examining Attorney for “focus[ing] exclusively on the
language of Registrant’s registration . . . and disregarding all ‘extrinsic evidence’
concerning ‘actual use’ of the Cited Mark.” Id.
Applicant proceeds to argue that it “targets professional photographers and
photography enthusiasts,” while “the Cited Mark is associated with a sheet music
database website that also has some features intended to help users learn music” and
is marketed “to a different, discrete set of well-informed consumers who are looking
for sheet music and/or to learn to play instruments.” Id. at 6. Applicant claims that
“[g]iven the big differences in these markets . . . it is unlikely that a person seeking
to learn to play the piano will be confused into uploading or rating photographs
through Applicant’s CHROMATIC application,” id. at 6-7, or that “someone looking
to share photographs via Applicant’s CHROMATIC application is not likely to be
confused into downloading the sheet music to Brahms’ Lullaby from the
CHROMATIK database. Id. at 7.32 According to Applicant, “the evidence of actual

32 These arguments, which suggest that users of Applicant’s and the registrant’s services are
not likely to mistake one service for the other, 7 TTABVUE 6-7, are misplaced. The “issue is
Serial No. 87118333
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use—specifically, Registrant’s own online material—makes clear that Registrant has
established and is likely to continue offering services at a class of consumers
interested in music, not photography.” Id. at 8.
Applicant’s arguments are based on a flawed premise. As with the similarity of
the services, we must assess the third and fourth du Pont factors solely on the basis
of the identifications of services in the application and cited registration, not on the
basis of any extrinsic evidence of use, which is Applicant’s sole focus. Stone Lion, 110
USPQ2d at 1161-62. There are limitations on channels of trade and classes of
customers in Applicant’s identification of services “online social networking in the
field of photo sharing and excluding services related to arts other than photography,”
but in the absence of limitations in the cited registration, we must presume that the
services identified in the registration move in all normal channels of trade, and are
available to all classes of customers, for such services. See, e.g., In re Thor Tech, Inc.,
90 USPQ2d 1634, 1639 (TTAB 2009). The record shows that the channels of trade
and classes of customers for the registrant’s particular service of “providing a web
site enabling people to . . . share . . . creative arts . . .,” which service includes the
sharing of photographs, overlap with those for Applicant’s identified service because
both services are provided through the Internet and both services target what

not whether purchasers would confuse the [services], but whether there is a likelihood of
confusion as to the source of the [services].” Aquitaine Wine, 126 USPQ2d at 1188.
Serial No. 87118333
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Applicant describes as “photography enthusiasts.” 7 TTABVUE 6.33 These du Pont
factors support a finding of a likelihood of confusion.
D. Conclusion
The marks and services are similar, and the channels of trade and classes of
customers overlap. There is no countervailing evidence on any other du Pont factor.
We find, on the basis of the record as a whole, that confusion as to the source or
sponsorship of Applicant’s identified services is likely.
Decision: The refusal to register is affirmed.

33 The Examining Attorney argues that because “the services of the parties have no restriction
as to nature, type, channels of trade, or classes of purchasers” they are “‘presumed to travel
in the same channels of trade to the same classes of purchasers.’” 9 TTABVUE 12-13 (quoting
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)). In Viterra, the
Federal Circuit noted that reliance on this presumption was proper where the applicant had
conceded the identity of the involved goods. Id. As discussed above, the services here are not
identical, but we need not rely on any presumption regarding the channels of trade and
classes of customers because the record shows that they overlap. See Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002) (finding that
the third and fourth du Pont factors supported a finding of a likelihood of confusion where
the parties’ goods and services were found to be related on the basis of no “evidence of
relatedness beyond the descriptions in the application and registration”).