Annie's Doodles, LLC

Trademark Trial and Appeal Board

Jul 28, 2020

87784549 (T.T.A.B. Jul. 28, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 28, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
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In re Annie’s Doodles, LLC
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Serial No. 87784549
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Christine Lebron-Dykeman of McKee, Voorhees & Sease, PLC,
for Annie’s Doodles, LLC.
Jacquelyn A. Jones, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Zervas, Lykos and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Annie’s Doodles, LLC (“Applicant”) filed an application on the Principal Register
seeking registration of the mark ANNIE’S DOODLES (in standard characters) for:
Dog collars in International Class 18,
Dog breeding services in International Class 44, and
Providing a web site featuring listings and photographs of pets available
for adoption and related information concerning pet adoption in
International Class 45.1

1 Application Serial No. 87784549 filed on February 5, 2018, for the Class 18 goods under
Trademark Act Section 1(b), 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona
fide intention to use the mark in commerce; for the Class 44 services under Trademark Act
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the Class 18 goods, so resembles the mark ANNIE PHILLIPS (in standard
characters) for, inter alia, “clothing for animals,” in International Class 18,2 on the
Principal Register as to be likely to cause confusion, to cause mistake, or to deceive.
The Trademark Examining Attorney also refused registration under Trademark
Act Section 2(d) on the ground that Applicant’s mark, as applied to the Class 44 and
45 services, so resembles the registered mark DR. ANNIE’S (in standard characters)
for:
Animal grooming; Animal grooming services; Consultation services in
the field of pet behavior; Insertion of subcutaneous microchips into pets
for purposes of racking and identification; Pet care services, namely,
administration of medication; Pet care services, namely, dog walking,
dog bathing and non-medicated pet grooming; Pet care services, namely,
dog walking, dog bathing, non-medicated pet grooming and in-home
medical care; Pet dentist services; Pet grooming services; Pet hospital
services; Providing information and advice in the field of pet health;
Providing information in the fields of animals and pet breeding,
selection of the animals and pets, grooming, health and nutrition;
Providing on-line information via the Internet in the fields of animals
and pets, relating to breeding, selection of the animals and pets,
grooming, feeding and nutrition; Providing self-service pet grooming
facilities; Providing self-service pet washing facilities; Tattooing of pets
for identification purposes; Veterinary dentistry; Veterinary emergency
and trauma services; Veterinary services; Veterinary specialty services
providing advanced dental and oral surgery; Veterinary specialty

Section 1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and first
use in commerce since at least as early as April 30, 2006; and for the Class 45 services under
Trademark Act Section 1(a), based upon Applicant’s claim of first use anywhere and first use
in commerce since at least as early as May 31, 2016.
2 Registration No. 5080304, issued November 15, 2016. As explained further below, since the
Examining Attorney’s citation to the ANNIE PHILLIPS registration has become moot on this
appeal, we have not set out in full all of the goods recited in this registration.
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services providing advanced medical, diagnostic or surgical services for
animals; Veterinary surgery International Class 44.3
on the Principal Register as to be likely to cause confusion, to cause mistake, or to
deceive.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Applicant and the Examining Attorney filed briefs. We affirm
the refusal to register as to the services in Classes 44 and 45. As noted below, the
Application for the goods in Class 18 stands abandoned.
I. Partial Abandonment of Application for the Goods in Class 18
In its Notice of Appeal,4 Applicant elected to pursue this appeal as to the refusals
to register the ANNIE’S DOODLES mark for the services in Classes 44 and 45 only.
This was confirmed in Applicant’s Brief.5 “If an application contains multiple classes
and the applicant wishes to appeal a final refusal or requirement in some but not all
of the classes, the applicant should indicate in the notice of appeal the classes in
which the refusal or requirement is being appealed. Any remaining classes for which
there is a final refusal or requirement that is not the subject of the appeal will be
deemed abandoned.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE

3 Registration No. 3988347, issued July 5, 2011. Declaration of Use under Trademark Act
Section 8, 15 U.S.C. § 1058, filed and accepted.
4 Notice of Appeal, 1 TTABVUE. Page references herein to the application record refer to the
online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system.
All citations to documents contained in the TSDR database are to the downloadable .pdf
versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World
Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer
to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket
entry number; and after this designation are the page references, if applicable.
5 Applicant’s Brief, 4 TTABVUE 4.
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(TBMP) § 1202.01 (June 2020); see also In re MGA Ent. Inc., 84 USPQ2d 1743, 1745
n.1 (TTAB 2007) (applicant did not appeal requirement to delete Class 28 goods, and
Board treated Class 28 goods as deleted from application). Therefore, we deem
abandoned Applicant’s ANNIE’S DOODLES application as to the goods in Class 18;
the Examining Attorney’s citation to the ANNIE PHILLIPS registration as a basis
for refusal is therefore moot.
II. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
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Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods. See In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
III. Analysis
We now consider the arguments of Applicant and the Examining Attorney in view
of applicable law and the evidence of record. The likelihood of confusion factors
Applicant focused on in this appeal are the strength of the cited mark, the similarity
or dissimilarity of the marks, the relatedness of the services associated with each
mark, the channels of trade and classes of purchasers therefor and the level of
sophistication of the relevant consumers. We discuss these factors below.
A. Comparison of the Marks
1. Strength of the Registered Mark, DR. ANNIE’S
Under the fifth and sixth DuPont factors, we consider the strength of the cited
registered mark, and the extent to which that strength may be attenuated by “[t]he
number and nature of similar marks in use on similar … [services].” DuPont, 177
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USPQ at 567. “A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace [or commercial] strength (secondary meaning).”
In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010).
For likelihood of confusion purposes, a mark’s strength “varies along a spectrum from
very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC,
857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (“likelihood of confusion
[strength] … ‘varies along a spectrum from very strong to very weak.’”) (citing Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
Here, Applicant did not submit any evidence, nor did it assert any argument,
challenging the marketplace strength of the cited DR. ANNIE’S mark. Rather,
Applicant:
submitted over one hundred (100) [third-party]
registrations/applications currently existing on the USPTO database
that include some form of the name Annie. … [T]hese prior existing
applications/registrations are for a wide-ranging variety of goods and
services but … are still relevant in the analysis of the strength of the
cited mark [DR. ANNIE’S], particularly as the Registrant’s first name
is Annie. The ubiquitous use of the name Ann, Anna, or Annie6 is
evidence of the commonality, and thus weakness of the name.7
Such type of evidence goes not to the commercial strength of the registrant’s mark,
but rather its conceptual strength. That is, “[u]se evidence may reflect commercial

6 See definition of “ANNIE” as “a female given name, form of Ann, Anna, or Anne” made of
record with Office Action of November 29, 2018 at TSDR 19.
7 Applicant’s Brief, 4 TTABVUE 8.
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weakness, while third-party registration evidence that does not equate to proof of
third-party use may bear on conceptual weakness if a term is commonly registered
for similar goods or services.” Tao Licensing, LLC v. Bender Consulting Ltd., 125
USPQ2d 1043, 1057 (TTAB 2017) (emphasis added) (citing Tektronix, Inc. v.
Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976)). See also, In re
Guild Mortg. Co., 2020 USPQ2d 10279 *3 (TTAB 2020) (“[E]vidence of third-party
registrations is relevant to ‘show the sense in which . . . a mark is used in ordinary
parlance.’”).
Specifically, Applicant’s third-party evidence comprises one-hundred forty-two
(142) third-party registrations and applications for marks consisting wholly of, or
comprising partially of, the name ANNIE, ANNIE’S, ANNE, ANNIEBELL, ANNA
or ANN.8 Only two of the third-party registrations recite services similar to those
listed in the DR. ANNIE’S registration.9 Seven of the third-party registrations recite
goods only tangentially related to the services listed in the cited registration.10 A

8 Office Action Response of October 16, 2018 at TSDR 19-189; Office Action Response of May
29, 2019 at TSDR 11-63.
9 These registrations are JOYRIDE BY ANNIE (Registration No. 5152502) for “on-line
journals, namely, blogs featuring content in the fields of … gaming, animals [and] pets”; and
ANN’S ENTITLED LIFE (Registration No. 5702093) for “on-line electronic newsletters
delivered by e-mail in the field of … pets” and “providing a website featuring non-
downloadable articles in the field of … pets”.
10 These registrations are ANNIE-MELS (Registration No. 4126114) for “pet harnesses”;
ANNE COQUINE (Registration No. 5372166) for “clothing for domestic pets”; ANNA
TOSANI (Registration No. 4311558) for “collars for animals or pets”; KIKI & ANNA
(Registration No. 5608191) for “pet blankets”; ANN SUMMERS (Registration No. 4883597)
for “collars for animals”; ANNA'S LOUD (Registration No. 5066513) for “collars of animals”;
and ANNTRUE (Registration No. 5654448) for “covers for animals; leather leashes”.
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large majority of these registrations are for marks contain additional textual matter
distinguishing them from the DR. ANNIE’S mark.
Unlike cases in which extensive evidence of third-party registration and use (the
latter of which we do not have here) was found to be “powerful on its face” inasmuch
as “a considerable number of third parties use [of] similar marks was shown,” Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir.
2015), this record presents only a very limited number of such registrations for
similar goods or services, well short of the volume of evidence found convincing in
Juice Generation and 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).
Applicant’s evidence also includes four third-party applications. However, third-
party applications are evidence only of the fact that they have been filed, and have
no probative value. In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB
2009); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1365 n.7 (TTAB 2007); Interpayment
Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1467 n.6 (TTAB 2003).
Applicant cites Nat’l Cable Television Ass’n v. Am. Cinema Editors, Inc., 937 F.2d
1572, 19 USPQ2d 1424 (Fed. Cir. 1991) for the following proposition:
Where a mark is commonly used on numerous types of goods and
services by different companies, a term such as PREMIUM, SUN, BLUE
RIBBON, NATIONAL, GIANT or AMERICAN, it may be reasonable to
infer in some situations that purchasers have been conditioned to expect
different sources for specifically different goods or services even though
such goods or services might be deemed sufficiently related to be
attributable to a single source under an uncommonly used mark.
Id. at 1430. Applicant ignores, however, that Nat’l Cable Television also stated:
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Cable [Respondent] is correct that the presence of numerous unrelated
uses of a mark may be a significant factor in determining likelihood of
confusion with another user of the same or virtually the same mark.
(citation omitted). However, Cable’s leap to a conclusion that all the
third party names and marks in evidence here are relevant ignores the
rationale underlying this factor.

* * *
The real world segment of the public is limited to the market or universe
necessary to circumscribe purchasers or users of products or services
like those being offered by the parties under the “common” mark. Only
if other offerings under the “common” mark are also directed to that
relevant public is it reasonable to infer that they may have become
conditioned to draw fine lines between sources of “related” goods or
services. Thus, in the relevant market or universe, even a “common”
mark may stand alone, but for the single newcomer, and there is simply
no basis for an inference that the “public” has been conditioned to
distinguish between sources of related products or services.
To take an extreme example, ACE for canned, large peas could not
escape likelihood of confusion with a prior use of ACE for canned, small
peas because ACE is concurrently used by unrelated third parties on
aircraft, clothing, computer services, hardware or even bread, bananas,
milk and canned carrots. Properly defined, the relevant public in the
example need be defined no broader than purchasers of canned peas,
and the third party ACE marks outside the segment become essentially
irrelevant.
Id. at 1430. Thus, properly construed, Nat’l Cable Television is consistent with
longstanding precedent that “[t]he number and nature of similar marks in use on
similar … [services]” is the relevant factor in the likelihood of confusion analysis.
DuPont, 177 USPQ at 567. (Emphasis added)
To summarize, “in an ex parte analysis of the DuPont factors for determining
likelihood of confusion …, the ‘fame of the mark’ [fifth] factor is normally treated as
neutral when no evidence as to fame has been provided.” TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 1207.01(d)(ix) (Oct. 2018). Thus, because there is
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no evidence of record regarding the commercial strength of the cited mark, the fifth
DuPont factor is neutral. We find the sixth DuPont factor regarding conceptual
strength of the DR. ANNIE’S mark to be a factor in favor of a finding of a likelihood
of confusion.
2. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and the Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019) (mem) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)).
“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 marks would be likely to assume a connection
between the parties.” In re i.am.symbolic, llc, 123 USPQ2d at 1748. The parties’
marks “‘must be considered … in light of the fallibility of memory ….’” In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando
Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA
1977)). Therefore, “[t]he focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks.” In re
Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007).
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Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”).
On the other hand, different features may be analyzed to determine whether the
marks are similar. Price Candy Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105
USPQ 266, 268 (CCPA 1955). Therefore, “in articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties.” In re Nat’l Data, 224 USPQ at 751. That is, one feature of a mark may be
more significant or dominant in creating a commercial impression. See In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
We find the term “ANNIE’S” to be the dominant portion of Applicant’s ANNIE’S
DOODLES mark. That is because the possessive form of the given name “ANNIE’S”
is the first term, and consumers are generally more inclined to focus on the first literal
portion in any mark. See Palm Bay Imps., 73 USPQ2d at 1692. The other wording in
the mark, “DOODLES,” is merely descriptive of Applicant’s services and has been
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disclaimed. Merely descriptive or generic matter that has been disclaimed is typically
less significant or less dominant when comparing marks. In re Detroit Athletic, 128
USPQ2d at 1050 (citing In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1533-34 (Fed. Cir. 1997).
We also find the term “ANNIE’S” to be the dominant portion of the cited DR.
ANNIE’S mark. “DR.” is a recognized abbreviation for the term “doctor.”11 “DR.” is a
title it has less source-indicating significance than the term ANNIE’S, which remains
as the dominant portion of the Registrant’s mark.12
The addition of a common and non-distinctive title or courtesy prefix to a mark,
such as “Mr.,” “Mrs.,” “Mlle.,” “Dr.” or “MD,” does not alter the mark’s general
commercial impression.13 Cf. In re Giger, 78 USPQ2d 1405, 1409 (TTAB 2006) (“The
fact that [joint] applicants have added another term [, the suffix MD,] to a surname
[GIGER] does not automatically detract from the surname significance of the term.

11 Definition of “Dr.” – MacMillan Dictionary
https://www.macmillandictionary.com/dictionary/american/dr
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016).
12 Our finding is in agreement with the Board’s non-precedential decisions in this area. See
In re Morgan Pipes, Inc., 2017 TTAB LEXIS 198, *3-4 (TTAB 2017) (“The word BONES is the
dominant portion of Registrant’s mark because “MR.” is merely a title, while what follows
the title, in this case BONES, is what is identified by the mark in its entirety. . . . As a prefix
‘MR.’ draws attention to what follows, in this case, BONES, which is identical to Applicant’s
mark.”); Manhattan Group, LLC v. RMI Bratz, Inc., 2003 TTAB LEXIS 544, *9 (TTAB 2003)
(finding that the marks SKWISH and MISTER SKWISH similar because applicant’s mark
incorporates opposer’s mark and “because MISTER is a title, it has less source-indicating
significance than the term SKWISH which is the dominant portion of applicant’s mark.
13 We do not agree with Applicant’s unsupported assertion that “Designations of esteem, such
as Doctor, General, Her Highness, The Honorable, are more distinctive than designations of
gender and far more likely to be recalled by the average consumer than a designation of Mr.,
Mrs., Miss, etc.” Applicant’s Reply Brief, 7 TTABVUE 6.
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This is particularly true in the case of titles and other indicia that simply reinforce
the surname meaning of the term.”); In re Rath, 2004 TTAB LEXIS 18 *9 (TTAB
2004) (finding DR. RATH to be primarily merely a surname: “the addition of the [title]
‘DR.’ enhances the surname significance of the mark because ‘Dr.’ is commonly
followed by a surname and consumers readily understand this convention.”), aff’d on
other gnds., 402 F.3d 1207, 74 USPQ2d 1174 (Fed. Cir. 2005); In re Revillon, 154
USPQ 494, 495 (TTAB 1967) (finding the mark MLLE. REVILLON to be primarily
merely a surname: “MLLE. … is an abbreviation for the word Mademoiselle, which
is the French equivalent of the courtesy title ‘Miss’; and in our opinion, as used it
enhances rather than diminishes the surname significance of ‘REVILLON.
This analysis leaves us with the conclusion that ANNIE’S is the identical
dominant term in Applicant’s and Registrant’s marks and functions as the primary
source indicators in the marks, and would be so perceived by consumers. Comparing
the marks as a whole, we find that the marks ANNIE’S DOODLES and DR. ANNIE’S
are more similar than they are different in appearance, sound, meaning and
commercial impression. Notwithstanding Applicant’s protestations to the contrary,14
in finding the marks similar we have not dissected them nor have we ignored the non-
identical parts of each mark, “DOODLES” and “DR.” The first DuPont factor thus
supports an ultimate finding that confusion is likely.

14 Applicant’s Brief, 4 TTABVUE 6-7; Applicant’s Reply Brief, 7 TTABVUE 4-6.
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B. The Similarity or Dissimilarity and Nature of the Services

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the … services as described in an application or registration.…” DuPont, 177 USPQ
at 567. “This factor considers whether ‘the consuming public may perceive [the
respective … services of the parties] as related enough to cause confusion about the
source or origin of the … services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
“Likelihood of confusion must be found as to the entire class [of services identified]
if there is likely to be confusion as to any service that comes within the recitation of
services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). For that
reason we need not discuss all of the services in the application and registration, and
we discuss only those services which overlap or are legally identical, and others for
which the Examining Attorney has provided evidence.
The services need not be identical or even competitive to find a likelihood of
confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [the services] … emanate from the same source.” Coach Servs.,
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Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant services are used by the same purchasers;
advertisements showing that the relevant services are advertised together; or copies
of use-based registrations of the same mark for both Applicant’s services and the
services listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d at 1817
(finding pepper sauce and agave related where evidence showed both were used for
the same purpose in the same recipes and thus consumers were likely to purchase
the products at the same time and in the same stores).
Applicant’s services recited in the ANNIE’S DOODLES Application are “dog
breeding services” and “providing a web site featuring listings and photographs of
pets available for adoption and related information concerning pet adoption.” In
asserting the relatedness of Applicant’s services with the Registrant’s services, the
Examining Attorney focuses on the following portion of the services recited in the DR.
ANNIE’S Registration:
providing information and advice in the field of pet health; providing
information in the fields of animals and pet breeding, selection of the
animals and pets, grooming, health and nutrition; providing on-line
information via the Internet in the fields of animals and pets, relating
to breeding, selection of the animals and pets, grooming, feeding and
nutrition
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“because th[os]e services are [most] closely related in terms of their nature, purpose,
channel of trade, and class of purchasers.”15 On their face, we find the above-
described services of Applicant and Registrant overlap considerably and in part are
identical –particularly as to information services in the areas of pet breeding and
adoption.
As evidence of relatedness of certain other services, the Examining Attorney made
of record the screen captures of pages from the following websites demonstrating
overlapping services:16
• ROYAL BLUE GREAT DANES – diet and nutrition information; bred puppies
available for adoption.
• CROCKET DOODLES – information on suggested products for dogs’ nutrition,
treats and exercise; bred puppies available for adoption.
• FOREST CREEK KENNELS – information on dog nutrition; bred puppies
available for adoption.
• GORGEOUS DOODLES – bred puppies available for adoption; information
relating to breeding and selection of Australian Labradoodles.
“[T]he third-party webpages submitted by the Trademark Examining Attorney
show that [services] … such as [A]pplicant’s, and [services] … such as [R]egistrant’s,
can be [offered] … and sold by a single source[,]” In re Davey Prods. Pty Ltd., 92
USPQ2d 1198, 1203 (TTAB 2009), thus demonstrating their relatedness.
Applicant seeks to narrow the scope of protection provided by the registration of
the DR. ANNIE’S mark by asserting that the mark’s owner limits her use of the mark
to veterinary medicine, and that the other services “identified in the registration are

15 Examining Attorney’s Brief, 6 TTABVUE 10.
16 Website screen captures provided with Office Action of May 18, 2018 at TSDR 15-24.
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merely ancillary services offered in connection with the primary veterinary
services.”17 However, “[l]ikelihood of confusion must be determined based on an
analysis of the marks as applied to the … services recited in applicant’s application
vis-à-vis the … services recited in [a] …registration, rather than what the evidence
shows the… services to be.” In re Dixie Rests., 41 USPQ2d at 1534 (citing Canadian
Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed.
Cir. 1987)). Thus we cannot consider extrinsic evidence regarding the similarities
between Applicant’s services and Registrant’s services. See Octocom Sys., Inc. v.
Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Citing In re Coors, 68 USPQ2d at 1063, Applicant further argues that the evidence
of record, four websites, is insufficient to show that Applicant’s and Registrant’s
services are related because the four websites demonstrating the overlap are de
minimus in number.18 First, Applicant’s reliance on In re Coors is misplaced. In In re
Coors, the Federal Circuit found that the evidence of record was insufficient in light
of the requirement that “something more” must be shown to establish the relatedness
of food and restaurant products for purposes of demonstrating a likelihood of
confusion. Id. Here, “something more” is not required as the services identified in the
ANNIE’S DOODLES Application and the DR. ANNIE’S Registration are promoted
and offered in the overlapping and related fields of information services concerning

17 Applicant’s Brief, 4 TTABVUE 10. In seeking to narrow the scope of protection of the DR.
ANNIE’S registration, Applicant relies on a services brochure distributed by the mark’s
owner. See Office Action Response of October 16, 2018 at TSDR 193-195.
18 Applicant’s Brief, 4 TTABVUE 10-12; Applicant’s Reply Brief, 7 TTABVUE 8-9.
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pets, selection and adoption of pets, and dog breeding. Second, in addition to the
considerable overlap in services on the face of the ANNIE’S DOODLES Applicant and
DR. ANNIE’S registration, four websites are sufficient to show a relationship
between the involved services.
Based on the identification of services in the ANNIE’S DOODLES Application and
the DR. ANNIE’S Registration, and the third-party website evidence the Examining
Attorney made of record, we find the relatedness of the services, the second DuPont
factor, favors a finding of likelihood of confusion.
C. The Similarity or Dissimilarity of Trade
Channels and Classes of Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the services as they are identified in the application and the cited registration.
Octocom, 16 USPQ2d at 1787; Canadian Imperial Bank, 1 USPQ2d at 1815; Mini
Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1471 (TTAB 2016). Neither
Applicant’s application nor the cited registration contains any limitations as to trade
channels or classes of customers, and we may not read any limitations into them.
Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). Where,
as here, the services of both Applicant and the Registrant are in part identical, “it is
well established that, ‘absent restrictions in the application and registration …,
services are presumed to travel in the same channels of trade to the same class of
purchasers.’” In re Viterra Inc., 101 USPQ2d at 1908 (quoting Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)).
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We apply the presumption mentioned in In re Viterra for those services identified
above that are overlapping or legally identical. With regarding to the other services
which we have found to be related, we note the third-party website evidence
submitted by the Examining Attorney, discussed above. This evidence shows that the
services identified in Applicant’s application may be offered via the same virtual
marketplace (that is, on the same websites by the same entity) to all relevant classes
of purchasers, i.e., individuals interested in information on pet breeding, adoption
and care. Therefore, the respective services, as identified, would be provided in the
same or at least overlapping channels of trade to the same classes of purchasers.
Thus, similarity of trade channels and prospective purchasers, the third DuPont
factor, weighs in favor of a finding a likelihood of confusion.
D. The Conditions under Which and Buyers to whom Sales
are Made, i.e. “Impulse” v. Careful, Sophisticated Purchasing.
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014) (quoting DuPont, 177 USPQ at 567). Applicant argues:
In the present case the purchasers of Registrant’s services are
individuals seeking veterinary services for their family pets and the
purchasers of Applicant’s services are individuals seeking to buy
purebred dogs. In each instance, consumers are spending substantial
dollars and will undoubtedly be particular about the source of the
services sought. Both classes of purchasers are thus discerning, and thus
any possible confusion will be alleviated. 19

19 Applicant’s Brief, 4 TTABVUE 12.
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The Examining Attorney responds:
the fact that purchasers are sophisticated or knowledgeable in a
particular field does not necessarily mean that they are sophisticated or
knowledgeable in the field of trademarks or immune from source
confusion. (citations omitted). Further, where the purchasers consist of
both professionals and the public, the standard of care for purchasing
the goods is that of the least sophisticated potential purchaser.20
Applicant cites no support in the record for its contentions of buyer sophistication,
discerning purchasers or that respective services are particularly expensive.
Counsel’s arguments are not evidence, and we will not rely on them. See Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting
Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is no substitute for evidence.”)).
Even if we were to credit Applicant’s arguments based on the recitations of
services, precedent requires that we focus on the least sophisticated potential
purchasers of Applicant’s and the Registrant’s services. See Stone Lion, 110 USPQ2d
at 1163 (“Although the services recited in the application also encompass
sophisticated investors, Board precedent requires the decision to be based ‘on the
least sophisticated potential purchasers.’”). Moreover, even sophisticated purchasers
are not immune from source confusion, especially in cases such as this one involving
quite similar marks and related services. See In re Research Trading Corp., 793 F.2d
1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Works, Inc. v. Hardman &

20 Examiner’s Brief, 6 TTABVUE 12.
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Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories
even of discriminating purchasers ... are not infallible.”)).
We therefore consider the fourth DuPont factor, the conditions under which and
the buyers to whom sales are made, to be a neutral likelihood of confusion factor on
this appeal.
IV. Conclusion: Likelihood of Confusion
The first, second, third and sixth DuPont factors favor a finding of likelihood of
confusion. We treat the other DuPont factors as neutral. The Registrant’s mark is
inherently distinctive; its commercial strength is a neutral factor. The marks at issue
are similar in sound, appearance, connotation and commercial impression. The
respective services are related such that the marks would travel in overlapping trade
channels and be provided to the same or overlapping classes of purchasers. We
therefore find that Applicant’s mark ANNIE’S DOODLES, used in connection with
Applicant’s services, so closely resembles the registered mark DR. ANNIE’S as to be
likely to cause confusion, mistake or deception as to the source of Applicant’s services.
Decision
We note Applicant’s abandonment of its ANNIE’S DOODLES Application for the
goods in Class 18; its appeal involving International Class 18 is hence moot. The
refusal to register Applicant’s ANNIE’S DOODLES mark for the services in Classes
44 and 45 is affirmed.