Brian Meneely

Trademark Trial and Appeal Board

Jul 26, 2017

No. 86751019 (T.T.A.B. Jul. 26, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 26, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Brian Meneely
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Serial No. 86751019
_____

Louis W. Emmi, Esq.
for Brian Meneely.

Philip Liu,1 Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
_____

Before Kuhlke, Wellington, and Gorowitz,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Brian Meneely (“Applicant”) seeks registration on the Principal Register of the
mark HIGH R. POWER, in standard character format, for “audio and video
recordings featuring music and artistic performances” in International Class 9.2

1 The application was reassigned from Examining Attorney Gina M. Fink to Examining
Attorney Philip Liu for purposes of the appeal.
2 Application Serial No. 86751019 was filed on September 9, 2015, based on an allegation of
a bona fide intent to use the mark in commerce under Trademark Act Section 1(b).
Serial No. 86751019
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The Trademark Examining Attorney has refused registration of Applicant’s mark
on the ground of a likelihood of confusion under Section 2(d) of the Trademark Act,
15 U.S.C. §1052(d), in view of the registrations, owned by the same entity, for the
marks HIGHER POWER, in standard character format, and for:
Entertainment in the nature of visual and audio performances, namely,
musical group performances; entertainment in the nature of a musical
group; entertainment, namely, live performances by a musical group;
entertainment services, namely, providing music performances, musical
videos, related film clips, photographs, and other multimedia materials on
a global computer network; presentation of musical performances;
entertainment services in the nature of production and distribution of
video and/or audio programs featuring musical performances” in
International Class 41.3

When the refusal was made final, Applicant appealed. The appeal has been
briefed. For the following reasons, we affirm the likelihood of confusion refusal.
I. Preliminary Matters
Before addressing the merits of the refusal to registration, we note the following
issues raised in the Examining Attorney’s appeal brief.
Applicant’s Brief Exceeds 25 Page Limit
The Examining Attorney raised an objection in his brief4 to excessive length of
Applicant’s brief, namely, that it is 31 pages long and exceeds the 25-page limit set

3 Registration Nos. 3504577 (standard character mark) and 3504580 (stylized mark) issued
on September 23, 2008; Section 8 and 15 affidavits have been acknowledged and accepted
for each registration.
4 6 TTABVUE 5.
Serial No. 86751019
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forth by Trademark Rule 2.142(b)(2) (“Without prior leave of the Trademark Trial
and Appeal Board, a brief shall not exceed twenty-five pages in length in its entirety,
including the table of contents, index of cases, description of the record, statement of
the issues, recitation of the facts, argument, and summary”); see also, TBMP §
1203.01 (June 2017) (Form of Brief). Applicant did not file a reply brief or otherwise
respond to this objection and, reviewing Applicant’s brief, we agree that it exceeds
the page limit.
In view thereof, we have not considered Applicant’s appeal brief. See In re Thomas,
79 USPQ2d 1021, 1023 (TTAB 2006) (Board refused to consider applicant’s 29-page
brief). In spite of Applicant’s failure to file a conforming appeal brief, we do not treat
this as a failure to file a brief which would result in the dismissal of the appeal.5
Rather, we consider the appeal on the merits and record before us.
Evidentiary Objections
The Examining Attorney also objects to Applicant’s mere listing of third-party
registrations, without attaching copies thereof, in his appeal brief.6 Inasmuch as we
are not considering Applicant’s brief, as discussed supra, the objection is moot.
However, we note that Applicant previously provided the same list of third-party

5 The fact we have not considered Applicant’s brief is of little consequence in reaching our
decision in this appeal since Applicant’s response (filed June 24, 2016) to the first Office
Action contains many, if not all, of the arguments set forth in his brief. As noted infra,
Applicant’s response is part of the record.
6 6 TTABVUE 4.
Serial No. 86751019
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registrations in his response to the first Office action.7 The then-assigned examining
attorney responded by giving the following advisory:8
The Applicant attached a listing of “HIGHER POWER” (or close
approximations), but failed to attached the actual third-party
registrations. The Examining Attorney objects to this format, as the
registrations are required to be attached as evidence.

Applicant has submitted a list of registrations. However, the mere
submission of a list of registrations or a copy of a private company search
report does not make such registrations part of the record. In re Promo Ink,
78 USPQ2d 1301, 1304 (TTAB 2006); TBMP §1208.02; TMEP §710.03.

To make third party registrations part of the record, an applicant must
submit copies of the registrations, or the complete electronic equivalent
from the USPTO’s automated systems, prior to appeal. In re Jump Designs
LLC, 80 USPQ2d 1370, 1372-73 (TTAB 2006); In re Ruffin Gaming, 66
USPQ2d, 1924, 1925 n.3 (TTAB 2002); TBMP §1208.02; TMEP §710.03.

There was ample time between Applicant receiving this information and the filing
of his appeal for him to correct the situation, namely, properly and timely introduce
copies of third-party registrations. See Rule 2.142(d) (allowing evidence to be
introduced up to the filing of appeal); and TBMP § 1207 (Submission of Evidence
During Appeal). Applicant did not filed copies of the registrations. Accordingly,
Applicant’s list of the third-party registrations contained in his response is not
considered. See TBMP § 1208.02.
Finally, the Examining Attorney objects to Applicant’s “references to website
links” and asserts that “providing only a web address and/or hyperlink to Internet

7 Response filed June 24, 2016.
8 Office Action issued on July 15, 2016.
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materials is insufficient to make the associated webpages of record.”9 The Examining
Attorney is correct and the objection is sustained. See TBMP § 1208.03 (involving
Internet evidence). The URL addresses have little, if any, probative value and we
have disregarded any characterization of or reliance upon the information that may
be contained on the corresponding website(s).10
II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also, In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, however, two key considerations are
the similarities between the marks and the similarities between the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Similarity of the Marks
We begin by comparing the two marks in their entireties and, in doing so, look to
their appearance, sound, connotation and commercial impression. Palm Bay Imports,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005).

9 6 TTABVUE 4.
10 In particular, we note Applicant’s reliance on a website link in his response filed on June
24, 2016; TSDR p. 21.
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Here, we find the marks are extremely similar visually. Although Applicant’s
mark is broken into three elements (versus Registrant’s two terms), all marks
comprise the same letters in the same order except for Applicant deleting the letter
E from HIGHER. As to Registrant’s stylized mark, it is only slightly stylized and we
must keep in mind that Applicant’s standard character mark can appear in any
stylization, including one identical to Registrant’s. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Morinaga Nyugyo Kabushiki Kaisha,
120 USPQ2d 1738, 1742-43 (TTAB 2016).
With respect to the aural similarities of the marks, there is no correct
pronunciation of a mark and any preferred pronunciation by Applicant “cannot be
relied upon to avoid a likelihood of confusion.” In re Lamson Oil Co., 6 USPQ2d 1041,
1042 n.3 (TTAB 1987). See also In re Viterra, 101 USPQ2d 1912. While there is the
possibility of a slight difference in pronunciation should Applicant’s mark be spoken
very slowly with the letter R enunciated separately; this would require considerable
effort and, generally, persons verbalizing marks do not take this extra time with a
purposeful attempt to clearly enunciate every single element. It is far more likely that
all marks will be spoken with little, if any, discernible differences to the ear. This can
be especially problematic when consumers are recalling or referring to the marks over
the telephone without the benefit of viewing them.
In terms of their meaning, because Applicant’s mark is the phonetic equivalent,
or a mere misspelled version, of the wording HIGHER POWER, it will be understood
in the same manner as the registered marks. The substitution of the R. in Applicant’s
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mark for the –ER ending, following HIGH, has no demonstrated significance and does
not change this meaning. The Examining Attorney submitted a printout from
Wikipedia defining the term as “coined in the 1930’s in Alcoholics Anonymous (AA)
and is used in other twelve-step programs. It is also sometimes referred to as a power
greater than ourselves and is frequently abbreviated as HP. The term sometimes
refers to a supreme being or deity, or some conception of God.”11 The marks have the
connotation and create the same commercial impression, namely, either suggesting
an affiliation with AA or evoking a “higher power,” such as a god or religious figure.
In view of the strong similarity between the marks, this du Pont factor weighs in
favor of finding a likelihood of confusion.
Relatedness of Applicant’s Goods and Registrant’s Services
We turn now to the du Pont factor involving the relatedness of goods and services.
It is settled that in making our determination, we must look to the goods as identified
in the application vis-à-vis the services recited in the cited registrations. See Octocom
Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). The
issue is not whether consumers would confuse the goods and services, but rather
whether they would be confused as to the source of the goods and services. Paula
Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The goods and services need
only be sufficiently related that consumers would be likely to assume, upon

11 Attached to December 26, 2015 Office Action.
Serial No. 86751019
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encountering the goods and services under similar marks, that the goods and services
originate from, are sponsored or authorized by, or are otherwise connected to the
same source. In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ
1289, 1290 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991);
In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
To show that audio and video recordings featuring music and entertainment in
the nature of musical group performance services and are related, the Trademark
Examining Attorney submitted ten use-based, third-party registrations which
individually cover both musical recordings, like Applicant’s, as well as musical
entertainment services, like Registrant’s.12 These registrations are probative because
they suggest that the goods and service are of a type which may emanate from the
same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB
1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
Indeed, the Examining Attorney submitted Internet evidence showing that various
well-known artists, such as Ariana Grande, Madonna, Bruce Springsteen, Prince,
The Rolling Stones, Arcade, Neil Young, Jay Z, Radiohead, Jack White, and Rage
Against The Machine, provide audio and video recordings featuring music and artistic
performances as well as live performances and markets the goods and services under
the same mark.13

12 Id.
13 Attached to July 15, 2016 Office Action.
Serial No. 86751019
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Consumers seeing the service mark of musical performers on the cover of musical
sound recordings would understand that the mark identifies the performer of the
music on the sound recording and will also believe that the performers are the source
of the musical sound recording. That is, a consumer already familiar with the
entertainment services of a musical act may, upon encountering musical recordings
bearing a similar mark, mistakenly believe that the recordings involve the same
musicians.
Accordingly, we find that musical sound recordings and musical group
entertainment services are closely related and this du Pont factor also weighs in favor
of finding a likelihood of confusion.
Other Factors and Conclusion
We have reviewed the entire record properly before us in this appeal, including
arguments set forth by Applicant in his response to the first Office action.14 Although
Applicant made arguments with regard to certain du Pont factors that are not
addressed above, there is no relevant evidence to support these arguments. For
example, Applicant argues that the Examining Attorney “did not indicate that actual
confusion was a factor in her assessment of Applicant’s mark” and that “Applicant
has used the name ‘High R. Power’ for two years, without any apparent mix-ups with
‘Higher Power’ listed under the Registrant’s name.”15 Applicant then concludes that

14 Filed June 24, 2016.
15 Id. at p. 29.
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“these factors tilt in favor of Applicant.”16 We disagree with Applicant’s conclusion
and point out that the involved application is not based on use in commerce. More
importantly, there is no evidence to support Applicant’s assertions. The Federal
Circuit has offered the following regarding the weight to be given to an assertion of
no actual confusion by an applicant in an ex parte proceeding:
With regard to the seventh DuPont factor, we agree with the Board that
Majestic’s uncorroborated statements of no known instances of actual
confusion are of little evidentiary value. See In re Bissett-Berman Corp.,
476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-
serving testimony of appellant's corporate president's unawareness of
instances of actual confusion was not conclusive that actual confusion did
not exist or that there was no likelihood of confusion). A showing of actual
confusion would of course be highly probative, if not conclusive, of a high
likelihood of confusion. The opposite is not true, however. The lack of
evidence of actual confusion carries little weight, [citation omitted],
especially in an ex parte context.

Majestic Distilling, 65 USPQ2d at 1205; see also In re Integrated Embedded, 120
USPQ2d 1504, 1515 (TTAB 2016).
Accordingly, we weigh the du Pont involving instances of actual confusion and all
other factors for which there is no evidence of record, as neutral in our overall
likelihood of confusion analysis.
Ultimately, in view of the very strong similarity between Applicant’s applied-for
mark HIGH R. POWER and the registered mark, HIGHER POWER (in standard
characters and stylized), and the demonstrated close relationship between
Applicant’s audio and video recordings featuring music and artistic performances and

16 Id. at p. 30.
Serial No. 86751019
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Registrant’s musical group performance entertainment services, we conclude there is
a likelihood of confusion between them.
Decision: The refusal to register Applicant’s mark HIGH R. POWER is affirmed.