Cachet Financial Solutions Inc.

Trademark Trial and Appeal Board

Feb 21, 2013

No. 77950367 (T.T.A.B. Feb. 21, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
February 21, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cachet Financial Solutions Inc.
_____

Serial No. 77950367
_____

Daniel A. Rosenberg of Briggs and Morgan, P.A. for Cachet Financial Solutions Inc.
Christopher L. Buongiorno, Trademark Examining Attorney, Law Office 102 (Karen
M. Strzyz, Managing Attorney).
_____

Before Zervas, Wolfson and Shaw, Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Cachet Financial Solutions Inc. (“applicant”) seeks registration on the
Principal Register of the mark shown below for the following services, as amended:
“financial services, namely, electronic remote check deposit services and remote
deposit capture services” in International Class 36.1

1 Application Serial No. 77950367 was filed on March 4, 2010, based on applicant’s
allegation of a bona fide intent to use the mark in commerce. The application includes
services in classes 39 and 42; however, the refusal is limited to applicant’s class 36 services
only.
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Serial No. 77950367

3

The Record on Appeal
The examining attorney has submitted the following evidence:
1. Copies of third-party registrations purporting to show
a relationship between the financial services offered by
registrant and those applied for by applicant;
2. Copies of web pages purporting to illustrate the
relationship of applicant’s services and those services
recited in the cited registration;
3. Dictionary definitions of the terms “solution” and
“cachet”;
4. Results of a Lexis search purporting to show that
“remote check deposit” services are available for mobile
technology such as smartphones, to support mobile
banking;
5. Copies of web pages from applicant’s website
advertising its services;
6. Entries from Wikipedia for “Automated Clearing
House” and “remote deposit.”
Applicant has submitted:
1. The declaration of Larry Blaney, applicant’s executive
Vice President of Sales and Marketing;
2. Copy of web pages from registrant’s website;
3. Copy of material from NACHA, the National
Automated Clearing House Association, downloaded from
www.nacha.org;
4. An article, dated April 9, 2001, entitled Automated
Clearing House, which discusses the Automated Clearing
House system; and
5. Copy of web pages from
http://remotedepositcaptiure.com, regarding the Remote
Deposit Capture (RDC) process.
Serial No. 77950367

4

Applicable Law
Our determination under Trademark Act Section 2(d) is based on an analysis
of the probative facts in evidence that are relevant to the factors bearing on a
likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); and In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 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., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976); see also, In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209
(TTAB 1999).
A. Comparison of the Marks
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression. Palm Bay, 73 USPQ2d
at 1692; 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 Company v. Gold Medal
Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, “there
Serial No. 77950367

5

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 a consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s mark is a combination of a design element and the words
CACHET FINANCIAL SOLUTIONS, with FINANCIAL SOLUTIONS disclaimed.
Registrant’s mark is the stylized word CACHET.
The dominant term in applicant’s mark is the arbitrary term, CACHET.
Unlike “financial solutions,” the word “cachet” has no descriptive meaning as
applied to financial services. It is defined as “a special quality that makes people
admire someone or something, or makes people want to have something.”3 To the
extent the mark implies that applicant’s services have a special quality that makes
people want to engage applicant, this is an arbitrary, or at worst suggestive,
meaning only. As for the term “financial solutions,” it merely describes a desired
attribute of applicant’s services, and has been disclaimed. It is well-settled that
disclaimed, descriptive or generic matter may have little or no significance in
likelihood of confusion determinations. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms,
this court has noted that the ‘descriptive component of a mark may be given little
weight in reaching a conclusion on the likelihood of confusion.’”), quoting In re Nat’l
Data Corp., 224 USPQ at 752; In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d

3 Definition found at www.macmillandictionary.com, attached to Office action dated March
16, 2011.
Serial No. 77950367

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1531, 1533-34 (Fed. Cir. 1997); and In re Code Consultants, Inc., 60 USPQ2d 1699,
1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”). Finally, while we recognize that the design
element in applicant’s mark is as least as large visually as the word CACHET in the
mark, it is well-established that “if a mark comprises both a word and a design, the
word is normally accorded greater weight because it would be used by purchasers to
request the goods or services.” M.C.I. Foods, Inc. v. Brady Bunte, 96 USPQ2d 1544,
1551 (TTAB 2010); In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). See
also CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“[I]n
a composite mark comprising a design and words, the verbal portion of the mark is
the one most likely to indicate the origin of the goods to which it is affixed.”).
Moreover, the design element comprises “two interlocking letter ‘C’’s about the
stylized word ‘CACHET’,”4 and to the extent consumers recognize the design
features as two interlocking letter “C”’s, they will likely perceive the design as
emphasizing the word CACHET as the dominant portion of the mark. See In re
Strathmore Prods., Inc., 171 USPQ 766, 767 (TTAB 1971) (stating that for
composite marks including a word and a design, which of the features dominates
the mark is usually controlling in determining likelihood of confusion).
As for the registration, it is similar in connotation and overall commercial
impression to applicant’s mark. The mark is clearly the word “cachet,” despite the
curvy, balloon-like lettering and emphasis on the oversized letters “ACH,” which

4 The description of the mark reads, in its entirety: The mark consists of two interlocking
letter "C"'s above the stylized word "CACHET", immediately below that term appears the
wording "FINANCIAL SOLUTIONS".
Serial No. 77950367

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suggests registrant’s “automated clearing house” or ACH, processing services.”5
Consumers will pronounce the mark as “cachet,” and not ACH, and will recall the
mark as “cachet.” Further, they will not ignore the letters C and ET. The meaning
of registrant’s mark is the same as applicant’s mark, that of suggesting a desirable
quality, or “cachet” that makes people want to use the services. Although visual
differences in the marks may be apparent when viewed side-by-side, the test, under
the first du Pont factor, is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial impression that confusion
as to the source of the goods offered under the respective marks is likely to result.
The focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Overall, we find the marks to be more similar than dissimilar in appearance,
sound, connotation, and commercial impression. Therefore, the first du Pont factor
supports a conclusion that confusion is likely.
B. Comparison of the Services
Applicant’s services are described in the application as “financial services,
namely, electronic remote check deposit services and remote deposit capture
services.” The registration covers “financial services, namely automated clearing
house processing services for the payroll service industry.” As can be seen, both
recitations cover financial services broadly; however applicant argues that there are

5 As discussed more fully infra, ACH is a known acronym for “automated clearing house.”
Serial No. 77950367

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considerable differences in the actual services and channels of trade. The
examining attorney counters that applicant’s services are not directed to any
particular segment within the financial industry, so that the limitation in the
registration to the “payroll service industry” does not insulate the services from
each other, and that both applicant’s and registrant’s services “achieve identical
solutions using the same network,” i.e., they “eliminate …the task of taking a
physical check to a financial institution to deposit.”6
The recitation of services for the registered mark is directed to automated
clearing house processing services. An automated clearing house, or ACH, “is an
electronic network for financial transactions in the United States [that] processes
large volumes of credit and debit transactions in batches.”7 Examples of credit
transactions include “direct deposit payroll and vendor payments.” Examples of
debit transactions include “consumer payments…and other kinds of bills.”8 “Debit
transfers also include new applications such as the point-of-purchase (POP) check
conversion pilot program sponsored by NACHA-The Electronic Payments
Association.”9 NACHA’s website further explains:
The ACH Network is a batch processing, store-and-
forward system, governed by The NACHA Operating
Rules, which provide for the interbank clearing of
electronic payments for participating depository financial
institutions. …ACH transactions are accumulated and
sorted by destination for transmission during a

6 Examining attorney’s appeal brief, p.6 (unnumbered).
7 Entry for “Automated Clearing House” from Wikipedia, at http://en.wikipedia.org,
accessed 10/12/2011; attached to Office action dated October 12, 2011, denying applicant’s
request for reconsideration.
8 Id.
9 Id.
Serial No. 77950367

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predetermined period. This provides significant
economies of scale … Instead of using paper to carry
necessary transaction information, ACH transactions are
transmitted electronically between financial institutions
through data transmission.”
An ACH transaction starts with a receiver, such as a retail consumer,
authorizing an originator, such as one’s employer, to issue an ACH debit or credit to
an account owned by the receiver. Registrant’s ACH services, which it provides to
the payroll service industry, include facilitating direct deposits of employees’
salaries and other payroll-related transactions such as collections and payroll tax
processing.
Applicant’s services are identified as remote deposit capture (“RDC”) and
remote check deposit. In its response to the first Office action, applicant attached a
copy of a page entitled “Remote Deposit Capture Overview” that explains:
Remote Deposit Capture, in its most simple terms, is a
service which allows a user to scan checks and transmit
the scanned images and/or ACH-data to a bank for
posting and clearing. The basic requirements for an RDC
service currently include a PC, an internet connection, a
check scanner and a service provider such as your current
bank. Checks you receive at your corporate or bank
location can be scanned to create a digital deposit. This
digital deposit is then transmitted (usually over an
encrypted internet connection) to your RDC bank or
service provider who then accepts the deposit, posts the
deposit to your account and assigns availability based
upon your availability schedule.10
As can be seen, remote deposit capture provides a user the ability to digitally
capture checks and transmit the captured image to a financial entity for posting

10 At www.remotedepositcapture.com, accessed 2/22/2011. Attached to applicant’s Petition
to Revive for Office Action, February 22, 2011.
Serial No. 77950367

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and clearing. The page from applicant’s website emphasizes applicant’s RDC
solutions, offering “the latest in RDC technologies and services, including: Business
Capture for PCs and Mac operating systems, Mobile RDC, Branch Capture, and
Remittance Processing.” Moreover, applicant’s declarant, Mr. Blaney, describes
applicant as an “RDC service provider.”
Applicant’s recitation also includes “electronic remote check deposit services,”
although Mr. Blaney does not directly discuss these services. The Wikipedia entry
submitted by the examining attorney explains:
Remote deposit refers to the ability to deposit a check into
a bank account from a remote location, such as an office
or home, without having to physically deliver the check to
the bank. … This service is typically used by businesses,
though a remote deposit application for consumers has
been developed. … [B]ecause the digital image of a check
is now considered a legal document, bank customers who
get paid with a check can scan an image of the check and
deposit it into their account from their home or office if
their bank supports doing so.11
Based on the Lexis excerpts submitted by the examining attorney, it appears
that there are mobile remote deposit applications for iPhones12 and that remote
check deposit services “are popular among health care providers who absorb ‘a high
number’ of checks as payments for patients’ services.”13

11 Attached to Office action dated October 12, 2011, denying applicant’s request for
reconsideration.
12 The entry reads: “The credit union said it is among the first in southeastern
Pennsylvania to offer the service, Freedom CU also recently launched remote check
deposits for iPhones.” Attached to Office action dated October 12, 2011, denying applicant’s
request for reconsideration.
13 Id.
Serial No. 77950367

11

In determining whether the services are related, the issue is not whether
consumers would confuse the services themselves, but rather whether they would
be confused as to the source of the services. See In re Rexel Inc., 223 USPQ 830
(TTAB 1984). The services need only be sufficiently related that consumers would
be likely to assume, upon encountering the services under similar marks, that they
originate from, are sponsored or authorized by, or are otherwise connected to the
same source. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney argues that remote deposit capture and remote
check deposit services are related to ACH processing services. In support, the
examining attorney has submitted third-party registrations, copies of web pages,
and Lexis records to demonstrate that ACH services and RDC services are related.
These include:
An excerpt from www.remotedepositcapture.com which
characterizes Remote Deposit Capture as “a service which
allows a user to … transmit … ACH-data to a bank for
posting and clearing.”
An article from “Cash Management” dated May 5, 2011,
entitled ACI Worldwide Receives ‘Success in Large-Bank
Market’ Award in Aite Group Cash Management Report
reports that “Enterprise Banker offers a full range of
functionality including balance and transaction reporting;
ACH and wire transfer origination and reporting; remote
check deposit; bill presentment and payment; and cash
concentration.”14
The Wikipedia entry defining “Automated Clearing
House” gives an example of how ACH works. In the

14 Attached to Office action dated October 12, 2011, denying applicant’s request for
reconsideration.
Serial No. 77950367

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example, “Bob’s Gift Shop, in its central office, turns the
check into an ACH transaction that it submits to its
bank….” (emphasis supplied). The entry further describes
a problem dealing with compliance, “where the merchant
presented with a check issues an ACH entry with SEC
Codes ARC or POP. However, the merchant then fails to
comply with the handling of the physical check and
presents the physical check for payment as well. This
causes a double-debit against a consumer account.”15
Web pages from the website of the United Bank Card
company, advertising a “better way to handle checks … if
you use our lockbox that converts checks received in
payment via mail and processes these payments through
the Automated Clearing House (ACH) network. In other
words, instead of going to a bank to deposit checks, the
checks are automatically sent through a payment
gateway (representative does not even have to leave the
office) where each payee’s account is debited.… If you’ve
got checks we have the ideal time-and-money-saving tool
for you. Our lockbox efficiently takes these paper
payments and transforms them to electronic checks to be
processed through the Automated Clearing House, a
federally regulated electronic payment network.16
Web pages from the website of Moody National Bank
advertises that Moody provides ACH services such as
collection and disbursement of funds and payroll deposits
as well as “a database of authorized checks on a CD that
are issued on a daily basis to be matched against checks
as they clear” the client’s account.17
Web pages from the website of First United Bank also
advertises “ACH Origination” services that include “direct
deposit of regularly recurring payments, such as
payroll”18 as well as “eMerchant Deposit,” which is
designed to enable businesses to “make deposits

15 At http://en.wikipedia.org, accessed 10/12/2011; attached to Office action dated October
12, 2011, denying applicant’s request for reconsideration.
16 At www.intelli-collect.com, accessed 6/8/2010; attached to Office action dated June 8,
2010.
17 At Google’s cache of http://www.moodybank.com as it appeared on March 6, 2011,
attached to Office action dated March 6, 2011.
18 At Google’s cache of http://www.firstunitedbank.com as it appeared on March 4, 2011,
attached to Office action dated March 6, 2011.
Serial No. 77950367

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electronically and immediately from the convenience of
your office or place of business.” To activate this service,
the merchant requires an “internet-enabled PC and a
check scanner supplied by us.” First United Bank also
provides an anti-fraud service to protect against
counterfeit checks and statements on CD-ROM that
include “front and back images of checks written and
items deposited.”19
Web pages from the website of the ADP, a payroll service
provider, offers payroll direct deposit services as well as a
traditional “payroll document for employees who prefer
traditional paychecks.”20
The examining attorney has, in addition, submitted copies of use-based,
third-party registrations covering both applicant’s and registrant’s services. Copies
of such registrations may serve to suggest that the goods are of a type which may
emanate from a single source. In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also, In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993). These include:
Reg. No. 3900940, for the mark MADE FOR ME
CHECKING, covering, inter alia: “banking services,
namely, direct deposit services, electronic interactive
banking services, financial information provided by
electronic means, financial management services,
financial clearing house services, financial guarantee
and surety services, financial valuation of personal
property and real estate, financial analysis and
consultation, financial forecasting services, financial
exchange services, financial portfolio management,
financial planning, financing services, financing for low
and moderate income persons, home equity loans,
providing Individual Retirement Accounts, providing Self
Employed Qualified Retirement Plans, internet banking
services, internet bill payment, lease-purchase financing,
lending services, namely, mortgage, consumer, retail and

19 Ibid.
20 At http://www.adp.com, accessed 3/16/11; attached to Office action dated March 16, 2011.
Serial No. 77950367

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commercial loans, loan financing, money market account
services, night deposit box services, providing financial
information in the nature of rates of exchange, remote
deposit services, rent security accounts, safe deposit box
services, savings account services, telephone banking
services, wire transfer services of money, information
services for all of the foregoing provided via a global
computer network; financial advice and brokerage
services in connection with Individual Retirement
Accounts”;21
Reg. No. 3685444 for the mark , covering,
inter alia: “electronic remote check deposit services”
and “relationship banking services that offer customers
the opportunity to receive a variety of money saving,
wealth accumulation and convenience features, namely,
free online banking, online bill paying, cash management
services, including account reconciliation, agent deposit
reporting, automated clearing house, controlled
disbursement, financial electronic data interchange
reporting, wire transfers and zero balance accounts for
manufacturing, distribution, wholesale, retail, and service
entities and others”;22 and
Reg. No. 3622069, for the mark GET THERE FROM
HERE, covering: “Banking and financial services,
namely, commercial lending, commercial real estate
lending, mortgage lending, personal banking and private
banking; banking and financial services, namely, treasury
management services in the nature of remote deposit
capture, information access and reporting, Automated
Clearing House transactions and sweep accounts.”23
These examples show that ACH data may be transmitted via RDC, that a
financial entity may provide both ACH and RDC services, and that ACH
transactions may involve a physical check that is digitally scanned, or truncated, for
submission as an ACH transaction. Applicant argues that merely because RDC

21 Registered January 4, 2011.
22 Registered September 22, 2009.
23 Registered May 19, 2009.
Serial No. 77950367

15

transactions utilize the ACH network does not establish a connection between them
such that purchasers will believe a single company provides both the services of
remote check capture and the services of processing debits and credits over the ACH
network. “ACH could be used for RDC services; however, as an infrastructure the
use of ACH is no more evidence of the relationship between services than is the use
of the internet to provide two services.”24 Applicant relies on its assertion that an
ACH transaction is “paperless,” whereas an RDC transaction requires a paper
check. However, the record evidence shows that ACH transactions may involve
paper checks that are scanned to create digital images. For example, Moody
National Bank’s website indicates that Moody National Bank uses ACH for the
automated recovery of consumer checks that have been returned for non-sufficient
funds, and “electronically re-presents a paper check to the consumer’s financial
institution via the Automated Clearing House network.”25 These references suggest
that ACH processing is not entirely “paperless.”
Even assuming, arguendo, that the ACH network is paperless, the essential
purpose of applicant’s services is to facilitate the link between paper checks and the
ACH network (or a similar network) by converting these paper checks into an
electronic form that would be acceptable to the ACH network or which would be in
an ACH-compatible format. Thus, at a minimum, applicant’s services are
complementary to registrant’s services. If goods or services are complementary in
nature, such that they are likely to be used together, this relatedness can support a

24 Applicant’s Brief, p. 14.
25 Ibid.
Serial No. 77950367

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finding of likelihood of confusion. See, e.g., In re Martin's Famous Pastry Shoppe,
223 USPQ at 1290.
C. Classes of Consumers; Trade Channels; Sophistication
Applicant further argues that registrant’s market is directed exclusively to
the payroll industry, and that payroll services and RDC services are “mutually
exclusive non-competitive services, because payroll services like direct deposit are
created to eliminate the live check that is a necessary prerequisite for any RDC
service.”26 Applicant has submitted copies of third-party registrations purporting to
show no affiliation between providers of remote deposit capture services and
companies that process payroll transactions or provide other payroll services. The
records are for the most part of little value inasmuch as many are for marks
belonging to applicant, many are partial records only or have been abandoned, and
many are pending applications, which are evidence only that the applications were
filed on a certain date; not evidence of use or that the marks, in fact, co-existed.
Nike Inc. v. WNBA Enterprises LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); see
also, In re Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694, 1699 (TTAB 1992).
The remaining registrations, as applicant argues, do cover “remote deposit capture”
or “remote checking deposit services” without also covering “payroll services” or
“direct deposit,” but two of them (owned by a single entity) also cover “automated
clearinghouse services.”27 Moreover, another registration covers “banking services

26 Ibid.
27 Reg. No. 3622069, discussed supra, and Reg. No. 3907242, registered January 18, 2011
for the mark MUTUAL OF OMAHA BANK, for “Banking and financial services, namely,
commercial lending, commercial real estate lending, mortgage lending, personal banking
Serial No. 77950367

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for small businesses,” which recitation is broad enough to include offering direct
deposit banking services.28 These third-party registrations fail to demonstrate lack
of a relationship between RDC or remote check deposit on the one hand and ACH
processing on the other.
Further, it is well-settled that the question of likelihood of confusion must be
determined based on an analysis of the services recited in applicant’s application
compared with the services identified in the cited registration, and that the
comparison of the services is based on the services as they are identified in the
application and registration, without limitations or restrictions that are not
reflected therein. Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002); see also, In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1690 n. 4 (Fed. Cir. 1993); and TMEP § 1207.01(a)(iii) (Oct. 2012).
Although registrant’s services may be solely directed to the payroll industry and not
to another industry such as the banking industry, applicant’s recited services are
not limited to any particular industry. We must therefore presume that they are
directed to all relevant industries, including the banking and payroll processing
industries. See, In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB
1986) (“It is well settled that in a proceeding such as this, the question of likelihood

and private banking; banking and financial services, namely, treasury management
services in the nature of remote deposit capture, information access and reporting,
automated clearing house transactions and sweep accounts.”
28 Reg. No. 3492088 for the mark SMALL BUSINESS IS OUR ONLY BUSINESS,
registered August 26, 2008 for “Banking services for small businesses; on-line banking
services; financial services for small businesses, namely, loan financing, credit cards,
checking accounts, saving accounts, debit cards, remote deposit capture, on-line banking
and bill payment.”
Serial No. 77950367

18

of confusion must be determined by an analysis of the marks as applied to the goods
identified in the application vis-a-vis the goods recited in the registration, rather
than what extrinsic evidence shows those goods to be.”). Moreover, applicant’s
declarant, Mr. Blaney, attests that “the financial entities or service provide[r]s that
use RDC services are typically commercial banks, credit unions, payday lenders,
check cashing companies, and the like”29 and that applicant’s customers are
“multinational banks, credit unions, commercial check processors such as payday
lenders and the like.”30 As has been shown, commercial banks may offer direct
deposit services. A bank’s purchasing agent for direct deposit payroll processing
may likely be the same accountant or similar functionary who would also process
checks via applicant’s RDC system. There is an overlap in trade channels for the
applicant and registrant’s services.
Turning to the factor of purchaser sophistication, applicant argues that its
customers are “highly sophisticated financial entities or service providers,” that its
services are expensive and complicated; and that registrant’s customers are also
sophisticated and its services “technically complex and expensive.”31 In this case,
the record supports applicant’s position that the relevant class of buyers are likely
to be sophisticated and exercise more than an ordinary degree of care. Mr. Blaney
attests that applicant’s services cost “hundreds of thousands or millions of dollars
annually for each client”; and that they are provided “through long-term contractual
relationships [that are] the product of lengthy evaluations, negotiation, and

29 Blaney Decl., p. 1.
30 Id,, p. 2.
31 Applicant’s Brief, pp. 16-17.
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development processes.”32 Accordingly, we find that this du Pont factor favors
applicant. On the other hand, the du Pont factors considering the relatedness of the
services, channels of trade, and classes of consumers to whom the services are
directed weigh in favor of a finding of likelihood of confusion.
D. Balancing the factors.
We have carefully considered applicant’s arguments and all of the evidence of
record as it pertains to the relevant du Pont factors, even if not specifically
discussed herein. Although we consider that the purchasers are likely to be
sophisticated and exercise more than ordinary care, the other du Pont factors weigh
in favor of a finding of likelihood of confusion. Even consumers who exercise a
higher degree of care are not necessarily knowledgeable regarding the trademarks
at issue, and therefore immune from source confusion. In re Wilson, 57 USPQ2d
1863, 1865-66 (TTAB 2001); In re Decombe, 9 USPQ2d 1812, 1814-1815 (TTAB
1988) (“Being knowledgeable and/or sophisticated in a particular field does not
necessarily endow one with knowledge and sophistication in connection with the use
of trademarks.”). The marks are confusingly similar in their dominant component,
the term CACHET, which is arbitrary in relation to the services. The services
perform similar or closely-related functions concerning the digital imaging of
checks, and are likely to move in similar trade channels. For these reasons, the
balance of factors tips in favor of a finding of likelihood of confusion. To the extent
any doubt remains, we are guided by our well-established precedent that requires
resolution of this matter in favor of the prior registrant. See In re Cook Medical

32 Blaney Decl., pp. 2-3.
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Technologies LLC, 105 USPQ2d 1377, 1384 (TTAB 2012); In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin's
Famous Pastry Shoppe, 223 USPQ at 1290 (“To the extent that any doubts may
remain, it is proper that they be resolved in favor of the prior registrant.”).
Decision: The refusal to register is affirmed.