Clarity Telecom, LLC

Trademark Trial and Appeal Board

Aug 12, 2016

No. 86457631 (T.T.A.B. Aug. 12, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: August 12, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
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In re Clarity Telecom, LLC
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Serial No. 86388395
Serial No. 86388506
Serial No. 86457631
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Sam Gunn of Alston & Bird LLP, for Clarity Telecom, LLC.

Brin Anderson Desai, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____

Before Cataldo, Lykos and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Clarity Telecom, LLC (“Applicant”) seeks registration on the Principal Register of
the following marks:
VAST (in standard characters),1

1 Application Serial No. 86388395 was filed on September 8, 2014, based upon Applicant’s
allegation of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act.
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,2 and

VAST IS FAST (in standard characters),3
all for the following services:
Cable television transmission services; Telecommunications
services, namely, voice, video and data transmissions via
broadband networks; Telephony communication services in
International Class 38.
The Trademark Examining Attorney refused registration of the three applications
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles two previously registered marks, set forth below,
owned by the same entity, as to be likely to cause confusion, mistake or deceive: 4

2 Application Serial No. 86388506 was filed on September 8, 2014, based upon Applicant’s
allegation of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act; BROADBAND disclaimed. Color is not claimed as a feature of the mark.

Applicant has described the mark as follows: “The mark consists of a stylized letter ‘V’
consisting of three separate wavy lines. To the right of the ‘V’ is the word ‘VAST’ in large
lowercase letter [sic] stacked on top of the term ‘BROADBAND’ in smaller capital letters.”

3 Application Serial No. 86457631 was filed on November 18, 2014, based upon Applicant’s
allegation of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act.
4 The Examining Attorney also cited Registration No. 3769611 for the mark
(owned by another entity), but this Registration was cancelled
under Section 18, 15 U.S.C. § 1068, on June 13, 2016.
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5
VAST NETWORKS (in standard characters).6
Both registrations are for the following services:
providing communications connections and transfer of data,
voice, video and other information via a fiber optic-based network,
in International Class 38.

When the refusals in all applications were made final, Applicant appealed and
requested reconsideration in each application. After the Examining Attorney denied
the requests for reconsideration, the appeal was resumed. We affirm the refusals to
register.
I. Proceedings Consolidated
When, as here, Applicant has filed ex parte appeals to the Board in three co-
pending applications, and the cases involve common issues of law or fact, the Board,
upon request by the Applicant or Examining Attorney or upon its own initiative, may
order the consolidation of the appeals for purposes of briefing, oral hearing, and/or
final decision. See In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (Board sua
sponte consolidated two appeals); In re Country Music Association, Inc., 100 USPQ2d

5 Registration No. 4415363 issued October 8, 2013; NETWORKS disclaimed. The colors black,
green, red, blue and orange are claimed as a feature of the mark. The application includes a
description of the mark: “The mark consists of the word ‘VAST’ appearing above the word
‘NETWORKS’, both in black, with a stylized asterisk or starlike symbol made up of
overlapping V-shapes in green, red, blue and orange.”
6 Registration No. 4415364 issued October 8, 2013; NETWORKS disclaimed.
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1824, 1827 (TTAB 2011) (same). In this case, the marks in the involved applications
are similar, the services are identical, the refusal to register the three marks is based
upon the same registrations, and the appeals are presented on essentially identical
records.7 Accordingly, the Board consolidates these appeals. References to the record
and briefs refer to Application Serial No. 86388395 unless otherwise indicated.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. 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, two key considerations are
the similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). These factors, and the other relevant du Pont factors now
before us, are discussed below.
In this case, we confine our analysis to the issue of likelihood of confusion between
Applicant’s marks and the mark in Registration No. 4415364, which is the mark
VAST NETWORKS (in standard characters), for services identified in the
registration as “providing communications connections and transfer of data, voice,
video and other information via a fiber optic-based network.” A finding of likelihood
of confusion between Applicant’s marks and this previously-registered mark suffices

7 Application Serial No. 86388506 includes a definition for “broadband” in the record.
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by itself to bar registration of Applicant’s marks under Section 2(d); we need not find
likelihood of confusion as to all of the cited registrations. See In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010); In re Davey Products Pty Ltd., 92 USPQ2d
1198, 1201 (TTAB 2009).
A. The number and nature of similar marks in use on similar services
We first consider Applicant’s argument that Registrant’s mark is commercially
weak as a result of third-party registrations and use of similar marks for related
goods and services. Applicant argues that the term “vast” is weak and/or diluted and
entitled to a narrow scope of protection due to common use of the term “in connection
with computers, communications networks, and other products and services in the
digital realm.”8 In support of this contention, Applicant submitted in its response to
the first Office Action third-party registrations which incorporate the term “vast” that
identified computer hardware, software, accessories, or related computer or
information technology goods or services.9 On reconsideration, Applicant provided
two additional third-party registrations, one of which related to electronic delivery of
images, photographs, art, graphic images and designs, animation, video, film, and
audio data via a global computer network, and the other which related to providing
private virtual network services.10 For the most part, these third-party registrations
do not identify the Class 38 services of either Applicant or Registrant, and only the

8 7 TTABVUE 9-13.
9 June 30, 2015 Response to Office Action pp. 2-13.
10 4 TTABVUE 21-22.
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two third-party registrations provided on reconsideration are somewhat related to
Applicant’s and Registrant’s telecommunication services. Applicant also provided
some evidence of actual use of the term “vast” in connection with academic online
video, professional video central management software for managing surveillance
products, video technology to facilitate and improve communication for speech-
impaired individuals, IT consulting, unified communications and online marketing
services, digital marketing consulting, online marketing campaign management,
marketing analytics and e-commerce web design. Like the third-party registrations,
these services are not similar to the telecommunications services provided by both
Applicant and Registrant.
These third-party registrations and website print-outs tell us little about any
putative suggestive meaning that the term “vast” might have among customers of
Applicant and Registrant’s telecommunication services because the third-party
services are not in the relevant industry. This evidence differs from the evidence
provided in Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015) and
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir.
2015), where the third-party registrations involved the very same goods and services
at issue. Although weakness may be shown by extensive use on similar, as well as
identical goods and services, we do not find that the goods and services in these third-
party registrations or the website printouts showing use of the term “vast” are
sufficiently similar to those of Applicant and Registrant to illustrate that the term
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has suggestive meaning in the context of Applicant’s and Registrant’s services. To the
extent some of this evidence showing use of “vast” in connection with certain goods or
services may be considered closely related to the relevant industry, we find there is
not sufficient evidence to establish that “vast” is weak. See e.g., In re Mr. Recipe, LLC,
118 USPQ2d 1084, 1089 (TTAB 2016) (one registered mark not sufficient evidence to
show term diluted for purposes of determining strength of mark). We find that
Applicant has not demonstrated that “vast” is a weak term as applied to the services
at issue in this appeal and this du Pont factor is neutral.
B. The similarities or dissimilarities between the marks in their entireties,
in terms of appearance, sound, connotation and commercial impression
We turn next to the du Pont factor focusing on the similarity or dissimilarity of
the marks in their entireties as to 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, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). “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.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). 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,
108 (TTAB 1975).
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Our analysis cannot be predicated on dissection of the involved marks. Stone Lion
Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014). Rather, we consider the marks in their entireties. Id. 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.”).
Nonetheless, 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 a consideration of the marks in their entireties. Stone Lion, 110
USPQ2d at 1161. For instance, as our principal reviewing court has observed, “[t]hat
a particular feature is descriptive or generic with respect to the involved goods or
services is one commonly accepted rationale for giving less weight to a portion of the
mark.” See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
VAST, Application Serial No. 86388395
While acknowledging that both Applicant’s mark and the registered mark contain
the term VAST, Applicant argues that consumers will be able to distinguish the
marks by the addition of the term NETWORKS in Registrant’s mark. We find that
VAST is the dominant portion of Registrant’s VAST NETWORKS mark. The
disclaimed word NETWORKS in Registrant’s mark is descriptive, if not generic, of
Registrant’s fiber-optic based network services. See, e.g., In re Dixie Rests., Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed
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generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE).
Applicant’s VAST mark incorporates in its entirety the dominant portion of
Registrant’s mark. We find that Applicant’s VAST mark and the dominant portion of
Registrant’s VAST NETWORK mark are similar in sound, appearance, connotation
and commercial impression.11 Moreover, likelihood of confusion is often found where
the entirety of one mark is incorporated within another. The Wella Corp. v. California
Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA
CONCEPT and surfer design for men’s cologne, hair spray, conditioner and shampoo
is likely to cause confusion with the mark CONCEPT for cold permanent wave lotion
and neutralizer); Coca-Cola Bottling Co. v. Seagram & Sons, Inc., 526 F.2d 556, 188
USPQ 105, 106 (CCPA 1975) (BENGAL LANCER and soldier design for club soda,
quinine water and ginger ale is likely to cause confusion with BENGAL LANCER for
gin); In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972)
(WEST POINT PEPPERELL and griffin design for fabrics is likely to cause confusion
with WEST POINT for woolen piece goods). Because we have found that the term
VAST is the dominant element of the registered mark, the descriptive or generic word
NETWORKS in Registrant’s mark does not distinguish Applicant’s mark from the
registered mark. We find that the marks have similar overall commercial
impressions.

11 The Examining Attorney has included a definition of “Vast” which is defined as “of very
great extent or quantity, immense.” December 30, 2014 Office Action p. 10. Oxford dictionary,
www.oxforddictionaries.com. Applicant has not argued that the term VAST in its marks has
a different meaning from that of Registrant’s mark. The Examining Attorney argued, in
regard to the marks, that VAST describes the “great extent of the breadth of the
transmission.” December 30, 2014 Office Action, p. 1.
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and VAST IS FAST, Application Serial Nos. 86388506 and 86457631
With regard to Applicant’s marks and VAST IS FAST and
Registrant’s mark VAST NETWORKS, Applicant acknowledges that the marks share
the term VAST. However, Applicant contends that due to the additional terms or
elements, namely, the letter “V”, the term BROADBAND and the stylization of VAST
BROADBAND in Applicant’s mark, and the additional terms IS FAST
in Applicant’s VAST IS FAST mark, as well as the term NETWORKS in Registrant’s
mark, consumers will be able to distinguish the marks.
As stated previously, VAST is the dominant portion of Registrant’s mark VAST
NETWORKS mark due to the disclaimed descriptive or generic term NETWORKS.
Similarly, VAST is the dominant term in Applicant’s mark due to the
disclaimed term BROADBAND, which is descriptive, if not generic, of Applicant’s
telecommunication services provided via a broadband network.12 We further note
that VAST is also displayed more prominently than BROADBAND in the mark, in

12 As indicated at n.7, the Examining Attorney included the definition of broadband which is
identified as “a type of connection to the Internet that allows you to receive or send a lot of
information very quickly.” Macmillan Dictionary, www.macmillandictionary.com. December
30, 2014 Office Action, p. 50, Application Serial No. 86388506.
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much larger type. Although Applicant’s mark includes a highly
stylized letter “V,” it cannot be presumed that it would be perceived by consumers as
a letter “V” as it is in the gray area between a pure design mark which cannot be
vocalized and a term which would readily be identified as a letter. Cf. Georgia-Pacific
Corp. v. Great Plains Bag Co., 614 F.2d 757, 204 USPQ 697, 699 (CCPA 1980) (“It
must be remembered that [the] trademark consists of highly stylized letters and is
therefore in the gray region between pure design marks which cannot be vocalized
and word marks which are clearly intended to be.”). We further note that when a
mark consists of a word portion and a design portion, the word portion is more likely
to be impressed upon a purchaser’s memory and to be used in calling for the goods.
In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987).
To the extent that Applicant argues the stylization sufficiently distinguishes its
mark from that of the cited registration, VAST NETWORKS, we do
not find the stylized lettering of Applicant’s mark to be so distinctive that its mark is
distinguishable from the registered mark on this basis. Because the registered mark
is presented in standard characters, it could at any time be displayed in a manner
similar to Applicant’s mark, as Registrant is not limited to any particular depiction
of its mark and is entitled to all depictions regardless of the font, style, size, or color.
In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1909-10 (Fed. Cir. 2012); Citigroup
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Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed.
Cir. 2011).
With regard to the slogan VAST IS FAST, we find the term VAST to be the
dominant portion of Applicant’s mark, despite its presence in a slogan, rather than
in a simple word mark. Although the additional wording IS FAST cannot be ignored,
that wording is suggestive of the speed of Applicant’s broadband services, and has
less source-identifying significance than the term VAST to which it refers. We find
that the first term VAST in Applicant’s VAST IS FAST mark is the most memorable
portion and will make the lasting commercial impression in the consumer’s mind. See
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73
USPQ2d at 1692.13
We find that the dominant VAST portions of the and VAST IS
FAST marks are similar in sound, appearance, meaning and commercial impression
to the dominant VAST portion of Registrant’s VAST NETWORKS mark as discussed
above.14 We find, therefore, as a whole that Applicant’s and VAST IS

13 In its reply, Applicant has argued that in the “real-world context” in which consumers
encounter the mark “… mostly likely to be requested and confronted online … weighs in favor
of a finding that confusion is not likely.” Under actual market conditions, however, consumers
generally do not have the luxury of making side-by-side comparisons.
14 We further note that both VAST NETWORKS and VAST BROADBAND have similar
connotations as they are both references to broadband networks, albeit substituting the term
“network” for “broadband.” See definition of broadband n.11. We take judicial notice of the
definition of network which is defined as “[a] system of computers interconnected by
telephone wires or other means in order to share information.” The American Heritage
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FAST marks are more similar than dissimilar in overall commercial impression to
Registrant’s VAST NETWORKS mark.
C. The similarity or dissimilarity and nature of the services
We now turn to the du Pont factor involving the similarity or dissimilarity of
Applicant’s and Registrant’s services. It is noted that Applicant did not address the
similarity or dissimilarity of the services in its brief.
In order to show the legal identity of Applicant’s broadband services and
Registrant’s fiber-optic transmission services, the Examining Attorney submitted a
printout from broadband.gov.15

Dictionary. ahdictionary.com. The Board may take judicial notice of dictionary definitions,
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist
in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375,
1377 (TTAB 2006).
15 December 30, 2014 Office Action pp. 1, 19. The Examining Attorney argued that
Registrant’s services are encompassed by Applicant’s broadband network services.
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Based on this evidence, we find that the services are in part legally identical. Both
Applicant and Registrant offer telecommunications services in the nature of
transmission (transfer) of voice, video, and data. Registrant’s fiber-optic based data,
voice and video transfer services are encompassed by Applicant’s more broadly
identified broadband network voice, video and data transmission services.
Moreover, even if the services are not legally identical in part, the Examining
Attorney has established relatedness by providing website evidence showing that
both cable service providers and fiber-optic network providers offer voice, television
and Internet transmission services and by providing evidence of third-party
registrations, which individually cover both types of services involved herein, to show
that Applicant’s and Registrant’s services may emanate from the same mark.16
“Third-party registrations which cover a number of differing goods and/or services,
and which are based on use in commerce, although not evidence that the marks
shown therein are in use on a commercial scale or that the public is familiar with
them, may nevertheless have some probative value to the extent that they may serve
to suggest that such goods or services 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, 1785-86 (TTAB 1993).

16 Some examples are Registration No. 4035312 for DREAM BIG; Registration No. 3929588
for POWERTASKING, and Registration No. 4008819 for COMMUNITY OWNED.
GLOBALLY CONNECTED. The website evidence shows providers of fiber-optic
transmission services offering digital television, Internet and telephone services and cable
transmission providers offering the same. December 30, 2014 Office Action p. 1.
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This du Pont factor also weighs in favor of finding a likelihood of confusion.
D. Similarity or dissimilarity of established, likely-to-continue trade
channels
Because the identifications of goods in the application and registration are in part
legally identical and unrestricted as to trade channels, we must also presume that
both Applicant's and Registrant's legally identical services travel in the same
ordinary trade and distribution channels and will be marketed to the same potential
consumers. In re Viterra Inc., 101 USPQ2d at 1908 (Fed. Cir. 2012) (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA
1968) (where there are legally identical goods, the channels of trade and classes of
purchasers are considered to be the same); Genesco Inc. v. Martz, 66 USPQ2d 1260,
1268 (TTAB 2003) (finding goods, which were in part identical and in part related as
being offered and sold to the same classes of purchasers and channels of trade). We
further note that even if the services are not legally identical in part, but related, the
services are presumed to move in all normal channels of trade and to be available to
all classes of consumers. Citigroup Inc., 98 USPQ2d at 1261; In re Jump Designs,
LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). This du Pont factor also favors a finding
of likelihood of confusion.
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E. The conditions under which and buyers to whom sales are made (i.e.,
“impulse” vs. careful, sophisticated purchasing)
Applicant argues that the only class of purchasers that overlap between Applicant
and Registrant are business customers who exercise a great deal of care. To support
this assertion, Applicant has submitted website printouts from Applicant’s and
Registrant’s websites identifying some of the customers to whom the services are
directed, i.e., businesses. However, Applicant did not submit any supporting evidence
that the relevant business purchasers are knowledgeable and discriminating in
making purchasing decisions about the services sold under the Applicant’s and
Registrant’s marks. We recognize that some of the prospective consumers of
Applicant’s and Registrant’s identified services may indeed be highly discerning and
relatively knowledgeable about these services and exercise some degree of care in
their purchasing decisions. It is settled, however, that even sophisticated purchasers
are not immune from source confusion, especially in cases such as the instant one
involving similar marks and legally identical in part services. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000). See In re Research
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle
Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112
(CCPA 1970) (“Human memories even of discriminating purchasers…are not
infallible.”)). Furthermore, careful purchasers who do notice the difference in the
marks will not necessarily conclude that there are different sources for the services,
but will see the marks as variations of each other, pointing to a single source. See,
e.g., Kangol Ltd. v. Kangaroos U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945, 1946 (Fed.
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Cir. 1992) (“What is important is not whether people will necessarily confuse the
marks, but whether the marks will be likely to confuse people into believing that the
goods they are purchasing emanate from the same source.”) (citations omitted).
Accordingly, we deem this du Pont factor to be neutral.
III. Conclusion
There is no relevant evidence or argument concerning the remaining likelihood of
confusion factors, and we therefore treat them as neutral.
After considering all of the evidence of record as it pertains to the relevant du Pont
factors, including all of Applicant’s arguments and evidence, even if not specifically
discussed herein, we find that confusion is likely because the marks are similar, the
services are legally identical in part, and the trade channels are the same.
Decision: The refusals to register Applicant’s marks VAST, and VAST
IS FAST are affirmed.