Connect Realty.Com, Inc.

Trademark Trial and Appeal Board

Jul 16, 2013

No. 85014485 (T.T.A.B. Jul. 16, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

: Mailed:
July 16, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Connect Realty.Com, Inc.
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Serial Nos. 85014485 and 85014560
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Anastassios Triantaphyllis of Triantaphyllis Law Firm for Connect Realty.Com, Inc.

Leslie Richards, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow,
Managing Attorney).
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Before Seeherman, Ritchie, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Connect Realty.Com, Inc. (applicant) filed applications to register the marks
CONNECTREALTY.COM (in standard character form)1 and
CONNECTREALTY.COM (in design form), as set forth below

1 Application Serial Number 85014485, filed April 15, 2010, based on use in commerce
pursuant to Section 1(a) of the Trademark Act. Alleged date of first use anywhere and first
use in commerce– September 4, 2007.

Serial No. 85014485 and 85014560

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for:
commercial and residential real estate agency services;
providing a database of information about residential real
estate listings in different neighborhoods and
communities; providing a database of residential real
estate listings within neighborhoods and communities
specifically identified by users; providing an internet
website portal offering information in the fields of real
estate concerning the purchase and sale of new and resale
homes and condos; providing information in the field of
real estate via the internet; providing real estate listings
and real estate information via the internet; real estate
agencies; real estate brokerage; real estate listing in Class
36.
Registration has been refused pursuant to Section 2(d) of the Trademark Act,
15 U.S.C. §1052(d), on the ground that applicant's mark so resembles the registered
mark REALTY CONNECT for
advertising and marketing; advertising services, namely,
promoting and marketing the goods and services of others
through all public communication means; advertising via
electronic media and specifically the internet; advertising,
including promotion relating to the sale of articles and
services for third parties by the transmission of
advertising material and the dissemination of advertising
messages on computer networks; advertising, marketing

2 Application Serial No. 850145460, filed April 15, 2010, based on use in commerce
pursuant to Section 1(a) of the Trademark Act. Alleged date of first use anywhere and first
use in commerce– September 4, 2007.
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and promotional services for automotive dealerships;
creation of marketing tools designed to increase a client
company's knowledge of customer needs, and its
competitors' products and services, pricing, advertising
strategy and sales strategy; general business
merchandising services, namely, marketing; information
or enquiries on business and marketing; marketing
services, namely, providing informational web pages
designed to generate sales traffic via hyperlinks to other
web sites; marketing, promotional and advertising
services provided by mobile telephone connections;
matching consumers with real estate professionals in the
field of real estate services via computer network;
matching potential buyers to facilitate co-ownership of
residential real property in Class 35.3
that, as used in connection with applicant's identified services, it is likely to cause
confusion or mistake or to deceive. The examining attorney issued a final refusal of
registration, which applicant has appealed.
As a preliminary matter, the examining attorney has objected to applicant’s
introduction of a number of third-party registrations as being untimely. We agree.
The registrations were submitted, for the first time, with applicant’s appeal brief.
Evidence submitted after an appeal is untimely and will not ordinarily be
considered by the Board. Trademark Rule 2.142(d); 37 CFR § 2.142(d). In its reply
brief, applicant requested that the Board take judicial notice of the registrations. It
is the Board’s well-established practice not to take judicial notice of third-party
registrations, and we do not do so here. See In re Thomas Nelson Inc., 97 USPQ2d
1712, 1717, n.18 (TTAB 2011).

3 Reg. No. 3608638, issued on April 21, 2009.
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Accordingly, the objection is sustained and the third-party registrations have
not been considered. We note that even if the new evidence had been considered, it
would not affect the outcome herein.
We turn next to the substantive issue of 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, 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). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531 (Fed. Cir. 1997).
We turn first to the du Pont factor of the similarity or dissimilarity of the
services. As set forth in the Dixie Restaurants case:
Likelihood of confusion must be determined based on an
analysis of the mark as applied to the … services recited
in applicant's application vis-a-vis the … services recited
in [a] … registration, rather than what the evidence
shows the...services to be.
In re Dixie Restaurants Inc., 41 USPQ2d at 1534, quoting Canadian Imperial Bank
v. Wells Fargo Bank, N.A. , 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987).
Applicant’s service are identified in the recitations of services as “commercial
and residential real estate agency services; providing a database of information
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about residential real estate listings in different neighborhoods and communities;
providing a database of residential real estate listings within neighborhoods and
communities specifically identified by users; providing an internet website portal
offering information in the fields of real estate concerning the purchase and sale of
new and resale homes and condos; providing information in the field of real estate
via the internet; providing real estate listings and real estate information via the
internet; real estate agencies; real estate brokerage; real estate listing.” The
services set forth in the recitation of services in the cited registration include
“matching consumers with real estate professionals in the field of real estate
services via computer network; matching potential buyers to facilitate co-ownership
of residential real property.”
Applicant accepts that the aforementioned services in the cited registration
“relate to real estate,” brief, p. 13, but argues that this alone is insufficient to show
that the services are similar.
However, the record supports a finding that these services are related, not
merely that the general term “realty” can be used to describe them. Cf. General
Electric Co. v. Graham Magnetics Inc., 197 USPQ 690, 694 (TTAB 1977) (It is not
enough to find one term that may generically describe the goods). The examining
attorney submitted copies of more than twenty third-party registrations, each of
which includes both the services identified in applicant's applications and the
services of matching consumers with real estate professionals, which are identified
in registrant's registration. These registrations serve to suggest that applicant’s
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and registrant’s services are of a kind that may emanate from a single source. See
In re RiseSmart Inc., 104 USPQ2d 1931, 1934-1935 (TTAB 2012); In re Infinity
Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); and In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). See, for example,
• Reg. No. 3241085 for the mark RANCHO GRANDE REAL
ESTATE and design
Services include: matching consumers with real
estate professionals in the field of real estate
services via computer network in Class 35 and real
estate brokerage; real estate agencies; real estate
consultation; providing information in the field of
real estate by means of linking the web site to other
web sites featuring real estate information; real
estate investment; real estate management in
Class 36;
• Reg. No. 3354522 for the mark- 1-800-HOUSING
Services include: matching consumers with real
estate professionals and loan financing
professionals in the field of real estate through a
global computer network in Class 35 and real
estate brokerage services in Class 36;
• Reg. No. 3427392 for the mark REALPRENEUR
Services include: matching consumers with real estate
professionals in the field of real estate services via computer
network in class 35 and real estate agencies; real estate
brokerage; real estate consultancy; real estate consultation; real
estate listing; real estate multiple listing services; real estate
procurement for others; Class 36;

• Reg. No. 3706575 for the mark DIVANTI
INTERNATIONAL
Services: matching consumers with real estate
professionals in the field of real estate services via
a computer network in Class 35 and real estate
brokerage in Class 36; and
• Reg. No. 3654228 for the mark SAWBUCK
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Services: matching consumers with real estate
professionals in the field of real estate services via
a computer network in Class 35 and providing real
estate listings and real estate information via the
internet; real estate brokerage in Class 36.
In addition, the examining attorney has provided excerpts from third-party
websites which list services set forth in both the applications and the cited
registration, examples of which include: FindBuyers.com (www.findbuyers.com),
which provides information to buyers and sellers to facilitate the buying and selling
of homes, and also provides information to agents about both buyers and sellers,
and allows communication directly between buyers, sellers, and agents; Zillow.com
(www.zillow.com), which provides information about agents and provides
information about homes for sale or rent; and Trulia (www.trulia.com), which
provides information about agents and provides information about homes for sale or
rent. Applicant has not submitted any evidence to rebut the examining attorney’s
evidence showing that the services are related.
Accordingly, we find that applicant’s services of, at the very least, real estate
brokerage and real estate listings, are related to “matching consumers with real
estate professionals in the field of real estate services via computer network,” which
was identified in the cited registration.
Although we have not discussed whether a likelihood of confusion exists
between all of applicant’s services and the services in the cited registration,
likelihood of confusion must be found as to the entire class if there is likely to be
confusion with respect to any item in the identification of goods [or services] for that
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class. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981). Accordingly, this du Pont factor favors a finding of
likelihood of confusion.
It is clear from the recitations of services in both the applications and the
cited registration that the relevant services are offered to consumers interested in
buying or selling homes, and therefore both applicant’s and the registrant’s services
can be encountered by the same classes of consumers.
We turn next to the similarity of the marks. As discussed supra, applicant’s
marks are CONNECTREALTY.COM (in standard character format) and
CONNECTREALTY.COM in the design format set forth below:
;
and the mark in the cited registration is REALTY CONNECT (in standard
character format) (“Cited Mark”).
Looking first at the two marks in standard character format, applicant’s
mark CONNECTREALTY.COM is essentially a transposition of the Cited Mark,
REALTY CONNECT. Although applicant’s mark also include the suffix, “COM.”,
this is not sufficient to distinguish the marks. The element “.COM,” is a standard
usage “to show a commercial internet domain.” In re 1800Mattress.com IP LLC, 586
F.3d 1359, 92 USPQ2d 1682, 1684 (Fed. Cir. 2009). As a result, the “.com” suffix
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has no source-identifying significance, and therefore its presence or absence does
not affect the commercial impression of the mark. The dominant portion of
applicant’s mark “CONNECTREALTY” and the Cited Mark, REALTY CONNECT,
both have the same connotation, the joining of resources and people for the purpose
of real estate transactions, and the marks convey the same commercial impression.
“[T]he reversal in one mark of the essential elements of another mark may
serve as a basis for a finding of no likelihood of confusion only if the transposed
marks create distinctly different commercial impressions.” In re Nationwide
Industries Inc., 6 USPQ2d 1882, 1884 (TTAB 1988), (emphasis added). See also
Bank of America National Trust and Savings Assn. v. American National Bank of
St. Joseph, 201 USPQ 842, 845 (TTAB 1978), and cases cited therein. As discussed
supra, in this proceeding, the commercial impressions of applicant’s mark and the
Cited Mark are the same.
Accordingly, we find that the mark CONNECTREALTY.COM, which is the
subject of Serial Number 85014485, is similar to the mark REALTY CONNECT and
this du Pont factor favors a finding of likelihood of confusion.
We look next at applicant’s mark CONNECTREALTY.COM in design form.

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The Cited Mark is in standard character format, and therefore we must consider
that the cited mark could be used in the same stylization as applicant’s mark.
“’Standard character … registrations are federal mark registrations that make no
claim to any particular font style, color, or size of display and, thus, are not limited
to any particular presentation.” Citigroup Inc. v. Capital City Bank Group Inc., 637
F3d 1344, 98 USPQ2d 1253, 1256 (Fed. Cir. 2011). Since the Cited Mark is
unrestricted as to presentation, the stylization of applicant’s mark is not sufficient
to distinguish it from the Cited Mark.
The only difference between applicant’s design mark and applicant’s mark in
standard character format is a minor design element and the use of a particular
type font, consisting of a rather ordinary upper and lower case type style. Neither
the stylized font used to depict the mark nor the minor design element changes the
connotation and commercial impression of applicant’s mark, and for the same
reasons that we found applicant’s standard character mark to convey the same
connotation and commercial impression as the Cited Mark, we also find applicant’s
design mark to have the same connotation and commercial impression as the Cited
Mark.
Accordingly, we find that the mark CONNECTREALTY.COM in design form,
which is the subject of Serial Number 85014560, is similar to the mark REALTY
CONNECT and this du Pont factor favors a finding of likelihood of confusion.
Applicant alleges that the purchasers of services under both its marks and
the Cited Mark are sophisticated and “carefully scrutinize the offering and the
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purchasing.” Appeal Brief, p. 13. We agree that some degree of care is taken in
obtaining real estate brokerage services or seeking help in obtaining real estate
brokerage services. However, even though consumers would exercise care in
obtaining the services, given the similarity of the marks, they are likely to assume
that the services emanate from the same source. See In re Shell Oil Co., 991 F2d
1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993) (even sophisticated purchasers can be
confused by very similar marks). Thus, applicant’s argument is not persuasive.
Finally, applicant alleges that after five years of contemporaneous use,
applicant is not aware of any actual confusion. Appeal Brief, pp. 13-14. However,
as the Court stated in In re Majestic Distilling Co., 65 USPQ2d at 1205, applicant’s
uncorroborated statements of no known instances of actual confusion are of little
evidentiary value:
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, J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 964, 144
USPQ 435, 438 (CCPA 1965), especially in an ex parte context.

Having considered all the evidence and arguments on the relevant du Pont
factors, whether discussed herein or not, we find that applicant’s marks are likely to
cause confusion with the Cited Mark.
Decision: The refusals to register are affirmed.