No. 87100934 (T.T.A.B. Feb. 19, 2019)

Crescendo Finance LLC

Trademark Trial and Appeal BoardFeb 19, 2019

No. 87100934 (T.T.A.B. Feb. 19, 2019)

This Opinion is not a Precedent of the TTAB Mailed: February 19, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Crescendo Finance LLC _____ Serial No. 87100934 _____ Keith A. Schonberger and Kathleen G. Mellon of Young Basile Hanlon & MacFarlane PC, for Crescendo Finance LLC Jonathan R. Falk, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Mermelstein, Adlin, and Heasley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Crescendo Finance LLC (“Applicant”) seeks registration on the Principal Register of the mark CRESCENDO FINANCE (in standard characters, with “FINANCE” disclaimed) for the following goods in International Class 36: Financial administration of stock exchange trading of shares and other financial securities in financial markets; financial analysis, namely, in recompiling and analyzing statistics, data and other sources of information for financial investment purposes; financial investment services, namely, management and brokerage in the fields of stocks, bonds, options, commodities, futures and other securities, and the investment of funds of others; financial custody services, namely, maintaining possession of financial assets for others for financial management purposes; financial portfolio management; financial research and equity research brokerage services; financial risk management; financial services, namely, the Serial No. 87100934 - 2 - trading of financial instruments, securities, shares, options and other derivative products; information, advisory, consultancy and research services relating to finance and investments; monitoring financial markets for investment purposes; personalized advisory, consultancy, and management services for finance, retirement, and savings; providing financial services with respect to securities and other financial instruments and products, namely, trading of and investments in securities and financial instruments and products for others; providing information and research in the field of finance and financial investments.1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it so resembles the following registered marks on the Principal Register as to be likely to cause confusion or mistake, or to deceive: Registration No. Mark Goods or Services 24170202 CRESCENDO VENTURES (“VENTURES” disclaimed) Investment management; capital investment management; investment consultation; fund investment consultation; funds investment; venture capital investment; investment of funds for others; investment in the field of securities. IC 36 1 Application Serial No. 87100934 was filed on July 12, 2016, based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as October 1, 2009. Page references to the application record are to the .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. 2 Reg. No. 2417020 issued on Jan. 2, 2001, and was cancelled on March 16, 2018. Serial No. 87100934 - 3 - Registration No. Mark Goods or Services 2491970 (“INTERACTIVE”, “TOTAL PLANNED GIVING SOLUTIONS” AND “SOFTWARE/EDUCATION/ MULTIMEDIA/INTERNET” disclaimed) Computer software to plan, illustrate and display financial, estate and gift planning consequences of financial planning and charitable estate planning. IC 9 Educational services, namely, conducting seminars in the field of financial planning, estate planning and charitable gift giving and distribution of course materials recorded on video in connection therewith. IC 41 2516366 CRESCENDO PRESENTS Computer software to plan, illustrate and display financial, estate and gift planning consequences of financial planning and charitable estate planning. IC 9 3860686 CRESCENDO PRO Computer software for planning, illustrating and displaying financial, estate and gift planning consequences of financial and estate planning. IC 9 4349968 CRESCENDO ESTATE (“ESTATE” disclaimed) Computer software for planning, illustrating and displaying financial, estate and gift planning consequences of financial planning and charitable estate planning. IC 9 4349974 CRESCENDO LITE Computer software for planning, illustrating and displaying financial, estate and gift planning consequences of financial planning and estate planning. IC 9 46482863 (“INTEGRATED MARKETING FOR PLANNED GIFTS” disclaimed) Computer software for planning, illustrating and displaying financial, estate and gift planning consequences of financial planning and charitable estate planning. IC 9 Newsletters in the field of financial planning, estate planning and charitable gift giving. IC 16 Educational services, namely, conducting seminars in the field of financial planning, estate planning and charitable gift giving and the distribution of course materials in connection therewith. IC 41 3 Reg. No. 2491970 issued Sept. 25, 2001, renewed; Reg. No. 2516366 issued Dec. 11, 2001, renewed; Reg. No. 3860686 issued Oct. 12, 2010, Section 8 & 15 declarations accepted and acknowledged; Reg. No. 4349968 issued June 11, 2013; Reg. No. 4349974 issued June 11, 2013; Reg. No. 4648286 issued Dec. 2, 2014. Serial No. 87100934 - 4 - When the refusal was made final, Applicant petitioned to cancel Registration No. 2417020 only on the ground of abandonment.4 The next day, Applicant appealed the final refusal and requested reconsideration.5 The Examining Attorney suspended action on the subject application pending disposition of the cancellation proceeding.6 A judgment of default issued in that proceeding, and Registration No. 2417020 was cancelled on March 16, 2018. The Examining Attorney subsequently withdrew the Section 2(d) refusal with respect to the cancelled registration, but maintained the refusal with respect to the remaining registrations, which are commonly owned. The request for reconsideration was consequently denied,7 and the appeal resumed. We affirm the refusal to register. I. Likelihood of Confusion We base our determination of likelihood of confusion under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In applying the DuPont factors, we bear in mind the fundamental purposes underlying Section 2(d), which are to prevent confusion as to source, and to protect registrants from damage caused by registration of confusingly similar marks. Park ‘N Fly, Inc. v. 4 Cancellation No. 92067311, filed on Nov. 5, 2017. 5 Nov. 6, 2017 Request for Reconsideration, 4 TTABVUE. 6 Nov. 27, 2017 Office Action. 7 5 TTABVUE. Serial No. 87100934 - 5 - Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566. We have considered each DuPont factor that is relevant, and have treated any other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less weighty roles in any particular determination”). Two key considerations are the similarities between the marks and the similarities between the goods and services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods [or services].’”)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). A. Similarity of the Marks Under the first DuPont factor, we determine the similarity or dissimilarity of Applicant’s and Registrant’s marks in their entireties, taking into account their Serial No. 87100934 - 6 - appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). Applicant acknowledges that its mark, CRESCENDO FINANCE, shares the word CRESCENDO with all of the cited registered marks: CRESCENDO ESTATE CRESCENDO PRESENTS CRESCENDO PRO CRESCENDO LITE Despite this commonality, Applicant argues, the marks are different if viewed in their entireties, as they appear in the marketplace. Applicant’s mark ends with the word “FINANCE,” it argues, while Registrant’s marks end with terms allegedly unrelated to finance―words such as “ESTATE,” “PRESENTS,” and “PRO.” “Individuals coming upon these marks in the marketplace would not, necessarily or Serial No. 87100934 - 7 - reasonably, see an association between, or among, any of these cited marks,” Applicant contends, because “The marketplace presentations are different.”8 The Examining Attorney acknowledges that the marks must be viewed in their entireties, but urges that CRESCENDO, their shared element, is their dominant component, rendering Applicant’s and Registrant’s marks more similar than dissimilar.9 We agree. While “the similarity or dissimilarity of the marks is determined based on the marks in their entireties … 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.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985), quoted in Bond v. Taylor, 119 USPQ2d 1049, 1055 (TTAB 2016). CRESCENDO forms the first and most prominent part of Applicant’s and Registrant’s marks―the part consumers are most likely to look for and ask for. See Palm Bay Imps. v. Veuve Clicquot Ponsardin Fondee En 1772, 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a 8 Applicant’s brief, 8 TTABVUE 5-6. See also Applicant’s reply brief, 11 TTABVUE 2. 9 Examining Attorney’s brief, 10 TTABVUE 7-8. Serial No. 87100934 - 8 - purchaser and remembered”). CRESCENDO is also the first, largest, and most prominent word in Registrant’s stylized and composite marks; “it comprises the largest literal portion of the mark in terms of size, position, and emphasis.” In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181 (TTAB 2018).10 “[I]f the dominant portion of both marks is the same, then confusion may be likely notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624, 624 (TTAB 1985). The term CRESCENDO is also dominant because it is inherently distinctive for the services, whereas Applicant disclaims the term “FINANCE,” as merely descriptive or generic, and Registrant disclaims all wording besides “CRESCENDO” in Registration Nos. 2491970, 4349968, and 4648286. While such descriptive terms may not be ignored, they are less significant in creating the marks’ commercial impression. In re I-Coat Co., LLC, 126 USPQ2d 1730, 1736 (TTAB 2018) (citing In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)). “The fact that in a registration, certain descriptive or generic terms are disclaimed indicates that those terms are less significant and the other parts of the mark are the dominant parts that will impact most strongly on the ordinary buyer.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018). (quoting McCarthy on Trademarks § 23:42, at 23-248). Consequently, consumers are less likely to focus on the descriptive or generic portions of Applicant’s and Registrant’s marks and instead would regard the first distinctive term, CRESCENDO, as dominating the commercial impression conveyed by the marks. TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1116 (TTAB 2019). 10 Reg. Nos. 2491970 and 4648286. Serial No. 87100934 - 9 - Accordingly, while we do not ignore the descriptive terms in Applicant’s mark and the cited registrations, we give them less weight in our analysis, concentrating instead on CRESCENDO, which appears to be an arbitrary and inherently distinctive term. See Palm Bay, 73 USPQ2d 1692 (“VEUVE is an arbitrary term as applied to champagne and sparkling wine, and thus conceptually strong as a trademark.”). Because Applicant’s mark incorporates the dominant term in each of the cited registrations, that shared term renders the marks similar in appearance, sound, connotation, and commercial impression. Although the marks are not identical, the similarities between them outweigh their differences. This similarity “weighs heavily in the confusion analysis….” In re Detroit Athletic, 128 USPQ2d at 1049. For these reasons, the first DuPont factor, similarity of the marks, weighs in favor of finding a likelihood of confusion. B. Similarity of the Goods and Services, Channels of Trade, and Classes of Customers The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration…,” while the third DuPont factor concerns the “similarity or dissimilarity of established, likely-to- continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1159, 1161. Under the second DuPont factor, we consider whether “‘the consuming public may perceive [the respective goods and services] as related enough to cause confusion about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Serial No. 87100934 - 10 - Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)); quoted in In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018). Applicant argues that the services it offers under its mark, “financial advisory services … in the context of and for financial assets such as the buying and selling of stocks, bonds, and securities,” differ significantly from those offered by Registrant, which, according to Registrant’s website, consist of “a marketing system to organizations and institutions to enable them to obtain gifts, establish donor relations and, in general, fund the causes/operations of these organizations/institutions. The Registrant offers software, training seminars, newsletters and administration assistance to the organizations/foundations, helping with state compliance laws and general administrations.”11 The Examining Attorney answers that “[d]etermining likelihood of confusion is based on the description of the goods and/or services stated in the application and registration at issue, not on evidence of actual use.”12 Once again, we agree. To compare goods and services under the second DuPont factor, we look to the identifications in the application and cited registrations. See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162; Octocom Sys., Inc. v. Hous. Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant may not restrict the scope of the identified goods and services by argument or extrinsic evidence. In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). 11 Applicant’s brief, 8 TTABVUE 8. See also Applicant’s reply brief, 11 TTABVUE 2-3. 12 Examining Attorney’s brief, 10 TTABVUE 11. Serial No. 87100934 - 11 - Moreover, the goods and services need not be identical or even competitive to find a likelihood of confusion. Rather, it is enough that goods or services are related in some manner or that circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances which could give rise, because of the marks used thereon, to a mistaken belief that they originate from or are in some way associated with the same producer or that there is an association or connection between the producers of the goods or services. Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); In re I-Coat Co., 126 USPQ2d at 1737; In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). Evidence adduced by the Examining Attorney shows that financial services of the sort offered by Applicant and financial planning software of the sort offered by Registrant often emanate from the same sources, under the same mark. For example: • E*Trade provides financial services and financial planning software and markets the goods and services under the same mark to the same group of consumers. • Merrill Edge provides financial services and financial planning software and markets the goods and services under the same mark to the same group of consumers. • Fidelity provides financial services and financial planning software and markets the goods and services under the same mark to the same group of consumers. • Morgan Stanley provides financial services and financial planning software and markets the goods and services under the same mark to the same group of consumers. Serial No. 87100934 - 12 - • Raymond James provides financial services and financial planning software and markets the goods and services under the same mark to the same group of consumers.13 These third-party examples (eight in all in the record) suggest that the public is accustomed to seeing financial services companies offer financial planning software as a related good. See In re Detroit Athletic, 128 USPQ2d at 1051; Hewlett-Packard v. Packard Press, 62 USPQ2d at 1004 (evidence that “a single company sells the goods and services of both parties, if presented, is relevant to the relatedness analysis”). Applicant argues that Registrant’s software is not for financial planning, but for monitoring financial accounts remotely, according to Registrant’s website.14 But Registrant’s identification is not so limited. Its recited services include “providing information and research in the field of finance and financial investments,” which encompasses not only Applicant’s software, but Registrant’s “[n]ewsletters in the field of financial planning, estate planning and charitable gift giving” and “[e]ducational services, namely, conducting seminars in the field of financial planning, estate planning and charitable gift giving and the distribution of course materials in connection therewith.”15 We find that consumers would readily perceive Applicant’s and Registrant’s goods and services as being sufficiently related as to be offered by a single business. See In re Integrated Embedded, 120 USPQ2d 1504, 1514- 15 (TTAB 2016). 13 Examining Attorney’s brief, 10 TTABVUE 10, Oct. 28, 2016 Office Action at TSDR 25-30; May 4, 2017 Office Action at TSDR 25-34. 14 Applicant’s brief, 8 TTABVUE 9. See also Applicant’s reply brief, 11 TTABVUE 3. 15 Reg. No. 4648286. Serial No. 87100934 - 13 - Applicant argues that its channels of trade and classes of customers differ from Registrant’s under the third DuPont factor. Even if particular aspects Applicant’s mark and the cited marks are visually, phonetically and conceptually similar (for example, containing similar terms), no confusion is likely to occur because the respective services, while potentially remotely related, are very different and targeted to different customers. The fact that the Registrant and the Applicant may both offer some type of “financial related services” (as in the cited case, “educational services”) does not give rise to an association of source between an entity offering ways and means for instructions to set up and acquire financial foundation giving and an entity offering financial investment and licensed brokerage services to an individual/business in the nature of offering such things as stock, bonds, mutual funds, annuities, and securities.16 This argument is also predicated on “real world” conditions, allegedly revealed by Registrant’s website, rather than Registrant’s identifications of goods and services. The application and cited registrations place no such limitations on the identified goods and services. “In the absence of meaningful limitations in either the application or the cited registrations, the Board [may] properly presume[] that the goods [and services] travel through all usual channels of trade and are offered to all normal potential purchasers.” In re i.am.symbolic, 123 USPQ2d at 1750 (quoting In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) and Hewlett–Packard v. Packard Press, 62 USPQ2d at 1005). Absent restrictions in the application and registrations, we cannot read limitations into the channels of trade and classes of customers, any more than we can read them into the goods and services. As the Federal Circuit has made clear: The third DuPont factor—like the second factor—must be evaluated with an eye toward the channels specified in the application and 16 Applicant’s brief, 8 TTABVUE 10, 12-13. Serial No. 87100934 - 14 - registration, not those as they exist in the real world. See i.am.symbolic, 866 F.3d at 1325–27; Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (stating with respect to the third DuPont factor that “[i]t was proper[] . . . for the Board to focus on the application and registrations rather than on real-world conditions, because the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application” (internal quotation marks omitted)). As described above, the registration does not set forth any restrictions on use and therefore “cannot be narrowed by testimony that the applicant’s use is, in fact, restricted to a particular class of purchasers.” Stone Lion, 746 F.3d at 1323 (internal quotation marks omitted). In re Detroit Athletic, 128 USPQ2d at 1052. Here, the third-party evidence reveals that Applicant’s and Registrant’s services travel in the same channels of trade. These financial goods and services would naturally tend to flow to the same or overlapping classes of customers: those seeking information and assistance with financial planning―whether through financial investment services, through financial research, information, and consultancy services, or through software, newsletters, and educational services in the field of financial planning. Hence, the second and third DuPont factors also weigh in favor of finding a likelihood of confusion. C. Sophistication and Care of Consumers Under the fourth DuPont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567. Applicant contends that consumers of the respective services are knowledgeable, and will seek an entity offering the type of services they need: Serial No. 87100934 - 15 - A foundation, university, or charitable organization will not be seeking a stockbroker or a party selling shares in mutual funds. These purchasers know and understand what they need and have skills to find parties that can assist them to acquire and manage their donations/funds. The Registrant works with donors and organizations in an attempt to increase gift bequests and regular donor contributions. The purchasers would not go to a financial investment and licensed brokerage agency to provide this information and assistance. Persons who are looking for a party to assist them with financial investments services, licensed brokerage services, and related money management services want a party knowledgeable about stocks, bonds, mutual funds, and the like and the financial investment which can bring some future returns to that party. They would not seek someone who was providing means for charitable donations, bequests, and endowments.17 Once again, however, Applicant’s argument is predicated upon a perceived limitation of goods and services that does not appear in the application or cited registrations. While Registrant’s website may reveal that its services are currently so limited, we must base our decision on its goods and services as identified, which define the scope of Registrant’s rights arising from its registrations. Neither Applicant nor Registrant has limited its identification to “foundation[s], universit[ies], or charitable organization[s].” Rather, Registrant enjoys the benefits of its registrations for all types of consumers of the identified goods and services. We must presume that [Registrant’s] and Applicant’s “services are offered to both sophisticated and unsophisticated consumers, and that their purchasing decisions, as noted above, range from thoughtful to hasty. Accordingly, the applicable standard of care for the likelihood of confusion analysis is that of the least sophisticated consumer.” Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (citing Stone Lion Capital Partners v. Lion Capital, 17 Applicant’s brief, 8 TTABVUE 13. See also Applicant’s reply brief, 11 TTABVUE 4. Serial No. 87100934 - 16 - 110 USPQ2d at 1163). And given Applicant’s use of the same dominant term, CRESCENDO, as in Registrant’s marks, “even careful purchasers who do notice the difference in the marks will not ascribe it to differences in the source of the goods, but will see the marks as variations of each other, pointing to a single source.” In re I- Coat Co., 126 USPQ2d at 1739. The goods and services at issue are admittedly unlikely to be the subject of impulse purchases. But neither is there any evidence to support the notion that they are sold only to sophisticated purchasers who will exercise care sufficient to avoid confusion, given the similar marks and the goods and services at hand. See Stone Lion Capital Partners, 110 USPQ2d at 1163 (“Board precedent requires the decision to be based on the least sophisticated potential purchasers”). For these reasons, the fourth DuPont factor is neutral. II. Conclusion We have considered all evidence of record and all arguments, including evidence and arguments not specifically discussed in this opinion, as they pertain to the relevant DuPont likelihood of confusion factors. We find that Applicant’s mark is similar to the cited registered marks; that the identified goods and services are similar and related; and that they would flow through the same or similar channels of trade to the same or similar classes of customers, whose sophistication and care would not avert a likelihood of confusion. For these reasons, we find that there is a likelihood of confusion between Applicant’s mark and the cited registered marks under Section 2(d) of the Trademark Act. Serial No. 87100934 - 17 - Decision: The refusal to register Applicant’s mark CRESCENDO FINANCE is affirmed.