Crop Quest, Inc.

Trademark Trial and Appeal Board

Sep 30, 2019

87716103 (T.T.A.B. Sep. 30, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Crop Quest, Inc.
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Serial No. 87716103
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Wesley W. Malherek of Kelly, Holt & Christenson, PLLC,
for Crop Quest, Inc.
Jessica Hilliard, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Bergsman, Shaw and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Crop Quest, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark PARAMOUNT (in standard characters) for (as amended during prosecution):
Software-As-A-Service (SaaS) services featuring software for compiling
and retrieving agricultural information, namely, reports and analyses
for crops and agricultural products; Data-As-A-Service (DaaS) services
featuring software for agricultural workers, namely software for
generating field reports and recommendations generated based on
received information, in International Class 42.1

1 Application Serial No. 87716103 filed on December 11, 2017, under (as amended during
prosecution) Trademark Act Section 1(b), 15 U.S.C. § 1051(b), based upon Applicant’s claim
of a bona fide intention to use the mark in commerce.
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the services identified in the application, so resembles the mark PARAMOUNT (in
standard characters) for “computer software for database and file management all
sold as a unit for use in providing data conversion and collection”, in International
Class 9,2 on the Principal Register as to be likely to cause confusion, to cause mistake,
or to deceive.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Applicant and the Examining Attorney filed briefs. We affirm
the refusal to register.
I. Background and Evidence made of Record
In the first Office Action of March 30, 2018, the Examining Attorney issued her
likelihood of confusion refusal and made the following items of record:3
1. Pages from the AG LEADER website, TSDR at 9-23;
2. Pages from the FARM MARKET ID website, TSDR at 24-31;
3. Pages from the TRIMBLE website, TSDR at 32-34; and
4. The following active third-party registrations:

2 Registration No. 2983371, issued to Sunflare Technologies, LLC on August 9, 2005; first
renewal.
3 Page references herein to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents
contained in the TSDR database are to the downloadable .pdf versions of the documents.
References to the briefs on appeal refer to the Board’s TTABVUE docket system. Coming
before the designation TTABVUE is the docket entry number; and coming after this
designation are the page references, if applicable.

Serial No. 87716103
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a. GROWER DASHBOARD, Reg. No. 4468072, issued on January 14,
2014, TSDR at 35-37;
b. RESULTX, Reg. No. 5341312, issued on November 21, 2017, TSDR
at 38-39;
c. BECAUSE THERE'S MORE TO FARMING THAN FARMING, Reg.
No. 5154680, issued on March 7, 2017, TSDR at 40-42;
d. SYNERGY OF WATER AND SCIENCE, Reg. No. 5408314, issued
on February 20, 2018 TSDR at 43-46; and
e. DATAPOINT, Reg. No. 5296237, issued on September 26, 2017,
TSDR at 47-48.
Applicant responded to the first Office Action on June 7, 2018 by arguing against
the refusal, but did not make any materials of record. TSDR 6-10.
In the second Office Action of July 3, 2018, the Examining Attorney continued and
maintained her likelihood of confusion refusal, and made the following items of
record:
5. Pages from the GYLLING DATA MANAGEMENT website, TSDR at 8-10;
6. Pages from the IDS website, TSDR at 11-12; and
7. A page from the SCOUTSMART website, TSDR at 13.
Applicant responded to the second Office Action on January 3, 2019 by again
arguing against the refusal, but did not make any materials of record. TSDR 3-4.
In the final Office Action of February 4, 2019, the Examining Attorney maintained
and made final her likelihood of confusion refusal, and made the following items of
record:
8. Pages from the QUICKTRIALS website, TSDR at 7-20;
9. Pages from the PRECISION FARMING DEALER website, TSDR at 21-23;
10. Pages from the GRANULAR AG website, TSDR at 24-33;
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11. Pages from the MAPSHOTS website, TSDR at 34-46;
12. Pages from the NEW HOLLAND AGRICULTURE website, TSDR at 47-54; and
13. Pages from the SOURCE TRACE website, TSDR at 55-68.
II. Likelihood of Confusion: Applicable Law,
Arguments made during Prosecution, and Analysis
We base our determination of likelihood of confusion under Trademark Act Section
2(d), 15 U.S.C. § 1052(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). We must consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). However, “each case must be decided on its own facts and the
differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197,
177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act 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. 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 of record, and have treated any other factors as neutral. See M2
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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.”).
Here, Applicant focuses on the dissimilarities of Applicant’s services and the
Registrant’s goods, conditions under which and buyers to whom sales are made, and
channels of trade (the second, fourth and third DuPont factors);4 while the Examining
Attorney concentrates on the similarity of the marks, the nature and relatedness of
the Registrant’s goods and Applicant’s services and channels of trade (the first,
second and third DuPont factors);5
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) (“[T]he 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/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

4 4 TTABVUE 5-11.
5 6 TTABVUE 5-20.
Serial No. 87716103
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which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
A. Comparison of Applicant’s Mark to the
Registered Mark Cited by the Examining Attorney
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s mark and the Registrant’s mark in their entireties, taking into account
their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ
at 567; In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018).
Here, Applicant’s PARAMOUNT mark and the Registrant’s PARAMOUNT mark are
identical; Applicant does not argue otherwise. The first DuPont factor weighs in favor
of a finding that confusion is likely.
B. Comparison of the Goods and Services, and Channels of Trade
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
factor concerns the “similarity or dissimilarity of established, likely-to-continue trade
channels.” DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1359 (Fed. Cir. 2014).
The comparison of goods and services factor “considers whether ‘the consuming
public may perceive the respective goods and services of the parties 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). The issue,
moreover, is not whether purchasers would confuse the goods and services, but rather
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whether there is a likelihood of confusion as to the source of the goods and services
because of the marks used thereon. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
We compare the goods and services as identified in the application and in the cited
registration. See Stone Lion Capital Partners, 110 USPQ2d at 1162 (quoting Octocom
Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that 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 regardless of what the record may reveal as to the particular nature
of an applicant’s goods, the particular channels of trade or the class of purchasers to
which the sales of goods are directed.”).
“Even if the goods and services in question are not identical, the consuming public
may perceive them as related enough to cause confusion about the source or origin of
the goods and services.” Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002). “In determining whether the services are
related, it is not necessary that the Applicant’s services … and the Registrant’s
[goods] be similar or competitive in character to support a holding of likelihood of
confusion; it is sufficient for such purposes if the [goods and] services are related in
some manner or if the circumstances surrounding marketing of these [goods and]
services are such that they could give rise to the mistaken belief that they originate
from or are in some way associated with the same source.” In re USA Warriors Ice
Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB 2017) (citing Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)).
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We also review the evidence of record regarding channels of trade mindful of “the
controlling principle that where the goods [or services] in an application or
registration are broadly described, they are deemed to encompass all the goods of the
nature and type described therein[,]” In re Solid State Design Inc., 125 USPQ2d 1409,
1413 (TTAB 2018) “and, in the absence of specific limitations in the application and
registration, on consideration of the normal and usual channels of trade and methods
of distribution” for the parties’ goods and services. CBS Inc. v. Morrow, 708 F.2d 1579,
218 USPQ 198, 199 (Fed. Cir. 1983).
Particularly relevant in this appeal, where the marks of the respective parties are
identical or virtually identical, the degree of similarity or relatedness between the
goods and services needed to support a finding of likelihood of confusion declines. See
In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015) (citing In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)), aff’d, 866 F.3d 1315, 123
USPQ2d 1744 (Fed. Cir. 2017).
The goods recited in the PARAMOUNT registration are “computer software for
database and file management all sold as a unit for use in providing data conversion
and collection.” The services recited in Applicant’s PARAMOUNT application are
“Software-As-A-Service (SaaS) services featuring software for compiling and
retrieving agricultural information, namely, reports and analyses for crops and
agricultural products; Data-As-A-Service (DaaS) services featuring software for
agricultural workers, namely software for generating field reports and
recommendations generated based on received information.”
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Thus, the software in the cited registration is so broadly described that it is
deemed to encompass even Applicant’s more narrowly worded SaaS and DaaS
services. See Solid State Design, 125 USPQ2d at 1413. Moreover, because there are
no specific limitations on the software recited in the PARAMOUNT registration,
these goods are deemed to travel in the normal and usual channels of trade and
methods of distribution, CBS v. Morrow, 218 USPQ at 199, even in the trade channels
for Applicant’s services. Moreover, the marks here are identical, so the degree of
similarity or relatedness between the goods and services needed to support a finding
of likelihood of confusion declines. i.am.symbolic, llc, 116 USPQ2d at 1411.
We need not rely solely on the above-noted legal presumptions, however, because
the Examining Attorney provided further evidence of the relatedness of the
Registrant’s goods and Applicant’s services, and their channels of trade. The first
grouping of such evidence comprises third-party registrations:
• GROWER DASHBOARD, Reg. No. 4468072, for “database management
software for the agricultural and farming industry” in Class 9 and “databases
for monitoring, analyzing and producing reports and notifications relating to
fields, agricultural chemicals, soil conditions, weather, productivity, service
and maintenance of farming equipment” in Class 42 –TSDR at 35-37.
• RESULTX, Reg. No. 5341312, for “non-downloadable database management
software, graphical user interface software, and computer application software
to collect, store, display and report on agricultural and environmental data” in
Class 9, TSDR at 38-39.
• BECAUSE THERE'S MORE TO FARMING THAN FARMING, Reg. No.
5154680, for “Database management software for the agricultural and farming
industry” in Class 9 and “Application service provider (ASP) featuring software
for use in database management … in the field of agriculture” in Class 42,
TSDR at 40-42.
• SYNERGY OF WATER AND SCIENCE, Reg. No. 5408314, for “providing on-
line, non-downloadable software for use in database management in the field[]
of … agricultural management” in Class 42, TSDR at 43-46.
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• DATAPOINT, Reg. No. 5296237, for “database management software for seed
treatment sales and agricultural data” in Class 9, TSDR at 47-48.
These registrations serve to suggest that goods like the Registrant’s software, and
services like Applicant’s SaaS and DaaS services (even if, as recited, are directed to
the agricultural industry) may emanate from the same source under the same mark.
In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-03 (TTAB 2009) (21 third-party
registrations probative of relatedness of subject goods); In re Anderson, 101 USPQ2d
1912, 1919-20 (TTAB 2012) (numerous third-party registrations probative of
relatedness); cf. In re C.H. Hanson Co., 116 USPQ2d 1351, 1356 (TTAB 2015)
(although five third-party registrations were “limited in number,” “they nonetheless
ha[d] probative value to the extent they serve to suggest that the identified goods are
of a kind which are produced or marketed by a single source under a single mark”).
The second grouping of evidence as to the relatedness of the Registrant’s goods
and Applicant’s services, and their channels of trade, provided by the Examining
Attorney, comprises Internet evidence demonstrating that a single entity will
commonly provide agricultural software and technical support services (including
software for compiling and retrieving agricultural information, analyzing
agricultural/crop data, generating reports, and generating recommendations) and
software for database management, data conversion, and data collection under the
same mark:
• From the AG LEADER website – software for collection of crop yield data that is
compiled, analyzed, monitored and shared; gathering of in-field crop and soil
observation data, conversion of the data into map displays, and accompanied
by in-field observation notes. Office Action of March 30, 2018, TSDR at 9-23.
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• From the FARM MARKET ID website – software for collection, analyzing and
graphical display of grower profiles (owners and their operations; aggregation
of customer records into customer relationship management (CRM) database,
converted into map displays; integration of customer prospects, farm operation
summaries and geographical boundaries presented in an agri-marketing user
interface. Office Action of March 30, 2018, TSDR at 24-31;
• From the TRIMBLE website – software including field mapping, facilitation of
the collection and management of customer data and profitability analyses.
Office Action of March 30, 2018, TSDR at 32-34.
• From the GYLLING DATA MANAGEMENT website – agriculture research
management software to facilitate creation of agricultural research
experiments (trials), the collection, analyzation and management of data,
importation and export of data form database tables, recalculation of
transformed and corrected data and production of outcome reports. Office
Action of February 4, 2019, TSDR at 8-10.
• From the IDS website – agricultural growth management software, including
analytics and database management. Office Action of February 4, 2019, TSDR
at 11-12.
• From the SCOUTSMART website – database software for crop planning, billing,
soil fertilizing, plant selection, data storage and analysis of historical crop
records, and creation of field reports. Office Action of February 4, 2019, TSDR
at 13.
• From the QUICKTRIALS website – software for recording, collecting,
aggregating, transforming, analyzing, managing and graphically/textually
reporting data from agricultural field trials. Office Action of February 4, 2019,
TSDR at 7-20.
• From the PRECISION FARMING DEALER website – software for monitoring,
recording, mapping, batching, organizing, managing, graphically reporting
and accessing field and agricultural machinery performance. Office Action of
February 4, 2019, TSDR at 21-23.
• From the GRANULAR AG website – software and support services for gathering,
combining, analyzing and presentation of land record, weather, machinery and
soil composition data. Office Action of February 4, 2019, TSDR at 24-33.
• From the MAPSHOTS website – agronomic data management, analysis,
automation, mapping, display and reporting software application. Office
Action of February 4, 2019, TSDR at 34-46.
• From the NEW HOLLAND AGRICULTURE website – software for field data
recording, keeping, tracking, mapping, analysis, management and reporting.
Office Action of February 4, 2019, TSDR at 47-54.
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• From the SOURCE TRACE website – software for agriculture data collecting,
transmission, analysis, management, database importation and reporting.
Office Action of February 4, 2019, TSDR at 55-68.
Thus, as shown by the websites provided by the Examining Attorney, evidence of
third-party business practices “suggests that consumers are accustomed to seeing a
single mark associated with” the Registrant’s type of software and Applicant’s type
of SaaS and DaaS services. Detroit Ath. Co., 128 USPQ2d at 1051. Indeed, the
Internet web pages showing the goods and services at issue being offered by the same
source supports a finding that the goods and services are related and emanate from
a common source. In re Anderson, 101 USPQ2d at 1918.
In its brief, Applicant argues that (1) differences in the functions or purpose of the
Registrant’s products and Applicant’s services prevent likelihood of confusion, and (2)
the Examining Attorney misconstrued Registrant's description of goods leading to an
unsupported, broad interpretation of their scope. 4 TTABVUE 5-9. During the
prosecution of its application, Applicant provided no evidence to support these
arguments, or information showing that customers of the products and services at
issue would understand and appreciate the distinctions Applicant urges upon us.
Notably, “[a]ttorney argument is no substitute for evidence.” Zheng Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo
Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir.
2005)). See also In re Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148
(CCPA 1975) (“Statements in a brief cannot take the place of evidence.”).
The second and third DuPont factors weigh in favor of a finding that confusion is
likely.
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C. Conditions under which and Buyers to whom Sales are made
Applicant argues that (1) “[p]urchases of both Registrant’s [goods] and Applicant’s
… [services] are only made after careful and due consideration of the goods [or
services] offered, thus there is no likelihood of confusion”, (2) the products and
services of the type offered by Registrant and Applicant are expensive, and (3)
“[p]urchasers of Registrant’s [goods] and Applicant’s [services] are distinct” and
sophisticated. 4 TTABVUE 9-11. Aside from the fact that Applicant provided no
evidence to support these assertions, they are unpersuasive.
Even if we were to consider customer care in purchasing the goods in the cited
registration, particularly in the context of identical marks and overlapping goods and
services, this would not render the consumers “immune from trademark confusion.”
See Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1442 (TTAB
2014); see also In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed.
Cir. 1986) (“That the relevant class of buyers may exercise care does not necessarily
impose on that class the responsibility of distinguishing between similar trademarks
for similar goods.”). In the absence of any evidence regarding customer care in
purchasing the services, we find this factor to be neutral.
III. Decision
The refusal to register Applicant’s PARAMOUNT mark is affirmed.