87524061 (T.T.A.B. Sep. 10, 2019)

CTour Holiday LLC

Trademark Trial and Appeal BoardSep 10, 2019

87524061 (T.T.A.B. Sep. 10, 2019)

Mailed: September 10, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re CTour Holiday LLC _____ Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 _____ Sergiy M. Sivochek of Sivochek IP Law Center for CTour Holiday LLC. Brian Pino, Trademark Examining Attorney, Law Office 114, Laurie Kaufman, Managing Attorney. _____ Before Kuhlke, Bergsman and Heasley, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: CTour Holiday LLC (Applicant) seeks registration on the Principal Register for the three applications listed below all for “travel clubs; travel information services; travel guide and travel information services; travel ticket reservation and booking services; travel booking agencies; organization of travel; travel route planning; This Opinion Is Not a Precedent of the TTAB Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 2 - arranging, conducting, and providing transport for excursions, guided tours, and sightseeing tours,” in Class 39.1 1. Serial No. 87524061 for the mark CTOUR HOLIDAY (in standard characters); 2. Serial No. 87524112 for the CTOUR HOLIDAY and design, shown below; The description of the mark in the application provides the following information: The mark consists of the stylized wording “CTOUR HOLIDAY” and outline of a seagull wing as a stylized check mark design. Color is not claimed as a feature of the mark. 3. Serial No. 87524140 for the mark CTOUR HOLIDAY and design, shown below: 1 Application Serial Nos. 87524061, 87524112 and 87524140 were filed July 11, 2017, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming dates of first use anywhere and in commerce as of October 1, 2016. The Board consolidated the appeals in an order dated May 6, 2019. (18 TTABVUE) (Serial No. 87524061). Citations are to the record in application Serial No. 87524061. All citations to documents contained in the Trademark Status & Document Retrieval (TSDR) database are to the downloadable .pdf versions of the documents. Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 3 - The description of the mark in the application provides the following information: The mark consists of the stylized wording “CTOUR HOLIDAY”, outline of a seagull wing as a stylized check mark design, with stylized Chinese phrase to mean “SEAGULL HOLIDAY”. Color is not claimed as a feature of the mark. The translation statements in the application provide the following information: The English Translation of the Chinese characters in the mark is “SEAGULL HOLIDAY”. The non-Latin characters in the mark transliterate to “HAI OU JIA QI” and this means “Seagull Holiday” in English. Applicant disclaims the exclusive right to use the word “Holiday” in all of the applications. The Examining Attorney refused to register Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s marks for the activities in the description of services so resemble the registered mark shown below for “travel agency services, namely, making reservations and bookings for transportation,” in Class 39, as to be likely to cause confusion.2 2 Registration No. 4742307 registered May 26, 2015. Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 4 - The registration provides the following description of the mark: The color(s) red, orange, yellow, black and white is/are claimed as a feature of the mark. The mark consists of four stylized Chinese characters. The two stylized Chinese characters on the left appear stacked, outlined in black with the upper portions of the characters in yellow and fading to orange towards the bottom. To the right of the orange and yellow Chinese characters are two stacked, stylized Chinese characters in white, each within a white circle, all within a red shape that appears as a stylized paint brush stroke. Beneath all the foregoing is the wording “WWW.CTOURUS.COM” in black. The background color white represents transparent background and is not claimed as a feature of the mark. The registration includes the following translation statement: The non-Latin characters in the mark transliterate to “SHENGSHI JIAQI” and this means “A FLOURISHING PERIOD, PERIOD OF PROSPERITY A GOLDEN AGE VACATION” in English. 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 the likelihood of confusion. 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., 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 have considered each DuPont factor that is relevant or for which there is evidence of record. 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.”). “[E]ach case must be decided Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 5 - 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 any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“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’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). I. The similarity or dissimilarity and nature of the services. The description of services in the cited registration is “travel agency services, namely, making reservations and bookings for transportation.” Applicant is seeking to register its mark for, inter alia, “travel ticket reservation and booking services; travel booking agencies.” “Travel ticket reservation and booking services” encompasses “making reservations and bookings for transportation.” See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 6 - narrowly identified ‘residential and commercial furniture.’”). Thus, the descriptions of services are in part identical. Under this DuPont factor, the Examining Attorney need not prove, and we need not find, similarity as to each activity listed in the description of services. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any item encompassed by the identification of services in a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015) aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application.”). II. Established, likely-to-continue channels of trade and classes of consumers. Because the services described in the application and the cited registrations are in part identical, we presume that the channels of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are presumed to travel in same channels of trade to same class of purchasers); 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); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018) (“Because the services described in the application and the cited registration are identical, we presume that the channels of Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 7 - trade and classes of purchasers are the same.”); United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). III. The strength of Registrant’s mark. In determining the strength of the mark in the cited registration, we consider both its inherent strength, based on the nature of the mark itself, and its commercial strength, based on the marketplace recognition value of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”); Top Tobacco, L.P. v. North Atlantic Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. 2019) (“The first enquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). Market strength is the extent to which the relevant public recognizes a mark as denoting a single source. Tea Bd. of India v. Republic of Tea, 80 USPQ2d at 1899. In other words, it is similar to acquired distinctiveness. For purposes of analyzing likelihood of confusion, a mark’s renown may “var[y] along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 8 - 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (internal quotations omitted). The proper standard is the mark’s “renown within a specific product market,” id., and “is determined from the viewpoint of consumers of like products,” id. at 1735, not from the viewpoint of the general public. A. Inherent or conceptual strength In order to determine the inherent or conceptual strength of the cited mark, we evaluate its intrinsic nature, that is, where it lies along the generic-descriptive- suggestive-arbitrary-fanciful continuum of words. Word marks that are arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000); see also, Chippendales USA, 96 USPQ2d at 1684 (“In general, trademarks are assessed according to a scale formulated by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’ ‘suggestive,’ ‘descriptive,’ or ‘generic.’”). The Chinese characters in the registered mark are inherently or conceptually strong because the substantial portion of the American market who do not speak or read Chinese will perceive them to be Chinese or other Asian text without any recognized meaning.3 Thus, the highly stylized Chinese language text pushes the 3 Applicant asserts that “an appreciable number of U.S. consumers will be able to read, understand and pronounce the Chinese characters in Registrant’s mark,” citing In re Spirits Int’l N.V., 86 USPQ2d 1078, 1085 (TTAB 2008). Applicant’s Brief, pp. 16-17 (12 TTABVUE Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 9 - symbols toward a gray region between designs, which are not vocalized, and word marks consisting of foreign language characters without any meaning. According to the cited registration, the Chinese characters are pronounced “Shengshi Jiaqi” and mean “a flourishing period, period of prosperity, a golden age vacation.” To that portion of the American market that reads Chinese, this portion of the registered mark is arbitrary and inherently or conceptually strong because it has no descriptive or suggestive meaning in connection with “travel agency services, namely, making reservations and bookings for transportation.” The URL at the bottom of the mark, , although somewhat suggestive given the inclusion of the words TOUR and US, is inherently 17-18); see also id. at pp. 6-7 (12 TTABVUE 7-8). However, there is no evidence properly of record regarding the number of U.S. consumers that read, understand or speak Chinese. [the thing is that was a 2e3 case and the reason they said the “substantial” thing was to support the materiality factor in 2e3 (that they also put into 2e3) – so this is all a bit of apples and oranges]The 2009-2013 census data attached to the Examining Attorney’s brief (14 TTABVUE 15) is not properly of record because it is untimely, see Trademark Rule 2.142(d), and it does not have a URL and date it was accessed from the Internet. When making Internet evidence part of the record, the examining attorney must both (1) provide complete information as to the date the evidence was published or accessed from the Internet, and its source (e.g., the complete URL address of the website), and (2) download and attach the evidence to the Office action. See Safer Inc. v. OMS Invs. Inc., 94 USPQ2d 1031, 1039 (TTAB 2010). If an examining attorney fails to do so, and the applicant objects, the material will not be considered. See In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). If, on the other hand, an examining attorney fails to satisfy these requirements, but the applicant fails to object, the Board may consider the website for whatever probative value it may have. See id.at 1586. While Applicant did not object to the purported census data in its Reply Brief, it remains untimely. To the extent that the census data has any probative value, it does not support Applicant’s position because during 2009-2013, less than two million people, or approximately 1% of the U.S. population spoke Chinese. Moreover, although the Board may take judicial notice of census data, regardless of how many consumers understand Chinese, Applicant’s argument does not remove the substantial numbers of consumers who do not read or understand Chinese. Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 10 - distinctive because it takes some steps to understand the commercial impression engendered by the URL. The letter “C” is the phonetic equivalent of the word “See” and the term CTOURUS in the URL engenders the commercial impression SEE TOUR US or TOUR AND SEE THE US.4 The prefix letters WWW and the top level Internet name “.COM” indicate an Internet address and, in this case, serve no trademark function. B. Commercial strength There is no evidence regarding the commercial strength of the registered mark. C. The number and nature of similar marks in use on similar goods. There is no evidence regarding the use of any similar marks in connection with similar services. Nevertheless, in determining the degree of weakness, if any, in the shared terms, we must “adequately account for the apparent force of [third-party use] evidence,” regardless of whether “specifics” pertaining to the extent and impact of such use have been proven. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-5 (Fed. Cir. 2015). “[E]xtensive evidence of third-party use and registrations is ‘powerful on its face,’ even where the specific extent and impact of the usage has not been established.” Jack Wolfskin Ausrustung Fur Draussen 4 Applicant contends that the “‘Asian’ feel of Registrant’s mark, combined with the descriptive word ‘TOUR’, conjures pictures of Asian tours. Which should prompt non-Chinese speaking U.S. consumers to interpret the letter ‘C’ in ‘CTOURUS’ as denoting ‘China’, the biggest and most prominent Asian country that starts with that letter.” Applicant’s Brief, pp. 19-20 (12 TTABVUE 20-21). We find that the nexus between the letter “C” and “China” in is not obvious and is one that many consumers will not make. Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 11 - GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015), citing to Juice Generation, 115 USPQ2d at 1674. In these appeals, Applicant submitted Registration No. 3833246 for the mark SEETOURS and design, shown below, for, inter alia, “travel reservation services.”5 One registration does not rise to the same level of persuasiveness as the voluminous evidence in Juice Generation and Jack Wolfskin. Because the registered mark cited as a bar to registration is inherently distinctive with some conceptual strength and the evidence regarding the number and nature of similar marks for similar goods is not persuasive, we accord the registered mark the normal scope of protection to which inherently distinctive marks are entitled. IV. The similarity or dissimilarity of the marks. We now turn to the DuPont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “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); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). 5 October 23, 2018 Request for Reconsideration (4 TTABVUE 26). Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 12 - In comparing the marks, we are mindful that where, as here, the services are in part identical, the degree of similarity necessary to find likelihood of confusion need not be as great as where there is a recognizable disparity between the services. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007). “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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., 101 USPQ2d at 1721); see also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012). A. CTOUR HOLIDAY (in standard characters) (Serial No. 87524061) Applicant seeks to register the mark CTOUR HOLIDAY (in standard characters) and the mark in the cited registration includes the URL and design reproduced below: Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 13 - The marks are similar because they share the term CTOUR. The commonality of this term results in marks that are similar in appearance, sound, connotation and commercial impression. As explained below, the presence of additional terms and features in each mark is insufficient to distinguish the marks. As noted above, in Registrant’s URL , the prefix letters WWW and the top level Internet name “.COM” indicate an Internet address and, in this case, serve no trademark function. The letters “US” are the abbreviation for the United States, the geographic area where Registrant’s “travel agency services, namely, making reservations and bookings for transportation” are rendered. Thus, the term CTOUR is the primary source-indicating feature of Registrant’s URL and it is identical to the CTOUR in Applicant’s mark CTOUR HOLIDAY. The Board has previously noted the penchant of consumers to shorten marks and we have accordingly found many shortened designations similar to their longer counterparts. See, e.g., Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom., Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); Hunter Indus., Inc. v. The Toro Co., 110 USPQ2d 1651, 1661 (TTAB 2014) (finding “applicant’s mark PRECISION would appear to prospective purchasers to be a Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 14 - shortened form of opposer’s mark PRECISION DISTRIBUTION CONTROL.”). That holds true here: consumers may refer to both marks as CTOUR. Applicant disclaimed the exclusive right to use the word “Holiday” in its mark CT HOLIDAY because the word “Holiday” is defined, inter alia, as “a time or period of exemption from any requirement, duty, assessment, etc.”6 Synonyms for “Holiday” are “vacation,” “few days off,” and “time off.”7 It is well settled that disclaimed, descriptive matter may have less significance in likelihood of confusion determinations. See In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 6 Dictionary.com based on THE RANDOM HOUSE UNABRIDGED DICTIONARY (2019) accessed September 8, 2019; see also Merriam-Webster.com defining “Holiday” as an intransitive verb “to take or spend a vacation or holiday … especially in travel or at a resort.” The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). 7 Thesaurus.com based on ROGET’S 21ST CENTURY THESAURUS, (3rd ed. 2013) accessed September 8, 2019. The Board may take judicial notice of information in a thesaurus. See In re Wells Fargo & Co., 231 USPQ 116, 117 (TTAB 1986); see also Sprague Elec. Co. v. Elec. Utilities Co., 209 USPQ 88, 95 n.3 (TTAB 1980) (standard reference works). Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 15 - 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, such as a common dominant element, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at 751; see also Viterra, 101 USPQ2d at 1908. While the U.S. consumers and potential consumers who read Chinese may perceive the Chinese characters in Registrant’s as the dominant part of the mark and focus their decision-making process on them, the appreciable segment of the U.S. market that does not read Chinese will focus on the term because that is the part of Registrant’s mark they understand and will use to refer to Registrant’s services. For these consumers, the Chinese characters are analogous to a design mark where consumers will accord greater weight to the English language words because they are likely to make a greater impression on consumers who will remember them and use them to request the services. Cf. Viterra, 101 USPQ2d at 1908, 1911 (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983); Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)). In this regard, because the URL Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 16 - is an address that identifies a particular file on the Internet, consumers recognize it as pointing on one source.8 Applicant argues that even U.S. consumers who do not read Chinese will recognize Registrant’s mark as including foreign language characters that have some meaning as opposed to being merely designs and will “perceive it as an important part of the overall commercial message behind Registrant’s mark.”9 Even so, Chinese or other Asian language characters are so alien and outside the experience of a substantial segment of the American consumer, that, as explained above, average American consumers will focus their attention on that part of the mark that they understand. Applicant also argues that “reasonable consumers will instantly recognize the wording ‘WWW.CTOURUS.COM’ as a URL pointing to Registrant’s website. And because the URL appears in a very small and subdued typeface compared to the visually dominant Chinese logograms in Registrant’s mark, such consumers will likely believe that the logograms serve as the source identifier, while the URL is merely present as an additional piece of supplemental information.”10 The problem with this argument is that the URL is part of Registrant’s mark. As noted above, we must consider the marks in their entireties when analyzing their similarity or dissimilarity and that includes a URL that might be considered 8 “URL” is defined as “Uniform Resource Locator: a protocol for specifying addresses on the Internet.” Dictionary.com based on THE RANDOM HOUSE UNABRIDGED DICTIONARY (2019). 9 Applicant’s Brief, pp. 7-8 (12 TTABVUE 8-9). 10 Applicant’s Brief, p. 9 (12 TTABVUE 10). Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 17 - “supplemental information.” In these appeals, Registrant’s URL is that portion of Registrant’s mark that a substantial portion of American consumers understand and will use to refer to Registrant’s services. Based on the strength of the registered mark and the in part identical services for which the marks are used, we find that the marks are more similar than dissimilar. B. CTOUR HOLIDAY and design (Serial No. 87524112) Applicant is seeking to register the mark reproduced below. Applicant’s mark features a stylized bird or wing design in connection with the term CTOUR HOLIDAY in block letters. Neither the design element, nor the block letters, are so distinctive as to distinguish Applicant’s mark from the cited registration. “[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 peripheral differences in this case fail to distinguish the marks. For reasons discussed in the analysis of Applicant’s mark CTOUR HOLIDAY in standard character form, we find that Applicant’s mark CTOUR HOLIDAY and design is similar to the mark in the cited registration. C. CTOUR HOLIDAY and design (Serial No. 87524140) Applicant seeks to register the mark reproduced below: Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 18 - As discussed in the preceding two sections, Applicant’s mark CTOUR HOLIDAY in standard character form and CTOUR HOLIDAY with the stylized bird or wing design are similar to the mark in the cited registration. The issue with the mark in Applicant’s third application is whether the Chinese characters distinguish Applicant’s mark from the mark in the cited registration. As discussed above, the substantial segment of American consumers who do not read Chinese will perceive Applicant’s mark as consisting of Chinese language characters they do not understand, which pushes them into the gray area between designs, which are not vocalized, and word marks consisting of foreign language characters. To these consumers, Applicant’s Chinese characters will appear to be a variation of Registrant’s Chinese characters. Accordingly, the addition of Applicant’s Chinese characters to the phrase CTOUR HOLIDAY does not distinguish Applicant’s mark from the mark in the cited registration. We find that Applicant’s mark CTOUR HOLIDAY and design consisting of Chinese characters is similar to the mark in the cited registration. Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 19 - V. Degree of consumer care Applicant contends that booking travel reservations is not done on impulse; it is done with considerable care.11 However, Applicant’s contention is just attorney argument unsupported by any evidence. Suffice it to say that assertions in briefs are not recognized as evidence. As the Federal Circuit recently reiterated, “Attorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)); see also In re DeBaun, 687 F.2d 459, 214 USPQ 933, 934 n.4 (CCPA 1982) (“we need not evaluate the weight to be given to the attorney's declaration with respect to statements more appropriately made by appellant.”). Further, we must consider the consumers to whom sales are made as including the “least sophisticated consumer in the class.” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014) (recognizing Board precedent requiring consideration of the “least sophisticated consumer in the class”); see also In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (finding that all purchasers of wine may not be discriminating because while some may have preferred brands, “there are just as likely to be purchasers who delight in trying new taste treats.”). Because there are no restrictions, limitations, or descriptions of the relevant consumers in the description of services, we must presume that consumers engaging travel reservation and booking services include all 11 Applicant’s Brief, pp. 20-21 (12 TTABVUE 21-22). Serial No. 87524061 Serial No. 87524112 Serial No. 87524140 - 20 - consumers of such travel reservation services. While consumers generally may exercise more care in making travel reservations, there is nothing in the record to show that it rises to the level to weigh in Applicant’s favor. We find that the degree of consumer care is neutral. VI. Conclusion Because the marks are similar, the services are in part identical and are presumed to be offered in the same channels of trade to the same classes of consumers, including unsophisticated consumers, we find that Applicant’s marks for, inter alia, “travel ticket reservation and booking services; travel booking agencies” are likely to cause confusion with the registered mark and design for “travel agency services, namely, making reservations and bookings for transportation.” Decision: The refusals to register Applicant’s marks are affirmed.