Devon Goocher

Trademark Trial and Appeal Board

Sep 30, 2018

No. 87214736 (T.T.A.B. Sep. 30, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 30, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Goocher
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Serial No. 87214736
_____

Ruth Khalsa of LegalForce RAPC Worldwide PC
for Devon Goocher.

Lisa A. Papale,1 Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____

Before Taylor, Gorowitz and Pologeorgis,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Devon Goocher (“Applicant”) seeks registration on the Principal Register of the
mark MYCAH (in standard characters) for the following services:
Entertainment, namely, live music concerts; Production of
music; Providing on-line music, not downloadable, in
International Class 41.2

1 A different examining attorney was responsible for the application during prosecution.
2 Application Serial No. 87214736 was filed on October 25, 2016, based upon an allegation
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), and claiming February 1, 2015
as both the date of first use of the mark and the date of first use in commerce.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood
of confusion with the mark in U.S. Registration No. 3908350,3 MIKA (in standard
characters) for, in relevant part,
Series of musical recordings, musical video recordings;
downloadable graphics, video recordings featuring live
performances and music via the Internet and wireless
devices, in Class 9; and
Entertainment services, namely, live performances by a
musical entertainer; providing a web site featuring
information about entertainment, music concerts,
recording artists and popular culture, and sound and video
recordings, in Class 41.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Applicable Law
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 issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities

3 Issued January 18, 2011; Section 8 and 15 Affidavits filed and accepted. The Section 15
Affidavit did not cover all of the originally identified goods and services including,
“Entertainment services, namely, live performances by a musical entertainer.” In addition,
the cited registration includes additional goods that were not cited as a bar to registration of
Applicant’s mark.
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between the goods or services. See 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 [or services] and differences in the marks”). These factors, and any other
relevant du Pont factors in the proceeding now before us, will be considered in this
decision.
A. Relatedness of the Services/Channels of Trade/Classes of Purchasers
It is well settled that the goods and services of Registrant and Applicant need not
be identical or competitive, or even be offered through the same channels of trade, to
support a finding of likelihood of confusion. It is sufficient that the respective goods
and services are related in some manner, and/or that the conditions and activities
surrounding the marketing of the goods and services are such that they would or
could be encountered by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken belief that they originate from
the same source. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d. 1356,
101 USPQ2d 1713, 1723 (Fed. Cir. 2012); Hilson Research, Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423, 1432 (TTAB 1993). The issue here, of
course, is not whether purchasers would confuse the goods and services, but rather
whether there is a likelihood of confusion as to the source of these goods and services.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 831 (TTAB 1984).
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Applicant’s services are identified as “entertainment, namely, live music concerts;
Production of music; [and] providing on-line music, not downloadable” and
Registrant’s goods and services are identified as a “series of musical recordings,
musical video recordings; downloadable graphics, video recordings featuring live
performances and music via the Internet and wireless devices” (Class 9) and
“entertainment services, namely, live performances by a musical entertainer;
providing a web site featuring information about entertainment, music concerts,
recording artists and popular culture, and sound and video recordings (Class 41). We
confine our discussion to Registrant’s services vis-à-vis those of Applicant because
they are closer to Applicant’s services than are Registrant’s goods.
On comparison, we find Applicant’s broadly worded “entertainment, namely, live
music concerts” services encompass Registrant’s slightly more specific
“entertainment services, namely, live performances by a musical entertainer” and the
remaining services related and complementary in that they are all services connected
with performances in the music industry. Moreover, because we have found
Applicant’s live music concerts to include Registrant’s live musical performances, we
need not discuss the similarity of all of Applicant’s services because it is sufficient for
a finding of likelihood of confusion if relatedness is established for any item
encompassed by the identification of services within a particular class in the
application. In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
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Nonetheless, to support the relatedness of the services, the Examining Attorney
made of record various use-based, third-party registrations, e.g., Registration Nos.
4060911, 4144238, 4359361, 4809117, 5119280, 5150537, 5192768, 5217966,
5275422, and 5280423, that cover the types of services identified in both Applicant’s
application and the cited registration under the same mark, suggesting that they may
emanate from the same source. Aquamar, 115 USPQ26 at 1126 n.5; In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). We thus find the services in-
part very closely related, if not legally identical, and otherwise closely related for
purposes of our likelihood of confusion analysis.
Furthermore, because there are no limitations or restrictions in Applicant’s or
Registrant’s identification of services, we must presume that their respective services
are marketed in all normal trade channels for those services, such as on-line ticket
sales sites and music venues, and to all normal classes of purchasers for such services,
including ordinary purchasers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). As a
result, the channels of trade and classes of purchasers, at a minimum, overlap.
Accordingly, we find that the du Pont factors of the relatedness of the services,
channels of trade and classes of purchasers strongly favor a finding of likelihood of
confusion. Applicant does not argue to the contrary and, in fact, her brief is silent on
the issue. Accordingly, those du Pont factors strongly favor a finding of likelihood of
confusion.
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B. Similarity/Dissimilarity of the Marks
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. du Pont 177 USPQ at 567. “In a particular case, ‘two
marks may be found to be confusingly similar if there are sufficient similarities in
terms of sound or visual appearance or connotation.’” In re Mr. Recipe, LLC, 118
USPQ2d 1084, 1089 (TTAB 2016) (quoting Kabushiki Kaisha Hattori Seiko v.
Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991, aff’d without opinion, 979
F.2d 216 (Fed. Cir. 1992) (emphasis in the original; citation omitted). See also
Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (citing
Krim-Ko Corp. v. The Coca-Cola 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.”)).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at
1721. See also San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rest. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. L’Oreal v. Marcon, 102 USPQ2d at
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1438; Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). The
average customers are ordinary consumers who attend music concerts.
On comparison, it is very likely that consumers will pronounce Applicant’s mark
MYCAH in the identical way that they would pronounce Registrant’s mark MIKA,
that is bi-syllabically with the first syllable being pronounced the same as the word
“my,” as the vowels “I” and “Y” are often interchanged in, for example, common names
such as Sidney and Sydney. In the second syllable, both the “C” and “K” can be
pronounced with a hard “k” sound as in the words “cat” and “Kentucky,” with the “A”
and “AH” having the same neutral sound.4
We find so in the face of Applicant’s arguments to the contrary. First Applicant
argues the marks are “in reality” pronounced differently by the two artists, and there
is no evidence to establish how MIKA is commonly pronounced. Applicant, citing the
Wikipedia evidence attached to its response to an Office Action,5 explains that
“Registrant changed the spelling of his name from MICA to MIKA because people

4 The Examining Attorney requested that the Board take judicial notice of the “Guide to
Pronunciation” found in the online version of Merriam-Webster Dictionary, and indicated that
a copy could be found at the URL provided in her brief. The Board has “made clear that
providing hyperlinks to Internet materials is insufficient to make such materials of record.”
In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013) (citing In re HSB Solomon Assocs.
LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (“a reference to a website’s internet address is
not sufficient to make the content of that website or any pages from that website of
record.”)). Accordingly, the Examining Attorney’s request is denied, and the materials at
https://www.merriam-webster.com/assets/mw/static/pdf/help/guide-to-pronunciation.pdf as
well as the attendant arguments will not be further considered. To be clear, our findings are
based on the usual pronunciation of common words and names, and not on the pronunciation
guide.
5 August 18, 2017 Response; TSDR 9-11.
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were mispronouncing his name based on its visual appearance,” and that “Applicant’s
mark, also her middle name…is commonly pronounced MY-KUH, as shown in the
evidence of record.”6
While both Applicant and Registrant may have a desired or particular
pronunciation of their respective names, for purposes of a likelihood of confusion
analysis, there is no "correct" or certain pronunciation of a mark because it is
impossible to predict how the public will pronounce a particular mark; therefore,
"correct" pronunciation cannot be relied on to avoid a likelihood of confusion. See,
e.g., In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012)
(upholding the Board’s affirmance of a Section 2(d) refusal to register XCEED for
agricultural seed based on a likelihood of confusion with the registered mark X-SEED
and design, SEED disclaimed, for identical goods); Centraz Indus. Inc. v. Spartan
Chem. Co. Inc., 77 USPQ2d 1698, 1701 (TTAB 2006) (acknowledging that "there is no
correct pronunciation of a trademark" and finding ISHINE (stylized) and ICE
SHINE, both for floor finishing preparations, confusingly similar); In re Lamson Oil
Co., 6 USPQ2d 1041, 1042 n.3 (TTAB 1987) ("[C]orrect pronunciation as desired by
the applicant cannot be relied upon to avoid a likelihood of confusion."); Kabushiki
Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461 (TTAB 1985) (holding SEYCOS
and design for watches, and SEIKO for watches and clocks, likely to cause
confusion); In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350 (TTAB 1983)
(holding ENTELEC and design for association services relating to

6 4 TTABVUE 8.
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telecommunications and other electrical control systems for use in the energy related
industries, and INTELECT for promoting, planning, and conducting expositions and
exhibitions for the electrical industry, likely to cause confusion). As we found, the
marks are capable of being pronounced as phonetic equivalents, and ordinary
consumers, who, upon first encountering either Applicant’s or Registrant’s mark in
the marketplace, would not necessarily have the knowledge of Registrant’s name
change and his intended pronunciation or of the pronunciation preferred by
Applicant.
We also are similarly unpersuaded by Applicant’s unsupported argument that
likelihood of confusion is unlikely because relevant consumers “are most likely to
encounter the marks visually on streaming and downloadable music site [sic], online
music video and fan sites.”7 Consumers availing themselves of these sites for the first
time upon a friend’s oral recommendation may not even appreciate the differences in
appearance.
Applicant also argues that Registrant is “prominent enough to have been
nominated for many and [winning] several World, British, and American music
awards,” and therefore “the relevant consumers will know or quickly learn the proper
pronunciation of [Registrant’s] name is MEE-KAH.”8 To the extent that Applicant is
arguing that the cited mark is so famous that it would not be confused with
Applicant’s mark on the basis of sound, we point out that in an ex parte analysis of

7 4 TTABVUE 8.
8 Id.
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the du Pont factors for determining likelihood of confusion, the “fame of the mark”
factor is normally treated as neutral when no evidence as to fame has been provided.
See In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006); see also In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009) (noting that the absence of
evidence as to the fame of the registered mark “is not particularly significant in the
context of an ex parte proceeding”). Here, Applicant’s evidence of fame consists only
of a single Wikipedia article that, in part, summarizes Registrants awards and
accolades. Such evidence falls far short of establishing fame of the cited mark.
Moreover, while the fame of Registrant’s mark is a factor that could be considered in
a likelihood of confusion analysis under du Pont, “[a]s the fame of a mark increases,
the degree of similarity between the marks necessary to support a conclusion of likely
confusion declines.” See Starbucks U.S. Brands, LLC v. Ruben, 78 USPQ2d 1741,
1750 (TTAB 2006).
At bottom, there is no question that the respective marks could be pronounced the
exact way and we find them to be phonetically equivalent. Similarity in sound alone
may be sufficient to support a finding that the marks are confusingly similar. In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); see In re 1st USA Realty Prof’ls,
Inc., 84 USPQ2d 1581, 1586 (TTAB 2007); see also, TMEP §1207.01(b)(iv).
“Of course, two marks may be extremely similar or even identical in one aspect
(sound, appearance or connotation), and yet not be confusingly similar because of
significant differences in one or more of the other two aspects.” Hattori Seiko v.
Satellite, 29 USPQ2d at 1318. That is not so here. While, as Applicant points out, the
Serial No. 87214736
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two marks contain a different number of letters, Applicant’s five and Registrant’s
four, and only share the letters “M” and “A,” resulting in marks that on a side-by-side
basis are dissimilar, that is not the proper test for comparison. Instead, we must
determine their similarity in terms of their overall commercial impressions. See
Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721. Here, in addition
to being phonetically identical, both marks convey a commercial impression of a
personal name or moniker under which the respective services are performed. We
also note that since both Applicant’s mark and the cited mark are in standard
characters, they may be presented in any style, regardless of font, size, or color. See
Viterra 101 USPQ2d at 1909. Thus, Applicant’s mark could be displayed in lettering
the same as or significantly resembling that of the cited mark.
Keeping in mind the fallibility of memory, and the general impression often
conveyed by trademarks, we find that despite the differences in appearance, the
marks in their entireties, are quite similar due to their phonetic identity and very
similar connotations, such that their use on in-part extremely related and otherwise
substantially related services would cause confusion.
The factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
C. Conclusion
Having considered all of the arguments and evidence of record as they pertain to
the relevant du Pont likelihood of confusion factors, even if not specifically discussed
in this opinion, and for the reasons discussed above, we conclude that a likelihood of
Serial No. 87214736
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confusion exists between Applicant's mark MYCAH for “entertainment, namely, live
music concerts; production of music; [and p]roviding on-line music, not
downloadable,” and the cited mark MIKA for “entertainment services, namely, live
performances by a musical entertainer; providing a web site featuring information
about entertainment, music concerts, recording artists and popular culture, and
sound and video recordings.”
Decision: The refusal to register Applicant’s mark MYCAH under Section 2(d) of
the Act is affirmed.