Duenas Mobile Applications, LLC

Trademark Trial and Appeal Board

Jun 13, 2018

No. 86520121 (T.T.A.B. Jun. 13, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: June 13, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Duenas Mobile Applications, LLC
_____

Serial No. 86520121

_____

Darren A. Heitner of Heitner Legal, P.L.L.C.,
for Duenas Mobile Applications, LLC.

Lyndsey Kuykendall, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____

Before Zervas, Cataldo and Ritchie,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Duenas Mobile Applications, LLC (“Applicant”) seeks registration on the Principal
Register of the standard character mark MY MIXTAPEZ (“MIXTAPES” disclaimed
in Classes 9, 38 and 42 as discussed below) for the following goods and services:
“Downloadable prerecorded files containing musical
performances via the Internet and wireless devices” in
International Class 9;
“Sweaters; Sweatpants; T-shirts” in International Class
25;
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“Entertainment services in the nature of streaming
prerecorded musical performances” in International Class
38; and
“Computer software development in the field of mobile
applications” in International Class 42.1
Applicant claims ownership of Registration No. 4648593 for the standard
character mark MY MIXTAPEZ, and Registration No. 4648615 for the mark
, both for “downloadable software for the purposes of streaming and
downloading music via an application for mobile and wireless devices; downloadable
software in the nature of a mobile application for streaming and downloading music
mixtapes” in International Class 9.2
The Examining Attorney issued a Final Office Action in which she refused
registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C.
§1052(d), based on the following registrations for standard character marks issued to
three different entities:
● Registration No. 3031202 (“the ‘202 registration”) for
MIX TAPE for “prerecorded audio and video magnetic data
carriers, audio and video tapes, and audio and video optical
and laser discs, all featuring basketball games and contests
and music” in International Class 9, registered pursuant to
Section 2(f) of the Trademark Act, 15 U.S.C. §1052(f);3

1 Application Serial No. 86520121, filed on January 30, 2015 pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), asserting first use and first use in commerce on
January 1, 2015 for the International Class 9, 25 and 38 goods and services, and January 1,
2013 for the International Class 42 services.
2 Both registrations issued on December 2, 2014 and both registrations contain a disclaimer
of the term “MIXTAPES.”
3 Registered December 20, 2005, renewed August 29, 2016.
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● Registration No. 4510618 (“the ‘618 registration”) for
MIXTAPEFM for services including “streaming of audio,
visual and data information and material via a global
computer network, mobile telephone, electronic or digital
communications network or digital communications
device; electronic and digital transmission and delivery of
voice, data, text, images, graphics, signals and messages
via a global computer network, mobile telephone, electronic
or digital communications network or device” in
International Class 038;4 and
● Registration No. 4264303 (“the ‘303 registration) for
MIXTAPE for services including “computer software
development in the field of mobile applications” in
International Class 042.5
The Final Action also advised Applicant that its claim of acquired distinctiveness
for its International Class 25 goods based on a prior registration was insufficient.
Applicant then appealed and filed a brief, including remarks directed to the
sufficiency of its claim of acquired distinctiveness.
Next, on October 7, 2016, the Examining Attorney requested remand to provide
Applicant with an opportunity to withdraw its claim of acquired distinctiveness. The
Board granted the request and on November 17, 2016, Applicant withdrew its claim
of acquired distinctiveness. Applicant’s comments in its brief regarding acquired
distinctiveness are hence moot and we give them no further consideration.
After the Board resumed proceedings, the Examining Attorney filed her brief.6 On
December 13, 2017, the Board remanded the application for further examination

4 Registered April 8, 2014. This registration does not claim acquired distinctiveness under
Section 2(f).
5 Registered December 25, 2015. This registration does not claim acquired distinctiveness
under Section 2(f).
6 The Board did not receive a reply brief from Applicant.
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because one of the registrations cited by the Examining Attorney as a basis for
refusing registration of Applicant’s International Class 25 clothing goods was
cancelled.7 The Board allowed the Examining Attorney time to consider whether the
International Class 25 goods in Applicant’s application are collateral to the goods and
services set forth in the remaining registrations relied on by the Examining Attorney.
In an Office Action dated January 31, 2018, the Examining Attorney withdrew her
Section 2(d) refusal regarding the International Class 25 goods.
I. Preliminary Issues
We turn now to two preliminary issues. First, the Examining Attorney required a
disclaimer of “MIXTAPES” for “Class 041” and noted a disclaimer “will be applicable
to Class 009 and 038.”8 The reference to Class 41 evidently was a typographical error
and the Examining Attorney likely intended to refer to International Class 42. In
response, Applicant included a disclaimer without limitation as to class in its TEAS
cover sheet, but noted in its comments attached to its filing that its disclaimer was
for “Class 041.”9 In its brief, Applicant states that it entered a disclaimer for “Class
041.”10 We find that Applicant’s disclaimer applied to the goods and services in
International Classes 9, 38 and 42, and not to the goods of International Class 25.

7 Registration No. 2638122 for the standard character mark MIX TAPE for “clothing, namely,
t-shirts, sweatshirts, tank tops, polo shirts, jerseys, sport shirts, jackets, warm-up suits,
pants, shorts, sweat pants, caps, hats, sweat bands and socks; footwear” in International
Class 25.
8 May 9, 2015 Office Action, TSDR 1.
9 November 4, 2015 Resp., TSDR 1, 23.
10 Applicant’s brief at 4, 4 TTABVUE 5.
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Second, Applicant refers for the first time in its brief to a search it conducted for
the term “mixtape” on the USPTO’s TESS database and the results of that search.11
The Examining Attorney has objected to our consideration of that portion of
Applicant’s brief referring to the search and its results.12 Because the record closed
upon the filing of the appeal, we sustain the Examining Attorney’s objection and do
not give Applicant’s search or its results any further consideration. Trademark Rule
2.142(d), 37 C.F.R. §2.142(d).13
II. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973) (“du Pont”); see also Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005);
In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences in the marks.” Federated

11 Applicant’s brief at 14, 4 TTABVUE 15.
12 11 TTABVUE 10.
13 Our disposition of this case would not be any different if we consider the search results
because the information provided regarding the search results is extremely limited.
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Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976);
see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014).
1. The Marks
We compare the marks for similarities and dissimilarities in appearance, sound,
connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. The test is not whether the
marks can be distinguished when subjected to a side-by-side comparison, but rather
whether the marks are sufficiently similar in terms of their overall commercial
impression that confusion as to the source of the goods offered under the respective
marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Under actual marketing conditions,
consumers do not necessarily have the luxury of making side-by-side comparisons
between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller
Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks. In re Assoc. of the United States Army, 85 USPQ2d 1264
(TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant’s mark is MY MIXTAPEZ and is readily recognizable as a combination
of the terms MY and MIXTAPEZ, with MIXTAPEZ being a slight misspelling, and
phonetic equivalent, of the English language word “mixtape” in plural form.
“Mixtape” is “a compilation of songs recorded (as onto a cassette tape or a CD) from
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various sources.”14 Applicant refers to “mixtapes” on its webpage in the Microsoft
Store, stating “your one stop to get all your Favorite Mixtapes on the go!” and
“Download Unlimited Mixtapes ….”15 Consumers are most likely to verbalize TAPEZ
as if it were spelled with the letter “S” instead of the letter “Z.”16 See, e.g., Fleetwood
Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460 (CCPA 1962) (noting that TINTZ is
a phonetic spelling of “tints”); In re Carlson, 91 USPQ2d 1198, 1201 (TTAB 2009)
(finding URBANHOUZING phonetically identical to URBAN HOUSING). The plural
form of a term, however, generally does not materially alter the commercial
impression of a mark. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d
1347, 1355 (TTAB 2014) (finding the singular and plural forms of SHAPE to be
essentially the same mark) (citing Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339,
341 (CCPA 1957) (finding no material difference between the singular and plural
forms of ZOMBIE such that the marks were considered the same mark)).
Applicant’s mark includes the term MY at the beginning of its mark, indicating
possession of MIXTAPEZ, or its phonetic equivalent, “mix tapes.”17 It is often said

14 See online version of Merriam-Webster Dictionary accessed at https://www.merriam-
webster.com/dictionary/mixtape. The Board may take judicial notice of dictionary definitions,
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist
in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006).
15 11 TTABVUE 7; November 4, 2015 Resp., TSDR 25.
16 There is no “correct” pronunciation of a mark. In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1912 (Fed. Cir. 2012).
17 See definition of “my” from Merriam-Webster’s Dictionary, “of or relating to me or myself
especially as possessor, agent, object of an action, or familiar person
.” June 29, 2016 Office Action, TSDR 80-81.
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that consumers are generally more inclined to focus on the first word, prefix, or
syllable in any trademark or service mark, see Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. In this case, however,
MIXTAPEZ is the dominant term because it is the term most likely to be recalled and
because MY modifies MIXTAPEZ, drawing additional attention to MIXTAPEZ.
Two of the cited marks are MIX TAPE and MIXTAPE, in standard character form.
Because the dominant term in Applicant’s mark is essentially identical to registrants’
marks in sound, and the term MY merely functions to indicate the possessive form of
MIXTAPEZ and does little to identify the source of Applicant’s goods and services
when added to MIXTAPEZ, we find MY MIXTAPEZ is similar in sound, meaning,
appearance and commercial impression to MIXTAPE and MIX TAPE.
Applicant argues that the marks have different commercial impressions and
connotations tied to the underlying goods and services but does not offer any
compelling reason why the commercial impressions and connotations are different.
Because Applicant’s mark and the cited marks all include the wording MIX TAPE,
with Applicant adding a misspelling of the plural form and the possessive “my,” and
because the meaning and commercial impression of Applicant’s and registrants’
marks does not change based on the goods or services on which the marks are used,
we find Applicant’s argument unpersuasive and that the meaning and commercial
impressions of Applicant’s and registrants’ marks are similar.
Applicant also argues that
[I]t is universally understood, especially by those in the
mixtape, hip-hop, and music industry … that any goods
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and/or services bearing [Applicant’s] Mark relate to the
brand created by and through Applicant’s Mobile
Application, a world-renowned and commonly downloaded
mobile application available for download via various
operating systems.
***
[I]n addition to obtaining trademark registrations for
marks identical or substantially similar to the Mark,
Applicant has gone through significant measures to ensure
that any and all use of the Mark in the marketplace
informs consumers purchasing and/or using products from
Applicant bearing the Mark that such products and/or
services are associated with and/or come directly from
Applicant’s ‘My Mixtapez’ brand. As a result thereof, there
can be no event of confusion (actual or imagined) between
the Mark and the Registrations, as Applicant is the only
party using the Mark, and all goods bearing the Mark are
known to come directly from Applicant and no other
party.18
Applicant essentially argues that its MY MIXTAPEZ mark is famous or, at least,
well known in the relevant industry. The fifth du Pont factor assesses “the fame of
the prior mark,” meaning here the marks in the cited registrations, not the mark in
the application. As in most ex parte situations, we have no evidence of the fame of
the cited mark. See generally In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006).
Turning now to the cited MIXTAPEFM mark, this mark also includes the term
MIXTAPE, but ends with the term FM, defined as “a broadcasting system using
frequency modulation; also: a radio receiver of such a system.”19 It lacks the term MY
and has an entirely different ending. We find that the term MY and the letter “Z” at

18 Applicant’s brief at 13, 4 TTABVUE 14.
19 We take judicial notice of this definition of “FM” from the online version of Merriam
Webster Dictionary, accessed at https://www.merriam-webster.com/dictionary/fm.
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the end of Applicant’s mark, and registrant’s inclusion of the term FM at the end of
its mark, sufficiently distinguish these marks in terms of appearance, sound
connotation and overall commercial impression.
2. The Goods and Services
We now turn to the respective goods and services, as they are identified in the
application and cited registrations. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as
identified in involved application and cited registration compared); Octocom Sys., Inc.
v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). See also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
1001 (Fed. Cir. 2002). In our analysis, we take into account that the Examining
Attorney presented evidence of the relatedness of Applicant’s goods and services to
particular goods or services identified in particular cited registrations. We consider
each class of goods and services in the application and the corresponding registration
cited by the Examining Attorney.
a) International Class 38 and 42 services
Turning first to the International Class 42 services, both the application and
Registration No. 4264303 (MIXTAPE) identify “computer software development in
the field of mobile applications.” The services are identical.
With regard to the International Class 38 services, the services listed in
Registration No. 4510618 (MIXTAPEFM) encompass Applicant’s services.
Specifically, registrant’s “streaming of audio, visual and data information and
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material via a global computer network, mobile telephone, electronic or digital
communications network or digital communications device” encompass Applicant’s
“entertainment services in the nature of streaming prerecorded musical
performances.” Both identifications concern streaming services, and “prerecorded
musical performances” are within “streaming of audio, visual and data information
and material.” Further, Applicant’s identification allows for the same means by which
content is streamed, i.e., via a global computer network, mobile telephone, electronic
or digital communications network or digital communications device.
b) International Class 9
With regard to Applicant’s International Class 9 goods (“Downloadable
prerecorded files containing musical performances via the Internet and wireless
devices”), we consider the evidence as it pertains to Registration No. 3031202
(MIX TAPE) involving International Class 9 goods (“prerecorded audio and video
magnetic data carriers, audio and video tapes, and audio and video optical and laser
discs, all featuring basketball games and contests and music”) and Registration No.
4510618 (MIXTAPEFM) involving International Class 38 services (streaming of
audio, visual and data information and material, and electronic and digital
transmission and delivery of voice, data, text, images, graphics, signals and
messages, all via a global computer network, mobile telephone, electronic or digital
communications network or digital communications device).
Goods and services may be related when the circumstances surrounding their
marketing are such that they would be likely to be encountered by the same persons
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under circumstances that would give rise, because of the marks used in connection
therewith, to the mistaken belief that the goods and services originate from or are in
some way associated with the same source. In re Int’l Telephone and Telegraph Corp.,
197 USPQ 910 (TTAB 1978). It is only necessary that there be a viable relationship
between the goods and services to support a finding of likelihood of confusion. In re
Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). If the goods and
services are described broadly, and there is no limitation as to the nature, type,
channels of trade or class of purchasers, it is presumed that the application and
registration encompass all goods and services of the type described, that they move
in all channels of trade normal for the goods and services, and that they are available
to all usual classes of purchasers. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB
1992).
The Examining Attorney submitted evidence to show that a single source offers
“physical” pre-recorded goods featuring only music, on one hand, and downloadable
pre-recorded music, on the other hand, under the same mark. Because registrant’s
identification of goods specifies that the content provided in connection with the goods
features “basketball games and contests and music,” we find the evidence regarding
“physical” pre-recorded goods not helpful to the Examining Attorney’s arguments
insofar as it concerns such goods. The Examining Attorney has not established any
relationship between the International Class 9 goods of the subject application and
of Registration No. 3031202.
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Turning next to Applicant’s International Class 9 goods and the International
Class 38 services of the MIXTAPEFM registration, the Examining Attorney
submitted the following evidence to demonstrate that a single source offers
downloadable pre-recorded music as well as broadcasting and streaming services:
● http://www.foxmusic.com/
(offering options to “Play” and “Download,” December 10,
2015 Office Action, p. 53.)

● https://play.google.com/music/listen?authuser
(streaming and downloadable music, December 10, 2015
Office Action, pp. 63-65).
● http://www.saintceciliaep.com/
(downloadable music files and music streaming, June 29,
2016 Office Action, p. 21).

● http://www.halestormrocks.com/music/1
(downloadable music files and music streaming, June 29,
2016 Office Action, pp. 22-26).

● https://www.microsoft.com/en-us/groove
(“Play. Stream. Download.” June 29, 2016 Office Action, p.
44).

This evidence establishes a viable relationship between Applicant’s goods and the
International Class 38 services of the MIXTAPEFM registration.
In sum, we find that the du Pont factor regarding the goods and services favors a
finding of likelihood of confusion for Applicant’s and the cited registrants’
International Class 38 and 42 services, and for Applicant’s International Class 9
goods and the cited MIXTAPEFM registrant’s International Class 38 services, but
not for Applicant’s and the cited MIX TAPE registrant’s goods, both in International
Class 9.
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3. Channels of Trade and Classes of Consumers
For the identical International Class 42 services and legally identical
International Class 38 services, we presume that the channels of trade and classes of
purchasers are the same. See Stone Lion, 110 USPQ2d at 1161; 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); Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst.,
101 USPQ2d 1022, 1028 (TTAB 2011). See also In re Viterra Inc., 101 USPQ2d at
1908 (even though there was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion). Applicant has not submitted any evidence to rebut this
presumption. Consumers of Applicant’s and registrants’ International Class 38 and
42 services include members of the general public.
With regard to Applicant’s International Class 9 goods, we find that the channels
of trade and classes of purchasers are identical to those for the International Class
38 services because the evidence demonstrates both are offered on the same
webpages, side by side in some cases. Consumers of Applicant’s International Class 9
goods are also members of the general public.
As for Applicant’s International Class 9 goods (which are available through the
Internet and wireless devices) and the International Class 9 goods of the cited
registration, there is no evidence to establish that the trade channels are related, but
based on the identifications of goods, it appears that both are offered through the
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same internet trade channels to the same purchasers who are members of the general
public.
The du Pont factor regarding the channels of trade and classes of consumers favors
a finding of likelihood of confusion.
4. Any Other Established Fact Probative of the Effect of Use
It has not escaped our attention that Applicant owns two registrations for marks
with the same wording as the mark Applicant seeks to register in the present
application; that both registrations issued after all three of the cited registrations;
and that they have coexisted for over four years. Applicant’s prior registrations are
for different, and perhaps unrelated, goods. Further, the registrations are under five
years old and are subject to attack on the ground of likelihood of confusion by any of
the cited registrants. See Section 2(d). Cf. In re Strategic Partners Inc., 102 USPQ2d
1397, 1399 (TTAB 2012) (thirteenth du Pont factor determinative because marks
coexisted for over five years and prior registration over five years old, no meaningful
difference between marks and mark not subject to challenge on the ground of
likelihood of confusion). Thus, Applicant’s ownership of two prior registrations is
neutral in our analysis.
5. Conclusion
After considering all of the du Pont factors for which there has been proffered
evidence or argument, including evidence and arguments not specifically mentioned
in this decision, and notwithstanding Applicant’s disclaimer of MIXTAPES apart
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from the mark as shown (which would not be known by consumers), we conclude as
follows:
a. Because Applicant’s MY MIXTAPEZ mark and the mark of the ‘303
registration are similar, the International Class 42 services are identical, and
the trade channels and classes of purchasers are presumed to be identical,
there is a likelihood of confusion between Applicant’s mark and the mark of
the ‘303 registration for the identical International Class 42 services.20 We
arrive at this conclusion despite the fact that the ‘303 registration registered
under the provisions of Section 2(f) which concerns the registration of marks
which have become distinctive. “It has often been emphasized that even weak
marks are entitled to protection against confusion.” Hunt Control Sys. Inc. v.
Koninklijke Philips Elecs. N.V., 98 USPQ2d 1558, 1567-68 (TTAB 2011)
(quoting King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 109 (CCPA 1974)).
b. Because Applicant’s MY MIXTAPEZ is dissimilar to the MIXTAPEFM mark
of the ‘618 registration, even though Applicant’s International Class 38
services are encompassed within registrant’s International Class 38 services
and the trade channels and purchasers for such services are presumed to be
identical, there is no likelihood of confusion between Applicant’s mark and
registrant’s MIXTAPEFM mark for such services. A single du Pont factor may

20 Applicant has argued that the likelihood of confusion is de minimus. For the reasons
provided, we disagree insofar as we consider Applicant’s mark and the mark of the ‘303
registration.
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be dispositive on the issue of likelihood of confusion, especially when that
single factor is the dissimilarity of the marks. Kellogg Co. v. Pack’em Ent., Inc.,
951 F2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991) (citing du Pont, 177 USPQ
at 567) (stating that “[w]e know of no reason why, in a particular case, a single
[du Pont] factor may not be dispositive” and holding that “substantial and
undisputed differences” between two competing marks justified a conclusion of
no likelihood of confusion on summary judgment). The dissimilarity of the
marks outweighs all other factors even though the goods are similar or
identical. Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d
1373, 47 USPQ2d 1459 (Fed. Cir. 1998) (CRYSTAL CREEK for wine has
different connotation than CRISTAL for champagne; marks found to be
dissimilar).
c. Even though Applicant’s MY MIXTAPEZ mark is similar to the ‘202
registrant’s MIX TAPE mark, because the evidence does not demonstrate a
relationship between Applicant’s International Class 9 goods and the goods of
the ‘202 registration, confusion between Applicant’s mark and the mark of the
‘202 registration is not likely.
d. Because Applicant’s MY MIXTAPEZ mark is dissimilar to the MIXTAPEFM
mark of the ‘618 registration, even though Applicant’s International Class 9
services are related to the ‘618 registrant’s International Class 38 services and
the trade channels and purchasers for such services overlap, confusion is not
likely between Applicant’s mark for its International Class 9 services and
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registrant’s MIXTAPEFM mark for its International Class 38 services. As
stated, a single du Pont factor may be dispositive on the issue of likelihood of
confusion, especially when that single factor is the dissimilarity of the marks.
Kellogg Co. v. Pack’em Ent., Inc., 21 USPQ2d at 1145.
Decision: The refusal to register under Section 2(d) is affirmed as to
International Classes 42.
The refusal to register under Section 2(d) is reversed as International Classes 9
and 38.
The application will proceed to registration in International Classes 9, 25 and 38
in due course.
-o0o-