E.C.S. Automotive Concepts, L.L.C.

Trademark Trial and Appeal Board

Apr 26, 2019

87288990 (T.T.A.B. Apr. 26, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 26, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re E.C.S. Automotive Concepts, L.L.C.
_____
Serial No. 87288990
_____
Frank B. Janoski of Lewis Rice LLC
for E.C.S. Automotive Concepts, L.L.C.

Barbara A. Gaynor, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____
Before Cataldo, Shaw and Lynch,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Applicant, E.C.S. Automotive Concepts, L.L.C., seeks registration on the Principal
Register of the mark RPM, in standard characters, identifying “rust inhibiting
preparations in the nature of a coating for use on vehicles” in International Class 2.1

1 Application Serial No. 87288990 was filed on January 4, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), asserting July 10, 2010 as a date of first use of the mark
anywhere and in commerce.
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The Trademark Examining Attorney has finally refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of
confusion with the following registered marks issued to the same entity in typed
form2 on the Principal Register: R-P-M, identifying “lubricating oils” in International
Class 4;3 and RPM, identifying “lubricating oils and greases, diesel engine lubricating
oil” in International Class 4.4
After the final Office Action, Applicant appealed. Applicant and the Examining
Attorney filed briefs on appeal.5 We affirm the refusal to register for the reasons set
out below.
I. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); 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

2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard character’
marks formerly were known as ‘typed’ marks, but the preferred nomenclature was changed
in 2003 to conform to the Madrid Protocol … we do not see anything in the 2003 amendments
that substantively alters our interpretation of the scope of such marks”);
3 Registration No. 0332257 issued on February 4, 1936. Fifth Renewal.
4 Registration No. 0338718 issued on September 15, 1936. Fifth Renewal.
5 Applicant did not file a reply brief. Applicant requested an oral hearing (12 TTABVUE) but
later withdrew its request therefor (18 TTABVUE).
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the marks and the relatedness of the goods or services. See In re Chatam Int’l Inc.,
380 F.2d 1340, 71 USPQ2d 1944 (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.”). We have considered each
relevant du Pont factor for which there is evidence or argument, and have treated
any other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d
1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands,
Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor
for which we have evidence, we focus our analysis on those factors we find to be
relevant.”). Varying weights may be assigned to each du Pont factor depending on the
evidence presented. 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) (factors “may play more or less weighty roles in any
particular determination”).
A. Cited Registration No. 0338718
For purposes of the du Pont factors that are relevant to this appeal we will
consider Applicant’s involved mark and identified goods and the mark RPM in typed
form that is the subject of cited Registration No. 0338718, identifying “lubricating oils
and greases, diesel engine lubricating oil” (“registered mark” or “cited mark”).
If likelihood of confusion is found as to the mark and goods in this registration, it
is unnecessary to consider the other cited registration. Conversely, if likelihood of
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confusion is not found as to the mark and goods in this registration, we would not
find likelihood of confusion as to the mark and goods in the other cited registration.
See Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
B. Strength of the Registered Mark
We begin by evaluating the strength of the registered mark and the scope of
protection to which it is entitled. The fifth du Pont factor is the “fame” or strength of
the prior mark, and the sixth factor is the number and nature of similar marks in use
for similar goods or services. Du Pont, 177 USPQ at 567. In determining strength of
a mark, we consider both inherent strength, based on the nature of the mark itself,
and commercial strength or recognition. 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).”).
Turning first to inherent strength, we hereby take judicial notice of the following
definitions of RPM from dictionary.com: “revolutions per minute.”6 There is no
additional evidence in the record regarding the possible significance of the term RPM
in relation to the goods identified in the cited registration. Based upon this definition,
RPM appears to suggest a function of the “lubricating oils and greases, diesel engine

6 Definition based on the Random House Unabridged Dictionary (2019). The Board may take
judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983),
including online dictionaries that exist in printed format or have regular fixed editions. In re
Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014); 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).
Serial No. 87288990
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lubricating oil” identified in the cited registration, to the extent that the goods provide
lubrication to diesel engines producing movement that may be measured in
revolutions per minute. Thus, concerning conceptual strength, we find on this record
that RPM appears to be somewhat suggestive as used in connection with the recited
goods.
As for marketplace strength, there is no evidence regarding the mark’s
commercial strength.
In support of its position that the cited mark is weak and entitled only to a limited
scope of protection, Applicant introduced into the record copies of nine third-party
registrations issued to seven different entities for the following marks and goods or
services (all marks issued on the Principal Register in typed or standard characters
unless otherwise noted):7
Reg. No. 1603635 for the mark RPM AUTOMOTIVE (AUTOMOTIVE
disclaimed) identifying “automobile repair and maintenance;”

Reg. Nos. 3893550 and 1643301 for the mark
(OIL and SYNTHETIC OIL disclaimed),8

7 Applicant’s April 18, 2018 Request for Reconsideration at .pdf 17-34; also 4 TTABVUE 16-
33.
8 The registration includes the following description of the mark: The mark consists of an
oval shape with a single-line interior border. Inside the oval on the left side is a tachometer
with hash marks running between the 8:00 and 2:00 positions on the dial with the wording
“RED LINE OIL” centered above the gauge needle, and the wording “RPM X 1000” appearing
below the needle, all superimposed on a checkerboard background. To the right is a shaded
area expanding from a point inside the tachometer outward to fill the rest of the oval and the
wording “RED LINE” appears over the wording “SYNTHETIC OIL” in a smaller font.
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identifying “chemical additives for motor fuels; chemicals, namely,
combination wetting agent, heat transfer improver, and corrosion
inhibitor sold as a component of a chemical treatment preparation for
automotive and industrial cooling systems and as used for automotive
and industrial cooling systems;” and
(SYNTHETIC OIL disclaimed)9 identifying “non-chemical petroleum-
based motor fuel additives for motor vehicles;”

Reg. No. 3954901 for the mark identifying
“automotive engine parts, namely, crankshaft, connecting rod, engine
block damper, flywheels, cylinder main cap, and rocker arm;”

Reg. No. 4435446 for the mark RPM OUTLET (OUTLET disclaimed)
identifying “on-line retail store services featuring automotive products;
retail store services featuring automotive products;”
Reg. No. 4391559 for the mark (RACING
PROJECT MOTORCYCLE disclaimed) identifying “automobiles and
structural parts therefor; motorcycles and structural parts therefor;”

Reg. Nos. 4448781 and 4325801 for the marks and
ZERO RPM, both identifying “automotive conversion kits to make
structural changes to a vehicle, namely, an automotive conversion kit
comprised of a battery, a compressor, an alternator, electrical wiring,
valves, refrigerant lines, and computer hardware and software, all of

9 The registration includes the following description of the mark: the mark consists of a
stylized tachometer design, including the words "rpm x1000," on a checkerboard background.
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which integrate with a vehicle’s OEM systems to provide auxiliary
power to the vehicle’s electronic systems and climate control system
while the engine is off;” and

Reg. No. 1938294 for the mark PERFORMER RPM (RPM disclaimed)
identifying “carburetors; manifolds; cylinder heads; camshafts; and
lifter kits, with such kits comprising a camshaft, lifters and lubricant
sold as a unit; all for land vehicle engines.”

Of these third-party registrations, only two (Reg. Nos. 3893550 and 1643301, owned
by the same entity) identify automotive fuel additives that are similar to the oils and
greases identified in the cited registration. The marks and
however, differ significantly in sight, sound, and commercial
impression from the cited mark. Indeed, the term RPM in these two registrations is
a very small part of a tachometer display and is relatively insignificant in the context
of the larger designs and much more prominent wording. None of the third-party
registrations consists solely of the term RPM as does both Applicant’s mark and the
cited mark, and none of the other registrations identify automotive goods or services
that are as closely related to those in the cited registration.
Considering the record as a whole, we find that the registered mark is suggestive
and there is no evidence of third-party use and only modest evidence of third-party
registration of confusingly similar marks for similar or related goods or services. Cf.
Primrose Retirement Communities, LLC v. Edward Rose Senior Living, LLC, 122
USPQ2d 1030 (TTAB 2016) (weakness found based on at least 85 actual uses of
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ROSE-formative marks for similar services, eight similar third-party registrations,
expert testimony and other evidence regarding the common nature of ROSE-
formative marks in the industry, and testimony by opposer that it did not vigorously
enforce its mark); see also Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1135-36 (Fed. Cir. 2015). We therefore find that the registered mark is not weak
and entitled only to a narrow scope of protection, but rather we accord the RPM mark
the broad scope of protection to which inherently distinctive marks are entitled. See
Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122
USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies
along a spectrum from very strong to very weak).
C. Similarity of the Marks
We next address 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.” Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). The cited RPM mark in typed form is
identical in all respects to the RPM mark in standard characters in the involved
application. As discussed above, a typed mark is the legal equivalent of a standard
character mark. In re Viterra Inc., 101 USPQ2d at 1909 n.2. Furthermore, there is
nothing in the record to support a finding that the identical RPM marks will engender
different meanings in connection with Applicant’s goods and the goods in the cited
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registration. The RPM marks at issue are identical in appearance, sound, connotation
and overall commercial impression.
We find that the du Pont factor of the identity of the marks weighs heavily in favor
of likelihood of confusion.
D. Relatedness of the Goods, Channels of Trade and Classes of Consumers

With regard to the du Pont factors addressing the relatedness of the goods,
channels of trade and classes of consumers, we must make our determinations based
on the goods as they are identified in the application and cited registration. See In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A proper
comparison of the goods considers whether “the consuming public may perceive [the
respective goods of the parties] as related enough to cause confusion about the source
or origin of the goods.” Hewlett Packard, 62 USPQ2d at 1004. Therefore, to support a
finding of likelihood of confusion, it is not necessary that the goods be identical or
even competitive. It is sufficient that the goods are related in some manner, or that
the circumstances surrounding their marketing are such that they would be
encountered by the same persons in situations that would give rise, because of the
marks, to a mistaken belief that they originate from the same source or that there is
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an association or connection between the sources of the goods. In re Thor Tech Inc.,
90 USPQ2d 1634, 1635 (TTAB 2009).
Again, Applicant’s goods are “rust inhibiting preparations in the nature of a
coating for use on vehicles” and the goods in the cited registration are “lubricating
oils and greases, diesel engine lubricating oil.”
In support of the refusal of registration, the Examining Attorney introduced into
the record with her March 29, 2017 first Office Action10 copies of fourteen use-based,
third-party registrations for marks identifying, inter alia, goods of a type identified
in the involved application and the cited registration. The following examples are
illustrative:
• Reg. No. 0867342 for goods including “organic rust and corrosion inhibitors”
and “motor and industrial lubricating oils, automotive and industrial greases;”

• Reg. No. 0861854 for goods including “rust preventatives” and “lubricating
oils and greases;”

• Reg. No. 0994494 for goods including “general purpose lubricating oil,
grease” and “rust preventive coating;”

• Reg. No. 3929240 for goods including “rust preventatives in the nature of a
coating; bio-based rust preventatives and corrosion inhibitors” and “lubricating
greases, lubricating oils;”

• Reg. No. 3371536 for goods including “anti-rust greases; anti-rust oils” and
“industrial greases; industrial lubricants; industrial oils; lubricants for
industrial machinery; lubricating greases; lubricating oils;” and

• Reg. No. 4065943 for “corrosion inhibiting coatings; and anti-rust oils and
greases” and “lubricating oils and greases.”

10 At .pdf 9-49.
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Use-based, third-party registrations may serve to suggest that the goods and services
are of a kind that emanate from a single source. See In re Infinity Broad. Corp., 60
USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993); Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
(TTAB 1988). The Examining Attorney further introduced with her October 20, 2017
final Office Action at .pdf 7-44 printouts from five third-party commercial websites of
purveyors of automotive parts, accessories and supplies, offering rust inhibitors or
removers on one hand and lubricating oils on the other, in one case under the same
mark. In this case, the totality of the website and third-party registration evidence
demonstrates that consumers would readily expect that these goods could emanate
from the same sources. It further is settled that where the marks in the involved
application and cited registration are identical, the relatedness between the goods
needed to support a finding of likelihood of confusion declines. In re i.am.symbolic,
llc, 116 USPQ2d 1406, 1411 (TTAB 2015) (citing In re Shell Oil Co., 992 F.2d 1204,
1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)), aff’d, 866 F.3d 1315, 123 USPQ2d
1744 (Fed. Cir. 2017).
Applicant argues:
Applicant’s product neither competes with Registrant’s product,
nor compliments [sic] Registrant’s product, and Registrant is not
likely to expand into the zone of competition with Applicant.
Consequently, there is no risk that a reasonable buyer will be confused
about source. …

Applicant’s product is a rust inhibitor. It coats exteriors of vehicles.
A strong selling point of Applicant’s product is that it is not oily. …
Registrant’s product(s), on the other hand, are lubricating oils-these go
inside the moving parts of engines. A consumer would not, and should
Serial No. 87288990
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not, ever use one in place of the other. The Examiner emphasizes that
the fact that the goods differ is not controlling-but it is a relevant
consideration under DuPont. These goods are sufficiently different that
no source or sponsorship confusion would arise mistakenly.11

However, it is not necessary that the goods be competitive to support a finding of
likelihood of confusion. In re Thor Tech Inc., 90 USPQ2d at 1635. It does not matter
for the purposes of our determination that the goods perform different functions and
would not be used in place of each other. Evidence of record establishes that the goods
are related inasmuch as they are subject to registration by the same entities under
the same marks. The goods also are marketed through brick and mortar automotive
stores and the retail websites associated with those stores. As a result, consumers are
likely to believe that they originate from the same source and that there is an
association or connection between the sources of the goods, even if we agree with
Applicant that consumers may not confuse the goods themselves. Id.; Hewlett
Packard, 62 USPQ2d at 1004.
Applicant further argues:
While it may not be a single determinative factor, the method of
ordering or purchasing a product is a relevant consideration to how
consumers or potential consumers might perceive a product and are
not likely to lead to confusion. When selecting from different sections
of a storefront filled with other similar products as to the intended
product--either Applicant’s or Registrant’s, but not both--consumers
won’t be confused as to source.12

Evidence discussed above demonstrates that the goods at issue are offered for sale in
automotive stores and related websites. The mere fact that they may be available in

11 9 TTABVUE 8-9. (Applicant’s brief)
12 9 TTABVUE 11-12.
Serial No. 87288990
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different aisles of the same stores or on different pages of the same websites does not
diminish their relatedness. Applicant provides no support for its speculative
argument that consumers would not believe that the goods emanate from a common
source simply because they may be located in different sections of a store or website.
Evidence of record further demonstrates that both Applicant’s goods and
Registrant’s goods may be encountered in at least two common trade channels, i.e.,
the physical “brick and mortar” stores and websites of automotive retailers that offer
both rust inhibitors and lubricating oils and greases, to the same classes of
consumers. Both are offered in the same locations to the same consumers.
In addition, the identifications of goods in both the cited registration and involved
application do not recite any limitations as to the channels of trade in which the goods
are offered. In the absence of trade channel limitations on the goods under the
registered and applied-for marks, we must presume that these goods are offered in
all customary trade channels. See Citigroup Inc. v. Capital City Bank Grp. Inc., 98
USPQ2d at 1261; In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
We find that the du Pont factors of the relatedness of the goods, channels of trade
and consumers weigh in favor of likelihood of confusion.
E. Consumer Sophistication
The fourth du Pont factor is the “conditions under which and buyers to whom sales
are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” Du Pont, 177 USPQ at
567. Applicant argues:
The elevated “discriminating purchaser” standard is the
appropriate standard in this case. Applicant’s product is not an
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“ impulse” purchase. Rather, it is a product bought only after a
careful search, probably involving background research, to find a
rust inhibiting coating for a vehicle. Registrant’s customers
undoubtedly go through the same process to find lubricating oils
for their engines. These products are bought to fill a need, not
casually on a whim. Consumers shopping for needs know the
intended purchase and would not browse other sections of the store
and become confused. Each customer base is sophisticated-they
won’t end up with the other good by mistake or through
confusion.13

We must determine the level of sophistication of the relevant purchasers on the
basis of the goods identified in Applicant’s application because that identification
“determine[s] the post-grant benefit of registration.” Stone Lion, 110 USPQ2d at
1162. There are no restrictions or limitations in Applicant’s identification of goods as
to price point and there is nothing inherent in rust inhibitors that limits their
purchase solely to sophisticated consumers with a high degree of expertise. The
absence of such restrictions vitiates Applicant’s sophisticated consumer argument.
We therefore must presume that the identified goods include all types of rust
inhibiting preparations, and that the potential purchasers of those goods run the
gamut from automotive professionals to car owners seeking to protect their vehicles
who may purchase the product without a great deal of deliberation.14 Id. at 1163
(Board “properly considered all potential investors for the recited services, including
ordinary consumers seeking to invest in services with no minimum investment
requirement” as well as applicant’s current sophisticated investors); Octocom, 16

13 9 TTABVUE 13.
14 The record is devoid of evidence that purchasers of Applicant’s goods are restricted to
discriminating purchasers.
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USPQ2d at 1788 (“[A]n application with an identification of goods having no
restriction on trade channels obviously is not narrowed by testimony that the
applicant’s use is, in fact, restricted to a particular class of purchasers”). Further,
Applicant advances no support for its argument that consumers would not purchase
rust inhibitors and oils and greases for automobiles at the same time or by means of
the same stores or websites.
“Board precedent requires [our] decision to be based ‘on the least sophisticated
potential purchasers.’” Stone Lion, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v.
Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set
aside on other grounds, 2014 WL 343267 (TTAB Jan. 22, 2014)). Ordinary consumers
of rust inhibiting preparations may exercise little care in the purchasing process, and
even professional purchasers of these goods are not immune from confusion when
identical marks are used in connection with related goods. Stone Lion, 110 USPQ2d
at 1163-64; In re Shell Oil Co., 26 USPQ2d 1687, 1690-91 (Fed. Cir. 1993); Fiserv, Inc.
v. Elec. Transaction Sys. Corp., 115 USPQ2d 1913, 1921-22 (TTAB 2015). This du
Pont factor is neutral in our analysis.
F. Absence of Actual Confusion
Finally, Applicant argues that there is no evidence of any actual confusion and
that there has been contemporaneous use since 2010. We do not accord significant
weight to Applicant’s contention, unsupported by any evidence, that there have been
no instances of actual confusion despite contemporaneous use of the respective
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marks. The Federal Circuit has addressed the question of the weight to be given to
an assertion of no actual confusion by an applicant in an ex parte proceeding:
With regard to the seventh DuPont factor, we agree with the Board that
Majestic’s uncorroborated statements of no known instances of actual
confusion are of little evidentiary value. See In re Bissett-Berman Corp.,
476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-
serving testimony of appellant’s corporate president’s unawareness of
instances of actual confusion was not conclusive that actual confusion
did not exist or that there was no likelihood of confusion). A showing of
actual confusion would of course be highly probative, if not conclusive,
of a high likelihood of confusion. The opposite is not true, however. The
lack of evidence of actual confusion carries little weight, [citation
omitted], especially in an ex parte context.

Majestic Distilling, 65 USPQ2d at 1205.

Accordingly, while examples of actual confusion may point toward a finding of a
likelihood of confusion, an absence of such evidence is not as compelling in support of
a finding of no likelihood of confusion. Thus, we cannot conclude from the lack of
instances of actual confusion that confusion is not likely to occur. This du Pont factor
is also neutral in our analysis.
II. Conclusion
We have carefully considered all of the evidence of record, including any evidence
not specifically discussed herein. The marks are identical. Evidence of record
establishes that the goods are related, and may be marketed and sold by third parties
in common channels of trade. Applicant’s arguments regarding the asserted
weakness of the mark in the cited registration and distinctions between the goods
and their trade channels that are not reflected in the respective identifications are
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insufficient to overcome these similarities. Sophistication of consumers and the
absence of evidence of actual confusion are neutral.
Decision: The refusal to register Applicant’s mark is affirmed.