Evolution Rock + Fitness, LLC

Trademark Trial and Appeal Board

Jun 3, 2015

No. 86095739 (T.T.A.B. Jun. 3, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 3, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Evolution Rock + Fitness, LLC
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Serial No. 86095739
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Matthew H. Swyers of The Trademark Company,
for Evolution Rock + Fitness, LLC
Won Teak Oh, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
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Before Bergsman, Ritchie and Wolfson,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Evolution Rock + Fitness, LLC (“Applicant”) seeks registration on the Principal
Register of the mark for
Physical fitness training services for rock climbing
training; Providing facilities for recreational activities,
namely, rock climbing; Providing facilities for rock
climbing training; Providing fitness and exercise facilities
for rock climbing training
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in International Class 41.1
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), contending that
Applicant’s use of its mark for its identified goods is likely to cause confusion with
two marks owned by separate companies: the mark for “athletic training
services; entertainment in the nature of hockey games; sports training services;
training services in the field of hockey” in International Class 412 and FIT EVO (in
standard character format) for “health club services, namely, providing instruction
and equipment in the field of physical exercise” in International Class 41.3
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm.
I. Applicable Law
Our determination under Trademark Act § 2(d) 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); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie

1 Application Serial No. 86095739 was filed on October 18, 2013, based upon Applicant’s
claim of first use anywhere and use in commerce since at least as early as August 1, 2011.
2 Reg. No. 4025149; registered September 13, 2011.
3 Reg. No. 4233388; registered October 30, 2012.
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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 and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. Comparison of the Marks
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. In re Viterra Inc., 671 F.3d 1358, 1362,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting du Pont); Palm Bay, 73 USPQ2d
at 1692. Similarity in any one of these elements may be sufficient to find the marks
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). The test,
under the first du Pont factor, 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 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, 668 F.3d 1356, 101 USPQ2d 1713,
1721 (Fed. Cir. 2012) (citation omitted). Because the similarity or dissimilarity of
the marks is determined based on the marks in their entireties, the analysis cannot
be predicated on dissecting the marks into their various components; that is, the
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decision must be based on the entire marks, not just part of the marks. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). On the
other hand, “in articulating reasons for reaching a conclusion on the issue of
confusion, there is nothing improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their entireties.” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1322, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224
USPQ 749, 751 (Fed. Cir. 1985))). The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB
2014).
We first compare Applicant’s mark to the mark . Both marks are
dominated by the literal term EVO. Applicant concedes that the terms are “phonetic
and visual equivalen[ts].”4 The marks also have similar connotations because of this
shared, identical term. Applicant contends that “evo” in the registrant’s mark is a
contraction for “evolution,” noting registrant’s use of “EVOLUTION HOCKEY” on
its website,5 and arguing that consumers will “focus on the term ‘EVO’ and
automatically connect it with the frequent use of the word ‘EVOLUTION’ by the

4 4 TTABVUE 10.
5 Attached to Applicant’s August 7, 2014 response to Office Action.
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Registrant.”6 Yet Applicant refers to itself as “Evolution Rock + Fitness” on its web
pages, and this is Applicant’s trade name as well.7 Thus, consumers of Applicant’s
services are equally likely to perceive its use of the term “evo” as a contraction of
the word “evolution.” Those consumers who do not perceive either term as
“evolution” are nonetheless likely to ascribe the same meaning to “evo” in
Applicant’s mark as they would upon encountering the term as part of registrant’s
mark.
As to the different design elements of each mark, these do not obviate the
likelihood that consumers will confuse the marks. As composite marks containing
both words and a design, we find that the word portion of each is more likely to be
impressed upon a purchaser’s memory and to be used when requesting the services.
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));
see In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir.
2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed.
Cir 1983)). Even if, as Applicant argues, the design in the cited mark is intended to
represent a hockey skate, the design is highly abstracted and is more likely to be
perceived merely as underlining the literal portion. The design in Applicant’s mark
is not representational of any particular object but rather emphasizes the first letter
“e” of the word “EVO.” The wording “Rock + Fitness” is less significant overall, as it
is smaller than the rest of the mark and contains the two descriptive and disclaimed

6 4 TTABVUE 11.
7 At http://www.evorock.com, attached to Final Office Action.
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words “rock” and “fitness.” Descriptive components of a mark “may be given little
weight.” National Data, 224 USPQ at 752. For these reasons, we find the marks to
be similar.
Turning to the mark FIT EVO, we find EVO to be the dominant portion of the
mark because the term “fit” in the registered mark, and “rock” and “fitness” in
Applicant’s mark are merely descriptive of characteristics of the services, whereas
“evo” is arbitrary in relation to the services. Despite the additional design features
of Applicant’s mark, the marks are more similar than dissimilar in their appearance
and pronunciation due to the shared element EVO. Moreover, the design portion in
Applicant’s mark is unpronounceable; consumers may pronounce the + symbol in
Applicant’s mark as “plus” rather than “and,” further distinguishing the marks in
terms of their pronunciation. See StonCor Grp., Inc. v. Specialty Coatings, Inc., 111
USPQ2d 1649, 1651 (Fed. Cir. 2014) (no correct pronunciation of a trademark that
is not a recognized word.) As to connotation, the marks share the common idea of
“fitness,” which also encompasses rock climbing fitness, and to the extent a
consumer will attach meaning to the term “evo,” it would be the same for both
marks. Thus, while the marks differ somewhat in appearance, they are similar in
pronunciation, connotation and overall commercial impression.
Applicant argues that the registered marks are weak, and cites to a third-party
registration for the mark for “Personal training provided in
connection with weight loss and exercise programs; Personal training services,
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namely, strength and conditioning training; Providing assistance, personal training
and physical fitness consultation to individuals to help them make physical fitness,
strength, conditioning, and exercise improvement in their daily living.”8 This single
registration does not show that consumers have become so accustomed to marks
containing the term EVO that they look to other components in such marks to
distinguish among them. Moreover, the third-party registration is quite different
from both Applicant’s mark and the cited registrations and is dominated by the
term “BEFIT,” which appears as the central component of the mark in large, bold
lettering.
Accordingly, the first du Pont factor favors a finding of likelihood of confusion
with respect to both the mark and the mark FIT EVO.
B. Comparison of the Services; Trade Channels and Classes of Consumers
We next turn our attention to a comparison of the similarity or dissimilarity and
nature of the services as they are identified in the registrations and application. In
re Risesmart, Inc., 104 USPQ2d 1931, 1934 (TTAB 2012); Octocom Systems, Inc. v.
Houston Computers Services 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). It is settled that it is not necessary that the
respective services be identical or even competitive in order to find that they are
related for purposes of our likelihood of confusion analysis, it being sufficient that

8 Reg. No. 4252568, registered December 4, 2012.
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the services are related in some manner and/or that the circumstances surrounding
their marketing are such that they would be likely to be encountered by the same
persons under circumstances that would give rise, because of the marks employed
thereon, to the mistaken belief that the services originate from or are in some way
associated with the same producer. See In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991); In re Home Builders Assn. of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990).
Applicant provides facilities for rock climbing and training in rock climbing
techniques. The mark has been registered for, inter alia, athletic training
services and sports training services. Applicant argues that Applicant and
registrant are offering distinctly different services, with registrant using its mark
exclusively with training for hockey and Applicant providing a rock climbing gym.9
However, as noted above, when comparing Applicant’s and registrant’s respective
services, we must analyze them as they are identified in the application and the
cited registration and not limit their scope by resort to extrinsic evidence. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014) (citing Octocom Sys., Inc. v. Houston Computers Servs. Inc.,

9 In support of this argument, Applicant relies on the affidavit of Hilary Harris, who is
identified only as a citizen of the United States and resident of New Hampshire. Inasmuch
as her capacity to represent Applicant has not been confirmed, her statements as to the
nature of Applicant’s services, its trade channels and customers carry little weight.
Furthermore, as noted, herein, we must base our analysis on the wording of the
identifications themselves.
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918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)); In re Hughes Furniture
Indus., Inc., 114 USPQ2d 1134 (TTAB 2015) (“Notwithstanding Applicant’s
argument and evidence regarding the actual scope of its own and the cited
Registrant’s commercial use of its mark, we may not limit, by resort to extrinsic
evidence, the scope of goods as identified in the cited registration or in the subject
application.”). We take judicial notice of the fact that “rock climbing” is a sport,
specifically “the sport or activity of climbing the steep sides of a mountain or cliff.”10
Thus, registrant’s broadly worded recitation of athletic and sports training services
necessarily encompasses Applicant’s more narrowly worded rock climbing training
services. Although the registered services include in addition those directed to the
sport of hockey, “[l]ikelihood of confusion may be found based on any item that
comes within the identification of goods [or services] in the involved application and
registration.” In re La Peregrina Ltd., 80 USPQ2d 1645, 1646 (TTAB 2008); see also,
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981). Accordingly, we find the services to be in part identical because
Registrant’s “athletic training services: and “sports training service” include
Applicant’s “physical fitness training services for rock climbing training.”
Because the services described in the application and the cited registration are
in part identical, we must presume that the channels of trade and classes of

10 At www.merriam-webster.com. The Board may take judicial notice of dictionary
definitions, including definitions or entries from references that are the electronic
equivalent of a print reference work. See University of Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983); In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1334 n.1 (TTAB 2009); In
re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
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purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (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); 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); American Lebanese Syrian Associated Charities Inc. v. Child Health
Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011).
The services identified in the FIT EVO registration are “health club services,
namely, providing instruction and equipment in the field of physical exercise.” Rock
climbing is, of course, physical exercise; the registrant’s services as worded thus
encompass provision of instruction and equipment in rock climbing. Accordingly, we
find that Applicant’s services and those in the FIT EVO registration are in part
legally identical.
Further supporting a finding that Applicant’s services and registrant’s services
are related is the Examining Attorney’s third-party Internet evidence (attached to
the Final Office Action dated September 9, 2014). The evidence demonstrates that
rock climbing gyms offer, in addition to classes on rock climbing techniques, various
exercise classes such as Zumba, Pilates, and yoga. For example, the “Rock Fitness
Gym” provides yoga, body sculpting, Zumba, and spinning classes as well as “intro
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to climbing” classes.11 Stone Summit Climbing & Fitness Center offers a climbing
gym and a yoga studio that includes Pilates and “abs” classes.12 XSport Fitness
offers a climbing wall and classes for improving rock climbing skills such as “climb
harder” as well as a variety of body building classes such as “bodyweight basics,”
“mobility,” “boot camp,” “cardio burn” and several levels of yoga, including “yoga for
climbers.”13 Applicant also advertises that its gym “includes equipment for cross
training including a campus board and systems wall, cardio machines, free weights
and a multipurpose room for yoga, Pilates and group exercise classes.”14 Thus, there
is a direct overlap in the services provided by rock climbing gyms and such
“traditional” offerings typically available in health clubs. The evidence also shows
that the trade channels overlap and that the classes of consumers are the same.
Applicant’s contention that the trade channels do not overlap because each
registrant is local to a specific geographic area and “it is unlikely consumers
interested in a facility to play or practice hockey would travel to a New Hampshire
rock climbing facility” is irrelevant. The Board is constrained to evaluate likelihood
of confusion in terms of nationwide markets when applicant is seeking a
geographically unrestricted registration. In re Integrity Mutual Insurance Company,
Inc., 216 USPQ 895 (TTAB 1982). See also Giant Food Inc. v. Nations Foodservice,
Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983) (“Applicant seeks a

11 At http://www.rockfitnessgym.com.
12 At http://ssclimbing.com.
13 At http://www.xsportfitness.com.
14 At http://www.evorock.com, attached to Final Office Action dated September 9, 2014.
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geographically unrestricted registration under which it might expand throughout
the United States. Under these facts, it is not proper, as the TTAB found, to limit
our consideration to the likelihood of confusion in the areas presently occupied by
the parties. Section 7(b) of the Trademark Act of 1946, 15 U.S.C. §1057(b), creates a
presumption that the registrant has the exclusive right to use its mark throughout
the United States. Therefore, the geographical distance between the present
locations of the respective businesses of the two parties has little relevance in this
case.”).
Accordingly, the second and third du Pont factors favor a finding of likelihood of
confusion with respect to both cited registrations.
C. Other Factors
Finally, although Applicant argues that its consumers are sophisticated, it has
not provided any evidence of record to support the claim, and we treat this du Pont
factor as neutral. To the extent that there are any other du Pont factors which may
be relevant, we also treat them as neutral.
II. Conclusion
After considering all of the evidence properly of record and arguments pertaining
to the du Pont likelihood of confusion factors, we find that there is a likelihood of
confusion between Applicant’s applied-for mark and the registered marks
and FIT EVO.
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Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.