Full Circle Biochar, Inc.

Trademark Trial and Appeal Board

Nov 24, 2020

85614583 (T.T.A.B. Nov. 24, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 24, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Full Circle Biochar, Inc.
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Serial No. 85614583
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Randall L. Reed of Miller Mayer LLP,
for Full Circle Biochar, Inc.
Ahsen Khan, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
_____

Before Lykos, Larkin and English,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:

Full Circle Biochar, Inc. (“Applicant”) seeks to register on the Principal Register
the standard character mark BIOCHARGE for goods ultimately identified as
Chemicals used in agriculture, horticulture and forestry
except fungicides, herbicides, insecticides, and
parasiticides; biochar used as soil additives and
horticultural media additives; fertilizers; thermally
stabilized organic matter, namely, biochar used as soil
additives and horticultural media additives; soil additives,
namely, biochar; vegetable growth promoting materials,
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namely, vegetable growth nutrients in International Class
1.1
Registration was refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s applied-for mark so resembles the
registered typed mark2 BIO-CHARGE on the Principal Register owned by Emerson
Electric Co. (“Registrant”),3 for a “combination of enzymes and micro-organisms;
namely, a compost inoculant used primarily for decomposing organic matter” in
International Class 1,4 that it is likely to cause confusion or mistake or to deceive.
On May 1, 2019, Applicant filed a notice of appeal and request for reconsideration;
the request for reconsideration was denied on May 21, 2019. Applicant and the
Examining Attorney then filed their main briefs.5 Thereafter, Applicant filed multiple

1 Application Serial No. 85614583, filed May 2, 2012 with a claim of priority under Section
44(d) of the Trademark Act, 15 U.S.C. § 1126(d), on the basis of an application filed with the
European (EU) Office for Harmonization in the Internal Market (OHIM). During prosecution,
Applicant perfected the basis to Section 44(e) with the filing of EU OHIM Registration No.
010385854 issued on December 4, 2012. Applicant’s International Class 5 goods and
International Class 40 services were divided into “child” Application Serial No. 85614583.
See Applicant’s April 3, 2019 Request to Divide and the Notice of Divisional Request
Completed dated April 30, 2019.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify documents by title and date. References to the briefs
and other materials in the appeal record refer to the Board’s TTABVUE docket system.
2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings;
the preferred nomenclature was changed to conform to the Madrid Protocol. See In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012); see also TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2018).
3 According to USPTO records, the full name of the owner of the cited registration is “Emerson
Electric Co., through its In-sink-erator Division.”
4 Registration No. 1739309, registered December 15, 1992; renewed.
5 Applicant submitted with its main brief materials that were not part of the evidentiary
record at that time. Insofar as the Examining Attorney presented arguments regarding the
evidence in his brief and failed to object to the evidence as untimely, the evidence has been
considered by the Board. See, e.g., In re Litehouse Inc., 82 USPQ2d 1471, 1475 n.2 (TTAB
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requests for extensions of time to file a reply brief, all of which were granted by the
Board. Between the fifth and sixth extension request, Applicant filed a request for
remand pursuant to Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), to supplement
the evidentiary record. The request was accompanied by the file histories of cited
Registration No. 1739309 and Registration No. 2446652 also owned by Registrant.
The Board, finding good cause, granted Applicant ’s request on April 2, 2020,
suspended proceedings, and remanded the application to the Examining Attorney for
consideration of this new evidence. Unpersuaded, the Examining Attorney
maintained the final refusal on April 23, 2020.6 Proceedings were resumed, and
Applicant filed its reply brief in which it had the opportunity to address the
supplemental evidence made of record with its remand request.
For the reasons explained below, we affirm.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.

2007) (third-party registrations submitted for first time with applicant’s appeal brief
considered because examining attorney did not object in her brief and instead presented
arguments in rebuttal of this evidence). Applicant’s request to take judicial notice of the file
history of the cited registration is therefore moot.
6 The Examining Attorney’s Office Action is incorrectly captioned as a denial of a request for
reconsideration. See Trademark Rule 2.63(b)(3), 37 C.F.R. § 2.63(b)(3) (an applicant may
request reconsideration of a final refusal prior to the deadline for filing a notice of appeal).
The application was inadvertently abandoned on November 4, 2020 but then reinstated on
November 6, 2020.
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2003). We must consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
1993).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”). We
discuss these factors and others below.
A. The Marks

This first DuPont likelihood of confusion factor involves an analysis of 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, 1692 (Fed. Cir.
2005) (citing DuPont, 177 USPQ at 567). “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 F. App’x (Fed. Cir. 2019). Accord
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Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA
1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
to cause confusion.”) (citation omitted)). “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, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
Applicant contends that the marks are significantly different because the cited
mark, BIO-CHARGE, is “separated into two different words BIO and CHARGE” and
“includes a hyphen between Bio and Charge.”7 Applicant also argues that its applied-
for mark BIOCHARGE is part of a family of marks that include “BIO” as a prefix
without a hyphen, pointing to its purported family of marks as mitigating the
similarity between the applied-for and cited marks.
Applicant’s arguments miss the point. The marks are identical but for the hyphen
between the terms BIO and CHARGE in the cited mark. The presence of the hyphen
in Registrant’s mark is of little significance since it does not alter the pronunciation
of the mark and only slightly alters the appearance. See Mag Instrument Inc. v.
Brinkmann Corp., 96 USPQ2d 1701, 1712 (TTAB 2010) (finding that hyphen does not
distinguish MAG-NUM from MAGNUM), aff’d mem., ___ Fed. Appx. ___, 2011 WL
5400095 (Fed. Cir. Nov. 9, 2011); see also In re Sears, Roebuck and Co., 2 USPQ2d

7 Applicant’s Brief, 14 TTABVUE 16.
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1312, 1313 (TTAB 1987) (marks CROSS-OVER and CROSSOVER “identical in
appearance but for the inclusion in applicant ’s mark of a hyphen, which, for purposes
herein, is of no legal significance”). Consumers do not focus on minutia but rather
overall impressions. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009) (citing
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975)). Thus, when
comparing the marks overall, they are identical in sound, virtually identical in sight,
and engender the same connotation and commercial impression. Cf. Seaguard Corp.
v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEAGUARD and SEA GUARD
“are, in contemplation of law, identical”).
In addition, it is well settled that the family of marks doctrine is only available to
plaintiffs in inter partes proceedings, and unavailable to applicants seeking to
overcome a likelihood of confusion refusal under Section 2(d). Cynosure, 90 USPQ2d
at 1645-46. This is because “[i]n an ex parte appeal, the focus of the likelihood-of-
confusion analysis must be the mark applicant seeks to register, not other marks
applicant may have used or registered.” Id. See also In re Ald, Inc., 148 USPQ 520,
521 (TTAB 1965) (“Likewise, in view of the specific prohibition of Section 2(d) of the
Statute, the fact that applicant may possess a ‘family’ of marks characterized by the
term ‘ALD’ is of no particular significance herein if the mark for which applicant now
seeks registration, ‘ALDPRESS’, when considered in its entirety, is confusingly
similar to the previously registered mark ‘ALLPREST’.”) (footnote omitted)).
We find this DuPont factor weighs heavily in favor of finding a likelihood of
confusion.
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B. Strength of the Cited Mark
In determining the strength of a mark, we consider both its inherent strength,
based on the nature of the mark itself, and, if there is evidence in the record of
marketplace recognition of the mark, its commercial strength. See In re Chippendales
USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength
is measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., 101
USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by
assessing its inherent strength and its commercial strength); Tea Bd. of India v.
Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); 2 J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. June 2018
update) (“The first enquiry focuses on the inherent potential of the term at the time
of its first use. The second evaluates the actual customer recognition value of the
mark at the time registration is sought or at the time the mark is asserted in
litigation to prevent another’s use.”).
In this case, Applicant has introduced no evidence (e.g., third-party uses)
pertaining to commercial strength of the cited mark. Rather, Applicant challenges
the inherent or conceptual strength of the cited mark as suggestive. The inherent or
conceptual strength of Registrant’s BIOCHARGE mark is not seriously at issue – it
is inherently distinctive as evidenced by its registration on the Principal Register
without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.
Tea Bd. of India, 80 USPQ2d at 1889. Opposer’s registration is “prima facie evidence
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of the validity of the registered mark ....’’ Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b). See also Tea Bd. of India, 80 USPQ2d at 1899.
Furthermore, the record is devoid of evidence that BIOCHARGE has a particular
meaning or is a term of art in the industry. In the absence of such evidence, third-
party registrations alone may be relevant, in the manner of dictionary definitions, “to
prove that some segment of the [marks] has a normally understood and well
recognized descriptive or suggestive meaning, leading to the conclusion that that
segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (internal quotation marks omitted). See also
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). Here,
however, we have no third-party registration evidence that might demonstrate the
inherent weakness of the mark as a source identifier. Thus, on this record, the cited
mark BIOCHARGE for the identified goods is conceptually strong, and Applicant has
not shown that the mark has been weakened.
C. The Goods
Next we compare the goods as they are identified in the involved application and
cited registration, the second DuPont factor. See In re Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
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1001 (Fed. Cir. 2002). The goods need not be identical or even competitive to find a
likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56
USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that the goods emanate from the same source.” Coach Servs., Inc. v.
Triumph Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83
USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles and/or evidence from computer
databases showing that the relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant goods are advertised together
or sold by the same manufacturer or dealer; and/or copies of prior use -based
registrations of the same mark for both applicant ’s goods and the goods listed in the
cited registration. See, e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding
pepper sauce and agave related where evidence showed both were used for the same
purpose in the same recipes and thus consumers were likely to purchase the products
at the same time and in the same stores). Likelihood of confusion must be found as to
the entire class in the application if there is likely to be confusion with respect to any
service that comes within the identification of services in that class. In re C.H.
Hanson Co., 116 USPQ2d 1351, 1355 (TTAB 2015) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
From the record and the identifications, we can glean that the involved goods are
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closely related, complementary products intended for use together during the
composting process. According to industry research, adding biochar, one of
Applicant’s listed goods, to the composting process may “include shorter composting
times, reduced rates of GHG emissions, … the ability to serve as a bulking agent for
compost; and reduced odor.” International Biochar Initiative “Use of Biochar in
Composting.”8 Biochar “has been found to accelerate the composting process – mainly
through improving homogeneity and structure of the mixture and stimulating
microbial activity in the composting mix.” Id. See also Pacific Biochar, “Biochar in
Composting” (“The composting process can be improved when amended with
biochar.”).9 It is clear from the language used to identify Registrant’s sole good as an
inoculant described as a “combination of enzymes and micro-organisms; namely, a
compost inoculant used primarily for decomposing organic matter” (emphasis
added) that Registrant’s product is also specifically designed to be used as part of the
composting process. We can therefore conclude that Applicant’s biochar and
Registrant’s compost inoculant are complementary items. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (holding
bread and cheese to be related because they are often used in combination and noting
that “[s]uch complementary use has long been recognized as a relevant consideration
in determining a likelihood of confusion”).
In addition, the following use-based, third-party registrations introduced by the

8 November 1, 2018 Office Action, p. 2.
9 Id. at 4.
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Examining Attorney show that the same entity has registered a single mark
identifying the “biochar” identified in Applicant’s application and also identifying
goods that legally encompass a “combination of enzymes and micro-organisms;
namely, a compost inoculant used primarily for decomposing organic matter” in the
cited registration:
Registration No. 4967901 for the composite mark
TURBOGANIC on the Principal Register for, in part, “soil
additives, mixed organic compost additives; …mixed
organic compost enhancement preparations; …biochar” in
International Class 1.10
Registration No. 5035235 for the mark KEY TO LIFE &
DESIGN on the Principal Register for, in part, “Biochar,…
Inoculants, namely, biological microorganisms used in
agriculture” International Class 1.11
As a general proposition, third-party registrations that cover goods from both the
cited registration and an applicant’s application are relevant to show that the goods
are of a type that may emanate from a single source under one mark. See, e.g., Detroit
Athletic, 128 USPQ2d at 1051; Hewlett-Packard Co.,, 62 USPQ2d at 1004; 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); In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988). Just as we must consider the full scope of the
goods as set forth in the application and registration under consideration, we must
consider the full scope of the goods described in a third-party registration. In re

10 See November 1, 2018 Office Action at 14-16. All references to the application record are to
the Trademark Status and Document Retrieval (“TSDR”) system.
11 Id. at 17-19.
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Country Oven, Inc., 2019 USPQ2d 443903, *9 (TTAB 2019). Because the benefits of
registration are commensurate with the scope of the goods specified in the certificate
of registration, a registration that describes goods broadly is presumed to encompass
all goods of the type described. Id. See also Stone Lion, 110 USPQ2d at 1161. Here,
the goods “mixed organic compost enhancement preparations” and “Inoculants,
namely, biological microorganisms used in agriculture” identified in the third-party
registrations are sufficiently broad in scope to encompass Registrant’s more
specialized type of compost inoculant. This evidence bolsters our finding of
relatedness.
Applicant, relying on extrinsic evidence, contends that the intended uses and
functions of Applicant’s and Registrant’s products are so distinct that the goods are
unrelated. According to Applicant, Registrant’s compost inoculant is used in the
treatment of sewage whereas the goods listed in the application are designed to
promote plant growth. Only when a term used in the identification is unclear can the
Board resort to extrinsic evidence to determine or clarify how the term is used or
understood in the relevant industry or trade. See Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010) (“However, applicant has
submitted extrinsic evidence to demonstrate the meaning of its description of goods,
not to restrict or limit the goods. Where, as here, applicant ’s description of goods
provides basic information, and the goods are of a technical nature, it is entirely
appropriate to consider extrinsic evidence to determine the specific meaning of the
description of goods.”). Otherwise the question of likelihood of confusion is determined
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based on the description of the goods stated in the application and registration at
issue, not on extrinsic evidence of actual use. See, e.g., Coach Servs., Inc. v. Triumph
Learning LLC, 101 USPQ2d at 1722; Octocom, 16 USPQ2d at 1787. Indeed, Section
7(b) of the Trademark Act, 15 U.S.C. § 1057(b), gives a registrant the right to use the
mark for the goods as they are identified in the registration. In re Dixie Rests., Inc.,
105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (“The certificate of registration
is prima facie evidence of the validity of the registration and the registrant’s exclusive
right to use the mark in connection with the services specified.”). The compost
inoculant identified in the cited registration is not limited to any particular use. Thus,
on the face of Registrant’s identification, the goods identified necessarily fall within
the same category of products intended to enhance the composting process.
In sum, we find that the goods identified in the application and cited registration
are in-part related and complementary in nature. As such, the second DuPont factor
also weighs in favor of finding a likelihood of confusion.
D. The established, likely-to-continue channels of trade
Next we consider the established, likely-to-continue channels of trade, the third
DuPont factor. The Examining Attorney, citing Viterra, mistakenly states that
because “the goods of the parties have no restrictions as to nature, type, channels of
trade, or classes of purchasers” they are “presumed to travel in the same channels of
trade to the same class of purchasers.’” 16 TTABVUE 15. This is a misreading of
Viterra; the presumption applies only to identical goods. See Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018). The applicable principle
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here is that because the identifications in the application and cited registration for
the mark have no restrictions on channels of trade, we must presume that the in-part
goods travel in all channels of trade appropriate for such goods. Genesco Inc. v. Martz,
66 USPQ2d 1260, 1268 (TTAB 2003). The evidence shows that biochar and compost
inoculants are sold in online stores specializing in garden and agricultural supplies.
See excerpt from GrowOrganic.com offering compost inoculants for sale 12 and
Midwest Supplies offering organic biochar for sale.13 We can therefore conclude that
the trade channels overlap and that the goods may be encountered by the same
consumers, namely purchasers seeking products to facilitate the composting process.
As such, the DuPont factor regarding the similarity or dissimilarity of established,
likely-to-continue trade channels also favors a likelihood of confusion.
E. Conditions of Purchase
We direct our attention now to the conditions under which the goods are likely to
be purchased, e.g., whether on impulse or after careful consideration, as well as the
degree, if any, of sophistication of the consumers, under the fourth DuPont factor.
Purchaser sophistication or degree of care may tend to minimize likelihood of
confusion. Conversely, impulse purchases of inexpensive items may tend to have the
opposite effect. Palm Bay, 73 USPQ2d at 1695.
Applicant argues that the involved goods are “unique specialty products” not

12 May 21, 2019 Office Action, p. 6.
13 November 1, 2018 Office Action, p. 34.
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purchased on a “whim or impulse.”14 Due to the intrinsic nature of the goods, we can
assume that the consumers will exercise a relatively high degree of care when making
purchasing decisions. This factor therefore weighs against finding a likelihood of
confusion.
F. Actual Confusion
Lastly, we address Applicant’s argument that the marks have co-existed since
2011 without any evidence of actual confusion, the eighth DuPont factor. See In re
Guild Mtg. Co., 2020 USPQ2d 10279, *6 (TTAB 2020) (“The eighth du Pont factor . .
. — ‘[t]he length of time during and conditions under which there has been concurrent
use without evidence of actual confusion,’ see du Pont, 177 USPQ at 567 — requires
us to look at actual market conditions, to the extent there is evidence of such
conditions of record.”). See also In re Calgon Corp., 435 F.2d 596, 168 USPQ 278, 280
(CCPA 1971). In support thereof, Applicant points to the declaration of John Gaunt
who holds a Ph.D. in Soil Biology; has 30 years of experience in agriculture and
horticulture; and possesses an “interest in the applicant Full Circle and another
company that licensed the use of the mark….”15 Dr. Gaunt averred that Applicant’s
mark has been in continuous use for the goods identified in International Class 1
since 2011, and that since 2011, there has been no confusion between Applicant ’s and
Registrant’s mark.16

14 Applicant’s Brief, 14 TTABVUE 20.
15 Gaunt Declaration, 14 TTABVUE 85.
16 Id. at 85-86.
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The personal observations of a single person from the industry are insufficient for
us to conclude that there has been no actual confusion between Applicant ’s and
Registrant’s marks. Moreover, Dr. Gaunt’s declaration is devoid of any specifics
regarding the geographic scope of the sale and distribution of Applicant’s and
Registrant’s goods, which is not surprising since we do not know the foundation of his
knowledge.
In contrast to the case before us, in Guild Mortg., the Board was able to analyze
the purported lack of any actual confusion because applicant submitted a declaration
from the applicant’s president attesting to the extent of the applicant ’s use of its
mark. In addition, the applicant submitted evidence regarding the registrant ’s
business. However, neither the testimony, nor the evidence, provided any specifics
regarding the geographic extent or overlap of applicant ’s or registrant’s services.
Guild Mortg., 2020 USPQ2d 10279 at *7. In addition, the Board noted “there has been
no opportunity to hear from Registrant about whether it is aware of any reported
instances of confusion. We therefore are getting only half the story.” Id., citing In re
Opus One, Inc., 60 USPQ2d 1812, 1817 (TTAB 2001) (“The fact that an applicant in
an ex parte case is unaware of any instances of actual confusion is generally entitled
to little probative weight in the likelihood of confusion analysis, inasmuch as the
Board in such cases generally has no way to know whether the registrant likewise is
unaware of any instances of actual confusion, nor is it usually possible to determine
that there has been any significant opportunity for actual confusion to have
occurred.”) (citations omitted). In view of the foregoing, this DuPont factor is neutral.
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G. Balancing the Factors
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. Customer care weighs against finding a likelihood of
confusion. However, with almost virtually identical marks and related,
complementary goods marketed in the same trade channels to the same category of
consumers even a more careful consumer is not likely to understand that the goods
emanate from different sources. See, e.g., In re Johns-Manville Corp., 180 USPQ 661,
662 (TTAB 1973) (“While the average purchaser of [building doors and asphalt
shingles] may be skilled craftsmen, it does not necessarily follow therefrom that they
are equally informed as to the source of the products that they use and are, unlike
customers for other products, immune from the likelihood of confusion or deception
that the statute is attempting to preclude.”). These findings lead us to the conclusion
that prospective consumers are likely to confuse the source of the involved goods.
Decision: The Section 2(d) refusal is affirmed.