GK Legacy Foundation

Trademark Trial and Appeal Board

Sep 30, 2021

88449012 (T.T.A.B. Sep. 30, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re GK Legacy Foundation
_____

Serial No. 88449012
_____

David G. Bray of Dickinson Wright PLLC,
for GK Legacy Foundation.
Brittany Cogan, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
_____

Before Taylor, Adlin and Johnson,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
GK Legacy Foundation (“Applicant”) seeks registration on the Principal Register
of the mark KEEP YOUR CHIN UP SCHOLARSHIP FUND and design, as shown
below,

for:
Charitable foundation services, namely, providing
fundraising activities, funding scholarships and/or
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financial assistance for adults returning to college in
International Class 36.1
The wording SCHOLARSHIP FUND is disclaimed, and the application includes the
following description: “The mark consists of the underlined words ‘keep your chin up’
with the ‘u’ in the word ‘up’ featuring an upward arrow; the words ‘scholarship fund’
appear on the next line below with a horizontal line above.” Color is not claimed as a
feature of the mark.
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), on the ground that
Applicant’s mark, when used on or in connection with the identified goods, so
resembles the mark in Registration No. 5946084, THE CHIN UP FOUNDATION and
design (FOUNDATION disclaimed), shown below,

for “Charitable services, namely, coordination of non-monetary contributions to
charities and non-profits” in International Class 35,2 as to likely to cause confusion,
to cause mistake, or to deceive.

1 Application Serial No. 88449012 was filed on May 28, 2019, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as May 3, 2019.

2 Registration No. 5946084 issued December 24, 2019. The registration includes the following
description: “The mark consists of the wording ‘THE CHIN UP FOUNDATION’ where the
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After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Both Applicant and the Examining Attorney filed briefs and
Applicant filed a reply brief.3 We affirm the refusal to register.4
I. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We discuss these below. See In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board considers each DuPont
factor for which there is evidence and argument). Two key considerations in any

wording ‘THE’ and ‘FOUNDATION’ is in black and the wording ‘CHIN UP’; above the
wording is a design of two faces, one in red and one in white, both looking at a white sun
within a black circle.” The colors red, black and white are claimed as a feature of the mark.
3 Embedded in the body of its reply brief, Applicant provides hyperlinks to two idiom
definitions purportedly to establish alleged weakness in the terms “Chin Up” and “Keep Your
Chin Up.” See Applicant’s Reply Brief, p. 1. 11 TTABVUE 4. Providing only a web address or
a hyperlink without the material attached does not make the material that might be found
on that website of record. See In re Planalytics Inc., 70 USPQ2d 1453, 1457 (TTAB 2004); see
also In re King Koil Licensing Co., 79 USPQ2d 1048, 1050 (TTAB 2006) (in the ex parte
context, web site links “do little to show the context within which a term is used on the web
page that could be accessed by the link.”). Accordingly, we give no further consideration to
these website hyperlinks.
4 Page references herein to the application record are to the downloadable .pdf version of the
USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs
and orders on appeal are to the Board’s TTABVUE docket system. Where applicable,
complete urls can be found at the TSDR cite.

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likelihood of confusion analysis are the similarities between the marks and the
similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
II. Discussion
A. The Services and Classes of Consumers
We now compare the services under the second DuPont factor. In making our
determination regarding the relatedness of the services, we must look to the services
as identified in Applicant’s application and the cited registration. See In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); In re Dixie
Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002).
“This factor considers whether ‘the consuming public may perceive [the respective
services of the parties] as related enough to cause confusion about the source or origin
of the goods and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,
1086 (Fed. Cir. 2014).
Evidence of relatedness may include news articles and/or evidence from computer
databases showing that the relevant services are used together or used by the same
purchasers; advertisements showing that the relevant services 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 services and the services 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
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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). The issue is not whether
purchasers would confuse the services, but rather whether there is a likelihood of
confusion as to their source. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB
2012); In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984).
Under this DuPont factor, we need not find similarity as to every service listed in
the recitation. It is sufficient for a refusal based on likelihood of confusion that the
Examining Attorney establish relatedness for any item encompassed by the
identification of services in a particular class in the application. Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re
i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123
USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5
(TTAB 2015) (“[I]t is sufficient for finding a likelihood of confusion if relatedness is
established for any item encompassed by the identification of goods within a
particular class in the application.”).
As noted above, Applicant’s identified services are “charitable foundation services,
namely, providing fundraising activities, funding scholarships and/or financial
assistance for adults returning to college” and Registrant’s services are “charitable
services, namely, coordination of non-monetary contributions to charities and non-
profits.” The Examining Attorney maintains that the services are related because the
same entity commonly provides services of the types recited in the respective
identifications under the same mark. In support of her position, the Examining
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Attorney submitted Internet evidence demonstrating that Catholic Charities awards
scholarships and facilitates food donations to enable it to provide food assistance
under the Catholic Charities mark5; The Dollywood Foundation offers scholarships,
fund raises and organizes a book collection and gifting program6; Goodwill offers
scholarships for educational advancement and provides donation collection points for
non-monetary items, such as clothes and household items7; and Volunteers of
America provides both college scholarships and facilitates a youth backpack program,
through which needy school children are provided with backpacks filled with school
supplies.8
We initially find that Applicant’s and Registrant’s services are related and
complementary solely on the face of the respective identifications. We find so because,
as identified, both Applicant’s provision of fundraising activities and funding of
scholarships, and Registrant’s coordination of non-monetary contributions to
charities, serve the same goal or purpose, albeit through different means, of providing
ways for potential donors to make charitable donations. See In re Iolo Technologies,
LLC, 95 USPQ2d at 1500 (“Here, based on the identifications themselves, we find
that applicant offers a product that is complementary in function and purpose to the
[services] offered by registrant.”)

5 September 16, 2020 Final Office Action, TSDR 5-8 (www.catholiccharities.dc.org).
6 Id. at TSDR 9-12. (https://imaginationlibrary.com).
7 Id. at TSDR 14-18. (www.goodwill.org).
8 Id. at TSDR 26-28. (www.voa.org). We have not considered the webpages from the Rotary
Foundation because they do not show use of a single mark in connection with the provision
of services of the types identified in both Applicant’s application and the cited registration.
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We further find the internet evidence sufficient to show that Applicant’s
charitable services of providing fundraising activities and funding scholarships for
adults returning to school are related to Registrant’s non-monetary charitable
services, such services being highly related charitable services that are often offered
by the same source under the same mark. See, e.g., In re Detroit Athletic, 128 USPQ2d
at 1051 (relatedness supported by evidence that third parties sell both types of goods
under same mark, showing that “consumers are accustomed to seeing a single mark
associated with a source that sells both.”); In re Anderson, 101 USPQ2d 1912, 1920
(TTAB 2012) (Internet excerpts from “several third-party car dealerships offering
‘tires’ for sale on their websites” was “evidence that consumers expect to find both
‘tires,’ . . . “and ‘automobiles’ . . . emanating from a common source.”). Notably,
Applicant’s brief is silent on this factor.
During prosecution, Applicant argued that the services were not related because
Applicant provides “monetary fundraising” whereas the cited registration limits the
services to “coordination of non-monetary contributions to charities and non-profits.”9
We find this argument unavailing. The services 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

9 Applicant’s February 19, 2020 Response, TSDR 2, 6; Applicant’s August 26, 2020 Response,
TSDR 1, 4.
Serial No. 88449012
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could give rise to the mistaken belief that the goods [or services] emanate from the
same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)). Here, as the record demonstrates, consumers are
accustomed to seeing a single mark associated with both types of charitable services.
Accordingly, we find the respective charitable services related for purposes of our
likelihood of confusion analysis.
Furthermore, because there are no limitations as to channels of trade or classes
of purchasers in Applicant’s or Registrant’s recitation of services, we must presume
that Applicant’s and Registrant’s services, which include providing and/or facilitating
charitable assistance, move in all usual channels of trade for these services and are
offered to the usual classes of purchasers of the services which, in this case, include
ordinary consumers seeking to participate in (or benefit from in the case of
Applicant’s services) both monetary and non-monetary charitable activities. See In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). We accordingly find the classes
of consumers overlap.
The DuPont factors concerning the relatedness of the services, channels of trade
and classes of purchasers weigh in favor of finding that confusion is likely.
B. Conditions of Sale
Applicant maintains that given the specialized nature of the respective services,
– Applicant’s being financial assistance for adults returning to college and
Registrant’s being coordination of non-monetary contributions to charities – they will
Serial No. 88449012
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be purchased with great care by sophisticated consumers. More specifically,
Applicant argues that:
Applicant’s services are financial assistance for adults
returning to college. These services are generally provided
to a specific type of adult consumer returning to college
seeking assistance with college expenses. Given the type of
services provided, the great expense of college tuition, and
the education level of the targeted consumers of such
services, great care is implemented by consumers to ensure
their financial assistance package for their return to
college is the most comprehensive as possible.
Registrant’s services have very particularized purposes of
“coordination of non-monetary contribution to charities and
non-profits” (emphasis added). The consumer of
Registrant’s services are not individuals as is the case with
Applicant’s services; rather the consumers of Registrant’s
services are sophisticated charitable businesses who must
know a great level of detail about their donors to survive
and prosper.
Applicant’s brief, p. 9.10
As identified, the target recipient of Applicant’s scholarships are adults returning
to college. However, there is no evidence of record that these college-returning adults
will exercise more than ordinary care in seeking scholarship opportunities. In
addition, neither Applicant’s identified fundraising activities, including funding
scholarships nor Registrant’s coordination of non-monetary charitable contribution
services contain any limitations as to classes of consumers, and therefore, they are
not limited to sophisticated consumers, e.g., sophisticated charitable businesses.
Instead, the respective services will be available to all interested consumers,

10 8 TTABVUE 9.
Serial No. 88449012
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including ordinary ones. Accordingly, while some consumers may be discriminating
and exercise care in their choice of charitable activities in which to participate, others
may not exercise as great a degree of care. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (the
standard of care for purchasing the goods is that of the least sophisticated potential
purchaser).
To be clear, Applicant has focused on the recipients of its scholarships, as opposed
to the other consumers to whom Applicant offers its monetary fundraising and
funding scholarship services, i.e., donors. As identified, however, the consumers of
Applicant’s monetary-based charitable services (as well as those of Registrant’s non-
monetary-based charitable services) include the donors who seek to contribute
money, goods and time and, as just stated, these donors would include ordinary
consumers.
Nevertheless, even if we were to assume that some of the consumers of both
Applicant’s and Registrant’s services exercise more than ordinary care, even
knowledgeable and careful consumers are not immune to source confusion. See In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403 , 168 USPQ
110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers … are
not infallible.”)).
We accordingly find this DuPont factor neutral.
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C. Similarity or Dissimilarity of the Marks
1. Strength of the Cited Mark
To evaluate the inherent or conceptual strength of the cited mark, “we evaluate
its intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-
arbitrary (or fanciful) continuum of words.” In re Davia, 110 USPQ2d at 1815. “Marks
that are descriptive or highly suggestive are entitled to a narrower scope of
protection, i.e., are less likely to generate confusion over source identification, than
their more fanciful counterparts.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 115 USPQ2d 1671, 75 (Fed. Cir. 2015).
Applicant contends that “‘CHIN UP’ is weak for at least the reason that it is
frequently used in the consumer context in general.” Applicant’s brief, p. 5.11 To
support her position, Applicant references a listing from the USPTO’s Trademark
Electronic Search System (TESS) database of 13 live applications and registrations
for marks that included the term “CHIN UP,” 11 of which it purports are active
registered marks.12
The Examining Attorney, however, maintains that none of the third-party
registrations have been made of record. She particularly explains that in her Final
Office Action, she advised Applicant that the mere submission of a list of registrations
does not make such registrations part of the record, and that to make those third
party registrations part of the record, Applicant must submit copies of the

11 8 TTABVUE
12 Applicant’s February 19, 2020 Response, TSDR 11.
Serial No. 88449012
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registrations, or the complete electronic equivalent from the USPTO’s automated
systems, prior to appeal. Applicant did not do so. Accordingly the third-party
registrations are not properly of record, and we give them no further consideration.13
Applicant also submitted a definition from the CAMBRIDGE ENGLISH DICTIONARY,
which defines “chip up!” as “something you say to someone in a difficult situation in
order to encourage them to be brave and try not to be sad[.]”14 We acknowledge that
the phrase “chin up” has an understood meaning, but the record does not establish a
sufficient nexus between encouraging language and the provision of charitable
services, to ascribe a degree of weakness to that portion of the cited mark that would
make confusion unlikely.
Besides, the record evidence shows that the only marks that incorporate the term
“Chin Up,” and which cover charitable services, are Applicant’s applied-for mark and
the cited registered mark. Accordingly, we accord the phrase “chin-up” in the cited
mark the usual, or slightly less, scope of protection given an inherently distinctive
term.

13 The Examining Attorney alternatively addressed the third-party applications and
registrations, in part, noting that: “A]ssuming arguendo, that Applicant had properly
submitted the third-party registrations into the record … [n]one of the …
applications/registrations pertain to the charitable services at issue. We remind Applicant
that while third-party registrations may be relevant to prove that some segment of a
composite mark has a normally understood meaning leading to the conclusion that that
segment is weak, see Juice Generation v. GS Enters., 115 USPQ2d at 1675, third-party
registrations “featuring goods and/or services dissimilar or unrelated to those in the
application and the cited registration are of little probative value such weakness.” See Omaha
Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686 (Fed. Cir. 2018)
(error to rely on third-party evidence of similar marks for dissimilar goods, as Board must
focus “on goods shown to be similar”).
14 Applicant’s February 19, 2020 Response, TSDR 12 (https://dictionary.cambridge.org.us,
accessed February 19, 2020).
Serial No. 88449012
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2. The Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
USPQ2d at 1160; DuPont, 177 USPQ at 567. We do not predicate our analysis on a
dissection of the involved or cited marks; we consider the marks in their entireties.
Stone Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). However, 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 a consideration of the marks in
their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). The issue 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
services offered under the respective marks is likely to result. Coach Servs., 101
USPQ2d at 1721 (citation omitted). See also San Fernando Elec. Mfg. Co. v. JFD
Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977). The proper focus
is on the recollection of the average customer, who retains a general rather than
specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438
(TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The average consumers in this case include ordinary persons seeking to contribute to
Serial No. 88449012
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(or benefit from in the case of Applicant’s services) both monetary and non-monetary
charitable activities and services.
We compare Applicant’s composite word and design mark, ,
with the cited composite word and design mark . We initially find that
the phrase CHIN UP is the dominant portion of both Applicant’s applied-for mark
and the cited mark.
As to Applicant’s mark, the wording SCHOLARSHIP FUND has little to no
source-indicating significance; the wording SCHOLARSHIP FUND is descriptive and
has been disclaimed. As such, this term is entitled to less weight in our
determination. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir.
2004) (descriptive terms are properly given less weight). Also, the wording visually is
considerably small than the remaining elements in the mark. The upward arrow
design, comprising a portion of the letter “U” in the word “UP,” is hardly noticeable,
given the merging of the arrow shaft with one of the straight sides of the letter “U,”
and merely reinforces the meaning of the word “UP.” Similarly, the underlining
merely separates the phrase “KEEP YOUR CHIN UP” from the descriptive wording
“SCHOLARSHIP FUND,” without lending much, if anything, to the overall
commercial impression. Moreover, where both words and a design comprise a mark,
the words are normally accorded greater weight because they are more likely to make
an impression upon purchasers, would be remembered by them, and would be used
Serial No. 88449012
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by them to call for or discuss the services. In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1912 (Fed. Cir. 2012) (citing CBS, Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design and words,
the verbal portion of the mark is the one most likely to indicate the origin of the goods
to which it is affixed”)).
As to the cited mark, , as the Board has repeatedly found, the word
“the” is generally perceived, as it is in this case, as merely the common article that it
is, without trademark significance. See, e.g., In re G.D. Searle & Co., 149 USPQ 619
(CCPA 1966), aff’g 143 USPQ 220 (TTAB 1964) (THE PILL); In re King Coil Licensing
Co., 79 USPQ2d 1048, 1051 n.6 (TTAB 2006) (THE BREATHABLE MATTRESS); In
re Weather Channel, Inc., 229 USPQ 854, 856 (TTAB 1985) (THE WEATHER
CHANNEL); Conde Nast Publications Inc. v. The Redbook Publishing Co., 217 USPQ
356, 357 (TTAB 1983) (THE MAGAZINE FOR YOUNG WOMEN). Similarly, the
word FOUNDATION imparts little source-identifying significance, as it is merely
descriptive and has been disclaimed.
Regarding the design elements, as just stated, it will be the words rather than
colors and designs in the mark that will be used to call for and discuss Registrant’s
services. The design elements, while clearly noticeable, showing two abstract faces
within a black circle looking up with their “chin(s) up” towards the white sun, merely
enforcing the CHIN UP wording of the mark.
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Comparing the marks in their entireties, as we must, we find them similar in
appearance, sound, and connotation in that they both include, as dominant portions,
the literal phrase CHIN UP. Further regarding connotation, on this record, and given
the similarity of the respective services, the phrase CHIN UP conveys the same
meaning in both Applicant’s and the cited mark, i.e., an encouragement to someone
in a difficult situation. Moreover, given the structure and syntax of Applicant’s mark,
the words “KEEP YOUR” merely modify and personify Applicant’s mark. It is not
distinguishing; it is the term CHIN UP that consumers will perceive as the dominant
literal element.
The arrow and underlining design elements in Applicant’s mark also are simply
not sufficiently striking to convey a distinguishing commercial impression. Therefore,
despite Applicant’s contention to the contrary, we find little difference in the
connotations and commercial impressions between the marks.
While as Applicant points out, there are differences between the marks when
viewed on a side-by-side basis, we find that in their entireties, they are more similar
than dissimilar due to the shared phrase CHIN UP. Indeed, it is not unlikely that
consumers of both Applicant’s and Registrant’s services may well believe that the
marks are simply variants of one another, used by a single entity to identify and
distinguish complementary and related services. In re Great Lakes Canning, Inc., 227
USPQ 483, 485 (TTAB 1985).
The DuPont factor of the similarity of the marks thus also favors a finding of
likelihood of confusion.
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D. Conclusion
We find that confusion is likely between Applicant’s composite word and design
mark for the identified charitable services, and the cited
composite word and design mark for the recited charitable services. We
conclude so principally due to the similarity of the marks, the related and
complementary nature of the services and the overlapping trade channels and classes
of consumers.
Decision: The refusal to register Applicant’s mark under
Section 2(d) of the Trademark Act is affirmed.