Gold House Foundation, Inc.

Trademark Trial and Appeal Board

Dec 1, 2020

88430340 (T.T.A.B. Dec. 1, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 1, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Gold House Foundation, Inc.
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Serial No. 88430340
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Peter Shimamoto of Willenken LLP,
for Gold House Foundation, Inc.
Robert Clark, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Cataldo, Taylor and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Gold House Foundation, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark GOLD RUSH (in standard characters) for the following services
(as amended):
Arranging and conducting special events for business purposes, namely,
providing a limited-time digital and physical event where new and
existing products are discounted to help promote Asian and New
Majority entrepreneurs, companies, and their products; excluding car
rallies in International Class 35.1

1 Application Serial No. 88430340 was filed on May 14, 2019, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Trademark Act Section
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The Trademark Examining Attorney refused registration of Applicant’s GOLD
RUSH mark pursuant to Trademark Act Section 2(d), 15 U.S.C. §1052(d), on the
ground of likelihood of confusion with the mark GOLDRUSH RALLY (in standard
characters, “Rally” disclaimed), registered on the Principal Register for:
Arranging and conducting marketing promotional events for others;
Arranging and conducting special events for business purposes;
Arranging and conducting special events for commercial, promotional or
advertising purposes; Organisation [sic] of exhibitions and events for
commercial or advertising purposes; Organization of events, exhibitions,
fairs and shows for commercial, promotional and advertising purposes;
Promoting sports competitions and events of others; Promoting the
parties and special events of others; Special event planning for business
purposes; Special event planning for commercial, promotional or
advertising purposes in International Class 35.2
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. The appeal is fully briefed. We affirm the refusal to register.
I. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each

1(b), 15 U.S.C. § 1051(b). On December 4, 2019, Applicant filed an Amendment to Allege Use
pursuant to Trademark Act Section 1(c), 15 U.S.C. § 1051(c), alleging first use of the mark
anywhere and first use of the mark in commerce since at least as early as September 19,
2019, under Trademark Act Section 1(a), 15 U.S.C. § 1051(a). The Amendment to Allege Use
was accepted on December 10, 2019.
2 Registration No. 5039209, issued on September 13, 2016.
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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). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to the various DuPont factors depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more
or less weighty roles in any particular determination”). Two key considerations are
the similarities between the marks and the relatedness of the goods and services. See
In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017)
(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,
1380 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all DuPont
factors for which there is record evidence but ‘may focus … on dispositive factors,
such as similarity of the marks and relatedness of the goods.’”)).
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II. Likelihood of Confusion - Analysis
We now consider the arguments of Applicant and the Examining Attorney, the
applicable law and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney discussed are the similarity or dissimilarity
of the marks, the relatedness of the services associated with the respective marks,
and the channels of trade in which the marks and services travel. We discuss these
factors below.
A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “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 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110
USPQ2d at 1812).
Under actual marketing conditions, consumers do not necessarily have the luxury
of making side-by-side comparisons between marks, and must instead rely upon their
imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259
(TTAB 1980). “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
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connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1801 (Fed. Cir. 2018) (quotation omitted).
The parties’ marks “must be considered … in light of the fallibility of memory ….”
In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014)
(quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683,
196 USPQ 1 (CCPA 1977)). Therefore, the focus is on the recollection of the average
purchaser, here, the purchaser of promotional event services, who normally retains a
general rather than a specific impression of trademarks. In re Assoc. of the U.S. Army,
85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975).
We begin with Applicant’s argument that its mark, GOLD RUSH, is
distinguishable from the first word in Registrant’s mark, GOLDRUSH, because the
former is two words and the latter is one.3 We find Applicant’s mark is identical to
the first word in Registrant’s mark, except for the space, which is inconsequential.
See, e.g., Seaguard Cor. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984)
(“‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation of law, identical”); In re Best
W. Family Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“There can be little
doubt that BEEFMASTER and BEEF MASTER are practically identical”).
Applicant’s next argument is that its mark, GOLD RUSH, comprises two
syllables, whereas Registrant’s mark, GOLDRUSH RALLY, comprises four.

3 Applicant’s Brief, 4 TTABVUE 13.
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Consequently, says Applicant, the marks differ in appearance and sound.4 This
argument is contrary to the above-quoted guidelines of the U.S. Court of Appeals for
the Federal Circuit when we compare marks for likelihood of confusion purposes. The
proper test is not a side-by-side comparison, but instead whether the marks are
sufficiently similar such that persons who encounter them would be likely to assume
a connection between the parties. Cai v. Diamond Hong, 127 USPQ2d at 1801.
While likelihood of confusion cannot be predicated on dissecting the marks into
their various components, different features may be analyzed and given more or less
weight, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. See In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). Although we must consider the marks in their entireties, we find the terms
GOLD RUSH and GOLDRUSH to be the dominant portions of the marks. They are
the first or only terms in the marks. See Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”); Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992) (upon encountering the marks, consumers will first notice the identical
lead word).
Disclaimed matter that is descriptive of or generic for a party’s services is typically
less significant or less dominant when comparing marks. In re Detroit Athletic, 903
F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., Inc.,

4 Id.
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105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)). Although we must, and
do, consider the marks in their entireties, we find the disclaimed term RALLY, the
second word in Registrant’s mark, to be of less significance when comparing the two
marks. Having said this, we recognize that “[n]o element of a mark is ignored simply
because it is less dominant, or would not have trademark significance if used alone.”
In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990)
(citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ 35
(CCPA 1974)).
Applicant argues at length that the disclaimer of RALLY in the GOLDRUSH
RALLY registration supports the notion that this term “describes a characteristic or
feature of the applicant’s services, namely, car rallies.”5 Applicant comes to this
conclusion by way of a tortured analysis of how the disclaimer was entered into the
record during the prosecution of the underlying application (Application Ser. No.
88430340 or the “‘340 Application”) to the GOLDRUSH RALLY registration, and how
that disclaimer functions in practice.6
In the First Office Action of December 3, 2015, during the prosecution of the ‘340
Application, the Examining Attorney required a disclaimer of RALLY from the
GOLDRUSH RALLY mark as a whole, stating:
Applicant must disclaim the word “RALLY” because it merely describes
a characteristic or feature of applicant's services, and thus is an
unregistrable component of the mark.
* * *

5 Id. at 23.
6 Id. at 6, 9-16, 18-23; Applicant’s Reply Brief, 8 TTABVUE 6-10.
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An applicant may not claim exclusive rights to terms that others may
need to use to describe their services in the marketplace. … A disclaimer
of unregistrable matter does not affect the appearance of the mark; that
is, a disclaimer does not physically remove the disclaimed matter from
the mark.
* * *
If applicant does not provide the required disclaimer, the USPTO may
refuse to register the entire mark.7
The Examining Attorney of the ‘340 Application based her disclaimer requirement
on evidence that the owner of the GOLDRUSH RALLY mark was using the mark in
connection with automotive lifestyle rallies.8 In response, the owner of the
GOLDRUSH RALLY mark agreed to the entry of the disclaimer,9 which appears in
the GOLDRUSH RALLY registration as issued.10
The Examining Attorney (in the present appeal) notes that the term RALLY has
multiple definitions:11
As a transitive verb:
1.a.: to muster for a common purpose
b.: to recall to order
2.a.: to arouse for action
b.: to rouse from depression or weakness
As an intransitive verb:
1.: to come together again to renew an effort
2.: to join in a common cause
3.: recover, rebound

7 Office Action of December 3, 2015 from the ‘340 Application, made of record by Applicant
with Response to Office Action of December 20, 2019 at TSDR 14-15. Citations omitted.
8 Id. at 14-15, 22-32.
9 Office Action Response of May 19, 2016 from the ‘340 Application, made of record by
Applicant with Response to Office Action of December 20, 2019 at TSDR 34.
10 X-Search copy of Registration No. 5039209 made of record with Office Action of July 29,
2019 at TSDR 6-8.
11 (https:/www.merriam-webster.com/dictionary/rally) (last visited Dec. 26, 2019) MERRIAM-
WEBSTER definition of RALLY provided with Office Action of December 26, 2019 at TSDR 4-
5). Examining Attorney’s Brief, 6 TTABVUE 8-9.
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As a noun:
1.a.: a mustering of scattered forces to renew an effort
b.: a summoning up of strength or courage after weakness or dejection
c.: a recovery of price after a decline
d.: a renewed offensive
2.: a mass meeting intended to arouse group enthusiasm
3.: a series of shots interchanged between players (as in tennis) before a
point is won
4.: or less commonly rallye [French rallye, from English rally entry 1.]:
an automobile competition using public roads and ordinary traffic rules
with the object of maintaining a specified average speed between
checkpoints over a route unknown to the participants until the start of
the event
The Examining Attorney further argues that: (1) the word “RALLY” does not
appear in Registrant’s listing of services, (2) the meaning of the word “RALLY” in
Registrant’s mark is open to any of the above definitions, and (3) the definition of
RALLY referring to an automobile competition is listed as less common and is a
French word typically spelled “rallye”.12
Applicant argues that “[t]he issue is not what meanings the word ‘RALLY’ may
have in the abstract, but rather what it means in connection with the specific services
that are the subject of the GOLDRUSH RALLY registration”,13 citing, inter alia, In
re Champion Int’l Corp., 183 USPQ 318, 320 (TTAB 1974) (“It is well established that
the fact that a word or term may have more than one meaning is not controlling on
the question of descriptiveness since this question must be determined, not in the
abstract, but in relation to the goods for which registration is sought….”). While
Champion Int’l and the other cases cited by Applicant in its brief are mere

12 Examining Attorney’s Brief, 6 TTABVUE 9.
13 Applicant’s Brief, 4 TTABVUE 14.
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descriptiveness cases, this proposition is also true in the likelihood of confusion
context as well. Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825, 1835
(TTAB 2013) (“[W]e … look at any commercial impressions or connotations created
by the marks and, in doing so, we consider the marks in relation to the identified
goods and services.”). We agree with Applicant on this point, but our agreement stops
there.
Applicant goes further, and contends that “[t]he owner of [the] GOLDRUSH
RALLY [mark] expressly admitted that the term ‘RALLY’ as used in that mark
specifically refers to car rallies, and is descriptive of the services offered in connection
with that mark. Thus, that is the only definition that is relevant here.” Consequently,
says Applicant, “[t]he Examining Attorney’s observation that ‘RALLY’ has meanings
other than car rallies … does not support his refusal to register GOLD RUSH [on
likelihood of confusion grounds].”14 This is not correct.
Rather, the disclaimer of RALLY in the GOLDRUSH RALLY registration
“constitutes a tacit admission [by the owner] that this individual term is generic [or
merely descriptive] for the identified services.” Alcatraz Media, Inc. v. Chesapeake
Marine Tours Inc. 107 U.S.P.Q.2d 1750, 1762 (TTAB 2013), aff'd, 565 F. App’x 900
(Fed. Cir. 2014) (emphasis added). Contrary to Applicant’s argument, the disclaimer
of RALLY is not an admission that RALLY specifically refers to car rallies. In fact, as

14 Applicant’s Brief, 4 TTABVUE 15.
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the Examining Attorney notes,15 the term RALLY (or for that matter the term CAR
RALLY) is nowhere to be found in Registrant’s Identification of Services:
Arranging and conducting marketing promotional events for others;
Arranging and conducting special events for business purposes;
Arranging and conducting special events for commercial, promotional or
advertising purposes; Organisation [sic] of exhibitions and events for
commercial or advertising purposes; Organization of events, exhibitions,
fairs and shows for commercial, promotional and advertising purposes;
Promoting sports competitions and events of others; Promoting the
parties and special events of others; Special event planning for business
purposes; Special event planning for commercial, promotional or
advertising purposes in International Class 35.
Moreover, “[t]he submission of [a] … disclaimer [as to Registrant’s mark] … will not
overcome [a] … refusal to register [Applicant’s mark] under Section 2(d) of the
Trademark Act ….” In re Information Builders Inc., 2020 USPQ2d 10444 at *11-12
(TTAB 2020).
Thus, of the definitions of RALLY from MERRIAM-WEBSTER noted above, in the
context of Registrant’s Identification of Services, we find the most apt one to be “a
mass meeting intended to arouse group enthusiasm,” because it most accurately
describes Registrant’s services of “arranging and conducting marketing promotional
events and special events for others.” This definition of RALLY also most accurately
describes Applicant’s services of “arranging and conducting special events for
business purposes, namely, providing a limited-time digital and physical event …” In
sum, the inclusion of the term RALLY in Registrant’s mark reinforces the overall

15 Examining Attorney’s Brief, 6 TTABVUE 9.
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similar connotation and commercial impression of Registrant’s GOLDRUSH RALLY
mark to Applicant’s GOLD RUSH mark.
Additionally, as noted by the Examining Attorney,16 although Applicant’s GOLD
RUSH mark does not contain the entirety of Registrant’s GOLDRUSH RALLY mark,
Applicant’s mark is likely to appear to prospective purchasers as a shortened form of
Registrant’s mark. Thus, merely omitting RALLY from Registrant’s mark does not
overcome a finding of likelihood of confusion. See In re Mighty Leaf Tea, 601 F.3d
1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (“[Applicant’s mark] ML is likely to be
perceived as a shortened version of [Registrant’s] ML MARK LEES [mark] when used
on the same or closely related skin care products.”).
Applicant’s reliance on Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671 (Fed. Cir. 2015) is misplaced. In Juice Generation, the Federal
Circuit faulted the Board for stating that “PEACE LOVE” was the “dominant” portion
of the applicant’s PEACE LOVE AND JUICE mark, comparing that portion to the
opposer’s “PEACE & LOVE” mark, finding that they were “virtually identical,” and
then adding that the additional disclaimed word “JUICE” did not serve to sufficiently
distinguish the applicant’s mark from the opposer’s mark. The Federal Circuit found
that analysis to be inadequate, because it did not consider how the three-word phrase
comprising the applicant’s mark may convey a distinct meaning—including by having
different connotations in consumers’ minds—from the two-word phrase comprising
the opposer’s mark. Juice Generation, 115 USPQ2d at 1676.

16 Examining Attorney’s Brief, 6 TTABVUE 9.
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In the present appeal, we (similar to the Examining Attorney) do not simply
compare GOLD RUSH and GOLDRUSH as virtually identical and then discard the
disclaimed word RALLY as insufficient to distinguish Applicant’s and Registrant’s
marks from one another. To the contrary, as we discuss above, the addition of RALLY
to Registrant’s mark reinforces the similarity of GOLDRUSH RALLY to GOLD
RUSH as a whole when the respective services associated with each mark are
considered. Conversely, the absence of the term RALLY in Applicant’s mark is likely
to encourage prospective purchasers to believe that GOLD RUSH is a shortened form
of Registrant’s GOLDRUSH RALLY mark when the respective services are
considered.
As a whole, we have compared Applicant’s GOLD RUSH mark to Registrant’s
GOLDRUSH RALLY mark by the elements of appearance, sound, meaning and
commercial impression. In doing so, we find that the marks are more similar than
they are dissimilar. The first DuPont factor, the similarity of the marks, supports a
conclusion that confusion is likely.
B. The Similarity or Dissimilarity and Nature of the Services
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods and 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., 113
USPQ2d at 1086 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
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To determine the relationship between the respective goods and services, we are
bound by the Identifications in Applicant’s involved Application and the cited
Registration. In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997) (“Likelihood of confusion must be determined based on an analysis of the marks
as applied to the … services recited in applicant’s application vis-à-vis the … services
recited in [a] … registration, rather than what the evidence shows the … services to
be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987)).
“Likelihood of confusion must be found as to the entire class [of services] if there
is likely to be confusion as to any … service that comes within the recitation of
services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
Registrant’s broadly worded Class 35 services, without limitation, include
“[a]rranging and conducting marketing promotional events for others; arranging and
conducting special events for business purposes; arranging and conducting special
events for commercial, promotional or advertising purposes; organization of events,
exhibitions, fairs and shows for commercial, promotional and advertising purposes.”
Applicant’s more narrowly-drawn Class 35 services comprise “[a]rranging and
conducting special events for business purposes, namely, providing a limited-time
digital and physical event where new and existing products are discounted to help
Serial No. 88430340
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promote Asian and New Majority entrepreneurs, companies, and their products;
excluding car rallies.”
We find that Applicant’s and Registrant’s Class 35 services are, in part, legally
identical. See, e.g., In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137
(TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”). Applicant argues that the scope of protection for Registrant’s
GOLDRUSH RALLY mark is limited to car rallies, because all of the specimens of
use Registrant submitted during the prosecution of its underlying application were
limited to car rallies.17 Applicant’s argument is contrary to settled law, as we mention
above, that likelihood of confusion must be determined based on an analysis of the
marks as applied to the services recited in the application and the services recited in
the registration, rather than on evidence of actual use. In re Dixie Rests., 41 USPQ2d
at 1534; see also, In re Detroit Athletic, 128 USPQ2d at 1052 (“The relevant inquiry
in an ex parte proceeding focuses on the goods and services described in the
application and registration, and not on real-world conditions.”) (citing In re
i.am.symbolic, 123 USPQ2d at 1749). The second DuPont factor, the relatedness of
Registrant’s and Applicant’s Class 35 services, supports a finding that confusion is
likely.

17 Applicant’s Brief, 4 TTABVUE 21, referring to the specimens submitted during prosecution
of the underlying ‘340 Application to register the GOLDRUSH RALLY mark. Office Action
Response of December 20, 2019 at TSDR 37-40.
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C. The Similarity or Dissimilarity of Channels of Trade
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014). As noted above, where Applicant’s and Registrant’s Identification of Services
overlap, the GOLDRUSH RALLY Registration does not contain any restriction on the
channels of trade or classes of purchasers. When as here, the respective
Identifications of Services are legally identical, in part, those particular services are
presumed to travel in the same channels of trade to the same class of purchasers. In
re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); (“[A]bsent
restrictions in the application and registration, goods and services are presumed to
travel in the same channels of trade to the same class of purchasers.”). The third
DuPont factor, channels of trade, support a finding that confusion is likely.
III. Likelihood of Confusion - Conclusion
The first, second and third DuPont factors support the conclusion that confusion
is likely. The GOLD RUSH and GOLDRUSH RALLY marks have more similarities
than dissimilarities. This is particularly true considering that marks would appear
in connection with, in part, legally identical services.18 The trade channels for the
respective services are legally presumed to overlap.

18 Where the services are legally identical, as they are in this case (at least in part), the degree
of similarity between the marks required to support a finding of likelihood of confusion is not
as great as in the case of diverse services. See In re Bay State Brewing Co., 117 USPQ2d 1958,
1960 (TTAB 2016) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012)).
Serial No. 88430340
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Decision: The refusal to register Applicant’s GOLD RUSH mark on the ground of
likelihood of confusion pursuant to Trademark Act Section 2(d) is affirmed.