Here for the Girls, Inc. dba Beyond Boobs!, Pink-Link and Pink Link

Trademark Trial and Appeal Board

Apr 23, 2019

EX (T.T.A.B. Apr. 23, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: April 23, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Here for the Girls, Inc.
dba Beyond Boobs!, Pink-Link and Pink Link
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Serial No. 87345046
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Duncan G. Byers of Pender & Coward PC,
for Here for the Girls, Inc.
Sandra Snabb, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Cataldo, Shaw, and Heasley,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Here for the Girls, Inc. (Applicant) seeks registration on the Principal Register of
the mark HERE FOR THE GIRLS, in standard characters, for “Charitable services,
namely, providing emotional support services for improvement of young womens [sic]
lives affected by Breast Cancer by means of in-person and online support,” in
International Class 45.1

1 Application Serial No. 87345046 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1(a), on February 22, 2017 claiming dates of first use anywhere of February 14, 2016
and in commerce of September 17, 2016.
Serial No. 87345046
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Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used with the identified
services, so resembles the mark FOR THE GIRLS, also in standard characters, for
“Promoting public awareness of breast cancer over the Internet,” in International
Class 35,2 as to be likely to cause confusion, mistake or deception. Registration also
has been refused under Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051 and
1127, on the ground that the specimen fails to show use of Applicant’s mark in
commerce in connection with the identified services.
When the refusals were made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. The case is fully briefed. We affirm the refusals to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
With its appeal brief, Applicant submitted a substitute specimen, excerpts
purportedly from Registrant’s website, and Google search results, none of which were
previously introduced into the record during prosecution.3 Because Applicant did not
assert otherwise, we assume that the evidence Applicant seeks to introduce with its
brief was available during the prosecution of its application.
Relying on Rule 2.142(d), 37 C.F.R. § 2.142(d), the Examining Attorney objects to
the attachments submitted by Applicant with its appeal brief. Rule 2.142(d) states:

2 Registration No. 4234626, issued October 30, 2012; combined Sections 8 and 15 affidavit
accepted and acknowledged.
3 9 TTABVUE 10-32.
Serial No. 87345046
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The record in the application should be complete prior to
the filing of an appeal. Evidence should not be filed with
the Board after the filing of a notice of appeal. If the
appellant or the examining attorney desires to introduce
additional evidence after an appeal is filed, the appellant
or the examining attorney should submit a request to the
Board to suspend the appeal and to remand the application
for further examination.
As set forth in the Rule, the record should be complete prior to the filing of the
appeal. If Applicant desired to introduce additional evidence after the appeal was
filed, it should have submitted a request to the Board to suspend the appeal and to
remand the application for further examination.
Applicant argues that the substitute specimens are nevertheless timely because
the above rule—that the record should be complete prior to the filing of the appeal—
applies to evidence, not substitute specimens. We disagree. Specimens are a type of
evidence establishing that a mark is in use in connection with the identified services,
and therefore they are part of the “record in the application,” which should be
complete prior to the filing of an appeal. See In re Metriplex, Inc., 23 USPQ2d 1315,
1316 (TTAB 1992) (“[B]ecause by its very nature a service mark can be used in a wide
variety of ways, the types of specimens which may be submitted as evidence of use
are varied.”); In re DSM Pharm., Inc., 87 USPQ2d 1623, 1625-26 (TTAB 2008)
(finding the submitted specimen unacceptable evidence of use of the mark in
connection with services). See also TRADEMARK MANUAL OF EXAMINING PROCEDURE
(TMEP) § 904.07(a) (October 2018) (“[R]egistration is refused because the applicant
has not provided evidence of use of the applied-for mark in commerce.”).
Serial No. 87345046
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Applicant further argues that the substitute specimens are not “new evidence”
because they are “exactly the same website, simply showing more of [Applicant’s]
webpage.”4 But Applicant’s own brief characterized the substitute specimen as a “new
specimen.”5 Moreover, the original submission of a partial printout of Applicant’s
website does not ensure that a later, more-extensive printout of Applicant’s website
features all of the same information that was available. Websites are transitory in
nature and may be modified or deleted at any time without notification. See Safer
Inc. v. OMS Invs. Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).
Finally, in its reply brief, Applicant requests that, in the event that the Board
finds any merit to Examining Attorney’s objection to the specimen submitted with
the appeal, the case should be remanded for the Examining Attorney to consider the
substitute specimen submitted with Applicant’s appeal brief.6 We decline to exercise
our discretion to remand the case at this late stage of the proceedings. TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1205.01 (2018) (“Remand
in an ex parte appeal is a matter of discretion with the Board”). See In re Big Pig Inc.,
81 USPQ2d 1436, 1437-38 (TTAB 2006) (applicant’s request for remand after filing
of reply brief denied). Additionally, remand of the application for consideration of the
substitute specimens would be futile because the declaration accompanying the

4 Applicant’s Reply Br., p. 2, 12 TTABVUE 3.
5 Applicant’s Br., p. 1, 9 TTABVUE 2.
6 Applicant’s Reply Br., p. 2, 12 TTABVUE 3.
Serial No. 87345046
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specimens did not include the language required under 37 C.F.R. § 2.20. See TMEP
§ 904.05.
We sustain the Examining Attorney’s objection. The exhibits submitted with
Applicant’s appeal brief will not be considered. See In re Luxuria s.r.o., 100 USPQ2d
1146, 1147-48 (TTAB 2011); TBMP § 1207.01.
II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the services and the similarities between the marks. See 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 [or services] and differences in the marks.”).
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression
First, we consider the similarity of the marks. In comparing the marks we must
consider their 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). The emphasis of our analysis must be on the
recollection of the average purchaser, who normally retains a general, rather than
specific, impression of trademarks. Although we consider the marks as a whole, “in
Serial No. 87345046
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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.” In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s mark is HERE FOR THE GIRLS in standard characters. Registrant’s
mark is FOR THE GIRLS, also in standard characters. We find that Applicant’s mark
incorporates Registrant’s mark in its entirety and merely adds the word HERE.
Incorporating the entirety of one mark within another and simply adding a term
typically does not obviate the similarity between the marks, nor does it overcome a
likelihood of confusion under Section 2(d). See In re Mighty Leaf Tea, 601 F.3d 1342,
94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (“[T]he presence of an additional term in the
mark does not necessarily eliminate the likelihood of confusion if some terms are
identical.”); see also China Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d
1123 (Fed. Cir. 2007) (The common word in CHI and CHI PLUS is likely to cause
confusion despite differences in the marks’ designs).
In this case, the addition of the word HERE does not distinguish Applicant’s mark
from Registrant’s. Both marks convey the same connotation or commercial
impression, i.e., support “for the girls.” The marks also are similar in appearance and
sound, inasmuch as both marks are in standard characters and share the dominant
wording FOR THE GIRLS. The addition of the word HERE merely modifies the
phrase FOR THE GIRLS so as to provide additional detail without significantly
changing the sound of the words.
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This du Pont factor weighs in favor of a finding of a likelihood of confusion with
respect to the cited registration.
B. The nature and similarity or dissimilarity of the services
We next consider the similarity of the services. It is well settled that in making
our determination, we must look to the services as identified in the application vis-à-
vis those recited in the cited registration. Octocom Sys., Inc. v. Houston Computer
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an applicant’s mark must be decided on
the basis of the identification of goods [or services] set forth in the application
regardless of what the record may reveal as to the particular nature of an applicant’s
goods [or services]”).
Both Applicant and Registrant are providing services related to combating breast
cancer. Applicant is providing “Charitable services, namely, providing emotional
support services for improvement of young womens [sic] lives affected by Breast
Cancer by means of in-person and online support.” Registrant is “Promoting public
awareness of breast cancer over the Internet.”
The Examining Attorney has introduced seven third-party registrations
establishing that Applicant’s cancer-survivor support services and Registrant’s
cancer-awareness promotion services are commonly provided by the same entity
under the same mark. The following five registrations are the most relevant:7
• Registration No. 3312296 for the mark LINKS FOR LIFE for, inter alia,
“Promoting public awareness of breast cancer” and “Organizing and

7 Office Action of May 22, 2017, pp. 43-60.
Serial No. 87345046
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conducting support groups in the field of breast cancer awareness for breast
cancer patients and members of their family”;
• Registration No. 4236888 for the mark SINGLETON for, inter alia,
“Promoting public awareness of the needs of cancer patients and their
families” and “Providing personal support services for patients and families
of patients with cancer, namely, emotional counseling and emotional
support”;
• Registration No. 4608189 for the mark SISTERS BY CHOICE for, inter
alia, “Promoting public awareness of breast cancer for women” and
“Organizing and conducting support groups in the field of breast cancer”;
• Registration No. 4613176 for the mark FORCE for, inter alia, “Promoting
public awareness of the need for breast and ovarian cancer awareness,
education, and research” and “Providing peer-to-peer emotional counseling
and emotional support services for people affected by hereditary and breast
and ovarian cancer”; and
• Registration No. 4882495 for a word and design mark for, inter alia,
“Promoting public awareness about cancer and cancer research, prevention,
diagnosis, treatment, the cure of cancer” and “Providing personal support
services for patients and families of patients with cancer, namely,
emotional counseling and emotional support”.
The Examining Attorney also introduced excerpts from third-party Internet web
sites establishing that a number of organizations provide both Applicant’s and
Registrant’s services. The following examples are representative:
• Excerpts from youngsurvival.org showing the mark, “Young Survival
Coalition,” used in connection with offering links to “Find Support Online”
and promoting public awareness of breast cancer via articles, email, and
online tools and forums;8
• Excerpts from komen.org which show the same mark, “Susan G. Komen,”
used in connection with offering links to “Support Groups” and promoting
public awareness of breast cancer via online information;9
• Excerpts from cancerhopenetwork.org which show the same mark, “Cancer
Hope Network,” used in connection with a service matching cancer patients

8 Office Action of May 22, 2017, pp. 4-16.
9 Id. at 17-24.
Serial No. 87345046
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and their families with volunteer cancer survivors for emotional support,
as well as with materials about breast cancer;10
• Excerpts from stupidcancer.org which show the same mark, “Stupid
Cancer,” used in connection with links to support for cancer patients,
family, and caregivers, as well as with promoting public awareness of
cancer via online information;11
• Excerpts from dana-farber.org which show the same mark, “Dana-Farber,”
used in connection with “offering comprehensive care, support, and
education” tailored for breast cancer patients”;12 and
• Excerpts from lbbc.org which show the same mark, “Living Beyond Breast
Cancer,” used in connection with breast cancer services, include help
telephone lines and links to support, and stating: “Connecting you to
information you can trust and support you can count on.”13
The foregoing evidence establishes that Applicant’s cancer-survivor support
services and Registrant’s cancer-awareness promotion services are related. The
respective services are commonly offered under the same mark by the same entity to
the same consumers, namely, patients, family members, and caregivers.
This du Pont factor weighs in favor of a finding of a likelihood of confusion with
respect to the cited registration.
C. Strength of the marks
Applicant argues that the term “the girls” is commonly used, weak, entitled to
narrow protection, and is therefore unlikely to cause confusion.14 Inasmuch as we

10 Id. at 25-31.
11 Id. at 32-34.
12 December 13, 2017 Final Office Action, pp. 4-19.
13 Id. at pp. 20-28.
14 Applicant’s Br., p. 5, 9 TTABVUE 6.
Serial No. 87345046
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have not considered Applicant’s untimely Google search results, there is no evidence
to support this argument.15 This du Pont factor is neutral.
D. Conclusion
Because the marks are similar and the services are related, there is a likelihood
of confusion between Applicant’s mark, HERE FOR THE GIRLS, and the mark FOR
THE GIRLS in the cited registration.
III. Specimens
Under Section 45 of the Trademark Act, a service mark is used in commerce “when
it is used or displayed in the sale or advertising of services . . . .” “[A]n acceptable
specimen must show ‘some direct association between the offer of services and the
mark sought to be registered therefor.’” In re Pitney Bowes, Inc., 125 USPQ2d 1417,
1419 (TTAB 2018) (quoting In re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ
456, 457 (CCPA 1973)). In determining “whether a mark is used in connection with
the services described in the [application], a key consideration is the perception of the
user.” In re JobDiva, Inc., 843 F.3d 936, 121 USPQ2d 1122, 1126 (Fed. Cir. 2016).
Applicant submitted the following specimen, which is described as “the support
webpage showing a white box in the center of the page displaying the words ‘Here for
the Girls.’”16

15 In any event, Google Search results such as those submitted by Applicant are of limited
value. See In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir.
2007) (“Because the GOOGLE search report provides very little context of the use of
ASPIRINA on the webpages linked to the search report, it is of little value in assessing the
consumer public perception of the ASPIRINA mark.”).
16 Application of February 22, 2017.
Serial No. 87345046
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The mark HERE FOR THE GIRLS appears in the URL of the web page and in a
white box in the middle of the page. The page includes a tab at the top of the page
with the word “DONATE” in a pink box. However, there is no mention of any services
Applicant is providing. That is, prospective consumers may donate, but they will have
no idea to whom they are donating or why. Absent any references to Applicant’s
charitable services, the mark HERE FOR THE GIRLS is not associated with the
services. See, e.g., In re Keep A Breast Found., 123 USPQ2d 1869, 1876-1879 (TTAB
2017). As such, applicant’s specimen fails to show use of Applicant’s mark in
commerce in connection with the identified services.
Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d)
and under Sections 1 and 45 of the Lanham Act, 15 U.S.C. §§ 1051, 1052(d), and 1127.