87585468 (T.T.A.B. Aug. 23, 2019)

HIE Retail, LLC

Trademark Trial and Appeal BoardAug 23, 2019

87585468 (T.T.A.B. Aug. 23, 2019)

Mailed: August 23, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ——— In re HIE Retail, LLC ——— Serial Nos. 87581511, 87585468, 87585471, 87617730 ——— Joseph A. Stewart, Kobayashi Sugita & Goda for HIE Retail, LLC. Roger T. McDorman, Trademark Examining Attorney, Law Office 109, Michael Ka- zazian, Managing Attorney. ——— Before Mermelstein, Shaw, and Hudis, Administrative Trademark Judges. Opinion by Mermelstein, Administrative Trademark Judge: Alleging an intent to use the marks in commerce, Applicant seeks registration of the marks set out below, in each case for Retail convenience stores; Retail store services featuring convenience store items and gasoline. IC 35. App. No. Applied-for Mark Filing Date Disclaimer Color Statement 87581511 NOM NOM Aug. 24, 2017 87585468 Aug. 28, 2017 The color(s) violet, ma- genta, and white is/are claimed as a feature of the mark. 87585471 Aug. 28, 2017 The color(s) violet, ma- genta, and white is/are claimed as a feature of the mark. 87617730 NOM NOM EXPRESS Sept. 21, 2017 EXPRESS This Opinion is not a Precedent of the TTAB Serial Nos. 87581511, 87585468, 87585471, 87617730 - 2 - In each application, the Examining Attorney issued a final refusal of registration pursuant to Trademark Act Section 2(d); 15 U.S.C. § 1052(d), alleging that Appli- cant’s mark is likely to cause confusion, to cause mistake, or to deceive in view of Registration No. 4364276,1 for the mark OM NOM ORGANICS (in standard characters; ORGANICS disclaimed), registered for Retail convenience stores; Retail store services featuring green and eco-friendly products in the nature of groceries and prepared foods; Retail grocery stores. IC 35. These four appeals were separately briefed. Because the issues, evidence, and ar- gument are substantially the same, we resolve them in a combined opinion, noting the differences among them as appropriate.2 See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1214 (June 2019). Unless otherwise noted, citations are to the record in App. No. 87581511. Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. I. Evidence A. Submissions The Examining Attorney submitted a copy of the cited registration with the First Office Action, November 11, 2017, and the following evidence with the June 6, 2018, Final Office Action: 1 Registered July 9, 2013; combined §§ 8 and 15 declaration accepted and acknowledged. 2 Had Applicant or the Examining Attorney brought the matter to the attention of the Board, the appeals could have been consolidated for briefing. The filing of consolidated briefs would likely have saved some of the time and effort required to draft, respond to, and consider the four sets of briefs now before us. Serial Nos. 87581511, 87585468, 87585471, 87617730 - 3 - • Definitions from the Urban Dictionary of om nom, omnom, Nomnom, and variations, TSDR 7–18 (June 6, 2018); • Dana Hatic, EATER, The Origins of the Annoyingly Trendy Word ‘Nom’, Explained (November 2, 2016), TSDR 19–28 (June 6, 2018); • Jamie Dubs, updated by Emperor Palpitoad, Know Your Meme, Om Nom Nom Nom (last visited June 6, 2018), TSDR 29–36 (June 6, 2018); and • Definitions of convenience store, Oxford Living Dictionary (U.S.), The Amer- ican Heritage Dictionary (both last visited June 6, 2018), TSDR 37–39 (June 6, 2018). Applicant submitted the following evidence with its May 16, 2018, Response to the First Office Action: • Definitions of vowel and consonant, Dictionary.com (last visited May 11, 2018), TSDR 14–15 (May 16, 2018); • Definitions of nom, nomnom, and om, Urban Dictionary (undated),3 Oxford Dictionaries (May 15, 2018), Merriam-Webster Dictionary (undated), TSDR 16–17, 20–21 (May 16, 2018); • Google results of a search for om (May 16, 2018), and nom (May 10, 2018), TSDR 22–25 (May 16, 2018); • Nancy Haught, The Oregonian, Spirituality of eating organic food ignored by Stanford study (Sept. 27, 2012), TSDR 26 (May 16, 2018); • What Is Spiritual Nutrition? The true nature of our deep connection to what we eat. (visited May 14, 2018), TSDR 27–28 (May 16, 2018); • Pages from cited registrant’s website: Om Organics - About Us (last visited May 14, 2018) TSDR 29–30 (May 16, 2018); • Pages from Applicant’s website: Hi, we’re nomnom where your belly has its way (last visited May 14, 2018), TSDR 31–33 (May 16, 2018); and • Photographs of Applicant’s store (undated), TSDR 34–35 (May 16, 2018). 3 Internet materials should include the date and URL. See In re I-Coat Co. 126 USPQ2d 1730, 1733 (TTAB 2018) (citing In re Mueller Sports Med., Inc., 126 USPQ2d 1584, 1587 (TTAB 2018); see also TMEP § 710.01(b). Nonetheless, we will consider this web page in the absence of an objection by the Examining Attorney. Serial Nos. 87581511, 87585468, 87585471, 87617730 - 4 - B. Objection In his brief, the Examining Attorney points out that the record should be complete prior to appeal, and objects “[i]n the event any evidence submitted with the applicant’s brief is not already of record . . . and requests that the Board disregard it.” Ex. Att. Br., 6 TTABVUE 5 (emphasis added). The Examining Attorney did not specify what evidence he was referring to, and it is not clear whether he is actually aware of any evidence improperly referred to in Applicant’s brief. While any improperly submitted evidence may be objected to, the objection should identify the evidence with reasona- ble specificity; objections should not be made based on the mere possibility that uni- dentified evidence was improperly submitted. It is not obvious to us that Applicant submitted new evidence on appeal, and the objection is therefore denied. We do note that Applicant included active hyperlinks in its brief, which we decline to access. In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269, 1274 (TTAB 2012). It appears, however, that these URLs were merely intended to identify the original source of evidence that was properly submitted. II. Applicable Law Our determination under Trademark Act Section 2(d) is based on an analysis of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence, we keep in mind that “[t]he fun- damental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Serial Nos. 87581511, 87585468, 87585471, 87617730 - 5 - Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). III. Analysis A. Similarity or dissimilarity and nature of the services. In comparing the services, “[t]he issue to be determined . . . is not whether the [services] . . . are likely to be confused but rather whether there is a likelihood that purchasers will be misled into the belief that they emanate from a common source.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989). Applicant contends that the cited registrant’s mark “is used in connection with ‘retail store services featuring green and eco-friendly products in the nature of grocer- ies and prepared foods,’ ” while “Applicant’s Mark . . . is used in connection with its gas station convenience stores and the sale of quick and inexpensive snack foods item, [sic] as anyone might reasonably expect.” App. Br., 4 TTABVUE 24–25. Applicant also contends that the owner of the cited registration is “[a]n organic retailer . . . by virtue of its name” and that “the Registered Mark should be viewed as limited in scope to organic foods, which the Applicant’s Mark neither purports to ‘feature’ nor can be reasonably expected to focus on.” Id. at 25. We disagree. The services set out in each application and the in the cited registra- tion include the separate initial clause “retail convenience stores.” Although the reg- istration also includes the narrower services quoted by Applicant (“retail store ser- vices featuring green and eco-friendly products. . . .”), and Applicant’s services in- clude “retail store services featuring . . . gasoline,” these latter clauses do not limit the former; they are separately identified services. In re Midwest Gaming & Entm’t Serial Nos. 87581511, 87585468, 87585471, 87617730 - 6 - LLC, 106 USPQ2d 1163, 1167–68 (TTAB 2013) (“restaurant and bar services” not read in pari materia with “providing banquet and social function facilities for special occasions”) (citing In re Thor Tech Inc., 90 USPQ2d 1634 (TTAB 2009)). See TRADE- MARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1402.01(a) (Oct. 2018) (use of commas and semicolons to identify separate services). Correctly construed, the ser- vices in the applications before us and in the cited registration are identical in part to the extent that they both include “retail convenience stores,” without limitation. Likewise, Applicant argues that because the cited mark includes the disclaimed term ORGANICS, the registrant’s services must be limited to those involving organic food. App. Br., 4 TTABVUE 25. To the contrary, the cited mark is registered and presumed valid for use in connection with all of the services recited in the registra- tion. See Trademark Act Section 7(b), 15 U.S.C. § 1057(b). We are aware of no author- ity for limiting the scope of a registrant’s services based on a word in its mark, and certainly not in an ex parte proceeding to which the registrant is not a party. But even if we construed the registrant’s “retail convenience store[ ]” services as limited to those involving organic food, such services would clearly be included within Applicant’s unrestricted “retail convenience store[ ]” services, which do not exclude services related to organic food. It is irrelevant that Applicant’s mark does not “pur- port to ‘feature’ ” organic foods, or that Applicant claims it cannot “reasonably [be] expected to focus on” them. App. Br., 4 TTABVUE 25. Unless explicitly limited, the services in an application include all those identified by the Applicant, regardless of the Applicant’s actual or intended business activities. “Parties that choose to recite Serial Nos. 87581511, 87585468, 87585471, 87617730 - 7 - services in their trademark application that exceed their actual services will be held to the broader scope of the application.” Stone Lion Capital Partners, LP v. Lion Cap- ital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (citing Octocom Sys. Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1990)). Therefore, Applicant’s convenience store services must be construed to include such services directed to organic food. So even if the registrant’s services were limited to those involving organic food, such services are included within, and to that extent identical to, Applicant’s own “retail convenience store[ ]” services. We conclude that Applicant’s services are identical in part to those in the cited registration to the extent that they both include “retail convenience stores.” We need not consider the remaining services because registration must be refused if there would be a likelihood of confusion with respect to any of the services in the cited reg- istration. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). This factor favors a finding that confusion is likely. B. The similarity or dissimilarity of established trade channels and buyers to whom sales are made Because we have found Applicant’s services to be identical to some of the services in the cited registration, we also find that to the same extent, they move in the same channels of trade and to the same purchasers. In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (“[W]e have legally identical goods, hence the same class of purchasers. . . .”); see In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels Serial Nos. 87581511, 87585468, 87585471, 87617730 - 8 - of trade and classes of consumers, the Board was entitled to rely on this presumption in determining likelihood of confusion). These factors support a finding that confusion is likely. C. Conditions of sale Under the fourth du Pont factor, we consider “[t]he conditions under which and buyers to whom sales are made.” Du Pont, 177 USPQ at 567. Where typical sales of the relevant goods or services are the result of careful, studied consideration by so- phisticated purchasers, source confusion tends to be less likely. On the other hand, hurried or impulse purchasing of inexpensive goods or services by ordinary consum- ers provides more fertile ground for confusion. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1695 (Fed. Cir. 2005) (“Purchaser sophistication may tend to minimize likelihood of confu- sion. Conversely, impulse purchases of inexpensive items may tend to have the oppo- site effect.”). Applicant argues that “[c]onsumers of organic food exercise a high level of care in selecting their food, and look for organic labels and marks when purchasing.” App. Br., 4 TTABVUE 23. But as already noted, the registrant’s services are not limited to the sale of organic food; they include “retail convenience stores.” This service — like the identical one recited in the subject applications — is without limitation to any particular type of food or customer. Thus we must construe the registrant’s services to include the sale of non-organic food, just as we must construe Applicant’s services to include the sale of organic food. And as noted, we must construe those services to be offered in all usual channels of trade for such services and to all usual customers Serial Nos. 87581511, 87585468, 87585471, 87617730 - 9 - of them. In other words, we consider Applicant’s services to be offered to the same purchasers as the registrant’s. There is nothing in the record to suggest that patrons of “retail convenience stores” are particularly careful or discerning purchasers or that such stores are limited to the sale of very expensive, highly technological, or other items which would prompt the type of cautious investigation which might mitigate confusion, if confusion were otherwise likely. To the contrary, according to the Examining Attorney’s evidence, a convenience store is defined as “[a] store with extended opening hours and in a con- venient location, stocking a limited range of household goods and groceries,” and “[a] small retail store that is open long hours and that typically sells staple groceries, snacks, and beverages.” Final Ofc. Action, June 6, 2018 (definitions of convenience store). These definitions suggest that convenience stores are conducive to quick — possibly impulse — purchases at low to moderate prices by ordinary consumers. As Applicant notes, it uses its own mark “in connection with its . . . sale of quick and inexpensive snack foods item [sic].” App. Br., 4 TTABVUE 25. If Applicant’s “retail convenience store[ ]” services include the sale of quick and inexpensive items, the same must be presumed true of the registrant’s “retail convenience store[ ]” services. Such conditions do not mitigate, and may in fact exacerbate the opportunity for con- fusion. Palm Bay, 73 USPQ2d at 1695. We conclude that the conditions of purchase lean slightly toward a finding of likely confusion. D. Similarity or dissimilarity of the marks In a likelihood of confusion analysis, we compare the marks in their entireties for Serial Nos. 87581511, 87585468, 87585471, 87617730 - 10 - similarities and dissimilarities in appearance, sound, connotation, and commercial impression. Palm Bay, 73 USPQ2d at 1692. “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, 1377, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation and internal quotation marks omitted). Applicant’s marks are NOM NOM and NOM NOM EXPRESS (EXPRESS disclaimed), in standard characters, and the following two stylized marks: The mark in the cited registration is OM NOM ORGANICS (ORGANICS disclaimed) in standard characters. We note at the outset that the word EXPRESS in Applicant’s ’730 Application and the word ORGANICS in the cited registration are at least descriptive, and have been disclaimed. While disclaimed matter is not removed from the marks, and may not be ignored in comparing them, the “descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.” Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)). See also In re N.A.D. Inc., 57 USPQ2d 1872, 1873‒74 (TTAB 2000) (“[t]hese descriptive, if not generic, Serial Nos. 87581511, 87585468, 87585471, 87617730 - 11 - words have little or no source-indicating significance”). “[M]erely adding ‘a generic, descriptive or highly suggestive term[ ] . . . is generally not sufficient to avoid confu- sion.’ ” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (quoting 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COM- PETITION § 23:50 (5th ed. 2018)). Additionally, the mark in the ’471 Application — NOMNOM (stylized) — is a single word, while the mark in the cited registration presents the comparable element OM NOM as two words. The presence or absence of a space between the two words is an inconsequential difference which, even if noticed or remembered by consumers, would not serve to distinguish these marks. See, e.g., Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are “essentially identical”); In re Best W. Family Steak House, Inc., 222 USPQ 827 (TTAB 1984) (“[T]here can be little doubt that the marks [BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and bologna] are practically identical and indeed applicant has not ar- gued otherwise”). 1. Similarity in appearance In considering the appearance of the marks, we note first that because the cited mark is registered in standard characters, it could be displayed in any font style, size, or color used or intended to be used by Applicant, including the violet, magenta, and white stylization in the ’468 and ’471 Applications. See In re Viterra, 101 USPQ2d at 1909; Cunningham v. Laser Golf Corp., 55 USPQ2d at 1847; Squirtco v. Tomy Corp., Serial Nos. 87581511, 87585468, 87585471, 87617730 - 12 - 697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983) (“[T]he argument concerning a differ- ence in type style is not viable where one party asserts rights in no particular dis- play”). We accordingly consider Applicant’s mark to be identical in stylization to the Registrant’s mark. Applicant points out that its marks differ in appearance because (1) they begin with the consonant “N,” while the cited mark begins with the vowel “O”; and (2) be- cause (except for the ’730 Application) they consist of one or two words, while the cited registration consists of three. App. Br., 4 TTABVUE 13. While Applicant is correct that the difference of the first letter of the marks must be taken into account, Applicant’s contention that a differing first letter “suggests that the marks are not . . . similar” is not supported by the examples Applicant cites.4 App. Br., 4 TTABVUE 13. The marks GLIDE and EASY SLIDE obviously do not differ by only their first character. The marks CZ and E-Z were found dissimilar not merely because their initial letter differed, but because E-Z conjured up the word “easy,” while CZ was arbitrary. See Gulf States Paper Corp. v. Crown Zellerbach Corp., 417 F.2d 795, 163 USPQ 589, 590–91 (CCPA 1969). Finally, the rather obvious observation (in 4 Applicant cites a number of non-precedential Board decisions and decisions from other cir- cuits. “While applicants may cite to non-precedential decisions . . . the Board does not encour- age this practice.” In re Loggerhead Tools, LLC, 119 USPQ2d 1429, 1440 n.8 (TTAB 2016). We generally decline to discuss non-precedential decisions at length, if at all. See In re Datapipe, Inc., 111 USPQ2d 1330, 1337 (TTAB 2014). Further, cases from other jurisdictions may be entitled to little weight. We are bound by the decisions of the U.S. Court of Appeals for the Federal Circuit, its predecessor, the Court of Customs and Patent Appeals, and our own precedential decisions. Moreover, while opinions in cases originating in civil court can sometimes be informative, there are significant differences between registration practice and that in infringement cases. Serial Nos. 87581511, 87585468, 87585471, 87617730 - 13 - a non-precedential case) that the same initial character might be considered a point of similarity does not logically suggest that marks with different initial letters are necessarily dissimilar. Likewise, we reject any per se rule that, “a two-word, three syllable mark is dissimilar in appearance from a one-word, one-syllable mark.” App. Br., 4 TTABVUE 14 (citing W.L. Gore & Assocs. v. Johnson & Johnson, 882 F. Supp. 1454, 1458 (D. Del. 1995). To the contrary, while it is acceptable to consider different aspects of the marks and weigh them appropriately, our ultimate determination must rest on a comparison of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at 750–51. Minutiae such as the number of syllables are not entirely irrele- vant, but ultimately they must yield to the overall impression of the respective marks. In re John Scarne Games, Inc., 120 USPQ 315, 315–16 (TTAB 1959) (“Purchasers . . . do not engage in trademark syllable counting — they are governed by general im- pressions made by appearance or sound, or both.”). Applicant’s marks are NOM NOM, NOMNOM, or NOM NOM EXPRESS while the mark in the cited registration is OM NOM ORGANICS. For the reasons stated, we discount the importance of the disclaimed matter (without ignoring it), and we recognize that Ap- plicant’s marks begin with NOM–, not OM–. Nonetheless, when considered in their entireties, we find the marks very similar in appearance in that OM NOM differs by only one letter from NOM NOM and NOMNOM, and the marks share a similar structure and cadence. Customers often retain a general impression of trademarks and do not have the luxury of making side-by-side comparisons. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We conclude that a customer familiar Serial Nos. 87581511, 87585468, 87585471, 87617730 - 14 - with the registrant’s OM NOM ORGANICS mark and encountering Applicant’s marks would likely believe them to be the same or very similar in appearance. 2. Similarity in sound. As for similarity in sound, Applicant again engages in hyper-technical arguments, discussing, for instance, which sounds “requir[e] constriction of the breath channel,” App. Br., 4 TTABVUE 17, and which are “produced by occluding with or without re- leasing . . . , diverting . . . , or obstructing . . . the flow of air from the lungs.” Id. at n.6. While we recognize the difference in spelling between OM NOM and Applicant’s NOM NOM and NOMNOM marks and its effect on the pronunciation of them, we also recognize that the difference consists of only one letter and that in this case, the in- clusion or elision of that letter does not significantly change the pronunciation of the rest of the marks. We conclude that the marks would be pronounced quite similarly. Once again, we do not ignore the disclaimed terms ORGANICS and EXPRESS and the difference they effect in pronunciation, but we recognize that purchasers would give those descriptive terms little source-identifying significance. Considering the marks in their entireties, we find that OM NOM ORGANICS would be pronounced similarly to Applicant’s marks. 3. Similarity in meaning. Relying on articles and entries in the Urban Dictionary, Applicant and the Exam- ining Attorney agree that nom nom or nomnom is a slang reference to food or eating. App. Br. 4 TTABVUE 18 (“ ‘NOM NOM’ is a modern phrase associated with eating Serial Nos. 87581511, 87585468, 87585471, 87617730 - 15 - and food, generally recognized as meaning ‘the sound effect that is made when eat- ing,’ ‘something tasty or nutritious’ or ‘to express pleasure at eating, or at the prospect of eating something that tastes good.’ ” (footnotes omitted)); Ex. Att. Br., 6 TTABVUE 6 (“NOMNOM . . . [is] an onomatopoetic expression associated with food and eating”). But the Examining Attorney’s evidence goes further, showing that om nom shares essentially the same meaning as nom nom and nomnom. The Examining Attorney submitted several entries from the Urban Dictionary: om nom An onomatopoeical adjective based on the sound emitted when something is “oh so tasty” omnom tasty This food is omnomnomnomnomnom om nom The sound of ravenous eating. Popularized by the character Cookie Monster on Sesame street, it is now used commonly in speech, especially among younger people. Cookie Mon- ster exclaims “OM NOM NOM NOM” when gobbling down cookies (and whatever else goes in his mouth). om noms Tasty food or snacks om nom verb The act of eating in a vigorous manner. Omnom Om.nom (ahm-nahm) Serial Nos. 87581511, 87585468, 87585471, 87617730 - 16 - 1. v. To enthusiastically munch. 2. n. That which you enjoy munching, or desire to munch. ex-Dude, gimme some omnoms! Final Ofc. Action, TSDR 7 –11 (June 6, 2018). Although Applicant points out — based on evidence submitted by the Examining Attorney — that variations beginning with nom are much more prevalent than those beginning with om, App. Br., 4 TTABVUE 19, Applicant does not deny that nom nom and om nom have the same meaning. Instead, Applicant notes that “the prominent first word [of Registrant’s mark] OM is widely recognized as a syllable or mantra having a profound spiritual meaning.” Id. (citing dictionary definitions submitted with Applicant’s May 16, 2018, response).5 But as the Examining Attorney correctly points out, the cited registration is not for OM, standing alone, but OM NOM ORGANICS. There is no indication that OM NOM (with or without the disclaimed ORGANICS) has any spiritual connotation, especially 5 Applicant also submitted results from the GOOGLE search engine, noting that: On the first page of results for OM, eight out of the nine links relate to spirituality, none relate to food in any manner. Search for “OM”, Google.com. On the other hand, four out of the eight results on the first page of a search for NOM relate to food and/or its enjoyment and none relate to the spiritual chant/sound. App. Br., 4 TTABVUE 20 (footnotes omitted). Applicant cites a non-precedential decision which supposedly “suggest[s] that truncated GOOGLE search results may be relevant where there is sufficient context of how the term is actually used in the linked websites listed.” We need not decide whether or to what extent search engine results listings are ever rel- evant. But contrary to Applicant’s argument, we cannot give much significance to the fre- quency or order in which the results are listed because we are not privy to GOOGLE’s algo- rithm for the selection and ranking of search results. Serial Nos. 87581511, 87585468, 87585471, 87617730 - 17 - when considered in relation to convenience store services. To the contrary, the Exam- ining Attorney’s evidence establishes that OM NOM has the same food-related mean- ing as NOM NOM, a connotation which is only strengthened when OM NOM ORGANICS is considered in its entirety. While the first word of a mark can be significant, Palm Bay, 73 USPQ2d at 1692, there is no authority for considering that word in isolation. Here, consideration of the cited mark in its entirety is inconsistent with Applicant’s theory that the first word alone requires a spiritual interpretation contrary to evi- dence of the meaning of the mark as a whole. * * * We conclude that, while Applicant’s marks are not identical to the mark in the cited registration, they are — when considered in their entireties — substantially similar in appearance, sound, and connotation. This factor supports a finding that confusion is likely. IV. Conclusion Having considered all of the evidence and argument of record, including any not specifically discussed, we conclude that Applicant’s services are identical in part to those of the cited registrant, and that they are therefore presumed to travel in the same channels of trade to the same purchasers. The conditions of sale slightly favor a finding of likely confusion. And finally, while the marks are not identical, they are substantially similar in their entireties. We are mindful that “[w]hen trademarks would appear on substantially identical [services], ‘the degree of similarity necessary to support a conclusion of likely confusion declines.’ ” Coach Servs. Inc. v. Triumph Serial Nos. 87581511, 87585468, 87585471, 87617730 - 18 - Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1260 (Fed. Cir. 2011)). Decision: The refusal to register under Trademark Act Section 2(d) is affirmed.