InterNetwork, LLC

Trademark Trial and Appeal Board

Jun 12, 2013

No. 85183231 (T.T.A.B. Jun. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
June 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re InterNetwork, LLC
_____

Serial No. 85183209
Serial No. 85183225
Serial No. 85183231

_____

Edmund J. Ferdinand, III of Ferdinand IP, LLC for InterNetwork, LLC.

Rebecca A. Smith, Trademark Examining Attorney, Law Office 110 (Chris A. F.
Pedersen, Managing Attorney).
_____

Before Quinn, Kuczma, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
InterNetwork, LLC filed three applications to register on the Principal
Register the mark set forth below:

Serial Nos. 85183209, 85183225, and 85183231

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One application1 seeks registration of the mark for the following goods:
Downloadable software in the nature of a mobile
application for posting and delivery of voice recordings,
still images, video clips and other data related thereto, in
International Class 9.
A second application2 seeks registration of the mark for the following services:
Advertising and marketing; advertising services; online
advertising and marketing services; business data
analysis; promotional services; business networking;
online service for connecting social network users with
businesses; business monitoring and consulting services,
namely, tracking users and advertising of others to
provide strategy, insight, marketing guidance, and for
analyzing, understanding and predicting consumer
behavior and motivations, and market trends, in
International Class 35.
The third application3 seeks registration of the mark for the following services:
Telecommunication services, namely, providing online
and telecommunication facilities for real-time interaction
between and among users of mobile and handheld
computers, and wired and wireless communication
devices for posting and delivery of voice recordings, still
images, video clips and other data related thereto, in
International Class 38.
With respect to each application, the trademark examining attorney refused
registration under § 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
that applicant’s mark, as used in connection with applicant’s goods or services, so
resembles the mark BLURTIT, which is registered on the Principal Register in

1 Application Serial No. 85183209, filed on November 23, 2010 on the basis of applicant’s
bona fide intent to use the mark, under Trademark Act § 1(b), 15 U.S.C. §1051(b).
2 Application Serial No. 85183225, filed on November 23, 2010 under Trademark Act § 1(b).
3 Application Serial No. 85183231, filed on November 23, 2010 under Trademark Act § 1(b).
Serial Nos. 85183209, 85183225, and 85183231

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standard character form for services in International Classes 35, 38, and 42,4 as to
be likely to cause confusion, or to cause mistake, or to deceive. When the refusals
were made final, applicant appealed. Applicant and the examining attorney have
filed briefs. In the case of application No. 85183209, applicant has also filed a reply
brief.
1. Proceedings Consolidated.
The issues raised by the three appeals are identical in part, inasmuch as
applicant’s mark in each case is the same and in each case registration was refused
on the basis of the same cited registration. The briefs and evidentiary record in all
three cases are also, in part, identical. Accordingly, the Board will address the three
appeals in a single opinion. Citations to the briefs refer to the briefs filed with
respect to application Serial No. 85183225 unless otherwise noted. We have, of
course, considered all arguments and evidence filed in each case, including any
arguments and evidence not specifically discussed in this decision.
2. The Merits.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion, as set forth in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the

4 Reg. No. 3927403, issued on March 8, 2011.
Serial Nos. 85183209, 85183225, and 85183231

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similarities between the goods and services at issue. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
(a) The marks.
We address first the similarity or dissimilarity of the marks as to appearance,
sound, connotation and commercial impression. Du Pont, 177 USPQ at 567. We
consider the marks at issue in their entireties in reaching our ultimate conclusion,
but there is nothing improper in giving more or less weight to a particular feature of
a mark, for rational reasons. In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985).
The cited mark, BLURTIT, is registered in standard character form and is
apparently a unitary form of the two words BLURT IT. This interpretation of the
mark is confirmed by the samples of registrant’s website on which the mark is
displayed with BLURT against a black background and IT rendered in smaller
letters within a blue design.5
Applicant’s mark consists of “the letter ‘B’ appearing in a dialogue bubble,”6
together with the stacked expressions BLURT and BLURT IT OUT! The letter B
within the “dialogue bubble” is presented in the largest typeface; nonetheless we
find that the dominant portion of applicant’s mark is the word BLURT, which is, as
a whole, the largest element of the mark and is more distinctive than the single
letter B. In the case of marks consisting of words and a design, the words are
normally given greater weight because they would be used by consumers to request

5 Submitted with applicant’s response of March 21, 2012.
6 See the application, description of the mark.
Serial Nos. 85183209, 85183225, and 85183231

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the goods or services. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012); In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB
1999); In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also
Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798
(Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218
USPQ 390 (Fed. Cir. 1983). Although the letter B in the “dialogue bubble” is also
prominent, it is unlikely that customers would use the simple letter B to identify or
call for applicant’s services. Our perception of BLURT as the dominant portion of
the mark is supported by the fact that applicant’s website refers repeatedly to
applicant’s service as “Blurt.”7 See In re Viterra, 101 USPQ2d at 1911; In re Dakin’s
Miniatures, Inc., 59 USPQ2d at 1596; CBS Inc. v. Morrow, 708 F.2d 1579, 1582, 218
USPQ 198, 200 (Fed. Cir. 1983).
Applicant acknowledges that the two marks share the word BLURT, but
argues that “Otherwise, the marks are completely different in appearance and
sound.”8 This is not entirely accurate, as the two marks also share the wording
BLURT IT.9 It is significant that the registered mark is contained in its entirety
within applicant’s mark; in such cases, confusing similarity has often been found.
See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422

7 Applicant’s response filed March 21, 2012.
8 Applicant’s brief at 5.
9 The lack of a space between the words in the cited registered mark does not create a
meaningful distinction. See In re Narwood Productions, Inc., 223 USPQ 1034 (TTAB 1984)
(THE MUSIC MAKERS is similar to MUSICMAKERS); Goodyear Tire & Rubber Co. v.
Dayco Corp., 201 USPQ 485 (TTAB 1978) (“Fast-Finder” with hyphen is substantially
identical to “Fastfinder” without a hyphen).
Serial Nos. 85183209, 85183225, and 85183231

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(CCPA 1977) (CALIFORNIA CONCEPT similar to CONCEPT); Coca-Cola Bottling
Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556,
188 USPQ 105 (CCPA 1975) (BENGAL LANCER similar to BENGAL); In re United
States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE similar to
CREST CAREER IMAGES).
It is apparent that the dominant portion of applicant’s mark, BLURT, is quite
similar in appearance, sound and meaning to the registered mark BLURTIT.
Similarly, applicant’s slogan BLURT IT OUT! is even more highly similar to
BLURTIT in appearance, sound and meaning. In this regard, we agree with the
examining attorney’s observation that “The term ‘OUT’ simply completes the same
thought that is implicit in the registered mark. Consumers encountering the mark
BLURTIT would understand it to mean the same thing as BLURT IT OUT.”10
Although the marks are not identical, we bear in mind that customers in the
marketplace typically retain a general rather than specific impression of marks that
they see. Winnebago Industries, 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 test of confusing similarity 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 so that
confusion as to the source of the goods offered under the respective marks is likely
to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565

10 Examining attorney’s brief at 6.
Serial Nos. 85183209, 85183225, and 85183231

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F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992).
Applicant argues that the registered mark, BLURTIT, as used in commerce,
features a logo design with the added slogan ASK IT. ANSWER IT. BLURTIT.11
However, for purposes of our analysis, we may not limit the cited mark to the form
in which it currently appears on registrant’s website. The cited mark is registered
in standard character form, such that the registrant’s right to display its mark in
various graphic forms is not limited. In re Viterra Inc., 101 USPQ2d at 1909. The
rights associated with a mark in standard characters reside in the wording and not
in any particular display. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937,
939 (Fed. Cir. 1983); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008);
In re Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). In any
event, we note that the logo form in which the cited mark is displayed includes a
square-shaped “dialogue bubble” containing the word IT, which is quite reminiscent
of applicant’s rounded dialogue bubble containing the letter B.12 This illustrates the
danger that the marks of applicant and registrant might be displayed in styles that
actually increase the likelihood of confusion.
Applicant argues that “the BLURT IT OUT! portion of Applicant’s mark
connotes a vocal or audio feature consistent with Applicant’s mobile app.”13

11 Applicant’s brief at 6.
12 Response filed March 21, 2012.
13 Applicant’s brief (85183231) at 8.
Serial Nos. 85183209, 85183225, and 85183231

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Applicant implies that the connotation of “vocal or audio” communication is not
present in the cited mark. We do not agree. The word “blurt,” by definition,
describes a vocal (and necessarily an auditory) phenomenon:
v.i. 1. utter suddenly or inadvertently; divulge
impulsively or unadvisedly (usually fol. by out)… n. 2. An
abrupt utterance.
THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (2nd ed.), p. 230 (bold
emphasis supplied).14 Both BLURT IT and BLURTIT, as they appear in the
respective marks, carry the same connotation of vocal or audio communication.
(Moreover, the above definition suggests that “blurt it out” has essentially the same
significance as “blurt it.”)
Considering all the factors, we find the marks to be similar in terms of
appearance, sound, meaning, and overall commercial impression. This du Pont
factor weighs in favor of a finding of likelihood of confusion.
(b) The goods and services.
We will address first the two applications that seek registration in connection
with services.
(i) Serial No. 85183225; Services in Class 35.
Application No. 85183225 seeks registration of applicant’s mark for the
following services:
Advertising and marketing; advertising services; online
advertising and marketing services; business data

14 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Serial Nos. 85183209, 85183225, and 85183231

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analysis; promotional services; business networking;
online service for connecting social network users with
businesses; business monitoring and consulting services,
namely, tracking users and advertising of others to
provide strategy, insight, marketing guidance, and for
analyzing, understanding and predicting consumer
behavior and motivations, and market trends.
The examining attorney refused registration on the ground that the cited mark is
registered for the following services:
Advertising, marketing and promotional services;
promoting the goods and services of others by placing
advertisements and promotional displays on a website
accessed through computer networks; providing
advertising and promotional services via a global
communications network or the Internet; rental of
advertising space; Advertising and directory services,
namely, promoting the services of others by providing a
web page featuring links to the websites of others; market
opinion polling studies; Compilation, production and
dissemination of advertising matter.
The services of applicant and registrant are, in part, legally identical. “Advertising”
services and “marketing” services are identified in both the application and the
cited registration. In the context of an analysis under Section 2(d), it is sufficient if
likelihood of confusion is found with respect to use of the mark on any service that
comes within the description of services in both the application and registration.
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398
(TTAB 2007). Beyond this, “promotional services” in applicant’s identification is
broad enough to encompass registrant’s “promoting the services of others by
providing a web page featuring links to the websites of others.” Accordingly, the
Serial Nos. 85183209, 85183225, and 85183231

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DuPont factor relating to the similarity or dissimilarity of the services favors a
finding of likelihood of confusion.
To the extent that applicant’s services are legally identical to those identified
in the cited registration, we must presume that the services of applicant and
registrant move in the same channels of trade and are available to the same classes
of customers. In re Viterra Inc., 101 USPQ2d at 1908; American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022,
1028 (TTAB 2011); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994).
These two du Pont factors also favor a finding of likelihood of confusion with respect
to application No. 85183225.
(ii) Serial No. 85183231; Services in Class 38.
Application No. 85183231 seeks registration of applicant’s mark for the
following services:
Telecommunication services, namely, providing online
and telecommunication facilities for real-time interaction
between and among users of mobile and handheld
computers, and wired and wireless communication
devices for posting and delivery of voice recordings, still
images, video clips and other data related thereto.
The examining attorney refused registration on the ground that the cited mark is
registered for the following services:
Electronic mail services; providing on-line electronic
bulletin boards for the transmission of messages among
computer users on a variety of topics of general interest to
the public; providing an on-line electronic interactive
bulletin board; providing on-line chat rooms for
transmission of messages among computer users
concerning a variety of topics of general interest to the
Serial Nos. 85183209, 85183225, and 85183231

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public; providing on-line communications links which
transfer the web site user to other local and global web
pages; electronic transmission of text, messages,
information, sound, images, documents and data via
electronic communications networks; electronic
transmission of text, messages, information, sound,
images, documents and data via a global communications
network or the Internet; broadcasting, transmission and
delivery of audio, video and multimedia content by means
of wireless communications and computer networks.
The examining attorney argues that “The services of both parties achieve the
same overall function. Both parties are providing for the transmission of messages,
data, images, audio and video content and allow for the communication of these
items between users and devices.”15 We agree. As identified, the services of
applicant and registrant overlap substantially. Applicant’s service of “providing
online … facilities for real-time interaction” including “posting and delivery of voice
recordings, still images, video clips and other data” is extremely similar in nature to
registrant’s service of “providing on-line electronic bulletin boards for the
transmission of messages …; [and] electronic transmission of text, messages,
information, sound, images, documents and data via … the Internet….”
Applicant argues that its services are, in fact, different from those of
registrant. Applicant explains that it has developed a “mobile app” for use with
iPhones, Androids, and equivalent mobile devices:
Applicant’s product, in a nutshell, is that it is an audio
version of Twitter – it allows users to record up to 10
seconds of an audio message and to post that audio
message to contacts, either privately, or through wider

15 Examining attorney’s brief (85183231) at 11.
Serial Nos. 85183209, 85183225, and 85183231

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distribution with such popular social networking forums
as Facebook and Twitter. …
In sharp contrast, the services of the cited Registration
are in relation to a “question and answer” web site….
Users ask questions, and other users then answer the
questions. … It is a sharp contrast from Applicant’s
mobile app, which is used on smartphones and is intended
as a means of posting and sharing brief audio
communications.16
To the extent that applicant’s characterization of registrant’s services is
narrower or otherwise inconsistent with the description of the services in the
registration, we cannot give it consideration. In considering the scope of the cited
registration, we must look to the registration itself and not to extrinsic evidence
about the registrant’s services. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981),
citing Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958). Similarly,
the scope of the registration applicant seeks is defined by the identification of
services in its application and not by the more specific description of such services
in applicant’s brief. Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Nonetheless, giving full regard to
applicant’s explanation, there is no reason to believe that registrant’s interactive
online service would not be accessible by means of a smartphone; accordingly, the
fact that applicant’s service is oriented toward mobile phone users does not create
any commercial distinction between the services of applicant and registrant.
Moreover, while applicant’s service of allowing transmission of voice recordings
might appear to be an advance over interactive communications by text alone, it is

16 Applicant’s brief (85183231) at 8-10.
Serial Nos. 85183209, 85183225, and 85183231

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not substantially different in nature from registrant’s interactive service, which
provides “electronic transmission of … sound… via… the Internet.” It is likely that
customers familiar with registrant’s services would readily believe that the same
company would also offer services similar to those of applicant.
In order to demonstrate the degree of relatedness among the services of
applicant and registrant, the examining attorney has submitted numerous third-
party registrations17 purporting to demonstrate instances wherein a single mark
was registered by its owner both for providing online interactive services such as
chat and bulletin board services (similar to the services of registrant) and which,
like applicant’s services, allow access from mobile or wireless devices and permit the
transmission of sound recordings. Such registrations, if they are based on use in
commerce, may have some probative value to the extent that they serve to suggest
that the listed services are of types that may emanate from the same source. In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Among the third-
party registrations submitted, we found the following registrations to be pertinent
to the case before us:
3659627 3805578 3931729
3998707 3829434 3942661
3837088 3171098 3464381
3307137 3889500 3943949
3974379 4081349 4103239

17 Submitted with the examining attorney’s Office action of April 10, 2012.
Serial Nos. 85183209, 85183225, and 85183231

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Considering the descriptions of services in the application and the
registration, together with the evidence of record discussed above, we find that the
services of applicant and registrant are related. Accordingly, the du Pont factor
relating to the similarity or dissimilarity of the services weighs in favor of a finding
of likelihood of confusion with respect to application No. 85183231.
(iii) Serial No. 85183209; Goods in Class 9.
Application No. 85183209 seeks registration of applicant’s mark for the
following goods:
Downloadable software in the nature of a mobile
application for posting and delivery of voice recordings,
still images, video clips and other data related thereto.
The examining attorney refused registration on the ground that the cited mark is
registered for the following services:
Design and development of computer software; providing
customized on-line web pages featuring user-defined
information, which includes search engines and on-line
web links to other web sites; providing customized web
pages featuring user-defined information, personal
profiles and information; computer services, namely,
hosting on-line web facilities for others for organizing and
conducting on-line meetings, gatherings, and interactive
discussions; computer services, namely, acting as an
application service provider in the field of knowledge
management to host computer application software for
searching and retrieving information from databases and
computer networks; providing a web site featuring
temporary use of non-downloadable software allowing
web site users to post and review questions and answers;
providing search engines for the Internet; creating and
maintaining blogs for others via the Internet.
The examining attorney argues that the software that registrant designs and
develops could include software of the type provided by applicant; and that
Serial Nos. 85183209, 85183225, and 85183231

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registrant’s other services “include the function of posting and retrieving of data
and information that could include video, voice recordings, and images, etc.”18
Applicant criticizes the examining attorney’s rationale for finding a
relationship between “design and development of software” and applicant’s specific
software product:
The examining attorney’s rationale – that any and all
computer software-related goods or services are legally
related to Registrant’s claim of “design and development
of computer software” – gives the Registrant a vast and
unwarranted scope of protection over any and all forms of
computer software products, regardless of their form or
content, and however narrowly defined. The Examining
Attorney’s reasoning essentially bestows upon Registrant
rights in an unlimited number of software-related goods
and services which it did not claim in its application.19
Indeed, on the present record, there is no substantial evidence for finding a
commercial relationship between design and development of software and
applicant’s specific software product. However, the more relevant services
identified in the cited registration are “providing customized on-line web pages
featuring user-defined information…; … hosting on-line web facilities for others for
organizing and conducting … interactive discussions; … providing a web site
featuring temporary use of non-downloadable software allowing web site users to
post and review questions and answers….”
Applicant argues that there is a clear commercial distinction between
registrant’s online services and applicant’s software:

18 Examining attorney’s brief (85183209) at 11.
19 Applicant’s reply brief (85183209) at 4.
Serial Nos. 85183209, 85183225, and 85183231

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[Registrant’s services] are non-downloadable, web-based
services, provided solely via continuous online connections
between consumers and Registrant, through web pages,
networks, online web facilities and software hosting
maintained by Registrant. In contrast, Applicant’s mobile
application is downloadable, and not maintained through
continuous Internet connection between consumers and
Applicant. This is a vital distinction….
… Postings made with Registrant’s service will only
appear on such customized web pages associated with
Registrant and web sites hosted by Registrant, while
posting and delivery through Applicant’s product will only
occur through its downloadable application on mobile (i.e.
handheld) devices, which is an entirely different form of
communication.20
We are not persuaded that the distinction between downloadable and non-
downloadable software would be perceived by typical customers as a clear dividing
line. Those who use the internet are regularly exposed to both types of software,
and, in some cases, many customers are very likely unaware as to which functions
are performed by software that has been downloaded onto their computers or mobile
devices versus which functions are performed by non-downloadable, web-based
software. Applicant’s software is for use on smartphones, which are capable of
interacting with the internet. We do not expect lay users of smartphones to clearly
appreciate at all times the distinction between functions that are performed by the
phone and the software contained with it and functions that involve web-based
applications.
We also perceive substantial overlap between the function and purpose of
applicant’s software and the services of others that, like registrant, provide online

20 Id. at 5.
Serial Nos. 85183209, 85183225, and 85183231

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facilities for interactions among internet users, including the exchange of user-
created content. Applicant’s software allows a user of a smartphone to create a
voice recording or other form of message and send it to a social networking forum
such as Facebook or Twitter.21 In doing so, a user would be simultaneously dealing
with applicant’s downloaded software and the web-based (non-downloadable)
applications of the online forum. Moreover, such online forums are similar in
nature to the “on-line web facilities … for organizing and conducting … interactive
discussions” of the cited registrant. A customer who uses the internet by means of a
mobile device in order to access forums in which users share content could
reasonably believe that the provider of that forum might also offer a downloadable
application for facilitating use of the forum.
In order to demonstrate the degree of relatedness between the services of
registrant and applicant’s goods, the examining attorney has submitted numerous
third-party registrations22 purporting to demonstrate instances wherein a single
mark was registered by its owner both for providing online facilities for interactive
posting of user content (similar to the services of registrant) and for software for
posting and uploading electronic media. As earlier noted, such registrations, if they
are based on use in commerce, may have some probative value to the extent that
they serve to suggest that the listed services are of types that may emanate from
the same source. In re Albert Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d at 1470 n.6. Among the third-party

21 Applicant’s brief (85183209) at 6.
22 Submitted with the examining attorney’s Office action of April 10, 2012.
Serial Nos. 85183209, 85183225, and 85183231

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registrations submitted, we found the following registrations to be particularly
pertinent to the case before us:
3558042 3531647 3867878
3908348 4026455 4029127
3789299 3871133 3829283
3906614 3952291 4043062
4051870 4055074 4055075
Considering this evidence and, for the reasons discussed above, we find that
the services of registrant and applicant’s goods are sufficiently related that, if
offered under similar marks, confusion would be likely. Accordingly, the du Pont
factor relating to the similarity or dissimilarity of the services weighs in favor of a
finding of likelihood of confusion with respect to application No. 85183209.23
(c) Trade channels.
With respect to application No. 85183209, applicant has argued that its goods
and registrant’s services move in different trade channels.
As a mobile app, Applicant’s goods are offered to
consumers via the iTunes store. … Once purchased,
Applicant’s mobile app is used on smartphones such as
Apple’s popular iPhone product.
In contrast,… the cited Registration is used in connection
with an Internet web site that is accessed and used
primarily via traditional computers. Upon information
and belief, the owner of the cited Registration does not

23 We have taken note of applicant’s arguments that refer to the file history of the cited
registration. (Applicant’s reply brief at 3-4 and 6-7.) The file history of the registration is
not of record and, accordingly, we give no consideration to it. See In re Giovanni Food Co.,
97 USPQ2d 1990, 1991 (TTAB 2011).
Serial Nos. 85183209, 85183225, and 85183231

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maintain or offer for download a mobile app on the iTunes
app store or any equivalent service.24
Aside from applicant’s argument “Upon information and belief,” there is no evidence
of record relating to the trade channels through which registrant’s services are
offered. There is also little evidence of record regarding applicant’s trade channels,
although the software is apparently advertised through Apple’s iTunes store and
through applicant’s own website. The fact that applicant’s software is offered
through iTunes can hardly be taken to suggest that applicant’s product is isolated
in an unusual trade channel, such that it would not be noted by users of registrant’s
services. On the present record, there is insufficient basis for a finding as to the
trade channels of applicant and registrant. Accordingly, we consider this du Pont
factor to be neutral.
(d) Number of similar marks in use in the market.
Applicant refers in its briefs for application No. 85183209 to the existence of
“other third-party apps featuring the term BLURT….”25 Applicant’s brief, at page
8, includes images purportedly from the iTunes store showing such applications.
This information, however, is not of record, and cannot be made of record by
submission with applicant’s brief. The applicant has the responsibility to make
sure that the record is complete prior to filing a notice of appeal. In re Van
Valkenburgh, 97 USPQ2d 1757, 1768 n. 32, 1769 (TTAB 2011). “The record in the
application should be complete prior to the filing of an appeal. The Trademark

24 Applicant’s brief (85183209) at 8-9.
25 Id. at 8; Applicant’s reply brief (85183209) at 7.
Serial Nos. 85183209, 85183225, and 85183231

20

Trial and Appeal Board will ordinarily not consider additional evidence filed with
the Board by the appellant or by the examiner after the appeal is filed.” 37 C.F.R. §
2.142(d). See also TBMP § 1207.01. Accordingly, we have given no consideration to
this information.
3. Conclusion.
Having considered the evidence of record and all relevant du Pont factors,
including those not specifically discussed herein, we find that applicant’s mark, as
applied to applicant’s goods and services set forth in the three applications, so
closely resembles the registered mark BLURTIT as to be likely to cause confusion,
mistake or deception as to the source of applicant’s goods and services.
Decision: The refusal to register is affirmed as to each of the three
applications.