Javelin Capital Markets, LLC

Trademark Trial and Appeal Board

Jun 30, 2015

No. 85438946 (T.T.A.B. Jun. 30, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 30, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Javelin Capital Markets, LLC
_____

Serial No. 85438946
_____

Mary L. Grieco of Olshan Frome Wolosky LLP,
for Javelin Capital Markets, LLC.
Julie Watson, Trademark Examining Attorney, Law Office 109,
Dan Vavonese, Managing Attorney.
_____

Before Bergsman, Lykos and Masiello,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Javelin Capital Markets, LLC (“Applicant”) seeks registration on the Principal
Register of the mark JAVELIN and design shown below for “financial exchange,
namely, execution services regarding the trading of derivatives and specifically
excluding venture capital services,” in International Class 36.1

1 Application Serial No. 85438946 was filed on October 4, 2011, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85438946
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“The mark consists of a line with a circle cutting through it above the term
JAVELIN.”
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the mark JAVELIN VENTURE
PARTNERS, in standard characters, for “venture capital services, namely,
providing financing to emerging and start-up companies,” in Class 36.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We reverse the refusal to register.
I. Preliminary Issue
Applicant’s original description of services was “financial exchange.” After
receipt of the Trademark Examining Attorney’s appeal brief,3 Applicant filed a
request to remand the Application entitled “Proposed Amendment To Description
Of Services” seeking to amend the description of services to “financial exchange,
namely, providing execution services regarding the trading of derivatives and

2 Registration No. 3962366, registered May 17, 2011.
3 6 TTABVUE filed December 22, 2014.
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specifically excluding venture capital services.”4 In the Board’s January 17, 2015
Order, the Board granted Applicant’s Request for Remand noting “[g]ood cause
having been shown,” and forwarded the application to the Trademark Examining
Attorney to consider the proposed amendment.5
In her February 6, 2015 Office Action, the Trademark Examining Attorney
found that “the proposed amendment to the recitation of services in International
Class 36 is acceptable as within the scope of the original recitation of services,” but
objected to the Request for Remand on the ground that it was not timely and that
Applicant failed to show good cause.6
If, as in this case, an applicant files an amendment along with applicant’s appeal
brief or thereafter, even if filed within six months of the final action, the Board will
treat the submission as a request for remand, whether it is captioned as such or is
captioned as a request for reconsideration. TBMP §§ 1205.01 and 1209.04 (June
2014). Remand is a matter of discretion with the Board. TBMP § 1205.01. Requests
for remand are generally filed by applicants because they wish to make additional
evidence of record, or because they wish to amend the application. In determining
whether good cause has been shown, the Board will consider both the reason given
and the point in the appeal at which the request for remand is made. TBMP §
1209.04. Good cause will generally be found when an amendment to the
identification of services may obviate a ground for refusal. TBMP § 1205.01. On the

4 7 TTABVUE 2 filed January 9, 2015.
5 9 TTABVUE entered January 17, 2015.
6 10 TTABVUE 3 filed February 6, 2015.
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other hand, remand may be refused if the Board determines that the amendment
was filed in bad faith or would serve no useful purpose. Id.
Although the reason that the Board found good cause to grant the Request for
Remand was not articulated in the January 15, 2015 Order, we can assume that the
Board found good cause to grant Applicant’s Request for Remand because the
proposed amendment to the description of services had the potential to obviate the
Section 2(d) likelihood of confusion issue. While the proposed amendment was filed
late in the prosecution, the policy of the Board is to decide appeals on the merits
and not to refuse registration solely on procedural grounds if that can be avoided.
Accordingly, the objections to the Request for Remand on the grounds that it was
not timely and that Applicant did not show good cause are overruled and the
operative description of services is “financial exchange, namely, execution services
regarding the trading of derivatives and specifically excluding venture capital
services.”
II. Applicable Law
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. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).

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A. The similarity or dissimilarity and nature of the services, established, likely-
to continue channels of trade, and classes of consumers.

As noted above, Applicant is seeking to register its mark for use in connection
with “financial exchange, namely, execution services regarding the trading of
derivatives and specifically excluding venture capital services.” In its August 15,
2014 Response to an Office Action, Applicant submitted the declaration of Suellen
Galish, Applicant’s Senior Managing Direct and General Counsel. Mr. Galish
explained that Applicant operates a swap execution facility that provides a
marketplace for the trading of interest rate swaps. According to Mr. Galish, “swaps”
are the “trading of derivatives.”7 Derivatives are defined as follows:
In finance, contracts whose value is derived from another
asset, which can include stocks, bonds, currencies,
interest rates, commodities, and related indexes.
Purchasers of derivatives are essentially wagering on the
future performance of that asset. Derivatives include such
widely accepted products as futures and options. Concern
over the risky nature of derivatives grew after some well-
publicized corporate losses in 1994 involving Procter &
Gamble, Metallgesellschaft AG of Germany, and Orange
County, Calif. Anxiety intensified after the collapse in
1995 of the London-based merchant bank Barings PLC
(now part of the Dutch ING Group NV). Securities
regulators from 16 countries then agreed on measures to
improve control of derivatives.

7 The Board may turn to extrinsic evidence to understand the meaning of the description of
services. In re Trackmobile Inc., 15 USPQ2d 1152, 1154 (TTAB 1990) (“when the
description of goods for a cited registration is somewhat unclear, as is the case herein, it is
improper to simply consider that description in a vacuum and attach all possible
interpretations to it when the applicant has presented extrinsic evidence showing that the
description of goods has a specific meaning to members of the trade. … it is not proper to
rely simply upon abstract reasoning to give this somewhat vague term a broad meaning
absent countervailing extrinsic evidence showing that it is entitled to such a broad
meaning.”).
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Encyclopædia Britannica Online, s. v. “derivatives,” accessed June 29, 2015.8 Mr.
Galish further explained that Applicant’s execution services are governed by the
Commodity Exchange Act and regulations promulgated by the Commodity Futures
Trading Commission.
The description of services in the cited registration is “venture capital services,
namely, providing financing to emerging and start-up companies.” In her March 10,
2014 Office Action, the Trademark Examining Attorney submitted an excerpt from
the CnF Exchange website (cnfexchange.com) explaining venture capital financing.
Venture capital is a private investment in a growing
business and is typically funded by institutional investors
and high net worth individuals that are pooled together
by dedicated investment firms. Venture capital is a type
of equity financing that addresses the funding needs of
high-potential, growth companies that for reasons of size,
assets, and state of development cannot seek capital from
more traditional sources, such as public markets and
banks. This type of capital is provided in the interest of
generating a return through the sale of the company or
initial public offering.

8 The Board may take judicial notice of information from encyclopedias. B.V.D. Licensing
Corp. v. Body Action Design Inc., 846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988)
(“dictionaries and encyclopedias may be consulted”); Productos Lacteos Tocumbo S.A. de
C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934 n.61 (TTAB 2011); In re
Broyhill Furniture Industries Inc., 60 USPQ2d 1511, 1514 n.4 (TTAB 2001) (dictionary
entries and other standard reference works). See also Dictionary.com based on the
RANDOM HOUSE DICTIONARY (2015) (“derivatives” are defined as “a financial contract
whose value derives from the value of underlying stocks, bonds, currencies, commodities,
etc.”); MERRIAM-WEBSTER (m-w.com) (“a contract or security that derives its value from
that of an underlying asset (as another security) or from the value of a rate (as of interest or
currency exchange) or index of asset value (as a stock index”). 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), including
online dictionaries that exist in printed format or have regular fixed editions. In re Red
Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).

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Venture capital financing is generally a cash investment
made in exchange for shares in the invested company.
Before venture capital is placed there is typically a
considerable amount of due diligence performed to
understand the company and its growth potential.
Venture capitalists specialize in higher risk investments
with commensurate higher rates of return or return on
the initial cash outlay. These venture capital funding
investments may include seed money for start-up
companies, research and development projects or large-
scale expansions into new or contested areas of the
marketplace. Venture capital companies can accept this
higher degree of risk due to higher rate of return on
investment expected if the project or business strategy is
a success. Borrowers seek venture capital funding in cases
where traditional lending arrangements are unavailable
or unappealing due to the higher degree of security
necessary for these loans.
In his declaration, Mr. Galish explained that venture capital financing is not a
regulated industry.
Based on the foregoing, Applicant’s “financial exchange, namely, execution
services regarding the trading of derivatives” and Registrant’s “venture capital
services, namely, providing financing to emerging and start-up companies” are
distinctly different activities that move in different channels of trade and to
different classes of consumers. In other words, the conditions and activities
surrounding marketing of these services are such that they would not be
encountered by same persons under circumstances that could, because of
similarities of marks used with them, give rise to the mistaken belief that they
originate from or are in some way associated with the same producer. See Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
Cir. 2012); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410
Serial No. 85438946
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(TTAB 2010); Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB
1980); Oxford Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854
(TTAB 1978).
The Trademark Examining Attorney has made of record some 33 use-based
registrations with 26 different owners covering both financial exchange services and
venture capital services. However, all the registrations include lengthy “laundry”
lists of financial activities and, therefore, have minimal probative value as to the
relatedness of the particular services at issue. See In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (the Board gave little consideration to
two third-party registrations owned by “a large department store and an
amusement or theme center, respectively, where a wide variety of goods and
services are sold.”).
Although the Trademark Examining Attorney contends that she submitted
excerpts from third-party websites demonstrating that the third-parties render both
services, the websites do not show that any of the third-parties render “execution
services regarding the trading of derivatives.” For example, Yuanta Financial
Holdings (yuanta.com) a Taiwanese company offers its services to companies
looking to make Taiwanese investments.9 Yuanta Holdings advertises that it is
“continually developing and marketing new derivative products, structured
products, convertible bond asset swaps and interest rate swaps,” but it is not
operating a swap execution facility that provides a marketplace for the trading of

9 September 3, 2014 Office Action.
Serial No. 85438946
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interest rate swaps. Likewise, the third-party websites the Trademark Examining
Attorney submitted with her February 6, 2015 Office Action demonstrate that the
third parties (e.g., Citibank, JPMorgan Chase, PNC Bank) trade derivatives, but
they do not operate a swap execution facility.
In view of the foregoing, we find that the services are not related, they move in
different channels of trade and are sold to different classes of consumers.
B. The conditions under which and buyers to whom sales are made, i.e.
“impulse” vs. careful, sophisticated purchasing.

Applicant’s “execution services regarding the trading of derivatives” by its
inherent nature are a complex and sophisticated financial service governed by the
Commodity Futures Trading Commission. Suellen Galish, Applicant’s Senior
Managing Direct and General Counsel, testified in his declaration that “[t]he
consumers of [Applicant’s] services are sophisticated market participants who are
institutional investors that seek to hedge risk or proprietary traders that mark a
profit from changes in interest rates and/or the yield curve.”
Likewise, during the prosecution of the Registrant’s application for registration,
Registrant characterized its customers as sophisticated consumers.10
Lastly, it is important to consider the discriminating
nature of the consumers of both goods and services.
[Registrant’s] investments typically cost upwards of
$5,000,000. With such a large price tag per investment, it
is not likely that many venture capital investors will seek
out the registrant for an investment advisor. Conversely,
consumers seeking help in investing in securities will not

10 Registration No. 2612614 for the mark JAVELIN for “financial services, namely investing
the funds of others and investment advisory services” was cited as a Section 2(d) bar to the
registration of Registrant’s mark.
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seek out anyone specializing in venture capital
investments. The purchase of either service cannot be
considered an impulse buy. Instead, the purchasers are
careful, sophisticated purchasers and are not likely to be
confused, mistaken or deceived as to the source of the
goods.11
The high degree of consumer care exercised by venture capital financing
companies is corroborated by the CnF Exchange website noted above which
explained that “[b]efore venture capital is placed there is typically a considerable
amount of due diligence performed to understand the company and its growth
potential.”
These services have the earmarks of being rendered in a marketing milieu
involving knowledgeable participants who exercise a high degree of care, special
laws and regulations affecting the services, institutional purchasing practices,
purchasers having a specific purpose or plan for engaging the services, and the
unusual and complex nature of the services. In view of the foregoing, we find that
this du Pont factor weighs against finding that there is a likelihood of confusion.
C. The number and nature of similar marks in use in connection with similar
services.

Applicant argues that its JAVELIN mark exists in a crowded field and that,
therefore, “consumers will easily be able to distinguish the services offered in
connection with Applicant’s Mark with the services offered with the Cited Mark.”12
In this regard, Applicant submitted excerpts from five third-party websites listed

11 August 15, 2014 Response to an Office Action.
12 4 TTABVUE 16.
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below displaying the term “Javelin” used as a service mark or trade name for
companies rendering some sort of financial service:13
1. Javelin 19 Investments (javelin19.com) invests in real estate and real estate
related assets in the nature of multi-family and office properties in the $5 million to
$50 million range;
2. Javelin Investments (javelinchina.com) is an investment consulting firm that
“creates value by planning, identifying, evaluating, and executing investment
opportunities in China”;
3. Javelin Mortgage Investment Corp. (javelinreit.com) is a real estate
investment trust that invests in mortgage-backed securities and related
investments. Mortgage-backed securities may be derivatives;
4. Javelin Strategy & Research (javelinstrategy.com) is a financial research
company; and
5. Javelin Wealth Management (javelinwealth.com) “provides wealth
management, global asset management and private banking services.”
The probative value of third-party trademarks depends entirely upon their
usage. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (quoting Scarves by Vera, Inc. v.
Todo Imports, Ltd., 544 F.2d 1167, 192 USPA 289, 294 (2d Cir. 1976) (“The
significance of third-party trademarks depends wholly upon their usage. Defendant

13 We did not consider Javelin Partners (javelinpartners.com), “an advisory and investment
firm serving the junior resources and agribusiness sectors,” because it is a Canadian
company and there is no evidence that it does business in the United States.
Serial No. 85438946
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introduced no evidence that these trademarks were actually used by third parties,
that they were well promoted or that they were recognized by consumers.”)). As the
Court of Appeals for the Federal Circuit has previously recognized where the
“record includes no evidence about the extent of [third-party] uses … [t]he probative
value of this evidence is thus minimal.” Han Beauty, Inc. v. Alberto-Culver Co., 236
F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001). “[T]he purpose of a defendant
introducing third party uses is to show that customers have become so conditioned
by a plethora of such similar marks that customers ‘have been educated to
distinguish between different [such] marks on the bases of minute distinctions.’”
Veuve Clicquot Ponsardin, 73 USPQ2d at 1694.
On the one hand, the evidence in this case does not rise to the level of
demonstrating that the third-party use singularly or in toto is so widespread as to
“condition” the consuming public. See Penguin Books Ltd. v. Eberhard, 48 USPQ2d
1280, 1284 n.5 (TTAB 1998) (white pages listings do not show that the public is
aware of the companies); but see In re Broadway Chicken Inc., 38 USPQ2d 1559,
1565 n.16 (TTAB 1996) (“the magnitude of applicant’s evidentiary record is such
that even allowing for these possibilities [some of the entities are out of business,
are small enterprises, are in remote locations, or have reached only a miniscule
portion of the relevant public], there is still a significant body of evidence of third-
party use”).
On the other hand, the third-party websites show that the term “Javelin” is used
by third parties in connection with real estate investments, financial consulting
Serial No. 85438946
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services in connection with China, real estate investment trusts, financial research,
and wealth management services. These websites, on their face, “show that the
public may have been exposed to those internet websites and therefore may be
aware of the advertisements contained therein.” Rocket Trademarks Pty Ltd., v.
Phard S.p.A., 98 USPQ 2d 1066, 1072 (TTAB 2011).
We find that this du Pont factor is neutral.
D. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We now turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In a particular case, “two marks may
be found to be confusingly similar if there are sufficient similarities in terms of
sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v.
Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216
(Fed. Cir. 1992) (emphasis in the original; citation omitted). See also Eveready
Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (citing Krim-
Ko Corp. v. The Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It
is sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”)).
“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
Serial No. 85438946
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between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See also San Fernando Electric Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992). The proper focus is on the recollection
of the average customer, who retains a general rather than specific impression of
the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012);
Winnebago 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). As
indicated above, the relevant consumers exercise a high degree of care when
selecting their service provider.
The marks are similar because they share the common word “Javelin” which has
no inherent meaning in connection with either service. Because the similarity or
dissimilarity of the marks is determined based on the marks in their entireties, the
analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on the entire marks, not just part of
the marks. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. V. Master Mfg.
Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark
should not be dissected and considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”). On the other hand, there is nothing
Serial No. 85438946
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improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 224 USPQ
at 751.
The word “Javelin” is the dominant element in Applicant’s mark because where
marks consist of both words and a design, the words are normally given greater
weight because they would be used by consumers to request the products. In re
Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012)
(citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir
1983)); 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). While Applicant described its mark as “a line
with a circle cutting through it,” when it is used in connection with the word
“Javelin” consumers are likely to perceive the design element as a javelin. Thus, the
design emphasizes the word “Javelin” adding to the dominance of that word in
creating its commercial impression.
The word “Javelin” is also the dominant element of the Registrant’s mark
JAVELIN VENTURE PARTNERS. The term “Venture Partners” is descriptive
when used in connection with venture capital services. It is well-settled that
disclaimed, descriptive matter may have less significance in likelihood of confusion
determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that
Serial No. 85438946
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the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”) (quoting In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d
1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc.,
60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”).
The significance of the word “Javelin” as the dominant element of Registrant’s
mark is further reinforced by its location as the first part of the mark. See Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the
mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the
first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering
the marks, consumers will first notice the identical lead word); Presto Products Inc.
v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first
part of a mark which is most likely to be impressed upon the mind of a purchaser
and remembered”).
As indicated above, the marks are similar because they share the word “Javelin”
which is the dominant element of both marks. In fact, as far as the word portions of
the mark are concerned Registrant’s mark encompasses all of Applicant’s mark. In
similar circumstances, courts and the Board have found that the marks are
confusingly similar. See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
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1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to registrant’s mark ML
MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406,
407 (CCPA 1967) (THE LILLY as a mark for women's dresses is likely to be
confused with LILLI ANN for women's apparel including dresses); Hunter Indus.,
Inc. v. Toro Co., 110 USPQ2D 1651, 1660-61 (TTAB 2014) (applicant’s mark
PRECISION is similar to registrant’s mark PRECISION DISTRIBUTION
CONTROL); In re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)
(CAREER IMAGE for women's clothing stores and women's clothing likely to cause
confusion with CREST CAREER IMAGES for uniforms including items of women's
clothing). In United States Shoe, the Board observed that “Applicant's mark would
appear to prospective purchasers to be a shortened form of registrant's mark.” 229
USPQ at 709.
In view of the foregoing, we find that Applicant’s mark JAVELIN and design is
similar to the Registrant’s mark JAVELIN VENTURE PARTNERS in terms of
appearance, sound, connotation and commercial impression.
E. Balancing the factors.
Despite the fact that the marks are similar, because the relevant consumers
exercise a high degree of consumer care when selecting their financial service
provider, the services are not related, they move in different channels of trade and
are sold to different classes of consumers, we find that Applicant’s mark JAVELIN
and design for “financial exchange, namely, execution services regarding the
trading of derivatives and specifically excluding venture capital services” is not
Serial No. 85438946
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likely to cause confusion with the registered mark JAVELIN VENTURE
PARTNERS for “venture capital services, namely, providing financing to emerging
and start-up companies.”
Decision: The refusal to register Applicant’s mark JAVELIN and design is
reversed.