Kyle Meade

Trademark Trial and Appeal Board

Sep 30, 2019

88141931 (T.T.A.B. Sep. 30, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Kyle Meade
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Serial No. 88141931
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Joshua A. Schaul of Garvey Adam LLP,
for Kyle Meade.
Andrea B. Cornwell, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Zervas, Shaw and Heasley,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Kyle Meade (Applicant) seeks registration on the Principal Register of the mark
ACCIAL CAPITAL, in standard characters, for “Financial services, namely,
investment advice, investment management, investment consultation and
investment of funds for others, including private and public equity and debt
investment services,” in International Class 36.1 Applicant has disclaimed CAPITAL.

1 Application Serial No. 88141931 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1(a), on October 3, 2018 claiming dates of first use anywhere and in commerce of
August 24, 2018.
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Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, when used with the identified
services, so resembles the marks:
AXIAL, in standard characters, for “Financial advice;
Financial advice and consultancy services; Financial
advisory and consultancy services; Financial and
investment services, namely, asset and investment
acquisition, consultation, advisory and development;
Financial consultancy,” in International Class 36,2 and
in stylized form, for “Financial advice;
Financial advice and consultancy services; Financial
advisory and consultancy services; Financial and
investment services, namely, asset and investment
acquisition, consultation, advisory and development,” in
International Class 36,3
as to be likely to cause confusion, mistake or deception. When the refusals were made
final, Applicant appealed and requested reconsideration. The Examining Attorney
denied the request for reconsideration, and the appeal resumed. The case is fully
briefed. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
With its appeal brief, Applicant submitted a list of third-party registrations, none of
which was previously introduced into the record during prosecution.4 Relying on Rule

2 Registration No. 4499379, issued March 18, 2014.
3 Registration No. 4512159, issued April 8, 2014.
4 10 TTABVUE 25-34. Page references to the application record are to the downloadable .pdf
version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References
to the briefs and orders on appeal are to the Board’s TTABVUE docket system.
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2.142(d), 37 C.F.R. § 2.142(d), the Examining Attorney objects to this list of
registrations submitted by Applicant as untimely. Rule 2.142(d) states:
The record in the application should be complete prior to
the filing of an appeal. Evidence should not be filed with
the Board after the filing of a notice of appeal. If the
appellant or the examining attorney desires to introduce
additional evidence after an appeal is filed, the appellant
or the examining attorney should submit a request to the
Board to suspend the appeal and to remand the application
for further examination.
As set forth in the Rule, the record should be complete prior to the filing of the
appeal. Additionally, submitting a list of registrations generally is not sufficient to
make them of record. To make third-party registrations of record, copies of the
registrations, either a copy of the paper USPTO record, or a copy taken from the
electronic records of the USPTO, should be submitted. See, e.g., In re Compania de
Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012) (mere listing of
third-party registrations in brief insufficient to make them of record).
Recognizing that the new evidence was both untimely and insufficient, Applicant,
in its reply brief, requested that the Board remand the application to the Examining
Attorney so that Applicant may put into the record copies of the registrations
underlying the listed third-party registrations.5
A request for remand contained in the body of a reply brief is not sufficient for the
Board to treat it as a proper request for remand. See In re Hollywood Lawyers Online,

5 13 TTABVUE 5. The Board, in an order dated August 21, 2019 denied the request to remand
as improperly made. 15 TTABVUE. For the sake of completeness, we address the evidence
and the request for remand.
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110 USPQ2d 1852, 1859 (TTAB 2014) (“To the extent applicant seeks to request
remand for such consideration by the examining attorney, burying this request in its
reply brief is not sufficient for the Board to treat it as a request for remand.”).
Furthermore, even if we treat Applicant’s request for remand as properly made,
Applicant has not explained why the evidence could not have been previously
obtained and made of record during prosecution, given that all of the listed third-
party registrations issued before Applicant filed its first response to the Examining
Attorney’s refusal. Thus, Applicant’s request for remand fails to show the requisite
good cause. See In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1334 (TTAB 2009)
(request for remand denied for failure to show good cause so late in the appeal). We
sustain the Examining Attorney’s objection, and the request for remand is denied.
We have not considered the list of third-party registrations submitted with
Applicant’s brief.
II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the services and the similarities between the marks. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences in the marks.”).
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Because the AXIAL mark in Registration No. 4499379 and the services identified
therein are most similar to Applicant’s mark and its identified services, we focus our
likelihood of confusion analysis on this AXIAL mark. If we do not find a likelihood of
confusion with this registered mark and its services, then there would be no
likelihood of confusion with the mark in the other registration. See In re Max Capital
Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. Number and nature of similar marks in use with similar services
Under the sixth DuPont factor, we first consider “[t]he number and nature of
similar marks in use [in connection with similar services].” DuPont, 177 USPQ at
567. If the evidence establishes that the consuming public is exposed to third-party
use of similar marks in connection with similar goods and services, it “is relevant to
show that a mark is relatively weak and entitled to only a narrow scope of protection.”
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005).
Applicant argues that:
Based on the clearly large number of AXIAL/AXIS marks
that incorporate additional portions that are similar or
even nearly identical, it appears that the USPTO has
consistently taken the position that variations in the
physical appearances of the marks, as well as the goods
associated with the marks, are sufficient to distinguish one
AXIAL/AXIS mark from another and not cause a likelihood
of confusion, despite the similarity in the additional
portions of the marks.6

6 Applicant’s Br., p. 12, 10 TTABVUE 19.
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In support, Applicant submitted nineteen copies of third-party registrations for
allegedly similar marks used in connection with financial services, as well a list of
seventy-one such registrations.7
Applicant’s argument that the registered mark is entitled to only a narrow scope
of protection is unpersuasive. None of the third-party registrations comprise the term
AXIAL. Instead, they appear to be comprised of terms that simply begin with the
letters “AX”, e.g., AXIS, AXEL, AXONIA, AXIUS, AXUMIS, AXIOM, AXESS,
AXCESS, AXES, AXON, AXA, and the like. The applicable DuPont factor is the
“number and nature of similar marks on similar goods [or services].” DuPont, 177
USPQ at 567 (emphasis added). We do not find any of the marks introduced by
Applicant to be similar to the registered mark. Thus, the fact that different marks
have registered, even for the same financial services, does not establish that AXIAL
is weak.
Of all the foregoing third-party marks, only ones comprising the term AXIS are
remotely related to the term AXIAL. Even assuming, arguendo, that these third-
party marks comprising AXIS could be considered similar to AXIAL for purposes of
determining its strength, Applicant has introduced only four registrations for AXIS-
formative marks used in connection with financial services.8 Four such registrations

7 Applicant’s Response to Office Action dated February 12, 2109, TSDR pp. 15-26; Applicant’s
Response to Office Action dated April 5, 2109, TSDR pp. 15-26. Inasmuch as the Examining
Attorney did not object to the list of third-party registrations for AX-formative marks, we
have considered them for what is shown on the list. See In re City of Houston, 101 USPQ2d
1534, 1536 (TTAB 2012).
8 Reg. No. 4411670 for BLUEGREENAXIS, Reg. No. 4452111 for DTCC PAYMENT AXIS,
Reg. No. 3690711 for AXIS, and Reg. No. 5521941 for DIRECT AXIS.
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fall well short of the “voluminous” evidence required to establish that AXIS or AXIAL
is so commonly used that the public will look to other elements to distinguish the
source of the goods or services. Cf. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 115 USPQ2d 1671, 1673 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur
Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1136 (Fed. Cir. 2015) (discussing “voluminous evidence” of registration and use
of paw print design elements). See also Primrose Retirement Communities, LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030 (TTAB 2016) (weakness found
based on at least 85 actual uses of ROSE-formative marks for similar services, eight
similar third-party registrations, expert testimony and other evidence regarding the
common nature of ROSE-formative marks in the industry, and testimony by opposer
that it did not vigorously enforce its mark).
We find that the cited mark is not weak, and we accord it a normal scope of
protection.
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression
Next, we consider the similarity of the marks. In comparing the marks, we must
consider their appearance, sound, connotation, and commercial impression. Palm Bay
Imps., 73 USPQ2d at 1692. The emphasis of our analysis must be on the recollection
of the average purchaser, who normally retains a general, rather than specific,
impression of trademarks. Although we consider the marks as a whole, “in
articulating reasons for reaching a conclusion on the issue of confusion, there is
nothing improper in stating that, for rational reasons, more or less weight has been
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given to a particular feature of a mark.” In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). Similarity in any one of the elements of sound,
appearance, meaning, or commercial impression suffices to support a determination
of likelihood of confusion. See 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”); In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014) (“Similarity in any one of these elements may be sufficient to find the
marks confusingly similar.”).
Applicant’s mark is ACCIAL CAPITAL, in standard characters. The registered
mark is AXIAL, also in standard characters. Applicant’s specimen submitted with its
application states that ACCIAL is “pronounced ak-see-uhl.”9 We find that the marks
are similar in sound inasmuch as the terms ACCIAL and AXIAL are likely to be
pronounced the same. That is, the dominant portion of Applicant’s mark and the only
element in the registered mark are pronounced the same. Although marks are
compared in their entireties, one feature of a mark may be more significant or
dominant in creating a commercial impression. See In re Viterra Inc., 671 F.3d 1358,
1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data 224 USPQ at 751.
The presence of the descriptive and disclaimed term CAPITAL in Applicant’s
mark does not change the meaning, or commercial impression of Applicant’s mark
sufficiently to distinguish it from the registered mark. The similarity in
pronunciation suggests a similarity in meaning and Applicant’s web page indicates

9 Application of October 3, 2018, TSDR p. 3.
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that Applicant’s mark is intended, in part, to suggest the term AXIAL: “ACCIAL is a
combination of two words: ACCESS and AXIAL.”10 Incorporating the entirety of one
mark within another and simply adding a descriptive, commonly used term typically
does not obviate the similarity between the marks, nor does it overcome a likelihood
of confusion under Section 2(d). Cf. In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1260 (Fed. Cir. 2010) (“[T]he presence of an additional term in the mark does
not necessarily eliminate the likelihood of confusion if some terms are identical.”).
In sum, we find the similarity of the marks in their entireties as to sound,
meaning, and commercial impression support a finding that the marks are
confusingly similar. Krim-Ko Corp., 156 USPQ at 526; In re White Swan Ltd., 8
USPQ2d 1534, 1535 (TTAB 1988); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581,
1586 (TTAB 2007). This DuPont factor weighs in favor of a finding of a likelihood of
confusion with respect to the cited registration.
C. Comparison of services, channels of trade, and classes of consumers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014), while the third DuPont factor concerns “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” Id. at 1161.
The Examining Attorney need not prove, and we need not find, similarity as to
each activity listed in the description of services. It is sufficient for a refusal based on

10 Id.
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likelihood of confusion that relatedness is established for any item encompassed by
the identification of services in a particular class in the application. Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Both Applicant and Registrant are providing financial services that are, in part,
legally identical, namely, financial services, comprising investment advice and
consulting. Further, the Examining Attorney introduced website excerpts from a
number of financial services companies, such as Charles Schwab & Co., Gallant
Financial Planning, Next Wave Wealth, Revolution Group, Montoya Wealth
Management, Vermont Wealth & Retirement, Oswald Financial, Variphase
Financial Partners, Granite Investment Advisors, and Lazard Asset Management,
establishing that the same entity commonly provides investment advice and
management services and markets the services under the same mark.11
Given that the respective services are legally identical in part, and given the lack
of restrictions on trade channels and classes of customers in the recitations of
services, we presume that these services travel through the same channels of trade
to the same classes of customers, namely those seeking investment advisory and
consulting services. See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162.
Applicant does not contest the Examining Attorney’s arguments or evidence
regarding these factors. The second and third DuPont factors thus weigh heavily in
favor of finding a likelihood of confusion.

11 Denial of Request for Reconsideration dated April 23, 2019, TSDR pp. 2-30.
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D. Conditions of sale
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues that customers of the respective financial services are
sophisticated because its minimum investment threshold is $5 million and
Registrant’s services involve companies with $5-150 million in revenues.12 Applicant
further claims “high net-worth financial services are traditionally bespoke affairs
involving the financial details of persons and corporations, often with minimum
investment commitments before an advisor will take on a new client.”13
Applicant’s argument is predicated upon perceived limitations of services that do
not appear in the application or cited registration. While Registrant’s website may
reveal that its services are currently so limited, we must base our decision on its
services as identified, which define the scope of Registrant’s rights arising from its
registrations. Neither the application nor the registration limit the identifications to
“high net-worth financial services” or “minimum investment commitments.”
Accordingly, the applicable standard of care for the likelihood of confusion analysis is
that of the least sophisticated consumer, i.e., the general public. Primrose Retirement
Communities, 122 USPQ2d at 1039 (citing Stone Lion Capital Partners v. Lion
Capital, 110 USPQ2d at 1163). There is no evidence in the record establishing that

12 Applicant’s Br., p. 13, 10 TTABVUE 20.
13 Id.
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general-public consumers of the financial services identified in the application and
registration are sophisticated or would exercise a high degree of care. See, e.g.,
Lincoln Nat’l Corp. v. Anderson, 110 USPQ2d 1271, 1283 n.18 (TTAB 2014) (where
relevant consumers of banking, financial planning, and investment services consisted
of both ordinary and knowledgeable and sophisticated consumers, “this factor
certainly would not weigh significantly in applicant’s favor.”).
In the absence of any evidence establishing relevant-consumer sophistication, the
fourth DuPont factor is neutral.
E. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that there is a likelihood of confusion
between Applicant’s mark, ACCIAL CAPITAL, and the mark AXIAL in the cited
registration.
Decision: The refusal under Section 2(d) to register Applicant’s mark is affirmed.