Michael R. Patteen

Trademark Trial and Appeal Board

Nov 30, 2017

No. 86922225 (T.T.A.B. Nov. 30, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 30, 2017
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Michael R. Patteen
_____
Serial No. 86922225
_____
Jeffrey P. Thennisch, Esq.
for Michael R. Patteen.

Edward Fennessy, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____
Before Ritchie, Greenbaum, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
Michael R. Patteen (“Applicant”) seeks registration on the Principal Register of
the mark ALIUS INC in standard characters, with INC disclaimed, for the following
goods and services (emphasis added):
Audio and video recordings featuring music and artistic performances;
Compact discs featuring music; Computer software featuring musical
Serial No. 86922225
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sound recordings and musical video recordings; Digital media, namely,
pre-recorded DVDs, downloadable audio and video recordings, and CDs
featuring and promoting music; Digital music downloadable from the
Internet; Downloadable MP3 files and MP3 recordings featuring music;
Downloadable music files; Downloadable musical sound recordings;
Downloadable video recordings featuring music; Downloadable music
via the internet and wireless devices; Musical recordings; Musical sound
recordings; Musical video recordings; Phonograph records featuring
music; Prerecorded audio tapes featuring music; Prerecorded video
cassettes featuring music; Prerecorded video tapes featuring music;
Sound recordings featuring music; Video recordings featuring music;
Downloadable software in the nature of a mobile application for audio
and visual entertainment in International Class 9; and

Consultation and advice regarding musical selections and arrangements
for sound recordings and live performances; Entertainment in the
nature of live musical groups; Entertainment information services,
namely, providing information and news releases about a musical artist;
Entertainment services by a musical artist and producer, namely,
musical composition for others and production of musical sound
recordings; Entertainment services in the nature of live musical
performances; Entertainment services in the nature of live visual and
audio performances, namely, musical band performances;
Entertainment services in the nature of presenting live musical
performances; Entertainment services in the nature of recording,
production and post-production services in the field of music;
Entertainment services, namely, non-downloadable ringtones, pre-
recorded music, and graphics presented to mobile communications
devices via a global computer network and wireless networks;
Entertainment services, namely, providing a web site featuring non-
downloadable musical performances, musical videos, related film clips,
photographs, and other multimedia materials featuring musical groups;
Entertainment services, namely, providing non-downloadable playback
of music via global communications networks; Entertainment services,
namely, providing non-downloadable prerecorded music, information in
the field of music, and commentary and articles about music, all on-line
via a global computer network; Entertainment, namely, live music
concerts; Multimedia entertainment services in the nature of recording,
production and post-production services in the fields of music, video, and
films; Music composition and transcription for others; Music production
services; Music publishing services; Music video production; Musical
event booking agencies; On-line journals, namely, blogs featuring music;
Production of sound and music video recordings; Providing a website
featuring information in the field of music and entertainment; Providing
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an Internet website portal in the field of entertainment, cultural and
sporting events; Provision of information relating to live performances,
road shows, live stage events, theatrical performances, live music
concerts and audience participation in such events; Provision of
information relating to music; Publication of musical texts; Ticket
reservation and booking services for entertainment and musical events
in International Class 41.1

The Examining Attorney has finally refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the
registered mark ALIAS in stylized form, , for the
following services (emphasis added):
Entertainment rendered by a musical act, namely, entertainment in the
nature of live visual and audio performances by a musical band; live
performances by a musical band; multimedia entertainment services in
the nature of recording, production and post-production services in the
field of music and video; Entertainment services by a musical artist,
namely, music songwriting for non-advertising purposes, music
recording, music production, music publishing, music video creation,
musical composition and production of musical sound recordings;
Providing an Internet website portal in the field of music; Entertainment
services, namely, providing non-downloadable playback of music via
global communications networks in International Class 41.2

After the final Office Action, Applicant appealed and requested reconsideration. The
Examining Attorney denied the request, and this appeal then proceeded. In his brief,
Applicant indicates that he seeks a reversal of the refusal as to both classes, and in
the alternative, seeks a reversal of the refusal as to the goods in International Class

1 Application Serial No. 86922225 was filed February 27, 2016, based on a declared intent to
use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
2 Registration No. 4845643 issued November 3, 2015.
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9 only. As discussed below, we consider the refusal as to each of the classes in the
application.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc.,
380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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 and differences in the marks.”). We discuss below these
and other relevant factors. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d
1378, 78 USPQ2d 1944 (Fed. Cir. 2006) (only du Pont factors that are “relevant and
of record” need be considered).
A. The Goods and Services
As to the goods and services, we must determine whether their degree of
relatedness rises to such a level that consumers would mistakenly believe the
respective goods and services emanate from the same source. In making this analysis
of the second du Pont factor, we look to the identifications in the application and cited
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registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Also, “it is sufficient
for finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods [and services] within a particular class in
the application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); see
also Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981).
First, as to Applicant’s services in International Class 41, there is partial direct
overlap with services in the same class in the cited registration. Applicant recites
“entertainment services in the nature of live musical performances,” while the cited
registration includes “live performances by a musical band,” which would be a
particular type of live musical performance. See In re Hughes Furniture Indus., Inc.,
114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of
‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture.’”). Similarly, Applicant also identifies “providing a website
featuring information in the field of music and entertainment,” while the cited
registration recites “providing an Internet website portal in the field of music.” Again,
these services overlap. Thus, within International Class 41, Applicant’s services are
in part legally identical to those in the cited registration.
Second, turning to International Class 9, Applicant’s goods include musical
recordings and digital music downloadable from the Internet, while the services in
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the cited registration include providing an Internet website portal in the field of
music, as well as entertainment services, namely, providing non-downloadable
playback of music via global communications networks. The record includes evidence
that goods and services of this type emanate from the same source under the same
mark. For example:
The Zoe Keating website provides an Internet portal in the field of music and also
offers musical recordings in the form of CDs and digital music downloads;3
The White Mystery website provides an Internet portal in the field of music and
also offers musical recordings in the form of CDs and digital music downloads;4
The Rhymesayers website is in the field of music and offers musical recordings in
the form of CDs, vinyl, cassettes, and digital music;5
The Nonesuch website is in the field of music and the Nonesuch Store offers music
CDs & MP3s for sale;6
The Atlantic Records website features music videos and song downloads and
provides information in the field of music; 7
The Live Bruce Springsteen website offers musical recordings and provides
information in the field of music.8

3 TSDR September 14, 2016 Office Action at 37-47 (zoekeating.com).
4 Id. at 48-64 (whitemysteryband.com).
5 Id. at 65-70 (rhymesayers.com).
6 TSDR June 15, 2016 Office Action at 16-19, 36-38 (nonesuch.com).
7 Id. at 41-43, 49 (official Coldplay videos), 42 (song downloads), 45-48 (information about
musical acts) (atlanticrecords.com).
8 Id. at 54-55 (live.brucespringsteen.net).
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The Barenaked Ladies website features information in the field of music,
nondownloadable playback of music, and offers musical recordings;9
The website of Panic! At The Disco features information in the field of music, as
well as downloadable sound recordings;10 and
The Snarky Puppy website offers information about music and the opportunity to
purchase music DVDs, CDs, vinyl records and MP3s, and provides playback of
music.11
This marketplace evidence shows that consumers commonly encounter musical
recordings and digital music under the same mark as services such as a website about
music and non-downloadable playback of music via global communications networks.
Thus, we find the relevant International Class 9 goods in the application and the
relevant International Class 41 services in the cited registration highly related.
Applicant makes a brief argument under this du Pont factor that Applicant’s goods
are not identical to the services in the cited registration, but this is not the standard.
Rather, “[w]hen analyzing the similarity of the goods [and services], ‘it is not
necessary that the products of the parties be similar or even competitive to support a
finding of likelihood of confusion.’ Instead, likelihood of confusion can be found ‘if the
respective products [and services] are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the

9 5 TTABVUE 7-17 (barenakedladies.com) (Denial of Request for Reconsideration).
10 Id. at 18-25 (panicatthedisco.com).
11 7 TTABVUE 4-23 & 8 TTABVUE 2-20 (snarkypuppy.com).
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mistaken belief that they emanate from the same source.’” Coach Servs. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012). As noted
above, the evidence clearly establishes that these goods and services are related. See
TMEP § 1207.01(a)(ii) (Oct. 2017) and cases cited therein.
The du Pont factor of the similarity of the goods and services clearly favors a
finding of likelihood of confusion as to each class in the application. See Tuxedo
Monopoly, 209 USPQ at 988 (likelihood of confusion must be found if there is likely
to be confusion with respect to any item that comes within the identification of goods
in the application).
B. Trade Channels and Classes of Consumers
Moreover, we must presume that the legally identical services in International
Class 41 travel in the same channels of trade. In re Smith and Mehaffey, 31 USPQ2d
1531, 1532 (TTAB 1994); see also In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in
determining likelihood of confusion). Turning to the trade channels for the
International Class 9 goods, the Examining Attorney’s evidence, including the
evidence set out above, shows that such goods are offered through the same websites
that provide the International Class 41 services discussed above from the cited
registration. We reject Applicant’s unsupported assertion of distinct trade channels
for the goods and services at issue.12 Any alleged actual marketplace differences for

12 12 TTABVUE 18-21 (Applicant’s Brief).
Serial No. 86922225
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Applicant and registrant are not borne out by the unrestricted identifications of goods
and services. This du Pont factor must be assessed according to the identifications of
the respective goods and services in the application and registration at issue, not on
extrinsic evidence of actual use. See, e.g., Coach Servs., 101 USPQ2d at 1722;
Octocom, 16 USPQ2d at 1787. We must assume that the identified goods and services
move through all normal and usual channels of trade and methods of distribution for
such goods and services. In re i.am.symbolic llc, 866 USPQ2d 1315, 123 USPQ2d
1744, 1751 (Fed. Cir. 2017); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937,
940 (Fed. Cir. 1983). The record reflects that Applicant’s goods and services travel in
the same channels of trade to the same classes of consumers as registrant’s services.
C. The Number and Nature of Similar Marks for Similar Services
Applicant asserts under the sixth du Pont factor that the mark in the cited
registration deserves only a narrow scope of protection in view of 15 third-party
registered marks13 that contain various ALI-formative terms, covering goods and
services in International Classes 9, 41, and 42. The Federal Circuit has held that
evidence of the extensive registration and use of a term by others in the same industry
can be powerful evidence of the term’s weakness. Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,

13 While we note that Applicant alleged the existence of “no less than sixteen (16) separate,
active, existing, and issued third party registrations,” 12 TTABVUE 6 (Applicant’s Brief),
Applicant’s list included the cited registration, which is not a third-party registration that
might be probative of the strength of the cited mark.
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115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Use evidence may reflect commercial
weakness, while third-party registration evidence that does not equate to proof of
third-party use may bear on conceptual weakness if a term is commonly registered
for similar goods or services. See Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189
USPQ 693, 694-95 (CCPA 1976) (even if “there is no evidence of actual use” of third-
party registrations, such registrations “may be given some weight to show the
meaning of a mark in the same way that dictionaries are used ”).
Applicant did not provide any third-party evidence of actual use of the same or
similar marks, and we find the third-party registration evidence lacking for several
reasons. Most of the 15 third-party registrations on which Applicant relies cover
goods or services that conspicuously differ from those at issue, and Applicant
submitted no evidence of relatedness. For example, the third-party registrations
identify goods and services such as human resources consultation, cellular
telephones, interferometers for ballistics imaging, design of custom paper products,
and various types of software unrelated to children’s education or games. On this
record, such registrations for diverse goods and services cannot diminish the scope of
protection to be afforded the cited mark in this case. See i.am.symbolic, 123 USPQ2d
at 1751 (disregarding third-party registrations for goods where the proffering party
“has neither introduced evidence, nor provided adequate explanation to support a
determination that the existence of I AM marks for goods in other classes, … support
a finding that registrants’ marks are weak with respect to the goods identified in their
registrations”). Ultimately, only two third-party registrations identify relevant goods
Serial No. 86922225
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or services, Registration No. 1909754 for the mark ALIAS and design, , for
“sound recordings featuring music,” and Registration No. 2491692 for the mark ALIA
VOX for “musical sound recordings.” While the latter of these two registrations may
cover relevant goods, the mark itself has less probative value to show weakness of the
cited mark ALIAS in the industry. As indicated in the ALIA VOX registration, that
term is Latin for “another voice.”14 The ALI-formative term is less similar to ALIAS,
and modifies VOX. Overall, we find the appearance, sound, connotation and
commercial impression of the mark does not necessarily bear on the consumer
perception of ALIAS in the industry.15
Left with only one more relevant third-party registration, we find it
insufficient to curtail the scope of protection of the cited registration. We therefore
deem this case readily distinguishable from those relied on by Applicant. For
example, Applicant’s characterization of Primrose Retirement Communities, LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030 (TTAB 2016) as involving “eight
(8) ROSE-formative marks for similar services”16 omits the important point that in
addition to the eight registrations, the record included more than 85 actual uses of

14 TSDR August 17, 2016 Response to Office Action at 22.
15 This same defect applies to other third-party registered marks relied on by Applicant, but
we need not address them all specifically because, as noted above, we already have deemed
them irrelevant based on the goods and services in the registrations.
16 12 TTABVUE 12 (Applicant’s Brief).
Serial No. 86922225
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ROSE-formative marks for similar services, as well as expert testimony and other
evidence regarding the common nature of ROSE-formative marks in the industry. Id.
at 1034-35. Thus, we find it factually inapposite to the evidentiary record in the case
before us. Rather, the situation in this case is more analogous to that presented in In
re Mr. Recipe, LLC, 118 USPQ2d 1084 (TTAB 2016), where the Board rejected a
weakness argument that rested on one third-party registration. In that case, the
Board contrasted the weakness record with prior precedents where “considerable” or
“extensive” third-party uses and registrations had evidentiary value, noting “[h]ere,
in stark contrast, we have one registration and no indication of the impact of its use
on consumers.” Cf. Juice Generation, 115 USPQ2d at 1675 (weakness shown by at
least 26 third-party uses and registrations containing the same phrase for the same
services); Jack Wolfskin, 116 USPQ2d at 1136 (third-party weakness evidence
characterized as “voluminous”).
D. Similarity of the Marks
Next, we turn to the du Pont factor comparing the applied-for and cited marks,
which we consider “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du
Pont, 177 USPQ at 567). The test assesses not whether the marks can be
distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at
Serial No. 86922225
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1721; see also Edom Labs., Inc. v. Glenn Lichter, 102 USPQ2d 1546, 1551 (TTAB
2012).
As an initial matter, in considering Applicant’s mark, we bear in mind that the
standard-character mark could be presented in any font style or size, and therefore
could appear in the same lettering style as the registered mark. See Viterra, 101
USPQ2d at 1909; see also 37 C.F.R. § 2.52(a). Also, with Applicant’s mark, consumers
would be more likely to perceive a distinctive term like ALIUS, rather than the
disclaimed common entity designation INC, as the stronger source-indicating feature
of the mark. See, e.g., In re Dixie Rests., Inc., 41 USPQ2d at 1533-34 (affirming
TTAB’s finding that the dominant portion of the mark THE DELTA CAFE was
DELTA, not the disclaimed generic term CAFE); In re Binion, 93 USPQ2d 1531, 1534
(TTAB 2009) (finding that the dominant portion of the mark BINION’S
ROADHOUSE was BINION’S, not the disclaimed descriptive wording
ROADHOUSE). That ALIUS is the first word in the mark also contributes to its
dominance. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (noting that the first word of a mark is “most likely to be impressed
upon the mind of a purchaser and remembered”). Applicant has criticized any
particular focus on ALIUS as an impermissible dissection of the mark, but “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
given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056,
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1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985); see also Stone Lion Capital 110
USPQ2d at 1161.
Comparing ALIUS INC to the registered mark , we find
the marks to be very similar. ALIAS and the dominant term ALIUS create a
significant visual resemblance between the two marks and makes them sound
similar. ALIAS and ALIUS differ only by one letter, which is a vowel identically
placed in each word. “Alias” is an English language word, while “alius” is a Latin
word, and they would be pronounced perhaps identically or at least similarly for
consumers who know Latin, as evidenced by pronunciation guidance in the record.17
To the extent any minor difference in pronunciation exists, consumers who hear the
marks spoken by others are not likely to even notice the difference. See Viterra, 101
USPQ2d at 1912. “Slight differences in the sound of similar marks do not avoid a
likelihood of confusion.” In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351
(TTAB 1983). For consumers unfamiliar with Latin, we find them likely to view the
ALIUS portion of Applicant’s mark as a minor misspelling of ALIAS. For those
familiar with Latin, “alius,” means “other” or “another.”18 “Alias” is defined as
“otherwise called: otherwise known as – used to indicate an additional name that a

17 TSDR September 14, 2016 Office Action at 2-5 (Wiktionary entry for “alius” and American
Heritage online dictionary entry for “alias”).
18 Id. at 2 (Wiktionary entry for “alius”); see also TSDR June 15, 2016 Office Action at 8
(Google Translate entry for “alius” in Latin).
Serial No. 86922225
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person (such as a criminal) sometimes uses”19 and “an assumed name.”20 The word
“alias,” the literal term in Registrant’s mark, is derived from the Latin word “alius,”
the first term in Applicant’s mark.21 Thus, ALIAS and ALIUS have a similar meaning
and commercial impression.
The second word in Applicant’s mark, INC, most likely would be understood
merely as the abbreviation of “incorporated,” a reference to an entity designation.22
Applicant complied with the Examining Attorney’s requirement for a disclaimer of
INC as an entity type,23 also an implicit acknowledgment, with which we agree, that
ALIUS INC is a not unitary term with a distinct meaning derived from the
combination of words. See Trademark Manual of Examining Procedure § 1213.05
(Oct. 2017) (“If the matter that comprises the mark or relevant portion of the mark is
unitary, no disclaimer of an element, whether descriptive, generic, or otherwise, is
required.”). We find that INC adds little to the connotation and commercial
impression of Applicant’s mark.

19 We take judicial notice of the Merriam-Webster online dictionary entry for “alias.” The
Board may take judicial notice of dictionary entries, 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).
20 TSDR June 15, 2016 Office Action at 6 (online American Heritage Dictionary entry for
“alias”).
21 The previously noted Merriam-Webster online dictionary entry for “alias” includes the
“origin and etymology” of the word as “Latin, otherwise, from alius other.”
22 TSDR June 15, 2016 Office Action at 15 (online American Heritage Dictionary entry for
“Inc.”).
23 Id. at 1.
Serial No. 86922225
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In arguing against the similarity of the marks, Applicant relies for support
primarily on the coexistence of the two third-party registrations discussed above for
and ALIA VOX. We first emphasize that we must decide each case on its own
merits and “[e]ven if some prior registrations had some characteristics similar to
[Applicant’s] application, the PTO’s allowance of such prior registrations does not
bind the Board.” In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001). Additionally, as previously detailed, we find ALIA VOX distinguishable.
As to , we note that it contains design elements and stylized wording, unlike
Applicant’s standard-character mark that could be presented in the same font used
in the cited registration. Thus, the coexistence of these registrations with the cited
registration does not compel a reversal of the refusal in this case.
Rather, considering the marks in their entireties in the context of partly legally
identical and otherwise related goods, we find the appearance, sound, connotations
and commercial impressions of Applicant’s ALIUS INC mark to be very similar to the
cited mark. We find that this factor weighs in favor of likely
confusion.
E. Consumer Sophistication
Applicant argues, without pointing to supporting evidence, that consumers would
exercise care in purchasing the goods and services at issue, “as they fulfill their
Serial No. 86922225
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particular need or function for entertainment and music-related content.”24 The
evidence in the record reflects that the identified goods and services encompass free
and modestly-priced everyday consumer goods and services. In view of the
requirement that we consider the least sophisticated potential purchasers, we reject
Applicant’s proposition that careful purchasing conditions exist for the relevant goods
and services. See Stone Lion Capital Partners, 110 USPQ2d at 1163 (“Accordingly,
the Board properly considered all potential investors for the recited services…. Board
precedent requires the decision to be based ‘on the least sophisticated potential
purchasers.’”) We consider this factor neutral.
D. Conclusion
The overall similarity of the marks for in part identical and otherwise closely
related goods and services that move in the same channels of trade to the same classes
of customers, who do not exercise heightened care in purchasing, renders confusion
likely.
Decision: The refusal to register Applicant’s mark is affirmed for the goods in
International Class 9 and the services in International Class 41.

24 12 TTABVUE 18 (Applicant’s Brief).