Mirriad Advertising Plc

Trademark Trial and Appeal Board

Oct 2, 2019

79227036 (T.T.A.B. Oct. 2, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 2, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Mirriad Advertising Plc
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Serial No. 79227036
_____

Rachel Jacques of Maschoff Brennan for Mirriad Advertising Plc.

April Roach, Trademark Examining Attorney, Law Office 115
Daniel Brody, Managing Attorney.
_____

Before Thurmon, Deputy Chief Administrative Trademark Judge, Wellington and
Lykos, Administrative Trademark Judges.

Opinion by Thurmon, Deputy Chief Administrative Trademark Judge:
Applicant seeks registration of the mark MIRRIAD in standard characters on the
Principal Register for advertising, marketing and publicity services in International
Class 35 and for entertainment services in International Class 41. The Examining
Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), finding Applicant’s mark was likely to cause confusion, or to cause mistake,
or to deceive based on a registration of the mark MIRIAD for the class 35 services
and a registration of the mark MYRIAD for the class 41 services. We affirm the
refusal to register.
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I. Applicant’s Mark and the Prosecution History
Applicant appeals the refusal to register the mark MIRRIAD for the following
services:1
Advertising, marketing and publicity services; business
intermediary services relating to advertising space,
namely, matching of advertisers with websites offering
advertising space; direct marketing services; market
surveys, analysis and research, excluding market research
in the field of odoriferous products; sponsorship search;
financial sponsorship search; sponsorship search
consultancy services; promotion of goods and services
through sponsorship; media planning, namely, advertising
campaign design for others; media buying, namely, rental
of advertising space in video; event marketing, namely,
promotion of special events; business management of
advertising material; providing commercial information
and business news, including, brand and advertising
agency information, news on branding and advertising,
and brand advertising planning data; online branding and
advertising information services, namely, providing
directory of information relating to opportunities for
advertising spaces via website; database marketing,
namely, promotion using the online databases of others;
preparing and placing of advertisements; consultancy
services relating to advertising, publicity and marketing;
rental of advertising space; placing advertisements for
others; planning and buying advertising space, namely,
agencies for advertising time and space, and negotiating
contracts for advertising space for others; online services
for management of media content for advertising, namely,

1 Application Serial No. 79227036. On June 13, 2017, Applicant filed a request for extension
of protection under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f, seeking
registration of the mark MIRRIAD for goods and services in International Classes 9, 35, 36,
38, 40, 41, and 42. The Examining Attorney initially refused registration under Section 2(d)
as to the goods and services in classes 9, 35, 41, and 42. Office Action dated March 3, 2018 at
2-6. The refusals as to classes 9 and 42 were subsequently withdrawn.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify documents by title and date. Specific citations are to
the page number in the .pdf version of the TSDR records. References to the briefs and other
materials in the appeal record refer to the Board’s TTABVUE docket system.
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management of in-video advertising inventory in the
nature of ad serving by placing advertisements on websites
of others using specialized software; advertising services
relating to insertion of advertising into electronic content;
advertising services relating to utilisation of advertising
space; evaluation of advertising space for digitally
embedding imaging, namely, placing advertising for
others; dissemination of advertising material; electronic
advertising, namely, provision of advertising space on
electronic billboards; custom editing of advertising
materials, namely, post production editing services for
advertising commercials, in International Class 35; and,
Entertainment, namely, television, movie and music video
programs in the nature of providing ongoing television
shows and movies in the field of music and online non-
downloadable music videos; online nondownloadable
electronic publications provided via a computer database
or the Internet, namely, newsletters, pamphlets and videos
in the field of photo and video editing; publishing services
of books, e-books, and web magazines; education, training
and seminar services, namely, advertising workshops and
digital marketing training; publishing, namely, video
publishing for others; production and editing of radio and
television programmes; alteration of video and/or
photographs, namely, photo editing, post production video
editing, in International Class 41.
The Examining Attorney refused registration as to Applicant’s class 35 services
based on a registration of the mark MIRIAD (in typed format) on the Principal
Register for the following services:
Market research; conducting marketing studies; business
research services; all of the above in the field of odoriferous
products including perfumes, cosmetics, toiletries,
personal care products, laundry and cleaning products and
household cleaners, and in particular the response of the
public to olfactory stimuli, in International Class 35.2

2 Registration No. 2950749 issued on May 17, 2005; renewed.
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The Examining Attorney refused registration as to Applicant’s class 41 services
based on a registration of the mark MYRIAD (in standard characters) on the
Principal Register for the following services:
Educational services, namely, producing training videos in
the field of work place procedures and industrial safety,
safety management, sustainable development,
communications, education, training, corporate and
marketing information; providing of training in the field of
work place procedures and industrial safety, health, safety
training, education, training, corporate training and
marketing information training; entertainment services,
namely, providing motivational speakers in the fields of
health, safety, management, sustainable development,
communications, education, training, corporate and
marketing information; photography; video recording
services; media production services, namely, video and film
production; film and video production; animation
production services; production of radio and television
programs; production of shows; recording studio services;
television and entertainment production; providing online
training and education, educational videos and interactive
website facilities that may be accessed by means of
communications networks; provision of television,
broadband, wireless and online multimedia programs;
production and distribution of recorded video and films;
pre-recorded audio video tapes, cassettes, discs, records,
CDs, DVDs and all the other types of carriers; production
and arrangement of television programs; providing
television, broadband, wireless and online electronic
publications not downloadable; providing an online website
for entertainment, news and information, products,
multimedia programs and other reference materials via an
online website, in International Class 41.3

3 Registration No. 4638892 issued November 18, 2014.
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On April 3, 2019, Applicant filed a Notice of Appeal and a Request for
Reconsideration. The Examining Attorney denied the Request. Applicant and the
Examining Attorney have filed briefs and we now decide the appeal.
II. Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d), 15 U.S.C. § 1052(d), on an analysis of all of the probative facts in evidence that
are relevant to the factors enunciated in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”), cited in B&B Hardware, Inc.
v. Hargis Indus., Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015);
see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). We must consider each du Pont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). However, “each case must be decided on its own facts and the
differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197,
177 USPQ 386, 387 (CCPA 1973).
Varying weights may be assigned to each du Pont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations in most cases
are the similarities between the marks and the similarities between the goods or
services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed.
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Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d
1375 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all du Pont
factors for which there is record evidence but ‘may focus ... on dispositive factors, such
as similarity of the marks and relatedness of the goods.’”)).
III. Analysis
A. Similarity of the Marks
We compare the marks in their entireties as to appearance, sound, connotation
and commercial impression. du Pont, 177 USPQ at 567. “Similarity in any one of
these elements may be sufficient to find the marks confusingly similar.” In re Inn at
St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., (Fed. Cir. Sept. 13, 2019); accord
Krim-Ko Corp. v. Coca-Cola Bottling 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.”) (citation omitted).
The test 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
and services offered under the respective marks is likely to result. Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); Midwestern Pet
Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440
(Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
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normally retains a general rather than a specific impression of trademarks. See
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The marks at issue here are similar in appearance and identical in sound as the
chart below illustrates.
Applicant’s mark
MIRRIAD
Cited registered marks
MIRIAD
MYRIAD
There is only a single letter difference between MIRRIAD and MIRIAD, and only two
different letters between MIRRIAD and MYRIAD. These marks all begin with the
letter “M” and all end in the letters “RIAD”. We find the marks visually similar.
We further find the marks are likely to sound the same or extremely similar when
spoken. Although there is no correct pronunciation of a trademark that is a coined
term, Applicant’s mark is such a close approximation to the recognized word4 and
registered mark, MYRIAD, that it will likely be pronounced in the same
manner. Stoncor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111 USPQ2d
1649, 1651 (Fed. Cir. 2014) (citing In re Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ
227 (CCPA 1969)); see also In re Allegiance Staffing, 115 USPQ2d 1319, 1325 (TTAB
2015) (no correct pronunciation of mark that is coined term). Applicant argues that
the “double consonant ‘R’ within its MIRRIAD mark creates a distinguishable

4 Applicant concedes that “myriad” is a known word with an established meaning. 8
TTABVUE 9.
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pronunciation” as compared to the cited marks.5 We disagree, but even if we were to
allow for the possibility of a different pronunciation, it would only be slight and hardly
noticeable.
Applicant also argues that we should place more weight on the first portions of
these marks and that the difference between the MI and MY (as to the class 41
services) is significant, in part because the word “my” has a known meaning.6 This
argument goes too far. There is no evidence in the record to suggest that consumers
would break apart the mark MYRIAD, again which is a recognized word, and take
special note that it begins with the word “my.” Indeed, the law is clear that we must
consider marks as a whole, a point of particular import when the mark is a single
word. See, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985); 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”).
Applicant argues that the word “myriad” has an established meaning, but that its
mark MIRRIAD has no such meaning.7 Applicant is making too fine a point. Indeed,
given the identical sound and minimal spelling differences between these marks,

5 Id.
6 Id.
7 Id.
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Applicant’s mark and the registered MIRIAD mark will likely be perceived as merely
novel spellings of the word, and other registered mark, MYRIAD. In which case, all
the three marks are likely to convey either the same or very similar commercial
impressions to the extent that consumers are familiar with the meaning of the word
“myriad.” In other words, the marks may be suggestive of the multitude of various
benefits or services being offered.
On balance, we find the marks are highly similar in appearance, sound,
connotation and commercial impression and that this fact strongly increases the
likelihood of confusion.
B. Similarity of Services, Trade Channels, and Buying Conditions
We group three of the du Pont factors together because all are based on the
services as they are identified in the application and registrations.8 Because there are
different services and different registered marks at issue for each class of services in
the application, we separate our discussion of these factors.
1. The Class 35 Services
Applicant identifies a wide range of advertising, marketing and publicity services,
including “market surveys, analysis and research, excluding market research in the
field of odoriferous products …”9 The cited registration identifies “conducting
marketing studies; business research services; all of the above in the field of

8 Our analysis here covers the second, third and fourth du Pont factors.
9 Application Serial No. 79227036.
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odoriferous products …”10 Applicant amended a section of its recitation of services to
include a restriction – specifically, Applicant inserted the language “excluding market
research in the field of odoriferous products,” to immediately follow “market surveys,
analysis and research …” The amendment was offered in response to the Examining
Attorney’s Section 2(d) refusal. However, this limitation is insufficient to obviate the
relatedness of the services for two reasons.
First and foremost, the exclusion of “odoriferous products” applies only to the
“market surveys, analysis and research” services. The application retains other
related services with no such limitation, including the first-listed “Advertising,
marketing and publicity services.” Other examples of services listed in the
identification with no limitation include:
• business intermediary services;
• sponsorship search and financial sponsorship search;
• media planning and media buying;
• event marketing;
• providing commercial information and business news; and,
• online branding and advertising services.
To be clear, the aforementioned services may involve odoriferous products. For
example, Applicant may render event marketing, advertising and publicity services
in connection with odoriferous products like those mentioned in the registration –

10 Registration No. 2950749.
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“perfumes, cosmetics, toiletries, personal care products, laundry and cleaning
products, and household cleaners.” We therefore find there are still many types of
services in the application that are closely related to those identified in the cited
registration.
The second problem with this exclusion is that even if all of Applicant’s class 35
services excluded “odoriferous products,” consumers will not necessarily be aware of
this restriction and there is no evidence showing that marketing research companies
limit their services one way or the other to “odoriferous products.” To the contrary,
the Examining Attorney provided evidence showing some market research providers
working both sides of the “odoriferous product” divide.11
The application broadly identifies “advertising, marketing and publicity services”
and includes no limitation of these services. The more focused “market research” and
“business research” services “in the field of odiferous products” identified in the cited
registration are completely subsumed within the broadly identified services in the
application. Even within the range of services that Applicant has now limited to
exclude “odoriferous products,” the services are related in a manner that would lead
consumers to believe the services come from the same source or that a connection or
affiliation exists between the two sources.12 These facts increase the likelihood of
confusion.

11 10 TTABVUE 9-11 (citing to examples from the record).
12 Under this du Pont factor, the Examining Attorney need not prove, and we need not find,
similarity as to each product listed in the description of goods. It is sufficient for a refusal
based on likelihood of confusion that relatedness is established for any item encompassed by
the identification of goods in a particular class in the application. Tuxedo Monopoly, Inc. v.
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As to the trade channels, Applicant’s limitation of some of its services to exclude
services involving “odoriferous products,” does not prevent the services from being
offered in the same trade channels as Registrant’s marketing services for odoriferous
products. Marketing and advertising services of the type identified in the application
and the cited registration are likely to move through identical trade channels.
Applicant argues its “advertising, marketing and publicity services in Class 35 are
specialized in nature and are expected to be purchased with care.”13 We agree, but
only to an extent. The application identifies an extremely broad range of services and
we find it likely that at least some services within that list are purchased with a more
ordinary level of care. For example, Applicant’s services include “providing directory
of information relating to opportunities for advertising spaces via website …” A
directory of advertising information on the Internet, like other Internet content, may
not always be used with a great deal of care. Because we must consider the “least
sophisticated consumer in the class,” we find that only an ordinary level of customer
care is likely for at least some of the class 35 services in this application. Stone Lion,
110 USPQ2d at 1163-54.
We find these three factors as a group suggest that confusion is likely. The services
overlap or are related, flow through the same trade channels, and only an ordinary

Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic,
llc, 116 USPQ2d 1406, 1409 (TTAB 2015); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5
(TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established
for any item encompassed by the identification of goods within a particular class in the
application.”).
13 8 TTABVUE 15.
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level of purchaser care is likely for at least some of the many services identified in
the application.
2. The Class 41 Services
The class 41 services are directly overlapping in several areas:
the application cited registration
publishing, namely, video publishing
for others
production and distribution of recorded
video and films
production and editing of radio and
television programmes
production of radio and television
programs
online nondownloadable electronic
publications
online electronic publications not
downloadable
Because the services are overlapping and thus technically identical, we must
presume these same services flow through the same trade channels. See In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was
no evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion); In
re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); Am. Lebanese Syrian Associated Charities Inc. v. Child
Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). We find these three du
Pont factors suggest that confusion is likely for the class 41 services.
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C. Strength of the Cited Marks
In identifying “strength” as a single factor, we are combining two of the du Pont
factors.14 “A strong and fanciful mark is entitled to broad protection.” Mishawaka
Rubber & Woolen Mfg. Co. v. Bata Narodni Podnik, 222 F.2d 279, 285 (CCPA 1955);
Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 1339 (Fed. Cir. 2004)
(same). “A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).” In re
Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010); see
also Top Tobacco, L.P. v. North Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-72
(TTAB 2011); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB
2006); 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition
§ 11:83 (5th ed. 2019).
To evaluate the conceptual strength of word marks, we place the mark in one of
the following classes: “(1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or
fanciful. The lines of demarcation, however, are not always bright.” Abercrombie &
Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). Market strength also
“varies along a spectrum from very strong to very weak.” Joseph Phelps Vineyards,
LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir.
2017).

14 In du Pont, the court identified the following two related factors: “the fame of the prior
mark” and “the number and nature of similar marks in use on similar goods.” du Pont, 177
USPQ at 567. These two factors go to the strength of the cited marks and, therefore, are
treated together here.
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Applicant argues that the two cited marks are weak because the Examining
Attorney initially cited ten registrations in support of the Section 2(d) refusal.15 The
existence of these registrations does not provide any evidence of the extent to which
the registered marks are in use or how well-known such marks are to consumers. For
this reason, we cannot make any finding as to the market strength of the two
registered marks from the record before us.
Although the mark MIRIAD for market research services is likely to be construed
as a novel spelling of the word “myriad,” which refers to a large number or wide
variety of something, a point Applicant makes in its brief,16 such meaning appears to
have no clear significance with respect to the services.
We find the mark MYRIAD for the class 41 services is either suggestive or
arbitrary. The cited registration does identify a wide range of services in class 41, so
perhaps the word “myriad” is somewhat suggestive. But such a connection is tenuous,
as it does not relate to any feature or characteristic of the specific services identified.
In this sense, the word “myriad” appears arbitrary for the type of services identified.
On balance, we find both the cited marks have a reasonable degree of conceptual
strength. We have no evidence to determine the market strength, as we noted above.
The strength analysis, therefore, suggests that confusion may be more likely. But
given the very limited evidence on this point, we do not place much weight on this
factor.

15 8 TTABVUE 11.
16 Id. at 9.
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D. Other Considerations
The last du Pont factor allows us to consider any other relevant facts. du Pont,
177 USPQ at 567. Rarely invoked, this factor “accommodates the need for flexibility
in assessing each unique set of facts …” In re Strategic Partners Inc., 102 USPQ2d
1397, 1399 (TTAB 2012). Applicant argues that it owns two existing trademark
registrations that negate the likelihood of confusion.17 We acknowledge that under
certain circumstances, such evidence may have an important impact on the likelihood
of confusion analysis. But as the Examining Attorney notes, we have held that three
requirements must be met before a prior registration will be given such effect:
1. coexistence of applicant’s existing registration with the cited registration
for over five years;
2. the applied-for mark is substantially similar to its existing registered mark;
and,
3. the prior registration and pending application are for identical goods or
services.
In re United States Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793
(TTAB 2017) (citing Strategic Partners, 102 USPQ2d at 1400 ). Applicant’s prior
registrations do not meet these requirements.
Applicant cites to two prior registrations, one for the mark MIRRIAD in standard
characters for services in classes 36, 40, and 42.18 This registration meets the five-
year coexistence requirement and is identical to the mark Applicant seeks to register
now. But this registration identifies different services in different classes. The

17 Id. at 18-23.
18 Registration No. 4299647.
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registration, therefore, does not meet the third requirement—the services are not
identical to either the class 35 or class 41 services identified in the present
application.19
The second registration relied upon by Applicant is for the design shown below:
20
This mark is not identical to the standard character MIRRIAD mark, but it does
contain the same literal element. We do not need to decide whether these two marks
are “substantially similar” because the other two requirements are not met here. This
mark has not been registered for five years—it was registered on January 27, 2015.
See In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d at 1793 (finding “a
key factual distinction from Strategic Partners” that applicant’s prior registration
was less than five years old, making it still subject to a cancellation action by
registrant based on likelihood of confusion). Nor does this registration identify
identical services, though it is closer to the class 35 services identified in the pending
application. The prior registration identifies, “Consulting and advisory services in the
fields of advertising content creation and advertising brokerage for advertisers and
video content owners provided in connection with digitally embedding logos, branded
goods or other visual images or messages into finished video recordings” in
International Class 35. These services are similar, and overlap to an extent, with the

19 Applicant’s argument on this point contradicts its prior argument that the services in its
application are similar to those in the cited registrations.
20 Registration No. 4679289.
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broad list of class 35 services in the present application. But similar and identical are
different standards, and we read the Board’s prior precedent as requiring identical
services. The three requirements are not met for this prior registration either.
E. Weighing and Balancing the Factors
We find a likelihood of confusion between Applicant’s MIRRIAD mark and the
marks identified in the cited registrations. The marks are highly similar, the services
either overlap or are closely related, and the trade channels are the same. The cited
marks have some conceptual strength, though this factor is given little weight in our
analysis. No likelihood of confusion factor favors Applicant. We affirm the refusal to
register Applicant’s class 35 and class 41 services based on the cited registrations.
Decision: The refusal to register based on Section 2(d) is affirmed as to
International Classes 35 and 41.