Nextiva, Inc.

Trademark Trial and Appeal Board

Jan 5, 2016

No. 86346182 (T.T.A.B. Jan. 5, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: January 5, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Nextiva, Inc.
_____
Serial No. 86346182
_____

Steven J. Laureanti of Jackson White, PC
for Nextiva, Inc.

Cory Boone, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
_____
Before Kuhlke, Bergsman and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

Nextiva, Inc. (“Applicant”) has applied for registration on the Principal Register
of the mark NEXTOS in standard characters for the following goods and services:1

1 Application Serial No. 86346182 was filed July 26, 2014 based on intent to use under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 86346182
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INT. CLASS 009: Downloadable cloud computer software for use in the
electronic storage and backup of data

INT. CLASS 038: Internet telephony services; Local and long distance telephone
services; Telephone conferencing services; Providing private branch exchange
(PBX) services; Telephone voice messaging services; Voice mail services; Voice
over Internet protocol (VoIP) services; Call forwarding services

INT. CLASS 042: Providing temporary use of on-line, non-downloadable cloud
computer software for use in the electronic storage and backup of data for VoIP
services; Providing temporary use of online non-downloadable cloud computing
software for use in database management and for use in the on-line storage and
backup of electronic data

The Examining Attorney refused registration of Applicant’s mark under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), as likely to cause confusion with the
registered mark NEXOSS (standard characters) for “computer software platform for
managing voice over IP networks, excluding and unrelated to products and services
in the wireless telecommunications industry” in International Class 9 (the
“Registration”).2 Also, the Examining Attorney required amendments to the
identification of goods and services. Applicant amended the identification in an
acceptable manner, and argued against the likelihood of confusion refusal. After the
Examining Attorney made the refusal final, Applicant appealed to this Board and
filed a request for reconsideration which again argued against the refusal but also
included new amendments to the identification to replace the wording “Voice over
Internet protocol” and “VoIP” with the wording “unified communication,” despite
previously having agreed with the Examining Attorney on an acceptable
identification. The Examining Attorney denied the request for reconsideration and

2 Registration No. 3484880 issued August 12, 2008.
Serial No. 86346182
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rejected Applicant’s proposed amendments to use the language “unified
communications services” as indefinite and as impermissibly broadening the scope
of the identification. We affirm the refusal to register on both grounds.
I. Applicant’s Request for Remand

Before turning to the substantive issue in this appeal, we must address a
procedural matter. Appended to its Reply Brief, Applicant included a Request for
Remand to propose further amendments to its identification of services in Class 38
and Class 42,3 and we deny this request.
A Request for Remand must be supported by a showing of good cause, and we
assess good cause both in terms of the reason given for the request and the point in
the appeal when the request is made. Trademark Trial and Appeal Board Manual of
Procedure (“TBMP”) § 1209.04 (June 2015). We previously remanded the
Application for consideration of a Request for Reconsideration that included
proposed amendments. As good cause for this remand, Applicant contends that its
newly proposed amendments would obviate the Section 2(d) refusal, but gives no
indication that it has consulted with the Examining Attorney to obtain his
concurrence. Given that Applicant retains services that remain broad enough to
include the proposed deleted services (e.g., “Internet telephony services”), we doubt
that the proposed amendments would negate the refusal. More importantly, the
timing weighs heavily against a finding of good cause. Applicant suggests that its
timing in making the remand request is appropriate, claiming only to have learned

3 10 TTABVUE at 5-9 and 20-24.
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from the Examining Attorney’s Brief, which was filed September 13, 2015, that its
earlier proposed amendments were unacceptable.4 However, the Examining
Attorney actually rejected the earlier proposed amendments in the denial of
Applicant’s Request for Reconsideration on May 18, 2015. Applicant gives no reason
it could not have requested a remand for its new proposed amendments at that time
or even at the time it filed its opening Appeal Brief on July 17, 2015. See In re
Thomas White Int’l Ltd., 106 USPQ2d 1158, 1160 n.2 (TTAB 2013) (“Even if a
request for remand had been filed, at this late juncture applicant would not be able
to show good cause”). We find this delay unjustified, and in light of the delay and
the improbability that the proposed amendments would overcome the likelihood of
confusion, we find no good cause shown for a remand at this time.
II. Identification

Turning next to the substantive issues with Applicant’s identification proposed
in its Request for Reconsideration, Trademark Rule 2.71 provides that “the
applicant may amend the application to clarify or limit, but not to broaden, the
identification of goods and/or services.” 37 C.F.R. § 2.71. “The scope of the goods and
services, as originally identified or as amended by an express amendment,
establishes the outer limit for any later amendments.” Trademark Manual of
Examining Procedure (“TMEP”) § 1402.06(a) (Oct. 2015). This rule regarding the
scope of the identification has been strictly interpreted. See In re Swen Sonic Corp.,

4 Id. at 8.
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21 USPQ2d 1794 (TTAB 1991); In re M. V Et Associes, 21 USPQ2d 1629, 1630
(Comm’r Pats. 1991). The TMEP explains:
Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c), provides that filing an
application for registration on the Principal Register establishes constructive use
and nationwide priority, contingent on issuance of the registration (see TMEP
§ 201.02). Therefore, the identification of goods and services in an application
defines the scope of those rights established by the filing of an application for
registration on the Principal Register.

TMEP § 1402.06 (Oct. 2015). The constructive use and nationwide priority rest in
part on the notice function served by USPTO records relied on by the public to clear
particular proposed marks to help ensure their availability in advance of investing
in them. To permit wide latitude in broadening the recitation of services during the
course of prosecuting an application could jeopardize the rights of a third party who
might rely to its detriment upon the scope and contents of a recitation of services in
a pending trademark application.
The following excerpt shows Applicant’s proposed amendments to the
identification for its Class 38 and Class 42 services, with deletions in strikeout and
additions in bold:
Class 38: Internet telephony services; Local and long distance telephone services;
Telephone conferencing services; Providing private branch exchange (PBX)
services; Telephone voice messaging services; Voice mail services; Voice over
Internet protocol (VoIP) services; Unified communication services; Call
forwarding services
Class 42: Providing temporary use of on-line, non-downloadable cloud computer
software for use in the electronic storage and backup of data for VoIP unified
communication services; Providing temporary use of online non-downloadable
cloud computing software for use in database management and for use in the on-
line storage and backup of electronic data
Serial No. 86346182
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The substitution of “unified communication services” for “Voice over Internet
protocol services” or “VoIP services” clearly broadens the identification. Although
some lack of clarity exists as to exactly what “unified communications services”
involves, it clearly involves more than mere voice communications. Whereas VoIP
services refer only to the transmission of voice calls,5 the evidence reflects that
“unified communication services” extends beyond just voice transmission and refers
to communications through various media. A Wikipedia entry for “Unified
Communications” introduced by the Examining Attorney notes that it involves the
integration of a variety of communications media, including instant messaging,
presence information, voice (including IP telephony), desktop sharing, and data
sharing.6 One article submitted by Applicant entitled “What is Unified
Communications” states that it may include “Integration of communications into
off-the-shelf tools such as Outlook, Notes, BlackBerry, Salsesforce.com, and many
others....”7 These other tools involve more than mere voice communication, such as

5 We take judicial notice of the following definitions of VoIP: “A communications protocol for
transmitting telephone calls over a computer network, especially the Internet” (The
American Heritage Dictionary of the English Language (2011)); “Acronym for Voice Over IP.
The use of TCP/IP-based packet switching technology to transmit voice calls over long-
distance trunk lines....” (Webster’s New World Computer Dictionary (2003)); “A method for
routing telephone calls over the Internet that involves digitizing audio data and splitting it
into packets” (High definition: A-Z Guide to personal technology, Voice over IP (2006)).
Boston, MA: Houghton Mifflin, retrieved from
http://search.credoreference.com/content/entry/hmhighdef/voice_over_ip/0. We need not
address the Examining Attorney’s request for judicial notice of other sources, to which
Applicant objects, because we do not rely on those sources.
6 May 18, 2015 Denial of Request for Reconsideration at 2-3. The Board considers evidence
taken from Wikipedia so long as the non-offering party has an opportunity to rebut the
evidence, and Applicant had not objected in this case. See In re IP Carrier Consulting
Group, 84 USPQ2d 1028, 1032 (TTAB 2007).
7 April 30, 2015 Request for Reconsideration at 14.
Serial No. 86346182
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Outlook, for example, which is an email tool.8 A third submission by Applicant
discusses the shift from traditional voice communications to Internet-based,
enhanced capabilities including “video or screen sharing” and explains that “users
want to access their unified communications applications with their own Internet-
connected mobile devices....”9 As another example, the article on “top Unified
Communication Trends for Midsize Businesses” submitted by Applicant indicates
that unified communications help facilitate collaboration “across a growing range of
devices.”10 The evidence reflects that “unified communication services” encompasses
more than VoIP services, and therefore Applicant’s proposed amendment
impermissibly expands the scope of the identification. Thus, it violates Trademark
Rule 2.71, and we affirm the Examining Attorney’s rejection of the proposed
amendment on this basis.
We turn next to the other ground upon which the Examining Attorney rejected
the proposed amendment, indefiniteness. Trademark Rule 2.32(a)(6) requires that
an applicant include “[a] list of the particular goods or services on or in connection
with which the applicant uses or intends to use the mark.” 37 C.F.R. § 2.32(a)(6).
The USPTO has discretion to require the degree of particularity deemed necessary
to clearly identify the services covered by the mark. In re Omega SA, 494 F.3d 1362,
83 USPQ2d 1541, 1544 (Fed. Cir. 2007); see also In re Water Gremlin Co., 635 F.2d

8 We take judicial notice of the following definition of “Outlook”: “An email client developed
by Microsoft.” High definition: A-Z Guide to personal technology. Boston, MA: Houghton
Mifflin (2006). Retrieved from
http://search.credoreference.com/content/entry/hmhighdef/outlook/0.
9 April 30, 2015 Request for Reconsideration at 15.
10 Id. at 13.
Serial No. 86346182
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841, 208 USPQ 89 (CCPA 1980). Generally, the identification should use language
that is understandable to the average person, should not require an in-depth
knowledge of the relevant field, and also must be sufficiently specific to allow the
USPTO to make appropriate assessments for reasons such as classification and the
relatedness of the goods and services for likelihood of confusion purposes. See
Omega, 83 USPQ2d at 1543-44 (affirming requirement for greater particularity in
identification to facilitate the prevention of “foreseeable confusion or conflict,” where
“chronographs” deemed “ambiguous for registration purposes, for it includes both
watches and time recording devices”).
As a threshold matter, we note that the absence of a term from the Acceptable
Identification of Goods and Services Manual (“ID Manual”) does not mean that the
term must be considered indefinite. As the information on the USPTO’s website
describing the ID Manual states, “The ID Manual provides a list of identifications of
goods or services from which an applicant may choose to accurately identify the
goods and/or services ... The entries of the ID Manual also provide general guidance
as to the appropriate classification of particular goods and services. However, the ID
Manual is not intended as an exhaustive list of goods and services for which an
applicant may seek registration.” http://www.uspto.gov/trademark/guides-and-
manuals/guidance-users. Nonetheless, the standards set forth in the ID Manual
may be an appropriate guideline as to whether an identification is acceptable. Thus,
the lack of an entry in the ID Manual for “unified communications services” is not
Serial No. 86346182
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dispositive as to its indefiniteness, but the ID Manual may provide insight as to the
appropriate level of specificity for identifications in this industry.11
We agree that “unified communications services” must be considered indefinite.
Although the evidence shows use of this term in the industry, it also indicates that
the term “has many definitions.”12 As discussed above, these definitions give the
general sense that “unified communications” involves integrating various forms of
collaborating and interacting, but which forms and the nature of the integration
seem to vary. Even the definition advocated by Applicant, “communications
integrated to optimize business processes,”13 provides little specificity as to the
nature of the services. While the ID Manual includes no entry for “unified
communications services,” Applicant points out that an entry exists for “Design of
unified communications services,”14 and Applicant therefore argues the definiteness
of “unified communications services.” However, this entry in the ID Manual fails to
support Applicant’s assertion. In conjunction with design services generally, less
specificity may be permitted for the wording of the subject matter of the design
services than would be allowed for a standalone good or service. For example, the ID
Manual lists “Computer software design” as an acceptable identification, but

11 Although we note Applicant incorrectly states (10 TTABVUE at 17-18) that the
Examining Attorney sought judicial notice of an entry from the ID Manual (see Examining
Attorney’s Appeal Brief, 9 TTABVUE at 6-7), and objects thereto, we deem judicial notice of
the ID Manual unnecessary as the Board is free, if not obligated, to review such formalized
official statements and codifications of USPTO policy.
12 Id. at 14 (“Unified Communications (UC) has many definitions, so don’t get stuck on
this”); see also May 18, 2015 Denial of Request for Reconsideration at 2 (“There are varying
definitions for unified communications”).
13 April 30, 2015 Request for Reconsideration at 1.
14 10 TTABVUE at 17 n.1.
Serial No. 86346182
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“computer software” by itself is considered indefinite and must include the
specification of both the function and field of the software “to permit determinations
with respect to likelihood of confusion.” TMEP § 1402.03(d). Similarly, while
“unified communications services” may provide sufficient detail for the general
subject matter of design services, it lacks the requisite detail as a standalone
service. Because the evidence of record reflects uncertainty surrounding the
meaning of “unified communications services,” we agree with the Examining
Attorney that greater specificity is necessary to provide appropriate notice
regarding the services and to assess potential likelihood of confusion issues. See
Omega SA, 83 USPQ2d at 1544. Therefore, we affirm the rejection of the proposed
amendment as indefinite.
III. 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); see also In re
Majestic Distilling Co., Inc., 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. 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.”).
Serial No. 86346182
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With respect to the marks, we must compare them “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 Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Laboratories Inc. v. Lichter, 102
USPQ2d 1546, 1551 (TTAB 2012).
NEXTOS and NEXOSS look and sound very similar. Both terms begin with
“NEX” and end with “OS” or “OSS.” Although the applied-for mark contains a “T” in
between, this does not create a significant phonetic difference and does little to
change the overall visual similarity of the marks. Applicant makes various
arguments about phonetic differences between the marks, but these run afoul of the
settled principle that “[t]here is no correct pronunciation of a trademark that is not
a recognized word.” Stoncor Group, Inc. v. Specialty Coatings, Inc., 759 F.3d 1327,
111 USPQ2d 1649, 1651 (Fed. Cir. 2014)); see also In re Viterra, Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1912 (Fed. Cir. 2012) (“[T]here is no correct pronunciation of a
trademark, and consumers may pronounce a mark differently than intended by the
brand owner”). Applicant contends that its mark would be perceived as the word
Serial No. 86346182
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NEXT followed by the acronym OS for “operating system.”15 With the mark being
standard-character, however, it can appear in any font, size, or lettering, including
lower case letters, Viterra, 101 USPQ2d at 1909, and the mark includes no periods
or other indicia of an acronym. This counters Applicant’s arguments that the “OS”
portion of its mark necessarily would be perceived as the acronym for “operating
system.”16 As reflected in the definition Applicant provided, an operating system
consists of the software that communicates with hardware such as a desktop
computer or mobile device to “provide[] basic functionality” and allow other
programs to run, while providing the graphical user interface.17 We note that
Applicant’s software goods and software-related services involve data storage and
backup and database management. They neither consist of nor directly relate to
operating systems, thus making it unlikely that consumers necessarily would call to
mind operating systems when encountering the second syllable of Applicant’s
marks. Applicant makes two different alternative arguments about the
pronunciation and impression of the registered mark.18 Applicant posits that
NEXOSS would be perceived and pronounced either as “nexus,” a play on that word,
or as “nex-oh-ess-ess,” the acronym for “operations support system.”19 As to the
second option, we decline Applicant’s proposal to restrict the impression and
pronunciation of the registered mark based on extrinsic evidence of promotion of the

15 7 TTABVUE at 9.
16 Id.
17 April 30, 2015 Request for Reconsideration at 4.
18 7 TTABVUE at 12-13.
19 Id.
Serial No. 86346182
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registered mark in connection with an “operations billing and support system”
coupled with Applicant’s evidence that “operations support system” can be
abbreviated as “OSS.” As with Applicant’s mark, the registered mark is in standard
characters and contains no periods or other indicia of an acronym. Turning to
Applicant’s first option for pronunciation of the registered mark, we agree that it
may sound somewhat similar to “nexus,” though not necessarily that its commercial
impression is limited to a deliberate misspelling of that word. Logically comparing
the two marks, using ordinary principles of pronunciation, the “NEX” portions of
both marks would be pronounced identically, and the “OS” and “OSS” portions of
the marks also would be pronounced identically or at least nearly so. We find that
consumers likely could pronounce NEXTOS and NEXOSS marks in a manner that
rhymes, with the only phonetic difference being the “T” sound in Applicant’s mark.
Thus, overall we find that these two marks appear quite similar visually, share a
comparable commercial impression, and may sound very similar as well. This du
Pont factor weighs in favor of likely confusion.
Turning next to the goods and services, we must determine whether their degree
of relatedness rises to such a level that consumers would mistakenly believe the
goods and services emanate from the same source. The comparison must be based
on the identifications in the Application and Registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
2014); Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant admits that the goods and services
Serial No. 86346182
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appear “facially similar” but contends that they actually are not related.20 Because
we rejected Applicant’s proposed amendment of its identification, we consider the
previously acceptable identification that included references to Voice over Internet
Protocol and VoIP services in Classes 38 and 42. The goods and services need not be
identical or even competitive to find likely confusion. See On-line Careline Inc. v.
America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). If
likelihood of confusion exists with respect to any of Applicant’s identified goods or
services in a particular class, the refusal of registration must be affirmed as to all
goods in that class. See Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d
1335, 209 USPQ 986, 988 (CCPA 1981).
First, we compare Applicant’s Class 9 “Downloadable cloud computer software
for use in the electronic storage and backup of data” to the Registration’s “computer
software platform for managing voice over IP networks, excluding and unrelated to
products and services in the wireless telecommunications industry.” As indicated
above, VoIP involves the transmission of data, and the management of VoIP data,
as identified in the Registration, can involve storing it or backing it up. Given the
lack of restriction in Applicant’s identification, it remains broad enough to include
software for use in the electronic storage and backup of VoIP data. See, e.g., In re
N.A.D., Inc., 57 USPQ2d 1872, 1874 (TTAB 2000) (absent limitation as to the type
of software, the software was presumed to be in the same field as that in the cited
registration and even sophisticated purchasers would be confused); In re Linkvest

20 7 TTABVUE at 16.
Serial No. 86346182
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S.A., 24 USPQ2d 1716 (TTAB 1992) (registrant’s broadly identified computer
programs encompass all computer programs including the more specific computer
programs of applicant). The wisdom of this legally-required broad interpretation of
Applicant’s unrestricted identification is underscored by the fact that Applicant’s
Class 38 and 42 services directly involve VoIP. Thus, when compared to the
software in the Registration, Applicant’s identified software goods either overlap, or
at least have a highly complementary use. See, e.g., In re Toshiba medical Systems
Corp., 91 USPQ2d 1266, 1271-72 (TTAB 2009) (holding MRI diagnostic apparatus
and ultrasound device related, based in part on complementary purposes in treating
the same medical conditions). We do not agree with Applicant’s conclusory
argument that the Registration’s exclusion of “products and services in the wireless
telecommunications industry” somehow weighs against relatedness.
Next, we compare Applicant’s Class 38 and Class 42 services to the goods in the
Registration. As an initial matter, we reject Applicant’s argument that these
services should not be considered in the likelihood of confusion analysis because
Registrant “has not sought registration in either class 38 or 42,” and because
Registrant supposedly “specifically excluded any relationship with these classes in
its registration.”21 Applicant’s classification-based argument is misplaced because
the classification of goods and services constitutes an administrative determination
that has no bearing on the issue of likelihood of confusion. Jean Patou Inc. v. Theon
Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993) (stating that classification

21 7 TTABVUE at 16.
Serial No. 86346182
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is for the convenience of the Office and “wholly irrelevant to the issue of
registrability under section 1052(d), which makes no reference to classification”);
INB National Bank v. Metrohost, Inc., 22 USPQ2d 1585, 1586 (TTAB 1992) (“it is
well recognized that the system of dividing goods [and services] into classes is
purely a manner of convenience and that a determination on the question of
likelihood of confusion cannot be restricted by the artificial boundary created by
classification.”). As to Applicant’s quasi-estoppel argument that no relatedness can
be found because Registrant “specifically excluded” it, Applicant apparently makes
this rather overreaching statement merely based on the absence of those classes
from the Registration. The record in this case does not include any of the
prosecution history of the cited registration, see In re Sela Products LLC, 107
USPQ2d 1580, 1583 (TTAB 2013) (noting that the file of a cited registration is not
automatically of record and must be submitted as evidence during prosecution in
order to be considered), and even if it did, the record contains no discussion of the
relatedness of the types of services at issue to the goods in the Registration.
Applicant’s Class 38 services include VoIP services and its Class 42 services
include “Providing temporary use of on-line, non-downloadable cloud computer
software for use in the electronic storage and backup of data for VoIP services.” We
find these services related to Registrant’s “computer software platform for
managing voice over IP networks.” For the same reasons set forth above for
Applicant’s Class 9 software, its provision of VoIP services and the software as a
service for storing and backing up data for VoIP services must be considered
Serial No. 86346182
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complementary and related to Registrant’s software to manage VoIP networks.
Applicant argues that because the Registration’s software involves the management
of VoIP networks rather than providing the VoIP network itself, its goods should be
found unrelated to Applicant’s services. However, we find that Applicant’s services
and Registrant’s goods that all directly relate to the VoIP industry are sufficiently
related. See, e.g., On-line Careline, 56 USPQ2d 1471 (holding ON-LINE TODAY for
Internet connection services and ONLINE TODAY for an electronic publication
likely to cause confusion). In Class 42, the storage and backup of VoIP data appears
to fall within or be highly complementary to the management of VoIP networks. As
to Class 38, Applicant’s own evidence indicates that telecommunications providers
often handle their own management of telephone network systems such that these
services could emanate from the same source.22
Thus, we find the relatedness of the goods and services to favor likely confusion.
Turning next to trade channels, neither identification includes any limitation as to
trade channels or classes of purchasers. Accordingly, we must presume that
Registrant’s goods are marketed in all normal trade channels for such goods and to
all normal classes of purchasers for such goods. In re Wilson, 57 USPQ2d 1863, 1865
(TTAB 2001); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (affirming Board finding that where the identification is
unrestricted, “we must deem the goods to travel in all appropriate trade channels to
all potential purchasers of such goods”). We agree with Applicant that the

22 April 30, 2015 Request for Reconsideration at 9-11.
Serial No. 86346182
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identification of goods and the evidence suggest at least some degree of complexity
of Registrant’s goods, which relate to the management of VoIP networks, and
therefore makes it probable that the typical purchasers would be businesses.23 An
excerpt from Applicant’s website bearing the applied-for mark and promoting its
“Cloud Phone System of the Future” states, “Join the 6M businesses and 20M
consumers that use this service daily.”24 This suggests that Applicant’s purchasers
include businesses, and therefore the trade channels overlap with those of the goods
in the Registration. These overlaps in trade channels and classes of purchasers
weigh in favor of a finding of likelihood of confusion.
Applicant argues that the purchaser sophistication du Pont factor weighs
against likely confusion here, but we do not find this factor compelling. Although
Applicant makes conclusory statements that consumers of its goods and services
constitute “professional and sophisticated” purchasers, it cites to nothing from the
record.25 See In re Consolidated Specialty Restaurants Inc., 71 USPQ2d 1921, 1929
(TTAB 2004) (“[A]ttorney argument without support in the record ... does not
overcome the prima facie case.”). As set forth above, Applicant’s own website
indicates that large numbers of individual consumers, who presumably are
relatively unsophisticated members of the general public, use its goods and
services.26 Even to the extent the overlapping consumers of Registrant’s goods and

23 October 31, 2014 Office Action at 4, 6-8.
24 October 31, 2014 Office Action at 13.
25 7 TTABVUE at 19-21.
26 October 31, 2014 Office Action at 13.
Serial No. 86346182
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Applicant’s goods and services constitute businesses, small businesses with
relatively less sophistication appear to fall within this overlap. Therefore, we find
that Applicant’s consumers are not necessarily sophisticated. See Giersch v. Scripps
Networks, Inc., 90 USPQ2d 1020, 1027 (TTAB 2009) (“the applicable standard of
care is that of the least sophisticated consumer”). Also in connection with this
factor, Applicant contends that the goods and services at issue in this case are
complex and expensive. As to cost, again Applicant points to no evidence, and the
only evidence of record we note is that Registrant’s website includes an offer of a 90-
day free trial of its software.27 Therefore, we cannot find that the goods and services
at issue here are expensive. Given the full range of consumers of Applicant’s goods
and services, and the absence of persuasive evidence on this issue, we find this du
Pont factor to be neutral.
Based on the similarity of the marks, as well as the relatedness of the goods and
services, and the overlapping trade channels, we find confusion likely. Even if
purchaser sophistication in relation to Registrant’s goods weighs slightly against
confusion, balancing the relevant factors overall, this is insufficient to overcome the
likely confusion resulting from the strong similarity of the marks and relatedness of
the goods and services.
Decision: The refusal to register Applicant’s mark under § 2(d) is affirmed, and
the rejection of the proposed amendment of the identification of services is affirmed.

27 See id. at 6.