88111087 (T.T.A.B. Oct. 15, 2020)

Nidia De Jesus

Trademark Trial and Appeal BoardOct 15, 2020

88111087 (T.T.A.B. Oct. 15, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: October 15, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Nidia De Jesus _____ Serial No. 88111087 _____ Francis J. Ciaramella, of Francis John Ciaramella, PPLC, for Nidia De Jesus. Derek van den Abeelen, Trademark Examining Attorney, Law Office 126, Andrew Lawrence, Managing Attorney. _____ Before Thurmon, Deputy Chief Administrative Trademark Judge, and Zervas and Bergsman, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: Nidia De Jesus (“Applicant”) seeks registration on the Principal Register of the standard character mark TRUMP PLASTIC SURGERY for “cosmetic and plastic surgery; medical services” in International Class 44. Applicant has disclaimed the wording PLASTIC SURGERY in her mark.1 1 Application Serial No. 88111087 was filed on September 10, 2018 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intention to use the mark in commerce. Serial No. 88111087 - 2 - The Examining Attorney refused registration pursuant to Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to cause confusion with the standard character mark TRUMP SOHO for services including “health spa services, namely, health-related and cosmetic body care services” in International Class 44.2 “SOHO” has been disclaimed in the registration. After the Examining Attorney issued a Final Office Action, Applicant appealed and requested reconsideration. The Examining Attorney denied Applicant’s request for reconsideration, the appeal was resumed and Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). Our determination of the likelihood of confusion under Section 2(d) is based on an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). We consider each DuPont 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). 2 Registration No. 3822264 registered on the Principal Register on July 20, 2010. Sections 8 and 15 combined declaration accepted and acknowledged. Serial No. 88111087 - 3 - Two key DuPont factors in every Section 2(d) case are the first two factors regarding the similarity or dissimilarity of the marks and the goods or services, because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Applicant discusses these two key factors, as well as the fourth DuPont factor, the conditions under which and buyers to whom sales are made, the fifth DuPont factor, the fame of the prior mark, the seventh DuPont factor, the nature and extent of any actual confusion, and the twelfth DuPont factor, the extent of potential confusion. DuPont, 177 USPQ at 567. I. The Marks Under the first DuPont factor, we consider “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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., 777 F. App’x 516 (Fed. Cir. Sept. 13, 2019). The proper test regarding similarity “is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d Serial No. 88111087 - 4 - 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). Marks “‘must be considered ... in light of the fallibility of memory ....’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). Further, “[t]he proper perspective on which the analysis must focus is on the recollection of the average customer, who retains a general rather than specific impression of marks.” In re i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted). The average customer of Applicant’s and Registrant’s services are members of the general public who seek medical and health-related and cosmetic body care-related services. We may not dissect the involved marks when comparing the marks but must consider them in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 750-51 (Fed. Cir. 1985). Nonetheless, 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 a consideration of the marks in their entireties. Stone Lion Capital Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). TRUMP is the initial and only non-generic term in Applicant’s mark, and is the initial and most prominent non-descriptive term in Registrant’s mark. “[I]it is often the first part of a mark which is most likely to be impressed upon the mind of a Serial No. 88111087 - 5 - purchaser and remembered.” Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); see also Palm Bay Imps., 73 USPQ2d at 1692. PLASTIC SURGERY and SOHO – as descriptive or generic terms - have been disclaimed. Merely descriptive or generic disclaimed matter is typically less significant or less dominant when comparing marks. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Nat’l Data, 224 USPQ at 751 (“That a particular feature is descriptive ... with respect to the relevant goods or services is one commonly accepted rationale for giving less weight to a portion of the mark.”). Additionally, because both marks are in standard character form, they may be used in the same typeface and color, and in a manner where the term TRUMP is emphasized above the other wording in the marks. Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (registrant is “entitled to depictions of the standard character mark regardless of font style, size, or color[.]”). Applicant argues that her “mark implies a connection with plastic surgery or medical services, [while] TRUMP SOHO implies a connection with the geographic area of SoHo, New York City.”3 This argument is not persuasive because it ignores the fact that both marks begin with the same name, TRUMP, and that the additional wording is geographic information or descriptive information about the nature of the services, and has little trademark significance. If Registrant’s mark implies a 3 Applicant’s brief at p. 5, 7 TTABVUE 6. Serial No. 88111087 - 6 - connection with SoHo, New York City, the disclaimed term SOHO is a geographically descriptive, inherently weak term entitled to less protection than arbitrary or suggestive terms such as TRUMP. See Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) (“[g]eographically descriptive terms are generally regarded as inherently weak and entitled to less protection than arbitrary or suggestive marks.”). Further, if PLASTIC SURGERY implies a connection with plastic surgery or medical services, the primary source indicator also remains as TRUMP. The additional wording in both marks does not change the shared connotation of the term TRUMP, which is the surname of the 45th president of the United States.4 In view of the foregoing, we find that the marks are similar in sound, meaning, appearance and commercial impression. The word elements that are not shared contribute minimally to the commercial impression of the marks and do not change the overall commercial impression of the marks. The DuPont factor regarding the similarity of the marks favors a finding of likelihood of confusion. 4 Applicant has not proposed any meaning for the term TRUMP. We take judicial notice of The Random House Unabridged Dictionary (2020) definition of “trump” as, inter alia, “any playing card of a suit that for the time outranks the other suits, such card being able to take any card of another suit” and “to excel; surpass; outdo.” Dictionary.com accessed October 14, 2020. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Inasmuch as these meanings do not change the conceptual or inherent strength of the word “Trump” in the marks at issue, they do not help Applicant by distinguishing the marks. Serial No. 88111087 - 7 - II. The Services The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration ….’” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567); see also Stone Lion Capital Partners, 110 USPQ2d at 1161-63. It is “not necessary that the [services] be identical or even competitive to support a finding of a likelihood of confusion.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective goods are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. ’” Id. (quoting 7-Eleven, 83 USPQ2d at 1724). The Examining Attorney submitted examples of one source providing medical and cosmetic surgery services, and health spa and cosmetic body care services, under a single mark:5 • Bella Cosmetic Surgery - “Medical Spa Aesthetic Services” offering “Anti-aging treatments” such as “facials” and “Cosmetic Surgery Procedures.” January 3, 2019 Office Action, TSDR 8-9. 5 The Examining Attorney also submitted evidence from entities such as the American Med Spa Association which discuss medical spas and medical spa treatments. See February 19, 2020 Office Action This evidence does not specify whether such entities use the same marks for both the services identified in the application and the registration and hence has limited probative value regarding the relatedness of the services. Serial No. 88111087 - 8 - • Buckhead Plastic Surgery - “Day Spa Treatments” such as massage and facial and “Plastic Surgery.” Id. at TSDR 10. • Mountcastle Plastic Surgery & Vein Institute - “MedSpa Procedures” such as microblading and “Fraxel…a non-invasive, non-surgical, extremely safe laser skin care treatment,” and cosmetic surgical “Body Procedures” such as liposuction. Id., TSDR 13-14. • Sullivan Surgery & Spa - “advanced skin care treatments and medical grade products as a complement to surgical and non-surgical procedures,” and cosmetic surgical procedures such as “Liposuction” and “Tummy Tuck,” and “Skin Care Treatments” such as “Power Facial,” a “clarifying, detoxifying and hydrating skin-care treatment. Id., TSDR 19-24. • Winona Health - a “day spa” that provides “facials, manicures/pedicures, eyebrow and eyelash tinting, waxing and body hair removal, microdermabrasion, and laser skin treatments,” as well as “Plastic & Cosmetic Surgery,” such as “[e]ar pinning … a surgical procedure that sets prominent ears closer to the head or makes large ears smaller,” and liposuction. July 18, 2019 Office Action, TSDR 2-7. • UPMC - “Cosmetic surgery” and “Nonsurgical and Noninvasive Skin Services,” including “facials, microdermabrasion, and other noninvasive cosmetic procedures.” Id., TSDR 8. • Nova Plastic Surgery - “non-surgical cosmetic (or hair removal) service performed under the supervision of a licensed medical doctor” and “Plastic Surgery” services such as “Breast Augmentation” and “Liposuction.” Id., TSDR 22-25. Serial No. 88111087 - 9 - Because “cosmetic and plastic surgery” is a subset of “medical services,” the evidence that establishes a relationship between Registrant’s services and “cosmetic and plastic surgery” also establishes a relationship between Registrant’s services and Applicant’s “medical services.”6 Where services are broadly identified in an application or registration, “we must presume that [those] services encompass all services of the type identified.” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015); see also In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018) (where the goods in an application or registration are broadly described, they are deemed to encompass all the goods of the nature and type described therein). Applicant argues that “medicine has consistently been held as being dissimilar to cosmetics”; that “cosmetic[ ] products are similar to the services that involve the use of those same products”; and that “cosmetic body care services are directly related to cosmetic goods.”7 The cases relied upon by Applicant in support of these propositions were all decided before the Federal Trademark Act of 1946 was adopted and, even if timely, would fall far short of supporting Applicant ’s arguments. One of the cited cases is an 80-year-old patent appeal involving grease. In re Bennett, 5 USPQ 173 (CCPA 1930). Another found “medical pills and plasters” different from “perfume extracts, toilet waters, face powders, rouges, lipsticks, mascara, eyebrow pencils and perfumery.” Carter Prods., Inc. v. Cartier, Inc., 47 USPQ 341 (CCPA 1940). In the 6 Even if it did not establish a relationship, because registration is to be refused when there is likelihood of confusion of an applicant’s mark for any of the services in a particular class, the entire class of services would have to be refused. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986 (CCPA 1981). 7 Applicant’s brief at p. 6, 7 TTABVUE 7. Serial No. 88111087 - 10 - final case relied on by Applicant, the judge opined, after noting the “lack of evidence on the subject” that he would find “medicinal or pharmaceutical preparations” different from “cosmetics.” McKesson & Robbins, Inc. v. Vad Corp., 62 USPQ 386 (CCPA 1944). These decisions do not prove anything concerning modern market conditions or practices under the “new” Federal Trademark Act. Applicant also submitted pairs of registrations for marks which she believes are similar and owned by different entities to show that the USPTO registers similar marks for the same services involved herein.8 In each pair, one registration covers medical services and the other covers spa services. The Board and courts are not bound by prior decisions of examining attorneys, and each case must be decided on its own merits on the basis of the record therein. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re Kent-Gamebore Corp., 59 USPQ2d 1373, 1377 (TTAB 2001); In re Wilson, 57 USPQ2d 1863, 1871 (TTAB 2001). Also, we are not privy to the circumstances or the analyses that underlay the issuance of these registrations. In view of the foregoing, we find that the services are related and that the DuPont factor regarding the similarity of the services favors a finding of likelihood of confusion. III. Trade Channels and Classes of Purchasers In our inquiry under the DuPont factor regarding trade channels and classes of purchasers, we look to the identification of services of the application and the cited 8 Req. for Recon. Exh. B, TSDR 22-136. Serial No. 88111087 - 11 - registration. See Stone Lion Capital Partners, 110 USPQ2d at 1161; Octocom Systems Inc. v. Hous. Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). (“The authority is legion that the question of registrability of an applicant ’s mark must be decided on the basis of the identification of goods [or services] set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods [or services], the particular channels of trade or the class of purchasers to which the sales of goods [or services] are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods [or services.]”). The identifications of services do not contain any limitations restricting trade channels to a particular field or to a particular class of purchasers, and we may not read any limitations into them. See Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). “[I]t is well established that, ‘absent restrictions in the application and registration … services are presumed to travel in the same channels of trade to the same class of purchasers.’” See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). The third-party website evidence submitted by the Examining Attorney demonstrates that Applicant’s services may be offered via the same virtual marketplace (that is, on the same websites by the same entity) to all relevant classes of purchasers, i.e., individuals in the general population seeking beauty care. Serial No. 88111087 - 12 - Applicant does not dispute that the services, trade channels and classes of purchasers are similar. Thus, the DuPont factor regarding the similarity of trade channels and purchasers favors finding a likelihood of confusion. IV. Conditions Under Which and Buyers to Whom Sales are Made Applicant argues that buyers of the respective services will be sophisticated, well- educated and not likely to make purchases on impulse; and that because surgical services cost thousands of dollars, more care is taken and buyers are less likely to be confused as to source or affiliation.9 In support, Applicant submitted evidence detailing the high cost of “medical services” such as “heart valve replacement,” “hip replacement” and “gastric sleeve.”10 Because “medical services” is broadly identified in Applicant’s identification of services, we must presume that they encompass medical services of all types. Packard Press Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000); Canadian Imperial Bank of Commerce, Nat. Ass’n v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). Thus, “medical services” include lower cost services such as simple medical checkups or a flu shot. The high prices for the medical services mentioned in the prior paragraph are not reflective of all prices for medical services. Also, Registrant’s identified services are not limited to high- priced services - lower cost services such as a 30 minute massage or a pedicure are also included within Registrant’s identification of services. 9 Applicant’s brief at p. 7, 7 TTABVUE 8. 10 Req. for Recon. Exh. A, TSDR 18-21. Serial No. 88111087 - 13 - With regard to Applicant’s contention that purchasers are well-educated, we construe Applicant’s statement as meaning that consumers will do some research before making a purchasing decision, not that they have university degrees. In other words, they will educate themselves about the services sought before making a purchase. The problem, though, is that there is no evidence in the record to support Applicant’s statement and attorney argument is no substitute for evidence. Cai, 127 USPQ2d at 1799 (citing Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). Additionally, it is well established that even if purchasers are sophisticated or knowledgeable in a particular field, it does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion. Stone Lion Capital Partners, at 1163- 64; Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000). Also, we have found that purchasers of Applicant’s and Registrant’s identified services are members of the general public. The standard of care for purchasing any service is that of the least sophisticated potential purchaser. In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion Capital Partners, 110 USPQ2d at 1163). Applicant has cited to numerous cases in support of its arguments regarding sophistication and purchaser care. Prior cases have precedential value to the extent that they may involve similar facts. See In re Fleet-Wing Corp., 188 F.2d 476, 89 USPQ 369, 370 (CCPA 1951) (“It may be said at the outset that in cases like that at bar where the registration of one mark over a similar mark for goods of the same class Serial No. 88111087 - 14 - is involved, there is rarely any decision of any court that is sufficiently analogous to be absolutely controlling. ... Where the circumstances in a decided case differ, even only to a slight degree, from those in a case to be decided, it is often difficult to determine just what effect those differences should be given.”). Because Applicant did not submit evidence regarding the degree of consumer care, the cases cited by Applicant do not have much value. See discussion, supra, regarding cases cited by Applicant. Thus, by virtue of the nature of the services set forth in Applicant’s identification of services, we can conclude that purchasers exercise more than ordinary care in making their purchases. The DuPont factor regarding purchasing conditions weighs slightly against a finding of likelihood of confusion. V. The Fame of the Prior Mark Applicant argues that “there is no evidence that the cited Prior Mark is famous or has acquired secondary meaning within the marketplace or that consumers associate the term TRUMP with the Prior Owner”; and that “the USPTO has consistently allowed many other similarly situated applications to register.”11 These arguments are not persuasive because Registrant’s mark need not be famous in order to find a likelihood of confusion. Registrant’s mark, as a registered mark, is entitled to the presumption of validity pursuant to Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), and hence we do not require evidence of acquired secondary 11 Applicant’s brief at p. 8, 7 TTABVUE 9. Serial No. 88111087 - 15 - meaning. In addition, as mentioned above, each case must be determined on its own merits. See Nett Designs, 57 USPQ2d at 1566. This factor is neutral in our analysis. VI. Nature and Extent of Any Actual Confusion/Extent of Potential Confusion Applicant argues that there is no evidence that consumers have been confused by the respective marks,12 and that the potential for actual confusion is de minimis because there has been no cases of actual confusion.13 The Federal Circuit has addressed the question of the weight to be given to an assertion of no actual confusion by an applicant in an ex parte proceeding: With regard to the seventh DuPont factor, we agree with the Board that Majestic’s uncorroborated statements of no known instances of actual confusion are of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony of appellant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion. The opposite is not true, however. The lack of evidence of actual confusion carries little weight, especially in an ex parte context. In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). (citation omitted). Accordingly, while examples of actual confusion may point toward a finding of a likelihood of confusion, an absence of such evidence is not compelling in support of a 12 Id. 13 Id. at p. 9, 7 TTABVUE 10. Serial No. 88111087 - 16 - finding of no likelihood of confusion, particularly in an ex parte proceeding in which the owner of the cited registration cannot appear. Thus, we cannot conclude from the alleged lack of instances of actual confusion that confusion is not likely to occur. In any event, Applicant’s application is based on an intention to use its mark in commerce and there is no evidence that Applicant has actually used its mark. If it has used its mark, there is no evidence as to how long it has used the mark. It appears that there has not been any meaningful opportunity for actual confusion to have occurred in the marketplace. See Cunningham 55 USPQ2d at 1847; Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). The DuPont factors pertaining to actual confusion and the extent of potential confusion are neutral in our analysis. VII. Conclusion We have found the marks similar and the services related in a manner likely to lead relevant consumers to expect they might come from a single source. We also found the services travel in the same trade channels and are offered to the same purchasers. Applicant has not established any significant weakness in the term TRUMP. Thus, although the purchasing conditions weigh slightly against a finding of likelihood of confusion, the other non-neutral DuPont factors weigh in favor of finding likelihood of confusion. After carefully weighing the factors, we find confusion is likely between Applicant’s mark for its identified services and Registrant’s mark for its identified services. Decision: The refusal to register under Section 2(d) is affirmed.