North Point Capital Group LLC.

Trademark Trial and Appeal Board

Feb 4, 2019

No. 87675417 (T.T.A.B. Feb. 4, 2019)

Mailed: February 4, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re North Point Capital Group LLC.
_____

Serial No. 87675417
_____

Joseph Sofer of Sofer & Haroun, LLP
for North Point Capital Group LLC.
Dannean Hetzel, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Zervas, Bergsman, and Wolfson,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
North Point Capital Group LLC. (“Applicant”) seeks registration on the Principal
Register of the mark depicted below (“Capital” disclaimed) for “Real estate funds
investment services” in International Class 36.1

1 Application Serial No. 87675417 was filed on November 7, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a) based upon Applicant’s claim of first use at least as early
as April 11, 2016 and first use in commerce at least as early as October 23, 2017. The colors
navy and medium blue are claimed as a feature of the mark. The description of the mark
reads as follows: “The mark consists of stylized letters ‘NP’ with the letter ‘N’ appearing in
This Opinion is Not a
Precedent of the TTAB
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of
confusion with Registration Nos. 2135223 and 4141329 for the marks and services
listed below:2
• Registration No. 2135223 for the mark NORTHPOINT MARKETCENTER
(in standard characters, “Marketcenter” disclaimed) for “real estate
services, namely, real estate leasing, brokerage, and management” in
International Class 36;3 and
• Registration No. 4141329 for the mark NORTHPOINT FINANCIAL
GROUP (in standard characters, “Financial Group” disclaimed) for
Advice relating to investments; Annuity services, namely,
account and investment administration for the purposes of
financial planning and investment advisory services, and
the investment and distribution of annuity funds;
Financial and investment services, namely, management
and brokerage in the fields of stocks, bonds, options,

navy on the left side and medium blue on the right side. The letter ‘P’ appears in navy. Below
is the wording ‘North Point Capital’ appearing in navy.”
2 Registration was also refused on the basis of Reg. No. 4141335. That registration was
cancelled on December 21, 2018 and is no longer part of this proceeding.
3 Issued February 10, 1998; renewed. Owned by Cousins Properties Incorporated, a
corporation of Georgia.
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commodities, futures and other securities, and the
investment of funds of others; Financial consultancy,
namely, financial planning and investment advisory
services; Financial consultancy, namely, financial
planning and investment advisory services and insurance
consultancy; Financial services, namely, wealth
management services relating to financial planning and
investment advisory services; Financial planning;
Financial planning and investment advisory services;
Financial planning for retirement; Financial services,
namely, a total portfolio offering for high net worth clients
consisting of both separate accounts and mutual funds for
equity and fixed income investments; Financial services,
namely, providing an investment option available for
variable annuity and variable life insurance products;
Financial services, namely, wealth management services;
Financial trust planning; Investment advisory services;
Investment management; Investment management of and
distribution of annuities; Investment management of and
distribution of variable annuities; Providing advice in the
field of finance, financial investments, financial valuations,
and the financial aspects of retirement; Strategic financial
advisory services; Trust services, namely, investment and
trust company services
in International Class 36.4
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.5
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see

4 Issued May 15, 2012; combined Sections 8/15 declaration accepted and acknowledged.
Owned by Northpoint Financial Group, Corp., a corporation of Illinois.
5 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
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also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). “Not all of the [du Pont] factors are relevant to every case, and only factors of
significance to the particular mark need be considered.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In
re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)). In any
likelihood of confusion analysis, two key, though not exclusive, considerations are the
similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976); In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
A. Similarity of the Marks; Strength of the Cited Marks
In making our determination as to whether Applicant’s design mark is similar or
dissimilar to Registrants’s marks, we must consider the marks in their entireties in
terms of appearance, sound, connotation and overall commercial impression. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). In
comparing the marks, we are mindful that where, as here, the services are in part
legally identical (as discussed below), the degree of similarity between the marks
necessary to find likelihood of confusion need not be as great as where there is a
recognizable disparity between the services. Coach Servs., Inc. v. Triumph Learning
LLC, 101 USPQ2d at 1721; Century 21 Real Estate Corp. v. Century Life of America,
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970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v.
Rind, 85 USPQ2d 1104, 1108 (TTAB 2007).
The test under the first du Pont factor 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 that
confusion as to the source of the services offered under the respective marks is likely
to result. The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks. See Mini Melts,
Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe,
LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
1. Strength of the Cited Marks
We first address Applicant’s argument that both of the cited marks are weak.
“Since the marks in the prior registrations have already been diluted by the presence
of each other there can be no likelihood of confusion with Applicant’s mark as
consumers have already come to differentiate between NORTH POINT marks due to
differences in the marks and services covered.”6 Applicant cites Juice Generation, Inc.
v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015) in support of
its argument. However, in that case, there were at least twenty-six relevant third
party uses or registrations of record, see 115 USPQ2d at 1672 n.1. In contrast,
Applicant offers no third-party use or registrations to show that consumers have been

6 4 TTABVUE 13.
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educated to distinguish between marks using NORTH POINT for any financial or
investment services. Moreover, Applicant does not argue that either mark is
conceptually or inherently weak or that the term “north point” has any descriptive
meaning in the financial field.
In view of the absence of any evidence bearing on the alleged weakness of the
marks, whether conceptually or in terms of their commercial strength, we find the
Registrants’s NORTHPOINT MARKETCENTER and NORTHPOINT FINANCIAL
GROUP marks are entitled to the normal scope of protection accorded inherently
distinctive marks.
2. Similarity with NORTHPOINT FINANCIAL GROUP - Reg. No. 4141329
Applicant’s mark is . The Registrant’s mark in Reg. No. 4141329 is
NORTHPOINT FINANCIAL GROUP. Both marks prominently feature the term
“North Point.”7 The other elements of each mark make lesser contributions to the
commercial impressions. While “it is well-established that it is improper to dissect a
mark, and that marks must be viewed in their entireties,” Coach Services, 101
USPQ2d at 1721, “one feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant feature in determining the

7 The fact that Registrant’s mark contains the compound word NORTHPOINT, while
Applicant’s mark uses two words, NORTH POINT, has “no trademark significance. The two
words retain the same meanings when joined as a compound.” In re Iolo Technologies, LLC,
95 USPQ2d 1498, 1499 (TTAB 2010) (finding ACTIVECARE and ACTIVE CARE confusingly
similar); cf. In re A La Vieille Russie Inc., 60 USPQ2d 1895, 1897 n.2 (TTAB 2001) (“the
compound term RUSSIANART is as merely descriptive as its constituent words, ‘Russian
Art’”).
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commercial impression created by the mark.” Id. (citing Leading Jewelers Guild, 82
USPQ2d at 1905); see also In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985) (“[T]here 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.”).
The word “Capital” in Applicant’s mark and “Financial Group” in Registrant’s
mark are descriptive of financial and investment services and therefore have been
properly disclaimed.8 The disclaimed terms do not detract from the dominance of the
term “North Point,” which has no descriptive meaning with respect to the services.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive
component of a mark may be given little weight in reaching a conclusion on the
likelihood of confusion.”’) (quoting In re Nat’l Data Corp., 224 USPQ at 752); see also
In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In
re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is
often “less significant in creating the mark’s commercial impression”).
Applicant argues that its mark includes a “distinctive design component for the
letters NP [that] creates a completely different commercial impression than the
standard character marks of the prior registrations.”9 However, the design is not a

8 The Examining Attorney submitted a definition of “capital” connecting the term with
investments: “cash or goods used to generate income either by investing in a business or a
different income property.” At http://www.investorwords.com, attached to the February 9,
2018 Office Action at 7.
9 4 TTABVUE 10.
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significant factor in this case. The stylized letters do “not overwhelm, detract from,
or change the commercial impression of, the wording [NORTH POINT CAPITAL],”
In re i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018). To the extent
consumers will recognize the design as the letters “NP,” the recognition will
emphasize the words, while the addition of medium blue color to the otherwise navy
blue mark does not so highlight the stylized NP as to detract significantly from the
words. For these reasons, the literal portion of Applicant’s mark is far more likely to
be impressed upon a purchaser’s memory than the NP design. In re Viterra Inc., 671
F3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (“In the case of a composite mark
containing both words and a design, ‘the verbal portion of the mark is the one most
likely to indicate the origin of the goods to which it is affixed.’”) (citing CBS Inc. v.
Morrow, 708 F.2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)). The words of
the mark are also “normally given greater weight because they would be used by
consumers to request the products.” Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc.,
107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59
USPQ2d 1593, 1596 (TTAB 1999)). Moreover, because the cited mark is a standard
character mark, it may be displayed in any font style or color, including the colors
medium and navy blue. Trademark Rule 2.152(a); In re Aquitaine Wine USA, LLC,
126 USPQ2d 1181, 1186 (TTAB 2018) (“Since Registrant’s mark is a standard
character mark, we must consider that the literal elements of the mark (the words
and the letters) may be presented in any font style, size or color, including the same
font, size and color as the literal portions of Applicant’s mark.”).
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Considering the marks in their entireties, we find that the dominant element in
each is the term NORTH POINT (or NORTHPOINT), and that this term has the same
meaning and commercial impression in both marks. The additional words of each
mark and the design element in Applicant’s mark are not sufficient to overcome the
strong similarities in connotation and overall commercial impression that the marks
share due to this same dominant element.
The first du Pont factor favors a finding of likelihood of confusion with respect to
Reg. No. 4141329.
3. Similarity with NORTHPOINT MARKETCENTER- Reg. No. 4141329
Applicant’s mark is similar to the mark NORTHPOINT MARKETCENTER for
the same reasons as discussed above with respect to Reg. No. 4141329. That is, both
Applicant’s NP NORTH POINT CAPITAL and design mark and Registrant’s mark
NORTHPOINT MARKETCENTER are dominated by the term NORTH POINT
because the remainder of the literal portions of each mark are merely descriptive of
a feature of the services; the terms have been disclaimed; and the design feature of
Applicant’s mark is insufficient to distinguish the marks.
The first du Pont factor thus favors a finding of likelihood of confusion with respect
to Reg. No. 2135223.
B. Similarity of the Services; Trade Channels; Classes of Consumers
We make our determination under the second du Pont factor, regarding the
similarity of the services, channels of trade and classes of purchasers, based on the
services as they are identified in the application and registration, respectively. Stone
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Lion Capital Partners, 110 USPQ2d at 1161; Octocom Sys. Inc. v. Houston Computers
Servs., Inc., 918 F.2d 937, 16 USPQ2d 17893, 1787 (Fed. Cir. 1990). See also Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002).
1. NORTHPOINT FINANCIAL GROUP - Reg. No. 4141329
a. Comparison of the Services
Applicant’s services are identified as “real estate funds investment services.” The
services in Registration No. 4141329 include “investment of funds of others” and
“investment advisory services.” Registrant’s more broadly worded investment
services may encompass Applicant’s narrower services. 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.’”). For example, Registrant’s “investment of
funds of others” may include investing real estate funds of others and its “investment
advisory services,” being unrestricted, may include advice on how to invest real estate
funds. The registration also recites financial services that may include real estate
funds investment, such as “investment management” and “providing advice in the
field of finance, financial investments, financial valuations, and the financial aspects
of retirement.” For our purposes, the services are legally identical.
Accordingly, the second du Pont factor favors a finding of likelihood of confusion
with respect to Reg. No. 4141329.
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b. Trade Channels and Classes of Consumers
Because the services in the application and the cited registration are legally
identical in part and have no meaningful restrictions as to channels of trade or classes
of customers, we must presume that the channels of trade and classes of purchasers
for these services are the same. See In re Viterra Inc., 101 USPQ2d at 1908 (legally
identical goods are presumed to travel in same channels of trade to same class of
purchasers); Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Am. Cruise Lines, Inc., 128 USPQ2d 1157,
1158 (TTAB 2018). Because the services are financial investment services, the
relevant purchasers are those individuals or companies interested in investment
opportunities involving, e.g., real estate.
The du Pont factor regarding the trade channels and classes of purchasers to
whom the services are offered favors a finding of likelihood of confusion with respect
to Reg. No. 4141329.
2. NORTHPOINT MARKETCENTER – Reg. No. 2135223
a. Comparison of the Services
Applicant’s services are “real estate funds investment services.” Registrant’s
services are “real estate services, namely, real estate leasing, brokerage, and
management.” The Examining Attorney argues that these services are related
because both entities are “engaged in financial services directed at real estate.”10
Applicant contends that the services differ in that “[s]ervices relating to the

10 6 TTABVUE 6.
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investment of a real estate fund which is a type of mutual fund differ from services
related to real estate brokerage and management which are directed to the actual
property.”11
Through submission of use-based third-party registrations for single marks
covering both Applicant’s and Registrant’s services, the Examining Attorney has
shown that the services are related.12 Third-party registrations which individually
cover a number of different items and which are based on use in commerce serve to
suggest that the listed goods and/or services are of a type which may emanate from a
single source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.6 (TTAB 2015); In
re RiseSmart Inc., 104 USPQ2d 1931, 1934-1935 (TTAB 2012); see also In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed.
Cir. 1988); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993). The
following registrations illustrate this relationship. Each registration listed below
includes “real estate funds investment services” (Applicant’s services) in its recitation
of services. In addition, each includes real estate leasing, brokerage, or management
services (i.e., services recited in Registrant’s registration). Although not all of the
services recited in Registrant’s registration are listed in each of the third-party
registrations, because Applicant’s services are included together with some of

11 4 TTABVUE 11.
12 We disregard Reg. No. 5353259 for the mark EQT, attached to the February 20, 2018 Office
Action at 22-25, as this registration was based on priority derived from a foreign registration
under Trademark Act Section 44 and does not contain an allegation of use of the mark.
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Registrant’s services in each, the third-party registrations suggest that the services
may be expected to emanate from a single source:
• Reg. No. 5242837 for the mark THE FASTEST WAY TO SELL REAL
ESTATE includes “real estate funds investment services” and “Real estate
management consultation; Real estate services, namely, leasing and
management for others of residential condominiums located within hotel
developments; Real estate services, namely, property management services
for condominium associations, homeowner associations and apartment
buildings; Leasing of real estate”;13

• Reg. No. 5283875 for the mark H includes “real estate funds investment
services” and “Real estate services, namely, rental, brokerage, leasing and
management of commercial property, offices and office space”;14

• Reg. No. 5240779 for the mark TEA LEAF REALTY includes “real estate
funds investment services” and “Agencies or brokerage for leasing or
renting of land; Arranging of leases and rental agreements for real estate;
Assessment and management of real estate; Building leasing; Financial
services, namely, real estate note brokerage; Land acquisition, namely, real
estate brokerage; Lease of real estate; Leasing of apartments; Leasing of
office space; Leasing of real estate; Leasing or renting of buildings; Real
estate brokerage; Real estate management consultation; Real estate
management of vacation homes; Real estate management services”;15

• Reg. No. 5285320 for the mark IRREPLACEABLE CORNERS includes
“real estate funds investment services” and “Real estate brokerage; Real
estate management consultation; Arranging of leases and rental
agreements for real estate; Financial services, namely, real estate note
brokerage; Lease of real estate; Leasing of real estate; Management of
buildings”;16 and

• Reg. No. 5265594 for the design mark includes “real estate funds
investment services” and “Real estate management of residential real

13 Attached to February 20, 2018 Office Action at 16-18.
14 Id. at 19-21.
15 Id. at 26-28.
16 Id. at 32-34.
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estate; Real estate management services; Arranging of leases and rental
agreements for real estate; Assessment and management of real estate.”

The second du Pont factor favors a finding of likelihood of confusion with respect
to Reg. No. 2135223.
b. Trade Channels and Classes of Consumers
The involved identifications of services do not include any limitations.
Accordingly, we must presume that the identifications encompass all services of the
type described, and that the identified services move in all channels of trade and to
all classes of purchasers that would be normal for such services. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981). However, there is no evidence of record that shows the
trade channels through which either Applicant’s or Registrant’s services are provided
or to whom the services are directed.17 This du Pont factor is neutral.
C. Sophistication and Care of Consumers
Under the fourth du Pont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
du Pont, 177 USPQ at 567. Applicant argues that its customers as well as the
customers of both Registrants’s services are sophisticated purchasers who “would
examine the services carefully prior to engaging” their services, since they involve
“all expensive investments...which militates against any confusion.”18

17 The third-party registrations have no probative value in showing how services reach the
ultimate consumer because registrations are not evidence that the marks shown therein are
in use. Conde Naste Publ’ns, Inc. v. Miss Quality, Inc., 507 F.2d 1404, 184 USPQ 422, 424-25
(CCPA 1975); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1110 (TTAB 2007).
18 4 TTABVUE 12-13.
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Applicant has provided no evidence of this avowed sophistication. Given the
nature of the services on their face, we accept that some purchasers of Applicant’s
and the Registrants’s investment and financial services are likely to be
relatively sophisticated. However, because Applicant’s “real estate funds investment
services,” the NORTHPORT FINANCIAL GROUP “financial planning and
investment advisory services; financial planning for retirement” services, and the
NORTHPOINT MARKETCENTER “real estate leasing, brokerage, and
management” services may include ordinary consumers seeking investment
opportunities, Board precedent requires the decision to be based “on the least
sophisticated potential purchasers.” Stone Lion Capital Partners, 110 USPQ2d at
1163-64 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584,
1600 (TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB Jan.
22, 2014).
Stone Lion Capital Partners is especially applicable because Stone Lion Capital
Partners was a private equity firm that invested primarily in companies that sell
consumer products while Lion Capital’s services included “financial and investment
planning and research,” “investment management services,” and “capital investment
consultation.” The court found that while ordinary purchasers “will exercise care
when making financial decisions,” they “are not immune from source confusion where
similar marks are used in connection with related services.” Stone Lion Capital
Partners, 110 USPQ2d at 1163 (quoting In re Research & Trading Corp., 793 F.2d
1276, 230 USPQ 49 (Fed. Cir. 1986)); see also HRL Associates, Inc. v. Weiss Associates,
Serial No. 87675417

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Inc., 12 USPQ2d 1819 (TTAB 1989), aff'd, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir.
1990) (similarities of goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods); In re Decombe, 9 USPQ2d 1812 (TTAB
1988).
This du Pont factor is neutral with respect to both of the cited registrations.
II. Summary
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Prospective
consumers familiar with the marks in Registration Nos. 2135223 and 4141329,
NORTHPOINT FINANCIAL GROUP and NORTHPOINT MARKETCENTER
respectively, would be likely, when confronted with Applicant’s mark
used in association with “real estate funds investment services,” to be confused,
mistaken, or deceived as to the origin of the services. Applicant’s mark and
Registrants’s marks share the same dominant term NORTHPOINT, making them
similar in appearance, pronunciation, connotation and overall commercial impression
and the design and color features of Applicant’s mark are insufficient to distinguish
them. The services are in part legally identical (with respect to Reg. No. 4141329)
and otherwise highly related. The presumed sophistication of the consumers does not
outweigh the likelihood of confusion.
We conclude that Applicant’s mark, as used in connection with the services
identified in its involved application, so resembles the cited marks as to be likely to
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cause confusion or mistake, or to deceive prospective consumers under Section 2(d) of
the Trademark Act.
Decision: The refusal to register Applicant’s mark under Section
2(d) of the Trademark Act is affirmed.