Pinnacle Agriculture Distribution, Inc.

Trademark Trial and Appeal Board

May 6, 2016

No. 86395043 (T.T.A.B. May. 6, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: May 6, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Pinnacle Agriculture Distribution, Inc.
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Serial No. 86395043
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Jacob W. Neu of Bradley Arant Boult Cummings, LLP,
for Pinnacle Agriculture Distribution, Inc.
Kathy Wang, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Quinn, Cataldo, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Pinnacle Agriculture Distribution, Inc. (“Applicant”) seeks registration on the
Principal Register of the mark shown below

(with AG SOLUTIONS disclaimed) for the following services:
• “Freight logistics management; Supply chain management services” in
International Class 35, and
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• “Freighting services; Supply chain logistics and reverse logistics services,
namely, storage, transportation and delivery of documents, packages, raw
materials, and other freight for others by air, rail, ship or truck; Warehousing
services, namely, storage, distribution, pick-up, and packing for shipment of
documents, packages, raw materials, and other freight for others” in
International Class 39.1
The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as
applied to the services identified in the application, so resembles the mark below:

previously registered on the Principal Register for the following services:
• “Organizing of travel for others; arranging and conducting travel tours; travel
agency services, namely, making reservations and bookings for transportation
over land, air and water; seat reservations and bookings for all modes of
transport, passengers, and freight; organization, booking, and arrangements
of excursions, daytrips, and sightseeing tours; arranging of tours and travel
tours over land, air, and water; cruises and arranging of cruises; arranging and
conducting bicycle tours; escorting travelers,” in International Class 39;
• “Guided tours of cities, parks, national parks, historic and cultural sights, and
museums,” in International Class 41; and

1 Application Serial No. 86395043 was filed on September 15, 2014 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. The application includes the following description: “The mark
consists of the word INTREPID vertically above AG SOLUTIONS, and with a slash between
AG and SOLUTIONS and a two [sic] arcs rising upward from INTREPID and SOLUTIONS,
and meeting at a point at the upper right hand corner.”
Serial No. 86395043
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• “Travel agency services, namely, making reservations and bookings for
restaurants, meals, and temporary lodging; arranging temporary
accommodation,” in International Class 432
as to be likely to cause confusion, to cause mistake, or to deceive.
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of 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., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods or services. See 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
[or services] and differences in the marks.”).
We first address the du Pont likelihood of confusion factor focusing on “the
similarity or dissimilarity of the marks 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.

2 Registration No. 4037419, issued October 11, 2011. The registration includes the following
description: “The mark consists of a circle bisected by the word ‘INTREPID’ at slight angle
going upward from left to right. The bottom edge of the circle includes a city skyline with a
dome and two towers.”
Serial No. 86395043
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2005) (quoting du Pont, 177 USPQ at 567). “The proper test 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.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also 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.”). On the other hand, 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. In re Nat’l Data, 224 USPQ at 751.
When a mark is a composite of wording and a design, the verbal portion normally
plays a dominant role. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911
(Fed. Cir. 2012) (“This makes sense given that the literal component of brand names
will likely appear alone when used in text and will be spoken when requested by
Serial No. 86395043
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consumers.”); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1596 (TTAB 2001);
In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987).
We find the dominant part of both Applicant’s mark and the cited mark to be the
word INTREPID, which is the largest component of both marks and the only wording
in the cited mark. Applicant’s mark also contains
the phrase AG SOLUTIONS, but it is in much
smaller, thinner font and disclaimed as descriptive
in association with Applicant’s services. It is well-settled that descriptive matter may
have less significance in likelihood of confusion determinations. 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 likelihood of confusion.”’) (quoting
In re Nat’l Data, 224 USPQ at 752); In re Code Consultants Inc., 60 USPQ2d 1699,
1702 (TTAB 2001) (noting that descriptive matter is often “less significant in creating
the mark’s commercial impression”).
Thus, the dominant portion of the two marks is identical, resulting in visual and
aural similarity between them. The marks also share a similar connotation based on
the meaning of the word INTREPID: “characterized by resolute fearlessness,
fortitude, and endurance.”3

3 Definition from Merriam-Webster online dictionary (www.merriam-webster.com/dictionary/
intrepid, May 5, 2016). The Board may take judicial notice of dictionary definitions, including
online dictionaries that exist in printed format or have regular fixed editions. In re Cordua
Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014).
Serial No. 86395043
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Applicant contends that the Examining Attorney has improperly discounted the
differences between its mark and the cited mark. The design elements in Applicant’s
mark, whether viewed as two arcs (as stated in the description of the mark) or as a
leaf (as argued in Applicant’s appeal brief),4 along with the additional words
AG SOLUTIONS, do distinguish it somewhat from the cited
mark, which features a city skyline silhouette with three
buildings. Applicant compares the tilted circular design of the
cited mark to a customs or passport stamp, arguing that those
design elements plus the types of buildings depicted in the
skyline convey “‘intrepid,’ adventurous travel to unique cultural destinations.”5
Applicant argues that: “This commercial impression of far-flung travel to exotic
locations enhances and confirms the association of the Registered Mark with the
travel agency services offered in connection with it.”6
We find, however, that the differences between the marks are outweighed by the
presence of the word INTREPID as the dominant element in each. Considered in their
entireties, we find that the marks make similar overall commercial impressions. The
first du Pont factor thus supports a finding that confusion is likely.
We next consider the second du Pont factor, the similarity of the services. We are
mindful that the test is not whether consumers would be likely to confuse these

4 See Appeal Brief at 10-11, 4 TTABVUE 11-12.
5 Id. at 10, 4 TTABVUE 11.
6 Id.
Serial No. 86395043
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services, but rather whether they would be likely to be confused as to their source.
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). Therefore, to support a finding
of likelihood of confusion, it is not necessary that the services be identical or even
competitive. It is sufficient that the services are related in some manner, or that the
circumstances surrounding their marketing are such that they would be encountered
by the same persons in situations that would give rise, because of the marks, to a
mistaken belief that they originate from the same source or that there is an
association or connection between the sources of the services. In re Thor Tech Inc., 90
USPQ2d 1634, 1635 (TTAB 2009).
We must look to the services as identified in the involved application and cited
registration, not to any extrinsic evidence of actual use. Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014).
Because there are no limitations as to channels of trade or classes of purchasers in
the recitation of services in either the cited registration or the application, we must
presume that the identified services move in all channels of trade normal for such
services and are available to all potential classes of ordinary consumers. See
Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261
(Fed. Cir. 2011); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Applicant’s services are:
• “Freight logistics management; Supply chain management services,” and
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• “Freighting services; Supply chain logistics and reverse logistics services,
namely, storage, transportation and delivery of documents, packages, raw
materials, and other freight for others by air, rail, ship or truck; Warehousing
services, namely, storage, distribution, pick-up, and packing for shipment of
documents, packages, raw materials, and other freight for others.”
The Examining Attorney states in her brief that the following services recited by
Registrant are relevant to the refusal: “seat reservations and bookings for all modes
of transport, passengers, and freight.”7
The Examining Attorney introduced printouts from six third-party websites
offering services identified both in the application and the cited registration under
the same mark, including the following:
1. DHL: international ocean freight booking; freight transportation, including
warehousing and distribution; supply chain solutions.8
2. Prime Transport & Logistics: global and domestic transportation services,
including air freight; supply chain solutions, including warehousing.9
3. PLS Logistics: freight services; supply chain management10
4. DLI Dedicated Logistics Inc.: freight transportation services; warehousing
and distribution.11
5. Crowley: air freight shipping and logistics; cargo and supply chain
solutions.12
6. DSV: road, air, and sea freight services; freight management;
warehousing.13

7 6 TTABVUE 10, 13.
8 December 16, 2014 Office Action at 5-11 (from www.dhl-usa.com).
9 Id. at 12-16 (from www.primetransportllc.com).
10 Id. at 17-20 (from www.plslogistics.com).
11 Id. at 21-29 (from www.shipdli.com).
12 March 26, 2015 Final Office Action at 7-10 (from www.crowley.com).
13 Id. at 15-20 (from www.us.dsv.com).
Serial No. 86395043
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This evidence demonstrates that the identified freight services may emanate from
the same sources under the same marks. In our likelihood of confusion analysis, these
findings under the second du Pont factor support a finding that confusion is likely.
In its appeal brief, Applicant argues that the Examining Attorney has taken an
unreasonably broad view of the scope of services associated with the cited
registration, in which “bookings for . . . freight” cannot be understood to mean all
freight:
[I]t is inappropriate to take the addition of “and freight” to
this identification and thereby expand the identification to
include all freight anywhere for any purpose. The
identification of services in Registrant’s Mark itself
stresses travel and tourism throughout, both implicitly
within the particular recitation of “seat reservations and
bookings for all modes of … freight” and explicitly in every
other recitation of the services. Simply adding the words
“and freight” should not change that understanding when
nothing else in the identification would seem to even
remotely suggest the combination of such distinct and
separate services as travel agencies and freighting logistics
and warehousing.14
Applicant relies on In re Planprint Co., 229 USPQ 621 (TTAB 1986), in which the
Board construed “plant layouts” to mean only layouts of manufacturing facilities in
the following recitation: “engineering services – namely, computer-aided surveys of
customers’ existing buildings, machinery, equipment, furnishings and utilities,
incorporation of the information generated by the surveys into computer database
form and recordation of the database information on memory media for subsequent
use by the customer in performing on-going plant layout planning functions.”

14 Reply Brief, 7 TTABVUE 8-9.
Serial No. 86395043
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We are not persuaded by Applicant’s arguments. First, “freight” is not ambiguous
as used in Registrant’s identification. The first definition of “freight” of record is
“goods that are carried by ships, trains, trucks, or airplanes.”15 Because the
identification is clear and unambiguous, we may not consider extrinsic evidence of
Registrant’s services. Cf. In re Trackmobile, Inc., 15 USPQ2d 1152 (TTAB 1990).
Second, the language “seat reservations and bookings for all modes of transport,
passengers, and freight” is separated by a semicolon from Registrant’s other Class 39
services. Trademark Manual of Examining Procedure (TMEP) § 1402.01(a) (April
2016) provides that: “Semicolons should generally be used to separate distinct
categories of goods or services within a single class.” See In re Midwest Gaming &
Entm’t LLC, 106 USPQ2d 1163, 1166 & n.4 (TTAB 2013) (“Under standard
examination practice, a semicolon is used to separate distinct categories of goods or
services.”). Although the remaining services in the cited registration are directed to
travel and tourism, there is no prefatory language limiting the relevant, distinct
category of services to freight related to travel, touring, or travel agency services.
“We have no authority to read any restrictions or limitations into the registrant’s
description of [services].” Thor Tech, 90 USPQ2d at 1638. Nor may an applicant
restrict the scope of the services covered in the cited registration by argument or
extrinsic evidence. Midwest Gaming, 106 USPQ2d at 1165; In re La Peregrina Ltd.,
86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763,

15 March 26, 2015 Final Office Action at 2 (from www.merriam-webster.com/dictionary/
freight).
Serial No. 86395043
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764 (TTAB 1986). To the extent that there is any ambiguity as to the scope of the
identification of services, and we do not believe there is, we must resolve any doubt
in favor of the registrant, given the presumptions afforded the registration under
Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b). In re C.H. Hanson Co., 116
USPQ2d 1351, 1355 (TTAB 2015).
Turning to the remaining arguments against refusal, Applicant contends that its
services and those of Registrant are targeted to different consumers who, in both
cases, are likely to be sophisticated.16 This argument pertains to the fourth du Pont
factor, the conditions under which and buyers to whom sales are made, i.e., “impulse”
vs. careful, sophisticated purchasing. Du Pont, 177 USPQ at 567. Applicant provided
no evidence to support its argument, and neither the application nor the cited
registration is restricted to services of any particular price. Even assuming that
consumers of freight-related services are careful when it comes to their buying
decisions, it is settled that careful or sophisticated purchasers are not immune from
source confusion. See Stone Lion, 110 USPQ2d at 1162-63; In re Research & Trading
Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986). On the record before us, we
find that the similarities between the marks and the related nature of the identified
services outweigh any care that may be exercised in the purchasing decision. See HRL
Assocs. Inc. v. Weiss Assocs. Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, Weiss
Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990).
We find the fourth du Pont factor to be neutral.

16 See Appeal Brief at 11-12, 4 TTABVUE 12-13.
Serial No. 86395043
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Finally, Applicant states in a footnote that it is willing to amend its services to
indicate that they are directed specifically to agricultural companies.17 This would
not overcome the likelihood of confusion refusal, however, because we must assume
that the cited registration encompasses all services of the nature and type identified.
Registrant’s freight booking services therefore also may be offered to agricultural
companies. See, e.g., Kangol Ltd. v. KangaROOS U.S.A. Inc., 974 F.2d 161, 23
USPQ2d 1945 (Fed. Cir. 1992); Octocom Sys. Inc. v. Houston Computers Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Elbaum, 211 USPQ at 640.
We have considered all of the arguments and evidence of record as they pertain to
the relevant du Pont likelihood of confusion factors. To the extent that any other
du Pont factors for which no evidence was presented by Applicant or the Examining
Attorney may nonetheless be applicable, we treat them as neutral.
In sum, we have found that the marks in their entireties are similar and that the
identified services are related. We find that Applicant’s mark is likely to cause
confusion with the mark in cited Registration No. 4037419 when used in association
with the identified services.
Decision: The refusal to register Applicant’s mark on the basis of Registration
No. 4037419 is affirmed.

17 Appeal Brief at 4 n.1, 4 TTABVUE 5.