Roar Media LLC

Trademark Trial and Appeal Board

Sep 30, 2011

No. 77707445 (T.T.A.B. Sep. 30, 2011)

Mailed: September 30, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Roar Media LLC
________

Serial No. 77707445
_______

Francisco J. Ferreiro of Malloy & Malloy PA for Roar Media
LLC.

Khanh M. Le, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Holtzman, Taylor and Bergsman, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Roar Media LLC has filed an application to register on
the Principal Register the mark shown below

for services ultimately identified as “Public relations
services, namely, providing public relations services to
THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Ser No. 77707445
2
professional services firms” in International Class 35.1 At
the request of the examining attorney, the exclusive right
to use the word MEDIA was disclaimed because it is
considered to be descriptive.
Registration has been refused under Trademark Act
Section 2(d), 15 U.S.C. §1052(d), on the ground that
applicant’s mark, as applied to applicant’s services, is
likely to cause confusion with the two registered marks
owned by two different entities set forth below.
A. Registration No. 2688826 for the mark

for “promoting the goods and services of others
by providing hypertext links to the web sites of
others; Providing on-line directory information
services also featuring hyperlinks to other
websites” in International Class 352

B. Registration No. 3015285 for the standard
character mark ROAR for “management of performing
artists; brand representation and brand
management services, namely, management and
administration of licensing, merchandising and
endorsement programs for the brands of others” in
International Class 35; and “production and
organization of live entertainment events,
namely, concerts, concert tours, festivals and
industry showcases in the music field; production
and distribution of motion pictures and

1 Serial No. 77707445, filed April 6, 2009, and alleging July 7,
2008 as the date of first use of the mark anywhere and in
commerce. The application includes the following descriptive
statements: “The mark consists of The design of abstract animal
head with the wording ‘ROAR MEDIA’ underneath it.” “Color is not
claimed as a feature of the mark.”
2 Issued February 18, 2003, Section 8 affidavit accepted.
Ser No. 77707445
3
television programs; production of DVD’s and
sound recording” in International Class 413

When the refusal was made final, applicant appealed
and requested reconsideration of the final refusal. The
examining attorney denied the request for reconsideration
on August 24, 2010, and this appeal was resumed on
September 9, 2010. Both applicant and the examining
attorney filed briefs. We affirm the refusal to register.
We note at the outset that applicant has submitted for
the first time with its reply brief a Wikipedia entry for
the term “professional services.” We find this material
untimely and, accordingly, it has not been considered in
this decision. See 37 C.F.R. § 2.142(d) which states, in
pertinent part, “[t]he record in the application should be
complete prior to the filing of an appeal.” See also In re
IP Carrier Consulting Group, 84 USPQ2d 1028, 1033-34 (TTAB
2007) (“[T]he Board will consider evidence taken from
Wikipedia so long as the non-offering party has an
opportunity to rebut that evidence by submitting other
evidence that may call into question the accuracy of the
particular Wikipedia information.).”

3 Issued November 15, 2005; Section 8 affidavit accepted,
Section 15 affidavit acknowledged.

Ser No. 77707445
4
Also, applicant’s services as originally identified
were “public relations and internet marketing services.”
In an effort to overcome the Section 2(d) refusal,
applicant deleted “internet marketing services” from the
recitation and limited the classes of consumers of its
public relations services to “professional service firms.”
As a result, some of the evidence regarding the relatedness
of the services is no longer probative and, accordingly, we
focus our discussion of the evidence to that which concerns
the services as amended.
We turn now to the merits of this appeal. Applicant,
in urging reversal of the final refusal, maintains that its
mark is distinct and unlikely to cause consumer confusion
with the marks in the cited registrations based on the
significant differences between the applicant’s mark and
services and the marks and services in the cited
registrations, the common use and registration of the term
‘ROAR’, and the discriminating nature of the relevant
consumers. Br. p. 10.
Conversely, the examining attorney maintains that
applicant’s mark is likely to cause confusion because
applicant’s mark is highly similar in appearance, sound,
connotation and commercial impression to the registrants’
marks and the services are closely related.
Ser No. 77707445
5
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 also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
two key 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). See also, In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Registration No. 2688826 – ROAR and design
The Marks
We first compare applicant’s mark ROAR MEDIA and
abstract lion head design with the cited mark . In
determining the similarity or dissimilarity of the marks,
we must consider the marks in their entireties in terms of
sound, appearance, meaning and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test is
not whether the marks can be distinguished when subjected
to a side-by-side comparison, but rather whether the marks
Ser No. 77707445
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are sufficiently similar in their entireties 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 Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). In this case, applicant’s customers are
professional service firms. The customers for the services
identified by the cited mark could be any company providing
goods and services, including professional service firms.
Although we must compare the marks in their
entireties, as applicant acknowledges, 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 commercial impression created by the mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985) (“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 consideration of the marks in
their entireties. Indeed, this type of analysis appears to
be unavoidable.”). For instance, as our principal
reviewing court has observed, “[t]hat a particular feature
is descriptive or generic with respect to the involved
Ser No. 77707445
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goods or services is one commonly accepted rationale for
giving less weight to a portion of the mark.” See In re
National Data Corp., 224 USPQ at 751.
Moreover, with a composite mark comprising a design
and words, it is the wording that would make a greater
impression on the purchasers and is the portion that is
more likely to be remembered as the source-signifying
portion of the applicant’s mark. It is the words, as
opposed to the description of the designs, that will be
used by purchasers to call for the goods and services. In
re Dakin’s Miniatures, Inc., 59 USPQ2d 1593 (TTAB 2001)
(“words are normally accorded greater weight because they
would be used by purchasers to request the goods”).
Here, we find the dominant and distinguishing portion
of is the term ROAR, as the stylization of the words
is not so unique, and the strike-through line design has
minimal visual impact and merely completes the letters “R”
and “A.”
We likewise find the dominant and distinguishing
portion of applicant’s ROAR MEDIA and design mark is the
word ROAR. This is due in large part to the
descriptiveness of the word MEDIA, which merely describes a
feature of applicant’s services as evidenced by the
disclaimer, and would not be looked upon as a source-
Ser No. 77707445
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identifying element. The significance of the word “Roar”
as the dominant element of applicant’s mark is further
reinforced by its location as the first part of the word
portion. See Presto Products Inc. v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the
first part of a mark which is most likely to be impressed
upon the mind of a purchaser and remembered”); see also
Palm Bay Imports, supra, (“Veuve” is the most prominent
part of the mark VEUVE CLICQUOT because “veuve” is the
first word in the mark and the first word to appear on the
label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers must first
notice the identical lead word). Thus, the dominant and
distinguishing portion of both applicant’s mark and the
cited mark is the identical word ROAR.
Contrary to applicant’s assertion, we do not find the
abstract roaring lion head design sufficient to distinguish
applicant’s mark from the cited mark. Although the design
is clearly noticeable, it does not distinguish applicant’s
mark from registrant’s mark in appearance or sound.
Rather, the design simply reinforces the meaning of the
literal element ROAR in applicant’s mark. Nor do we find
Ser No. 77707445
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the differences in the font styles significant to the
overall look of the two marks.
We also are not persuaded by applicant’s contention that
the presence of the abstract lion head emphasizes the “unique
connotation” of the term “Roar” in applicant’s mark, and thus
serves to distinguish applicant’s mark by limiting the
consumer’s attention to a singular, specific connotation of
the term. Applicant particularly contends that the term
“roar” in the cited mark has multiple meanings and
connotations that are wholly unrelated to lions. According
to applicant, the word roar in its mark refers to the “roar”
of a lion and not of a crowd, an engine, or the wind; whereas
both registrants’ marks are for the word “roar” alone which
by definition may include the roar of a lion, crowd, engine
or wind. It is unlikely, however, that potential consumers
will make such a distinction, especially since, as pointed
out by applicant, the term “roar” refers to a sound that is
made for attracting attention. While some consumers may
perceive slight differences in meaning, there is nothing in
the record to suggest that consumers upon seeing the
registered mark would think “roar of a crowd,” “roar of an
engine,” and/or “roar of the wind” as opposed to, or in
addition to, “roar of a lion.” In short, the term “roar” in
both marks connote a sound for attracting attention.
Ser No. 77707445
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Applicant also asserts that because the term “roar”
can refer to a sound made for the sole purpose of
attracting attention, which it further asserts “arguably
describes the very essence of ‘promotion’,” the term ROAR
would have relatively weak trademark significance as
applied the to the services recited in the cited
registrations. This assertion is devoid of any evidentiary
support and, accordingly, has no persuasive value.
Applicant similarly argues that “the extensive third-
party use and registration of the term ‘ROAR’ for use in
connection with a variety of goods and service indicates
that marks utilizing this common term are not likely to be
confused even when such use occurs within the same broadly
defined industry.” Br. p. 9. Applicant particularly
points to three registrations in International Class 35,
i.e., the two cited registrations and Registration No.
3051466 for the mark ROAR for “association services, namely
promoting the interests of adults nearing retirement to
explore alternatives to the traditional retirement and to
establish life goals,” that coexists of the Principal
Register. In further support of its assertion of common
usage of the term ROAR, applicant has made of record copies
of four additional third-party registrations for marks that
consist of the term ROAR in combination with other matter.
Ser No. 77707445
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The additional registrations include: Registration No.
3355406 for the mark ROAR! RESPONSIBLE OVARIAN AWARENESS
REQUIRED and design for “Promoting the public awareness of
ovarian cancer”; Registration No. 3654354 for the mark ROR
for “Advertising and marketing services, namely, performing
marketing research and analysis for others and creating
marketing research and analysis reports for others”;
Registration No. 3112885 for the mark LET FREEDOM ROAR for
“Promoting professional automobile races and/or event of
others”; and Registration No. 3629459 for the mark UPROAR
and design for “Advertising and marketing services, namely,
providing strategic development, creative development and
execution of television, print, radio and Internet
advertising; media planning and buying services; other
promotional services, namely arranging and conducting
marketing promotional events for others.”4 This
coexistence, applicant argues, “speaks to the allowability
of the Applicant’s mark for registration and demonstrates
that the protection afforded to the cited registrations
should be interpreted narrowly.” Br. p. 9.

4 However, applicant also made of record a copy of application
Serial No. 77242159. Pending applications are of no probative
value because they only show that they have been filed. See
Interpayment Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463
(TTAB 2001).
Ser No. 77707445
12
Third party registrations, however, have little
probative value by themselves because they tell us nothing
about whether or not the marks are actually being used or
the extent of any such use. Coach Services Inc. v. Triumph
Learning LLC, 96 USPQ2d 1600, 1614 (TTAB 2010). Without
evidence as to how, or whether, the third-party marks have
been used, we cannot assess whether any such use has been
so widespread as to have had an impact on consumer
perceptions. Moreover, except for Registration No.
3051446, the marks are not as similar to the cited marks as
is applicant’s mark, and the services identified in
Registrations 3051446, 3355406, 3112855 and 3629459 are not
related to the services involved herein. Further, to the
extent that the registrations have been offered not to
establish use but to indicate that ROAR is a commonly
registered term having a suggestive meaning, the existence
of seven registrations simply does not persuade us that
ROAR is considered a commonly registered element in
connection with the services at issue such that the
additional matter in applicant’s mark is sufficient to
distinguish it from the cited registered marks.
With further regard to applicant’s assertion that the
USPTO has allowed registration of three single-term “ROAR”
marks, as has often been stated, each case must be
Ser No. 77707445
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considered on its own merits based on evidence of record at
the time registration is sought. See In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001); and
In re Scholastic Testing Service, Inc., 196 USPQ 517 (TTAB
1977). We obviously are not privy to the record in the
previous applications and, in any event, the approval of
those applications by the Examining Attorney cannot control
the result of this appeal.
Quite simply, the dominant portion of applicant’s mark
is identical to the dominant portion of the cited mark in
appearance, sound, connotation and commercial impression.
While we have not overlooked the stylization and the design
elements in the marks, applicant’s disclaimer of MEDIA
because it is a descriptive term, or applicant’s arguments
regarding the weakness of the term ROAR, we nonetheless
conclude that applicant’s mark and the cited marks, when
considered in their entireties, are substantially similar due
to the shared term ROAR.
Thus, the factor of the similarity of the marks favors
a finding of likelihood of confusion.
Relatedness of Services/Channels of Trade/ Conditions of
Sale

We now consider the du Pont factors which pertain to
the similarity or dissimilarity of the services, channels
Ser No. 77707445
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of trade and classes of purchasers. It is well settled
that the question of likelihood of confusion must be
determined based on an analysis of the services recited in
applicant’s application vis-à-vis the services identified
in the cited registrations. Hewlett-Packard Co. v. Packard
Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir.
2002); and In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1690 n. 4 (Fed. Cir. 1993). Where the services in
the involved application and/or the cited registration are
broadly identified as to their nature and type, such that
there is an absence of any restrictions as to the channels
of trade or classes of purchasers, it is presumed that in
scope the recitation of services encompasses not only all
the services of the nature and type described therein, but
that the identified services are offered in all channels of
trade which would be normal therefor, and that they would
be purchased by all potential buyers thereof. In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981).
In this case, we compare applicant’s “public relations
services, namely, providing public relations services to
professional services firms” with registrant’s “promoting
the goods and services of others by providing hypertext
links to other web sites; [and] providing on-line directory
information services also featuring hyperlinks to other
Ser No. 77707445
15
websites.” In analyzing the relatedness of the services,
it is not necessary that the services of applicant and the
services of the registrant be similar or even directly
competitive to support a finding that there is a likelihood
of confusion. It is sufficient that the respective
services are related in some manner and/or that the
conditions surrounding their marketing are such that they
would be encountered by the same persons under
circumstances that could, because of the similarity of the
marks used in connection therewith, give rise to the
mistaken belief that they emanate from or are associated
with a single source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1795 (TTAB 1993); In re International
Telephone and Telegraph Corp., 197 USPQ 910, 911 (TTAB
1978). The issue, of course, is not whether purchasers
would confuse the services, but rather whether there is a
likelihood of confusion as to the source of the services.
In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In making our comparison, it is significant to note
that applicant’s services, as identified, though limited to
professional service firms, remain broadly worded so as to
encompass all types of public relations services, which by
definition would include “[t]he methods and activities used
to establish and promote a favorable relationship with the
Ser No. 77707445
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public.”5 We also note the examining attorney’s statement
that “[t]he services of ‘promoting the goods and services
of others by providing hypertext links to the websites of
others’ … are the equivalent of placing advertisements on
websites or use of Internet advertising in order to promote
the goods and services of others. It is essentially the
Office’s language for advertising services that are
conducted via the Internet.” Ex. Atty. br. unnumbered pp.
6-7. Applicant does not dispute this statement and, in
fact, couches some of its arguments with respect to those
services as Internet promotion.
The examining attorney maintains that “given the
prevalence of the Internet in daily life, the services of
public relations and advertising have evolved to include

5 American Heritage® Dictionary of the English Language,
retrieved at education.yahoo.com/reference/dictionary. We take
judicial notice of this definition; the Board may take judicial
notice of dictionary definitions including online dictionaries
which exist in printed format. See In re CyberFinancial.Net
Inc., 65 USPQ2d 17989)(TTAB 2002); University of Notre Dame du
Lac v. J.C. Gourmet Food Imports Co., Inc., 213 USPQ594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Also of record are the following additional definitions of
“public relations”: “[T]he practice or profession of
establishing, maintaining or improving a favorable relationship
between an institution or person and the public” (Encarta® World
English Dictionary [North American Edition] (2009)
(http://encarta.msn.com/encnet/features/dictionary/), Exh. B to
applicant’s response to office action filed December 28, 2009);
and “the business of inducing the public to have understanding
for and goodwill toward a person, firm, or institution….”
(Merriam-Webster Online retrieved January 22, 2010 at
www.merriam-webster.com, Exhibits to final Office Action issued
January 22, 2010).
Ser No. 77707445
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the use of the Internet as well as traditional print,
television and radio media.” Id., p. 7. To support this
contention, she has referenced a webpage from the website
AZhttp, Inc.6 which states in part: “Start a new business,
grow a business, or increase the value of your traditional
marketing efforts. AZhttp’s unique approach to marketing
uses systems engineering principles to integrate
traditional public relations, marketing and advertising
techniques, with Internet marketing, video solutions,
Internet advertising and Internet public relations
methodologies.”
As further evidence of the relatedness of the
services, the examining attorney has made of record copies
of web pages showing use of marks such as AZhttp, Inc.,
Politic280.com, Kirk Communications and Tiziani Whitmyre as
the source of both public relations and Internet marketing
services. Excerpts from the web pages follow:
… We help clients reach and exceed their goals
by developing and implementing marketing
strategies and public relations campaigns to
effect growth, increase revenue and profits and
achieve a superior return on investment.
***
… AZhttp, Inc. [does] business as an
advertising, marketing and public relations
agency ….
***

6 Retrieved on January 22, 2010, from a search of the Google
search engine cache of http://www.azttp.com.
Ser No. 77707445
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Integrated Marketing Solutions including Local
Marketing, Social Media Marketing, Small
Business Marketing, Search Engine Optimization,
(SEO), Internet Marketing, Consulting Services,
Internet Strategy, Directory Submissions,
Print, Video, Direct Mail, Radio, Television
and more.
(www.azhttp.com)

Politics280.com lists Online Public Relations,
Internet marketing, Internet visibility as
service areas.
(http://politics280.com/online-public-
relations.html)

Kirk Communications list as services areas
Public Relations and Interactive Media
(www.kirkcommunications.com)

Tiziani Whitmyre is describe on its website as
“an advertising, public relations, and Internet
marketing company offering interactive
marketing, PR, website design, graphic design,
e-mail marketing, advertising, direct response,
corporate branding, search engine marketing,
search engine optimization (SEO), and ROI
Marketing services.”
***
… “We know your business and markets with deep
experience in the analytical instruments,
biotechnology, facility management, healthcare,
technology, life science, manufacturing,
professional services, retail and financial
services industries.”
(www.tizinc.com)

The examining attorney also has made of record copies
of several use-based, third-party registrations showing
that a single entity has registered the same mark for
services of the type identified in both applicant’s
application and the cited registrations. Third-party
registrations that individually cover different items and
Ser No. 77707445
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that are based on use in commerce serve to suggest that the
listed goods and services are of a type that may emanate
from a single source. See Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988) (Although third-party
registrations are “not evidence that the marks shown
therein are in use on a commercial scale or that the public
is familiar with them, [they] may nonetheless have some
probative value to the extent that they may serve to
suggest that such goods or services are of a type which may
emanate from a single source”). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
These registrations include, by way of example:
Registration No. 3274644 for, inter alia, “public
relations services, namely, media relations and
crisis communications counsel” and “internet-
based marketing and technology-enabled business
development, namely, providing informational web
pages designed to generate sales traffic via
hyperlinks to other web sites”;

Registration No. 3301759 for, inter alia, “public
relations services, namely media relations and
crisis communications counsel,” “ Internet-based
marketing and technology-enabled business
development, namely, providing informational web
pages designed to generate sales traffic via
hyperlinks to other web sites” and “brand concept
and development for others in all fields”;7

Registration No. 3359612 for, inter alia, “public
relations services” and “providing on-line

7 We acknowledge the common ownership of Registration Nos.
3274644 and 3301759.
Ser No. 77707445
20
directory information services also featuring
hyperlinks to other web sites”; and

Registration No. 3367020 for, inter alia,
“providing public relations services” and
“providing online directory information services
also featuring hyperlinks to other websites.

Based on the nature of the services, as identified,
and the evidence of record,8 we are fully convinced that
registrant’s services of promoting the goods and services
of others and providing on-line directory information via
hypertext links to the websites of others are closely
related to applicant’s public relations services and that
the respective services are commonly offered under the same
mark by a single entity. We further find, as demonstrated
by the definition of public relations and the Internet
materials introduced by the examining attorney, that public
relations services often include the services of promoting
the goods and services of others via hypertext links. In
making these findings we make clear that while applicant’s
services are limited to “professional service firms,” the
registrant’s services are not so limited and, as such, are
presumed to be offered to professional services firms.

8 We find the public relations services as referenced in the
Internet materials and third-party registrations broad enough to
encompass applicant’s identified services of providing public
relations services to professional services firms.

Ser No. 77707445
21
Indeed, applicant’s own specimen of record confirms our
findings.
The specimen states, in pertinent part:
our method
***
2. A Comprehensive, Holistic Approach. Our
integrated programs effectively communicate our
client’s message to their target audiences through
all relevant print, broadcast and online touch
points.

***

4. A World-Class Team. As seasoned journalists,
public relations experts, and business strategists
with direct experience and proven track records
within the industries our clients need to influence,
we are uniquely positioned to reach the movers and
shakers who can make our clients’ goals tomorrow’s
headlines.

We find unconvincing applicant’s argument that “public
relations … are a unique and specialized service that
cannot be lumped together with optimizing web traffic.”
Applicant’s categorization of the cited Internet-based
services as “optimizing web traffic” is overly narrow. See
In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB
1986) (applicant may not restrict the scope of the goods
covered in the cited registration by argument or extrinsic
evidence). Moreover, the evidence clearly demonstrates
that Internet-based advertising services and, in
particular, the cited promoting of the goods and services
Ser No. 77707445
22
of others via hyperlinks, are included in the methods and
activities entities use to establish and promote a
favorable relationship with the public.
Furthermore, in the absence of any limitations in the
identification as to channels of trade and classes of
purchasers in the cited registration, we must presume that
the services will be purchased in the usual channels of
trade for such services and by the usual classes of
purchasers for those services, including those seeking
public relation services in the field of professional
services. Thus, at a minimum, the classes of purchasers
overlap. In re Elbaum, 211 USPQ at 240.
Accordingly, the du Pont factors of relatedness of the
services and classes of purchasers favor a finding of
likelihood of confusion.
Conditions of Sale
Applicant also argues that sophisticated purchasing of
the respective services eliminates any likelihood of
confusion. Applicant particularly contends that its
identification of services specify that the scope of its
mark will be limited to sophisticated, professional
consumers, namely, individuals or institutions offering
professional services which have a need to improve their
relationship with the public, and that “public relations
Ser No. 77707445
23
firms are often selected based on careful consideration of
personal factors, such as media contacts and experience.”
Reply br. p. 4. Applicant further contends that “the cited
registrants also provide their respective services to
professional consumers: in one case to owners/operators of
businesses having an e-commerce component and in the other
to owners/operators of entertainment businesses. According
to applicant, “[t]hese types of customers can certainly
distinguish between a public relations firm, an
entertainment management firm, and a web-tech consulting
firm.”9 Br. p. 10.
We find applicant’s arguments unavailing. Applicant
does not provide any evidence regarding the decision-making
process used by these purportedly professional consumers,
the role trademarks play in their decision making-process,
or how observant and discriminating they are in practice.
Accordingly, the problem with applicant’s argument is that
there is no corroborating evidence. See Refreshment
Machinery Inc. v. Reed Industries, Inc., 196 USPQ 840, 843
(TTAB 1977) (selling to a sophisticated purchaser does not
automatically eliminate the likelihood of confusion because

9 By this argument, applicant has improperly classified
registrant’s services into a distinct field and/or industry;
there are no such limitations in the recitation of services.

Ser No. 77707445
24
“[i]t must also be shown how the purchasers react to
trademarks, how observant and discriminating they are in
practice, or that the decision to purchase involves such
careful consideration over a long period of time that even
subtle differences are likely to result in recognition that
different marks are involved”).
In any event, even knowledgeable and careful
purchasers can be confused as to source, where, as here,
very similar marks are used in connection with closely
related services. See In re Research Trading Corp., 793
F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) citing Carlisle
Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d
1403, 168 USPQ 110, 112 (CCPA 1970) ("Human memories even
of discriminating purchasers … are not infallible.").
We thus find this du Pont factor neutral.
In conclusion, after careful consideration of the
arguments and all of the evidence of record, we conclude
that in view of the substantial similarity in the
commercial impressions of applicant’s mark and the cited
mark, their contemporaneous use on closely related services
is likely to cause confusion as to the source or
sponsorship of such services.
Registration No. 3015285 -ROAR
Ser No. 77707445
25
Although we have found applicant’s ROAR and abstract
lion head design mark confusingly similar to the cited
mark, for purposes of completeness, we will consider
the Section 2(d) refusal with regard to the second cited
mark, ROAR, in standard character form.
We first consider the marks, keeping in mind that in
determining the similarity or dissimilarity of the marks,
we must consider them in their entireties in terms of
sound, appearance, meaning and commercial impression. See
Palm Bay Imports, supra. Here, we compare applicant’s ROAR
and abstract lion head mark with the cited standard
character mark ROAR. For the reasons discussed previously,
we find that the term ROAR dominates applicant’s mark and,
we note further, that that dominant portion is identical to
the cited mark. We accordingly find the marks
substantially similar in appearance, sound, connotation and
commercial impression.
As fully explained earlier in this decision,
applicant’s arguments to the contrary are unavailing.
Moreover, with particular respect to applicant’s contention
that the stylization of its mark is distinguishing, and
since not addressed earlier, we point out that registrant’s
mark is in standard character format and, thus, could be
displayed in lettering similar to that of applicant’s mark.
Ser No. 77707445
26
See, e.g., Citigroup Inc. v. Capital City Bank Group Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011)
(“If the registrant … obtains a standard character mark
without claim to any particular font style, size or color,
the registrant is entitled to depictions of the standard
character mark regardless of font style, size, or color….”
(internal quotation marks omitted)).
While differences admittedly exist between the
respective marks when viewed on the basis of a side-by-side
comparison, we find that in their entireties, the marks are
not only substantially similar in appearance due to the
shared term ROAR but, in light thereof, they are
substantially similar in connotation and convey a
substantially similar commercial impression. Thus, the
factor of the similarity of the marks favors a finding of
likelihood of confusion.
Turning then to a discussion of the services, we
compare applicant’s “public relations services, namely
providing public relations services to professional service
firms with registrant’s “management of performing artists;
brand representation and brand management services, namely,
management and administration of licensing, merchandising
Ser No. 77707445
27
and endorsement programs for the brands of others.”10 In
support of her position that the services are related, the
examining attorney has submitted:11
A. Copies of web pages showing use of the marks
AZhttp and Tiziani Whitmyre as the source of public
relations and brand development services. Excerpts from
these web pages follow:
Arizona High Tech Talent Partnership
provides integrated marketing solutions aimed
at generating leads, increasing sales,
improving return on investment, and developing
brand awareness for commercial businesses and
non-profit organizations.
***
… We help clients reach and exceed their goals
by developing and implementing marketing
strategies and public relations campaigns to
effect growth, increase revenue and profits and
achieve a superior return on investment.
***
… AZhttp, Inc. [does] business as an
advertising, marketing and public relations
agency ….
(www.azhttp.com)

Tiziani Whitmyre is describe on its website as
“an advertising, public relations, and Internet
marketing company offering interactive

10 Since the examining attorney has focused the discussion on
registrant’s Class 35 services noted above, we will do the same.
11 Some of the supporting references are the same as those
submitted in support of the relatedness of the services in cited
Registration No. 2688826. They are repeated here for ease of
reading.
In addition, we reiterate that we find the public relations
services as referenced in the Internet materials and third-party
registrations broad enough to encompass applicant’s identified
services of providing public relations services to professional
services firms.

Ser No. 77707445
28
marketing, PR, website design, graphic design,
e-mail marketing, advertising, direct response,
corporate branding, search engine marketing,
search engine optimization (SEO), and ROI
Marketing services.”

B. Copies of use-based, third party registrations
showing either public relations services as including brand
management services or that a single entity has registered
the same mark for services of the type identified in both
applicant’s application and the cited registrations.
These registrations include:
Registration No. 2968910 for, “Public relations
and marketing consulting services, namely,
providing communications and brand management
services”;

Registration No. 3026842 for, inter alia, “public
relations services” and business marketing
consulting in the field of brand development and
brand management”; and

Registration No. 3301759 for, inter alia, “public
relations services, namely media relations and
crisis communications counsel,” “ Internet-based
marketing and technology-enabled business
development, namely, providing informational web
pages designed to generate sales traffic via
hyperlinks to other web sites” and “brand concept
and development for others in all fields”.

Based on the nature of the identified services, we
find that the two websites showing the use of the same mark
in connection with, inter alia, both public relations
services and brand management services, together with the
three third-party registrations is sufficient evidence to
Ser No. 77707445
29
conclude that the services are sufficiently related that,
if identified by similar marks, confusion as to source is
likely. In addition, we find that the definition of
“public relations” together with the evidence of record
demonstrate that public relations services often encompass
the services of brand representation and management. In
making our findings, we again keep in mind that
registrant’s services are not limited by field of use and,
as such, are presumed to be offered to professional
services firms.
Once more, applicant’s specimen of record confirms our
findings. The pertinent excerpt follows:
our method
…

4. A World-Class Team. As seasoned journalists,
public relations experts, and business strategists
with direct experience and proven track records
within the industries our clients need to influence,
we are uniquely positioned to reach the movers and
shakers who can make our clients’ goals tomorrow’s
headlines.

These pillars are not some abstract conceit: they
are the bedrock of our company, the unfailing
compass that keeps us on track from day one as we
immerse ourselves in our clients’ businesses to help
them:

• Launch their companies, divisions, products and
services
• Raise both B2B and B2C awareness, as required
Ser No. 77707445
30
• Build brands
• Stimulate demand
• Generate leads
• Position and/or reposition their companies
• Attract investors
• Manage reputation and crises

Applicant nonetheless essentially asserts that the
respective services are directed to different classes of
consumers; applicant’s services being limited to providing
public relations services in the professional services
field whereas registrant’s services relate to management of
performing artists and brand management in the
entertainment industry. We find this argument unavailing.
Although the registrant’s management services are limited
to performing artists, the recited brand development and
brand management services contain no such limitation. As
stated, applicant may not limit the scope of the services
by argument. Furthermore, inasmuch as registrant’s brand
development and brand management services are not limited
to any specific classes of consumers, we must presume that
they will be offered to the usual consumers for such
services, included those seeking such services in the
professional services field. We thus find that, at a
minimum, the classes of consumers overlap.
Ser No. 77707445
31
Last, for the reasons fully discussed above, we are
not persuaded on this record that the purported
sophistication of the respective purchasers would overcome
the likelihood of confusion.
When we consider the record and the relevant
likelihood of confusion factors, and all of applicant’s
arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that in view of
the substantial similarity in the commercial impressions of
applicant’s mark, ROAR and abstract lion head design, and
registrant’s mark ROAR, their contemporaneous use on the
involved services is likely to cause confusion as to the
source or sponsorship of such services.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed as to both Registration
No. 2688826 and Registration No. 3015285.