Robbie H. Phillips

Trademark Trial and Appeal Board

May 26, 2010

No. 77277484 (T.T.A.B. May. 26, 2010)

Hearing: Mailed:
March 17, 2010 May 26, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

In re Robbie H. Phillips
_______

Serial No. 77277484
_______

Ahmand R. Johnson of Shutts & Bowen LLP for Robbie H.
Phillips.

Jenny Park, Trademark Examining Attorney, Law Office 104
(Michael Baird, Managing Attorney).
_______

Before Quinn, Grendel and Zervas, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Introduction.
Robbie H. Phillips (“applicant”) has filed an
application seeking registration on the Principal Register
of the mark SIREN (in standard character form) for goods
and services identified in the application as: “Pre-
recorded audio cassette tapes, video cassette tapes,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 77277484
2
phonograph records and digital media, namely, CDs, DVDs and
downloadable audio files featuring music and spoken words,”
in Class 9; and “entertainment in the nature of live
performances by a single death metal rock group; production
of musical recordings for entertainment,” in Class 41.1
The Trademark Examining Attorney has issued a final
refusal of registration of applicant’s mark as to each
class of goods and services, on the ground that the mark,
as applied to the goods and services identified in the
application, so resembles the mark SIREN MUSIC FESTIVAL,
previously registered on the Principal Register (in
standard character form; MUSIC FESTIVAL disclaimed) for
services identified in the registration as “entertainment,

1 Ser. No. 77277484, filed on Sept. 12, 2007. The
application is based on use in commerce under Trademark Act
Section 1(a), 15 U.S.C. §1051(a). The application sets forth
July 7, 1984 as the date of first use of the mark, and August 14,
1984 as the date of first use of the mark in commerce.
We note that at footnote 1 of her brief on appeal, the
Trademark Examining Attorney states that “[t]he applicant amended
its [sic - his] recitation of services in International Class 41
with its [sic] brief. The proposed amendment has been accepted
into the record.” Although we have been unable to locate the
amendment request itself in the file record, review of the
Office’s automated database confirms that the amendment has been
entered. In view thereof, and in view of the Trademark Examining
Attorney’s apparent approval of the amendment, our determination
of this appeal with respect to the Class 41 services shall be
based on the services as amended during appeal, i.e.,
“entertainment in the nature of live performances by a single
death metal rock group; production of musical recordings for
entertainment.” (Prior to the amendment, the Class 41
identification of services was “entertainment in the nature of
live performances by a rock group; production of musical
recordings for entertainment.”)
Ser. No. 77277484
3
namely, live music concerts,”2 as to be likely to cause
confusion. Trademark Act Section 2(d), 15 U.S.C. §1052(d).
Applicant has appealed the final refusal. Applicant
and the Trademark Examining Attorney have filed appeal
briefs. An oral hearing at which applicant’s counsel and
the Trademark Examining Attorney presented arguments was
held on March 17, 2010.
After careful consideration of all of the evidence of
record and the arguments of counsel, and for the reasons
discussed below, we affirm the Section 2(d) refusals to
register as to both applicant’s Class 9 goods and
applicant’s Class 41 services.

Class 41 Refusal.
We begin our Section 2(d) analysis with the Class 41
services identified in the application as “entertainment in
the nature of live performances by a single death metal
rock group.”
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the

2 Reg. No. 2823190, issued on March 16, 2004. Section 8
affidavit accepted; Section 15 affidavit acknowledged. April 16,
2001 is set forth in the registration as the date of first use of
the mark and the date of first use of the mark in commerce.

Ser. No. 77277484
4
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).

Comparison of the Marks.
Under the first du Pont factor, we determine the
similarity or dissimilarity of applicant’s mark and the
cited registered mark when viewed in their entireties in
terms of appearance, sound, connotation and commercial
impression. Palm Bay Imports, Inc., supra. 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 goods or services
offered under the respective marks is likely to result.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).
Ser. No. 77277484
5
The mark applicant seeks to register is SIREN (in
standard character form).3 The cited registered mark is
SIREN MUSIC FESTIVAL (registered in standard character
form, MUSIC FESTIVAL disclaimed).
Initially, we find that the dominant feature in the
commercial impression created by the cited registered mark
SIREN MUSIC FESTIVAL is the word SIREN. It is settled that
although the marks at issue must be considered in their
entireties, 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 Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed.
Cir. 2004); In re National Data Corp., 753 F.2d 1056, 224
USPQ 749 (Fed. Cir. 1985).
In this regard, the record on appeal includes a
dictionary definition of “music festival” (from
www.dictionary.com) which defines the term as “an
entertainment event featuring a number of musical
performers or bands of a certain genre or centered on a

3 At page 2 of his brief, applicant argues that we must take the
design elements of applicant’s mark (presumably as depicted on
applicant’s specimens) into account in our comparison of the
marks. However, any such design elements of applicant’s mark are
irrelevant to our analysis because applicant seeks registration
of the mark in standard character form, with no design elements
appearing in the application drawing of the mark.
Ser. No. 77277484
6
theme.” Based on this evidence, we find that the
disclaimed term MUSIC FESTIVAL in the cited registered mark
has little or no source-indicating significance in that
mark as applied to the registrant’s “entertainment, namely
live music concerts.” That is, the term MUSIC FESTIVAL
informs purchasers what the services are (live music
concerts), but it does not aid the purchaser in identifying
and distinguishing the source of those services. In
contrast, we find that the word SIREN in the registered
mark is an arbitrary, highly distinctive term as applied to
the services, and that it readily would be used by
purchasers as the means of identifying and distinguishing
the source of the services.
In short, we find that when the registered mark is
considered in its entirety, the word SIREN dominates the
commercial impression of the mark and the mark’s function
as the indication of the source of registrant’s services.
We do not ignore the term MUSIC FESTIVAL in the cited
registered mark, but we find that the arbitrary word SIREN
dominates the mark, and we therefore shall accord it more
weight in our comparison of that mark to applicant’s mark
under the first du Pont factor. See In re Chatam
Ser. No. 77277484
7
International Inc., supra; In re National Data Corp.,
supra.4
We next find that applicant’s mark SIREN and the cited
registered mark SIREN MUSIC FESTIVAL are dissimilar in
terms of appearance, sound, connotation and commercial
impression to the extent that the cited registered mark,
but not applicant’s mark, includes the non-distinctive term
MUSIC FESTIVAL. However, we also find that the two marks
are essentially identical in terms of appearance, sound,
connotation and commercial impression to the extent that
the arbitrary word SIREN appears in both marks, as the
dominant feature of the cited registered mark and as the
whole of applicant’s mark.
When we compare the marks in their entireties, we find
that the dissimilarities which result from the presence of
the non-distinctive term MUSIC FESTIVAL in the cited
registered mark are greatly outweighed by the presence in
both marks of the arbitrary and highly distinctive word
SIREN. The marks are identical but for the presence of the
non-distinctive term MUSIC FESTIVAL in the cited registered
mark, and we find that the absence of that term from

4 We are not persuaded by applicant’s argument at page 3 of his
brief that “the dominant central portion of the Cited Mark is the
weak generic term MUSIC.”
Ser. No. 77277484
8
applicant’s mark does not suffice to distinguish the two
marks as indications of source.
For these reasons, we find that applicant’s SIREN mark
and the cited registered SIREN MUSIC FESTIVAL mark are
similar for purposes of the first du Pont factor. We
therefore find that the first du Pont factor weighs in
favor of a finding of likelihood of confusion.

Comparison of the Services, Trade Channels and Purchasers.

The second du Pont factor requires us to determine the
similarity or dissimilarity of the goods and/or services as
identified in applicant’s application and in the cited
registration, respectively. Under the third du Pont factor
we determine the similarity or dissimilarity of the trade
channels in which and the purchasers to whom the respective
goods and/or services would be marketed.
To review, applicant’s services (those pertinent to
the present discussion) are identified as “entertainment in
the nature of live performances by a single death metal
rock group.” The services identified in the cited
registration are “entertainment, namely, live music
concerts.”
Initially, we find that in the context of music
entertainment services, “live performances” (as identified
Ser. No. 77277484
9
in applicant’s application) are the same thing as “live
music concerts” (as identified in the cited registration).
We find, for purposes of this proceeding involving the
registrability of applicant’s mark, that applicant’s “live
performances by a single death metal rock group” are
encompassed within and thus legally identical to the
broadly-identified “live music concerts” covered by the
cited registration. We also presume and find that these
legally identical services are or could be marketed in the
same trade channels and to the same classes of purchasers.
Applicant argues that his musical concert services and
registrant’s musical concert services are dissimilar
because they feature “vastly different” music genres with
correspondingly different trade channels and purchasers,
i.e., applicant’s “death metal rock” versus what applicant
asserts (without supporting evidence) to be the
registrant’s “indie and alternative rock.” Applicant also
argues that applicant’s and registrant’s respective musical
concert services are dissimilar because they are presented
in different concert formats, i.e. registrant’s concerts
feature multiple performers,5 while applicant’s concerts

5 As noted above in connection with our comparison of the marks,
applicant relies on a dictionary entry which defines “music
festival” as “an entertainment event featuring a number of
musical performers or bands of a certain genre or centered on a
theme.”
Ser. No. 77277484
10
feature only a single performer, presumably applicant’s
band.6 Both of these arguments appear to be based on
applicant’s voluntary amendment of his identification of
services (in conjunction with his appeal brief; see above
at footnote 1) to narrow the scope of his services from
“entertainment in the nature of live performances by a rock
group” to “entertainment in the nature of live performances
by a single death metal rock group.”
Both of these arguments are unavailing. Although
applicant, by amendment, has narrowed his musical concert
services to a single music genre and a single concert
format, no such limitations appear in the identification of
services in the cited registration. The Board has held:

Where the goods in the application at issue
and/or in 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 and no limitation as to
the classes of purchasers, it is presumed that in
scope the identification of goods encompasses not
only all the goods of the nature and type
described therein, but that the identified goods
are offered in all channels of trade which would
be normal therefor, and that they would be
purchased by all potential buyers thereof.

6 As an aside, we note that reading applicant’s amended
identification of services in this manner, i.e., as limiting
applicant’s services to concerts at which only applicant’s band
would be performing, would seem to preclude applicant’s band from
ever being an opening act, or having an opening act, at a concert
at which applicant’s band is performing. However, in this case
we take the amended identification of services as it stands.
Ser. No. 77277484
11

In re La Peregrina Ltd., 86 USPQ2d 1645, 1646 (TTAB 2008).
In our comparison of applicant’s services to the
registrant’s services, “…it is the identification of goods
[and/or services] that controls, not what extrinsic
evidence may show about the specific nature of the goods
[and/or services]. ... An applicant may not restrict the
scope of the goods [and/or services] covered in the cited
registration by argument or extrinsic evidence.” Id.
We therefore must presume that registrant’s broadly-
identified “entertainment, namely live music concerts”
would encompass concerts featuring any genre of music,
including applicant’s death metal rock genre. We also must
presume that registrant’s concert services, as broadly
identified in the cited registration, are not limited to
concerts featuring multiple performers or bands, but would
encompass any concert format, including applicant’s “single
band” format.
Finally, applicant argues (at page 4 of his brief)
that “...the fact that the Applicant’s Mark and the Cited
Mark are related to music should not bar registration.
Music is a vast field, including diverse areas such as
festivals, instrument manufacture, instrument sales, music
production, songwriting and performances. It would be
Ser. No. 77277484
12
unfair to allow one mark to monopolize a vast field of
goods and services merely because it was related to music.”
This argument is unpersuasive in this case, not least
because applicant’s and registrant’s respective services
are not just broadly “related to music,” they are the same
particular services within that broad field, i.e., live
music performances and concerts.
In short, because applicant’s services as identified
in the application are encompassed within the registrant’s
services as identified in the cited registration, we find
that the respective services are legally identical for
purposes of this proceeding involving the registrability of
applicant’s mark. See In re La Peregrina, supra. We also
presume and find that these legally identical services
would be marketed in the same trade channels and to the
same classes of purchasers. See In re Smith & Mehaffey, 31
USPQ2d 1531 (TTAB 1994); In re Elbaum, 211 USPQ 639 (TTAB
1981).
For all of these reasons, we find that applicant’s and
registrant’s respective services, trade channels and
purchasers are legally identical, and that the second and
third du Pont factors therefore weigh in favor of a finding
of likelihood of confusion in this case.

Ser. No. 77277484
13
Strength of the Cited Registered Mark.
We turn next to the sixth du Pont factor (raised by
applicant), under which we consider evidence pertaining to
the number and nature of similar marks in use on similar
goods and/or services. Evidence of widespread actual use
of similar marks on similar goods and/or services would
tend to narrow the scope of protection afforded to the
cited registered mark, and would weigh against a finding of
likelihood of confusion under the sixth du Pont factor.
See In re Broadway Chicken Inc., 38 USPQ2d 1559 (TTAB
1996); see also Palm Bay Imports, Inc., supra; In re Davey
Products Pty Ltd., 92 USPQ2d 1198 (TTAB 2009). In this
case, however, we find that there is no such evidence of
actual third-party use of SIREN marks in connection with
the relevant services, i.e., entertainment in the nature of
live music performances.
Applicant has made of record copies of fourteen third-
party registrations of marks which applicant describes as
“having the term ‘SIREN’.” Based on this evidence,
applicant argues (at pages 5 and 6 of his brief) that
“...it is well settled that a mark lacks strength and
distinctiveness where there is a crowded field”; that in
this case “the fact that there appears to be a crowded
field [of SIREN marks] suggests that there is room for
Ser. No. 77277484
14
another mark in the field”; and that “...given the large
number of marks incorporating the term ‘SIREN’ in the
field, the Cited Mark is afforded weak protection, and even
the slight differences in marks and/or goods should permit
registration.”
We are not persuaded by applicant’s arguments. First,
it is settled that third-party registrations of marks are
not in themselves probative evidence of actual third-party
use of those marks in the marketplace, for purposes of the
sixth du Pont likelihood of confusion factor. See Olde
Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d
1542 (Fed. Cir. 1992); In re Davey Products Pty Ltd.,
supra, 92 USPQ2d at 1204.7
Moreover, most of the third-party SIREN registrations
submitted by applicant would have no probative value even
if they could be considered to be evidence of third-party
use under the sixth du Pont factor, because they cover
goods and/or services which are far afield from the goods
and services at issue in the present case. Only four of
the registrations cover music-related goods and/or

7 Compare In re Broadway Chicken Inc., supra, upon which
applicant relies, where in addition to third-party registration
evidence there was plentiful evidence of actual marketplace use
of the term BROADWAY in connection with restaurant services. No
such evidence of actual use of SIREN marks in the music field is
of record in the present case.

Ser. No. 77277484
15
services,8 and of those, one (THE VILLAGE VOICE SIREN MUSIC
FESTIVAL) is owned by the owner of the cited registration
in this case, and two others are of a single mark (SIRENS
OF TI) owned by a single owner.
In short, applicant’s “crowded field” argument is
unsupported by the evidence of record. As discussed above
in connection with our comparison of the marks, we find
that the dominant word SIREN in the cited registered mark
is arbitrary and highly distinctive as applied to the goods
and services at issue here. Nothing in the record supports
a contrary finding, nor applicant’s contention that the
scope of protection to be afforded to the cited registered
mark should be narrowed due to widespread third-party use
of similar marks on similar goods and services.
For these reasons, we find that the sixth du Pont
factor does not weigh in applicant’s favor, but rather is

8 These registrations are:
1. Reg. No. 3176378: THE VILLAGE VOICE SIREN MUSIC
FESTIVAL for “entertainment, namely live music concerts.” The
Office’s records show that this registration is owned by the
owner of the cited registration in this case.
2. Reg. No. 3035852: SIRENS OF TI for “pre-recorded CD’s,
video tapes and DVDs featuring music and theatrical
performances.” (Owned by Treasure Island Corp.)
3. Reg. No. 3054331: SIRENS OF TI for “entertainment
services namely live performances of actors, dancers, stunt
performers, swimmers, and acrobats with live special effects and
prerecorded music.” (Owned by Treasure Island Corp.)
4. Reg. No. 3126596: SEA SIREN for “compact discs
featuring music.”
Ser. No. 77277484
16
neutral in our likelihood of confusion analysis in this
case.

The SYRENZ Registrations.
Under the miscellaneous thirteenth du Pont factor, we
consider any other evidence in the record which is
pertinent to our likelihood of confusion determination. In
this case, we shall address under this factor applicant’s
argument relating to two (now-cancelled) third-party
registrations of the mark SYRENZ.
The file of applicant’s application shows that, in
addition to the cited SIREN MUSIC FESTIVAL registration
involved in this appeal, two other registrations, of the
mark SYRENZ for Class 9 “prerecorded compact discs, audio
cassette tapes and video cassette tapes featuring music and
spoken words” (Reg. No. 2930826), and of the mark SYRENZ
for Class 41 “entertainment services in the nature of live
performances by a musical group” (Reg. No. 2933407), also
were initially cited by the Trademark Examining Attorney as
Section 2(d) bars to registration of applicant’s mark. The
two registrations were owned by the same owner. During a
suspension of prosecution of the present application,
applicant successfully petitioned to cancel those two
Ser. No. 77277484
17
registrations.9 The Trademark Examining Attorney
subsequently withdrew her Section 2(d) refusals as to those
registrations.
Applicant notes correctly that the two SYRENZ
registrations were issued after the issuance of and despite
the prior existence on the Register of the cited SIREN
MUSIC FESTIVAL registration involved in this appeal.
Applicant further notes that the owner of the cited SIREN
MUSIC FESTIVAL registration did not oppose registration of
or petition to cancel the two SYRENZ registrations.
Applicant argues that the two SYRENZ registrations and the
cited SIREN MUSIC FESTIVAL registration co-existed on the
Register for three years and would still be co-existing but
for applicant’s cancellation of the two SYRENZ
registrations. Applicant argues that his SIREN mark
likewise should be allowed to co-exist on the Register with
the cited SIREN MUSIC FESTIVAL registration.
This argument is not persuasive. We are not bound by
or influenced by the apparent decision (whether appropriate

9 Cancellation Nos. 92048103 and 92048776. The Board’s records
show, and applicant’s counsel acknowledged at the oral hearing in
this case, that applicant prevailed as petitioner in the two
cancellation proceedings as a result of the entry of default
judgment in each case. Default judgment was entered after the
Board was unable to locate the owner of the registrations and
therefore served notice of the petitions to cancel by publication
in the Official Gazette, with no response by the owner of the
registrations.
Ser. No. 77277484
18
or not) of the Trademark Examining Attorney who examined
the two SYRENZ registrations to allow those registrations
to issue over the SIREN MUSIC FESTIVAL registration. Nor
are we bound by or influenced by the apparent decision or
failure of the owner of the SIREN MUSIC FESTIVAL not to
oppose or petition to cancel the two SYRENZ registrations
(assuming that the owner was even aware of those
registrations). Rather, our decision in this case is based
on the facts presented in this case. See In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001). We
find that the fact that the two SYRENZ registrations and
the cited SIREN MUSIC FESTIVAL registration apparently co-
existed on the Register for a time does not support or
warrant the issuance to applicant of a registration of his
SIREN mark. Cf. In re Davey Products Pty Ltd., supra; In
re Wilson, 57 USPQ2d 1863 (TTAB 2001).

Class 41 Refusal - Conclusion.
After considering all of the evidence and applicant’s
arguments, and for all of the reasons discussed above, we
conclude that the weight of the evidence pertaining to the
du Pont factors suffices to establish that a likelihood of
confusion exists as to applicant’s Class 41 services. We
have considered applicant’s arguments to the contrary but
Ser. No. 77277484
19
we are not persuaded by them. To the extent that any
doubts might exist as to the correctness of our conclusion
that confusion is likely, we resolve such doubts against
applicant. See In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687 (Fed. Cir. 1993); In re Hyper Shoppes (Ohio)
Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
Accordingly, we affirm the Section 2(d) refusal as to
Class 41.10

Class 9 Refusal.
We turn now to the Trademark Examining Attorney’s
Section 2(d) refusal as to applicant’s Class 9 goods
identified as “pre-recorded audio cassette tapes, video
cassette tapes, phonograph records and digital media,
namely, CDs, DVDs and downloadable audio files featuring
music and spoken words.” This refusal, like the Class 41

10 Our finding of likelihood of confusion as to applicant’s Class
41 “entertainment in the nature of live performances by a single
death metal rock group” warrants the affirmance of the refusal to
register as to Class 41 in its entirety. See In re La Peregrina
Ltd., supra, 86 USPQ2d at 1647. We therefore need not and do not
reach the Class 41 services identified in the application as
“production of musical recordings for entertainment.” We note
as well that applicant has never presented any specific arguments
in opposition to (nor made any mention of) the Section 2(d)
refusal as it pertains to “production of musical recordings for
entertainment.”
Ser. No. 77277484
20
refusal, is based on the existence of prior Registration
No. 2823190, which is of the mark SIREN MUSIC FESTIVAL for
“entertainment, namely, live music concerts.”11
For all of the reasons discussed above in connection
with the Class 41 refusal, we find that applicant’s mark is
similar to the cited registered mark, that there is no
evidence of any third-party use of similar marks on similar
goods which might tend to limit the scope of protection to
be afforded the cited registered mark, and that the prior
co-existence on the Register of the cited registered mark
and the two now-cancelled SYRENZ registrations does not
warrant issuance of the registration applicant seeks. We
hereby incorporate those findings with respect to the Class
9 refusal, and we find that they weigh in favor of a
finding of likelihood of confusion.
Under the second du Pont factor (similarity of the
goods), the Trademark Examining Attorney has made of record
eight third-party registrations which include in their
identifications of goods and services both Class 9 musical

11 We note that in neither his appeal brief nor in his responses
to the Trademark Examining Attorney’s prior Office actions has
applicant presented any specific arguments in opposition to, nor
made any mention of, the Trademark Examining Attorney’s Section
2(d) refusal as to the Class 9 goods identified in his
application. Rather, applicant’s arguments have been addressed
solely to the refusal as to his Class 41 live music performance
entertainment services.

Ser. No. 77277484
21
recordings like those identified in applicant’s application
and Class 41 live music concerts and performances like
those identified in the cited registration.12 Although such
registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they
nonetheless have probative value to the extent that they
serve to suggest that the goods and/or services listed
therein are of a kind which may emanate from a single
source under a single mark. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Moreover, we find that the relatedness of applicant’s
goods and registrant’s services is further established by
the fact that applicant himself offers both types of goods
and services under a single mark, as indicated by the
identification of goods and services in his application.
Based on this evidence, we find that applicant’s Class
9 goods and the Class 41 services identified in the cited
registration are related, and that the second du Pont
factor accordingly weighs in favor of a finding of
likelihood of confusion as to those Class 9 goods.

12 Reg. Nos. 28822210, 2723643, 2835620, 3268733, 3206560,
3457173, 3487700 and 3299277.
Ser. No. 77277484
22
In summary, based on the similarity of the marks and
the relatedness of the goods and services, we conclude that
a likelihood of confusion exists as between applicant’s
Class 9 goods and the Class 41 services identified in the
cited registration. We therefore affirm the refusal to
register as to Class 9.

Decision: The Section 2(d) refusals to register as to
Class 9 and Class 41 are affirmed.