Roost Living LLC

Trademark Trial and Appeal Board

Nov 20, 2020

88186224 (T.T.A.B. Nov. 20, 2020)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: November 20, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Roost Living LLC
_____

Serial No. 88186224
_____

Wade J. Savoy of Patent GC LLC,
for Roost Living LLC.
Patty Evanko, Trademark Examining Attorney, Law Office 119,
Brett J. Golden, Managing Attorney.
_____

Before Wellington, Adlin and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Roost Living LLC, applied to register the mark ROOSTUP, in standard
characters, on the Principal Register for “roommate vetting, matching, and referral
services,” in International Class 35, and “rental of real estate; rental of apartments;
rental of real estate featuring residential co-living housing; rental of furnished and
equipped apartments; rental of real estate featuring furnished and equipped
residential co-living housing; real estate management services,” in International
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Class 36.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used
in connection with the identified services, so resembles the registered marks listed
below, owned by different entities, as to be likely to cause confusion:
ROOST, in standard characters, for “Real estate services, namely, rental
of short-term furnished apartments,” in International Class 36, and
“Hotel services; providing temporary housing accommodations;
residential hotel services,” in International Class 43;2

RENTAL ROOST, in standard characters, for “Providing an interactive
website matching potential individual renters with rental properties
based on needs and preferences regarding lifestyle, amenities, location,
and budget with rental properties available for rent from others,” in
International Class 35;3 and

for “Real estate brokerage excluding the rental of short-
term furnished apartments,” in International Class 36;4

When the refusal was made final, Applicant filed a request for reconsideration,
which was denied. Applicant then filed an appeal. The appeal is fully briefed.
We reverse the refusal.
I. Applicable Law
The fundamental purpose of Trademark Act § 2(d) is to prevent confusion as to
source, and to protect registrants from damage caused by registration of confusingly

1 Application Serial No. 88186224 was filed on November 8, 2018 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first use dates of August 1, 2017.
2 Registration No. 4637862, registered November 11, 2014; Section 8 affidavit accepted,
Section 15 affidavit acknowledged.
3 Registration No. 5066654, registered October 25, 2016.
4 Registration No. 5288744, registered September 19, 2017.
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similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ
327, 331 (1985). Our analysis is based on all of the probative evidence of record. In re
E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”). In making our determination, we consider each DuPont factor for which
there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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 and differences in the
marks.”).
A. Similarity of the Services

We begin our analysis under the second DuPont factor, which considers the
“similarity or dissimilarity and nature of the goods or services as described in an
application or registration.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
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1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). It is “not necessary
that the [services] be identical or even competitive to support a finding of a likelihood
of confusion.” Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective [services] are
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.’” Id.
The Examining Attorney asserts that Applicant’s services are identical in part to
the services in the ROOST and RENTAL ROOST registrations. 5 “Specifically, the
applicant’s Class 35 services and the services in Reg. No. 5066654 both include
roommate matching services, and the applicant’s Class 36 services and Reg. No.
4637862 both include real estate rental services.”6
We agree that the ROOST registration’s “rental of short-term furnished
apartments” services are encompassed by Applicant’s “rental of real estate,” “rental
of apartments,” and “rental of furnished and equipped apartments” services, and
therefore are legally identical in part. However, contrary to the Examining Attorney’s
contention, the RENTAL ROOST registration’s services of “providing a website
matching potential individual renters with rental properties” are not identical in
part to Applicant’s roommate matching services. The former matches renters with

5 9 TTABVUE 10 (Examining Attorney’s Brief).
6 Id.
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properties, while the latter matches roommates. Nevertheless, they are similar, since
the same consumers would use both types of services.
The Examining Attorney also asserts that Applicant’s real estate rental services
are related to the real estate brokerage services in the registration
because such services “commonly emanate from the same source.7 In support, she
provided a printout from that registrant’s website showing its “use of the mark in
connection with real estate rental services, in addition to [its] real estate brokerage
services,” as well as nine use-based third-party registrations covering both types of
services.8 While third-party registrations are not evidence that the marks shown
therein are in commercial use, or that the public is familiar with them, such
registrations that individually cover a number of different items and are based on use
in commerce may have some probative value to the extent that they serve to suggest
that the listed services are of a type which may emanate from a single source. See In
re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Applicant does not dispute or
address the alleged similarity between its services and those of the cited
registrations.
Further to the third-party registration evidence provided by the Examining

7 Id.
8 February 14, 2019 Office Action, TSDR 14-50.
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Attorney, we agree that the registration’s “real estate brokerage
excluding the rental of short-term furnished apartments” services are related to
Applicant’s real estate and apartment rental services. The second DuPont factor thus
weighs in favor of finding likelihood of confusion, and especially so in the case of the
cited ROOST registration.
B. Similarity of Trade Channels
The third DuPont factor considers “the similarity or dissimilarity of established,
likely-to-continue trade channels.” In re Detroit Athletic Co., 128 USPQ2d at 1051
(quoting DuPont, 177 USPQ at 567). Neither the Examining Attorney nor Applicant
provided evidence and argument regarding trade channels. However, in the case of
the ROOST registration, because the services are identical in part, we must also
presume that the trade channels and classes of purchasers are identical for such
services. In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because
the [services] are legally identical, they must be presumed to travel in the same
channels of trade, and be sold to the same class of purchasers.”); In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion). As
to the RENTAL ROOST and registrations, although there is no
evidence specifically addressing this point, obviously some of the people that need
housing also need roommates, and they would be expected to sometimes search for
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both at the same time. The fourth DuPont factor thus weighs in favor of finding
likelihood of confusion.
C. Weakness of the Common Element ROOST
We turn now to the sixth DuPont factor, which considers the number and nature
of similar marks in use for similar services, DuPont, 177 USPQ at 567, the main focus
of Applicant’s argument on appeal. In determining the strength of a mark, we
consider both its inherent strength, based on the nature of the mark itself, and, if
there is evidence in the record of marketplace recognition of the mark, its commercial
strength. See Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d
1458, 1476 (TTAB 2014) (citing In re Chippendales USA, Inc., 622 F.3d 1346, 96
USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its
conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”)); Top Tobacco, L.P. v. N. Atl. Operating Co., 101 USPQ2d 1163, 1171-72
(TTAB 2011) (the strength of a mark is determined by assessing its inherent strength
and its commercial strength).
Applicant challenges both the conceptual strength and the commercial strength of
the cited marks. With respect to the conceptual strength of the word “roost,”
Applicant relies on a dictionary definition of “ROOST” as meaning “a place for sitting,
resting, or lodging,” which it argues “connotes the comfort and security of a home”
and is conceptually weak because it is “highly suggestive of the services in the three
prior registrations.”9 The Examining Attorney does not discuss the definition of

9 7 TTABVUE 5-6 (Applicant’s Brief). Applicant provided an excerpt and link to that
definition from dictionary.com (based on The Random House Unabridged Dictionary) in its
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ROOST provided by Applicant, or the conceptual weakness of that term in relation to
real estate-related services.
Applicant also points to coexistence of the marks in the cited registrations with
each other, plus a fourth mark, SHELTER + ROOST, in third-party registration No.
4850441 for real estate-related services,10 to show that the mark is conceptually
weak.11 The Examining Attorney brushes aside that argument because the cited
registrations “were presumably allowed to co-exist due to the slight differences in the
nature of [their] services,” and the fourth registration “was not cited against the
applicant.”12 However, we may use third-party registrations like a dictionary. See
Institut Nat’l Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 22
USPQ2d 1190, 1196 (Fed. Cir. 1992) (third-party registrations show the sense in
which a word is used in ordinary parlance and that a particular term has descriptive
significance as applied to certain goods or services); Gen. Mills Inc. v. Health Valley
Foods, 24 USPQ2d 1270, 1277 (TTAB 1972) (“Although the registrations are not

brief and requests that the Board to take judicial notice of it. The Examining Attorney did
not object to the request While the record should be complete upon filing of the appeal,
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), the Board may take judicial notice of
dictionary definitions from online sources when the definitions themselves are derived from
dictionaries that exist in printed form or have regular fixed editions, and we do so here. See
In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013); In re Red Bull GmbH,
78 USPQ2d 1375, 1378 (TTAB 2006); (https://www.dictionary.com/browse/roost?s=t, accessed
on November 17, 2020).
10 Registration No. 4850441, which registered November 10, 2015, identifies “Real estate
services, namely, acquisition, rental, brokerage, leasing, management and valuation of real
property, commercial property, offices and office space.” Applicant’s August 12, 2019
Response to Office Action, TSDR 35-36.
11 7 TTABVUE 4-5 (Applicant’s Brief).
12 9 TTABVUE 12-13 (Examining Attorney’s Brief).
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evidence of use, the registrations show the sense in which the term is employed in
the marketplace, similar to a dictionary definition.”).
Based on the dictionary evidence, which is corroborated by the four registered
marks, we agree with Applicant that in the context of real estate services such as
those identified in the registrations, the word “ROOST” is highly suggestive and thus
conceptually quite weak. In addition, one of the third-party websites discussed below
that Applicant relies on to demonstrate commercial weakness also shows how real
estate services providers use the ROOST, as well as its importance to the industry by
including its definition:13

13 August 12, 2019 Response to Office Action, TSDR 20.
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Applicant asserts that it “submitted a substantial number of third-party uses of
marks containing ‘roost’ for various real estate services and closely related
services,”14 Based on that evidence, Applicant argues that ROOST is not just
conceptually but also commercially weak because “consumers are educated to
distinguish between different marks on the basis of ‘minute distinctions,” citing Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015).15 “The third-
party uses of record include ROOST DC, ROOST, THE ROOST GROUP, ROOST
REAL ESTATE CO., QUAL ROOST, two different ROOSTs, four different ROOST
REALTYs, and three different ROOST REAL ESTATEs.” across the country for
“services that are identical to or closed related to the services claimed in the three
cited registrations, including real estate brokerage services, furnished apartment
rental, short term rentals, and online apartment finding services.”16 Excerpts from
the thirteen third-party webpages Applicant provided are shown below.

(roostrealty.com – Atlanta, GA)17

14 7 TTABVUE 4 (Applicant’s Brief).
15 Id. (Applicant’s Brief).
16 Id. at 5.
17 Id. at 21.
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(roostrealestate.com – Charlotte, NC)18

(bestrealty.com – Naples, FL)19

18 August 12, 2019 Response to Office Action, TSDR 18. Applicant also provided the webpage
of another website that uses the same logo shown above in Mooresville, NC, id. at 22, and
another that appears to identify the same company operating in Mooresville and other cities
in the Lake Norman area of North Carolina, id. at 27, so we do not list them here as separate
uses.
19 Id. at 31.
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(theroostlofts.com – Seattle, WA; “Apply button,” in combination with the
Registrant Portal” indicates the provision of real estate services)20

(roost-dc.com – Washington, DC; indicating services for tenant, i.e., renters,
and owners)21

20 Id. at 11-12.
21 Id. at 13-17.
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(homeisroost.com – “monthly rent” indicated at bottom)22

(roostmineapolis.com – Minneapolis, MN)23

22 Id. at 19.
23 Id. at 20.
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(roostathome.com)24

(findmyroost.com – Tampa Bay, FL)25

24 Id. at 23.
25 Id. at 25-26.
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(yelp.com – Beavercreek, OH)26

(ttrsir.com – Chevy Chase, MD; indicating “roost” as a place for “family to
gather to eat, sleep, nurture and support each other)27

26 Id. at 29.
27 Id. at 28.
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(airbnb.com – Seguin, Texas)28

(Madison, WI)29

28 Id. at 30
29 Id. at 32-24.
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The third-party evidence provided by Applicant shows fairly widespread use of the
term “ROOST” in connection with the provision of real estate services (including real
estate brokerage and short term rentals) by at least thirteen different entities (in the
States of Washington, North Carolina, Minnesota, Georgia, Maryland, Texas, Ohio,
Florida, Wisconsin, and in the District of Columbia), which is strong evidence that
the mark is commercially weak. Several of the third-party references also corroborate
the dictionary and registration evidence that shows the term ROOST is conceptually
weak. For example, one of the Roost realties (roostrealty.com) invites consumers to
“Come Home to Roost.”30 Another Roost Realty (roostathome.com) shows a picture of
an owl “roosting.”31 A third, Roost Real Estate, encourages consumers to “Find Your
Next Roost Here” and prominently displays a definition for the term: “Roost (n): a
place to settle or stay.”32
The Examining Attorney acknowledges that “[e]vidence of widespread third-party
use of similar marks with similar services ‘is relevant to show that a mark is
relatively weak and entitled to only a narrow scope of protection’ in that industry or
field,” citing Palm Bay Imports, Inc. v. Veuve Cliquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005).33. She rejects
Applicant’s evidence, however, because the cited registrations “are for slightly
different services” that were “presumably allowed to co-exist due to the slight

30 August 12, 2019 Response to Office Action, TSDR 21.
31 Id. at 23.
32 Id.
33 9 TTABVUE 11 (Examining Attorney’s Brief).
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differences in the nature of [their] services,”34 and because “the third party uses
referenced by the applicant are not even registered marks.”35 “Unlike the mark in
[Juice Generation],” she argues, “the evidence does not support that the real estate
industry is ‘saturated’ with use of the word ROOST. Given the limited uses of the
term ROOST in unregistered marks, and the existence of only one registered mark
[SHELTER + ROOST] other than the cited marks, this situation does not warrant
limiting the scope of the registered marks.”36
We cannot presume, as the Examining Attorney does, that the cited registrations
were allowed to coexist simply because of their “slightly different services.” Nor can
we ignore the evidence of what we find to be significant third-party use of ROOST for
realty/rental services because there is no evidence that the marks are registered; that
is not a basis for discounting that evidence. Thirteen distinct uses of the same term
for the same services is persuasive on this record and proves that the mark is both
conceptually and commercially weak. While we agree with the Examining Attorney
that the record of third-party use in this case is more modest than in Jack Wolfskin
and Juice Generation, the evidence of weakness need not be as extensive as in either
of those cases for us to find confusion unlikely.
Based on the totality of the evidence, including the dictionary definition and fairly
extensive use of the same term to mean the same thing in connection with the same

34 Id. at 10, 12-13.
35 Id. at 12.
36 Id. at 13.
Serial No. 88186224
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or highly similar services in various cities, we find that the shared word ROOST is
weak in that it directly suggests the type of services provided, while the third-party
uses show consumer exposure to third-party use of the term on similar services.
Overall, this weakness leads us to the conclusion that marks containing the word
ROOST used in connection with real estate services are capable of co-existing without
confusion where “the remaining portions of the mark may be sufficient to distinguish
the marks as a whole from one another.” Promark v. GFA Brands. Inc., 114 USPQ2d
1232, 1244 (TTAB 2015). The sixth DuPont factor thus weighs heavily against a
finding of likelihood of confusion.
D. Similarity or Dissimilarity of the Marks

Against the backdrop of the mark’s conceptual and commercial weakness, we turn
now to the first DuPont factor, which considers the “similarities or dissimilarities of
the marks in their entireties as to appearance, sound, connotation and commercial
impression.” In re Detroit Athletic Co., 128 USPQ2d at 1051 (Fed. Cir. 2018) (quoting
DuPont, 177 USPQ at 567). The test is not whether the marks can be distinguished
in a side-by-side comparison, but rather whether their overall commercial
impressions are so similar that confusion as to the source of the goods offered under
the respective marks is likely to result. See Cai v. Diamond Hong, Inc., 901 F.3d 1367,
127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (citing Coach Servs., 101 USPQ2d at 1721).
Our focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. See Neutrogena Corp. v.
Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers
Serial No. 88186224
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“may have but dim recollections from having previously seen or heard one or the other
of the involved marks.”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740
(TTAB 2014).
The Examining Attorney argues that Applicant’s mark ROOSTUP “is confusingly
similar to the registered mark ROOST because it incorporates the registered mark in
its entirety.” In particular, “[t]he addition of the term UP to the applicant’s mark does
not overcome the likelihood of confusion with the mark ROOST, because the marks
are identical in part.”37 The Examining Attorney argues that Applicant’s ROOSTUP
mark “is also confusingly similar to the registered marks RENTAL ROOST and
ROOST REAL ESTATE CO. because the dominant feature of [those marks] is
ROOST.”38 In support of the latter comparison, she cites Anheuser-Busch, LLC v.
Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1824-25 (TTAB 2015) for the proposition
that “matter that is descriptive or generic for a party’s goods and/or services is
typically less significant or less dominant in relation to other wording in the mark.”39
She contends that “the additional terms RENTAL and REAL ESTATE CO. are
generic in relation to the registrants’ real estate services. Accordingly, the dominant
feature of each of these marks is ROOST.”
We agree with the Examining Attorney that the wording ROOST is dominant in

37 9 TTABVUE 7-8 (Examining Attorney’s Brief).
38 Id. at 8.
39 Id.
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the cited registrations. “REAL ESTATE CO.” (disclaimed) in is
descriptive of a real estate company providing real estate services; “RENTAL”
(disclaimed) in RENTAL ROOST is descriptive of a company that provides rental
services; and ROOST is the only word in the remaining cited registrations. However,
we also agree with Applicant that the “addition of the distinctive, arbitrary word ‘up’”
in its mark to create a unitary term changes the overall appearance, sound, meaning,
and commercial impression of its mark compared to the marks in the cited
registrations. Apart from the difference in sound, the word UP in Applicant’s mark
ROOSTUP results in a unitary term that seems to convey a different connotation and
commercial impression than the cited marks.40 “UP” in Applicant’s mark gives the
impression of an action or result, as implied by similarly structured terms such as
button-up, bust-up, buy-up, blowup, buildup, cover-up, cough up, , dress up, lead up,
made-up, meetup, ramp up, sign up, and the like. There is no definition provided for
ROOSTUP, but it seems to suggest a directive that one should find a place to stay or
rest, rather than simply referring the place itself.
“Additions … to marks may be sufficient to avoid a likelihood of confusion if: (1)
the marks in their entireties convey significantly different commercial impressions;

40 “A mark or portion of a mark is considered ‘unitary" when it creates a commercial
impression separate and apart from any unregistrable component.” TRADEMARK MANUAL
OF EXAMINING PROCEDURE (TMEP) § 1213.05. “A unitary mark has certain observable
characteristics. Specifically, its elements are inseparable. In a unitary mark, these
observable characteristics must combine to show that the mark has a distinct meaning of its
own independent of the meaning of its constituent elements. In other words, a unitary mark
must create a single and distinct commercial impression.” Dena Corp. v. Belvedere Int’l, Inc.,
950 F.2d 1555, 1561, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991).
Serial No. 88186224
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or (2) the matter common to the marks is not likely to be perceived by purchasers as
distinguishing source because it is merely descriptive or diluted.” TMEP
§ 1207.01(b)(iii); see e.g., Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1245, 73
USPQ2d 1350, 1356-57 (Fed. Cir. 2004) (reversing TTAB’s holding that
contemporaneous use of THE RITZ KIDS for clothing items (including gloves) and
RITZ for various kitchen textiles (including barbeque mitts) is likely to cause
confusion, because, inter alia, THE RITZ KIDS creates a different commercial
impression); Cf. Knight Textile Corp. v. Jones Inv. Co., 75 USPQ2d 1313 (TTAB 2005)
(“house mark” case finding no likelihood of confusion between NORTON
MCNAUGHTON ESSENTIALS and ESSENTIALS, both for women's clothing,
because evidence established that the shared term ESSENTIALS was “highly
suggestive”).
Taking into account the conceptual and commercial weakness of the word “roost”
in relation to realty services and the differences imparted by the combination of
“roost” and “up” as ROOSTUP, we find that Applicant’s mark is not sufficiently
similar to the cited marks for consumers – who are exposed to multiple uses of the
highly suggestive word ROOST for real estate and rental services − to be confused.
Accordingly, the first DuPont factor weighs against a finding of likelihood of
confusion.
II. Conclusion
In sum, notwithstanding the relatedness of the services, and the same trade
channels in the ROOST registration, we find that confusion is not likely between
Serial No. 88186224
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Applicant’s mark ROOSTUP and the registered marks ROOST, RENTAL ROOST,
and because the marks are sufficiently dissimilar overall, given that
the shared wording “roost” is quite weak when used in connection with realty and
rental services, both conceptually and commercially. The first and sixth DuPont
factors, accordingly, are dispositive in this case. See e.g., Kellogg Co. v. Pack’em
Enters., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991) (“We know of no reason why,
in a particular case, a single du Pont factor may not be dispositive. ... ‘each [of the
thirteen factors] may from case to case play a dominant role.’”).
Decision: The refusal to register is reversed.