Rosetta Stone Ltd.v.Language Engineering Company, LLC

Trademark Trial and Appeal Board

Aug 10, 2015

No. 91208316 (T.T.A.B. Aug. 10, 2015)

This Opinion is not a
Precedent of the TTAB
Mailed: August 10, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Rosetta Stone Ltd.
v.
Language Engineering Company, LLC
_____
Opposition No. 91208316
_____
Alisa Key, Esq. for Rosetta Stone Ltd.

Language Engineering Company, LLC, pro se, by its principal, Glenn A. Akers,
Ph.D.
_____

Before Lykos, Kuczma, and Masiello,
Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

Language Engineering Company, LLC (“Applicant”) filed an application to
register the mark ROSETTA TRANSLATOR in standard characters for “Language
translation; Translation; Translation services,” in International Class 41.1

1 Application Serial No. 85555566, filed on February 28, 2012 under Trademark Act § 1(b),
15 U.S.C. § 1051(b), on the basis of Applicant’s bona fide intent to use the mark in
commerce. No claim is made to the exclusive right to use TRANSLATOR apart from the
mark as shown.
Opposition No. 91208316
2

Rosetta Stone Ltd. (“Opposer”) has opposed registration of the mark on the
ground that the mark, to be used in connection with the identified services, so
resembles Opposer’s earlier used and registered marks for “language learning
software and solutions”2 as to be likely to cause confusion, mistake or deception
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); and dilution under
Trademark Act Section 43(c), 15 U.S.C. § 1125(c). Opposer also alleged that
Applicant’s mark is likely to falsely suggest a connection with Opposer under
Section 2(a) of the Trademark Act; however, Opposer did not address this claim in
its brief and accordingly we deem it waived. See, e.g., Alcatraz Media, Inc. v.
Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013), aff’d, 565 F.
App’x 900 (Fed. Cir. 2014) (mem.). See also Trademark Trial and Appeal Board
Manual of Procedure (“TBMP”) § 801.01 (2015).
Opposer has pleaded ownership of five registrations of the mark ROSETTA
STONE;3 three registrations of ROSETTA;4 four registrations of ROSETTA
WORLD;5 two registrations of ROSETTA STONE TOTALE;6 and registrations of
the marks ROSETTASTONE.COM;7 ROSETTA COURSE (with COURSE
disclaimed);8 ROSETTA STUDIO (with STUDIO disclaimed);9 and ROSETTA

2 Notice of opposition ¶ 2, 1 TTABVUE 11.
3 Reg. Nos. 2761492; 3569720; 3570015; 3749526; and 4019088.
4 Reg. Nos. 3749523; 4016236; and 4019095.
5 Reg. Nos. 3514220; 3765137; 3883786; and 4019084.
6 Reg. Nos. 3877738 and 3880684.
7 Reg. No. 3454358.
8 Reg. No. 3935120.
Opposition No. 91208316
3

STONE LANGUAGE LEARNING SUCCESS (and design).10 The pleaded marks are
registered, variously, for computer software for teaching and learning foreign
languages; application service provider (ASP) services featuring software for use in
teaching and learning foreign languages; providing online facilities for real-time
interaction with other computer users in the field of foreign languages; compact
discs for teaching and learning foreign languages; providing live and online classes
in the field of foreign languages; and providing an online interactive curriculum in
the nature of courses of instruction in the field of foreign languages. With the
exception of the last listed mark, all the marks are registered in standard character
form.
Applicant, in its answer, denied the salient allegations of the notice of
opposition. Only Opposer has filed evidence and a brief on the case. Nonetheless, as
plaintiff in this proceeding, Opposer bears the burden of proving its standing and
claims by a preponderance of the evidence. Chanel, Inc. v. Makarczyk, 110 USPQ2d
2013, 2017 (TTAB 2014).
I. The record.
The record includes the pleadings and, by operation of Trademark Rule 2.122,
37 C.F.R. § 2.122, the application file for the opposed mark.
Opposer’s 18 pleaded registrations were made of record under Opposer’s third
notice of reliance, in the form of a current printout of information from the
electronic database records of the USPTO showing current status and title of the

9 Reg. No. 3944954.
10 Reg. No. 2781324 [cancelled].
Opposition No. 91208316
4

registrations (17 TTABVUE 376-434). Opposer also filed the following testimony
and evidence:
- Testimony deposition of Sarah Van Dyck, Opposer’s Vice President of global
brand marketing, with exhibits (18-22 TTABVUE).

- Notice of reliance No. 1 on copies of third-party registrations (16 TTABVUE).

- Notice of reliance No. 2 on the discovery deposition of Glenn A. Akers, Ph.D.,
Applicant’s principal, with exhibits (17 TTABVUE 2-375).

II. Standing.
Opposer has properly made of record its pleaded registrations (with the
exception of cancelled Reg. No. 2781324) and has thus established its standing to
oppose registration of Applicant’s mark. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023 (Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
III. Opposer’s claim under Section 2(d).
Opposer brings its opposition under Trademark Act Section 2(d) on the ground of
likelihood of confusion. For the sake of economy, we will confine our analysis to the
issue of likelihood of confusion between Applicant’s mark, ROSETTA
TRANSLATOR, and Opposer’s mark ROSETTA. Of all the pleaded marks, this
mark is the most similar to Applicant’s mark, inasmuch as each of the other
pleaded marks contains additional points of difference as compared to Applicant’s
mark (i.e., elements such as STONE, COURSE, STUDIO, and WORLD, which do
not appear in Applicant’s mark). If confusion is likely between ROSETTA
Opposition No. 91208316
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TRANSLATOR and ROSETTA, there will be no need for us to consider the
likelihood of confusion with the other pleaded marks. The goods and services
identified in Opposer’s three registrations of ROSETTA are as follows:
Computer software for teaching foreign languages;
Computer software for learning foreign languages;11
Application service provider (ASP) featuring software for
use in teaching and learning foreign languages;12
Computer services, namely, providing on-line facilities for
real-time interaction with other computer users in the
field of foreign languages.13
In view of Opposer’s ownership of valid and subsisting registrations of its
pleaded ROSETTA marks, priority is not in issue with respect to the marks and the
goods and services identified in these three registrations. King Candy, Inc. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Our determination of likelihood of confusion is based on an analysis of all
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).
A. The marks at issue.
We first consider the similarity or dissimilarity of the marks at issue, in their
entireties, in terms of appearance, sound, meaning, and overall commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En

11 Reg. No. 4016236.
12 Reg. No. 3749523.
13 Reg. No. 4019095.
Opposition No. 91208316
6

1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In doing so, we bear
in mind that “The proper test is not a side-by-side comparison of the marks, but
instead ‘whether the marks are sufficiently similar in terms of their commercial
impression’ such that persons who encounter the marks would be likely to assume a
connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The marks ‘must be considered
… in light of the fallibility of memory …’” In re St. Helena Hosp., 774 F.3d 747, 113
USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD
Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). The proper
focus is on the recollection of the average customer, who retains a general rather
than specific impression of the marks. Winnebago Industries, Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975).
In appearance, the two marks ROSETTA and ROSETTA TRANSLATOR
resemble each other in that they share the initial term ROSETTA; indeed, in this
regard Applicant’s mark incorporates the entirety of Opposer’s mark. The term
ROSETTA in Applicant’s mark is the more salient element of the mark, inasmuch
as it is the initial element of the mark and because TRANSLATOR is highly
descriptive or generic with respect to Applicant’s translation services and therefore
would not likely be perceived by customers as indicating the source of Applicant’s
services. Accordingly, we give the term ROSETTA more weight than we give to
TRANSLATOR in our comparison of the marks. It is well settled that there is
Opposition No. 91208316
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nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). We acknowledge, however, the difference
in appearance between the two marks created by the additional word
TRANSLATOR in Applicant’s mark, which is absent from Opposer’s mark.
There is no evidence of record regarding the pronunciation of the marks.
However, inasmuch as both marks include the term ROSETTA, they are, to this
extent, likely to be pronounced alike. The element TRANSLATOR in Applicant’s
mark creates a distinction in sound between the two marks.
In terms of meaning, it is clear from the record that, in both marks, the term
ROSETTA is intended to refer to the famous artifact known as the “Rosetta Stone.”
Applicant’s principal, in an e-mail informing various colleagues that he had filed the
trademark application now at issue, included information from
regarding this artifact:
The Rosetta Stone is an ancient Egyptian stele inscribed
with a decree issued at Memphis in 196 BC on behalf of
King Ptolemy V. The decree appears in three scripts: the
upper text is Ancient Egyptian hieroglyphs, the middle
portion Demotic script, and the lowest Ancient Greek.
Because it presents essentially the same text in all three
scripts (with some minor differences between them), it
provided the key to the modern understanding of
Egyptian hieroglyphs.14

14 E-mail of February 28, 2012, Akers Exhibit 10, 17 TTABVUE 289-291.
Opposition No. 91208316
8

In another e-mail, a business contact of Applicant made the comparison, “The
Rosetta Stone unlocked History. Rosetta Translator will make History!”15 A draft
design of the packaging for ROSETTA TRANSLATOR software included, on the
front of the package, a large depiction of the Rosetta Stone.16
That Opposer’s mark ROSETTA is intended to evoke the Rosetta Stone artifact is
supported by the fact that Opposer’s name and primary trademark are ROSETTA
STONE. The record also shows that Opposer has frequently displayed the mark
ROSETTA STONE together with a stylized depiction of the artifact:17

To the extent that both marks ROSETTA and ROSETTA TRANSLATOR evoke the
historic artifact known as the Rosetta Stone, they are highly similar in meaning or
connotation. We note, of course, that the addition of the word TRANSLATOR has
the potential to affect the overall meaning of Applicant’s mark. However, in a
commercial context in which translation services are offered, customers are likely to
perceive TRANSLATOR as the generic name of the person or entity providing the
translation service, and are not likely to perceive it as a source-indicating element
of the mark.

15 Akers Exhibit 17, 17 TTABVUE 305. See also Answer ¶ 11, 8 TTABVUE 3.
16 Akers Exhibit 22, 17 TTABVUE 329-332.
17 See, e.g., 22 TTABVUE 7-27.
Opposition No. 91208316
9

Overall, we find the commercial impressions created by the two marks to be
highly similar. Both marks are, inherently, quite strong in source-identifying
potential because of the element ROSETTA. The term ROSETTA is neither generic
nor descriptive of any product or service of the parties. ROSETTA is suggestive of
the general concept of languages and the processes of understanding them, because
of its evocation of the Rosetta Stone and its importance to scholarship. However, the
suggestive meaning of ROSETTA relates only distantly and indirectly to the
commercial fields of translation and the teaching and learning of foreign languages,
requiring many leaps of thought and imagination to make a connection between the
18th century archaeological discovery in Egypt and the commercial fields of
endeavor in which Applicant and Opposer do business. Because of the strength of
ROSETTA and the generic weakness of TRANSLATOR, we find that the marks
ROSETTA and ROSETTA TRANSLATOR create essentially the same commercial
impression. Indeed, Applicant’s mark would most likely be perceived by customers
as the distinctive, source-indicating mark ROSETTA to which the generic name of
Applicant’s services has been appended. On the basis of our review of the
appearance, sound, meaning and commercial impressions of the marks, we find that
the du Pont factor relating to the similarity or dissimilarity of the marks weighs in
favor of a finding of likelihood of confusion.
B. The goods and services.
We turn next to the similarity or dissimilarity of the goods and services at issue,
as they are identified in the application and registrations at issue. See Octocom
Opposition No. 91208316
10

Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139
(CCPA 1958); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Applicant’s services
are:
Language translation; Translation; Translation services.
The goods and services identified in Opposer’s three registrations of ROSETTA
are as follows:
Computer software for teaching foreign languages;
Computer software for learning foreign languages;
Application service provider (ASP) featuring software for
use in teaching and learning foreign languages;
Computer services, namely, providing on-line facilities for
real-time interaction with other computer users in the
field of foreign languages.
Applicant’s services and the goods and services of Opposer are obviously different
in nature. However, the goods and services at issue do not have to be identical or
even competitive in order to find that there is a likelihood of confusion. See On-line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir.
2000); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010). “[E]ven if the
goods in question are different from, and thus not related to, one another in kind,
the same goods can be related in the mind of the consuming public as to the origin
of the goods. It is this sense of relatedness that matters in the likelihood of
confusion analysis.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000); see also In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687,
1689 (Fed. Cir. 1993); Safety-Kleen Corp. v. Dresser Indus., Inc., 518 F.2d 1399, 186
Opposition No. 91208316
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USPQ 476, 480 (C.C.P.A. 1975); In re Ass’n of the U.S. Army, 85 USPQ2d 1264,
1270 (TTAB 2007).
It is manifest in the record that computer software is of great importance to
Applicant’s business. Applicant has described itself as “one of the world’s leading
providers of language translation software and services”;18 and explained that
“Language translation software involves the automatic conversion by a personal
computer of one language to another.”19 It appears from the record that Applicant
has envisioned the ROSETTA TRANSLATOR mark as primarily a trademark for
software, rather than a service mark for translation. Applicant’s principal testified
as to the company’s intention to use ROSETTA TRANSLATOR on a translation
software product,20 and even stated, “We don’t provide services. We provide
software.”21 For purposes of this proceeding, we must, of course, treat the identified
services as a service, not a software product. However, from the record we can
deduce that one type of translation service that is included within the scope of the
application is machine translation provided online to customers by means of
computer. (“They can purchase it [the software] and download it from our website.
They can also access translation capabilities over the internet.” “They send texts to

18 Answer, ¶ 1, 8 TTABVUE 1.
19 Id.at ¶ 3. 8 TTABVUE 2. See also Akers 28-30, 17 TTABVUE 33-35 (“[Applicant] is
involved in the production and distribution of machine translation software.” “Software
which takes text in one language and produces text in another language.”).
20 Akers 186:10, 17 TTABVUE 191.
21 Id. at 202:3-4, 17 TTABVUE 207.
Opposition No. 91208316
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a particular application and receive the translation in return.”)22 This method of
providing “translation capabilities over the internet” is somewhat similar to the
service of an “application service provider (ASP)” mentioned in Opposer’s Reg. No.
3749523.
Opposer’s software and ASP services, by comparison, have a primary purpose
that is different from translation: they are designed to assist with the learning and
teaching of foreign languages. Interestingly, Opposer’s marketing materials tout the
fact that Opposer’s method of teaching eschews the use of translation as an
exercise. An advertisement titled “ACT LIKE A BABY” states:
Learning a new language seems formidable, as we recall
from years of combat with grammar and translations in
school. … [Infants] never battle translations or grammar
explanations along the way. … First, and most
importantly, a child’s natural language-learning ability
emerges only in a speech-soaked, immersion environment
free of translations and explanations of grammar.23
On the other hand, Opposer’s offerings include a “travel app” that includes a
“phrase book” that translates words from one language to another.24 Customers, in
their comments, speak of this function as a translation function: “The feature that I
found most helpful was the phrase book. I think it is a good thing that there is now
translation built in and this will definitely help this going to a foreign country!”25 A
related advertisement states, “Find out directly how to pronounce a word and what

22 See Akers 31-32, 17 TTABVUE 36-37.
23 22 TTABVUE 32. See also advertisements at 22 TTABVUE 26-27; 36; 63 and 69.
24 Van Dyck 134-145 (applications available on iTunes and GooglePlay stores) and Exhibits
33-34, 18 TTABVUE 137-138, 22 TTABVUE 113-130.
25 22 TTABVUE 117.
Opposition No. 91208316
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its translation is.”26 Opposer’s witness also stated that Opposer has acquired a
business called “Tell Me More,” whose “products not only use immersion, but they
also use methods such as grammar lessons and translation to help learners to learn
the language.”27
That Applicant’s machine translation service is regarded by customers as having
some kind of relationship with the process of learning a language is illustrated by a
customer testimonial on Applicant’s website, stating, “For several years I have
struggled to learn Spanish. Then one day an ad for your program came up on my
computer. It changed my life.”28 Other points of contact between Applicant’s
services and Opposer’s goods and services can be seen in the fact that Applicant’s
principal himself had involvement with language learning companies in the past.29
Moreover, Applicant’s principal said he believed that the engineer who would design
Applicant’s Rosetta Translator software had previous experience working in the
field of “language learning software.”30
Finally, we note that Opposer has made of record 14 U.S. registrations of third
parties in order to show that language instruction services or software for language
instruction are related to translation services. We consider only the following 4 of
these registrations to have any probative value, because the other registrations are
either not based on use in commerce or do not recite relevant services and goods:

26 22 TTABVUE 145.
27 Van Dyck 22:5-10, 18 TTABVUE 25.
28 Akers Exhibit 27, 17 TTABVUE 363.
29 Akers 180-185, 17 TABVUE 185-190.
30 Akers 143:10-145:5, 17 TTABVUE 148-150.
Opposition No. 91208316
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Reg. No. Mark Goods/Services

4588574 DUOLINGO Downloadable software for mobile phones for
learning foreign languages; language instruction;
providing online classes for learning foreign
languages; … translation services for others.
4201807 VIA Translation services; … providing custom
electronic learning courses in targeted languages
and cultures for local and global training; non-
downloadable computer software for language
translation and language interpretation; … non-
downloadable computer software for custom e-
learning courses in targeted languages and
cultures for local and global training.
4080487 TRAVELINGO Language translation services, namely,
translating data, including, text and audio, from a
first language to a second language; website for
language translation, for teaching and learning
vocabulary, foreign languages, practicing and
testing word usage, conversation and translational
skills …
3916466 CACTUS Custom … translation services, English language
teaching in the classroom and on-line language
instruction …; English language translation.

Third-party registrations that are based on use in commerce and individually
cover a number of different services or goods have some probative value to the
extent that they suggest that the goods and services listed are of a type which may
emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988).
Overall, the evidence discussed above establishes that the translation services of
Applicant as identified in its application and the language instruction software and
services as identified in Opposer’s three registrations are commercially related.
Opposition No. 91208316
15

Accordingly, the du Pont factor regarding the similarity or dissimilarity of the goods
and services also weighs in favor of a finding of likelihood of confusion.
C. Channels of trade.
We next consider the parties’ established and likely to continue channels of
trade. Opposer markets its products and services directly to consumers through its
website; through retail channels like Best Buy, Barnes & Noble, and Target; and
through resellers who sell to other businesses. Opposer also uses a direct sales force
to market its goods and services to governments and schools.31 Opposer’s software
can be obtained in the form of CDs, downloads from the internet, “apps” that may
be purchased from the Apple, Google and Android app stores; and through
subscription, in the form of software as a service (“SAAS”).32
The record indicates that Applicant’s services under the ROSETTA
TRANSLATOR mark have not yet been offered. As there are no limitations as to
channels of trade in Applicant’s recitation of services, we presume that Applicant’s
services move in all channels of trade that are normal for such services. See
Octocom, 16 USPQ2d at 1787; Paula Payne Products Co. v. Johnson Publishing Co.,
473 F.2d 901, 177 USPQ 76 (CCPA 1973); In re Linkvest S.A., 24 USPQ2d 1716,
1716 (TTAB 1992). However, there is little, if any, meaningful evidence of record as
to the normal channels of trade for translation services. Throughout the record,
Applicant and Opposer have primarily discussed Applicant’s “services” as if they
actually consisted of software. For example, Applicant stated in response to an

31 Van Dyck 25:5-14, 18 TTABVUE 28.
32 Van Dyck 23:9-17, 18 TTABVUE 26.
Opposition No. 91208316
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interrogatory that “[A]pplicant will sell to all markets and channels available to it
…, including direct, through channel distribution, through resellers, republishers
and OEMs.”33 By the expression “channel distribution,” Applicant appears to refer
to sales of Applicant’s software by an agent of Applicant to distributors who, in
turn, distribute the software to retailers such as Staples and Fry’s.34 Whether this
evidence has any relevance to the actual channels of trade for translation services is
highly questionable. In view of the lack of evidence upon which to base a
comparison of the trade channels of Applicant and Opposer, we find the du Pont
factor of trade channels to be neutral.
D. Customers.
Opposer’s customers include a wide range of different types of buyers of different
degrees of sophistication, from individual consumers to institutions and
governments.35 The record is less clear with respect to the prospective customers for
Applicant’s services. However, the customer testimonials relating to Applicant’s
other translation products indicate that Applicant’s customers include, at the very
least, individuals who have used Applicant’s translation products for personal
purposes, such as chatting on the internet; sending emails to friends “just for fun”;
and writing to friends in foreign countries.36 We must base our decision “on the
least sophisticated potential purchasers” of the two parties. Stone Lion Capital

33 Akers Exhibit 8, response to Interrogatory No. 9, 17 TTABVUE 286; see also Akers 50:21-
24 and 76-77, 17 TTABVUE 55, 81-82.
34 Akers 69, 17 TTABVUE 74.
35 Van Dyck 17:21-18:7, 18 TTABVUE 20-21.
36 Akers Exhibit 27, 17 TTABVUE 363.
Opposition No. 91208316
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Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir.
2014). As the customers of both parties include individual consumers of no special
sophistication, we find that this du Pont factor favors a finding of likelihood of
confusion.
E. Applicant’s Intent.
Opposer argues that the Board should consider Applicant’s intent in its proposed
adoption and use of its mark as part of our du Pont analysis, arguing that
“Applicant had a clear intent to trade on the strength and reputation of Opposer’s
brand ….”37 We find the evidence adduced by Opposer insufficient to persuade us of
such an intention on Applicant’s part. Accordingly, we treat this as a neutral factor.
F. Conclusion.
We have considered all of the evidence of record relevant to the du Pont factors
and all arguments of the parties, including those not specifically discussed herein.
We find that Applicant’s mark so resembles Opposer’s registered mark ROSETTA
as to be likely to cause confusion, mistake, or deception as to the source of
Applicant’s services. Accordingly, we SUSTAIN Opposer’s opposition on grounds of
Trademark Act Section 2(d).
Inasmuch as we have found that Applicant’s mark must be refused registration,
we need not reach Opposer’s claim of dilution.
Decision: The opposition is SUSTAINED with respect to Opposer’s claim under
Trademark Act § 2(d).

37 Opposer’s brief at 26, 23 TTABVUE 32.