87387320 (T.T.A.B. May. 23, 2019)

Shin-Kyu Choi

Trademark Trial and Appeal BoardMay 23, 2019

87387320 (T.T.A.B. May. 23, 2019)

This Opinion is Not a Precedent of the TTAB Mailed: May 23, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Shin-Kyu Choi _____ Serial No. 87387320 _____ Diane J. Mason of Drinker Biddle & Reath LLP,1 for Shin-Kyu Choi. Clare Cahill, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Wellington, Kuczma, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: Shin-Kyu Choi (“Applicant”) seeks registration on the Principal Register of the mark MECARD BATTLE ARENA (in standard characters) for board games; arcade video game machines; game apparatus for playing action type target games sold as a combined unit; nets for ball games; hand-held, non- electronic skill games; video game machines; toys namely, soft dolls, puzzles, balloons, return top toys, toy figures 1 Counsel’s change of correspondence address, filed May 10, 2019 in the electronic application file, is noted. A separate notice of the change of address should have been filed with the Board using ESTTA. TBMP § 117.07 (2018). To expedite this matter, a copy of the change of address has been placed in the electronic appeal file. See 11 TTABVUE. Serial No. 87387320 - 2 - attachable to pencils, rubber balls, children’s multiple activity toys, basketballs, bath toys, baseballs, beach balls, collectible toy figures, dolls, doll accessories, doll playsets, electric action toys, equipment sold as a unit for playing card games, footballs, mechanical toys, toy mobiles, toy vehicles, toy watches, and toy weapons; toys for domestic pets; dolls; playing cards; card games; skis; snowboards; baseball gloves; athletic sporting goods, namely, athletic wrist, ankle and joint supports; shoulder pads for athletic use; elbow guards for athletic use; shin guards for athletic use; knee guards for athletic use; ascenders being mountaineering equipment; climbers’ harness; golf bags with or without wheels; golf balls; golf gloves; golf equipment namely, balls, clubs, gloves, club covers; toy bicycles other than for transport; toy scooters; athletic protective wrist pads for skating; athletic protective elbow pads for skating; athletic protective knee pads for skateboarding; athletic protective arm pads for skating; toy roller skates; Christmas tree ornaments and decorations, except confectionery and electric Christmas tree lights; butterfly nets; fishing tackle; twirling batons; ride-on toys; chess games, in International Class 28.2 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, as applied to the goods identified in the application, so resembles the mark NANOBOT BATTLE ARENA (with NANOBOT disclaimed) for board games; building games; card games; game cards; game equipment, namely, three-dimensional modular pieces for assembly to resemble miniature terrain; playing cards and card games; playing pieces in the nature of miniature action figures and toy model vehicles for use with table top hobby battle games in the nature of battle, war and skirmish games, and fantasy games; positionable printed toy figures for use in games; positionable three dimensional toys for use in games; promotional game cards; promotional game materials; tabletop games; 2 Application Serial No. 87387320 filed March 27, 2017, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. Serial No. 87387320 - 3 - tabletop hobby battle games in the nature of battle, war and skirmish games, and fantasy games, and playing equipment sold as a unit therewith, in International Class 28,3 on the Principal Register as to be likely to cause confusion, to cause mistake, or to deceive. When the refusal was made final, Applicant appealed and requested reconsideration. The Examining Attorney denied the request for reconsideration, and the appeal was resumed. We reverse the refusal to register. I. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key considerations are the similarities between the marks and the similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. Identity of the Goods, Channels of Trade, and Classes of Customers We first consider the second and third du Pont factors, the similarity of the goods, channels of trade, and classes of customers. We must make our determinations under 3 Registration No. 4470065, issued January 21, 2014. Serial No. 87387320 - 4 - these factors based on the goods as they are identified in the application and cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Both the application and cited registration identify the identical goods “board games,” “playing cards,” and “card games.” Thus, the respective goods are identical- in-part.4 When as here, the respective identifications of goods are identical-in-part, without restrictions as to nature, type, channels of trade, or classes of purchasers, the identified goods are presumed to travel in the same channels of trade to the same class of purchasers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Hewlett-Packard Co. v. Packard Press, Inc., 62 USPQ2d at 1005 (Fed. Cir. 2002) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983) (“absent restrictions in the application and registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.”)). Based on the identical board games, playing cards, and card games set forth in the application and cited registration, and the overlapping trade channels and classes 4 Because the identifications of goods are in part identical, we need not discuss the similarity of all of Applicant’s goods because it is sufficient for a finding of likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015); Apple Comput. v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007). Serial No. 87387320 - 5 - of purchasers, the du Pont factors of the similarity of the goods, channels of trade, and classes of customers weigh heavily in favor of likelihood of confusion. B. Weakness of the Common Term BATTLE ARENA Because the strength of the cited mark will inform our comparison of the marks, we address Applicant’s claim that the BATTLE ARENA portion of the cited mark deserves a narrow scope of protection because that term “has a highly suggestive meaning for games and toys.”5 Applicant’s Brief, p. 4 (7 TTABVUE 9). The Federal Circuit has held that evidence of extensive registration and use of a term by others for similar goods can be “powerful” evidence of the term’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If the evidence establishes that the consuming public is exposed to widespread third-party use of similar marks for similar goods, it “is relevant to show that a mark is relatively weak and entitled 5 Applicant originally argued that BATTLE ARENA “is a descriptive term” and “has a highly suggestive or descriptive meaning in connection with games and toys.” Response to Office Action at TSDR 2. The Examining Attorney rejected the descriptiveness argument based, in part, on Trademark Act Section 7(b), 15 U.S.C. § 1057(b), noting that a registration on the Principal Register is prima facie evidence of the validity of a registered mark, and the validity of the cited registration could not be challenged in an ex parte proceeding. February 8, 2018 Office Action at TSDR 2. Because Registrant’s mark is registered on the Principal Register without any claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), or a disclaimer of the term BATTLE ARENA, Applicant’s contention that the term is merely descriptive of the identified goods constitutes an impermissible collateral attack on the cited registration. See In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016) (“[T]he validity of a cited registration cannot be challenged in an ex parte proceeding.”); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007) (“[I]nasmuch as the cited mark is registered on the Principal Register, we must assume that it is at least suggestive and we cannot entertain applicant’s argument that the registered mark is descriptive of registrant’s services.”). Serial No. 87387320 - 6 - to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005). In support of his position, Applicant points to the definitions of the individual words BATTLE6 and ARENA,7 and argues that the combined term BATTLE ARENA has a readily understood connotation (i.e., “of a stage or arena where fights take place”) which is “highly suggestive of games in which the action takes place in a confined area.” Id. at 4-5 (7 TTABVUE 9-10); Request for Reconsideration at TSDR 8-15 (individual definitions). In addition, Applicant notes that the wording “battle arena” is a component of the four-word phrase “multiplayer online battle arena” which identifies a specific genre of strategy video game in which each player controls a single command unit in one of two opposing sides on a virtual battlefield.8 Applicant’s Brief, p. 5 (7 TTABVUE 10); Response to Office Action at TSDR 9-10. On the other hand, Applicant submitted no third-party registrations for marks 6 BATTLE is defined, inter alia, as: 1. “a hostile encounter or engagement between opposing military forces,” 2. “participation in such hostile encounters or engagements,” 3. “a fight between two persons or animals,” 4. “any conflict or struggle.” Dictionary.com, Request for Reconsideration at TSDR 8. 7 ARENA is defined as: 1. “the oval space in the center of a Roman amphitheater for gladiatorial combats or other performances,” 2. “a center stage, ring, area, or the like, used for sports or other forms of entertainment surrounded by seats for spectators: a boxing arena; a circus arena,” 3. “a building housing an arena,” 4. “a field of conflict, activity, or endeavor: the arena of politics.” Dictionary.com, Request for Reconsideration at TSDR 13. 8 “Multiplayer online battle arena” is also known as “action real-time strategy (ARTS)” and is a “sub-genre of strategy video games that originated as a subgenre of real-time strategy, in which a player controls a single character in a team who compete versus another team of players.” En.wikipedia.org/wiki/multiplayer_online-battle-arena. December 26, 2017 Response to Office Action at TSDR 9. Serial No. 87387320 - 7 - containing the term BATTLE ARENA,9 and the Examining Attorney submitted a search strategy to support her contention that there are no other registered marks that contain the term BATTLE ARENA. Examiner’s Brief, unnumbered p. 6 (9 TTABVUE 7); February 8, 2018 Office Action at TSDR 8. The record includes extensive evidence of third-party descriptive use of the term “battle arena” (or its close approximation) in the context of games and toys, as well as evidence of third-party use of “battle arena” in marks for the same or similar types of goods as are at issue here. See Response to Office Action at TSDR 11-30 and Request for Reconsideration at TSDR 16-47. For example: “Dragon Story” (Response to Office Action at TSDR 16-17) mentions “Battle Arena” to describe a feature of an online game available to accomplished, high-level players of the game; “Bakugan Battle Arena” (Response to Office Action at TSDR 28) is an Amazon.com product page which describes the Bakugan game therein as the “Bakugan Battle Arena.” On the packaging for the game, the wording “battle arena” is accompanied by the translation “arène de combat,” indicating that “battle arena” merely describes a significant feature of the game; “Bey battle blade Burst” (Request for Reconsideration at TSDR 16) is an Amazon.com product page which describes the game therein with the wording “battle set and arena included”; 9 Third-party registrations “are relevant to prove that some segment of the composite marks which both contesting parties use has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (quoting Textronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694 (CCPA 1976)). Serial No. 87387320 - 8 - “Hexburg BattleBots Arena” (Request for Reconsideration at TSDR 17) is an Amazon.com product page with “battle” and “arena” in close proximity; “Pokémon” (Request for Reconsideration at TSDR 18) is an Amazon.com product page which informs players they can “battle it out in this extensive battle arena deck collector’s set.” On the packaging for the trading card game, the wording “BATTLE ARENA” describes features of the game; “The Trash Pack Ultimate Fighting Trashies Battle Arena” (Request for Reconsideration at TSDR 20) is an Amazon.com product page which uses the wording “Includes Ultimate Fighting Trashies Battle Arena.” On the packaging for the game, the wording “battle arena!” is accompanied by the translation “arène de combat!,” indicating that “battle arena” describes a feature of the game; “Magic The Gathering” (Request for Reconsideration at TSDR 23) is an Amazon.com product page which describes the game therein as a “3D Battle Arena Bundle”; “LEGO Ninjago” (Request for Reconsideration at TSDR 24) is an Amazon.com product page which states “Battle Arena Includes Cole Dragon Ninja Mini Figure Spinner!”; “LEGO Ninjago Spinjitzu” (Request for Reconsideration at TSDR 25) is an Amazon.com product page which includes a photo of the packaging for the game, on which prominent wording “3D BATTLE ARENA” describes a significant feature of the game; “Fisher Price Imaginext” (Request for Reconsideration at TSDR 27) is an Amazon.com product page which includes a photo of the packaging for the game, on which prominent wording “Battle Arena” describes a significant feature of the game; “Fisher-Price TRIO Building Set” (Request for Reconsideration at TSDR 28) is an Amazon.com product page which includes a photo of the packaging for the game, on which the wording “Dragon Battle Arena” describes a feature of the game; Serial No. 87387320 - 9 - “Schleich Battle Arena Play Set” (Request for Reconsideration at TSDR 29) is an Amazon.com product page which describes the toy as a “Battle Arena”; “VOLT: Robot Battle Arena” (Request for Reconsideration at TSDR 34) is an Amazon.com product page which includes a photo of the packaging for the game, on which prominent wording “ROBOT BATTLE ARENA” describes a significant feature of the game; “Squinkies Battle Arena Large Playset” (Request for Reconsideration at TSDR 37) is an Amazon.com product page which indicates that the “Battle Arena features launching ramp, ring of fire, real action wrestling ring, working skateboard and motorcycle”; “Underwater Submarine Battle Adventure Game”” (Request for Reconsideration at TSDR 39) is an Amazon.com product page which indicates the toy comes with “Siege Cannon, Submarine Underwater Battle Arena and Enemy Subs” and that “this underwater battle arena play set will be enjoyed for hours” and is “[a] fun and interactive way for children to experience the excitement of underwater submarine battles”; “MGA Legend of Nara Battle Arena Playset” (Request for Reconsideration at TSDR 40) is an Amazon.com product page which indicates that the game includes a “Battle Arena with over 100 interchangeable pieces” and includes a photo of the packaging for the game, on which prominent wording “BATTLE ARENA” describes a significant feature of the game and informs consumers they can “build your own battle arena with interlocking parts”; “WWE Micro Aggression Crash and Bash” (Request for Reconsideration at TSDR 41) is an Amazon.com product page which indicates that the toy is a “2-in-1 Battle Arena” that includes “Two playsets in one”; “Board Games Dopamine Construct LLC” (Request for Reconsideration at TSDR 42) is an Amazon.com product page which includes a photo of the packaging for the game on which prominent wording “A SURVIVAL BATTLE ARENA” describes a feature of the game; Serial No. 87387320 - 10 - “Microsizer Powerbrutes Battle Arena” (Request for Reconsideration at TSDR 44) is an Amazon.com product page which includes a photo of the packaging for the game on which prominent wording “BATTLE ARENA” describes a feature of the game; “Pro Jax Battle Arena Set” (Request for Reconsideration at TSDR 45) is an Amazon.com product page which includes a photo of the packaging for the game on which the wording “BATTLE ARENA SET” describes a feature of the game; “Gyrobotz Deluxe Battle Arena” (Request for Reconsideration at TSDR 46) is an Amazon.com product page which indicates that the toy is a “Uniquely styled battle arena” with which players place game pieces “on the ramps and watch them enter the battle arena”; The mark POKEMON BATTLE ARENA for an online video game (Response to Office Action at TSDR 11); The mark BATTLE ARENA for a print-and-play wargame (Response to Office Action at TSDR 23); The mark BATTLE ARENA for a card game (Request for Reconsideration at TSDR 18); The mark LINX BATTLE ARENA for an online video game (Response to Office Action at TSDR 18); and The mark SPIN BATTLE ARENA for a video game (Response to Office Action at TSDR 26). We bear in mind the presumptions afforded the cited registration; however, we agree that the record in this case includes evidence that “battle arena” carries at least a highly suggestive meaning in reference to the goods. In view of the evidence, we find the BATTLE ARENA wording in the registered mark to be weak and the registered mark, as whole, is entitled to a relatively narrow scope of protection against other marks with the same or similar wording. The du Pont factors assessing Serial No. 87387320 - 11 - the degree of weakness or strength of the registered mark weigh in Applicant’s favor inasmuch as the shared wording is weak. C. Similarity of the Marks We next consider the first du Pont likelihood of confusion factor, which focuses on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay v. Veuve Clicquot, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ at 567). “The proper test is not a side- by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1468 (TTAB 1988). Moreover, where the goods of the applicant and registrant are identical, as they are in-part in this case, the degree of similarity between the marks required to support a finding of likelihood of confusion is not as great as would be required with diverse goods. See Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB Serial No. 87387320 - 12 - 2014); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009). Here, the average purchaser includes ordinary consumers who purchase and play games, including board games, card games, and playing cards. Applicant’s mark is MECARD BATTLE ARENA. Registrant’s mark is NANOBOT BATTLE ARENA. The marks have the same structure: three words, the second and third being BATTLE ARENA. The marks are similar in appearance and sound to the extent that they share the commonly placed, highly suggestive term BATTLE ARENA; but, they are dissimilar in appearance and sound to the extent that they begin with strikingly different words. The only variation between the two marks is the first word, which Applicant argues is the dominant portion of each mark. Applicant’s Brief, p. 10-12 (7 TTABVUE 15-17). The Examining Attorney argues that the marks create the same overall commercial impression because they share the identical phrase BATTLE ARENA and the only other term in the registered mark (i.e., NANOBOT) is descriptive and disclaimed. Examiner’s Brief, unnumbered pp. 4- 5 (9 TTABVUE 5-6). We recognize that while more or less weight may be properly assigned to a given component of a mark, we still must consider the marks as a whole in determining likelihood of confusion. Juice Generation, Inc. v. GS Enters. LLC, 115 USPQ2d at 1676. Viewing Registrant’s mark NANOBOT BATTLE ARENA as a whole, we do not find the disclaimed word NANOBOT to be less of an element for consideration than the highly suggestive term BATTLE ARENA. Although disclaimed descriptive matter may be less significant than more distinctive elements of marks, see Hewlett-Packard Serial No. 87387320 - 13 - Co. v. Packard Press, Inc., 62 USPQ2d at 1004, we find in this instance that because BATTLE ARENA is highly suggestive, NANOBOT is an equally important element of the mark. While the marks at issue share the highly suggestive wording BATTLE ARENA, they differ in that each mark begins with a term that is very different from the other. The term MECARD in Applicant’s mark appears, on this record, to be arbitrary or perhaps only slightly suggestive (of games with cards). When MECARD precedes the highly suggestive term BATTLE ARENA, it stands out as the dominant portion of that mark. See Presto Prods. Inc. v. Nice-Pak Prods., 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 v. Veuve Clicquot, 73 USPQ2d at 1692 (“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.). In contrast, as noted above, the first word of Registrant’s mark (i.e. NANOBOT) does not appear to be any more or less important than the highly suggestive term BATTLE ARENA. Although we consider the marks in their entireties, the sound and appearance of the marks differ to the extent they begin with the significantly different words MECARD and NANOBOT. These words also affect the commercial impression of the marks. The descriptive nature of NANOBOT leads Registrant’s mark to have the Serial No. 87387320 - 14 - commercial impression of a place where small robots fight.10 The unusual word MECARD does not lend Applicant’s mark to that same descriptive impression. When considered in their entireties, the differences in the marks outweigh their similarities. The recollection of the average purchaser, who normally retains a general rather than specific impression of trademarks, see In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992)), would likely recall the nanobot nature of Registrant’s mark, whereas the general impression of Applicant’s mark will come from the seemingly arbitrary term MECARD. Considering the overall sound, appearance, commercial impression, and connotation of the marks MECARD BATTLE ARENA and NANOBOT BATTLE ARENA, we find that consumers are not likely to view the fact that the marks share the highly suggestive wording BATTLE ARENA as significant. Rather, because that wording is so highly suggestive, consumers will readily distinguish the marks based on the very different, respective initial word in each mark. That is, customers would not perceive the two marks as related to each other and pointing to a common source. 10 We take judicial notice of the definition of “nanobot” from Dictionary.com, based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2019). The Board may take judicial notice of dictionary definitions, including online dictionaries which exist in printed format. See, e.g., In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014); see also Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). “Nanobot” is defined, inter alia, as “a machine or robot that can manipulate nanoscale objects with great precision.” Serial No. 87387320 - 15 - Accordingly, we find that the du Pont factor of the similarity of the marks weighs in favor of finding no likelihood of confusion. D. Balancing the Factors We find that while Applicant’s mark MECARD BATTLE ARENA shares some objective similarities with the registered mark NANOBOT BATTLE ARENA, the strong nature of the term MECARD makes the marks differ in sound, appearance, and commercial impression. The dissimilarity of the marks, combined with the relative weakness and narrow scope of protection of the shared BATTLE ARENA portion of the marks outweigh the identity of goods, trade channels, and consumers. II. Decision The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is reversed.