Sprout Family, Inc.v.Robert Van Roo

Trademark Trial and Appeal Board

Jun 29, 2019

91238263 (T.T.A.B. Jun. 29, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 29, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Sprout Family, Inc.
v.
Robert Van Roo
_____

Opposition No. 91238263
_____

Meaghan Zore of Zore Law,
for Sprout Family, Inc.
Amanda R. Conley of Brand & Branch LLP,
for Robert Van Roo.
_____

Before Taylor, Ritchie, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Robert Van Roo (“Applicant”) has filed two applications, both seeking registration
on the Principal Register for the standard character mark SPROUT, for:
“Educational services, namely, developing leadership and
executive development training programs and providing
business education programs to entrepreneurs in the gay,
lesbian, bisexual, and transgender community; organizing
and hosting of events for educational purposes in the field
of entrepreneurship and diversity in the cannabis industry;
organization and arrangement of educational and
Opposition No. 91238236
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instructional seminars and conferences regarding the
intersection of lesbian, gay, bisexual, and transgender
issues with entrepreneurship and advocacy in the adult use
and medical cannabis industries; Providing news in the
field of current events relating to the intersection of
lesbian, gay, bisexual, and transgender issues with
entrepreneurship and advocacy in the adult use and
medical cannabis industries” in International Class 41
(Application Serial No. 87201893); and
“Arranging, organizing, conducting, and hosting business
networking events; organizing business networking events
for entrepreneurs; Association services, namely, promoting
the interests of the lesbian, gay, bisexual, and transgender
communities; promoting public awareness and public
advocacy to promote awareness in the fields of lesbian, gay,
bisexual, and transgender topics; promoting public
awareness of prejudice and discrimination against gay,
lesbian, bisexual, and transgender persons; providing on-
line web directory services featuring hyperlinks to websites
of others; Association services, namely, promoting the
interests of those wishing to discuss the intersection of
lesbian, gay, bisexual, and transgender issues with
entrepreneurship and advocacy in the adult use and
medical cannabis industries” in International Class 35
(Application Serial No. 87201894).1
Sprout Family, Inc. (“Opposer”) has opposed registration of Applicant’s mark on
the ground of priority and likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d).2 Opposer has alleged ownership of the following previously

1 Both applications were filed on October 13, 2016, and are based upon Applicant’s allegation
of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b).
2 We note that likelihood of confusion is the only claim included in Opposer’s “STATEMENT
OF THE ISSUES” portion of its brief and the only claim we address in our decision. See Inter
IKEA Systems B.V. v. Akea, LLC, 110 USPQ2d 1734 (TTAB 2014).
Citations in this opinion are to the TTABVUE docket entry number and, where applicable,
the electronic page number where the document or testimony appears. Because the Board
primarily uses TTABVUE in reviewing evidence, it prefers that citations to non-confidential
parts of the record include the TTABVUE docket entry number and the TTABVUE page
Opposition No. 91238236
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used and registered marks:3 Registration No. 5130459 for the stylized mark
for,
“Medical clinics; Medical information; Medical screening;
Medical services, namely, assisted reproductive
procedures, gynecological healthcare, human egg donation
services, matching human egg donors with recipients, the
collection, storage, preservation and implantation of
human eggs for human fertilization purposes, providing
medical advice, consultation and counseling in the field of
human reproductive healthcare and fertility, including in
vitro fertilization, ovulation induction, intrauterine
insemination, intracytoplasmic sperm injection, blastocyst
transfer, pre-implantation genetic diagnosis of embryos,
administration of egg and sperm donations, treatments
involving third-party gestational carriers, and laparoscopy;
Mental health therapy services; Obstetric and gynecology
services; Providing personalized healthcare and medical
information in the nature of reproductive health,
infertility, and assisted reproductive procedures; Providing
a website featuring information about health and wellness,
namely, reproductive health, infertility, and assisted
reproductive procedures; Providing medical information in
the field of reproductive access and culturally sensitive
care; Providing medical information to health providers in
the form of reports in the field of reproductive access and
culturally sensitive care; Providing news and information
in the field of culturally sensitive care and reproductive
health; Providing on-line information, news and
commentary in the field of health and wellness relating to
reproductive access and culturally senstive [sic] care;
Providing personalized healthcare and medical
information in the nature of reproductive access and
culturally sensitive care; Genetic testing for medical
purposes; Human egg donation services; Maintaining
patient medical records and files; Multi-disciplinary,

number. See RxD Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1804 (TTAB
2018); TBMP §§ 801.01 and 801.03 (2019).
3 1 TTABVUE.
Opposition No. 91238236
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integrative, outpatient health care delivery and medical
consultations” in International Class 44;4 and
Registration No. 5270016 for the standard character mark SPROUT FAMILY for,
“Clinical medical practice consultation services; Genetic
testing for medical purposes; Human egg donation
services; Maintaining patient medical records and files;
Medical information; Medical screening; Medical services,
namely, assisted reproductive procedures, gynecological
healthcare, human egg donation services, matching human
egg donors with recipients, the collection, storage,
preservation and implantation of human eggs for human
fertilization purposes, providing medical advice,
consultation and counseling in the field of human
reproductive healthcare and fertility, including in vitro
fertilization, ovulation induction, intrauterine
insemination, intracytoplasmic sperm injection, blastocyst
transfer, pre-implantation genetic diagnosis of embryos,
administration of egg and sperm donations, treatments
involving third-party gestational carriers, and laparoscopy;
Mental health therapy services; Multi-disciplinary,
integrative, outpatient health care delivery and medical
consultations; Obstetric and gynecology services; Providing
medical information in the field of reproductive access and
culturally sensitive care; Providing medical information to
health providers in the form of reports in the field of reports
in the field of reproductive access and culturally sensitive
care; Providing news and information in the field of
culturally sensitive care and reproductive health health
[sic]; Providing on-line information, news and commentary
in the field of health and wellness relating to reproductive
access and culturally senstive [sic] care; Providing
personalized healthcare and medical information in the
nature of reproductive health, infertility, assisted
reproductive procedures, reproductive access and
culturally sensitive care; Providing a website featuring
information about health and wellness, namely,
reproductive health, infertility, and assisted reproductive

4 Issued January 25, 2017. The registration includes the following description: “The mark
consists of the literal element ‘SprOUT’. The ‘S’, and ‘OUT’ in ‘SprOUT’ are larger capitalized
letters than the others. The font is not claimed as a feature of the mark.”
Opposition No. 91238236
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procedures; Clinical medical practice consultation services”
in International Class 44.5
Applicant has denied the salient allegations in the notice of opposition and asserts
the affirmative defenses of “estoppel” and “waiver,”6 but failed to explain, pursue or
prove these asserted defenses at trial, which are accordingly waived. Miller v. Miller,
105 USPQ2d 1615, 1616 n.3 (TTAB 2013); Baroness Small Estates Inc. v. American
Wine Trade Inc., 104 USPQ2d 1224, 1225 n.2 (TTAB 2012).
I. Accelerated Case Resolution (ACR)
During discovery, the parties filed a joint stipulation to elect accelerated case
resolution (ACR), which was accepted by the Board. See 5 and 9 TTABVUE. The
parties stipulated to multiple facts, including, among others, the following:
Factual Stipulations:
• That Applicant filed applications for the above-referenced services based on
“intent-to-use” and that it did not offer any of the services identified therein in
connection with the mark SPROUT prior to October 13, 2016;

• That Opposer obtained registrations for the services referenced above on
January 24, 2017, and claims use of the mark SPROUT in connection with such
services prior to October 13, 2016;

• That the opposed mark SPROUT is identical to Opposer’s federally registered
mark SPROUT;

• That other than the applications opposed in this proceeding, Applicant does
not own any other U.S. trademark applications or registrations that include
the term SPROUT in whole or in part; and

5 Issued August 22, 2017.
6 Applicant’s “First Affirmative Defense” is more in the nature of amplifications of its denials
and has been so treated.
Opposition No. 91238236
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• That Opposer has never consented, permitted, or otherwise authorized
Applicant to use or register the SPROUT mark in connection with any goods
or services.

The parties also adopted numerous procedural stipulations common to ACR
proceedings.
II. The Record
The record consists of the pleadings and, without any action by the parties, the
files of Applicant’s involved applications. Trademark Rule 2.122(b)(1), 37 C.F.R. §
2.122(b)(1). Opposer also made of record the submissions summarized below:
• Copies of its pleaded registrations, which were submitted via current printouts
from the USPTO’s Trademark Status & Document Retrieval (TSDR) electronic
database attached as exhibits to the Amended Notice of Opposition, pursuant
to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1);7

• Opposer’s Notice of Reliance on Internet screen captures and a Wikipedia
article;8

• The Declaration of Katherine Hsiao, M.D., Opposer’s Medical Director and
predecessor in interest.9

Applicant did not submit any evidence or testimony during his assigned testimony
period. Both Opposer and Applicant filed briefs.
III. Opposer’s Standing and Priority
Standing is a threshold issue that must be proven by the plaintiff in every
inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d
1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); see also, e.g., Bell’s Brewery, Inc. v.

7 1 TTABVUE.
8 11 TTABVUE.
9 13 TTABVUE.
Opposition No. 91238236
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Innovation Brewing, 125 USPQ2d 1340, 1344 (TTAB 2017). Opposer’s standing to
oppose registration of Applicant’s mark is established by its pleaded registrations,
which the record shows to be valid and subsisting, and owned by Opposer. See,
e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed.
Cir. 2000); N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497,
1501 (TTAB 2015). Opposer’s pleaded registrations are of record, so priority is not
at issue with respect to the marks and goods identified in Opposer’s pleaded
registrations. See King Candy Co. v. Eunice King’s Kitchen, 496 F.2d 1400, 182
USPQ 108, 110 (CCPA 1974).
Because Opposer has established its standing and priority as to its pleaded marks,
we turn to the question of likelihood of confusion.
IV. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis
of all probative facts in evidence that are relevant to the factors bearing on the issue
of 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 or services, the first two du Pont factors. See
Federated Foods, Inc. 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
Opposition No. 91238236
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the marks.”). Opposer bears the burden of proving its claim of likelihood of confusion
by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1848.
In analyzing likelihood of confusion, we limit our discussion to Registration
No. 5130459 for the pleaded stylized mark for the identified services,
which are substantially similar to those recited in Opposer’s other pleaded mark. If
we find likelihood of confusion between this mark and Applicant’s standard character
mark SPROUT, there is no need for us to consider the likelihood of confusion with
Opposer’s pleaded SPROUT FAMILY mark (Registration No. 5270016). Conversely, if
we find there is no likelihood of confusion with the SPROUT mark, we would
find no likelihood of confusion with the other pleaded mark. See In re Max Capital
Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). We address in turn each of the
du Pont factors bearing on our decision for which the parties submitted evidence or
argument.
While all the du Pont factors must be considered when they are of record, the
various factors “may play more or less weighty roles in any particular determination.”
du Pont, 177 USPQ at 567. “Indeed, any one of the factors may control a particular
case.” In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir.
1997) (citing du Pont, 177 USPQ at 567)); see also Giersch v. Scripps Networks Inc.,
90 USPQ2d 1020, 1027 (TTAB 2009) (finding no likelihood of confusion where “the
services are different and unrelated”).
Opposition No. 91238236
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A. Similarity of the Marks
We initially turn to the first du Pont likelihood of confusion factor which focuses
on the similarity or dissimilarity of the marks, and compare the marks, as we must,
in their entireties in terms of appearance, sound, meaning and commercial
impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin En 1722, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). Because Applicant’s mark is in
standard characters, its display is not limited to any particular font style, size, or
color. We therefore must consider that it might be used in any stylized display,
including the same or similar lettering style as Opposer’s mark. See In re
Viterra, 671 F.3d 1358, 101 USPQ2d 1905,1909-10 (Fed. Cir. 2012); Citigroup Inc. v.
Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir.
2011); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1886 (TTAB 2018) (literal
elements of standard character marks may be presented in any font style, size or
color). In addition to being identical in sight and sound, there is no indication that
they would have any difference in commercial impression. Accordingly, we find the
marks legally identical. Indeed, the parties stipulated that the respective SPROUT
marks are identical. This du Pont factor thus favors a finding of likelihood of
confusion.
B. Relatedness of the Services
We now consider the services, keeping in mind that the greater the degree of
similarity between the marks at issue, the lesser the degree of similarity between the
respective services is required to support a finding of likelihood of confusion. In re
Opposition No. 91238236
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Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Where, as here, Applicant’s
mark is legally identical to Opposer’s mark, there need only be a viable relationship
between the services to find that there is a likelihood of confusion. See In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even when the goods or
services are not competitive or intrinsically related, the use of identical marks can
lead to the assumption that there is a common source”); Concordia Int’l Forwarding
Corp., 222 USPQ at 356.
In making our determination regarding the similarity or relatedness of the
services, we must look to the services as identified in Applicant’s involved application
vis-à-vis the services identified in Opposer’s pleaded Registration No. 5130459 for the
mark . See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Houston
Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re
Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
As Opposer points out, under this du Pont factor, we need not find similarity as to
each and every service listed in the recitation of services. It is sufficient for a refusal
based on likelihood of confusion that relatedness is established for any service
encompassed by the identification in a particular class in the application. Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981); In re i.am.symbolic, llc, 866 F.3d 1315, 116 USPQ2d 1406, 1409 (TTAB 2015);
Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
Opposition No. 91238236
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As noted, Applicants services are:
“Educational services, namely, developing leadership and
executive development training programs and providing
business education programs to entrepreneurs in the gay,
lesbian, bisexual, and transgender community; organizing
and hosting of events for educational purposes in the field
of entrepreneurship and diversity in the cannabis industry;
organization and arrangement of educational and
instructional seminars and conferences regarding the
intersection of lesbian, gay, bisexual, and transgender
issues with entrepreneurship and advocacy in the adult use
and medical cannabis industries; Providing news in the
field of current events relating to the intersection of
lesbian, gay, bisexual, and transgender issues with
entrepreneurship and advocacy in the adult use and
medical cannabis industries”; and
“Arranging, organizing, conducting, and hosting business
networking events; organizing business networking events
for entrepreneurs; Association services, namely, promoting
the interests of the lesbian, gay, bisexual, and transgender
communities; promoting public awareness and public
advocacy to promote awareness in the fields of lesbian, gay,
bisexual, and transgender topics; promoting public
awareness of prejudice and discrimination against gay,
lesbian, bisexual, and transgender persons; providing on-
line web directory services featuring hyperlinks to websites
of others; Association services, namely, promoting the
interests of those wishing to discuss the intersection of
lesbian, gay, bisexual, and transgender issues with
entrepreneurship and advocacy in the adult use and
medical cannabis industries”
and the services identified in Opposer’s Registration No. 5130459 are as follows:
“Medical clinics; Medical information; Medical screening;
Medical services, namely, assisted reproductive
procedures, gynecological healthcare, human egg donation
services, matching human egg donors with recipients, the
collection, storage, preservation and implantation of
human eggs for human fertilization purposes, providing
medical advice, consultation and counseling in the field of
human reproductive healthcare and fertility, including in
vitro fertilization, ovulation induction, intrauterine
Opposition No. 91238236
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insemination, intracytoplasmic sperm injection, blastocyst
transfer, pre-implantation genetic diagnosis of embryos,
administration of egg and sperm donations, treatments
involving third-party gestational carriers, and laparoscopy;
Mental health therapy services; Obstetric and gynecology
services; Providing personalized healthcare and medical
information in the nature of reproductive health,
infertility, and assisted reproductive procedures; Providing
a website featuring information about health and wellness,
namely, reproductive health, infertility, and assisted
reproductive procedures; Providing medical information in
the field of reproductive access and culturally sensitive
care; Providing medical information to health providers in
the form of reports in the field of reproductive access and
culturally sensitive care; Providing news and information
in the field of culturally sensitive care and reproductive
health; Providing on-line information, news and
commentary in the field of health and wellness relating to
reproductive access and culturally senstive [sic] care;
Providing personalized healthcare and medical
information in the nature of reproductive access and
culturally sensitive care; Genetic testing for medical
purposes; Human egg donation services; Maintaining
patient medical records and files; Multi-disciplinary,
integrative, outpatient health care delivery and medical
consultations.”
Opposer maintains that the respective services are related, particularly arguing
that:10
[i]n this case, Applicant’s educational, informational, and
advocacy services on behalf of members of the LGBTQ
[lesbian, gay, bisexual, transgender, and queer] community
that work within the cannabis industry are related to
Opposer’s Services, particularly, Opposer’s educational,
informational and healthcare services in relation to the
provision of medical, health, and wellness services to
members of the LGBTQ community, since cannabis
products and services are frequently marketed and sold for
medicinal and/or health and wellness. Accordingly,
consumers encountering Applicant’s educational,

10 Opposer’s Trial Brief, p. 13, 12 TTABVUE 17.
Opposition No. 91238236
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informational, and advocacy services on behalf of LGBTQ
cannabis professionals on the one hand and Opposer’s
educational, informational, and healthcare services on
behalf of LGBTQ-related medical, health, and wellness
issues on the other, under identical marks could, and are
likely, to mistakenly believe that the services emanate
from a single source.
Opposer does not highlight any specific evidence to support the asserted
relatedness between the parties’ respective services, and we therefore have focused
our attention on the testimony declaration of Opposer’s Medical Director, Ms.
Katherine Hsiao. In her declaration, Ms. Hsiao states: “Opposer is in the business of
providing culturally competent information, education, and healthcare services,
namely with respect to reproductive matters and family planning to a wide audience,
specifically including lesbian, gay, bisexual, transgender, and queer (“LGBTQ”)
individuals.”11 This statement confirms that Opposer’s information, education, and
healthcare services are primarily reproductive-related in nature, and that focus is
reflected in the limiting or explanatory language in the recitation of services in
Opposer’s pleaded registration. In contrast, a careful review of Applicant’s recitation
of services reveals that while Applicant also engages in educational, informational
and other public awareness services, those services primarily are limited to business-,
entrepreneurship- and networking opportunity-related services in the medical
cannabis industry.
In her declaration, Ms. Hsiao also states that these services, as well as the recited
“organization and arrangement of educational and instructional seminars and

11 Hsiao Decl. ¶ 7, 13 TTABVUE 4.
Opposition No. 91238236
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conferences regarding the intersection of lesbian, gay, bisexual, and transgender
issues with entrepreneurship and advocacy in the adult use and medical cannabis
industries” and “provi[sion of] news in the field of current events relating to the
intersection of lesbian, gay, bisexual, and transgender issues with entrepreneurship
and advocacy in the adult use and medical cannabis industries” are related because
“Opposer’s provision of “[c]linical medical practice consultation services,” “[m]ental
health therapy services,” “[provision of] medical information in the field of
reproductive access and culturally sensitive care,” and “[provision of] a website
featuring information about health and wellness, namely, reproductive health,
infertility, and assisted reproductive procedures” are likely to include Applicant’s
described services.”12 (emphasis added.). She adds that Opposer’s services include the
provision of educational and informational services with regard to cannabis use to
both consumers and health providers, and points out, by way of example, that
Opposer provides its educational-, informational- and heathcare-related services to
LGBTQ individuals who are HIV+. However, her explanatory statement that
“[h]istorically, individuals who are HIV+ have been recognized as being more
inclined to use medical cannabis”13 is not based on any evidence of record.
That Opposer may provide information and counseling regarding the use of
medical cannabis does not convince us, without additional evidentiary support, that
consumers would confuse the source of Opposer’s medical cannabis counseling and

12 Id. at ¶ 24, TTABVUE 9.
13 Id. at ¶ 25, 13 TTABVUE 11.
Opposition No. 91238236
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information services with Applicant’s education and information services in the
business area of the cannabis industry. Nor are we convinced, solely on Opposer’s
declaration testimony, that Applicant’s LGBTQ entrepreneurs and service providers
in the cannabis industry, especially in the context of the growing medical cannabis
industry, are likely to include the same health providers to whom Opposer provides
medical information.
Ms. Hsiao’s use of such vague terms as “likely,” “historically,” and “more inclined”
renders her testimony unclear, vague and unconvincing and calls it into question,
particularly in the absence of corroborating evidence. Accordingly, we are not
convinced that the respective services are sufficiently related for purposes of finding
a likelihood of confusion. But see Powermatics, Inc. v. Glebe Roofing Prods. Co., 341
F.2d 127, 144 USPQ 430, 432 (CCPA 1965) (testimony alone of a single, credible
witness is enough to establish common law use of a mark for the identified goods or
services); Nat'l Bank Book Co. v. Leather Crafted Prods., Inc., 218 USPQ 826,
828 (TTAB 1993) (oral testimony may be sufficient to prove the first use of a party's
mark when it is based on personal knowledge, is clear and convincing, and has not be
contradicted).
Further, as discussed infra, the record shows that both Applicant and Opposer
provide, or will provide, their respective services, in part, over the Internet to the
same target consumer, namely members of the LGBTQ community. However, this
evidence is insufficient for us to conclude that these individuals will believe that
Applicant’s business-centric services are related to Opposer’s heathcare-centric
Opposition No. 91238236
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services. If there were evidence of record, such as third-party declarations or other
indicia of third-party use or registration, of the same types of services offered by both
Applicant and Opposer being offered by the same entity, then we may have reached
a different conclusion.
Thus, the second du Pont factor concerning the relatedness of the services does
not support a finding that confusion is likely.
C. The Relatedness of the Channels of Trade and Classes of Consumers
On the face of the identifications, the obvious overlap between the services
provided by Applicant and Opposer is not the relatedness of their services performed
or to be performed, but the target consumer, the LGBTQ community. Because there
are no limitations as to channels of trade or classes of purchasers in Opposer’s
identifications of services, we must presume that Opposer’s services move in all
channels of trade usual for these services and to all classes of purchasers, including
those of Applicant. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,
1052 (Fed. Cir. 2018) (citing i.am.symbolic, 123 USPQ2d at 1750 (“In the absence of
meaningful limitations in either the application or the cited registrations, the Board
properly presumed that the goods travel through all usual channels of trade and are
offered to all normal potential purchasers.”)). Further, as noted above, the record
demonstrates that both Opposer and Applicant provide their respective services, in
part, over the Internet – a known pervasive marketplace.
Accordingly we find that the du Pont factors regarding the channels of trade and
classes of purchasers favor a finding of likelihood of confusion.
Opposition No. 91238236
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D. Conditions of Sale
In the absence of substantiating evidence, we are not persuaded by Opposer’s
contention that services related to the provision of information, education and web-
links provided to or for the benefit of specific demographic groups are typically offered
for free, and therefore likely to be consumed casually and on impulse, thus increasing
the risk of confusion. As such, we find this du Pont factor to be neutral.
E. No Actual Confusion

Opposer also argues that it need not show actual confusion because Applicant’s
applications are based on intent-to-use, so there has been no real opportunity for
actual confusion to occur. We agree. In any event, the test is likelihood of confusion,
not actual confusion, and, as often stated, it is unnecessary to show actual confusion
in establishing likelihood of confusion.” In re Big Pig Inc., 81 USPQ2d 1436, 1439-40
(TTAB 2006); see also Weiss Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14
USPQ2d 1840 (Fed. Cir. 1990).
F. Conclusion
Having considered all the evidence and arguments on the relevant du Pont factors,
we conclude that although the parties’ marks are legally identical and the parties’
respective services travel in overlapping trade channels and are offered or will be
offered to overlapping classes of purchasers, on balance, Opposer has not met its
burden to show that the respective services are sufficiently related, such that they
would be encountered by the same persons under circumstances that would give rise
to the mistaken belief that they originate from the same source. Accordingly, we find
Opposition No. 91238236
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that Opposer has failed to prove its claim of likelihood of confusion by a
preponderance of the evidence.
Decision: The opposition is dismissed.