Syncbak, Inc.

Trademark Trial and Appeal Board

Sep 20, 2019

87640289 (T.T.A.B. Sep. 20, 2019)

Mailed: September 20, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Syncbak, Inc.
_____

Application Serial No. 87640289
Application Serial No. 87640301
_____

Vernon P. Squires of Bradley & Riley P.C. for Syncbak, Inc.

April E. Reeves, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____

Before Bergsman, Kuczma and Hudis, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Syncbak, Inc. (Applicant) filed the two applications listed below for
“telecommunications services, namely, television transmission services featuring
local television content,” in Class 38:1
1. Application Serial No. 87640289 for the mark SBTV and design reproduced
below:

1 Both applications were filed under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a),
claiming October 10, 2017 as Applicant’s date of first use of the marks anywhere and in
commerce.
This Opinion Is Not a
Precedent of the TTAB
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The description of the mark in the application reads as follows:
The mark consists of the uppercase letters SBTV over a
triangle with rounded corners with the apex pointing to the
right. The triangle extends above and below the bowls of
the letter B and ends at the left leg of the V.
Color is not claimed as a feature of the mark
2. Application Serial No. 87640301 for the mark SBTV in standard characters.
The Examining Attorney refused to register Applicant’s marks under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s marks so
resemble the registered mark SB and design, reproduced below, for, inter alia,
“streaming of video material on the internet; electronic transmission of messages;
providing multiple-user access to a global computer information network; video on
demand transmissions; webcasting services,” in Class 38, as to be likely to cause
confusion.2

2 Registration No. 4040951, registered October 18, 2011; Sections 8 and 15 declarations
accepted and acknowledged. The registration also includes services in Classes 35 and 41 that
are not relevant to the likelihood of confusion issue before us.
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The description of the mark in the registration reads as follows:
Color is not claimed as a feature of the mark. The mark
consists of The [sic] letters “SB” conjoined at the top, with
a small leaf forming the upper left-hand portion of the
letter “B”.
Inasmuch as the appeals involve common issues of law and fact, the appeals are
consolidated and the Board will render its decision in a single opinion. See, e.g., In re
S. Malhotra & Co., 128 USPQ2d 1100, 1102 (TTAB 2018) (Board sua sponte
consolidated two appeals); In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012)
(Board sua sponte consolidated two appeals). Citations are to the record in
Application Serial No. 87640289 unless otherwise indicated.3
Our determination under Section 2(d) is based on an analysis of all of the
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) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 135
S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont
factor that is relevant or for which there is evidence of record. See In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v.
M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark

3 Citations to the examination record refer to the Trademark Status and Document Retrieval
System (TSDR), by page number, in the downloadable .pdf format.
References to the briefs on appeal refer to the Board’s TTABVUE docket system. Coming
before the designation TTABVUE is the docket entry number; and coming after this
designation are the page references, if applicable.
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Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”). “[E]ach case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 177 USPQ 386, 387 (CCPA 1973). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods or 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.”); see also In re i.am.symbolic, LLC, 866 F.3d
1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis
considers all DuPont factors for which there is record evidence but ‘may focus … on
dispositive factors, such as similarity of the marks and relatedness of the goods’”)
(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,
1380 (Fed. Cir. 2002)).
I. Similarity or dissimilarity and nature of the services.
Applicant is seeking to register its marks for “telecommunications services,
namely, television transmission services featuring local television content.” The
description of services in the registered mark is, inter alia, “streaming of video
material on the internet; electronic transmission of messages; providing multiple-
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user access to a global computer information network; video on demand
transmissions; webcasting services.”
The word “Stream,” as a verb, is defined, inter alia, as “to transfer (digital data,
such as audio or video material) in a continuous stream especially for immediate
processing or playback.”4
The word “Webcast” is defined as “a transmission of sound and images (as of an
event) via the World Wide Web.”5
Herb Skoog, Applicant’s Vice President of Operations, testified that Applicant
“provides the delivery of local television content to handheld devices such as cellular
phones, tablets and laptops … using the mark SBTV.”6 Therefore, Applicant is
providing streaming, video on demand, and webcasting services.
The Examining Attorney submitted an article from Variety.com and Applicant’s
website that refer to Applicant’s services as “streaming” and featuring videos that
may be played on demand or webcast.
Variety.com (May 16, 2018)7
[Applicant] Launches SBTV Platform to Stream Local TV
Programming Nationwide

4 Merriam-Webster.com attached to the August 28, 2018 Office Action (TSDR 29); see also
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2018)
(ahdictionary.com) (TSDR 34) (“Computers To transmit or receive (audio or video content),
especially over the internet in small, sequential packets that permit the content to be played
continuously as it is being received without saving it to a hard disk.”).
5 Merriam-Webster.com attached to the August 28, 2018 Office Action (TSDR 23);
6 Skoog Decl. ¶2 attached to the July 25, 2018 Response to Office Action (TSDR 11).
7 August 28, 2018 Office Action (TSDR 10-12).
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[Applicant], a streaming TV provider that powers internet
delivery of local TV programming in the U.S., is broadening
its over-the-top-horizons.
The company, whose backers include CBS and Gray
Television, has introduced an expanded platform that lets
broadcasters and content owners deliver local
programming to viewers nationwide.
… the company has created a marketplace to let content
owners syndicate and license their live and on-demand
programming for OTT delivery through local television
stations that participate on SBTV.
… “I started [Applicant] to connect every broadcaster to
every viewer over the Internet,” Jack Perry, founder and
CEO of [Applicant], said in [a] statement.
… This March, Gray Television’s KTUU station in
Anchorage, Alaska, used SBTV to stream the famed
Iditarod dogsled race live both locally and nationwide.
… On Wednesday evening, [Applicant] is hosting a
“TechFronts” event at its New York media center, where it
plans to conduct the first, direct-to-OTT live stream with
dynamic ad insertions to viewers across the U.S. in all 210
designated market areas on the SBTV app or its syncbak.tv
website.
Applicant’s website SBTV.com shows that Applicant’s “television transmission
services featuring local television content” is a streaming service.8 An excerpt from
the website is reproduced below:

8 Id. at TSDR 19.
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Because “television transmission services featuring local television content” may
be provided through“streaming of video material on the internet,” “video on demand
transmissions,” and “webcasting services,” the services are closely related, if not in
part identical. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137
(TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”).
Under this DuPont factor, the Trademark Examining Attorney need not prove,
and we need not find, similarity as to each activity listed in the description of services.
It is sufficient for a refusal based on likelihood of confusion that relatedness is
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established for any activity encompassed by the identification of services in 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 i.am.symbolic, llc, 116 USPQ2d
1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In
re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for
finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
application.”).
Applicant argues that the services differ substantially because “registrant is a
self-described ‘commerce community’ that solicits corporate memberships and
facilitates communication about sustainability and environmental and social
innovation,” and that “registrant doesn’t market or deliver television content.”9
However, we must analyze the similarity or dissimilarity and nature of the services
based on the services as they are described in the application and the cited
registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
1321, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an applicant’s mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicant's goods, the
particular channels of trade or the class of purchasers to which the sales of goods are

9 Applicant’s Brief, pp. 11-12 (4 TTABVUE 12-13).
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directed.”). We may not read limitations into the identification of services. In re
i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific limitation and nothing in
the inherent nature of Squirtco’s mark or goods that restricts the usage of SQUIRT
for balloons to promotion of soft drinks. The Board, thus, improperly read limitations
into the registration”); In re Thor Tech, 90 USPQ2d 1634, 1638 (TTAB 2009) (“We
have no authority to read any restrictions or limitations into the registrant’s
description of goods.”). Therefore, we must presume that Registrant’s “streaming of
video material on the internet,” “video on demand transmissions,” and “webcasting
services” include all types of streaming, video on demand, and webcasting activities
regardless of what the evidence actually shows.
We find that Applicant’s description of services and Registrant’s description of
services are closely related, if not in part identical.
II. Established, likely-to-continue channels of trade and classes of consumers.
Because the services described in the application and the cited registration are so
closely related as to be in part identical, we presume that the channels of trade and
classes of purchasers are the same. See Viterra, 101 USPQ2d at 1908 (legally identical
goods are presumed to travel in same channels of trade to same class of purchasers);
In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745
(TTAB 2018), aff’d without opinion (No. 18-2236) (Fed. Cir. September 13, 2019)
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(“Because the services described in the application and the cited registration are
identical, we presume that the channels of trade and classes of purchasers are the
same.”); United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB
2014); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst.,
101 USPQ2d 1022, 1028 (TTAB 2011).
Further, the evidence shows that because local television content is the subject
matter of Applicant’s television transmission services and it may be webcasted or
streamed, the television content may be viewed through television transmission,
webcasting or streaming by some of the same consumers. As Mr. Skoog testified, “a
person might want to watch their local television news while traveling in another
state. SBTV provides the ability to do that.”10 Therefore, the classes of consumers are
the same.
As noted above, Applicant argues that Registrant is not providing television
content; rather, Registrant is marketing its services to corporations and individuals
interested in social and environmental issues and connects with them through online
content and live events.11 Notwithstanding Applicant’s argument and evidence
regarding the actual scope of its own use and the use of the mark in the cited
registration, we may not limit, by resort to extrinsic evidence, the scope of services as
identified in the cited registration or in the subject application. E.g., In re Dixie Rests.,
Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Fisher

10 Skoog Decl. ¶2 attached to the July 25, 2018 Response to Office Action (TSDR 11).
11 Applicant’s Brief, p. 13 (4 TTABVUE 14).
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Scientific Co., 440 F.2d 43, 169 USPQ 436, 437 (CCPA 1971); In re La Peregrina Ltd.,
86 SPQ2d 1645, 1646 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763,
764 (TTAB 1986). When there is no limitation in Registrant’s identification of
services, we must presume that Registrant’s services are offered in all channels of
trade that would be normal for such services, and that they would be purchased by
all potential customers. See CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199
(Fed. Cir. 1983); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
III. The similarity of dissimilarity of the marks.
We turn now to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co.,
390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in
either form, spelling or sound alone is likely to cause confusion.”) (citation omitted).
In comparing the marks, we are mindful that where, as here, the services are so
closely related as to be in part identical, the degree of similarity necessary to find
likelihood of confusion need not be as great as where there is a recognizable disparity
between the services. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century
Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters.
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Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Prod.
Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
“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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (quoting Coach Servs., 101 USPQ2d at 1721); see also
Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103
USPQ2d 1435, 1440 (Fed. Cir. 2012).
Applicant is seeking to register the marks SBTV, in standard characters, and
SBTV and design, reproduced below:

The mark in the cited registration is SB and design reproduced below:

The marks are similar because they share the letters SB.
The design elements are not so distinctive as to distinguish the marks. Although
we assess each mark in its entirety, the literal portion often is considered the
dominant feature of a mark comprising both literal and design elements because it is
most likely to indicate the source of the services. See Jack Wolfskin Ausrustung Fur
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Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1134 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982 (2016); In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). There is nothing
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, such as a common dominant element, provided the
ultimate conclusion rests on a consideration of the marks in their entireties. Viterra,
101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).
In Applicant’s marks for use in connection with “television transmission services
featuring local television content,” the letters SB are the primary source-indicating
feature because the letters “TV” are the abbreviation for the word “television” which
is descriptive.12 It is well settled that descriptive matter may have less significance
in likelihood of confusion determinations. See In re Detroit Athletic Co., 903 F.3d 1297,
1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing Dixie Rests., 41 USPQ2d at
1533-34); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846
(Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting Nat’l Data Corp., 224 USPQ at 752); Dixie
Rests., 41 USPQ2d at 1533-34.

12 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2018)
(ahdictionary.com) attached to the January 29, 2018 Office Action (TSDR 11); see also
Merriam-Webster.com attached to the August 28, 2018 Office Action (TSDR 6).
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Further, the letters SB which are the lead elements in Applicant’s marks have
prominence because they are likely to be noted and remembered by consumers so as
to play a dominant role in the marks. See Hercules Inc. v. Nat’l Starch and Chem.
Corp., 223 USPQ 1244, 1246 (TTAB 1984) (applicant’s mark NATROL is similar to
the registered mark NATROSOL); see also In re Detroit Athletic Co., 128 USPQ2d at
1049 (finding “the identity of the marks’ two initial words is particularly significant
because consumers typically notice those words first”); Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005) (“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);
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the
identical lead word); 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”).
Where, as here, “the dominant portion of both marks is the same, then confusion
may be likely notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624,
624 (TTAB 1985). Because (1) the dominant elements in Applicant’s marks and the
registered mark are the letters SB, (2) the letters TV in Applicant’s marks are
descriptive, and (3) the design elements of the marks are not so distinctive as to
distinguish the marks, we find that Applicant’s marks are similar to the mark in the
cited registration.
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Applicant argues that while the shared letters SB “might superficially suggest
similarity,” the marks engender different commercial impressions because
Registrant’s use of SB is an abbreviation for “Sustainable Brands,” citing Registrant’s
specimen of use.13 Applicant’s argument is not persuasive. First, because Applicant
did not submit Registrant’s specimen, we have no basis for considering this argument.
See Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1110 (TTAB 2007) (third-party
registrations mentioned in the trial brief cannot be considered because factual
statements in briefs can be given no consideration unless they are supported by
evidence).
Further, the Board does not take judicial notice of third-party registrations or the
documents in them. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE § 1208.02 (2019); see also; In re Wada, 48 USPQ2d1689, 1689 n.2 (TTAB
1998) (request in reply brief that Board take judicial notice of “thousands of registered
marks incorporating the term NEW YORK for goods and services that do not
originate in New York state or city” denied) aff’d, 194 F.3d 1297, 52 USPQ2d 1539
(Fed. Cir.1999); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1293
(TTAB 1986) (the Board does not take judicial notice of the files of applications or
registrations that reside in the USPTO).
Second, since the name “Sustainable Brands” is not part of the mark in the cited
registration, the fact that the letters SB in the registered mark may be an

13 Applicant’s Brief, p. 8 (4 TTABVUE 9).

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abbreviation or initials for “Sustainable Brands” is not controlling unless Applicant
can prove that the relevant consumers are aware of the derivation of SB. See HRL
Assoc. Inc. v. Weiss Assoc. Inc., 12 USPQ2d 1819, 1821 (TTAB 1989), aff’d, 902 F.2d
1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (TMM is similar to TMS even though the
mark TMS is often accompanied by the wording “total maintenance system”); Varian
Assoc., Inc. v. Lybold-Heraeus GmbH, 219 USPQ 829, 833 (TTAB 1983) (“Derivation
is especially not relevant where there is little likelihood that purchasers would be
aware of the term or terms from which the mark was derived.”).
Finally, even if the specimen to which Applicant refers shows that Registrant’s
mark engenders a different commercial impression from Applicant’s mark, a
distinction in trade dress cannot weigh against finding a likelihood of confusion
because the trade dress might be changed at any time; only the letters SB, as
presented in the mark sought to be registered (i.e., SBTV) are at issue. See Kimberly
Clark Corp. v. H. Douglas Enters., Ltd., 774 F.2d 1144, 227 USPQ 541, 543 (Fed. Cir.
1985).
Ordinarily, for a word mark we do not look to the trade
dress, which can be changed at any time. Vornado, Inc. v.
Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342
(CCPA 1968). But the trade dress may nevertheless
provide evidence of whether the word mark projects a
confusingly similar commercial impression.
Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1458
(Fed. Cir. 1992). See Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d
669, 223 USPQ 1281, 1284 (Fed. Cir. 1984). Thus, in a Board proceeding, trade dress
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may be used to find that the marks engender similar commercial impressions but not
to find that they engender different commercial impressions.
Applicant contends that because the mark in the cited registration coexisted with
the registered mark SBTV – Small Business Television (Registration No. 3030379)
(cancelled in 2016), registered by a third party, “it defies logic that the USPTO now
can urge that SB cannot co-exist with applicant’s mark SBTV.”14 As discussed above,
because Applicant did not submit a copy of Registration No. 3030379, we have
nothing to consider. Moreover, because that registration has been cancelled, it has no
probative value. A cancelled registration is not entitled to any of the statutory
presumptions of Section 7(b) of the Trademark Act. See, e.g., In re Hunter Publ’g Co.,
204 USPQ 957, 963 (TTAB 1979) (cancellation “destroys the Section [7(b)]
presumptions and makes the question of registrability ‘a new ball game’ which must
be predicated on current thought.”). Finally, we are not bound by an Examining
Attorney’s prior determination as to registrability. See In re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (the USPTO’s allowance of prior
registrations does not bind the Board or the court).
We find that Applicant’s marks SBTV and are similar to the registered
mark .

14 Applicant’s Brief, p. 10 (4 TTABVUE 11).
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IV. Conditions under which sales are made (i.e., the degree of consumer
purchasing care).
Referring to the Class 35 and 41 services, as well as Registrant’s website,
Applicant contends that a purchaser of Registrant’s “Sustainable Brands’ workshops,
conferences, etc. is likely to carefully consider his or her attendance/participation, as
it inherently involves travel considerations” and that Registrant’s “consumer
audience can be expected to be savy [sic] and educated, given the focus on
sustainability.”15 However, the relevant activities in Registrant’s description of
services are for, inter alia, “streaming of video material on the internet,” “video on
demand transmissions,” and “webcasting services,” without any restriction or
limitation to a focus on sustainability.16 We cannot resort to extrinsic evidence to
restrict the conditions under which Registrant’s services are sold. See In re Bercut-
Vandervoort & Co., 229 USPQ at 764 (evidence that relevant goods are expensive
wines sold to discriminating purchasers must be disregarded given the absence of any
such restrictions in the application or registration). Therefore, the activities

15 Applicant’s Brief, pp. 13-14 (4 TTABVUE 14-15).
16 A multiple-class application or registration may be viewed as a group of applications for
registration of one mark in connection with goods or services in particular classes, all
combined into one application. Generally, an applicant is in the same position that he or she
would have been if they had filed several single-class applications instead. G&W Labs., Inc.
v. G W Pharma Ltd., 89 USPQ2d 1571, 1574 (TTAB 2009); see also Federated Foods, Inc. v.
Fort Howard Paper Co., 192 USPQ at 28 (noting combined application is regarded as though
it were group of individual applications); In re Bonni Keller Collections Ltd., 6 USPQ2d 1224,
1226 (TTAB 1987) (noting multiple-class application for goods and services is essentially two
separate applications combined for convenience of applicant and USPTO); Electro-Coatings,
Inc. v. Precision Nat’l Corp., 204 USPQ 410, 420 (TTAB 1979)(“there are, in law, three
applications and three oppositions to be adjudicated, because each class in a multiple class
application constitutes a separate case.”). In other words, each class of goods or services is
independent from the other classes of goods or services.
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comprising the Class 35 and 41 services in the cited registration cannot limit the
scope of Registrant’s Class 38 services.
Moreover, Applicant’s contention is just attorney argument unsupported by any
evidence. As the Federal Circuit recently reiterated, “Attorney argument is no
substitute for evidence.” Cai v. Diamond Hong, Inc., 127 USPQ2d at 1799 (quoting
Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed.
Cir. 2005)); see also In re DeBaun, 687 F.2d 459, 214 USPQ 933, 934 n.4 (CCPA 1982)
(“we need not evaluate the weight to be given to the attorney's declaration with
respect to statements more appropriately made by appellant.”).
Further, we must consider the consumers to whom sales are made as including
the “least sophisticated consumer in the class.” Stone Lion Capital Partners, LP v.
Lion Capital LLP, 110 USPQ2d at 1163-64 (recognizing Board precedent requiring
consideration of the “least sophisticated consumer in the class”); see also In re
Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (finding that all
purchasers of wine may not be discriminating because while some may have preferred
brands, “there are just as likely to be purchasers who delight in trying new taste
treats.”). Because there are no restrictions, limitations, or descriptions of the relevant
consumers in the description of services, we must presume that consumers to whom
“television transmission services featuring local television content,” “streaming of
video material on the internet,” “video on demand transmissions,” and “webcasting
services” are sold include all consumers of such services. While consumers generally
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may exercise more care in those activities, there is nothing in the record to show that
it rises to the level to weigh in Applicant’s favor.
We find that the degree of consumer care is neutral.
V. Conclusion
Because the marks are similar, the services are closely related, if not in part
identical, and the presumption and evidence that the services are offered in the same
channels of trade to the same classes of consumers, we find that Applicant’s marks
SBTV, in standard characters, and for “telecommunications services,
namely, television transmission services featuring local television content” are likely
to cause confusion with the registered mark for, inter alia, “streaming of video
material on the internet” and “webcasting services.”

Decision: The refusals to register Applicant’s marks SBTV, in standard
characters, and are affirmed.