88349288 (T.T.A.B. Apr. 8, 2021)

Tao Motor Inc.

Trademark Trial and Appeal BoardApr 8, 2021

88349288 (T.T.A.B. Apr. 8, 2021)

This Opinion is not a Precedent of the TTAB Mailed: April 8, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Tao Motor Inc. _____ Serial No. 88349288 _____ Songfong Tommy Wang of Wang IP Law Group PC, for Tao Motor Inc. John Dwyer, Trademark Examining Attorney, Law Office 116, Elizabeth Jackson, Acting Managing Attorney. _____ Before Cataldo, Kuczma and Goodman, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Tao Motor Inc. (“Applicant”) seeks registration on the Principal Register of the mark RIVAL (in standard characters) for: Electric two wheeled mobility scooters intended for commuting and recreational use, in International Class 12.1 1 As amended by Applicant on December 2, 2019. Application Serial No. 88349288 was filed on March 20, 2019, based upon Applicant’s assertion 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). An assignment of the application to Tao Motor Inc. was recorded in the USPTO on March 22, 2020. The application also includes goods in International Class 28 which are not involved in this appeal. Serial No. 88349288 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with respect to its goods in International Class 12, as amended, citing Registration No. 4511312, owned by Pride Mobility Products Corporation (“Registrant”), for the mark RIVAL for: Electrically powered wheelchairs for use by handicapped, infirm and disabled persons; repair and replacement parts for such power wheelchairs, namely, wheels, axels, motors, seats, bumpers, fenders, tires, handlebar controls for power wheelchairs, arm rests and head rests for use with powered wheelchairs, in International Class 12, as a bar to registration. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. Applicant and the Examining Attorney have submitted briefs. For the reasons set forth below, the refusal to register is affirmed. I. Evidentiary Objection Before proceeding to the merits of the refusal, we address an evidentiary matter. The Examining Attorney objects to the new evidence, consisting of webpages from Applicant’s and Registrant’s websites, referenced on page 6 of Applicant’s Appeal Page references to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (TSDR) system and are to the downloadable .pdf version of the documents. References to the briefs on appeal refer to the Board’s TTABVUE docket entry number, and electronic page number where applicable. Serial No. 88349288 - 3 - Brief and submitted as Exhibits 4 and 5 (10 TTABVUE 172-182) to Applicant’s Brief. These materials were not previously introduced as evidence by Applicant during the prosecution of the application. Any materials not previously made of record during prosecution of an application are untimely if submitted for the first time at briefing. Thus, the evidentiary record in an application should be complete prior to the filing of an ex parte appeal to the Board and exhibits attached to a brief that were not made of record during examination are untimely, and generally will not be considered. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). See also In re Jimmy Moore, LLC, 119 USPQ2d 1764, 1766-67 (TTAB 2016) (excluding as untimely the first page of the applicant’s patent submitted with its appeal brief); In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1080 (TTAB 2010) (to the extent evidence submitted with applicant’s appeal brief had not been previously submitted, it is untimely and not considered); In re Trans Continental Records Inc., 62 USPQ2d 1541, 1541 n.2 (TTAB 2002) (materials from web search engines submitted with appeal brief not considered); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 1203.02(e) and 1207.01 (2020). Accordingly, Applicant’s argument regarding the content of Exhibits 4 and 5, as well as the materials submitted as Exhibits 4 and 5 with Applicant’s Appeal Brief, will not be considered. II. Likelihood of Confusion Our determination under § 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 Serial No. 88349288 - 4 - enunciated in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Ft. 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.”). We have considered each DuPont factor for which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less weighty roles in any particular determination.”); see also Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (not all of the DuPont factors are relevant to every case, only factors of significance to the particular mark need be considered). Serial No. 88349288 - 5 - A. Similarity of the Marks Applicant’s mark RIVAL is identical to the cited mark which Applicant has admitted.2 “When word marks are identical but neither suggestive nor descriptive of the goods associated with them, the first DuPont factor weighs heavily against the applicant.” In re Majestic Distilling, 65 USPQ2d at 1204; see also In re i.am.symbolic, 123 USPQ2d at 1748; In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed.Cir.1984). Even when 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. In re Shell Oil, 26 USPQ2d at 1689. Thus, the first DuPont factor, the similarity of the marks, weighs heavily in favor of finding a likelihood of confusion. B. Similarity of the Goods, Channels of Trade and Classes of Customers We turn to the next DuPont factors involving the similarity or dissimilarity and nature of the goods, and the channels of trade and classes of customers. Where identical marks are involved, as is the case here, the degree of similarity between the goods that is required to support a finding of likelihood of confusion declines. In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015) (citing In re Shell Oil, 26 USPQ2d at 1689), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). Notwithstanding Applicant’s argument regarding the differences in the actual scope of its own and the cited Registrant’s commercial uses of their marks,3 the 2 Applicant’s Brief p. 6 (10 TTABVUE 7). 3 Applicant’s Brief p. 6 (10 TTABVUE 7). Serial No. 88349288 - 6 - nature, scope and similarity of the goods must be determined based on the identification of goods listed in the application and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (citing In re i.am.symbolic, 123 USPQ2d at 1749); In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into the registrant’s description of goods.”). In response to the first Office Action, Applicant amended its identification of goods to “electric two wheeled mobility scooters intended for commuting and recreational use” explaining that its goods are “not intended for use for those with mobility handicaps.”4 Accepting the amendment to the identification of goods and acknowledging the information Applicant provided regarding the goods, the Examining Attorney made the partial refusal to register the mark under § 2(d) for the goods in Class 12 final in view of Registration No. 4511312.5 Applicant’s amended identification of goods, “electric two wheeled mobility scooters intended for commuting and recreational use,” was considered to be related to Registrant’s goods specifically, “electrically powered wheelchairs.” 4 December 2, 2019 Response to Office Action. 5 January 6, 2020 Final Office Action at TSDR 4-6. Serial No. 88349288 - 7 - According to the definition submitted by the Examining Attorney, a “mobility scooter” is “an electrically powered scooter designed for people with restricted mobility, typically those who are elderly or disabled.”6 In support of the refusal, the Examining Attorney submits evidence from the USPTO’s X-Search database consisting of a sample of third-party marks registered for use in connection with the same or similar goods as those of both Applicant and Registrant, i.e., mobility scooters, and wheelchairs, under the same mark:7 Mark Reg. No. Goods Registrant 5220963 Mobility scooters, mopeds, wheelchairs … Guangzhou Suoman Tech. Co., Ltd. 5441253 Electric self-balancing scooters, wheelchairs, electrically-powered motor scooters, mobility scooters, motor scooters, motorized electric-powered self- propelled self-balancing wheeled personal mobility transportation devices … Shenzhen Lingdismart Tech. Co., Ltd. VGEBY 5321628 motor scooters, motorised wheelchairs for the disabled and those with mobility difficulties, motorized electric-powered self-propelled self-balancing wheeled personal mobility transportation device, vehicles for the physically handicapped and those of reduced mobility… Shen Zhen Shi Yi Bai Wang Luo Ke Ji You Xian Gong Si 6 January 6, 2020 Final Office Action at TSDR 119 “mobility scooter” Lexico Dictionary, https://www.lexico.com/en/definition/molibity_scooter, Copyright 2020 by Lexico.com. 7 January 6, 2020 Final Office Action at TSDR 10-74. The chart lists only the goods considered pertinent in each registration. Serial No. 88349288 - 8 - KEENSO 5535554 motor scooters, motorised wheelchairs for the disabled and those with mobility difficulties, motorized electric-powered self-propelled self-balancing wheeled personal mobility transportation devices, motorcycles … Shen Zhen Shi Yi Bai Wang Luo Ke Ji You Xian Gong Si NANJI 5846163 wheelchairs, mobility scooters, motor scooters, motorized mobility scooters, motorized personal mobility scooters, motorcycles … NanjiE- commerce (Shanghai) Ltd. INSIPAI 5711062 electric motorcycles, electric wheelchairs, electrically- powered motor scooters, mobility scooters, mopeds, motor scooters, self- balancing one-wheeled electric scooters, self- balancing two-wheeled electric scooters Yongkang Insipai Trading Co., Ltd. 5725375 electric motorcycles, mobility scooters, mopeds, wheelchairs Wuxi Truckrun Motor Co., Ltd. HUKKKYVIT 5617611 mobility scooters, wheelchairs, motorized, electric-powered self- propelled self-balancing wheeled personal mobility transportation device, self- balancing two-wheeled electric scooters … Guangzhou Xingruifa Tech. Co., Ltd. 5911863 electric motorcycles, electrically operated wheelchairs, motor cycles, motor scooters, motorized mobility scooters, motorized personal mobility scooters, self-balancing one-wheeled electric scooters, self- balancing two-wheeled Shenzhen Future Dog Tech. Co., Ltd. Serial No. 88349288 - 9 - electric scooters, self- balancing unicycles … ETOOGO 5702898 mobility scooters, motor scooters, motorised wheelchairs for the disabled and those with mobility difficulties, motorized electric-powered self-propelled self-balancing wheeled personal mobility transportation device, self- balancing two-wheeled electric scooters … Shenzhen Dingchen Electronic Tech. Co., Ltd. AIRKOUL 5756186 mobility scooters, motorized electric-powered self- propelled self-balancing wheeled personal mobility transportation device, self- balancing one-wheeled electric scooters, self- balancing two-wheeled electric scooters, wheelchairs … Foshan Nanhai Xianghao Trading Co., Ltd. 5756498 electrically-powered motor scooters, mobility scooters, mopeds, motor scooters, motorcycles, motorized mobility scooters, motorized, electric-powered self-propelled self-balancing wheeled personal mobility transportation device, self- balancing one-wheeled electric scooters, self- balancing two-wheeled electric scooters, self- balancing unicycles, wheelchairs … Shenzhen EPC Tech. Co., Ltd. Serial No. 88349288 - 10 - 5794084 all-terrain wheelchairs for use in the sand, use at the beach; electric motorcycles; electrically-powered motor scooters; motor scooters; motorized mobility scooters; motorized personal mobility scooters; motorized electric- powered self-propelled self- balancing wheeled personal mobility transportation device … ShenZhen YuanHengTai Technology Co., Ltd. 5794250 mobility scooters; mopeds; motorcycles; wheelchairs Maxbike Inc. 5794251 mobility scooters; mopeds; motorcycles; wheelchairs Maxbike Inc. HOPTHINK 5860893 mopeds, wheelchairs, electrically-powered motor scooters, motor scooters, motorized mobility scooters, motorized personal mobility scooters, self-balancing scooters, self-balancing one- wheeled electric scooters, self-balancing two-wheeled electric scooters … Shenzhen Yuway Technology Co., Limited EMOKO 5860903 mopeds; wheelchairs; electrically-powered motor scooters; motor scooters; motorized mobility scooters; motorized personal mobility scooters; self-balancing one- wheeled electric scooters; self-balancing two-wheeled electric scooters … Shenzhen Yuway Technology Co., Limited TURBOANT 5889069 electrically-powered motor scooters, electrically operated wheelchairs, fork lift trucks, mopeds, motor Shenzhen Deling Technology Co., Ltd. Serial No. 88349288 - 11 - scooters, motorized personal mobility scooters 5907213 mobility scooters, mopeds, motor scooters, electrically- powered motor vehicles, wheelchairs … Jocky Strong 5925256 electrically-powered motor scooters, mobility scooters, mopeds, motor scooters, motorcycles, motorized mobility scooters, motorized electric-powered self- propelled self-balancing wheeled personal mobility transportation device, self- balancing one-wheeled electric scooters, self- balancing two-wheeled electric scooters, wheelchairs . . . TST GRP LLC The twenty active, use-based third-party registrations, are owned by seventeen different registrants for marks registered in connection with the same or similar goods to those in Applicant’s application (with respect to the goods in Class 12) and the cited registration. These active third-party registrations show that Applicant’s goods, electric two-wheeled mobility scooters intended for commuting and recreational use, i.e., mobility scooters, and Registrant’s goods, electrically powered wheelchairs, are of a kind that may emanate from a single source under a single mark, and thus are related for the purpose of determining likelihood of confusion. See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018) (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 Serial No. 88349288 - 12 - USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)). While these registrations are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless have probative value to the extent they serve to suggest that the identified goods are of a kind which are produced or marketed by a single source under a single mark. See Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both parties, if presented, is relevant to the relatedness analysis”); In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). Thus, these third-party, use-based registrations support the relatedness of Applicant’s and Registrant’s goods. The confusion which the Trademark Act is concerned with is not only that a purchaser would mistakenly choose Applicant’s or Registrant’s goods but also whether such a purchaser, familiar with Registrant’s goods, would believe that Applicant’s goods emanated from Registrant (or vice versa), or that the goods provided by each were somehow associated with the same source. In re Uncle Sam Chem. Co., 229 USPQ 233, 235 (TTAB 1986). Thus, the issue is not whether purchasers would confuse the goods, but rather whether there is a likelihood of confusion as to the source thereof. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The goods need not be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that the goods are related in some manner Serial No. 88349288 - 13 - or that the conditions surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances that could give rise, because of the marks used thereon, to give rise to a mistaken belief that they emanate from or are in some way associated with the same source or that there is an association between the source of each of the parties’ goods. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991). Applicant argues that its goods are scooters used for commuting and recreational use while Registrant’s goods are electric wheelchairs used by handicapped, infirm, or otherwise disabled persons, concluding there is no overlap of consumers between these types of products as those consumers who use Registrant’s goods are highly unlikely to be able to use Applicant’s goods.8 However, Applicant’s argument stops short. Applicant’s and Registrant’s goods need not be identical, or even competitive, to find a likelihood of confusion. See On- line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods ...] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7- Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See e.g., On-Line 8 Applicant’s Brief p. 6 (10 TTABVUE 7). Serial No. 88349288 - 14 - Careline v. Am. Online, 56 USPQ2d at 1475; In re Peebles Inc., 23 USPQ2d 1795, 1796 (TTAB 1992); In re Int’l Tel. & Tel. Corp., 197 USPQ 910, 911 (TTAB 1978). With respect to the channels of trade, our determination under this factor is also based on the goods identified in the cited Registration and the goods identified in Applicant’s application. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (“It was proper, however, for the Board to focus on the application and registrations rather than on real world conditions, because ‘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 . . . .’” (quoting Octocom Sys., Inc. v. Hous. Comptr. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990))); Coach v. Triumph Learning, 101 USPQ2d at 1722-23; In re Dixie Rests., 41 USPQ2d at 1534. In the Office Action making the refusal to register final, the Examining Attorney submits evidence of representative third-party webpages “demonstrating that wheelchairs and mobility scooters for recreational use travel in the same channels of trade to the same potential customers”9:  1· 800Wheelchair.com (TSDR 75-85) Recreational Scooters (TSDR 75-82) including E-Wheels 36 Mobility Scooter Max Speed 18 mph (TSDR 77), E-Wheels EW-19 Sporty Scooter Max Speed 15 mph (TSDR 77-78), E-Wheels 38 Heavy Duty Mobility Scooter Max Speed 15 mph (TSDR 78), E-Wheels 72 4 Wheel Scooter Max Speed 15 mph (TSDR 81-82), and E-Wheels EW-52 Scooter Max Speed 15 mph (TSDR 82). https://www.1800wheelchair.com /category/recreational-scooters/?p=1 9 See January 6, 2020 Final Office Action, TSDR 6, 75-156. Serial No. 88349288 - 15 - Power Wheelchairs (TSDR 83-85) https://www.1800wheelchair.com/category/power-wheelchairs/  MobilityScooters Direct.com (TSDR 86-100) Recreational Scooters (TSDR 86-89): Recreational Mobility Scooters Recreational scooters are usually much those [sic] that typically faster and meant for leisure travel rather than a typical mobility scooter that is mainly used to provide mobility to users that suffer from a disability or injury. Most of the recreational mobility scooters that we carry are much faster than the average scooter that we carry. . . . What Are Recreational Mobility Scooters? Recreational scooters are meant to be stylish and fun instead of serving as a medical mobility product. They’re usually a lot faster, bigger and a lot more fun to ride around with. Some of our models are designed to even look like a low rider motor cycle which our biker customers love! . . . https://www.mobilityscootersdirect.com/mobility-scooters/recreational- scooters.html Power Wheelchairs (TSDR 90-100)  Spinlife (TSDR 101-108, 118) Mobility Scooters (TSDR 101-104) Recreational Scooters (TSDR 102, 118) These fast and fun scooters are packed with high-end features, comfort packages and come in vibrant colors https://www.spinlife.com/category.cfm?categoryID=4 Power Wheelchairs (TSDR 105-108) https://www.spinlife.com/category.cfm?categoryID=3  Scooters ‘N Chairs (TSDR 109-117) Recreational Mobility Scooters (TSDR 109-112) Serial No. 88349288 - 16 - E-Wheels, Drive Medical: King Cobra, Panther HD, Merits: Silverado Extreme 4 Wheel, Golden Technologies: Avenger 4-Wheel Scooter, Afikim: Afiscooter S 3-Wheel Scooter, Afiscooter C 4-Wheel Scooter, Afiscooter C 3-Wheel Scooter, Tzora Titan 4 Scooter and Titan 3 Scooter, Merits: Silverado 4 Wheel, Pride Pursuit Rugged Outdoor Scooter . . . Recreational Mobility Scooters (TSDR 113-114) . . . Power Scooters are not just for the Elderly or Physically Impaired Even though our entire mobility scooter lineup is appropriate for seniors or those with physical limitations – our range of all-terrain scooters are best suited to those who are looking for the fastest ride possible, do a lot of leisure travelling and enjoy outdoor trekking on 4-wheels (or 3- wheels). Our recreational scooters boast the most power, performance and durability – than, say, the average power scooter that might be appropriate for seniors. . . . Never heard of a Recreational Power Scooter before? Recreational scooters are meant to serve as a fun and stylish way of enjoying off-roading and trial [sic] riding, rather than a mobility aid. They are typically a lot faster, larger, heavier and just plain fun to ride around. They offer practically the same excitement as a dirt bike, but in 3-wheel and 4-wheel configurations. . . . Fast and a lot of fun to drive, recreational scooters are ideal for all ages – whether you’re a college-going student, a thrill-seeking adult or a senior who loves staying active. Whether you want to drive around at the beach, farm lands, community centers or college campuses, they are indeed a stylish way to move around. If joyriding is your thing, then our recreational scooters will help you break the mold. Hang out with a bunch of friends at the mall, walk your dog as you turn heads and get complements [sic] or simply go joyriding around town. . . . About Scooters ‘N Chairs (TSDR 116) At Scooters ‘N Chairs, we are an authorized US reseller for top manufacturers in the power scooter and wheelchair market . . . . https://www.scootersnchairs.com/collections/recreational-mobility-scooters Serial No. 88349288 - 17 -  Electric Wheelchairs USA (TSDR 138-150) AFIKIM Electric Vehicles (TSDR 138-143) Afikim Mobility Scooters . . . All of these Afikim units can be used around the yard, at the warehouse, or can assist you as you ride down to the store. (TSDR 139) https://www.electricwheelcharisusa.com/collections/afikim-mobility- scooters All Wheelchairs (TSDR 144-150) https://www/electricwheelchairsusa.com/collections/all-wheelchairs  Triple M Mobility (TSDR 153-156) Power Wheelchairs, Scooters, Manual Wheelchairs . . . (TSDR 153) New Power Wheelchairs, New Mobility Scooters and Recreational Scooter (TSDR 154) https://www.triplemobility.com/pages/buy-power-manual-wheelchairs- mobility-scooters-houston-tx Recreational Scooters ZooMe-R4, Raptor 3-Wheel, ZooMe-R3 and ZooMe 3-Wheel (TSDR 155-156) https://www.triplemobility.com/pages/new-mobility-scooters/recreational- scooter-houston-tx Thus, the evidence of third party websites offering mobility scooters and wheelchairs, both for recreational use, also supports that Applicant’s and Registrant’s goods are sold or provided through the same trade channels and are related. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009). In further support of the relatedness of Applicant’s and Registrant’s goods, the Examining Attorney notes that nothing in Registrant’s identification of goods precludes Registrant’s wheelchairs from being used for commuting and recreation. As shown in the webpages and online articles submitted by the Examining Attorney, Serial No. 88349288 - 18 - wheelchairs are used for commuting and recreational activities. Examples from the submissions of the Examining Attorney include:10  ElderCare link (TSDR 5-6) There was a time when being in a wheelchair meant giving up all the things you enjoyed so much before you became unable to move freely on your own. Going to the beach became a hassle, because the wheels of your wheelchair would sink into the sand, and perhaps even have trouble on the boardwalks. Being active on a basketball court, golf course, or even the football field were considered impossible. But with new advances in wheelchair technology, lightweight wheelchairs and recreational accessories can allow wheelchair users to do what they want to do--and do it well. Recreational Wheelchairs Wheelchairs that can take you “off road” are popular among those who love the great outdoors. Recreational wheelchairs with wide, balloon-style wheels are perfect for venturing onto a sandy beach, because the pneumatic tires allow for plenty of surface area to help keep the wheelchair upright. Wheelchairs with wheels that move independently of each other are great for moving over rough terrain, such as a wooded trail or rocky shore. Wheelchair accessories are available to customize recreational wheelchairs. For instance, a camouflage or “hunter orange” frame can make a wheelchair more suitable for those who enjoy hunting. Wheelchairs with “cages” or guards on the front can help you play more physical sports, such as wheelchair football or rugby. http://webcache.googleusercontent.com/search?q=cache:M dLyNKx6I9oJ:www.eldercarelink.com/elder-mobility/opti ons-for-recreational-or-lightweightwheelchairs.htm+&cd= 16&hl=en&ct=clnk&gl=us. 10 July 29, 2020 Denial of Request for Reconsideration, TSDR 3. Serial No. 88349288 - 19 -  Design Buzz (TSDR 26-29) Hubless Wheelchair: Effortless commuting for the physically challenged ... It will make commuting effortless for the physically challenged. https://webcache.googleusercontent.com/search?q=cache:ix qKZSRUcB4J:https://designbuzz.com/hubless-wheelchair- effortless-commuting-for-the-physicallydisabled/+&cd=2& hl=en&ct=clnk&gl=us.  New Mobility (TSDR 38-39) Wheelchair Add-Ons to Make Commuting Easier ... The SmartDrive MX2+ ($5,990 from a variety of DME retailers) is a power assist device that attaches to the back axle of most manual wheelchairs. It’s controlled by a Bluetooth wristband. It can either keep you rolling at the speed you’re pushing, reducing the amount you need to push to maintain speed, or it can provide independent power to get you up hills or ramps. https://www.newmobility.com/2017/11/wheelchair-add-ons -make-commuting-easier.  Scootaround (TSDR 45-47) 10 Awesome Activities for Wheelchair Users ... These days, just about any sport is adaptive for people with limited mobility – from hitting the skate park to rock climbing, and everything in between. Here are 10 recreational activities that wheelchair users and people with limited mobility can get out there and enjoy, ranked (approximately) from least to most adventurous. Galleries and museums Browsing around a gallery or museum is a stimulating activity that can be either solitary or social. Most major North American cities have easily accessible museums and galleries for you to enjoy, and they make for a great way to get out of the house in cold, rainy, or winter weather. Nature trails Serial No. 88349288 - 20 - Most cities have public parks and open spaces, many of which feature accessible trails for wheelchair users. ... Team sports Many states and provinces have organizations offering team sports for wheelchair users – including basketball, rugby, and more – from the recreational to competitive level. https://webcache.googleusercontent.com/search?q=cache:Q EGHzxZWIsJ:https://scootaround.com/en/10-awesome-acti vities-for-wheelchairusers+&cd=5&hl=en&ct=clnk&gl=us.  Adaptive Living Guide (TSDR 49) Wheelchair Sports Activities Competitive wheelchair sports activities began in the late 1940's when disabled war veterans began tossing a basketball around their hospital ward, according to the Paralyzed Veterans of America Association. https://webcache.googleusercontent.com/search?q=cache: WHs4mHZiQa4J:https://www.mobility-advisor.com/wheel chair-sports-activities.html+&cd=15&hl=en&ct=clnk&gl= us. Applicant contends that there is no overlap of consumers between its goods and Registrant’s goods11 but offers no evidence in support of its contention. The evidence of record submitted by the Examining Attorney establishes that it is common for the same source to provide Applicant’s goods under the same mark as Registrant’s goods, and that the respective goods are offered in the same trade channels to the same customers. Moreover, customers familiar with Registrant’s mark RIVAL, upon encountering Applicant’s goods offered under the same mark, are likely to believe that Applicant’s 11 Applicant’s Brief p. 6 (10 TTABVUE 7). Serial No. 88349288 - 21 - goods are in some way associated with Registrant. In view of the related nature of Applicant’s and Registrant’s goods, which travel in the same trade channels, these DuPont factors weigh in favor of finding a likelihood of confusion. C. Conclusion In determining the similarity or dissimilarity of the goods, we note that the more similar the marks at issue, the less similar the goods or services need to be for the Board to find a likelihood of confusion. In re Shell Oil Co., 26 USPQ2d 1687 at 1688- 1689 (Fed. Cir. 1993); In re Iolo Tech., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); In re Opus One Inc., 60 USPQ2d 1812 (TTAB 2001). When the marks are identical, as they are here, it is only necessary that there be a viable relationship between the goods to support a finding of likelihood of confusion. In re Iolo Tech., 95 USPQ2d at 1499; In re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Applicant’s mark and Registrant’s mark are identical, and the goods set forth in Applicant’s application, “electric two wheeled mobility scooters intended for commuting and recreational use,” are related to the electrically powered wheelchairs goods in the cited registration which travel through the same trade channels. Accordingly, the refusal to register under § 2(d) on the ground of likelihood of confusion is affirmed. Decision: The refusal to register Applicant’s mark RIVAL for the goods identified as “electric two wheeled mobility scooters intended for commuting and recreational use” in International Class 12, under § 2(d) of the Trademark Act, is affirmed. The Serial No. 88349288 - 22 - application for the remaining goods in Class 28 of the application, i.e., “toys, namely, electric scooters,” shall proceed to publication.