Tech Electronics, Inc.

Trademark Trial and Appeal Board

Jan 29, 2020

87448439 (T.T.A.B. Jan. 29, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 29, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Tech Electronics, Inc.
_____

(Consolidated) Serial Nos. 87437590 and 87448439
_____

Kirk A. Damman of Lewis Rice LLC
for Tech Electronics, Inc.
Andrea D. Saunders, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
_____

Before Zervas, Wellington, and Greenbaum,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Tech Electronics, Inc. (“Applicant”) has filed applications to register the following
marks on the Principal Register:
TECHCLOUD (in standard characters) and , for
“technical support services, namely, providing data center infrastructure
management in the cloud for third-parties for monitoring, administration and
management of voice, security, emergency call systems, clocks and temperature
monitoring in cloud computing IT and application systems,” in International Class
Serial Nos. 87437590 and 87448439
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42.1 With respect to the latter, stylized mark, Applicant claims the colors as features
of the marks.2
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following
registered marks:
Reg. No. 5126053 TECHCLOUDSOLUTIONS (in standard characters, on
Supplemental Register) for “Software as a service (SAAS) services
featuring software for enterprise portal; Technical consulting services in
the fields of datacenter architecture, public and private cloud computing
solutions, and evaluation and implementation of internet technology and
services; IT consulting services; Computer technical support services,
namely, desk or help desk services for IT infrastructure, operating
systems, database systems, and web applications; Technical support
services, namely, remote and on-site infrastructure management services
for monitoring, administration and management of public and private
cloud computing IT and application systems” in International Class 42;3
and

Reg. No. 4553522 CLOUDTECH (in standard characters, on Supplemental
Register) for “Technical support services, namely, diagnosing problems for
web applications, web maintenance services, and consulting services
relating to web applications, namely consulting services in the field of
installation of computer software applications; and computer services,
namely, analyzing and modifying websites and website configurations to
improve performance and speed, improving performance, speed and
database optimization for websites, enabling the installation of PHP
modules for websites, enabling the migration of websites and website
content to hosting providers, migration services for servers, maintaining
and hosting websites for others on the internet, enabling the transfer of

1 Respectively, application Serial Nos. 87437590 (filed March 4, 2017) and 87448439 (filed on
May 12, 2017). The applications are based on a claim of a bona fide intent to use the marks
in commerce, under Section 1(b) of the Trademark Act.
2 The mark is described in the application as “consist[ing] of the words ‘TECH’ in blue
capitalized, stylized letters and ‘CLOUD’ in green lowercase, stylized letters directly
following the words ‘TECH.’”
3 Registration No. 5126053 issued on the Supplemental Register on January 17, 2017.
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registered domain names between domain name registrars” in
International Class 42.4

The Trademark Examining Attorney also refused registration of both of
Applicant’s proposed marks under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §
1052(e)(1), on the ground that the proposed marks are merely descriptive of the
identified services.
Applicant appealed and requested reconsideration of the refusals for each
application. After the Examining Attorney denied the request for reconsideration, the
appeal was resumed. The Board sua sponte consolidated the appeals because they
involve common issues of law and fact, and noting that the consolidated cases may be
filed on the same brief.5
Applicant and the Examining Attorney have filed briefs. We affirm the
descriptiveness refusal and the likelihood of confusion refusal with respect to both
marks.
I. Examining Attorney’s Objection to Applicant’s Appeal Brief and
Untimely submission of Third-Party Registrations

A. Applicant’s Appeal Brief
The Examining Attorney objects to Applicant’s appeal brief on the basis that it
“clearly exceeds the length permitted under the rules.”6 Specifically, the Examining
Attorney points out that Applicant’s “self-numbered brief ends with page 21 and

4 Registration No. 4553522 issued on the Supplemental Register on June 17, 2014.
5 13 TTABVUE. All citations in this decision are made in connection with the file and docket
entries for application Serial No. 87437590, unless otherwise specified.
6 17 TTABVUE 4.
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includes an additional five pages comprising a cover page and an appended index of
cases,” thus totaling 26 pages. The Examining Attorney’s count includes the cover
and signature pages, neither of which contains argument. Applicant did not file a
reply brief or otherwise respond to this objection.
Trademark Rule 2.142(b)(2) provides that “[w]ithout prior leave of the Trademark
Trial and Appeal Board, a brief shall not exceed twenty-five pages in length in its
entirety, including the table of contents, index of cases, description of the record,
statement of the issues, recitation of the facts, argument, and summary.” See also
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1203.01
(2019). If an applicant files a brief that exceeds the twenty-five page limit or a reply
brief that exceeds the ten-page limit without prior leave of the Board, the brief will
not be considered. Id.
Rule 2.142(b)(2) does not explicitly state that a cover or signature page will be
included in the count. We have therefore considered Applicant’s brief.
B. Applicant’s Untimely Submission of Third-Party Registrations
The Examining Attorney also objects to Applicant’s attachment of copies of certain
third-party registrations with its appeal brief on the ground these were not previously
submitted and thus are untimely.7
Trademark Rule 2.142(d) provides that “[t]he record in the application should be
complete prior to the filing of an appeal. Evidence should not be filed with the Board

7 17 TTABVUE 5. Some of the registrations were previously submitted by Applicant with its
request for reconsideration and, as discussed infra, these have been considered.
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after the filing of a notice of appeal.” See TBMP § 1207.01. Accordingly, because copies
of third-party registrations were not submitted prior to the appeals, their submission
is untimely and they are not given consideration. In re Fiat Group Marketing &
Corporate Comm’s S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014) (examining
attorney’s objection to applicant’s submission of registrations with appeal brief
sustained). To be clear, we also do not consider any argument and reliance on the
untimely-filed registrations in Applicant’s brief.
II. Descriptiveness Refusal
Merely descriptive terms are unregistrable under Trademark Act Section 2(e)(1).
A term is “merely descriptive” within the meaning of § 2(e)(1) “if it immediately
conveys information concerning a feature, quality, or characteristic of the goods or
services for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123
USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer Aktiengesellschaft, 488 F.3d
960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). A term “need not immediately convey
an idea of each and every specific feature of the goods [or services] in order to be
considered merely descriptive; it is enough if it describes one significant attribute,
function or property of the goods [or services].” In re Fat Boys Water Sports LLC, 118
USPQ2d 1511, 1513 (TTAB 2016) (citing In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009, 1010 (Fed. Cir. 1987)). The determination of whether a mark is merely
descriptive must be made in relation to the goods or services for which registration is
sought. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012); In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
Serial Nos. 87437590 and 87448439
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1978) (determination of mere descriptiveness must be made not in the abstract, but
in relation to the goods or services for which registration is sought, the context in
which the mark is used, and the impact that it is likely to make on the average
purchaser of such goods or services).
When each component term in a mark is descriptive of the services, we necessarily
need to decide whether their combination “‘conveys any distinctive source-identifying
impression contrary to the descriptiveness of the individual parts.”‘ Fat Boys, 118
USPQ2d at 1515-16 (quoting Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d
1370, 1372 (Fed. Cir. 2004). On the other hand, if each term “retains its merely
descriptive significance in relation to the [services], the combination results in a
composite that is itself merely descriptive.” Id. at 1516 (citing In re Tower Tech., Inc.,
64 USPQ2d 1314, 1317-18 (TTAB 2002)).
“‘Evidence of the public’s understanding of [a] term . . . may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listing in
dictionaries, trade journals, newspapers[,] and other publications.’” Real Foods Pty
Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018)
(quoting Royal Crown Co. v. The Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041,
1046 (Fed. Cir. 2018)). “These sources may include [w]ebsites, publications and use
‘in labels, packages, or in advertising material directed to the goods [or services].’”
N.C. Lottery, 123 USPQ2d at 1710 (quoting Abcor Dev., 200 USPQ at 218).
Serial Nos. 87437590 and 87448439
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The Examining Attorney attached definitions of the composite terms:8
TECH
“noun, often attributive . . . 2. Definition of TECH: Technology . . .
3. tech abbreviation … Definition of TECH 1. technical; technically 2.
technological”

CLOUD
“6. the computers and connections that support cloud computing. Storing files
in the cloud.”

The Examining Attorney argues points to the following language from Applicant’s
website and asserts that it “illustrates the descriptiveness of the marks”:9
At Tech Electronics, our goal is to provide our customers with innovative
technology solutions to help them run their business more efficiently. With that
purpose in mind, TECHcloud – powered by Tech Electronics is now your partner
for hosted solutions. When you combine the power of the cloud, technology
expertise and customer service of Tech Electronics, the possibilities are endless.
[Underline added].

The Examining Attorney also points to the following press release for Applicant:10

8 Copies of definitions attached to Office Action issued on August 2, 2017, TSDR 21-23 and
31-34; printouts from MERRIAM-WEBSTER online dictionary website (www.merriam-
webster.com).
9 17 TTABVUE 7; referencing screenshot attached to Office Action issued on August 2, 2017,
at TSDR p. 50.
10 Id. at p. 49.
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[Highlighting added by Examining Attorney].

Based on their defined meanings and Applicant’s own description of its services
(both on its website and in its press release) we have no doubt that consumers will
immediately understand the descriptive meanings of TECH and CLOUD for services
that, as described in the application, include “technical support services . . . provid[ed]
. . . in the cloud.” Also, as illustrated from Applicant’s own website and press release,
Applicant touts its status as a “technology services” organization that combines “the
power of the cloud” with its “technology expertise” to provide a “cloud services
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platform.” Consumers encountering TECHCLOUD in connection with Applicant’s
services will immediately understand TECH as describing Applicant’s “technical
support” and “technology services.”
In its request for reconsideration, Applicant argues against the descriptiveness
refusal by asserting that there “is no monolithic definition of the word elements ‘tech’
or ‘cloud’” and that “it is impossible to state with any assurance what significance will
be attached to the TECHCLOUD mark when it is seen by ordinary purchasers of
Applicant’s services.”11 However, we reiterate the well-established principle that our
descriptiveness analysis of a mark is not made in a vacuum; rather we must consider
how the mark will be perceived by the average consumer in the context of the services
recited in the application. In re Abcor Dev. Corp., 200 USPQ at 218. Thus, the fact
that the term CLOUD may have a non-descriptive meaning when understood in a
different context has no relevance. In re Franklin Cnty. Historical Soc’y 104 USPQ2d
1085, 1087 (TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979)). “It is well settled that so long as any one of the meanings of a term is
descriptive, the term may be considered to be merely descriptive.” In re Mueller
Sports Med., Inc., 126 USPQ2d 1584, 1590 (TTAB 2018) (quoting In re Chopper
Indus., 222 USPQ 258, 259 (TTAB 1984)). We further point out that the fact that
TECH, in this case, may have multiple descriptive meanings in connection with the
involved services does not somehow render the term non-descriptive; a term that has
multiple meanings, all of which are merely descriptive of the involved goods or

11 Applicant’s request for reconsideration, filed August 27, 2018, 4 TTABVUE 12.
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services, remains merely descriptive within the meaning of Section 2(e)(1). See In re
Carlson, 91 USPQ2d 1198, 1201 (TTAB 2009).
We further find that the combination of TECH and CLOUD does not result in the
mark having a non-descriptive or incongruous meaning. Rather, because each
component retains its merely descriptive significance in relation to the services, the
combination results in a composite that is itself merely descriptive. See, e.g., In re
Oppedahl & Larson, 71 USPQ2d at 1374 (PATENTS.COM merely descriptive of
computer software for managing a database of records that could include patents and
for tracking the status of the records by means of the Internet); see also In re Phoseon
Tech., 103 USPQ2d 1822, 1823 (TTAB 2012) (“When two or more merely descriptive
terms are combined, ... [i]f each component retains its merely descriptive significance
in relation to the goods or services, the combination results in a composite that is
itself merely descriptive.”).
With its request for reconsideration, Applicant attached copies of third-party
registrations and argues that they “have all passed the scrutiny of a merely
descriptive 2(e) analysis, each involving the word elements ‘tech’ and/or ‘cloud.’”12
However, the Examining Attorney addressed each registration and made the
following comments pointing out why these registrations do not support Applicant’s
argument and, with respect to some of these registrations, corroborate the descriptive
nature of the relevant composite terms:13

12 Id., 4 TTABVUE 13-14.
13 Office Action issued on September 19, 2018, 5 TTABVUE.
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Reg. No. Mark Examining Attorney’s comments

4435503 CLOUDTECH “Principal Register with a disclaimer of
CLOUD TECH”
5126053 TECHCLOUDSOLUTIONS “Supplemental Register”
5498186 FINTECH CLOUD “disclaimer of CLOUD”
4428951 CLOUDMYOFFICE “compound mark” with additional
registrable matter
5419846 NEWTEK CLOUD
EXCHANGE
“disclaimer of CLOUD EXCHANGE”
4445056 CLOUDGOTECH “compound mark” with additional
registrable matter
5191706 CLOUDTECH “Compound mark and unrelated goods
(mattress protectors)”
4462668 CLOUDTEC “unrelated goods (footwear)”
4465624 DIALCLOUD “compound mark” with additional
registrable matter

We have confirmed the accuracy of the aforementioned comments made by the
Examining Attorney with respect to the third-party registrations and agree as to why
these third-party registrations do not support a finding that TECH or CLOUD is an
inherently distinctive term in connection with Applicant’s services. Moreover,
because some of the registrations have disclaimers of the terms, they help show that
the term was held to be descriptive and the mark was unregistrable without a
disclaimer of the term. Also, a registration on the Supplemental Register is
considered a concession by the registrant that the mark was not inherently distinctive
when it registered. In re The Clorox Co., 198 USPQ 337, 340 (CCPA 1978) (application
for Supplemental Registration is an admission of descriptiveness); In re Future Ads
LLC, 103 USPQ2d 1571, 1574 (TTAB 2012) (“Registration on the Supplemental
Register is prima facie evidence that, at least at the time of registration, the
registered mark was merely descriptive.”); In re Rosemount Inc., 86 USPQ2d 1436,
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1439 (TTAB 2008) (“because applicant seeks registration on the Supplemental
Register, applicant has conceded that the marks are merely descriptive.”)
Finally, with respect to Applicant’s mark that is stylized and includes a claim of
colors as a feature of the mark, there is no claim the mark has acquired
distinctiveness. Applicant does not argue that the stylization and color elements of
the mark, apart from the descriptive wording, create a separate and inherently
distinctive impression. In any event, any determination with regard to inherent
distinctiveness of the mark involves subjective matter that is based on a consumer’s
first impression and, in this case, we do not find that the stylization and color features
of the mark are so special to create an impression on purchasers that is separate and
apart from meaning conveyed by the merely descriptive words. In re Grande Cheese
Co., 2 USPQ2d 1447, 1449 (TTAB 1986); In re Jackson Hole Ski Corporation, 190
USPQ at 176 (“‘[D]istinctive display’ is in the eyes of the beholder, and usually
depends upon the viewer’s first impression of the matter in question.”).
In sum, we find that both of Applicant’s applied-for marks are merely descriptive
of the identified services, and registration is refused as to each mark on this ground.
III. Likelihood of Confusion Refusal
A. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in 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, two
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key considerations are the similarities between the marks and the relatedness of the
goods and 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 [or
services] and differences in the marks.”).
B. Relatedness of Services and Trade Channels
With regard to the du Pont factors involving the relatedness of the services,
channels of trade and classes of consumers, we must make our determinations based
on the services as they are identified in the application and cited registrations. See
In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997).
Applicant’s services are, again, identified as:
Technical support services, namely, providing data center infrastructure
management in the cloud for third-parties for monitoring, administration
and management of voice, security, emergency call systems, clocks and
temperature monitoring in cloud computing IT and application systems.

These services are very closely related or identical to those in each of the two
registrations.
Reg. No. 5126053 (TECHCLOUDSOLUTIONS) covers services that are described,
in part, as “Technical consulting services in the fields of datacenter architecture . . .
[and] IT consulting services . . . [and] Technical support services, namely, remote and
on-site infrastructure management services for monitoring, administration and
management of public and private cloud computing IT and application systems.” This
description of services differs only slightly from Applicant’s services. Based on the
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plain wording in the recitations, the services are clearly identical inasmuch as
Applicant and Registrant render technical support services to support data center
infrastructures in cloud computing IT environments. Indeed, the registrant’s
technical support and cloud computing IT management services are broadly
described, without any limitation, and thus would include fields like the “voice,
security, emergency call systems, clocks and temperature monitoring” described in
the application.
In view of the identity of services described in the involved application vis-à-vis
Reg. No. 5126053, we presume these services will be found in the same trade channels
and offered to the same classes of purchasers. See In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods or services are
presumed to travel in same channels of trade to same class of purchasers).
As to Reg. No. 4553522 (CLOUDTECH), the services covered by this registration
include “technical support services, namely, diagnosing problems for web
applications, web maintenance services, and consulting services relating to web
applications, namely consulting services in the field of installation of computer
software applications . . .” Applicant’s services are also prefaced with the wording
“technical support services” and include working with “data center infrastructure
management services.” Registrant’s services are not limited to any field and could
potentially include web maintenance and diagnosing problems within the same fields
that Applicant identifies, e.g., “cloud computing IT and application systems.”
Registrant’s services also include “enabling the migration of websites and website
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content to hosting providers, migration services for servers, maintaining and hosting
websites for others on the internet,” which would encompass the migration of data to
cloud-based servers. The Examining Attorney has also submitted evidence showing
that “data center infrastructure management services” and “web maintenance”
services are complementary and consumers may encounter these types of services
being rendered by a single entity.14 For example, Hewlett Packard Enterprise (HPE)
touts its “Data Center Infrastructure Solutions” capability that includes “migration
services … HPE plans, executes, and remediates the movement of data from source
systems.”15 This evidence shows the involved services being promoted together on the
same website, provided by the same entity and reaching the same classes of
consumers. Thus, we find the trade channels for Applicant’s services may overlap
with those of Registrant.
In sum, we find Applicant’s services are legally identical, at least in part, to those
in Reg. No. 5126053, and the identical services are presumed to move in the same
trade channels. Accordingly, the DuPont factors involving similarity of the services
and trade channels strongly favor a finding of likelihood of confusion with respect to
this registration. Because we have also found that the services covered by Reg. No.
4553522 are very closely related to Applicant’s services, and the evidence shows they

14 The Examining Attorney attached third-party website evidence to the Office Actions issued
on August 2, 2017 and September 19, 2018 (5 TTABVUE) showing different entities
rendering these same services.
15 Office Action issued on August 2, 2017, TSDR pp. 12-19.
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may move through some overlapping channels of trade, these DuPont factors also
weigh in favor of finding confusion likely with respect to this registration.
C. Strength or Weakness of Registered Marks
In evaluating the strength or weakness of the registered marks, we are ultimately
trying to gauge the scope of protection to which they are entitled. We consider both
inherent strength, based on the nature of each mark itself, and commercial strength
or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686
(Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).”). Our findings
are made in accordance with the fifth DuPont factor involving the “fame” or strength
of the prior mark, and the sixth factor dealing with the number and nature of similar
marks in use for similar goods or services. DuPont, 177 USPQ at 567.
The two registered marks are conceptually weak inasmuch as they are descriptive
in the context of the involved services. This is evidenced by the fact that both cited
registrations are on the Supplemental Register. In re Future Ads LLC, 103 USPQ2d
at 1574 (“Registration on the Supplemental Register is prima facie evidence that, at
least at the time of registration, the registered mark was merely descriptive.”) In
addition, as discussed, supra, the record shows that the terms TECH and CLOUD
are descriptive in connection with services that involve cloud computing technology.
Although we find the cited marks, TECHCLOUDSOLUTIONS and
CLOUDTECH, are conceptually weak, the record does not support a finding of
commercial weakness. Specifically, there is no evidence of third-party use of these
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terms, let alone that such use is so widespread that consumers have become
conditioned to distinguishing marks based on differences that would otherwise be
considered less significant. See In re i.am.symbolic, 866 F.3d 1315, 123 USPQ2d 1744,
1751 (Fed. Cir. 2017) (evidence of third-party use “falls short of the ‘ubiquitous’ or
‘considerable’ use of the mark components present in [applicant’s] cited cases”). In
this regard, we point out that the third-party registrations do not, by themselves,
constitute evidence that those marks have actually been used in commerce. Id.
(Registrations are not evidence of use of the marks in the marketplace).
Ultimately, the record supports a finding that the registered marks, because of
their descriptiveness and conceptual weakness, their scopes of protection are
narrowed.
D. Similarity of the Marks
Under this factor, we compare Applicant’s marks with the cited registered marks
“in their entireties as to appearance, sound, connotation and commercial impression.”
In re Viterra, 101 USPQ2d at 1908 (quoting du Pont, 177 USPQ at 567); see also Palm
Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005).
1. Applicant’s TECHCLOUD marks vis-à-vis TECHCLOUDSOLUTIONS
Applicant’s TECHCLOUD marks are visually and aurally similar to the registered
mark TECHCLOUDSOLUTIONS mark based on the same two initial terms in the
same word order.
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The marks will also convey the same or very similar commercial impressions given
the identity of their composite terms. The addition of the ubiquitous and descriptive
term SOLUTIONS in the registered mark does very little to help convey a different
commercial impression or otherwise distinguish the marks. The term merely
describes the intended result of Applicant’s and Registrant’s computer technical
support services; indeed, Applicant touts itself as a “your partner for hosted solutions”
and providing customers with “innovative technology solutions.”16
Moreover, with respect to Applicant’s stylized mark, we find the font stylization
and color features to be not very unique and ultimately insufficient to distinguish the
marks. The registered mark is a standard character mark, and marks appearing in
standard character form may be displayed in any stylization, font, color and size,
including the identical stylization of Applicant’s mark, because the rights reside in
the wording and not in any particular display or rendition. See Citigroup Inc. v.
Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1256 (Fed. Cir. 2011)
(“‘Standard character’ or ‘typed’ registrations are federal mark registrations that
make no claim to any particular font style, color, or size of display and, thus, are not
limited to any particular presentation.”); see also Squirtco v. Tomy Corp., 697 F.2d
1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (“[T]he argument concerning a difference
in type style is not viable where one party asserts rights in no particular display. By
presenting its mark merely in a typed drawing, a difference cannot legally be asserted
by that party.”). Thus, because the font style of the cited mark may be displayed in

16 From Applicant’s website; 14 TTABVUE 4.
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the identical manner as the literal portion of Applicant’s mark, the stylization of the
literal portion of Applicant’s mark is insufficient to distinguish the respective marks.
Finally, we point out that the degree of similarity between the marks necessary
to support a finding of likely confusion declines when, as is the case here, the services
are in-part identical. See Bridgestone Ams. Tire Operations LLC v. Federal Corp., 673
F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Century 21
Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992).
Accordingly, we find Applicant’s TECHCLOUD marks are very similar to the
registered TECHCLOUDSOLUTIONS mark and this DuPont factor also weighs in
favor of a likelihood of confusion.
2. Applicant’s TECHCLOUD marks vis-à-vis CLOUDTECH

With respect to the registered CLOUDTECH mark, Applicant’s marks are
essentially the composite of the same terms in inverse order. The Board has long and
often held marks to be confusingly similar when they are “reverse combination” of
the same words or elements or a “transposition of the words” that make up the marks
when the overall meanings of the marks remains the same. See, e.g., In re Wine Soc’y
of Am. Inc., 12 USPQ2d 1139, 1142 (TTAB 1989) (affirming refusal to register THE
WINE SOCIETY OF AMERICA & Design based on registration of AMERICAN
WINE SOCIETY 1967 & Design, finding that “the transposition of words does not
change the overall commercial impression”); In re Nationwide Industries, Inc., 6
Serial Nos. 87437590 and 87448439
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USPQ2d 1882, 1884 (TTAB 1988) (RUST BUSTER and BUST RUST for held
confusingly similar because noting that “the reversal in one mark of the essential
elements of another mark may serve as a basis for a finding of no likelihood of
confusion only if the transposed marks create distinctly different commercial
impressions.”); Fisher Sci. Co. v. Ipco Hosp. Supply Corp., 165 USPQ 471, 472 (TTAB
1970) (sustaining opposition to MIX O THERM based on THERMIX used for identical
goods, stating “they are in their essentials merely reverse combinations of the same
words, and such being the case, would more than likely convey substantially the same
commercial impressions”); Royal Crown Cola Co. v. Bakers Franchise, 150 USPQ 698,
700 (TTAB 1966), aff’d, 404 F.2d 985, 160 USPQ 192 (CCPA 1969) (“RITE DIET is
merely DIET-RITE transposed” and “create substantially the same commercial
impressions . . .”). Likewise, we find here that a reverse combination of the terms
TECH and CLOUD does not result in a different overall commercial impression; the
terms convey the same meaning in the context of the involved computer consultation
and technical support services regardless of their order.
With respect to Applicant’s stylized mark, the font and color features do not
sufficiently distinguish it from the registered CLOUDTECH mark that, again, is a
standard character mark and may be displayed with similar stylization, font, color
and size attributes. Accordingly, we find Applicant’s TECHCLOUD marks are very
similar to the registered CLOUDTECH mark and this DuPont factor also weighs in
favor of a likelihood of confusion.
Serial Nos. 87437590 and 87448439
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E. Sophistication of Consumers
In a response to an Office Action, Applicant argued that “the relevant consumers
are sophisticated and well informed” because “infrastructure and web services are
both expensive, which further increases attention to detail and means the applicable
consumers in this case are appropriately discriminating.”17 Applicant also argues
that “the goods [sic] and services offered by Applicant and the Registrants are unique,
and consumers do not casually or randomly find or purchase them on impulse.”18
There is no evidence supporting the sophistication or care of Applicant’s and
Registrants’ customers. Applicant’s contentions are 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., 901 F.3d 1367,
127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (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.”).
Even assuming, based on the nature of the involved services, that consumers will
have some level of heightened care in their selection of computer technical support,
IT consultant, etc. services, this does not necessarily mean that they are immune to
source confusion. As discussed, supra, the respective services of Applicant and

17 Response to Office Action filed February 2, 2018, at TSDR p. 8.
18 Id.
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Registrants are identical or closely related and we find that even sophisticated
purchasers for the services could be led to the mistaken belief that they originate
from the same source. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690
(Fed. Cir. 1993) (Even careful purchasers who are knowledgeable as to the services
are not necessarily knowledgeable in the field of trademarks or immune to source
confusion arising from the use of confusingly similar marks on or in connection with
those services); In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50
(Fed. Cir. 1986); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009); In
re Wilson, 57 USPQ2d at 1866. “Human memories even of discriminating purchasers
... are not infallible.” Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434
F.2d 1403, 1406, 168 USPQ 110, 112 (CCPA 1970).
In the absence of any evidence establishing relevant-consumer sophistication, the
fourth DuPont factor is neutral
F. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that there is a likelihood of confusion
between Applicant’s TECHCLOUD marks, and the marks,
TECHCLOUDSOLUTIONS and CLOUDTECH, in the cited registrations. Although
the marks in the cited registrations may be conceptually weak and accorded a
narrower scope of protection than that of a strong and arbitrary mark, they are
registered on the Supplemental Register and thus may prevent the registration of
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Applicant’s similar mark for the same or closely related services. In re Morinaga
Nyugyo Kabushiki Kaisha, 120 USPQ2d 1378 (TTAB 2016). “[E]ven weak marks are
entitled to protection against registration of similar marks.” In re Colonial Stores,
Inc., 216 USPQ 793, 795 (TTAB 1982). In this case, while the marks are not identical,
they are similar enough that their use on the same or closely related services is likely
to cause confusion.
Decision: The refusals to register Applicant’s two marks on the grounds of
descriptiveness and likelihood of confusion are affirmed.