The Hope Foundation for A Better Tomorrow, Inc.Download PDFTrademark Trial and Appeal BoardApr 4, 2019EX (T.T.A.B. Apr. 4, 2019) Copy Citation Mailed: April 4, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re The Hope Foundation for A Better Tomorrow, Inc. ———— Serial No. 87127785 ———— Mary Mintel Miller of Reid and Riege P.C., for The Hope Foundation for A Better Tomorrow, Inc. Alexandra El-Bayeh, Trademark Examining Attorney, Law Office 124, Lydia Belzer, Managing Attorney. ———— Before Wolfson, Adlin, and Pologeorgis, Administrative Trademark Judges. Opinion by Pologeorgis, Administrative Trademark Judge: The Hope Foundation for A Better Tomorrow, Inc. (“Applicant”) seeks registration on the Principal Register of the mark THE H.O.P.E. FOUNDATION FOR A BETTER TOMORROW WWW.HOPEFOUNDATION.US and design, as displayed below, for “Education services, namely, providing programs, after-school programs, and THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 87127785 2 summer camps to middle school, high school and college students in the field of character development” in International Class 41.1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the mark HOPE FOUNDATION (in standard characters; FOUNDATION disclaimed) registered on the Principal Register for, inter alia, “educational services, namely, conducting seminars and workshops developed for adults and geared toward the development of healthy, academically successful, and socially competent youth” in International Class 41.2 1 Application Serial No. 87127785, filed on August 4, 2016, based on an allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming September 1, 2014 as both the date of first use and the date of first use in commerce. The description of the mark reads as follows: “The mark consists of a blue oval with the words ‘The H.O.P.E. Foundation For a Better Tomorrow’ in white in the center, with a larger pelican above those words and a smaller pelican below those words (facing towards one another). The pelicans each have dark brown wings, light brown chests, white backs and yellow beaks. The website address ‘www.HOPEFoundation.us’ appears in white and curved along the bottom portion of the oval.” The colors blue, white, light brown, dark brown, and yellow are claimed as a feature of the mark. The term FOUNDATION is disclaimed. 2 Registration No. 2732450; registered on July 1, 2003; renewed. The Examining Attorney initially refused registration based on an additional registration owned by the same registrant for the mark HOPE FOUNDATION, i.e., Registration No. 3392303. This Serial No. 87127785 3 When the refusal was made final, Applicant appealed. The appeal is fully briefed. We affirm the refusal to register.3 I. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. Similarity of the Marks We first consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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 registration, however, has been canceled for failure to file timely Sections 8 and 9 affidavits. Accordingly, the Section 2(d) refusal on appeal is limited to cited Registration No. 2732450. 3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to the docket and electronic file database for the involved application. All citations to the TSDR database are to the downloadable .PDF version of the documents. Serial No. 87127785 4 commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (quoting Coach Servs. Inc., v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks omitted)). Applicant’s mark is . The cited mark is HOPE FOUNDATION in standard characters. When viewing Applicant’s mark, the phrase THE H.O.P.E. FOUNDATION is likely to be accorded more weight by consumers because this wording appears first. Consumers are generally more inclined to focus on the first word, prefix, or syllable in any trademark or service mark. See Palm Bay Imps. Inc., 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); see also 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) (stating that “it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”). Additionally, since the wording THE H.O.P.E. FOUNDATION appears in the largest font of any wording in the mark, has prominent placement in Serial No. 87127785 5 the center of the mark, and has a bolder blocked stylization as compared to other wording in the mark, consumers are more likely to attribute more significance to this wording. Furthermore, the website address www. HOPEFoundation.us located at the bottom portion of the mark only reinforces the dominant nature of the wording THE H.O.P.E. FOUNDATION in Applicant’s mark. Accordingly, we find that the wording THE H.O.P.E. FOUNDATION is the dominant element of Applicant’s mark. Because the dominant element of Applicant’s mark comprises the entirety of the cited mark, there is simply no other element in Registrant’s mark to which to give any weight or distinguish the marks. It is long established that the mere addition of a term to a registered mark generally does not obviate the similarity between the marks nor does it overcome a likelihood of confusion under Section 2(d) of the Trademark Act. See Coca-Cola Bottling Co. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (BENGAL and BENGAL LANCER); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406 (CCPA 1967) (THE LILLY and LILLI ANN); and In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266 (TTAB 2009) (TITAN and VANTAGE TITAN). Moreover, while Applicant’s mark comprises both words and a design element, “the verbal portion of the mark is the one most likely to indicate the origin of the [services] to which it is affixed.” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGaA v. New Millenium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). Greater weight is often given to the wording because it is the wording Serial No. 87127785 6 that purchasers would use to refer to or request the goods or services. See, e.g., In re Vieterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012). Also, the inclusion of the article “THE” in the wording THE HOPE FOUNDATION in Applicant’s mark is not significant. When comparing similar marks, the Board has found that inclusion of the article “the” at the beginning of a mark, as is the case here, will generally not affect or otherwise diminish the overall similarity between the marks. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009) (finding WAVE and THE WAVE “virtually identical” marks; “[t]he addition of the word ‘The’ at the beginning of the registered mark does not have any trademark significance.”); In re Narwood Prods. Inc., 223 USPQ 1034, 1034 (TTAB 1984) (finding THE MUSIC MAKERS and MUSIC-MAKERS “virtually identical” marks; the inclusion of the definite article “the” is “insignificant in determining likelihood of confusion”). Similarly, the periods or dots between the letters, H, O, P and E in the word HOPE in Applicant’s mark also is not sufficient to differentiate this wording from Registrant’s HOPE FOUNDATION mark since the periods or dots will not likely affect the manner in which the term HOPE is pronounced in Applicant’s mark, and they are absent from Applicant’s web address at the bottom of the mark. We must consider Applicant’s and Registrant’s marks in their entireties. Thus, we have taken into account all of the differences in appearance, sound, meaning and commercial impression between them. We nonetheless find that despite these differences, given the similarities between the marks due to the shared and dominant Serial No. 87127785 7 phrase HOPE FOUNDATION, the marks are similar in appearance, pronunciation, and connotation and engender very similar overall commercial impressions. Accordingly, the first du Pont factor favors a finding of likelihood of confusion. B. Strength/Weakness of the Cited HOPE FOUNDATION Mark The fifth du Pont factor, the fame of the prior mark, and the sixth du Pont factor, the number and nature of similar marks in use for similar services, du Pont, 177 USPQ at 567, may be considered to determine the strength of the cited mark and the scope of protection to which it is entitled. Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017). “In determining strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition.” Bell’s Brewery, 125 USPQ2d at 1345 (citing Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014)); see also 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).”). Applicant argues that, based on Registrant’s “apparent lack of web presence, phone number and sales, it appears that the Cited Marks [sic] may not even be in use, which would likely preclude it from being found famous, under the fifth Du Pont factor.”4 Notwithstanding, in an ex parte appeal such as this, the owner of the cited 4 Applicant’s Appeal Brief, p. 11; 4 TTABVUE 12. To the extent Applicant is suggesting that the cited mark is no longer in use or has been abandoned, such an argument constitutes an impermissible collateral attack on the validity of the cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re C.H. Hanson Co., 116 USPQ2d 1351, 1355 n.13 (TTAB 2015). Accordingly, we have given no consideration to this argument. Serial No. 87127785 8 registration is not a party, and the Examining Attorney is under no obligation to demonstrate exposure to or recognition of the cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). For that reason, “in an ex parte analysis of the du Pont factors for determining likelihood of confusion …, the ‘fame of the mark’ [fifth] factor is normally treated as neutral when no evidence as to fame has been provided.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(d)(ix) (Oct. 2018). Thus, because there is no evidence of record regarding the fame of the cited mark, the fifth du Pont factor is neutral. The sixth du Pont factor requires us to consider the number and nature of similar marks in use on similar services. du Pont, 177 USPQ at 567; Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016). Applicant contends that “the phrase ‘HOPE FOUNDATION’ can be found in 26 registered trademarks related to services that are arguably just as similar to the Applicant’s as those offered by the Cited Registrant.”5 Applicant, however, did not submit copies of these registrations and, therefore, they are not of record. Applicant maintains that because the Examining Attorney conducted a search of the phrases HOPE and HOPE FOUNDATION which retrieved a total of 144 marks, including 69 live viewed third-party registrations, that these marks are automatically of record.6 Applicant is mistaken. The Examining Attorney’s mere search, without more, does not make the registrations of the searched marks part of the record, even if “viewed.” 5 Applicant’s Appeal Brief, p. 12; 4 TTABVUE 13. 6 Applicant’s Reply Brief, p. 2 n.2; 9 TTABUVE 3. Serial No. 87127785 9 Accordingly, we have given no consideration to Applicant’s argument. As to conceptual strength, while we recognize that Registrant has disclaimed any exclusive right to use the term FOUNDATION apart from its mark as shown, there is no evidence of record that the cited mark HOPE FOUNDATION, when viewed in its entirety, has any non-source identifying meaning with respect to Registrant’s identified educational services, and in the absence of evidence to the contrary, we consider the aspirational term “HOPE” to be at worst suggestive. We find the phrase HOPE FOUNDATION, as a whole, is entitled to the normal scope of protection accorded inherently distinctive marks. In sum, we find that the record does not demonstrate that Registrant’s mark is commercially weak or anything other than inherently distinctive for educational services. In view thereof, Registrant’s HOPE FOUNDATION mark is entitled to at least a normal scope of protection, and the sixth du Pont factor regarding the number and nature of similar marks in use on similar services is neutral. C. Similarity of the Services We next turn to the comparison of the services, the second du Pont factor. In making our determination regarding the relatedness of the services, we must look to the services as identified in Applicant’s application and the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Computs. 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 [or services] set forth in the application regardless of what Serial No. 87127785 10 the record may reveal as to the particular nature of an applicant’s goods [or services], the particular channels of trade or the class of purchasers to which the sales of goods [or services] are directed.”)); see also In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). It is well-settled that the services need not be identical or competitive to support a holding of likelihood of confusion. It is sufficient that the respective services are related in some manner, or that the conditions and activities surrounding the marketing of the services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originate from the same source. See Coach Servs. Inc., 101 USPQ2d at 1722 (citation omitted); Hilson Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993). The issue here, of course, is not whether consumers would confuse the services, but rather whether there is a likelihood of confusion as to the source of these services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). Applicant’s identified services are “Education services, namely, providing programs, after-school programs, and summer camps to middle school, high school and college students in the field of character development.” The services identified in the cited registration are “educational services, namely, conducting seminars and workshops developed for adults and geared toward the development of healthy, academically successful, and socially and competent youth.” Here, both Applicant and Registrant provide educational services to encourage the Serial No. 87127785 11 development of young people socially, emotionally and morally.7 The only difference between the services is that Applicant’s are directed toward preteens, teenagers, and college students while Registrant’s services are provided to adults only; nevertheless, the ultimate purpose of both Applicant’s and Registrant’s services is encouraging constructive youth development. To demonstrate that Applicant’s and Registrant’s services are related, the Examining Attorney submitted Internet evidence showing that it is common for a single entity to provide educational programming for both adults and children to support the same goal of positive youth development. For example: • Celebrate Calm provides developmental training tools to help children respect their parents and for parents to help develop such attributes in their children;8 • Northern Virginia Family Service provides and advertises a series of educational programming on the same web page including two school readiness programs that “promote children’s social and cognitive development,” as well as Healthy Families, “a program for parents of children 0 to 3 years of age” that is intended to “ensure that the child’s first experiences in life encourage school readiness, mental and emotional, and physical health.”;9 7 Although Registrant’s recitation of services does not specifically identify “character development” as part of the subject matter of its educational services, we nonetheless find that the development of “socially competent youth” would encompass their “character development.” Indeed, the term “character” is defined as “the mental and moral qualities distinctive to an individual” and the word “socially” is defined as “with regard to rules about behavior in society.” See https://en.oxforddictionaries.com/. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010). As such, the development of social competence would include the development of the moral behavior or “character” traits found acceptable in society. 8 November 21, 2016 Office Action; TSDR pp. 20-22. 9 Id.; TSDR pp. 23-24. Serial No. 87127785 12 • Urban Tech provides educational programming to support students’ “social emotional learning” which includes “improved health, digital literacy, [and] financial education[]” while also “providing support to teachers and parents in an efforts to improve student education.”;10 • Growing Leaders provides programming to “prepare the emerging generation to step up and lead, beginning with themselves” and does so by teaching students “real life leadership skills in an impactful way,” and provides complementary educator-focused programming to “lead and prepare educators to guide [students] along the way.”;11 and • Character Education Network’s website provides “character education” resources for students as well as teaching and administrator areas to “review available resources” and monitor usage.12 The Examining Attorney also submitted several active third-party registrations, each identifying under a single mark the same or similar services to both Applicant and Registrant.13 Although such 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 that they serve to suggest that the services listed therein are of a kind that may emanate from a single source under a single mark. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The third-party registered 10 June 12, 2017 Office Action; TSDR pp. 17-19. 11 Id., TSDR pp. 20-23. 12 Id., TSDR pp. 24-26. 13 June 12, 2017 Office Action; TSDR pp. 8-16. The Examining Attorney also submitted a copy of Registration No. 2295557 for the mark FACTS for, inter alia, “Providing classes, workshops, seminars, and instruction for parents, teens, teachers, counselors about sexuality, including pregnancy, HIV/AIDS, and sexually transmitted diseases, abstinence, self-respect, friendship, dating, peer pressure, refusal skills, and character development” in International Class 41. The aforementioned Class 41 services, however, have been deleted from this registration for failure to file a timely Section 8 affidavit. Accordingly, this registration has no probative value. See Black & Decker Corp. v. Emerson Elec. Co., 84 USPQ2d 1482, 1487 n.9 (TTAB 2007) (canceled registration given no probative value). Serial No. 87127785 13 marks are identified below: Reg. No. Mark Relevant Identification of Services 4324118 8 KEYS OF EXCELLENCE Educational services, namely conducting programs for youth, educators, adults and businesses, emphasizing character development, leadership, communication and citizenship. 4414016 Charitable services, namely, mentoring of parents and adolescents in the field of parental involvement, life skills, career planning, and character development. 5189142 Educational services, namely, conducting seminars, lectures, teleseminars, teleclasses, and workshops in personal awareness; Educational services, namely, conducting parental engagement training in the fields of character development, literacy, mathematics, and science and distribution of course and Serial No. 87127785 14 Reg. No. Mark Relevant Identification of Services educational materials connected therewith; and Educational services, namely, conducting in- person and online tutoring in the fields of character development Applicant argues that the services offered under the cited mark focus on adult education, while Applicant’s services are directed to children.14 Applicant also submitted excerpts from the website www.hopefoundation.com that purportedly is owned by Registrant but is no longer operational.15 Applicant maintains that if one were to search this website it would redirect the user to the website www.alanblankstein.org,16 which provides the biography of Alan Blankstein who allegedly served as Registrant’s president over the last 25 years.17 A video on this website purportedly explains the purpose of Registrant’s services which Applicant argues differ from the services provided under its applied-for mark.18 As stated, to determine the relationship between the services, we are bound by the identifications in Applicant’s involved application and the cited registration. In 14 May 16, 2017 Response to Office Action; TSDR p. 8. 15 Id. 16 Id. 17 Id. 18 Id.; TSDR pp. 8-9. Serial No. 87127785 15 re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (“Likelihood of confusion must be determined based on an analysis of the marks as applied to the … services recited in applicant’s application vis-à-vis the … services recited in [a] …registration, rather than what the evidence shows the… services to be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987)). Applicant disregards this requirement by impermissibly relying upon extrinsic evidence in an attempt to distinguish the services. See Coach Servs. Inc., 101 USPQ2d at 1722; Octocom Sys., 16 USPQ2d at 1787. Accordingly, we reject Applicant’s arguments based on the extrinsic evidence noted above. While we recognize that Applicant’s educational services are directed toward preteens, teenagers, and college students while Registrant’s services are provided to adults only, the subject matter of these educational services is similar, i.e., improving the emotional, social and moral development of youth which would include character development. Moreover, based on the internet and third-party registration evidence of record submitted by the Examining Attorney, we conclude that Applicant’s services and Registrant’s services are related and are the types of services that have been offered under a single mark by a single entity. Thus, the second du Pont factor favors a finding of likelihood of confusion. D. Similarity of Trade Channels and Classes of Purchasers Next we consider established, likely-to-continue channels of trade, the third du Pont factor. Because the identifications of Applicant’s services and Registrant’s services are unrestricted as to channels of trade, we must assume that they travel in Serial No. 87127785 16 the normal trade channels for such services which would include online classes or classes offered in an actual physical location or setting. See Coach Servs., 101 USPQ2d at 1723 (absent limitation “goods [or services] are presumed to travel in all normal channels ... for the relevant goods [or services].”). As such, the parties’ respective services travel in similar, if not overlapping, channels of trade.19 With regard to classes of purchasers, we note that while Applicant’s educational services are provided to children, teens, and college students only and Registrant’s educational services are offered to adults only, it is likely that adult consumers who are parents or educators would encounter Applicant’s services in the course of searching for programs, after-school programs, and summer camps on behalf of their middle and high school students, as well as young adults attending college, the children and young adults to whom the services are directed. Indeed, Applicant concedes that its customers are adults, i.e., coaches and school reform advocates.20 Accordingly, we find that the relevant purchasing public, which chooses and purchases both Applicant’s and Registrant’s services include adult consumers. Hence, the relevant classes of customers for Applicant’s and Registrant’s services overlap: ordinary adult purchasers who have an interest in improving the social, emotional and moral development of children and young adults. 19 Applicant’s argument that the advertisements for its educational services are seen at athletic conventions and promoted in tandem with advertisements for after school programs and camps, see Applicant’s Appeal Brief, p. 10; 4 TTABVUE 11, is unavailing. Because Applicant’s recitation of services is unrestricted as to trade channels, we must assume, as noted above, that Applicant’s services travel in all normal trade channels. 20 Applicant’s Brief, p. 11; 4 TTABVUE 12. Serial No. 87127785 17 Thus, the third du Pont factor also weighs in favor of finding a likelihood of confusion. E. Sophistication and Care of Consumers Under the fourth du Pont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177 USPQ at 567. Applicant argues that its target consumers, namely, football coaches and school reform advocates, are sophisticated consumers who can differentiate between the services provided by Applicant under its involved mark as compared to those offered under the cited mark.21 Applicant has provided no evidence of this alleged sophistication. Even if there were evidence supporting the sophistication of Applicant’s customers, there is no evidence that Registrant’s customers or potential customers are sophisticated. Moreover, even sophisticated purchasers are not immune from source confusion, especially in cases such as this one involving very similar marks and related services. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers ... are not infallible.”)). See also In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690- 91 (Fed. Cir. 1993); In re Integrated Embedded, 120 USPQ2d 1504, 1516 (TTAB 2016). Thus, the fourth du Pont factor is neutral. 21 Id. Serial No. 87127785 18 F. Lack of Actual or Potential Confusion Applicant argues, pursuant to the seventh and eighth du Pont factors, that there cannot be any actual or potential confusion between the parties’ respective marks because the cited mark is not currently in use.22 As noted supra, to the extent Applicant is suggesting that that the cited mark has been abandoned, such an argument is unavailing since it constitutes an impermissible collateral attack on the cited registration. As the Board explained in In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016), “the validity of a cited registration cannot be challenged in an ex parte proceeding.” Notwithstanding, while a showing of actual confusion would of course be highly probative of a likelihood of confusion, the opposite is not true. The lack of evidence of actual confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). The issue before us is the likelihood of confusion, not actual confusion. Herbko Int’l Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (actual confusion not required).” Therefore, the du Pont factors concerning actual or potential confusion are also neutral. II. Conclusion We have considered all of the arguments and evidence of record, including those not specifically discussed herein, and all relevant du Pont factors. Because we have found that the marks are similar; that Applicant’s identified services are related to 22 Id. at p. 12; 4 TTABVUE 13. Serial No. 87127785 19 Registrant’s services; that the services move in similar or overlapping trade channels and that they would be offered to the same or overlapping classes of purchasers; and because Applicant has not demonstrated that Registrant’s mark is so weak as to allow the registration of Applicant’s mark, we conclude that Applicant’s mark, as used in connection with the educational services identified in its involved application, so resembles the cited mark HOPE FOUNDATION for Registrant’s identified educational services as to be likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed. Copy with citationCopy as parenthetical citation