Trinity Transport, Inc.

Trademark Trial and Appeal Board

Jul 30, 2015

No. 85453263 (T.T.A.B. Jul. 30, 2015)

This Opinion is Not a
Precedent of the TTAB

Hearing: July 14, 2015 Mailed: July 30, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Trinity Transport, Inc.
_____

Serial No. 85453263
_____

Thomas J. Moore of Bacon & Thomas, PLLC,
for Trinity Transport, Inc.
David I, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Cataldo, Wolfson and Adlin,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Trinity Transport, Inc. (“Applicant”) seeks registration on the Principal Register
of the mark depicted below:

for the following services:1
full service logistics solutions, namely, freight logistic
management, arranging the transportation of goods for others

1 Application Serial No. 85453263 was filed on October 21, 2011, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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provided to clients after direct communication with the client,
analysis of the client’s logistics requirements, preparation of an
individualized logistics plan for the client, and periodic review of
the logistics plan to keep it optimized; transportation logistics
services, namely, arranging the transportation of goods for
others; engaging the needs of customers in a consultative
ongoing partnership as their freight management vendor,
namely, providing freight logistics management, arranging for
pick-up, delivery, storage and transportation of documents,
packages, freight and parcels via ground and air carriers after
direct communication with the client, analysis of the client’s
logistics requirements, preparation of an individualized logistics
plan for the client, and periodic review of the logistics plan to
keep it optimized; freight logistics management for
manufacturers, retailers, and wholesalers; and business
management consultation in the field of transportation logistics
provided by utilizing a transportation management system in
order to assist clients with shipment planning, optimization,
visibility of freight, and customized reporting after direct
communication with the client, analysis of the client’s logistics
requirements, preparation of an individualized logistics plan for
the client, and periodic review of the logistics plan to keep it
optimized
in International Class 35, and
supply chain logistics and reverse logistics services, namely,
storage, transportation and delivery of documents, packages,
raw materials, and other freight for others by air, rail, ship or
truck both domestic and international provided to clients after
direct communication with the client, analysis of the client’s
logistics requirements, preparation of an individualized logistics
plan for the client, and periodic review of the logistics plan to
keep it optimized; full service logistics solutions, namely,
storage, transportation and delivery of goods for others by air,
rail, ship or truck provided to clients after direct communication
with the client, analysis of the client’s logistics requirements,
preparation of an individualized logistics plan for the client, and
periodic review of the logistics plan to keep it optimized
in International Class 39.
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), contending that
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Applicant’s use of its mark for its identified services is likely to cause confusion with
the mark TRINITY EXPRESS, INC. (in typed format)2, registered for “freight
transportation brokerage services” in International Class 39.3
When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration,
and the appeal resumed. The application was later remanded to clarify whether
Applicant claims the benefit of Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f). Following Applicant’s confirmation that it does not, the appeal was again
resumed. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of the probative
facts in evidence that are relevant to the factors bearing on a likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563
(CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.

2 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings. A typed mark is the legal equivalent of a standard character mark. TMEP
§ 807.03(i) (July 2015).
3 Reg. No. 2570212, registered May 14, 2002; renewed.
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Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. The Marks
When comparing the marks, we consider them in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. Viterra, 101 USPQ2d at 1908 (quoting
du Pont); Palm Bay, 73 USPQ2d at 1692. The test, under the first du Pont factor, is
not whether the marks can be distinguished when subjected to a side-by-side
comparison, but rather “‘whether the marks are sufficiently similar in terms of their
commercial impression’ such that persons who encounter the marks would be likely
to assume a connection between the parties.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation
omitted). Because the similarity or dissimilarity of the marks is determined based
on the marks in their entireties, the analysis cannot be predicated on dissecting the
marks into their various components; that is, the decision must be based on the
entire marks, not just part of the marks. In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). On the other hand, one feature of a mark may
be more significant than another, and it is not improper to give more weight to this
dominant feature in determining the commercial impression created by the mark.
National Data, 224 USPQ at 751 (“There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on consideration of the marks in their
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entireties. Indeed, this type of analysis appears to be unavoidable.”). The focus is on
the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC,
110 USPQ2d 1734, 1740 (TTAB 2014); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1438 (TTAB 2012).
Applicant argues that the Examining Attorney’s “XSearch” search summary
located “358 total active marks comprising TRINITY or a similar term,”4
demonstrating that the term “TRINITY” is a “suggestive superlative”5 and therefore
weak as a mark; and that Applicant’s mark and the cited mark are visually distinct
due to the additional design element in Applicant’s mark and the terms “EXPRESS,
INC.” in the registered mark (which Applicant argues makes it appear as a
“company name which is also used as a service mark,”6 unlike Applicant’s mark
which does not include any company designation).
The Examining Attorney counters that TRINITY is the dominant portion of both
Applicant’s mark and the cited mark; that the additional terms in the marks are
merely descriptive or have no source-signifying function, and that the design in
Applicant’s mark is non-distinct and would be perceived as a background design, or
mere carrier, of the literal portion of the mark.

4 Ibid.
5 14 TTABVUE 23.
6 Id. at 22.
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Applicant’s mark is . The registered mark is TRINITY
EXPRESS, INC. As for the strength or weakness of the registered mark, there is no
record evidence showing that “TRINITY” would be considered weak. The Examining
Attorney’s XSearch results do not identify the marks located in the search, but
merely define the search strategy and the total number of “hits” retrieved at each
level. For marks that comprise the letter combination of “tr, n, t,” where any vowel
may appear in-between each letter or letter string as well as after the final “t,” a
total of 358 marks were retrieved, as Applicant has noted. However, the number of
TRINITY marks contained in the group is unknown, and the search results indicate
that only 48 of these registrations or applications exist in classes 35 or 39, with no
indication as to the exact services recited therein. Accordingly, the search results
are not probative of the strength or weakness of the cited mark. Further, there is no
record evidence of any third-party use of the term TRINITY, or registrations for
marks containing the term TRINITY by unrelated third parties. Cf. Juice
Generation, Inc. v. GS Enters. LLC, ___ F.3d ___, ___ USPQ2d ___, 2015 BL 230200
(Fed. Cir. July 20, 2015) (in which third-party marks for goods and services
identified in the involved application and registrations were of record). In addition,
the record definitions of “trinity” provided by Applicant (“of, dedicated to, or bearing
a symbol of the Trinity”; “Trinity: the union of three persons or hypostases…in one
godhead….”)7 suggest non-descriptive meanings of the term in relation to

7 14 TTABVUE 23.
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Registrant’s freight transportation brokerage or Applicant’s logistics services and do
not demonstrate that the word is anything but inherently distinctive for these
services.
In Applicant’s mark, the word TRINITY is expressed in bold lettering that is
larger in size than that of the word LOGISTICS. “TRINITY” is also the first term in
the mark, inasmuch as it appears above the term “LOGISTICS.” Consumers are
generally more inclined to focus on the first word, prefix or syllable in any
trademark or service mark. See Palm Bay 73 USPQ2d at 1692; see also Mattel Inc.
v. Funline Merch. Co., 81 USPQ2d 1372, 1374-75 (TTAB 2006); Presto Prods., Inc. v.
Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part
of a mark which is most likely to be impressed upon the mind of a purchaser and
remembered” when making purchasing decisions). Further, the word “LOGISTICS”
is disclaimed in Applicant’s mark, and in the registered mark, the term “INC.” is
disclaimed. Disclaimed matter, while relevant to the assessment of similarity, is
typically less significant or less dominant when comparing marks because no
exclusive rights are claimed therein. See Dixie Rests., 41 USPQ2d at 1533-34; Nat’l
Data 224 USPQ at 752; Trademark Manual of Examining Procedure (“TMEP”)
§§ 1207.01(b)(viii) (July 2015). The word “EXPRESS” in the cited mark is suggestive
of speed and quickness, which are desired features in a freight transportation
brokerage service; it is thus also of lesser significance in identifying the source of
the Registrant’s services than is the term TRINITY in Registrant’s mark (which is
also the first term of that mark). Finally, the design feature of Applicant’s mark is
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not sufficient to distinguish the marks, as it surrounds the words and frames them,
forming a background or “carrier” to the literal portion of the mark. In a composite
mark containing both words and a design, the word portion is often more likely to
be impressed upon a purchaser’s memory and to be used when requesting the
services. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); TMEP
§1207.01(c)(ii); see In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908,
1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218
USPQ 198, 200 (Fed. Cir 1983)).
Accordingly, the word TRINITY, the dominant and strongest feature of both
Applicant’s and Registrant’s marks, imparts a similar appearance and
pronunciation to both marks. When we consider the marks in their entireties,
including the design feature of Applicant’s mark and the additional wording in both
marks, we find the similarities outweigh the differences therein. Applicant’s mark
TRINITY LOGISTICS and design suggests a logistics company involved with
moving and transporting goods, and the sense of movement in the design suggests
that the company is concerned with the speed in which deliveries are made. The
registered mark, TRINITY EXPRESS, INC., also suggests a company involved with
moving and transportation that is concerned with timeliness of delivery. Thus,
while the message of the whole phrase in both marks is memorable primarily due to
the term TRINITY, the additional elements add to the similarity; indeed,
consumers who are familiar with TRINITY EXPRESS, INC. for freight
transportation brokerage services would be likely to assume, upon encountering
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TRINITY LOGISTICS and design for, e.g., transportation logistics services and
freight logistics management services, that the same company had adopted
variations of its mark for the provision of both types of services. The first du Pont
factor accordingly favors a finding of likelihood of confusion.
B. The Services, Trade Channels and Relevant Consumers
We make our determination regarding the similarity of the services, channels of
trade and classes of purchasers based on the services as they are identified in the
application and cited registration, respectively. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (“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.
Houston Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990));
In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“we must also analyze
the similarity or dissimilarity and nature of the goods based on the description of
the goods set forth in the application and the registration at issue … we may not
limit or restrict [the goods or services] listed in the cited registration based on
extrinsic evidence”). It is not necessary that the respective services be identical or
competitive (contrary to the gist of Applicant’s argument that it does not recite
“freight transportation brokerage services” in its identification), or even that they
move in the same channels of trade to support a holding of likelihood of confusion.
It is sufficient that the respective services are related in some manner, and/or that
the conditions and activities surrounding the marketing of the services are such
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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. On-line Careline Inc. v. America Online
Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re Melville Corp.,
18 USPQ2d 1386, 1388 (TTAB 1991). The issue is not whether consumers would
confuse the services themselves, but rather whether they would be confused as to
the source of the services.
Applicant’s application identifies logistics and management services related to
the transportation of freight. In class 35, Applicant’s “full logistic services” include,
e.g., “arranging the transportation of goods for others provided to clients after direct
communication with the client,” and “arranging for pick-up, delivery, storage and
transportation of documents, packages, freight and parcels via ground and air
carriers after direct communication with the client.” In class 39, its “full service
logistics solutions” include “storage, transportation and delivery of goods for others
by air, rail, ship or truck provided to clients after direct communication with the
client.” These services are encompassed by Registrant’s “freight transportation
brokerage services,” which involve arranging for the transportation and delivery of
goods, such as documents, packages, freight and parcels, for others. Applicant
argues that freight transportation brokerage services are conducted between two or
more freight companies, whereas its logistic services are directed not to freight
companies (such as a trucking company or airline) but rather to customers that
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need to have their own goods shipped to a remote location. However, there is no
such limitation in either Applicant’s or Registrant’s recitation of services, that is,
Applicant has not limited its services to exclude freight companies as consumers of
its services, nor has Registrant limited its recitation of services to only those types
of companies. The definition of “broker” submitted by Applicant with its brief (“an
agent who for a fee…negotiates contracts of purchase and sale…without taking title
to that which is the subject of negotiation….”)8 does not distinguish the services. On
the contrary, while the involved application identifies various logistics services
relating to freight transportation, such services appear to include various aspects of
freight transportation brokerage services. Applicant further argues that its services
differ from those recited in the cited registration because Applicant does not provide
“single transaction” shipping, but offers a “logistics” service; that is, Applicant
prepares an individualized plan for the client and periodically reviews and updates
the plan.9 Nothing in the cited registration precludes Registrant from likewise
offering continuing services to a client over a period of time. Because both Applicant
and Registrant transport goods for others, arranging for pick-up, delivery, storage
and transportation of freight, the services overlap.
Because the services in the application and the cited registrations overlap, they
are considered legally identical and we must presume that the channels of trade
and classes of purchasers are the same. See In re Yawata Iron & Steel Co., 403 F.2d

8 14 TTABVUE 20.
9 “Logistics” is defined as, inter alia, “the planning, implementation, and coordination of the
details of a business or other operation.” From http://dictionary.reference.com, attached to
the first Office Action dated February 22, 2012.
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752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the
channels of trade and classes of purchasers are considered to be the same);
American Lebanese Syrian Associated Charities Inc. v. Child Health Research
Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). See also In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion).
The advertisement from Applicant’s website supports the other evidence of
relatedness. Material from an applicant’s website may be considered if it provides
information about the applicant’s goods or services. See TMEP §710.01(b); In re
Promo Ink, 78 USPQ2d 1301, 1303 (TTAB 2006) (rejecting applicant’s argument
that it was improper for the examining attorney to rely on evidence obtained from
applicant’s website). Applicant advertises its achievement as a provider of freight
brokerage: “Trinity Transport Named Among The Top 20 Freight Brokers In The
Nation By Volume Since 2003. Ranked #20 of Top 25 Freight Brokerages by
Transport Topics.”10 Applicant’s Director of Marketing also states in her declaration
that Applicant is submitting an advertisement entitled “Freight Brokerage
Solutions.”11 While it does not appear that this latter advertisement is actually in
the record, the statement in the declaration was made on Ms. McMullen’s personal
knowledge, and it has probative value in suggesting that Applicant provides such

10 Attached to Applicant’s request for reconsideration dated April 12, 2013.
11 Declaration of Brandy McMullen, dated August 27, 2012 and attached to Preliminary
Amendment dated August 30, 2012.
Serial No. 85453263
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services in addition to its freight and supply chain logistics services. See Trademark
Rule 2.20; Fed. R. Evid. 602.
The Examining Attorney also submitted five use-based third-party registrations
showing that third parties have registered services provided by both Applicant and
Registrant under a single mark. These registrations are consistent with the
evidence discussed above. For example:
• LAVINSTAR LOGISTICS is registered for, inter alia,
“logistics, business management services, namely,
managing logistics transportation logistics services” and
“freight transportation brokerage”;12
• COURIERSANDFREIGHT.COMCLICK.SEND.SAVE is
registered for, inter alia, “freight logistics management;
providing electronic tracking of freight information to
others; transportation logistics services; transportation
management services” and “freight and transport
brokerage; freight transportation brokerage”;13 and
• THE VALUE LEADER IN TRANSPORTATION is
registered for, inter alia, “freight and transport brokerage;
freight brokerage; freight transportation brokerage;
supply chain logistics and reverse logistics services.”14
Third-party registrations which individually cover a number of different items
and which are based on use in commerce serve to suggest that the listed goods
and/or services are of a type which may emanate from a single source. In re
Accelerate s.a.l., 101 USPQ2d 2047, 2050 (TTAB 2012) (finding submission of five
third-party registrations probative of relatedness of parties’ goods and services); In
re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Mucky Duck

12 Reg. No. 3802702; registered June 15, 2010.
13 Reg. No. 3881498; registered November 23, 2010.
14 Reg. No. 3956258; registered May 3, 2011 on the Supplemental Register.
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Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir.
1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993).
Accordingly, the du Pont factors relating to the relatedness of the goods,
channels of trade, and classes of consumers also favor a finding of likelihood of
confusion.
C. Level of Consumer Sophistication
Regarding its purchasers, although Applicant did not provide any evidence to
support its contention that the relevant customers are sophisticated, based on the
recitation of services we assume that they could be somewhat expensive and would
require a thoughtful decision by a knowledgeable purchaser. However, the exact
nature of the purchasing process, the pricing structure employed and the buyer’s
actual investment prior to purchase are unknown. Thus, we cannot conclude on this
record that the level of any customer sophistication outweighs the other du Pont
factors to obviate likely confusion. Moreover, even if purchasers are sophisticated or
knowledgeable in a particular field, that does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune from source
confusion. See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed.
Cir. 1993) (indicating that “even sophisticated purchasers can be confused by very
similar marks”); Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170
(TTAB 2011); TMEP §1207.01(d)(vii). The fourth du Pont factor relating to the
conditions under which and buyers to whom sales are made, i.e. “impulse” vs.
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careful, sophisticated purchasing weighs somewhat against a finding of likelihood of
confusion.
D. Length of Time During Which and Conditions Under Which There Has Been
Concurrent Use Without Evidence of Actual Confusion
Applicant’s primary argument in favor of registration is that it has used the
mark TRINITY in various iterations since 1979 and that its coexistence with the
Registrant over a period of several years provides strong evidence that confusion is
not likely to occur in the future. There is, however, no evidence of the nature and
extent of Applicant’s and Registrant’s actual use of their marks in the marketplace
or of the level of sales or advertising by Applicant or Registrant. See In re Davey
Products Pty Ltd., 92 USPQ2d 1198 (TTAB 2009). The absence of any instances of
actual confusion is a meaningful factor only where the record indicates that, for a
significant period of time, an applicant’s sales and advertising activities have been
so appreciable and continuous that, if confusion were likely to occur, any actual
incidents thereof would be expected to have occurred. See Gillette Canada Inc. v.
Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Otherwise, limited sales by one
or both of the trademark owners over a relatively short period of contemporaneous
usage may well explain the lack of evidence of actual confusion.
Applicant’s declarant states that Applicant has offices in Euless, Texas; has
agents in San Juan, Texas; and has been active in Texas for five years.15 The record
indicates that Registrant is a corporation of Texas with an address in Lewisville,

15 Declaration of Brandy McMullen, ¶¶ 17, 18 and 12.
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Texas. To the extent there is any overlap in the geographic markets in which
Applicant and Registrant offer their respective services, and the record does not
establish any such overlap, it would only have been extant for about three years.
Although the constructive date of Registrant’s first use is December 6, 2000 (the
filing date of the cited registration),16 Applicant did not use its applied-for mark
until January 2, 2012.17 Applicant did use the marks “TRINITY TRANSPORT and
Design” and “TRINITY TRANSPORT, INC. (without Design)” before 2012, but
ceased use of both marks on December 31, 2011.18 Thus, the period of time under
consideration is relatively short; further, in this ex parte context, we have no
opportunity to hear from Registrant about its date of first use, scope of use or its
levels of sales and promotion. In any event, we are mindful of the fact that the test
under Section 2(d) of the Act is likelihood of confusion, not actual confusion. The
eighth du Pont factor, the length of time during and conditions under which there
has been contemporaneous use without evidence of actual confusion, is neutral.
II. Conclusion
Considering Applicant’s mark in its entirety, and that the dominant component
of the registered mark has been incorporated into Applicant’s mark, we find the

16 The allegation of first use in the cited registration of September 13, 1993 is not evidence
that the mark was actually used on that date. See Section 7(b) of the Trademark Act, for
the presumptions provided by a certificate of registration; see also Trademark Rule
2.122(b)(2) (“The allegation in an application for registration, or in a registration, of a date
of use is not evidence on behalf of the applicant or Registrant; a date of use of a mark must
be established by competent evidence.”).
17 Declaration of Brandy McMullen, ¶ 3.
18 Id., ¶ 5, 6. Applicant also changed its name from Trinity Transport, Inc. to Trinity
Logistics, Inc. on January 2, 2012. Id., ¶ 14.
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overall commercial impressions of the marks are more similar than dissimilar. We
also bear in mind that the marks will be used on overlapping services, which
reduces the degree of similarity between the marks necessary to find a likelihood of
confusion. In re Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 94 USPQ2d at
1260; In re Max Capital Group Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). The legal
identity of the services also gives rise to the presumption that Applicant’s and
Registrant’s services are likely to be offered to the same classes of consumers
through similar trade channels. The apparent lack of actual confusion is of little
relevance in an ex parte proceeding and the fact that consumers may be
sophisticated and engage in more than ordinary care does not avoid confusion. For
these reasons, we find that use of Applicant’s mark is likely to cause confusion with
the cited registered mark.
Decision: The refusal to register Applicant’s mark is
affirmed.