Vanguard Real Estate Services

Trademark Trial and Appeal Board

Jun 24, 2020

88194914 (T.T.A.B. Jun. 24, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 24, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Vanguard Real Estate Services
_____

Serial No. 88194914
_____

Francis John Ciaramella of Francis John Ciaramella, PLLC,
for Vanguard Real Estate Services.
Michelle E. Dubois, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Zervas, Shaw and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Vanguard Real Estate Services (“Applicant”) seeks registration on the Principal
Register of the mark VANGUARD REAL ESTATE SERVICES (in standard
characters, “Real Estate Services” disclaimed) for “real estate agency services; real
estate brokerage; real estate management services” in International Class 36.1

1 Application Serial No. 88194914 filed on November 15, 2018, under Trademark Act Section
1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and first use in
commerce since at least as early as January 29, 2016.
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the services identified in the application, so resembles the mark VANGUARD
COMPUTER SYSTEMS (in standard characters, “Computer Systems” disclaimed)
for “computer software for personal property appraisals and real estate appraisals”
in International Class 9, and “appraisal services for real estate and personal
property” in International Class 36,2 on the Principal Register as to be likely to cause
confusion, to cause mistake, or to deceive.3
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Applicant and the Examining Attorney
filed briefs. We affirm the refusal to register.
I. Applicable Law: Likelihood of Confusion
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,

2 Registration No. 3384122, issued February 19, 2008; renewed.
3 Since the Examining Attorney’s evidence on which the refusal to register is based only
pertains to the Registrant’s services, that is the focus of our opinion and decision below.

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575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the services. See In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
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which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the [services] ….’”)).
II. Analysis
We now review the arguments of Applicant and the Examining Attorney in view
of applicable law and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney focused on in this appeal are the strength of
the Registrant’s VANGUARD COMPUTER SYSTEMS mark, the number and nature
of similar marks in use on similar goods or services, the similarity of the VANGUARD
REAL ESTATE SERVICES and VANGUARD COMPUTER SYSTEMS marks, the
relatedness of the goods or services associated with each mark and their channels of
trade, the conditions under which and buyers to whom sales are made in connection
with the respective marks, the nature and extent of any actual confusion between the
marks, and the extent of potential confusion.
A. Comparison of the Marks
1. Strength of the Registered Mark
Under the fifth and sixth DuPont factors, we consider the strength of the cited
registered mark, and the extent to which that strength may be attenuated by “[t]he
number and nature of similar marks in use on similar … [services].” DuPont, 177
USPQ at 567. “A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).” In re
Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010). For
likelihood of confusion purposes, its strength “varies along a spectrum from very
strong to very weak.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
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Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting In
re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
Applicant purports to challenge the “fame” (or commercial strength) of the
registered VANGUARD COMPUTER SYSTEMS mark in that “here, there is no
evidence that the cited [mark] … is famous or has acquired secondary meaning within
the marketplace or that consumers associate the term VANGUARD with the …
[Registrant].”4 In an ex parte appeal, however, the owner of the cited 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 DuPont 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 DuPont factor is neutral.
In actuality, Applicant’s only alleged proof that Registrant’s VANGUARD
COMPUTER SYSTEMS mark is weak is the presence of “many marks containing the
word VANGUARD for use within International Classes [sic] 036 ....”5 Such type of

4 Applicant’s Brief, 7 TTABVUE 9. Page references herein to the application record refer to
the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”)
system. All citations to documents contained in the TSDR database are to the downloadable
.pdf versions of the documents in the USPTO TSDR Case Viewer. References to the briefs on
appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is
the docket entry number; and after this designation are the page references, if applicable.
5 Applicant’s Brief, 7 TTABVUE 9, 11-12.
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evidence goes not to the commercial strength of the registrant’s mark, but rather its
conceptual strength. That is, “third-party registration evidence that does not equate
to proof of third-party use may bear on conceptual weakness if a term is commonly
registered for similar goods or services.” Tao Licensing, LLC v. Bender Consulting
Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017) (emphasis added).
Applicant’s third-party registration evidence comprises twenty registrations for
marks comprising or containing the term VANGUARD.6 Nineteen of these
registrations are owned by the same company, The Vanguard Group, Inc., reciting
various forms of financial and investment advisory services in International Class 36
(with one registration also reciting electronically distributed newsletters on investing
in International Class 9). The outlier registration is owned by Vanguard Trading
Services, Inc. for fresh fruits and vegetables, commodity brokerage and commodity
trading for others in connection with fresh fruits and vegetables, and distributorships
in the field of fresh fruits and vegetables. In short, none of the third-party
registrations Applicant made of record recite similar goods or services to those for
which the mark VANGUARD COMPUTER SERVICES is registered, namely,
computer software for personal property and real estate appraisals and appraisal
services for real estate and personal property; therefore they are irrelevant.
Moreover, “inasmuch as the cited mark is registered on the Principal Register, we
must assume that it is at least suggestive ….” See In re Fat Boys Water Sports LLC,
118 USPQ2d 1511, 1517 (TTAB 2016) (quoting In re Fiesta Palms LLC, 85 USPQ2d

6 Office Action Response of April 15, 2019 at TSDR 16-35.
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1360, 1363 (TTAB 2007)). Even suggestive marks are entitled to appropriate
protection against the registration of confusingly similar marks. See In re Colonial
Stores, Inc., 216 USPQ 793, 795 (TTAB 1982). We therefore find the fifth DuPont
factor regarding commercial strength of the registered VANGUARD COMPUTER
SERVICES mark to be a neutral factor, and the sixth DuPont factor regarding
conceptual strength of the mark to be a factor in favor of a finding of a likelihood of
confusion.
2. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and the Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018);
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam,
777 F. App’x 516 (Fed. Cir. 2019).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1748
(Fed. Cir. 2017). “The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks.” In re
Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007).
Serial No. 88194914
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Applicant argues, and we agree, that “splitting a mark into its various components
and comparing only certain portions of one mark with another mark is improper[,]”7
citing Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ
272, 274 (CCPA 1974); Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212
USPQ 233, 234 (CCPA 1981) (holding that it is a violation of the anti-dissection rule
to ignore elements of a mark in deciding whether confusion is likely). Thus for
likelihood of confusion analysis purposes, we must consider the VANGUARD REAL
ESTATE SERVICES and VANGUARD COMPUTER SYSTEMS marks in their
entireties. “On the other hand, in articulating reasons for reaching a conclusion on
the issue of confusion, 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 entireties.” In re Nat’l
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Neither Applicant nor the Examining Attorney introduced a dictionary definition
of “VANGUARD” into the record. “VANGUARD” is defined as “the forefront of an
action or movement.8 Because VANGUARD has no inherent meaning in connection
with, or relationship to, the services of either Applicant or Registrant, we find this
term to be inherently distinctive and functions as a source identifier in both marks.

7 Applicant’s Brief, 7 TTABVUE 5.
8 Https://www.merriam-webster.com/dictionary/vanguard. 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); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
Serial No. 88194914
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See, e.g., Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d
1173, 1180 (Fed. Cir. 2004) (defining an arbitrary mark as “a known word used in an
unexpected or uncommon way” and observing that such marks are typically strong).
Applicant’s argument that the terms “COMPUTER SYSTEMS” in the Registrant’s
mark and the terms “REAL ESTATE SERVICES” in Applicant’s mark distinguishes
the marks from one another9 is not well taken. First, the general rule suggests the
opposite. Likelihood of confusion is not necessarily avoided between otherwise
confusingly similar marks merely by substituting terms that are descriptive or
suggestive of the respective services. See In re Chatam Int’l Inc., 380 F.3d 1340, 1343,
71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in their entireties with non-
dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and
ale and JOSE GASPAR GOLD for tequila] become nearly identical.”); In re J.M.
Originals Inc., 6 USPQ2d 1393 (TTAB 1987) (holding JM ORIGINALS (with
ORIGINALS disclaimed) for various items of apparel, and JM COLLECTABLES for
sport shirts, likely to cause confusion).
Second, consumers would be more likely to perceive an inherently distinctive term
which comes first in word order as source-identifying, rather than descriptive or
generic terms that comes next. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (disclaimed and generic word less dominant).
Because “VANGUARD” is inherently distinctive and the first word in each mark, and
the secondary terms “REAL ESTATE SERVICES” and “COMPUTER SYSTEMS” are

9 Id.
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generic and disclaimed,10 we find the term “VANGUARD” to be the dominant portion
of each mark. See In re Detroit Ath., 128 USPQ2d at 1049 (“Indeed, in view of the
marks’ structural similarity, the lead words [DETROIT ATHLETIC] are their
dominant portion and are likely to make the greatest impression on consumers.”). See
also Palm Bay Imps., 73 USPQ2d at 1692 (first word in the mark most prominent).
If, as in this case, a significant or dominant element of both marks is the same
(the term “VANGUARD”), then the marks may be found to be similar
notwithstanding some differences in the marks as a whole. See, e.g., Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014) (affirming the Board’s finding that applicant’s mark STONE LION
CAPITAL incorporated the entirety of the registered marks LION CAPITAL and
LION, and that the noun LION was the dominant part of both parties’ marks).
We therefore find that the marks VANGUARD REAL ESTATE SERVICES and
VANGUARD COMPUTER SYSTEMS appear and sound similar in that they share
the identical, inherently distinctive and dominant term “VANGUARD,”
notwithstanding the addition of the disclaimed, descriptive or generic terms
“COMPUTER SYSTEMS” in the Registrant’s mark and the disclaimed, descriptive
or generic terms “REAL ESTATE SERVICES” in Applicant’s mark. Moreover, the

10 Disclaimed, descriptive or generic matter, such as the terms “COMPUTER SYSTEMS” in
the Registrant’s mark and the terms “REAL ESTATE SERVICES” in Applicant’s mark have
less significance in likelihood of confusion determinations. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms,
this court has noted that the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data, 224 USPQ
at 752 (Fed. Cir. 1985)).
Serial No. 88194914
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marks, in their entireties, do not convey significantly different meanings or
commercial impressions when viewed in conjunction with the respective identified
services. Use of the language “REAL ESTATE SERVICES” or “COMPUTER
SYSTEMS” does not alter the commercial impressions of each mark as a whole in
relation to the word “VANGUARD,” as defined above, such that the meaning of the
word “VANGUARD” is altered.11
Similarity of the marks, the first DuPont factor, supports an ultimate finding of
likelihood of confusion.
B. The Similarity or Dissimilarity and Nature of the Services

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the … services as described in an application or registration.…” DuPont, 177 USPQ
at 567. “This factor considers whether ‘the consuming public may perceive [the
respective … services of the parties] as related enough to cause confusion about the
source or origin of the … services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
“Likelihood of confusion must be found as to the entire class [of services identified]
if there is likely to be confusion as to any service that comes within the recitation of
services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior

11 See, e.g., Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1245, 73 USPQ2d 1350, 1356-57
(Fed. Cir. 2004) (reversing the Board’s holding that contemporaneous use of THE RITZ KIDS
for clothing items and RITZ for various kitchen textiles is likely to cause confusion, because,
inter alia, use of the terms “the” and “kids” in THE RITZ KIDS creates a different commercial
impression from RITZ).
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Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
The services need not be identical or even competitive to find a likelihood of
confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [the services] … emanate from the same source.” Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant services are used by the same purchasers;
advertisements showing that the relevant services are advertised together; or copies
of use-based registrations of the same mark for both Applicant’s services and the
services listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d at 1817
(finding pepper sauce and agave related where evidence showed both were used for
the same purpose in the same recipes and thus consumers were likely to purchase
the products at the same time and in the same stores).
As evidence of relatedness of the services, the Examining Attorney made of record
twenty-two active, third-party, use-based registrations, each depicting the same
mark for both Applicant’s type of services and the type of services listed in the cited
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registration.12 Although the active third-party registrations are not evidence that the
registered marks are in use or that the public is familiar with them, they nonetheless
have some probative value to the extent that they serve to suggest that the services
identified in those registrations are of a kind which may emanate from a single
source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The Examining Attorney also provided screen captures from eleven websites
showing, at each site, that the same entity promotes and offers for sale under the
same mark the types of services identified in Applicant’s involved application and the
cited registration:13
• Dan Anderson Real Estate Inc. – “Dan Anderson Real Estate Inc. is a full
service Appraisal, Brokerage, & Consulting Company with almost 30 years of
local experience. We are State Certified Appraisers & Licensed Real Estate
Brokers with experience in the Residential, Income, Development and
Construction areas of Real Estate…”
• NAI DiLeo-Bram & Co. Commercial Real Estate Services. Worldwide. Since
1937 – “NAI DiLeo-Bram’s Appraisal and Valuation services provide accurate,
reliable and timely valuations that are critical to the success of every real
estate transaction or financing.” “NAI DiLeo-Bram & Co. provides a full array
of commercial real estate brokerage services and solutions that address each
critical step in acquiring or disposing of commercial property.”
• Trotz Real Estate Services, Inc. Appraisals, Brokerage & Consulting – “Our
services include residential/commercial sales, residential/commercial
appraisals, commercial leasing, expert witness consulting, and more.”
• ABCD Real Estate Services Residential Appraisals & Brokerage – “In addition
to our mortgage related work With local and regional financial institutions, we
also have experience with short sales, divorce settlement, estate planning
appraisals, PMI removal, and appraisals for various other private clients.”

12 Third-party registrations were made of record with the Office Action of February 26, 2019
at TSDR 5-25, and the Office Action of May 7, 2019 at TSDR 57-97.
13 Third-party website captures made of record with the Office Action of May 7, 2019 at TSDR
7-56.
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“A.B.C.D. Services is a full service brokerage firm serving the Merrimack
Valley and Nashoba Valley areas of Middlesex County & Essex County.”
• Lee & Associates Commercial Real Estate Services – “Our Valuation and
Consulting Services appraisers provide comprehensive, accurate appraisals
across all commercial property types throughout the United States and
Canada.” “Brokerage Services” “Engaging the services of a qualified real estate
professional is critical to the completion of a successful transaction whether it
involves the acquisition, disposition or leasing of commercial property.”
• Hudgins-Groover Real Estate and Appraisal – “With nearly 40 years of
experience in the real estate brokerage business, Hudgins-Groover will ensure
that your purchase or sale of property goes smoothly.” “Hudgins-Groover
provides appraisal services of property for estates, foundations, trusts, lenders,
government agencies, and individuals for IRS reporting (including undivided
interest evaluation), mortgage loans, eminent domain, law suits, and other
purposes.”
• Steigerwaldt – “We specialize in appraising forest and recreational properties,
completing hundreds of ‘yellow book’ appraisals for land acquisitions. Our
appraisers are also skilled in valuing resorts, marinas, commercial, industrial,
agricultural, development, and residential properties.” “Our daily involvement
in the industry through property management, appraisals, surveying,
acquisitions, and sales places our firm in a unique position of providing
valuable assistance to those interested in either selling or investing in
forestland.” “Brokerage staff who know the market and specialize in
forestland, recreational, and waterfront properties.”
• Bollinger Real Estate Services – “Our staff of licensed real estate agents is
ready to serve any and all of your real estate needs. From listing property to
selling it, and most everything in between, we’re here to work for you.” “We
also invite you to contact us for any real estate appraisal service you need.”
• Brooks Real Estate Services, LLC – “Real Estate Appraisals” “There are many
reasons why people opt for an appraisal besides sales – estate planning,
divorce, financing, and tax abatement are all common reasons.” “Brokerage”
“Brooks Real Estate Services offers both buyer and seller representation in
residential, multi-family, commercial and industrial real estate needs.”
• Sweeney Real Estate & Appraisal – “As renowned and respected Qualified Real
Estate Experts with over 50 years of combined experience, whether you need
an appraisal for tax appeals, estate planning, divorces or litigation, we offer
the market knowledge and research sills to deliver timely and fair real estate
appraisals for any type of property.” “Our specialized team of commercial real
estate brokers and salespeople are with you every step of the way.”
• The Robert Weiler Company Appraisal Brokerage Consulting Development –
“The Robert Weiler Company provides professional commercial brokerage
Serial No. 88194914
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services throughout Central Ohio focusing of sales, acquisitions, and leasing.”
“At the Robert Weiler Company, our commercial appraisal services division is
comprised of seasoned professionals in all types of market classifications.”
We find the third-party registration evidence and the Internet website evidence
together amply demonstrate the relatedness of Applicant’s and Registrant’s services.
Applicant argues that “there is no evidence that the … [registered mark] and the
Applicant’s mark are competing or being confused with one another”14 is misplaced.
As noted above, the services at issue need not be identical to support a finding of
likelihood of confusion. They need only be related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source. Here, the evidence of record
clearly shows that Applicant’s services and Registrant’s services are related; that is,
a number of entities provide and market the relevant services (real estate agents,
brokers, managers as well as real property appraisers) under the same mark.
Thus, relatedness of the services, the second DuPont factor, also favors a finding
of likelihood of confusion.
C. The Similarity or Dissimilarity of Trade
Channels and Classes of Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the services as they are identified in the application and the cited registration.
Octocom Sys., Inc. v. Hous. Comp. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787

14 Applicant’s Brief, 7 TTABVUE 6.
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(Fed. Cir. 1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987); Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1471 (TTAB 2016). Neither Applicant’s application nor the cited
registration contain any limitations as to trade channels or classes of customers, and
we may not read any limitation into them. Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 940 (Fed. Cir. 1983). Therefore, the services of both Applicant and the
Registrant must thus be assumed to travel in all channels of trade usual for such
services.
The only evidence relating to the trade channels through which the services at
issue travel is the third-party website evidence submitted by the Examining
Attorney, discussed above. This evidence shows that the services identified in
Applicant’s application may be offered via the same virtual marketplace (that is, on
the same websites by the same entity) to all relevant classes of purchasers, i.e.,
individuals and businesses interested in real estate services – from agency, brokerage
and management to appraisals. Therefore, the respective services, as identified,
would be provided in the same or at least overlapping channels of trade to the same
or overlapping classes of purchasers. Thus, similarity of trade channels and
prospective purchasers, the third DuPont factor, weighs in favor of a finding a
likelihood of confusion.
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D. The Conditions under Which and Buyers to whom Sales
are Made, i.e. “Impulse” v. Careful, Sophisticated Purchasing.
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” Stone Lion,
110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). Applicant argues:
[T]he buyers of the respective goods and … services will be a
sophisticated [sic]. … [C]onsumers making purchases of services from
either the Applicant or the [Registrant] … are well educated, and not
likely to make such purchases on impulse. … As such, the services
offered by the Applicant and the [Registrant] … are aimed at
discriminating purchasers … [and] can be extremely expensive.”15
The Examining Attorney responds that “[w]hile it is recognized … the services of the
[Applicant and Registrant] cannot be considered impulse purchases, it does not
automatically follow that relevant consumers would be not be invulnerable to
believing that the [respective] services … emanate from the same source.”16
We observe there is no support in the record for Applicant’s contentions of buyer
sophistication or education level(s), discriminating purchasers or that respective
services are particularly expensive. Counsel’s arguments are not evidence, and we
will not rely on them. See 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, 1284 (Fed. Cir. 2005) (“Attorney argument is no substitute for evidence.”)).
Even if we were to credit Applicant’s arguments based on the recitations of
services, precedent requires that we focus on the least sophisticated potential

15 Applicant’s Brief, 7 TTABVUE 8.
16 Examiner’s Brief, 9 TTABVUE 13.
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customers of Applicant’s and the Registrant’s services. See Stone Lion, 110 USPQ2d
at 1163 (“Although the services recited in the application also encompass
sophisticated investors, Board precedent requires the decision to be based ‘on the
least sophisticated potential purchasers.’”). 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.”)).
We therefore consider the fourth DuPont factor, the conditions under which and
the buyers to whom sales are made, to be a neutral likelihood of confusion factor on
this appeal.
E. The Presence or Absence of Actual Confusion
The seventh DuPont factor is the “nature and extent of any actual confusion, while
the eighth DuPont factor considers the “length of time during and conditions under
which there has been concurrent use without evidence of actual confusion.” DuPont,
177 USPQ at 567. In its decision on remand from the Federal Circuit’s decision in In
re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160 (Fed. Cir. 2019), the Board
recently held that the eighth DuPont factor “requires us to look at actual market
conditions, to the extent there is evidence of such conditions of record.” In re Guild
Mortg., 2020 USPQ2d 10279, *15 (TTAB 2020).

Serial No. 88194914
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Applicant argues:
The use of the Application [sic] in connection with real estate services
dates back to 2016. The [cited mark] registered on February 19, 2008.
Thus, the [cited mark] and the Application [sic] have been registered
and coexisting without confusion in the marketplace for four years. …
There has been no documented evidence that shows that any consumers
have confused the respective marks in commerce. There have been no
demonstrated events of confusion by consumers between the respective
marks.17
The Examining Attorney replies that “Applicant’s assertions regarding the lack of
actual confusion is not supported by any evidence. The fact that applicant has
apparently had no notice of any actual confusion does not necessarily indicate that
confusion has not occurred or is not likely to occur.”18
“The absence of any reported instances of confusion is meaningful only if the
record indicates appreciable and continuous use by applicant of its mark for a
significant period of time in the same markets as those served by opposer under its
marks.” Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB
2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011). See also In re Binion,
93 USPQ2d 1531, 1536 (TTAB 2009) (suggestion that there has been no actual
confusion between the marks, based on the coexistence of applicant’s previously
issued registration and the cited registration, entitled to little probative value in the
context of an ex parte appeal).
Further, “uncorroborated statements of no known instances of actual confusion
are of little evidentiary value.” In re Majestic Distilling Co., 315 F.3d 1311, 65

17 Applicant’s Brief, 7 TTABVUE 9-10.
18 Examiner’s Brief, 9 TTABVUE 14.
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USPQ2d 1201, 1205 (Fed. Cir. 2003). We also have no evidence of whether the extent
and circumstances of Applicant’s and Registrant’s use was such as to give rise to
meaningful opportunities for actual confusion to occur. In re Kangaroos U.S.A., 223
USPQ 1025, 1026‒27 (TTAB 1984).
In any event, the lack of evidence of actual confusion is of minor relevancy because
the marks have been in concurrent use for just four years, possibly in different
geographic locations and possibly with limited sales and promotional activity. 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. In re Detroit
Ath. 128 USPQ2d at 1053. We therefore find the absence of actual confusion,
contemplated by the seventh and eighth DuPont factors, to be a neutral consideration
in the likelihood of confusion analysis.
F. The Extent of Potential Confusion
The twelfth DuPont factor is the extent of potential confusion, i.e., whether de
minimis or substantial. Applicant argues that “[h]ere, any potential confusion
between the respective marks would be de minimis, especially given that there have
been no present documented cases of actual confusion. … Furthermore, even if there
were to be evidence of actual confusion in the future, such instances can be dismissed
as inconsequential or de minimis.”19
The Examining Attorney does not address this argument in her brief.
Notwithstanding, Applicant’s argument of de minimis potential confusion is based on

19 Applicant’s Brief 10-11.
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the premise that thus far there have not been reported instances of actual confusion.
As noted above, we consider the absence of actual confusion to be a neutral factor: (i)
due to lack of appropriate evidence, and (ii) because it is not Examining Attorney’s
burden to prove the existence of actual confusion on an ex parte appeal – only a
likelihood of confusion based on other factors supported by the evidence of record. We
therefore find the extent of potential confusion, i.e., whether de minimis or
substantial, the twelfth DuPont factor, to be neutral.
III. Conclusion: Likelihood of Confusion
The first, second, and third DuPont factors favor a finding of likelihood of
confusion. We treat the other DuPont factors as neutral. The Registrant’s mark is
inherently distinctive; its commercial strength is a neutral factor. The marks at issue
are similar. The respective services are related such that the marks would travel in
overlapping trade channels and provided to the same or overlapping classes of
purchasers. We therefore find that Applicant’s mark VANGUARD REAL ESTATE
SERVICES, used in connection with Applicant’s services, so closely resembles the
registered mark VANGUARD COMPUTER SYSTEMS as to be likely to cause
confusion, mistake or deception as to the source of Applicant’s services.
Decision: The refusal to register Applicant’s mark VANGUARD REAL ESTATE
SERVICES is affirmed.