West Gate Bank

Trademark Trial and Appeal Board

May 28, 2009

No. 77230592 (T.T.A.B. May. 28, 2009)

Mailed: May 28, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re West Gate Bank
___________

Serial No. 77230592
___________

Alan D. Slattery of Rembolt Ludtke for West Gate Bank.

Doritt Carroll, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
____________

Before Seeherman, Walters and Grendel, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

West Gate Bank has filed an application to register the
standard character mark WEST GATE BANK on the Principal
Register for “retail banking services; mortgage, commercial,
construction and consumer lending services,” in
International Class 36.1 The application includes a
disclaimer of BANK apart from the mark as a whole.

1 Serial No. 77230592, filed July 16, 2007, based on use of the mark in
commerce, alleging first use and use in commerce as of July 20, 1968.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 77230592

2
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the mark WESTGATE FINANCIAL, previously registered for
“financial services, namely, purchase order funding,
factoring, letters of credit, analysis and consultation,” in
International Class 36,”2 that, if used on or in connection
with applicant’s goods, it would be likely to cause
confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).

2 Registration No. 2137134, issued February 17, 1998. The registration
is owned by Westgate Financial Corp. [Section 15 affidavit
acknowledged; renewed.]

Serial No. 77230592

3
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. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.
We turn, first, to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance, sound,
connotation and commercial impression. The test 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 overall commercial
impressions that confusion as to the source of the goods or
services offered under the respective marks is likely to
result. H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715
(TTAB 2008). The focus is on the recollection of the
average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Furthermore, although the marks at issue must be considered
in their entireties, it is well settled that one feature of
a mark may be more significant than another, and it is not
Serial No. 77230592

4
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
We agree with the examining attorney that WESTGATE/WEST
GATE is the dominant portion of each mark because the
additional wording in each mark (BANK and FINANCIAL) is
merely descriptive; that the fact that WEST GATE is two
words in applicant’s mark and a single compound word in the
registered mark is immaterial; and that WESTGATE is an
arbitrary and, thus, strong mark in view of the lack of
obvious descriptive or suggestive meaning of the term in
connection with the respective services and the lack of
evidence of any third-party use or registration of WESTGATE
in connection with the same or similar services.
Thus, although the marks have obvious minor
differences, when we compare them in their entireties we
find that on the whole they are substantially similar in
appearance, sound, connotation and overall commercial
impression. This du Pont factor favors a finding of
likelihood of confusion.
Turning to consider the services involved in this case,
we note that the question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
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5
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Further, it is a general rule that goods or services need
not be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer or
that there is an association between the producers of each
parties’ goods or services. In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991), and cases cited therein; and Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002).
Applicant argues that it is a traditional bank that
makes personal and business loans to customers, receives
deposits, offers checking accounts and is insured by the
FDIC; whereas registrant is not a bank, does not make
Serial No. 77230592

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personal loans, operates primarily online, and is not
insured by the FDIC. Applicant contends that registrant
offers highly specialized services directed toward a
particular set of businesses that lack bank support, i.e.,
start-ups, small businesses, rapidly growing companies, and
companies in turnaround situations, in a narrow range of
industries; and that registrant’s financial services are
distinctly different from applicant’s retail financial
services. Applicant contends that registrant is actually
prohibited from engaging in banking business activities and
using the word “bank” in its name; and that registrant
cannot accept deposits or open checking accounts or offer
other banking services.
Applicant describes registrant’s business of
“factoring” as involving purchasing receivables at a
discount and conducting collection activities related to
those receivables on its own behalf.
The examining attorney agrees generally with
applicant’s characterization of registrant’s services,
although arguing that letters of credit are more than merely
incidental to both applicant’s and registrant’s services.
The examining attorney contends that, while the respective
services may not be identical, they are sufficiently related
that confusion as to source is likely.
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The evidence in the record includes excerpts from
Internet websites and third-party registrations. The
website of the Surety Information Office (www.sio.org)
defines “letters of credit” as “a cash guarantee to the
owner, who can call on the letter of credit on demand. The
letter of credit converts to a payment to the owner and an
interest-bearing loan for the contractor.” This website and
excerpts from www.investopedia.com and www.GuarantyBank.com
confirm that banks offer letters of credit to businesses.
The website of Amegy Bank (www.amegybank.com) indicates that
it offers factoring services to businesses, stating that “as
an alternative to conventional financing, we offer a source
of cash-factoring that ensures available funds and
flexibility for growing businesses. Even if yours is a
start-up company, Amegy Bank can provide funds to assist you
with your cash flow needs based on the creditworthiness of
your commercial accounts receivable.” The Amegy Bank
website notes that Amegy Bank specializes in commercial
banking, and claims that using its factoring services is
preferable to using those of “an independent factoring
company because it can lead to a traditional banking
relationship.” Registrant’s website lists its customers as
those businesses who “lack bank support” or who are
“outstripping capital reserves.”
Serial No. 77230592

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In support of the contention that the respective
services may be of a type that consumers will expect to
emanate from the same source, the examining attorney
submitted use-based third-party registrations owned by banks
or financial companies that each list a wide range of
financial services, including, inter alia, banking services,
financial consulting services, financial brokerage services,
investment banking, commercial banking, mortgage banking,
savings bank services, insurance underwriting, accounts
receivable financing, risk management and commercial and
consumer lending.
Applicant’s services are identified as “retail banking
services; mortgage, commercial, construction and consumer
lending services.” Registrant’s services are identified as
“financial services, namely, purchase order funding,
factoring, letters of credit, analysis and consultation.”
Applicant offers retail banking services, as well as various
types of lending services, including letters of credit.
Registrant’s purchase order funding, factoring and letters
of credit are all forms of lending and/or guarantor
services. Registrant’s analysis and consultation services
encompass a wide range of financial services. While the
wording of the respective recitations of services differ,
both are broadly written and, while the specific nature of
some of the encompassed services may differ, there is also
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significant overlap, both in the services as identified in
applicant’s and registrant’s recitations and as demonstrated
by the Internet evidence of record.3 Moreover, the broadly
identified financial services recited in the third-party
registrations support this conclusion. It is likely that at
least some of the different-named lending services of
applicant and registrant represent different financial
products available for the same situation.
Therefore, we conclude that the du Pont factor of the
relatedness of the services also weighs against applicant.
Applicant argues that both its customers and
registrant’s customers are highly sophisticated, although
the examining attorney notes that there is no evidence that
the respective consumers are sophisticated. General
consumers of banking and financial services encompass all
levels of sophistication. While business customers are
likely to exercise greater care, the trademarks are so
similar that even with the exercise of care, business
customers are unlikely to differentiate the marks based on
the generic/descriptive terms BANK and FINANCIAL.

3 Applicant concedes that it offers letters of credit but
argues that this is merely an incidental service. Certainly
letters of credit are an important part of doing business
for those businesses needing them to purchase materials or
inventory and, while issuing letters of credit may not be
applicant’s primary activity, this is nonetheless an aspect
of applicant’s banking services.
Serial No. 77230592

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Further, inasmuch as the identifications of goods in
both the involved application and the cited registrations
are not limited to any specific channels of trade, we
presume an overlap and that the services would be offered in
all ordinary trade channels for these services and to all
normal classes of purchasers. See In re Linkvest S.A., 24
USPQ2d 1716 (TTAB 1992). Moreover, business customers could
use applicant’s banking services and registrant’s listed
financial services. Thus, to the extent that the respective
services may be overlapping or may represent alternative
financing instruments, we find that at least some of the
purchasers and the trade channels are likely to be the same.
This du Pont factor weighs against applicant.
When we consider the record and the relevant likelihood
of confusion factors, and all of applicant's arguments
relating thereto, including those arguments not specifically
addressed herein, we conclude that in view of the
substantial similarity in the commercial impressions of
applicant’s mark, WEST GATE BANK, and registrant’s mark,
WESTGATE FINANCIAL, their contemporaneous use on the
overlapping and related services involved in this case is
likely to cause confusion as to the source or sponsorship of
such services.
Moreover, to the extent that any doubt exists as to the
correctness of this conclusion, we resolve such doubts
Serial No. 77230592

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against applicant. See Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed.
Cir. 1992); Ava Enterprises Inc. v. Audio Boss USA Inc., 77
USPQ2d 1783 (TTAB 2006); Baseball America Inc. v. Powerplay
Sports Ltd., 71 USPQ2d 1844 (TTAB 2004); and In re
Pneumatiques, Caoutchouc Manufacture et Plastiques Kleber-
Colombes, 487 F.2d 918, 179 USPQ 729 (CCPA 1973).
Decision: The refusal under Section 2(d) of the Act is
affirmed.