OPP (T.T.A.B. Feb. 15, 2019)

Wheel Pros, LLCv.KMC Chain Industrial Co., Ltd.

Trademark Trial and Appeal BoardFeb 15, 2019

OPP (T.T.A.B. Feb. 15, 2019)

Mailed: February 15, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— Wheel Pros, LLC v. KMC Chain Industrial Co., Ltd. ———— Opposition No. 91228424 ________ Mark I. Reichenthal of Branfman Law Group PC, for Wheel Pros, LLC. Kevin A. Thompson of Ladas & Parry LLP, for KMC Chain Industrial Co., Ltd. ———— Before Zervas, Lynch, and Pologeorgis, Administrative Trademark Judges. Opinion by Pologeorgis, Administrative Trademark Judge: KMC Chain Industrial Co., Ltd. (“Applicant”) has applied to register the mark KMC (in standard characters) on the Principal Register for “bicycle chains; change- speed gears for bicycles; motorcycle accessories namely, motorcycle drive chains; motorcycle gears; motorcycle sprockets; roller chains for land vehicles; automobile chains in the nature of chains for motor cars; driving chains for land vehicles; THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91228424 2 reduction gears for land vehicles; transmission chains for land vehicles” in International Class 12.1 Wheel Pros, LLC (“Opposer”) opposes registration of Applicant’s mark on the following two grounds: (1) likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), and (2) fraud.2 In support of its asserted claims, Opposer pleaded ownership of the following registrations:3 Reg. No. Mark Identification of Goods 3010893 KMC (in standard characters) Wearing apparel, namely, sweatpants, jackets, coats, t-shirts, sweatshirts, underwear, tank tops, hats, and caps, in Int’l Class 25. 3027059 KMC (in standard characters) accessories for automobiles, light trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, wheels; Wheel parts and accessories for automobiles, light trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, 1 Application Serial No. 86640743, filed on May 26, 2015, based on an allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming April 1, 1985 as the date of first use and January 10, 1987 as the date of first use in commerce. 2 Opposer’s Amended Notice of Opposition; 11 TTABVUE. 3 Opposer also pleaded ownership of Registration No. 3182731 for the mark KMC BUZZ in standard characters for, inter alia, “online information and news in the field of automotive trends” and “online retail information and retail news in the field of product offerings, namely, wheels, wheel accessories, toys and apparel.” This registration, however, has been canceled for failure to file timely a Section 8 affidavit of continued use. Accordingly, we have given no consideration to this registration in our analysis herein. See Black & Decker Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1487 n.9 (TTAB 2007) (canceled registration given no probative value). Opposition No. 91228424 3 Reg. No. Mark Identification of Goods lug nuts, wheel covers, wheel rims, wheel spokes, hub caps and center caps, in Int’l Class 12. 3234295 KMC (in standard characters Toys, games and playthings, namely, toy model vehicles and related accessories sold as units, die cast toy cars, toy trucks, and toy vehicles and related accessories sold as units, and remote-controlled toy vehicles and related accessories sold as units, in Int’l Class 28. 4817228 (WHEELS disclaimed) Automotive vehicle wheels and components thereof, in Int’l Class 12. 4919386 (WHEELS and SERIES disclaimed) Automotive vehicle wheels and components thereof, in Int’l Class 12. 4941362 (WHEELS disclaimed) Clothing, namely, t-shirts, shirts, sweat shirts, tank tops; headgear, namely, hats and caps, in Int’l Class 25. 5008028 Clothing, namely, t-shirts, shirts, sweat shirts, tank tops; headgear, namely, hats and caps, in Int’l Class 25. Opposition No. 91228424 4 Reg. No. Mark Identification of Goods 5072714 Automotive vehicle wheels and components thereof, in Int’l Class 12. In its answer to Opposer’s amended pleading, Applicant admitted that (1) it filed its involved application on May 26, 2015, that it was published on May 17, 2016, and that the application speaks for itself; (2) Opposer’s pleaded registrations match the registrations numbers listed in the USPTO’s records; and (3) it has no license with Opposer. Applicant, however, denied the remaining allegations in the amended notice of opposition.4 I. The Record The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Applicant’s application file. The record also comprises the evidence summarized below. A. Opposer’s Evidence 1. Opposer’s Notice of Reliance5 consisting of (1) status and title copies of Opposer’s pleaded registrations (Exh. A); (2) a copy of Applicant’s involved application (Exh. B and AB);6 (3) portions of various retailer websites downloaded from the Internet (Exh. C-I and R-Z); (4) screenshot of a portion of a Facebook page purportedly owned by Opposer (Exh. J.); (5) copies of portions of magazine articles purportedly discussing Opposer’s KMC wheels (Exh. K-M); (5) screenshots of a website purportedly owned by Opposer (Exh. 4 Applicant’s Answer to Opposer’s amended pleading; 13 TTABVUE. 5 Opposer’s Notice of Reliance; 20 TTABVUE. 6 It was unnecessary for Opposer to submit a copy of Applicant’s involved application since it is automatically of record. See Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). Opposition No. 91228424 5 M and AA); (6) Google search results for “KMC Wheels” (Exh. O); (7) printout of a listing of TESS results for all live KMC marks (Exh. P); (8) printout of a listing of TESS search results for all KMC marks in International Class 12 (Exh. Q); (9) copies of Applicant’s motion to amend, opposition thereto, and reply brief filed in this proceeding (Exh. AC-AE);7 and (10) official documents from foreign countries purportedly concerning litigations between Opposer and Applicant (Exh. AF-AL); and 2. Testimony Declaration of Edward Burns, Opposer’s general counsel.8 Opposer filed a trial brief and a reply brief. B. Applicant’s Evidence Applicant did not submit any testimony or evidence during its assigned testimony period nor did it file a trial brief.9 C. Internet Evidence As noted, Opposer, by way of its notice of reliance, submitted printouts from various websites downloaded from the Internet. Although admissible for what they show on their face, see Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2), this evidence also contains hearsay that may not be relied upon for the truth of the matters asserted unless supported by testimony or other evidence. Fed. R. Evid. 801(c); WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 (TTAB 2018); Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1039-40 7 Again, it was needless for Opposer to file Applicant’s fully-briefed motion to amend its identification of goods since these papers are already part of the record of this case. 8 Opposer’s Notice of Reliance, 20 TTABVUE at pp. 364-372 9 Since Applicant did not file a trial brief in this case, the filing of a reply brief by Opposer was improper since the purpose of a reply brief is to respond to the arguments made in the opposition brief, not allowing a plaintiff to supplement or make new arguments that come to mind after filing its main brief. Accordingly, Opposer’s reply brief will be given no consideration. Opposition No. 91228424 6 (TTAB 2010); Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 704.08(b) (2018) (“The probative value of Internet documents is limited. They can be used to demonstrate what the documents show on their face. However, documents obtained through the Internet may not be used to demonstrate the truth of what has been printed.”). II. Preliminary Issue – Applicant’s Motion to Amend Identification of Goods Before turning to the merits of Opposer’s asserted claims, we first address Applicant’s motion to amend the identification of goods set forth in its involved application.10 Opposer has contested the motion.11 By order dated September 22, 2016, the Board deferred consideration of Applicant’s motion to amend until final hearing.12 By way of its motion, Applicant seeks to delete the following goods from its identification of goods, namely, “change speed gears for bicycles,” “motorcycle gears,” “motorcycle sprockets, and “reduction gears for land vehicles.” In support of its motion, Applicant maintains that “[u]pon receipt of the Notice of Opposition, Applicant underwent strict scrutiny of the goods alleged to be in use in the Application and needs to amend to delete certain goods which Applicant, a Taiwanese company, is no longer certain to be in use in the United States.”13 Applicant further 10 6 TTABVUE. 11 9 TTABVUE. 12 12 TTABVUE. 13 Applicant’s Motion to Amend, p. 1, 6 TTABVUE 2. Opposition No. 91228424 7 contends that at no time did it intend to deceive anyone by previously alleging these goods to be in use in the United States.14 Trademark Rule 2.133(a), 37 C.F.R. § 2.133(a), provides that “[a]n application subject to an opposition may not be amended in substance nor may a registration subject to a cancellation be amended or disclaimed in part, except with the consent of the other party or parties and the approval of the Trademark Trial and Appeal Board, or upon motion granted by the Board.” The conditions for entry of an unconsented amendment of the identification of goods are as follows: 1. the proposed amendment must serve to limit the broader identification of goods or services; 2. the applicant must consent to the entry of judgment on the grounds for opposition with respect to the broader identification of goods or services present at publication; 3. if the applicant wishes to avoid the possibility of a res judicata effect by the entry of judgment on the original identification, it must make a prima facie showing that the proposed amendment serves to change the nature and character of the goods or services or restrict their channels of trade and customers so as to introduce a substantially different issue for trial; and 4. where required to support the basis of the subject application, any specimens of record must support the goods or services as amended; and the applicant must then introduce evidence during its testimony period to prove use of its mark with the remaining goods or services prior to the relevant date as determined by the application's filing basis. Johnson & Johnson v. Stryker, 109 USPQ2d 1077, 1078-79 (TTAB 2013); see also Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1435 (TTAB 2007). Here, Opposer clearly did not consent to Applicant’s proposed amendment. 14 Id. Opposition No. 91228424 8 Moreover, although Applicant’s proposed amendment is limiting in nature, Applicant did not consent to the entry of judgment on the grounds for opposition with respect to the broader identification of goods at publication nor did Applicant make a prima facie showing that the proposed amendment serves to change the nature and character of the goods or restrict their channels of trade and customers so as to introduce a substantially different issue for trial.15 In view thereof, Applicant’s motion to amend its identification of goods is denied. Accordingly, we will entertain Opposer’s asserted claims based on Applicant’s identification of goods as originally filed.16 III. Standing Standing is a threshold issue that must be proven by the plaintiff in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). Our primary reviewing court, the U.S. Court of Appeals for the Federal Circuit, has enunciated a liberal threshold for determining standing, namely that a plaintiff must demonstrate that it possesses a “real interest” in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage.” Id. (citing Ritchie v. Simpson, 170 F.3d 1902, 50 USPQ2d 1023, 15 To the extent Applicant seeks to avoid Opposer’s asserted claim of fraud by deleting goods from its identification, we note that it is well-settled that fraud cannot be cured merely by deleting from the application those goods or services on which the mark was not used at the time of the signing of a use-based application. See Grand Canyon West Ranch LLC v. Hualapai Tribe, 78 USPQ2d 1696, 1698 n.5 (TTAB 2006); Turbo Sportswear v. Marmot Mountain Ltd., 77 USPQ2d 1152, 1155 (TTAB 2005). 16 Even if we were to grant Applicant’s motion to amend its identification of goods, this would not alter the outcome of this proceeding. Opposition No. 91228424 9 1025-26 (Fed. Cir. 1999)). A “real interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 50 USPQ2d at 1026. Opposer has demonstrated through the USPTO database printouts made of record that it is the owner of its pleaded registrations and that these registrations are valid and subsisting.17 Because Opposer’s registrations are of record, Opposer has established its standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Ind., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). IV. Likelihood of Confusion We will now consider Opposer’s Section 2(d) claim, focusing on two of Opposer’s pleaded registered marks which are of record: (1) KMC in standard characters (Registration No. 3027059) for the goods identified therein, namely, “accessories for automobiles, light trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, wheels; Wheel parts and accessories for automobiles, light trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, lug nuts, wheel covers, wheel rims, wheel spokes, hub caps and center caps” in International Class 12; and (2) (Registration No. 4817228; WHEELS disclaimed) for “Automotive vehicle wheels and components thereof” also in International Class 12. In our view, these two registrations, coupled with their corresponding identified goods, are most likely to support a likelihood of confusion claim. If Opposer could 17 As noted supra, the submission of a USPTO database printout of Opposer’s pleaded KMC BUZZ registration will be given no consideration since, as indicated in the printout, this registration has been canceled. Opposition No. 91228424 10 prevail on its Section 2(d) claim on these two registrations, then consideration of others would be unnecessary; and if Opposer could not, then consideration of other less relevant registrations would not assist Opposer. See, e.g., The N. Face Apparel Corp. v. Sanyang Indus. Co., 116 USPQ2d 1217, 1225 (TTAB 2015) (citing In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010)). Section 2(d) of the Trademark Act prohibits the registration of a mark that “[c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). To prevail on its Section 2(d) claim, Opposer must prove, by a preponderance of the evidence, that it has priority in the use of its mark and that use of Applicant’s mark is likely to cause confusion, mistake, or deception as to the source or sponsorship of Applicant’s goods, Cunningham, 55 USPQ2d at 1848, even in the absence of contrary evidence or argument. Threshold TV, Inc. v. Metronome Enters., Inc., 96 USPQ2d 1031, 1040 (TTAB 2010). A. Priority of Use Because Opposer’s pleaded registrations for the marks KMC in standard characters and are of record, priority is not an issue with respect to the goods identified in these registrations. See Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998) (citing King Candy, Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974)). Opposition No. 91228424 11 B. Similarity of the Marks We now consider the first du Pont likelihood of confusion factor, which involves an analysis of the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed Cir. 2005) (quoting du Pont, 177 USPQ at 567). “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.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal citation omitted). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Our analysis cannot be predicated on dissection of the involved marks. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Rather, we are obliged to consider the marks in their entireties. Id.; see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). Nonetheless, 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 a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at Opposition No. 91228424 12 1161. Applicant’s mark is KMC in standard characters. Opposer’s marks are KMC in standard characters and . Here, Applicant’s mark is identical to Opposer’s KMC mark in standard characters. With regard to Opposer’s mark, we find that the dominant feature of this mark, i.e., the letters KMC, is identical to Applicant’s mark. The inclusion of the term WHEELS in Opposer’s mark does little to distinguish the marks at issue since the term is the generic designation of Opposer’s goods and has been appropriately disclaimed. As such, the term WHEELS is less likely to make an impact in the minds of consumers. See In re Dixie Rests., Inc., 41 USPQ2d at 1533-34 (disclaimed matter that is descriptive of or generic for a party’s goods is typically less significant or less dominant when comparing marks); see also In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 753 (Fed. Cir. 1985). Furthermore, although Opposer’s mark includes a nondescript background carrier, “the verbal portion of the mark [rather than a nondescript background carrier] is the one most likely to indicate the origin of the goods to which it is affixed.” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co., KGAA v. New Millennium 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 rather than a nondescript background carrier because it is the wording that purchasers would use to refer to or request the goods or services. See, e.g., In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 Opposition No. 91228424 13 (Fed. Cir. 2012). Finally, Applicant’s mark is a standard character mark, and marks appearing in standard character form may be displayed in any stylization, font, color and size, including the identical stylization of the letters KMC in Opposer’s mark, because the rights reside in the wording and not in any particular display or rendition. See Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (a mark in standard character form is not limited to the depiction thereof in any special form); see also Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a) (standard character marks are “without claim to any particular font style, size, or color”). As noted above, Applicant’s standard character mark is identical to Opposer’s standard character KMC mark. With regard to Opposer’s mark, while we have not overlooked the stylization of the letters KMC, the addition of a background carrier, or the inclusion of the generic term WHEELS, we nonetheless conclude that Applicant’s mark and Opposer’s mark, when considered in their entireties, are substantially similar in sound, appearance, connotation and commercial impression. Therefore, the first du Pont factor strongly supports a conclusion that confusion is likely. C. Strength of Opposer’s KMC marks 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 goods, du Pont, 177 USPQ at 567, may be considered in tandem to determine the strength of Opposer’s standard Opposition No. 91228424 14 character KMC mark, as well as Opposer’s mark, and the scope of protection to which they are entitled. Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017).18 “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).”). We first determine the asserted fame of Opposer’s marks under the fifth du Pont factor.19 In determining the commercial strength or fame of Opposer’s marks under this factor, such strength “may be measured indirectly by the volume of sales and advertising expenditures in connection with the [goods] sold under the mark, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the [goods] identified by the mark []; and the general reputation of the [goods].” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017). 18 The Federal Circuit reiterated that “‘[w]hile dilution fame is an either/or proposition—fame either does or does not exist—likelihood of confusion fame varies along a spectrum from very strong to very weak.’” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (quoting Palm Bay Imps. Inc. 73 USPQ2d at 1694 (internal quotation omitted)). 19 Opposer’s Trial Brief, pp. 20-21; 21 TTABVUE 21-22. Opposition No. 91228424 15 Here, Opposer has not submitted any evidence regarding the volume of its sales under its KMC marks for its identified goods, revenues generated from such sales, or the extent or dollar amount of its advertising efforts. Additionally, Opposer has failed to submit any evidence of (1) how its sales and advertising figures compare to its competitors in the industry, (2) the frequency with which consumers encounter its standard character KMC mark or its mark for wheels, or (3) any context for its achievements in the automotive wheels and accessories trade, e.g., market share. Without comparative numbers or market share percentages, it is difficult to place the apparent success or renown of Opposer’s marks into context. Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002). Notwithstanding the foregoing, Opposer attempts to demonstrate the asserted fame of its marks by maintaining the following: (1) that its KMC marks have been in continuous use at least as early as June 1983; (2) that its Facebook page has received over 157,000 “likes”; (3) that its website features hundreds of types of unique wheels; (4) that a Google search of “KMC WHEELS” demonstrates almost 4,000 reviews of its goods on a single website, as well as reviews on other third-party websites; and (5) that three publications have provided unsolicited reviews of its KMC branded wheels.20 20 Opposer’s Trial Brief, p. 21; 21 TTABVUE 22. The better practice would have been to submit testimony attesting to the truth of the matters asserted in these Internet materials, including that the entity identified in this Internet evidence specifically refers to Opposer. However, since Applicant has not objected to this evidence on such grounds, we will consider Opposition No. 91228424 16 We initially note that there is no documentary evidence or testimony of record demonstrating that Opposer has been using its KMC and marks in U.S. commerce since June of 1983.21 With regard to the remaining evidence pertaining to fame, we find such evidence insufficient to demonstrate that Opposer’s KMC and marks fall on the very strong end of the fame spectrum for likelihood of confusion purposes and, therefore, these marks would not be entitled to a broader scope of protection under the fifth du Pont factor. Specifically, there is no evidence of record showing how many consumers have been exposed to Opposer’s website www.kmcwheels.com. As to the number of “likes” on Opposer’s Facebook page, such evidence falls short of demonstrating the extent to which these “likes” translate into widespread recognition of Opposer’s KMC marks among the relevant consuming public, and also lacks context. We are simply without enough information to determine the degree to which Opposer’s Facebook “likes” are significant. Further, there is no indication that the 4000 Google search results for the phrase “KCM wheels” all concern Opposer nor is there any evidence regarding how many potential consumers have seen these Google entries.22 Finally, we find that three newspaper the evidence for whatever probative value it may have. 21 The dates of first use specified in Opposer’s registrations of record for its KMC and marks are not evidence of such use. “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.” Central Garden & Pet Co. v. Doskocil Mfg. Co., Inc., 108 USPQ2d 1134, 1139 (TTAB 2013); see also Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b). 22 Additionally, we do not find the Google search results to be very probative in our analysis Opposition No. 91228424 17 articles reviewing Opposer’s goods offered under its KMC marks are insufficient to demonstrate widespread recognzition of Opposer’s marks, particularly since there is no evidence of record regarding the extent of circulation or subscribers of these publications in the United States nor is there any evidence showing the number of persons who have actually been exposed these articles. In view thereof, we find Opposer’s “fame” evidence lacks probative value to establish that Opposer’s KMC and marks have achieved any appreciable commericial renown or recognition among relevant consumers. Thus, the fifth du Pont factor is neutral. As to conceptual or inherent strength, Applicant did not participate at trial and hence there is no evidence demonstrating that Opposer’s KMC marks are inherently weak. Opposer, on the other hand, has submitted evidence to demonstrate that its KMC marks are not inherently weak. Specifically, Opposer has submitted (1) a listing of active registrations and pending applications obtained from the Trademark Electronic Search System (“TESS”) for all marks including the letters KMC;23 and (2) a listing of active and dead registrations and pending applications obtained from a TESS search for marks including the letters KMC for goods solely identified in since the printouts are too truncated to provide context. See In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (GOOGLE search results that provided very little context of the use of ASPIRINA deemed to be “of little value in assessing the con- sumer public perception of the ASPIRINA mark.”); In re Tea and Sympathy, Inc., 88 USPQ2d 1062, 1064 n.3 (TTAB 2008) (truncated GOOGLE search results entitled to little probative weight without additional evidence of how the searched term is used). 23 Opposer’s Notice of Reliance, Exh. P; 20 TTABVUE 218-19. Opposition No. 91228424 18 International Class 12.24 Opposer argues that the number of results is relatively small and that none of the live applications or registrations with goods in Class 12 are owned by third parties. A TESS listing of marks is not competent evidence to demonstrate the lack of weakness of Opposer’s KMC marks. Mere listings of third-party registrations and applications are not sufficient to make those registrations and applications of record, see In re Jonathan Drew, Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011), and without any accompanying indication of the owners of the registrations or goods or services associated therewith, the listings have little, if any, probative value because there is no information by which we may assess Opposer’s ownership claims, or how many of these registrations, if any, identify goods related to those at issue herein. See Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 155 (TTAB 2012) (TESS listing has little, if any, probative value); see also TBMP § 1208.02 and the authorities cited therein. For these reasons, while we have considered the list, its probative value is at best limited, and cannot demonstrate the strength or weakness of the designation KMC for Opposer’s goods. Jonathan Drew, 97 USPQ2d at 1644 n.11. In sum, we find that there is no probative evidence of record demonstrating any inherent weakness of the term KMC for automobile wheels or any of the other goods 24 Id., Exh. Q; 20 TTABVUE 220. This listing includes “dead” registrations and abandoned applications. As noted supra, canceled or “dead” registrations have no probative value and will be given no consideration. Similarly, third-party applications, whether active or aban- doned, have no probative value except to show that an application has been filed. See In- terpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003) (third- party applications are evidence only of the fact that they were filed). Opposition No. 91228424 19 identified in Opposer’s KMC and registrations. The term KMC on this record is arbitrary for the goods which are identified in the two registrations. In view thereof, Opposer’s KMC marks are entitled to the scope of protection afforded to arbitrary marks, and the sixth du Pont factor regarding the number and nature of similar marks in use on similar goods is therefore neutral. D. Similarity of Goods We next address the du Pont likelihood of confusion factor focusing on the comparison of the goods at issue. It is settled that it is not necessary that the respective goods be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis. The respective goods need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that goods emanate from the same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). Applicant’s goods are identified as “bicycle chains; change-speed gears for bicycles; motorcycle accessories namely, motorcycle drive chains; motorcycle gears; motorcycle sprockets; roller chains for land vehicles; automobile chains in the nature of chains for motor cars; driving chains for land vehicles; reduction gears for land vehicles; transmission chains for land vehicles.” As noted above, Opposer has demonstrated priority as to its standard character KMC mark for “accessories for automobiles, light Opposition No. 91228424 20 trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, wheels; Wheel parts and accessories for automobiles, light trucks, sport utility vehicles, vans, golf cars, and all terrain vehicles, namely, lug nuts, wheel covers, wheel rims, wheel spokes, hub caps and center caps.” Opposer has also demonstrated priority as to its mark for “automotive vehicle wheels and components thereof.” Opposer contends that the identification of goods for both its standard character KMC mark and its mark are broad enough to encompass Applicant’s goods. Specifically, Opposer argues that the prefatory phrase “accessories for automobiles” set forth in the identification of goods for its registered standard character KMC mark would include Applicant’s goods.25 Opposer also maintains that “automotive wheels and components thereof” identified in its registration for the mark also encompass many, if not all, of Applicant’s claimed goods because Applicant’s claimed goods include chains, gears and sprockets – which are, by definition, parts of wheels and accessories for wheels.26 More specifically, Opposer argues that Applicant’s claimed goods “driving chains for land vehicles; reduction gears for land vehicles; transmission chains for land vehicles” are all intricately related to automotive wheels since they constitute accessories to automotive wheels. We find Opposer’s arguments unpersuasive, and on this record cannot find the goods overlapping. First, while Opposer’s identification of goods for its KMC standard 25 Opposer’s Trial Brief, p. 18, 21 TTABVUE 19. 26 Id. Opposition No. 91228424 21 character mark includes the prefatory phrase “accessories for automobiles,” when viewing this portion of the identification as a whole, the accessories are specifically narrowed to only include “wheels.” Likewise, while the latter portion of the identification of goods for Opposer’s KMC standard character mark includes the prefatory phrase “wheel parts and accessories” for various land vehicles, the wheel parts and accessories are also narrowed to include only “lug nuts, wheel covers, wheel rims, wheel spokes, hub caps and center caps.” Moreover, with regard to Opposer’s identification of goods for its mark, i.e., “automotive wheels and components thereof,” Opposer has not submitted any evidence to demonstrate that Applicant’s goods are “components” of Opposer’s wheels or to support its claim that Applicant’s goods are “intricately related to automotive wheels.”27 Opposer’s arguments are just that — mere arguments — none of which are supported by the record. Nevertheless, because the marks are identical in the case of KMC or substantially similar in the case of and since there is no evidence that KMC is commercially or inherently weak for the goods at issue, “the relationship between the goods on which the parties use their marks need not be as great or as close as in the situation where the marks are not identical or strikingly similar.” See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1992) (“[E]ven when goods or services are not competitive or intrinsically related, the use of identical marks can 27 Id. Opposition No. 91228424 22 lead to an assumption that there is a common source”); see also Amcor, Inc. v. Amcor Ind., Inc., 210 USPQ 70, 78 (TTAB 1981). Opposer’s and Applicant’s identifications of goods show on their face that they all include motor vehicle parts. Moreover, while there is no per se rule that different automobile parts and accessories are related goods, the Board, albeit on different records, has held that marketing by different parties of different types of automotive parts and accessories under the same or similar marks is likely to cause confusion. See, e.g., In re Delbar Prods., Inc., 217 USPQ 859, 861 (TTAB 1981) (holding ULTRA for outside mounted vehicle mirrors likely to be confused with ULTRA and design for automobile parts, including pins, valves, water pumps, oil pump, universal joints, gears, and axle shafts); In re Red Diamond Batter Co., 203 USPQ 472, 472-73 (TTAB 1979) (holding RED DIAMOND for storage batteries likely to be confused with DIAMOND for pneumatic rubber automobile and vehicle tires); In re Trelleborgs Gummfabriks Aktiebolag, 189 USPQ 106, 107-08 (TTAB 1975) (holding T and design for, inter alia, hoses, namely, rubber hoses and inner tubes for tires and pneumatic, semisolid and solid tires likely to be confused with T and design for, inter alia, motor oil, oil additives and fuel additives); In re Magic Muffler Serv., Inc., 184 USPQ 125, 126 (TTAB 1974) (holding MAGIC for vehicle parts, namely mufflers, likely to be confused with MAGIC for motors for motor vehicles). Here, both Opposer’s goods and Applicant’s goods are comprised of automobile parts or accessories which may be purchased simultaneously by the same individuals such as automotive mechanics, automotive dealers and motorists who service their Opposition No. 91228424 23 own vehicles. Since Opposer’s goods and Applicant’s goods are sold under the same and substantially the same marks, it is likely that they would mistakenly be attributed to the same source. Stated differently, the parties’ manner of use of identical or substantially identical marks in the automotive field are the most relevant “circumstances surrounding” the marketing of their goods, which makes their trademarks and goods “likely to be seen by the same persons.” These circumstances could give rise to a mistaken belief that the parties’ goods originate from or are associated with the same source. L.C. Licensing, Inc. v. Berman, 86 USPQ2d 1883, 1889 (TTAB 2008). In short, while the parties’ goods differ, they are “related in the mind of the consuming public as to the origin of the goods.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). We find that to be the case here because the parties are both offering goods in the automotive parts field under identical and substantially identical marks. Thus, the du Pont factor regarding the similarity of the goods also favors a finding of likelihood of confusion. E. Similarity in Trade Channels and Classes of Purchasers Next we consider established, likely-to-continue channels of trade, the third du Pont factor. There no restrictions as to trade channels or classes of purchasers set forth in either the identification of goods of Applicant’s involved application or Opposer’s KMC and registrations of record. Accordingly, we presume Applicant’s and Opposer’s goods travel through all usual channels of trade for such Opposition No. 91228424 24 goods, e.g., automotive parts stores and online marketplaces, and are offered to all normal potential purchasers for such goods, i.e., automotive mechanics, automotive dealers and even some motorists. Paula Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA); see also Stone Lion, 110 USPQ2d at 1161. Moreover, Opposer has submitted evidence consisting of screenshots of websites of third-party online retailers who offer the type of goods provided by both Applicant and Opposer, thereby demonstrating that the parties’ respective goods travel in similar trade channels.28 Accordingly, we find that both Opposer’s goods and Applicant’s goods travel in the same or similar channels of trade and are offered to similar or overlapping consumers. In view of the foregoing, the third du Pont factor also weighs in favor of finding a likelihood of confusion. F. Actual Confusion We next address the seventh du Pont factor, the nature and extent of any actual confusion. A showing of actual confusion may be highly probative, if not conclusive, of a likelihood of confusion. In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). Evidence of actual confusion is difficult to obtain, however, and is not necessary to show a likelihood of confusion. See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017); Weiss Assocs. Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1843 (Fed. Cir. 1990). 28 Opposer’s Notice of Reliance, Exh. C-I; 20 TTABVUE 85-152. Opposition No. 91228424 25 Here, Opposer relies heavily on evidence of what it alleges to be actual confusion. Specifically, Opposer argues that its submitted screenshots from the websites of various online retailers, namely, Sears, Amazon, K-Mart, eBay, ShopEddies, and Trainers4me,29 demonstrate that these retailers have experienced actual confusion because, among other things, they have labeled and advertised Applicant’s goods under Opposer’s KMC Wheels trade name on their website pages.30 Here, without any testimony or competent evidence attesting to the truth of the matters asserted in these Internet materials, we find that this evidence and Opposer’s allegations are not established by what the webpages show on their face. Specifically, the evidence does not show that that the goods offered under the KMC Wheels trade name are in fact Applicant’s goods nor does this evidence establish that the referenced KMC Wheels trade name specifically refers to Opposer. In sum, Opposer has failed to submit probative evidence to demonstrate that actual confusion has occurred. Accordingly, this du Pont factor is neutral. G. Extent of Potential Confusion Last, we consider the eighth du Pont factor that concerns the extent of potential confusion, i.e., whether de minimis or substantial. Opposer maintains that since the marks at issue are similar and the involved goods are identical in part, there is a substantial likelihood of confusion as to the source of the involved goods. We agree to the extent that because we have found that the goods at issue are related and are 29 Opposer’s Notice of Reliance, Exh. R-Z; 20 TTABVUE 222-260. 30 Opposer’s Trial Brief, pp. 12-15; 21 TTABVUE 13-16. Opposition No. 91228424 26 offered under identical and substantially similar marks and are of the type that would be marketed to and purchased by similar or overlapping consumers, the potential for confusion cannot be deemed de minimis. Accordingly, this du Pont factor favors Opposer. V. Conclusion We have considered all of Opposer’s arguments and evidence of record, including those not specifically discussed herein, and all relevant du Pont factors. Because we have found that Applicant’s KMC mark is identical to Opposer’s KMC mark and that Opposer’s mark is substantially identical to Applicant’s mark, that Applicant’s identified goods are related to Opposer’s goods, that they would move in the same or overlapping trade channels, that they are offered to the same or overlapping classes of purchasers, and that potential for confusion is not de minimis, we conclude that Applicant’s KMC mark so resembles Opposer’s KMC and marks as to be likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act. Decision: The opposition to registration of Applicant’s KMC mark under Section 2(d) of the Trademark Act is sustained. In view thereof, we need not address Opposer’s remaining claim of fraud. See, e.g., Chanel, Inc. v. Makarczyk, 110 USPQ2d 2013, 2017, 2027 (TTAB 2014) (“Insofar as we are sustaining the opposition on this ground, we need not consider opposer’s remaining claims ….”).