No. 86244862 (T.T.A.B. Oct. 30, 2015)

Wild Child Sounds, LLC

Trademark Trial and Appeal BoardOct 30, 2015

No. 86244862 (T.T.A.B. Oct. 30, 2015)

This Opinion is Not a Precedent of the TTAB Mailed: October 30, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Wild Child Sounds, LLC _____ Serial No. 86244862 _____ Timothy C. Matson of Lommen Abdo, P.A., for Wild Child Sounds, LLC Renee McCray, Trademark Examining Attorney, Law Office 111, Robert Lorenzo, Managing Attorney. _____ Before Mermelstein, Bergsman and Wellington, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Wild Child Sounds, LLC (“Applicant”) seeks registration on the Principal Register of the mark WILD CHILD (in standard characters) for Entertainment in the nature of live performances by a musical group, in International Class 41.1 The Trademark Examining Attorney has refused registration of Applicant’s mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1051(d), on the ground that Applicant’s mark so resembles the registered mark WILDCHILD! for 1 Application Serial No. 86244862 was filed on April 7, 2014, based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as October 27, 2010. Serial No. 86244862 - 2 - “musical sound recordings,” in International Class 9, as to be likely to cause confusion.2 After the Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. I. Evidentiary Issues A. Evidence incorporated into Applicant’s brief. Trademark Rule 2.142(d), 37 CFR § 2.142(d), provides that the record should be complete prior to the filing of an appeal. Applicant incorporated evidence into its brief and reply brief, in the nature of album covers, links to the websites of musical artists, and references to articles printed in newspapers. The Board will not consider any evidence that was not timely submitted during the prosecution of the application. Also, merely identifying Internet links in a brief is not enough to make websites of record. See In re Fiesta Palms LLC, 83 USPQ2d 1360, 1366 (TTAB 2007); In re Planalytics Inc., 70 USPQ2d 1453, 1457 (TTAB 2004) (“A mere reference to a website does not make the information of record. In order to review the facts in this case, there should be evidence in the record.”). If there should be further review, Congress has required that the “Director shall transmit to the United States Court of Appeals for the Federal Circuit a certified list of the documents comprising the record in the Patent and Trademark Office.” 15 U.S.C. §1071(a)(3). See also In re Zurko, 258 F.3d 1379, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001) (“[T]he Board must 2 Registration No. 2434593, issued March 13, 2001; renewed. Serial No. 86244862 - 3 - point to some concrete evidence in the record in support of these findings. To hold otherwise would render the process of appellate review for substantial evidence on the record a meaningless exercise”) (footnote omitted). This is an additional basis on which the Board may not consider the Internet links referenced in Applicant’s briefs. B. Third-party registrations improperly made of record. In Applicant’s November 17, 2014 response to an Office Action, Applicant referenced 11 third-party registrations incorporating the term “Wild Child” for various goods and services without including copies of the registrations with the response.3 In her November 29, 2014 Office Action, the Trademark Examining Attorney addressed Applicant’s third-party registration evidence and did not object to the improper evidence of third-party registrations. However, in her brief, the Trademark Examining Attorney objected to Applicant’s reference to a list of third- party registrations incorporating the term “Wild Child.” The Trademark Trial and Appeal Board does not take judicial notice of registrations, and the submission of a list of registrations does not make these registrations part of the record. In re 1st USA Realty Prof'ls, Inc., 84 USPQ2d 1581, 1583 (TTAB 2007); In re Duofold Inc., 184 USPQ 638, 640 (TTAB 1974); TBMP §1208.02 (June 2015). To make registrations of record, copies of the registrations or the complete electronic equivalent (i.e., complete printouts taken from the USPTO’s 3 Applicant included the cited registration. We do not consider the cited registration to be a third-party registration. In any event, a copy of the cited registration was entered into the record by the Examining Attorney when the refusal was first made, so the registration did not have to be resubmitted. Serial No. 86244862 - 4 - Trademark database) must be submitted. In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3 (TTAB 2002); In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1456 n.2 (TTAB 1998); In re Broadway Chicken Inc., 38 USPQ2d 1559, 1561 n.6 (TTAB 1996); In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB 1994). If, as in this case, Applicant's response includes improper evidence of third-party registrations, the Examining Attorney must object to the evidence in the first Office action following the response. Otherwise, the Board may consider the objection to be waived. See In re Houston, 101 USPQ2d 1534, 1536 (TTAB 2012) (finding that the examining attorney's failure to advise applicant of the insufficiency of the list of registrations when it was proffered during examination constituted a waiver of any objection to consideration of that list); In re 1st USA Realty Prof'ls, 84 USPQ2d at 1583 (allowing evidence of a list of third-party registrations because the examining attorney did not advise applicant of the insufficiency of the list while there was still time to correct the mistake); In re Broyhill Furniture Indus., Inc., 60 USPQ2d 1511, 1513 n.3 (TTAB 2001) (finding examining attorney's objection to a listing of third- party registrations waived because it was not raised in the Office action immediately following applicant's response in which applicant’s reliance on the listing as evidence was indicated). We overrule the objection and consider the list of third-party registrations for whatever probative value it may have. Serial No. 86244862 - 5 - II. Likelihood of Confusion 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 issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). These factors, and any other relevant du Pont factors in the proceeding now before us, will be considered in this decision. A. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression and the number and nature of similar marks in use in connection with similar goods and services. We turn first to the du Pont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, “two marks may be found to be confusingly similar if there are sufficient similarities in terms of sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d Serial No. 86244862 - 6 - 1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) (citation omitted). See also Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (citing Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”)). “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). See also San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Since the goods and services are “musical sound recordings” and “live performances by a musical group,” the average customer is an ordinary consumer of such goods and services. Applicant’s mark is WILD CHILD, in standard character form, and the registered mark is WILDCHILD!, in typed drawing form. Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. A typed Serial No. 86244862 - 7 - mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (July 2015). Marks presented in standard or typed characters are not limited to any particular depiction. The rights associated with a mark in standard or typed characters reside in the wording and not in any particular display. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). Registrant could feature its mark as WildChild!, thus, presenting a mark that is visually similar to Applicant’s mark. Although the registered mark is presented without a space, consumers are likely to view and verbalize it as WILD CHILD, based on normal English pronunciation. Thus, the presence or absence of a space between the two words is an inconsequential difference that even if noticed or remembered by consumers would not serve to distinguish these marks. See, e.g., Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1025 (TTAB 2009) (finding that DESIGNED TO SELL does not create a distinct commercial impression from DESIGNED2SELL); Seaguard Corp. v. Seaward International, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are "essentially identical"); In re Best Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“there can be little doubt that the marks [BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and bologna] are practically identical and indeed applicant has not argued otherwise.”). Serial No. 86244862 - 8 - Little, if any, trademark significance can be attributed to the exclamation mark in the registered mark. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085-86 (Fed. Cir. 2014) (TAKE 10! found similar to TAKETEN despite exclamation point); cf. DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753 (Fed. Cir. 2012) (SNAP! descriptive of syringes notwithstanding the addition of broken exclamation point); In re Guitar Straps Online LLC, 103 USPQ2d 1745 (TTAB 2012) (exclamation point did not change descriptive nature of mark); In re Litehouse Inc., 82 USPQ2d 1471 (TTAB 2007) (same). Although Applicant did not contend that the marks are dissimilar, Applicant argued that Registrant’s mark WILDCHILD! is a weak mark, entitled to only a narrow scope of protection.4 To support this argument, Applicant referenced 11 third-party registrations incorporating the term “Wild Child” for various goods and services (e.g., retail store and mail order services featuring children’s clothing, business consultation services in the field of show business and talent agencies, clothing, tattooing, etc.).5 The third-party registrations listed by Applicant are of limited probative value because they do not cover musical recordings or live musical performances. In re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (the third-party registrations are of limited probative value because the goods identified in the registrations appear to be in fields which are far removed from the goods at issue). See also Key 4 4 TTABVUE 22. 5 The list of third-party registrations includes the mark, goods and/or services, and registration number. Serial No. 86244862 - 9 - Chemicals, Inc. v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is our conclusion altered by the presence in the record of about 40 third- party registrations which embody the word “KEY”. The great majority of those registered marks are for goods unrelated to those in issue, and there is no evidence that they are in continued use. We, therefore, can give them but little weight in the circumstances present here”); In re Melville Corp., 18 USPQ2d 1386, 1388-89 (TTAB 1991); Sheller-Globe Corporation v. Scott Paper Company, 204 USPQ 329, 336 (TTAB 1979) (third party registrations pertaining to unrelated goods are irrelevant). Also, the third-party registrations introduced by Applicant are not evidence that those marks have been used at all, let alone used so extensively that consumers have become sufficiently conditioned by their usage that they can distinguish between such marks on the basis of minute differences. Absent evidence of actual use, third-party registrations have little probative value because they are not evidence that the marks are in use on a commercial scale or that the public has become familiar with them. See Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however, registration evidence may not be given any weight.”); Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not aware of registrations reposing in the U.S. Patent and Trademark Office); In re Hub Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983) ) (“absent evidence of actual use of the marks subject of the third-party registrations, they are entitled to Serial No. 86244862 - 10 - little weight on the question of likelihood of confusion.”). As the Court pointed out in Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967), “the existence of these [third-party] registrations is not evidence of what happens in the market place or that customers are familiar with their use.” Where, as here, the “record includes no evidence about the extent of [third-party] uses … [t]he probative value of this evidence is thus minimal.” In view of the foregoing, we find that the marks WILD CHILD and WILDCHILD! are similar in terms of appearance, sound, connotation and commercial impression. Moreover, there is no demonstrated weakness in the term “Wild Child” that diminishes the significance of the similarity. B. The similarity or dissimilarity and nature of the goods and services. To show that live performances by a musical group and musical sound recordings are related, the Trademark Examining Attorney submitted eight use- based, third-party registrations for goods and services listed in both the application and registration at issue.6 The Examining Attorney also submitted two registrations for PEARL JAM and FOO FIGHTERS: one for musical sound recordings and one for live musical performances.7 Third-party registrations which individually cover a number of different goods and services that are based on use in 6 The Trademark Examining Attorney submitted ten third-party registrations; however, we have only considered 8 of these to be relevant. We did not consider Registration No. 4521869 for the mark APOLLO’S INTERLUDE because it did not include musical sound recordings. Also, we did not consider Reg. No. 4551883 for the mark BOBANDKATHI-2 PEAS IN A POD. FOR GOD…SPREAD LOVE! and design because this registrant owns two of the listed registrations and, therefore, its probative value is cumulative. 7 We did not consider Registration No. 3568927 for the mark U2 3D because it was based on Section 44 of the Trademark Act, not use in commerce. Serial No. 86244862 - 11 - commerce may have some probative value to the extent that they serve to suggest that the listed goods and service are of a type which may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The registrations listed below are representative.8 Mark Reg. No. Goods and Services SOUTHERN PUSH 4562709 Musical sound recordings; Entertainment in the nature of live performances by a musical group RECESS MONKEY 4524993 Musical sound recordings; Entertainment, namely, live performances by a musical band SAVEMONEY 4505330 Musical sound recordings; Entertainment in the nature of live performances by a musical group MUD MORGENFIELD 4536614 Musical sound recordings; Entertainment services in the nature of live musical performances BOBANDKATHI 4563110 Musical sound recordings; Entertainment in the nature of live musical performances 8 We have not listed the entire description of goods and services for each of the registrations. We have included only those in both Applicant’s application and Registrant’s registration. Serial No. 86244862 - 12 - Applicant argues that “record labels are inanimate legal creations, not actual human beings who sing or play guitar on stage.”9 However, the issue is not whether consumers would confuse the goods and services, but rather whether they would be confused as to the source of the goods and services. Paula Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The goods and services need only be sufficiently related that consumers would be likely to assume, upon encountering the goods under similar marks, that the goods originate from, are sponsored or authorized by, or are otherwise connected to the same source. 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); In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). There is no doubt that goods may be sufficiently related to services to support a finding of likelihood of confusion. In re H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (CCPA 1961) (holding SEILER’s for catering services and SEILER’S for smoked and cured meats likely to cause confusion); Corinthian Broad. Corp. v. Nippon Elec. Co., Ltd., 219 USPQ 733 (TTAB 1983) (holding TVS for transmitters and receivers of still television pictures and TVS for television broadcasting services likely to cause confusion). In this case, consumers seeing the service mark of musical performers on the cover of musical sound recordings would understand that the mark identifies 9 7 TTABVUE 10. Serial No. 86244862 - 13 - the performer of the music on the sound recording but consumers would also believe that the performers are the source of the musical sound recording. We find that “musical sound recordings” and “live performances by a musical group” are related. C. Established, likely-to-continue channels of trade. The Trademark Examining Attorney submitted excerpts from third-party websites from musicians advertising musical performances and sound and video recordings featuring their work. Moreover, it is common knowledge that music fans both attend musical performances and purchase musical sound recordings by the performers. In view thereof, we find that that “live performances by a musical group” and “musical sound recordings” move through the same channels of trade and are directed to the same classes of consumers. D. The conditions under which and buyers to whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing. Applicant argues, without any evidence, that the relevant consumers are sophisticated enough and exercise sufficient care when making their purchasing decisions that they can distinguish between the sources of musical sound recordings and live performances by musical groups.10 To the contrary, it is clear that a wide — and overlapping, if not identical — group of ordinary consumers constitute the 10 4 TTABVUE 11. We note that the articles in the newspapers referenced by Applicant report that “Fans don’t know music by labels, they know it by artists and genres.” 4 TTABVUE 20. These articles contradict Applicant’s argument that the relevant consumers are sophisticated enough to distinguish the source of musical sound recordings and live musical performances by asserting that the consumers are unaware of record labels. Serial No. 86244862 - 14 - potential purchasers of both musical sound recordings and live musical performances. Even if some of those consumers are particularly discerning in their musical choices, many will purchase such goods and services with little care, or even on impulse. Moreover, neither the goods nor services at issue are of a nature that would suggest that they are selected with a heightened level of care. Rather than submit evidence supporting its contention that the relevant consumers are sophisticated and exercise a high degree of purchaser care, Applicant cited four trademark infringement cases holding no likelihood of confusion between musical performers and record labels: Sunenblick v. Harrell, 895 F. Supp. 616 (S.D.N.Y. 1995), aff'd, 101 F.3d 684 (2d Cir. 1996), cert. denied, 519 U.S. 964 (1996); Tsiolis v. Interscope Records, Inc., 946 F. Supp. 1344 (N.D. Ill. 1996); Q Div. Records, LLC v. Q Records, 2000 WL 294875 (D. Mass. 2000); M2 Software, Inc. v. M2 Communications., LLC, 281 F. Supp. 2d 1166 (C.D. Cal. 2003). It is well settled that each case must be decided on its own facts and merits and that prior cases have value only to the extent that they involve similar facts. Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1742 (TTAB 2014); In re Jeep Corp., 222 USPQ 333, 336 (TTAB 1984). Because Applicant did not submit any evidence regarding the degree of purchaser care, there are no facts to compare with the cited cases. We will not simply adopt the prior courts’ findings of facts — made on different evidentiary records — when Applicant has submitted no evidence on the issue in this case. Also, there is a difference between infringement actions determining the right to use a mark and proceedings before the Board determining the right to registration. Serial No. 86244862 - 15 - An infringement action is determined after considering all the testimony and evidence introduced into evidence regarding the parties’ use of their respective marks. However, when the Board determines registration rights, we are limited to considering the goods and services as they are described in the application and registration. Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant's mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant's goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed”). See also Paula Payne Products, 177 USPQ at 77 (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods”). We also do not read limitations into the identification of goods. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific limitation and nothing in the inherent nature of Squirtco's mark or goods that restricts the usage of SQUIRT for balloons to promotion of soft drinks. The Board, thus, improperly read limitations into the registration”). For example, in Sunenblick, the court held that jazz records are not related to hip-hop recordings, they are marketed differently, and are sold in different sections of record stores. Sunenblick v. Harrell, 895 F. Supp. at 629. In the case before us, because there are no limitations or restrictions in the goods and services, channels of trade and classes of consumers, we must presume that both Registrant’s musical sound Serial No. 86244862 - 16 - recordings and Applicant’s musical performances move in all channels of trade normal for those goods and services, and that they are available to all classes of purchasers for those goods and services. See Paula Payne Products, 177 USPQ at 77; Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). We may not resort to extrinsic evidence to distinguish the goods and services, channels of trade, or classes of consumers. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods are expensive wines sold to discriminating purchasers must be disregarded given the absence of any such restrictions in the application or registration). We find that the conditions under which and buyers to whom sales are made is a neutral du Pont factor. E. The nature and extent of any actual confusion and the length of time during and conditions under which there has been concurrent use without any evidence of confusion. Applicant contends that the fact that Applicant and Registrant have been using their marks since at least as early as 2010 without any reported instances of confusion is strong evidence that confusion is not likely.11 The contemporaneous use of Applicant’s and Registrant’s marks for a period of five years without actual confusion is entitled to little weight, especially in an ex parte appeal. See In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003) 11 4 TTABVUE 23-25. Serial No. 86244862 - 17 - (“uncorroborated statements of no known instances of actual confusion are of little evidentiary value”); In re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that testimony of applicant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion); In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984) (applicant’s assertion that it is unaware of any actual confusion is of little probative value in an ex parte proceeding because, in part, the registrant has had no chance to be heard). This is especially true in this case where there is no evidence regarding the extent of use by Applicant and Registrant and, thus, we cannot ascertain whether there has been a reasonable opportunity for confusion to arise.12 Accordingly, the du Pont factor of the length of time during and conditions under which there has been contemporaneous use without evidence of actual confusion is considered neutral. F. Balancing the factors. Because the marks are similar, the goods and services are related, and the goods and services move in the same channels of trade and are sold to the same classes of consumers, we find that Applicant’s mark WILD CHILD for “entertainment in the nature of live performances by a musical group” is likely to cause confusion with WILDCHILD! for “musical sound recordings.” Decision: The refusal to register Applicant’s mark WILD CHILD is affirmed. 12 The information that Applicant inserted in its brief at 4 TTABVUE 24 was not presented during the prosecution of the application and, thus, was untimely.