Zillow, Inc.v.Super T Financial Inc. DBA LoanZilla

Trademark Trial and Appeal Board

Jul 22, 2014

No. 91203730 (T.T.A.B. Jul. 22, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed:
July 22, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Zillow, Inc.
v.
Super T Financial Inc. DBA LoanZilla
_____
Opposition No. 91203730
_____
Matt Schneller of Schneller IP PLLC1 for Zillow, Inc.

Marianne E. Dutton and John M. Janeway of Janeway Patent Law PLLC for Super
T Financial Inc.
_____

Before Zervas, Ritchie and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

Super T Financial Inc. DBA LoanZilla (“Applicant”) filed an application to
register the mark LoanZilla in standard character form for “mortgage brokerage,” in
International Class 36.2

1 Briefs on behalf of Opposer were filed by Matt Schneller, Erin S. Hennessy, and Jennifer
Ashton of Bracewell & Giuliani, LLP. After the case was submitted on brief, Matt
Schneller filed an appearance (with revocation of prior powers of attorney) under the firm
name Schneller IP PLLC.
2 Application Serial No. 85316446, filed on May 10, 2011 under Trademark Act § 1(a), 15
U.S.C. § 1051(a), stating a date of first use and first use in commerce of May 19, 2010.
Opposition No. 91203730
2

Zillow, Inc. (“Opposer”) opposed registration of the mark on the ground that
the mark, as used in connection with the identified services, so resembles Opposer’s
earlier used and registered marks ZILLOW and ZILLOW.COM as to be likely to
cause confusion, mistake or deception, under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d). Opposer pleaded ownership of three registrations for the mark
ZILLOW and five registrations for the mark ZILLOW.COM, all in standard
character form.3 The pleaded registrations are summarized below:
Mark Goods and Services
ZILLOW Non-downloadable computer database software featuring
information in the field of real estate, in International Class 42.4

ZILLOW Operating marketplaces for sellers of goods and services in the
field of real estate; real estate valuation services, financial
valuation of real estate; providing information in the field of real
estate, in International Class 36.5

ZILLOW.COM Operating marketplaces for sellers of goods and services in the
field of real estate; real estate valuation services, financial
valuation of real estate; providing information in the field of real
estate, in International Class 36.6

3 During the course of this proceeding, and prior to trial, the marks in Reg. Nos. 3332886
and 3175031 were amended from ZILLOW.COM to ZILLOW. Moreover, prior to the date
hereof, but after the close of Applicant’s testimony period, the marks in all of the other
pleaded ZILLOW.COM registrations were amended to ZILLOW. Opposer did not amend its
pleading to reflect any of the amendments. In any event, even if all of the registrations had
been pleaded in their amended form, our decision in this case would not differ.
4 Reg. No. 3150074 issued on September 26, 2006; Section 8 affidavit accepted; Section 15
affidavit acknowledged.
5 Reg. No. 3437691 issued on May 27, 2008; Section 8 affidavit accepted; Section 15 affidavit
acknowledged.
6 Reg. No. 3332886 issued on November 6, 2007; Section 8 affidavit accepted; Section 15
affidavit acknowledged. The mark in this registration was amended from ZILLOW.COM to
ZILLOW on September 11, 2012.
Opposition No. 91203730
3

ZILLOW.COM Real estate research services; providing non-downloadable
software tools for others to design and create websites; hosting
websites for others; providing non-downloadable computer
software, namely, non-downloadable consumer data storage
software in the area of real estate, consumer goods and
consumer services; non-downloadable computer database
software featuring information in the field of real estate,
consumer goods, consumer services, in International Class 42.7

ZILLOW.COM Promoting the goods and services of others by means of linking
the web site to other web sites featuring real estate, consumer
goods and consumer services; advertising and marketing
services in the fields of real estate, consumer goods and
consumer services; on-line advertising and marketing services in
the fields of real estate, consumer goods and consumer services;
real estate sales management; real estate marketing services,
namely, on-line services featuring tours of real estate; providing
an on-line showroom for the goods of others in the field of real
estate; providing information in the field of consumer goods for
home maintenance, decoration and sales, and consumer services
relating to real estate, in International Class 35.8

ZILLOW.COM Computer software, namely, consumer data storage software in
the area of real estate, consumer goods and consumer services;
computer database software featuring information in the field of
real estate, consumer goods and consumer services, in
International Class 9.9

ZILLOW.COM Electronic storage of consumer data, in International Class 39.10

7 Reg. No. 3565882 issued on January 20, 2009; Section 8 affidavit accepted; Section 15
affidavit acknowledged. The mark in this registration was amended from ZILLOW.COM to
ZILLOW on October 29, 2013.
8 Reg. No. 3437690 issued on May 27, 2008; Section 8 affidavit accepted; Section 15 affidavit
acknowledged. The mark in this registration was amended from ZILLOW.COM to ZILLOW
on July 30, 2013.
9 Reg. No. 3493872 issued on August 26, 2008; Section 8 affidavit accepted; Section 15
affidavit acknowledged. The mark in this registration was amended from ZILLOW.COM to
ZILLOW on December 24, 2013.
10 Reg. No. 3175031 issued on November 21, 2006; Section 8 affidavit accepted; Section 15
affidavit acknowledged. The mark in this registration was amended from ZILLOW.COM to
ZILLOW on July 24, 2012.
Opposition No. 91203730
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ZILLOW A wide range of goods and services in International Classes 9,
35, 36, and 42, including, inter alia, computer software for
providing mortgage information, analysis, and advice in the
fields of mortgage lending and home equity lending; computer
software for providing mortgage quotes, for confirming lender
availability and interest, and for reviewing and rating lenders
and mortgage professionals; advertising and marketing in the
field of mortgage services; making referrals in the field of
financial services and mortgage services; matching borrowers
with potential lenders in the field of mortgage lending; financial
services, namely, mortgage and home equity loan planning;
providing mortgage and home equity loan quotations to others
and providing anonymous mortgage and home equity loan
quotations to others; providing information, analysis, and advice
in the fields of mortgage lending and home equity lending;
providing a web site where users can post ratings, reviews, and
recommendations in the fields of mortgage lending services and
home equity loan services; and non-downloadable computer
database software featuring information and advertising in the
field of mortgages..11

Applicant denied the salient allegations of the notice of opposition. (A
counterclaim filed on November 14, 2012 was withdrawn without prejudice on
November 20, 2012.)12 The case has been fully briefed.
I. The record.
The record includes the pleadings and, by operation of Trademark Rule
2.122, 37 C.F.R. § 2.122, the application file for the opposed mark. Opposer’s
pleaded registrations are of record, as Opposer attached to its notice of opposition
printouts of information from the electronic database records of the Patent and

11 Reg. No. 4201269 issued on September 4, 2012.
12 TTABvue # 9.
Opposition No. 91203730
5

Trademark Office showing the current status and title of such registrations.13 The
record also includes the following testimony and evidence:14
A. Opposer’s evidence.
1. Testimony deposition of Erin Lantz, Opposer’s director of Zillow Mortgage
Marketplace, dated April 25, 2013. TTABvue # 20; the confidential portion of
the deposition was filed as TTABvue # 21.

2. Opposer’s confidential notice of reliance on a two-page report of results of a
survey of unaided awareness and total awareness of Opposer and certain
competitors. TTABvue # 13 (“PNOR 1”).15

3. Opposer’s notice of reliance filed April 10, 2013, with attachments filed April
16, 2013, TTABvue ## 14-17 (collectively, “PNOR 2”), consisting of the
following evidence:

- Partial screenshot of LoanZilla web page.
- Printouts of current and historical Zillow web pages.
- List of awards and accolades.
- List of news articles.
- Copies of press notices relating to Opposer.
- Opposer’s 2011 annual report, with Form 10-K for 2011 and Form 10-Q for
period ending June 30, 2012.
- Opposer’s Form 10-K for 2012.
- Title and status information for Opposer’s pleaded registrations.

13 37 CFR 2.122(d); Notice of opposition, TTABvue # 1. Opposer also submitted status and
title information regarding most of its pleaded registrations under notice of reliance. PNOR
2.
14 The parties stipulated during discovery that any “public-facing documents” exchanged
during discovery “are authentic and admissible in this proceeding, and may be submitted
during the parties’ trial periods via Notice of Reliance alone.” See Opposer’s notice of
reliance, TTABvue # 14 at 2; and Applicant’s brief at 9.
15 This confidential document does not fall within Trademark Rule 2.122 concerning notices
of reliance and does not fall into the category of “public-facing documents,” as contemplated
by the parties’ stipulation. However, Applicant has not objected to its admission; and we
note that Applicant characterizes the parties’ stipulation more broadly than does Opposer,
indicating that any documents exchanged during discovery would be deemed “authenticated
and thus admissible without requiring a person to testify that a document is what it
purports to be on its face.” Applicant’s brief at 9. Accordingly, we have considered the two-
page survey report.
Opposition No. 91203730
6

- Materials relating to Applicant’s brokerage license and the acquisition of
Applicant’s domain name.
- Applicant’s responses to Opposer’s interrogatories.

4. Opposer’s rebuttal notice of reliance (“PNOR 3”) on results of a search of the
electronic records of the U.S. Patent and Trademark Office. TTABvue # 25.

B. Applicant’s evidence.
1. Applicant’s notice of reliance on the following classes of evidence, filed July
12, 2013, with amendments thereto filed July 16 and August 8, 2013,
TTABvue ## 22-24 (“DNOR”):

- Opposer’s responses to Applicant’s interrogatories.
- Copies of third-party registrations of marks having a “-zilla” formative.
- Internet evidence of third-party use of marks having a “-zilla” formative.
- Wikipedia entries.
- Excerpts from Wikizilla website.
- Census data relating to home values.
- Web pages from Opposer’s website.
- Web pages from Mortech website.

II. Standing.
Opposer has properly made of record its pleaded registrations and has
demonstrated its use of the ZILLOW service mark in connection with its online
information services in the field of real estate.16 Opposer has thus shown that it is
not a mere intermeddler and has established its standing to oppose registration of
applicant’s mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed.
Cir. 1999); and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982).

16 See, e.g., PNOR 2, TTABvue # 15 at 9-62.
Opposition No. 91203730
7

III. Opposer’s claim under Section 2(d).
We now address Opposer’s claim under Trademark Act § 2(d) on the ground
of priority and likelihood of confusion. In view of Opposer’s ownership of valid and
subsisting registrations of its pleaded marks, priority is not in issue with respect to
the marks and the goods and services identified in those registrations. King Candy,
Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Our determination of likelihood of confusion is based on an analysis of all
probative facts in evidence that are relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co. 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
A. The marks at issue.
We first consider the similarity or dissimilarity of the marks at issue in terms
of appearance, sound, meaning, and overall commercial impression. We base our
determination on a consideration of the marks in their entireties. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin
Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981).
However, 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. In re National
Data Corp., 224 USPQ at 751; see also Price Candy Company v. Gold Medal Candy
Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955).
Opposition No. 91203730
8

Clearly the marks at issue, ZILLOW and LOANZILLA, are not identical. It
is equally clear that they share the letter string ZILL. Opposer contends that ZILL
constitutes “the most distinctive and memorable part of each mark.”17 However,
Opposer’s focus on only the letters ZILL is not supported by any rationale, other
than the fact that these letters are common to both parties’ marks. Opposer’s mark,
as a whole, is fanciful, and the letters ZILL are no more fanciful than the mark as a
whole. Opposer has not proposed any reason for considering ZILL to be a separate
distinctive element, apart from the remainder of the mark. Similarly, there is no
reason to focus only on the letters ZILL in Applicant’s mark. Moreover, as we will
discuss below, Applicant contends that the element ZILLA has special meaning in
its mark. For that reason, focusing only on the letters ZILL would be an
impermissible dissection of Applicant’s mark. DuoProSS Meditech Corp. v. Inviro
Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1756 (Fed. Cir. 2012).
Visually, the two marks are distinguishable. To the extent that they are
similar, we note that in Applicant’s mark the ZILL component is embedded among
other letters, which diminishes its visual impact to some extent.
The two marks also have certain phonetic differences. However, we give due
consideration to the possibility that ZILLOW might be pronounced in a manner
resembling “zilla.”

17 Opposer’s brief at 11.
Opposition No. 91203730
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With respect to meaning, we note that Opposer’s mark is a coinage, with no
literal meaning. Opposer has explained the suggestive connotation of its mark as
follows:
The Zillow name evolved from the desire to make zillions
of data points for homes accessible to everyone. And,
since a home is about more than just data – it is where
you lay your head to rest at night, like a pillow – “Zillow”
was born.18
Applicant’s mark also is a coinage, although it is built upon the component
LOAN, which has obvious meaning in the field of loan brokerage. Applicant has
explained the overall connotation of the mark as follows:
The word “Zilla” is a play on words from GodZilla. The
LoanZilla logo is designed to resemble a lizard. We have
future plans to use lizard and/or dinosaur themes in our
marketing. The term “Zilla” is routinely used by many
industries to imply something large, dominating and/or
intimating [sic].19
Applicant has made of record the following entry from Wikipedia:
-zilla
…
-zilla is an English slang suffix, a back-formation derived
from the English name of the Japanese movie monster
Godzilla. It is popular for the names of software and
websites. It is also found often in popular culture to
imply some form of excess, denoting the monster-like
qualities of Godzilla.20

18 Lantz Exhibit E. See also Lantz 30:8-13 (“‘Z’ is for the zillion data points that you need to
figure out what to do with your home; the ‘illow’ is like pillow, because home buying is not
just data, it’s emotional, it’s something that people are connected to, it’s where you want to
lay your head down at night, like a pillow.”)
19 Applicant’s response to Interrogatory No. 12, PNOR 2, TTABvue # 17 at 196.
20 DNOR, TTABvue # 22 at 243-44.
Opposition No. 91203730
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Applicant has also submitted an excerpt of the Wikipedia entry for “Godzilla,”
which states in pertinent part:
Godzilla … is a kaiju (Japanese giant monster), first
appearing in Ishiro Honda’s 1954 film Godzilla. Since
then, Godzilla has gone on to become a worldwide pop
culture icon….21
To support applicant’s contention that the suffix -ZILLA is associated with Godzilla,
lizards, or monsters, applicant has submitted the following evidence:
- a webpage entitled “Wikizilla,” which describes itself variously as “The
Godzilla and King Kong Wiki”; “The encyclopedia of all things Godzilla, and
all other Toho monsters that anyone can edit”; and “the giant monster Wikia
and the well-cited, definitive source for Giant Monster information.”22

- Applicant’s webpage at showing a
display of the mark LoanZilla, in which the letter Z is stylized with a coiling,
lizard-like tail.23

- Wikipedia entry for “Bridezillas,” stating, “Bridezillas is an American reality
television series…. The word ‘bridezilla’ is a portmanteau combining bride
with the fictional rampaging beast ‘Godzilla’ to indicate a difficult bride.”24
The web page shows a logo presentation of the name, featuring a waving,
pointed tail emanating from the final letter S.

- Website of a sushi restaurant called “Nomzilla!,” featuring a design of a
seated giant lizard, eating with chopsticks.25

- Copy of U.S. Reg. No. 2515370 for the mark BOSSZILLA for “series of video
tapes and video discs that show dealing with a difficult employer.”26

- Web page of online store named “Zilla,” featuring products for pet reptiles,
showing a logo having a lizard design.27

21 Id. at 245-46.
22 Id. at 260-61.
23 Id. at 250.
24 Id. at 58.
25 Id. at 105.
26 Id. at 110.
Opposition No. 91203730
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Applicant has also made of record a substantial number of U.S. trademark
and service mark registrations for marks that include the suffix -ZILLA, for use in
connection with a wide variety of goods and services.28 A representative sample of
these marks includes ARMEDZILLA, REVZILLA, POPZILLA, ARCHZILLA,
BULB-ZILLA, CAREZILLA, CHILLZILLA, FREIGHTZILLA, FRUITZILLA,
GUARDZILLA, ICEZILLA, MOLDZILLA, MOW-ZILLA and OFFICE ZILLA.
Although these registrations do not demonstrate what commercial impression the
marks are intended to create, they do demonstrate that the suffix -ZILLA holds
some special appeal for trademark applicants. (Relatively few of the registrations
are accompanied by evidence of use of the marks; we note that a registration alone
does not demonstrate that the mark is in actual use. See TBMP § 704.03(b)(1)(B)
(2014) and cases cited therein. (“Even when a third-party federal registration has
been properly made of record, its probative value is limited, particularly when the
issue to be determined is likelihood of confusion, and there is no evidence of actual
use of the mark shown in the registration.”))
Opposer objects that the evidence discussed above is irrelevant because
“‘Godzilla’ has nothing to do with mortgage brokerage services,” and because most of
the evidence of third-party use or adoption of -ZILLA marks relates to marks in
fields unrelated to mortgage brokerage or real estate.29 It is true that the evidence

27 Id. at 241-42.
28 Id. at 54-238.
29 Opposer’s brief at 12.
Opposition No. 91203730
12

discussed above is not effective to demonstrate the weakness of Opposer’s mark in
the field of real estate, either because the marks are in use in fields of business
unrelated to real estate or because the registrations, alone, are not evidence of
actual use of the marks. However, the evidence is relevant for the purpose of
demonstrating the special meaning that, according to Applicant, the suffix -ZILLA
has for trademark applicants.
The evidence of record substantiates Applicant’s contention that the suffix
-ZILLA suggests an association with the attributes of the monster Godzilla and that
this suggestiveness likely affects the commercial impression that customers will
receive from the mark. This suggestive meaning is absent from Opposer’s mark,
and as a result the two marks create substantially different overall commercial
impressions. Accordingly, the du Pont factor of the similarity or dissimilarity of the
marks weighs against a finding of likelihood of confusion.
B. Similar marks in use.
In accordance with du Pont, we consider any evidence of record regarding
“the number and nature of similar marks in use on similar goods [and services].”
du Pont at 567. Applicant argues that “There are many live third-party
registrations for marks that contain ‘zill’, the part of Opposer’s mark that Opposer
identifies as being the dominant portion. And many of the registered marks are
used to identify goods and services similar to Opposer’s computer software
services.”30 Of course, for purposes of demonstrating the weakness of a mark,

30 Applicant’s brief at 38.
Opposition No. 91203730
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third-party registrations alone have little weight, because they are not evidence
that the marks are in use. Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La
Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB 2011). However, applicant has
demonstrated through internet evidence that a number of the marks are in use at
least in internet advertisements.31 Among these, we note the following:
BUGZILLA Web-based bugtracker and testing tool.

MOZILLA Source of the Firefox web browser.

FILEZILLA Open source FTP software.

SHOPZILLA Online shopping service.

ARMEDZILLA Online community for veterans.

REVZILLA Online motorcycle accessories and apparel retailer (also using
marks TeamZilla, VineZilla).

GO!ZILLA Download manager and download accelerator software.

CLONEZILLA A partition and disk imaging/cloning program for system
deployment, bare metal backup and recovery.

RARZILLA Freeware.

EVENTZILLA Online ticket sales.

WARPZILLA Software related to Firefox web browser.

“[T]he purpose of a defendant introducing third party uses is to show that
customers have become so conditioned by a plethora of such similar marks that
customers ‘have been educated to distinguish between different [such] marks on the
bases of minute distinctions.’” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin,

31 DNOR, TTABvue # 22 at 64-95; 247-48; 251; 257-58; 264.
Opposition No. 91203730
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396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). The above-listed examples
of use show, on their face, “that the public may have been exposed to those internet
websites and therefore may be aware of the advertisements contained therein.”
Rocket Trademarks Pty Ltd., v. Phard S.p.A., 98 USPQ 2d 1066, 1072 (TTAB 2011).
The evidence does indeed suggest that a plethora of marks having the suffix -ZILLA
are present in the marketplace. These marks are similar to Opposer’s mark in that
they share the letter string ZILL. In the context of the record as a whole, we find
this evidence sufficient to suggest that customers likely can distinguish between
Opposer’s mark and marks that include the suffix -ZILLA on the basis of other
elements in the marks (i.e., the final letter A and the presence of a prefix preceding
the letter Z). We therefore find that the du Pont factor of the number and nature of
similar marks in use on similar goods and services weighs against a finding of
likelihood of confusion.
C. The parties’ goods and services.
We consider next the similarity or dissimilarity of the goods and services at
issue.32 Opposer’s core service is the operation of a website that provides a database
of information relating to real estate.33 The database is searchable by address, so
that customers may find information regarding specific parcels of real estate.34
Among the featured items of information is an estimated market value of the real

32 In discussing Opposer’s business we will refer primarily to its services, because its goods
are software that is instrumental in providing those services or in making those services
accessible to customers.
33 Lantz 5:11-6:7.
34 PNOR 2, TTABvue #15 at 33, 48, 56-58.
Opposition No. 91203730
15

estate, which may sometimes reflect the price at which the property is currently
offered for sale.35 Some customers find Opposer’s website useful for hunting for
homes to buy or rent and for offering their homes for sale or rent. Many customers
of Opposer therefore have a strong interest in information as to ways to finance the
purchase of a home. To accommodate and attract such customers, Opposer’s
website features computer-generated estimates of mortgage interest rates that
might be offered by lenders to finance the purchase of a particular home. The
website also provides computer-generated estimates of the monthly costs of carrying
a mortgage of a particular amount, duration, and interest rate, secured by a
particular property. Importantly, Opposer’s website, under the rubric “Zillow
Mortgage Marketplace,” offers customers an online form for anonymously
requesting a loan to be secured by a mortgage on a particular property.36 The
information provided by the customer on the online request form is distributed by
Opposer to participating lenders, and those lenders may, at their option, respond to
the customer with a non-binding indication of willingness to lend the required
amount to the customer on particular terms and at a particular rate of interest.
The customer, armed with information regarding the range of available loan rates,
may then contact one or more lenders and attempt to negotiate the terms of an
actual loan.

35 Id. at 45-46, 50, 63, 67, 263-269.
36 Id. at 279-80.
Opposition No. 91203730
16

Opposer’s pleaded registrations cover services that are described with
sufficient breadth as to cover the services described above.37 We also note that
Opposer has pleaded a registration of its mark that covers “computer software for
providing mortgage information, analysis, and advice in the fields of mortgage
lending and home equity lending; computer software for providing mortgage quotes,
for confirming lender availability and interest, and for reviewing and rating lenders
and mortgage professionals.”38
Applicant wishes to register its mark for “mortgage brokerage.” Opposer has
admitted that it “does not provide, broker, or originate mortgages.”39 Moreover,
Opposer takes pains to inform its customers that Opposer is not a mortgage broker
and has no involvement in any real estate or mortgage transaction that its
customers may enter into, even if the parties to the transaction made initial contact
with each other through use of Opposer’s services:
Zillow Mortgage Marketplace IS NOT:
Involved in the transaction
Zillow Mortgage Marketplace is merely the meeting
place where borrowers and lenders come together. Once a
loan agreement is reached, it’s between the borrower and
lender; Zillow is not involved in the transaction.

37 See, in particular, Reg. Nos. 3437691; 3332886; and 3565882.
38 Reg. No. 4201269.
39 Opposer’s response to Interrogatory No. 42, DNOR, TTABvue # 22 at 24.
Opposition No. 91203730
17

A mortgage broker
Zillow Mortgage Marketplace is not in the business
of brokering loans. We are not a licensed broker and have
no part in the financial part of a mortgage transaction.40
However, for purposes of determining whether services are related in
connection with an analysis of likelihood of confusion, it is not necessary that they
be similar or competitive in character; it is sufficient that they be related in some
manner or that conditions and activities surrounding marketing of the services be
such that they would be encountered by the same persons under circumstances that
could, because of the similarities of marks used with them, give rise to the mistaken
belief that they originate from or are in some way associated with the same
producer. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410
(TTAB 2010); Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB
1980); Oxford Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854
(TTAB 1978). In the present case, it is clear that the parties’ services are
commercially related. Although Opposer is not a mortgage broker and its services
are less comprehensive than those of a mortgage broker, Opposer provides to its
customers some of the functions that customers would obtain as part of mortgage
brokerage services, i.e., the identification of willing lenders, information regarding
available interest rates, and limited intermediary services between the customer
and the lenders. Moreover, Opposer has pleaded a registration of the mark

40 Opposer’s website at , DNOR,
TTABvue # 22 at 269. (Emphasis and bolding in original.)
Opposition No. 91203730
18

ZILLOW for “providing mortgage and home equity loan quotations to others,”41
services that are clearly among those traditionally provided by a mortgage broker.
It is also relevant that Opposer’s website attracts real estate professionals
who wish to advertise on the site, in order to reach customers having a strong
interest in real estate. Among these professionals are not only real estate agents
and brokers, but lenders and mortgage brokers.42 The advertising of such
professionals is an important source of Opposer’s revenue.43 Significantly,
Applicant admitted that it has used Opposer’s website “for property valuation [and]
shopping its competitors,” and that it has “considered advertising on the site.”44
The evidence of record indicates that the parties’ services are related.
Accordingly, the du Pont factor relating to the similarity of the goods and services
favors a finding of likelihood of confusion.
D. The parties’ channels of trade.
We next consider the parties’ established and likely-to-continue trade
channels. As there are no limitations as to channels of trade in the identifications
of goods and services in the registrations and application, we presume that they
move in all channels of trade normal for such goods and services. See Octocom Sys.
Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990); Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177

41 Reg. No. 4201269.
42 See, e.g., Lantz Exhibit F at ZILL000084; PNOR 2 at ZILL000071-72, ZILL000308.
43 Lantz 13:10-14.
44 Applicant’s responses to Interrogatories Nos. 32-34, PNOR 2, TTABvue #17 at 205-07.
Opposition No. 91203730
19

USPQ 76 (CCPA 1973); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992).
As Opposer’s service is web-based, Opposer largely promotes and provides its
services through its website at , through mobile applications, and
through other internet “portals” such as Yahoo! Real Estate. Opposer also indicated
that it promotes its services through individual agent and broker “partners,” third-
party classified or listing sites, and newspapers that agree to provide listing
information.45 Opposer’s witness testified that until shortly before trial, Opposer
spent little on advertising, but relied largely on its public relations team to generate
publicity; and that Opposer uses search engine optimization for the purpose of
maximizing its internet presence.46 Opposer first advertised on television at the
end of 2012, and that effort constituted its first “paid advertising at any scale.”47
Applicant, for its part, stated that it employs and intends to employ
marketing techniques such as client referrals, real estate broker referrals,
networking, and its website.48 Applicant argues:
Applicant offers Applicant’s mortgage brokerage services
online exclusively on Applicant’s website. Once a
customer decides to pursue a mortgage with Applicant, a
meeting is scheduled to further discuss in person.
Consequently, most of Applicant’s mortgage brokerage
service is necessarily conducted in person. Other than
having a website, Applicant does not advertise. Instead,
customers are made aware of Applicant’s mortgage
brokerage services through client referrals, real estate
broker referrals, and networking.

45 Opposer’s response to Interrogatory No. 11, DNOR, TTABvue # 22 at 13-14.
46 Lantz 25:2-25; 26:9-27:4.
47 Lantz confidential deposition 32:15-33:13.
48 Applicant’s responses to Interrogatories Nos. 8-9, PNOR 2, TTABvue # 17 at 194.
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…
Although a consumer can find Opposer’s and Applicant’s
respective websites while surfing the internet, the same
consumer can also find virtually all possible goods and
services.

Applicant’s brief at 26 (citations to record omitted).
As we have noted above, the record shows that mortgage brokers advertise on
Opposer’s website;49 that Opposer’s service is, in itself, a channel of trade through
which mortgage brokers may attract clients;50 and that Applicant has considered
advertising on Opposer’s web site.51 Inasmuch as the website through which
Opposer provides its service is a likely trade channel through which mortgage
brokers may advertise their services, the du Pont factor of trade channels weighs in
favor of a finding of likelihood of confusion.
E. Customers; Conditions of sale.
We next consider “the conditions under which and the buyers to whom sales
are made.” du Pont at 567. Applicant has described its customers and intended
customers as homeowners, persons seeking to purchase homes, persons wishing to
obtain mortgages or loans for purchase or refinance of homes and real estate, and
persons seeking to purchase commercial real estate or to obtain commercial real

49 See, e.g., Lantz Exhibit F at ZILL000084; PNOR 2 at ZILL000071-72, ZILL000308.
50 PNOR 2, TTABvue # 15 at 8; TTABvue # 16 at 40-46.
51 Applicant’s responses to Interrogatories Nos. 32-34, PNOR 2, TTABvue # 17 at 206-07.
Opposition No. 91203730
21

estate loans for purchase and refinance.52 At the time of trial, applicant had no
commercial customers.53
Opposer described the users of its website service as homeowners and renters
in the United States; the full range of individuals and businesses interested in the
purchase or rental of real estate; those interested in the mortgage markets; real
estate professionals and mortgage professionals.54
There is clearly substantial overlap between the classes of customers to
which the two parties market their services, but those classes are not entirely co-
extensive. Some of Opposer’s customers are casual browsers, and use of Opposer’s
service entails little or no obligation on the part of the user. Applicant argues that
its customers should be considered careful and discriminating:
[P]urchasers of real estate are highly discriminating. For
most people, a house is the most expensive purchase they
will make in their lifetime.
…
The time and deliberation involved in purchasing a home,
along with the long-term commitment and large initial
deposit – especially after the recent housing crash – make
home purchasers careful and deliberate in their
decisions.55

We agree that an elevated degree of care is involved in selecting a mortgage broker.
The likelihood that customers will have in-person contact with a representative of
Applicant adds an element of care to the conditions of selection. We take into

52 Id. at 192-193.
53 Applicant’s supplemental response to Interrogatory No. 2, PNOR 2, TTABvue # 17 at
214-215.
54 Opposer’s responses to Interrogatories Nos. 13-14, DNOR TTABvue # 22 at 14.
55 Applicant’s brief at 28-29.
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consideration the fact that a mortgage broker’s mark may be seen by users of
Opposer’s website, because mortgage brokers advertise there. However, as we have
noted above, Opposer takes pains to inform its users that it is not a mortgage
broker. On balance, we find that the du Pont factor of customers and the conditions
of sale weighs somewhat against a finding of likelihood of confusion.
F. The fame of Opposer’s mark.
Opposer maintains that its mark is “well known and famous in the real
estate and mortgage fields” and is “entitled to a broad range of protection above and
beyond the normal presumption that any doubts must be resolved in favor of the
owner of the prior registration.”56 Fame, if it exists, plays a dominant role in the
likelihood of confusion analysis because famous marks enjoy a broad scope of
protection. A famous mark has extensive public recognition and renown. Bose
Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir.
2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir.
2000); Kenner Parker Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d 350, 22
USPQ2d 1453, 1456 (Fed. Cir. 1992). Because of the extreme deference that we
accord a famous mark in terms of the wide latitude of legal protection it receives,
and the dominant role fame plays in the likelihood of confusion analysis, it is the
duty of the party asserting that its mark is famous to clearly prove it. Leading
Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007).

56 Opposer’s brief at 14.
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Opposer has presented, by means of its annual reports, dollar figures for its
revenues and “sales and marketing” expenditures between 2008 and 2012,57 as well
as the number of average monthly users of its website in those years. Applicant
argues that the figures for revenues and monthly users have not been properly
verified, and that the figures for sales and marketing expenditures have not been
verified at all. Even though the annual reports are in evidence for what they show
on their face, the factual assertions set forth therein are mere hearsay unless
supported by testimony. With respect to the sales and marketing expenditures,
Applicant’s point is well taken, as we see no testimony to indicate that they are
accurate. The figures for revenues and average monthly users were verified in a
desultory manner by the director of Opposer’s Zillow Mortgage Marketplace.58 We
will in any event consider the revenue and average monthly user figures for what
they are worth. Those figures show substantial and growing performance for
Opposer’s business, with figures for 2012 and 2011 being much greater than those
for 2008-2010. However, no context is provided for these raw statistics so as to
allow the Board to compare Opposer’s performance with that of similar businesses.

57 Opposer’s Annual Report for 2011 at 2 and 2011 Form 10-K at 54, PNOR 2, TTABvue #
16 at 107 and 165; Opposer’s 2012 Form 10-K at 4 and 36, id. at 268 and TTABvue # 17 at
5.
58 See Lantz 13:10-14:
Q. First, I just wanted to verify that the financial revenue and monthly unique
site user figures in the 2011 and 2012 annual reports are, to the best of your
knowledge, accurate.
A. Yeah.
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Opposer made of record a very short summary of the results of a comparative
survey of unaided awareness and total awareness of Opposer and certain of its
competitors.59 But the assessment of these results by Opposer’s own witness was
not sanguine.60
Opposer has also presented a modest number of news articles mentioning its
business,61 some of which acknowledge Opposer’s prominence. The record also
includes a list of “Awards & Accolades” and a list of the titles of news articles, both
from Opposer’s website.62 However, such lists are insufficient proof of such
accolades or of the content of the news articles.
On this record, Opposer has failed to demonstrate that its mark is famous for
purposes of a likelihood of confusion analysis. Accordingly, we find that the du Pont
factor of fame is neutral.
G. The variety of services on which Opposer’s mark is used.
Opposer argues that it uses its mark on a wide variety of products and
services, and that therefore it is “more likely that relevant consumers will be
confused by the applicant’s similar mark.”63 Opposer’s service is primarily one of
providing information, and the types of information provided extend into a variety
of different fields. In the field of real estate, Opposer provides information about
the condition of particular parcels of real estate; an estimate of their value; known

59 PNOR 1.
60 Lantz 32:23-33:13 (confidential).
61 PNOR 2, TTABvue #15 at 172-230; TTABvue #17 at 93-102.
62 PNOR 2, TTABvue # 15 at 107-14; and 115-71.
63 Opposer’s brief at 19; Opposer’s reply brief at 6-7.
Opposition No. 91203730
25

offering prices; sales history, etc. In the field of finance, Opposer provides
information about interest rates for mortgages, estimates of needed financing, and
estimates of the cost of financing. Also in the field of finance, Opposer’s website
relays to customers actual financing proposals from lenders, and relays to lenders
information relating to potential borrowers. Moreover, Opposer owns a registration
for the mark ZILLOW that covers “financial services, namely, mortgage and home
equity loan planning.”64 In the field of advertising, Opposer provides software
products to real estate and finance professionals enabling them to coordinate their
advertising, to some extent, with Opposer’s services. Opposer’s website also
provides information regarding home remodeling and improvement services. We
agree that the ramification of Opposer’s services into various different fields of
information (especially in the field of finance) increases the likelihood that a
customer would mistakenly perceive a connection between Opposer and a similar
mark used in connection with a different financial service, such as mortgage
brokerage. Accordingly, this du Pont factor favors a finding of likelihood of
confusion.
H. Absence of actual confusion.
Both Opposer and Applicant have stated that they have no knowledge of any
instance of actual confusion involving the parties’ marks.65 Applicant argues that

64 Reg. No. 4201269.
65 Opposer’s response to Interrogatory No. 25, DNOR, TTABvue # 22 at 19; Applicant’s
response to Interrogatory No. 29, PNOR 2, TTABvue # 17 at 204.
Opposition No. 91203730
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the lack of any actual confusion indicates that confusion is not likely.66 However,
Applicant first used its mark in advertising in May 201067 and, according to its
brief, first made use of the mark in June 2010.68 Thus, there is no indication that
there has been a meaningful opportunity for confusion to occur. Under the
circumstances, we find the lack of evidence of actual confusion to be a neutral factor
in our analysis of likelihood of confusion. Cf. Citigroup Inc. v. Capital City Bank
Group, Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d
1253 (Fed. Cir. 2011).
I. Applicant’s alleged bad faith.
Opposer argues that Applicant, prior to adopting Applicant’s mark, was
aware of Opposer and its mark; and that the Board should “infer Applicant’s bad
faith intent to trade on [Opposer’s] goodwill.”69 Applicant does not dispute that it
was aware of Opposer, had used Opposer’s services and had contemplated
advertising on Opposer’s website. However, these facts, without more, are not
inconsistent with good faith on the part of Applicant in adopting its mark. On this
record we see no evidence of bad faith. Accordingly, we find this factor to be
neutral.

66 Applicant’s brief at 40-41.
67 Applicant’s response to Interrogatory 17, PNOR 2, TTABvue # 17 at 198.
68 Applicant’s brief at 40.
69 Opposer’s brief at 19.
Opposition No. 91203730
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IV. Conclusion.
We have considered all of the evidence of record and all arguments of the
parties relevant to the du Pont factors, including those not specifically discussed
herein. While the parties’ services are commercially related and there is overlap
between the parties’ customer classes and channels of trade, the parties’ marks are
extremely different in overall commercial impression, and that difference is further
emphasized by the number and nature of marks incorporating the -ZILLA suffix in
use by third parties. Accordingly, we find that Applicant’s mark is not likely to give
rise to confusion, mistake or deception as to the source of Applicant’s services.
Decision: The opposition is dismissed.