ABB Oy

Trademark Trial and Appeal BoardJan 28, 2020

79232184 (T.T.A.B. Jan. 28, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: January 28, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re ABB Oy _____ Serial No. 79232184 _____ Madelon L. Lapidus and Scott Havlick of Holland & Hart LLP for ABB Oy. Tracy L. Fletcher, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Zervas, Cataldo and Larkin, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, ABB Oy, seeks registration on the Principal Register of the mark TRUONE, in standard characters, identifying, as amended, “low voltage electrical switches in the nature of automatic transfer switches for use in transferring the load Serial No. 79232184 - 2 - from primary source to standby or secondary sources in case of emergency for critical power installations” in International Class 9.1 The Trademark Examining Attorney has finally refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following registered mark issued on the Principal Register: TRUE1 in standard characters, identifying “electrical and electronic contacts and connecting elements, plug connectors, plugs for electrical connecting lines” in International Class 9.2 After the final Office Action, Applicant appealed and requested reconsideration. The Examining Attorney denied the request, and this appeal proceeded and is fully briefed. We affirm the refusal to register. I. Evidentiary Objection In her brief,3 the Examining Attorney objects to evidence that is not properly made of record. Specifically, applicant relies on Internet webpages attached as Exhibit A to Applicant’s Appeal Brief not previously introduced into the record. See Applicant’s Appeal Brief pp. 4-5 and Exhibit A attached thereto.4 The record in an application should be complete prior to the filing of an appeal. (Internal citations omitted.) Because this evidence was not properly made of record prior to 1 Application Serial No. 79232184 was filed on December 21, 2017 under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f(a), seeking an extension of protection of International Registration No. 1402043, issued on December 21, 2017. 2 Registration No. 3914231 issued February 1, 2011. Section 8 affidavit accepted; Section 15 affidavit acknowledged. 3 9 TTABVUE 3. 4 This evidence consists of screenshots from the webpages of third-party electrical equipment and power management companies. Serial No. 79232184 - 3 - appeal, the trademark examining attorney objects to this evidence and requests that the Board disregard it. To the extent Applicant submitted with its appeal brief evidence that is duplicative of the evidence previously submitted during prosecution of the involved application, we need not and do not give this redundant evidence any consideration. Any of the evidence submitted by Applicant with its appeal brief that was not previously submitted during prosecution is untimely and will not be considered.5 See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 1203.02(e) and § 1207.01 (June 2019) and authorities cited therein. See also, e.g., In re I-Coat Co., LLC, 126 USPQ2d 1730, 1732-34 (TTAB 2018). We turn now to the merits of this appeal. II. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic Distilling Co., 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 relatedness of the goods or services. See In re Chatam Int’l Inc., 5 The proper procedure for an applicant or examining attorney to introduce evidence after an appeal has been filed is to submit a written request with the Board to suspend the appeal and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). See also TBMP § 1207.02 and authorities cited therein. Serial No. 79232184 - 4 - 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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 services] and differences in the marks.”). We have considered each relevant du Pont factor for which there is evidence or argument, and have treated any other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). Varying weights may be assigned to each du Pont factor depending on the evidence presented. Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (factors “may play more or less weighty roles in any particular determination”). A. Strength of the Cited Mark We begin by evaluating the strength of the cited mark and the scope of protection to which it is entitled. The fifth du Pont factor is the “fame” or strength of the prior mark, and the sixth factor is the number and nature of similar marks in use for similar goods or services. du Pont, 177 USPQ at 567. In determining the strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. 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 Serial No. 79232184 - 5 - conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). There is no evidence in the record that the cited TRUE1 mark has any recognized meaning in connection with the goods identified thereby.6 Neither is there any other evidence regarding the inherent strength of TRUE1. Similarly, there is no evidence indicating the commercial strength or weakness of the mark in the cited registration. Considering the absence of evidence in the record on these issues, we find that the registered mark appears to be arbitrary or, at worst, somewhat laudatory and there is no evidence of third-party use or registration of similar marks for similar or related goods. We therefore accord the TRUE1 mark the normal scope of protection to which arbitrary or somewhat laudatory marks are entitled. See Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1347 (TTAB 2017) (finding that the opposer’s marks were entitled to “the normal scope of protection to which inherently distinctive marks are entitled”); Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies along a spectrum from very strong to very weak). B. Similarity of the Marks We next address the du Pont factor focusing on “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial 6 With regard to the applied-for mark, Applicant indicates in its April 29, 2019 Request for Reconsideration at .pdf 3, in response to the Examining Attorney’s requirement, that “‘TRUONE’ and/or ‘TRUE ONE’ appearing in the mark has no significance nor is it a term of art in the relevant trade or industry or as used in connection with the goods/services/collective membership organization listed in the application, or any geographical significance.” Serial No. 79232184 - 6 - impression.” Palm Bay Imps. 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) (quotation omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). The sole differences between Applicant’s TRUONE mark and the registered TRUE1 mark are the substitution in Applicant’s mark of the word “ONE” for the equivalent number “1” in the registered mark, and the omission of a letter “E” from “TRUE” in Applicant’s mark TRUONE. Applicant’s mark consists of a novel or truncated spelling of “true” followed by the term “one.” The registered mark consists of the term “true” followed by the number “1.” The marks are identical in pronunciation. The marks also are similar in that both begin with variations of the term “true” and end with a form of the numeral one or 1. With regard to meaning, both marks connote “true one” implying a laudatory quality of the goods identified thereby. Applicant argues:7 The Marks differ significantly in visual appearance, rendering confusion [sic] is unlikely even if there is some 7 7 TTABVUE 8. Serial No. 79232184 - 7 - phonetic similarity. Even a casual observer is apt to immediately notice the differences between the marks TRUONE and TRUE1, and these differences prevent the marks from evoking a similar connotation. Applicant’s unitary mark TRUONE does not contain the word “true,” and consumers must engage in a multi-step reasoning process to conclude that TRUONE is a telescoped version of the words TRUE ONE. In contrast, the mark of the Cited Registration immediately connotes the word “true,” and also includes numerical notation absent in the one-word mark of the Application. “Because there are significant differences in the design of the two marks, the finding of similarity is a less important factor in establishing a likelihood of confusion than it would be if the two marks had been identical in design or nearly indistinguishable to a casual observer.” In re Coors Brewing Co., 343 F.3d 340 (Fed. Cir. 2003). We acknowledge that TRUONE and TRUE1 differ slightly in appearance. However, we disagree with Applicant’s contention that these differences will prevent consumers from ascribing a similar connotation to the marks. Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1468 (TTAB 1988). Applicant argues that its mark does not include the term “true,” but fails to indicate any other meaning for “TRU” in its mark other than as an informal spelling thereof, and further fails to support its rather speculative claim that consumers will perceive “TRU” as something other than “true.” As a result, we find that notwithstanding their differences in appearance, the marks are highly similar or identical in meaning and sound. It is well settled that there “is no correct pronunciation of a trademark, and it obviously is not possible for a trademark owner to control how purchasers will vocalize its mark.” Centraz Indus. Inc. v. Spartan Chem. Co., 77 USPQ2d 1698, 1701 (TTAB 2006). Nonetheless, there is nothing in the Serial No. 79232184 - 8 - record to suggest that consumers will apply different pronunciations to TRUONE and TRUE1. Similarity in any one of the elements of sound, appearance, meaning, or commercial impression is sufficient to support a determination of likelihood of confusion. See Krim-Ko Corp. v. The 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”); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to support a holding that the marks are confusingly similar’”) (citations omitted)). Therefore, even if the marks are somewhat different in appearance, it would not necessarily mean there was no likelihood of confusion. In this case, the marks TRUONE and TRUE1 are somewhat similar in appearance, highly similar, if not identical, in sound and connotation and, overall, convey highly similar commercial impressions. We find that the du Pont factor of the similarity of the marks weighs in favor of likelihood of confusion. C. Similarity of the Goods, Channels of Trade and Classes of Consumers With regard to the goods, channels of trade and classes of consumers, we must make our determinations based on the goods as they are identified in the application and cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Serial No. 79232184 - 9 - Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A proper comparison of the goods considers whether “the consuming public may perceive [the respective goods or services of the parties] as related enough to cause confusion about the source or origin of the goods and services.” Hewlett Packard, 62 USPQ2d at 1004. Therefore, to support a finding of likelihood of confusion, it is not necessary that the goods be identical or even competitive. It is sufficient that the goods are related in some manner, or that the circumstances surrounding their marketing are such that they would be encountered by the same persons in situations that would give rise, because of the marks, to a mistaken belief that they originate from the same source or that there is an association or connection between the sources of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). Again, Applicant’s goods are “low voltage electrical switches in the nature of automatic transfer switches for use in transferring the load from primary source to standby or secondary sources in case of emergency for critical power installations” and the goods in the cited registration are “electrical and electronic contacts and connecting elements, plug connectors, plugs for electrical connecting lines.” In support of the refusal of registration, the Examining Attorney introduced with her November 28, 2018 Final Office Action8 and May 9, 2019 Denial of Applicant’s 8 At .pdf 5-14. Serial No. 79232184 - 10 - Request for Reconsideration9 printouts from Applicant’s internet website and the following third-party websites offering, under the same mark, various goods identified in the subject application and cited registration. new.abb.com (Applicant) provides industrial plugs and sockets, high current connectors, and low voltage automatic transfer switches; generac.com provides transfer switches, plugs and connectors; apc.com provides transfer switches, connectors and plugs; eaton.com provides transfer switches for backup power, plugs and connectors; and legrand.com provides plugs, receptacles, connectors and automatic transfer switches, although this website indicates that the entity is located in Australia, and it is not clear to what extent, if any, this webpage will be viewed by consumers in the United States. This evidence demonstrates that at least three third parties in addition to Applicant offer both Applicant’s goods and the goods in the cited registration under the same mark. In this case, the totality of the website evidence demonstrates that consumers would readily expect that these goods could emanate from the same sources. In addition, the evidence from the webpages of generac.com indicates that plugs and connectors may specifically be used with portable generators and may connect to a power inlet box or transfer switch.10 Thus it appears that the goods at issue may emanate from a common source and also be used together when sold under similar marks. Where evidence shows that the goods at issue have complementary uses, and thus may be used together or otherwise purchased by the same purchasers for the 9 At .pdf 4-27. 10 May 9, 2019 Denial of Request for Reconsideration, at .pdf 17-20. Serial No. 79232184 - 11 - same or related purposes, such goods have generally been found to be sufficiently related such that confusion would be likely if they are marketed under the same or similar marks. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (bread and cheese related because they are often used in combination and noting that “[s]uch complementary use has long been recognized as a relevant consideration in determining a likelihood of confusion”); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1272 (TTAB 2009) (medical MRI diagnostic apparatus and medical ultrasound devices related, based in part on the fact that such goods have complementary purposes and may be used by the same medical personnel on the same patients to treat the same disease). Applicant argues: Applicant’s goods differ significantly from Registrant’s goods, and should not be considered related. Applicant’s goods are automatic transfer switches that incorporate the switch and controller in one unit. Transfer switches are electrical switches that transfer a load between two sources either manually or automatically. Applicant’s automatic transfer switches have ratings up to 1200A and are utilized to switch the core electrical load from a failed power utility to a back-up generator in places such as hospitals, data centers, commercial buildings, and other critical power facilities. They are intended for commercial use to ensure smooth backup of crucial systems in the event of unforeseen power failures. Applicant’s products, which are at the forefront of the industry, manage to package all the necessary sensors and controllers for power transfer into one protected device. In contrast, Registrant’s goods are cable connectors or AC connectors that replace appliance couplers. Cable connectors are the part of a cable that plugs into a port to connect one device to another. Specifically, the mark of the Cited Registration is used in connection with electrical Serial No. 79232184 - 12 - plugs and connectors targeting the entertainment industry (musicians, agencies, and studios) and audio businesses and for use in home appliances, with a maximum rating of 30A (one-fortieth that of Applicant’s products). The products at hand solve completely different problems and are used by entirely different classes of consumers in wholly different contexts.11 However, it is well settled that likelihood of confusion is determined on the basis of the goods as they are identified in the application and registration at issue. See Dixie Rests., 41 USPQ2d at 1534; Stone Lion, 110 USPQ2d at 1161; Hewlett-Packard Co. v. Packard Press Inc., 62 USPQ2d at 1004-05. See also Octocom, 16 USPQ2d at 1787 (“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”). Applicant’s arguments rely upon limitations to its goods as well as those in the cited registration that are not reflected in their respective identifications. As the Court of Customs and Patent Appeals, the predecessor of our primary reviewing court, explained in Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981): Here, appellant seeks to register the word MONOPOLY as its mark without any restrictions reflecting the facts in its actual use which it argues on this appeal prevent likelihood of confusion. We cannot take such facts into consideration unless set forth in its application. 11 7 TTABVUE 4-5. Serial No. 79232184 - 13 - Likewise, in this case, we must also analyze the similarity or dissimilarity and nature of the goods based on the description of the goods set forth in the application and the registration at issue rather than on extrinsic evidence of use. In other words, we may not limit the limit or restrict the goods by amperage rating or industry when such limitations do not appear in the identifications. Furthermore, the Examining Attorney’s evidence shows that these goods are produced and marketed under the same trademarks by common sources, including Applicant. Applicant further argues: the two online retailers cited by the Examining Attorney as proof of relatedness are both extraordinarily large companies offering a diverse array of products. For example, electrical equipment company Legrand offers both a lighting control mobile application and physical cabinet shelving, but it would be absurd to characterize these goods as related for likelihood of confusion purposes. Likewise, power management company Eaton offers plastic extrusions as well as vehicle brakes, but surely these goods are not considered related.12 However, even if we accept Applicant’s contention that two of the third parties providing both Applicant’s goods and the goods in the cited registration on their websites are large companies offering a wide variety of goods, the Examining Attorney also included evidence of two additional third parties, as well as Applicant’s offering of both Applicant’s and Registrant’s goods. The totality of the evidence 12 7 TTABVUE 6. Applicant did not timely submit any evidence in support of this contention, but rather submitted such evidence with its brief which, as discussed above, is untimely and will be given no consideration. Serial No. 79232184 - 14 - supports a finding that transfer switches, plugs and connectors may emanate from a common source, including Applicant itself. Applicant further argues and introduced evidence from the webpages of six third parties with its April 29, 2019 Request for Reconsideration13 to support its position that more specialized electrical retailers do not offer both Applicant’s goods and the goods in the cited registration. The question, moreover, is not whether some, or even many, entities provide both goods identified in the cited registration and involved application. Rather, the question is whether there are entities that provide and market both under the same marks, and the evidence submitted by the Examining Attorney is sufficient to show that this is the case. As the Board said in connection with a similar argument based on third-party registrations, i.e., that there were many third-party registrations for the goods of the applicant that did not include the goods identified in the cited registration, and vice versa: There is no requirement for goods to be found related that all or even a majority of the sources of one product must also be sources of the other product. Therefore, evidence showing only that the source of one product may not be the source of another product does not aid applicant in its attempt to rebut the evidence of the examining attorney. In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009). Applicant also argues: there are major differences between the distribution channels for Applicant’s and Registrant’s goods, which is a natural result of the dissimilarity of the goods. Applicant primarily sells to distributors, installers, service providers and other partners through a diverse network of 13 At .pdf 7-62. Serial No. 79232184 - 15 - commercial channels. Registrant sells primarily through consumer channels or directly to end users themselves.14 However, the identification of goods in both the cited registration and involved application do not recite any limitations as to the channels of trade in which the goods are or will be offered. In the absence of trade channel limitations on the goods under the registered and applied-for mark, we must presume that these goods are offered in all customary trade channels. See Citigroup, 98 USPQ2d at 1261; In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). “We have no authority to read any restrictions or limitations into the registrant’s description of goods.” Thor Tech, 90 USPQ2d at 1638. Nor may an applicant restrict the scope of the goods covered in a cited registration by argument or extrinsic evidence. Midwest Gaming & Entm’t, 106 USPQ2d at 1165; In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). Further, as noted above, the Examining Attorney has introduced evidence that both Applicant’s goods and Registrant’s goods are offered for sale on the same webpages of electrical product distributors. This evidence supports a finding that these goods are offered in the same channels of trade. We find that the du Pont factors of the relatedness of the goods, channels of trade and classes of consumers weigh in favor of likelihood of confusion. D. Sophistication of Purchasers 14 9 TTABVUE 10-11. Serial No. 79232184 - 16 - Under the fourth du Pont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177 USPQ at 567. Applicant argues:15 Consumers for Applicants goods tend to be particularly sophisticated commercial purchasers; those who buy automatic transfer switches purchase with great care and attention, which renders confusion less likely. Unlike the simple, multipurpose electrical connectors sold under the mark of the Cited Registration, Applicant’s transfer switches require careful, often customized installation. Furthermore, automatic transfer switches tend to cost thousands of dollars, while most of the products sold under the mark of the Cited Registration retail for less than $100. Consumers in the market for automatic transfer switches are looking at a significant initial spend followed by ongoing maintenance costs, and as such are likely to demonstrate the high degree of care and consideration, and familiarity with complex electrical components, that weighs against a finding of likelihood of confusion. Moreover, Registrant’s products meet a highly specific electrical need. Consumers searching for connectors to replace appliance couplers are likely to be specialized technicians or otherwise sophisticated consumers of electrical products. The purchases made by these consumers are not impulse purchases, but rather are careful selections that involve deliberation, care, and expertise. However, Applicant has presented little evidence that the relevant consumers are sophisticated or careful. To the contrary, Applicant’s webpages, as well as webpages from generac.com and apc.com, indicate that Applicant’s transfer switches may be 15 7 TTABVUE 7. Serial No. 79232184 - 17 - purchased for use in homes and businesses.16 Applicant’s argument is predicated on its attorney’s assertion, which is not evidence. Cai v. Diamond Hong, Inc., 901 F.3d, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) cited in Performance Open Wheel Racing, Inc. v. U.S. Auto Club Inc., 2019 USPQ2d 20891, *8 n.62 (TTAB 2019). To the extent we accept that the related goods may be marketed to more careful purchasers such as electrical contractors with some advanced knowledge of electrical devices, we expect that with highly similar marks used on similar goods, even a careful, sophisticated consumer of these services is not likely to note the differences in the marks. Cunningham v. Laser Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir. 2000). All in all, we have little basis to find that ordinary consumers would exercise more than an ordinary degree of care. The fourth DuPont factor is neutral or, at best, only slightly favors a finding of no likelihood of confusion. III. Conclusion We have carefully considered all of the evidence of record, including any evidence not specifically discussed herein. The marks are highly similar in sound, connotation and commercial impression and somewhat similar in appearance. Evidence of record establishes that the goods are related, and may be marketed and sold by Applicant and third parties under the same marks in at least one common channel of trade. Applicant’s arguments regarding the asserted sophistication of consumers are insufficient to overcome these similarities. Decision: The refusal to register Applicant’s mark is affirmed. 16 May 9, 2019 Denial of Request for Reconsideration, at .pdf 4-26.