ACM Records, Inc.

Trademark Trial and Appeal BoardOct 23, 2017

No. 86563789 (T.T.A.B. Oct. 23, 2017)

This Opinion is Not a Precedent of the TTAB Oral Hearing: September 28, 2017 Mailed: October 23, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re ACM Records, Inc. _____ Serial No. 86563789 _____ Richard M. Blank of Blank Legal, for ACM Records, Inc. Susan K. Lawrence, Trademark Examining Attorney, Law Office 116, Christine Cooper, Managing Attorney. _____ Before Greenbaum, Heasley and Coggins, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: ACM Records, Inc. (“Applicant”) seeks registration on the Principal Register of the mark ACM RECORDS (in standard characters, RECORDS disclaimed) for Audio recordings featuring Music; Downloadable MP3 files, MP3 recordings, online discussion boards, webcasts and podcasts, news and audio books featuring music audio books and news broadcasts; Downloadable musical sound recordings; Downloadable ring tones, graphics and music via a global computer network and wireless devices; Downloadable video recordings featuring Music; Musical video recordings; Sound recordings featuring Music; Video recordings featuring Music; Visual recordings and audio visual recordings featuring music and animation in International Class 9, and Serial No. 86563789 - 2 - Instruction in the field of music composition, production and recording; Teaching in the field of music composition; Music composition for others; Music production services; Production of sound and music video recordings; Music publishing services; Recording studio services; Entertainment services in the nature of music recording; Song publishing, namely, music publishing services; Sound recording services, namely, recording music, songs, performances by musicians in International Class 41.1 The Trademark Examining Attorney has refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when applied to Applicant’s goods and services, so resembles the following three previously registered marks, all owned by a single registrant, as to be likely to cause confusion, mistake or deception: 1. ACM2 (in standard characters) for Entertainment in the nature of performances and appearances by celebrities and musical artists and groups; Entertainment services in the nature of live musical performances; Entertainment services in the nature of presenting live musical performances; Entertainment services, namely, an on-going series featuring an award ceremony honoring those in the country music industry provided through internet, television, satellite, and cable networks; Entertainment services, namely, arranging and conducting of competitions for fan voting of musical awards; Entertainment services, namely, contest and incentive award programs designed to reward program participants who vote for musical awards; Entertainment services, namely, personal appearances by a celebrity or musical artists; Entertainment services, namely, providing a web site featuring non-downloadable musical performances, musical videos, related film clips, 1 Application Serial No. 86563789 was filed on March 13, 2015, based Applicant’s claim of first use anywhere and use in commerce since at least as early as January 1, 1991 for both classes. 2 Registration No. 4694051 issued on March 3, 2015. Serial No. 86563789 - 3 - photographs, and other multimedia materials featuring an annual awards ceremony, concert events, charitable events, and lifestyle themed events; Entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring an annual awards ceremony, concert events, charitable events, and lifestyle themed events; Entertainment services, namely, providing non- downloadable playback of music via global communications networks; Entertainment services, namely, providing non- downloadable prerecorded music, information in the field of music, and commentary and articles about music, all on- line via a global computer network; Entertainment services, namely, providing on-going webisodes featuring musical artists and celebrities promoting an annual awards ceremony, concerts, and charitable activities via a global computer network; Entertainment services, namely, providing webcasts in the field of musical artists and celebrities promoting an annual awards ceremony, concerts, and charitable activities; Entertainment, namely, a continuing annual award ceremony show broadcast over television, satellite, audio, and video media; Entertainment, namely, live music concerts; Entertainment, namely, live performances by musical bands; Entertainment, namely, production of an annual awards ceremony, concerts, charitable events, and lifestyle themed events; Organizing and arranging exhibitions for entertainment purposes; Providing a website featuring entertainment information; Providing a website featuring information in the field of music and entertainment; Providing a website for entertainment purposes featuring music, videos, and information about an annual awards ceremony, concert events, charitable events, and lifestyle themed events in International Class 41; 2. ACM AWARDS3 (in standard characters, AWARDS disclaimed) for Entertainment in the nature of performances and appearances by celebrities and musical artists and groups; Entertainment services in the nature of live musical performances; Entertainment services in the nature of 3 Registration No. 4661747 issued on December 30, 2014. Serial No. 86563789 - 4 - presenting live musical performances; Entertainment services, namely, an on-going series featuring an award ceremony honoring those in the country music industry provided through internet, television, satellite, and cable networks; Entertainment services, namely, arranging and conducting of competitions for fan voting of musical awards; Entertainment services, namely, contest and incentive award programs designed to reward program participants who vote for musical awards; Entertainment services, namely, personal appearances by a celebrity or musical artists; Entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring an annual awards ceremony, concert events, charitable events, and lifestyle themed events; Entertainment services, namely, providing non- downloadable playback of music via global communications networks; Entertainment services, namely, providing non- downloadable prerecorded music, information in the field of music, and commentary and articles about music, all on- line via a global computer network; Entertainment services, namely, providing on-going webisodes featuring musical artists and celebrities promoting an annual awards ceremony, concerts, and charitable activities via a global computer network; Entertainment services, namely, providing webcasts in the field of musical artists and celebrities promoting an annual awards ceremony, concerts, and charitable activities; Entertainment, namely, a continuing annual award ceremony show broadcast over television, satellite, audio, and video media; Entertainment, namely, live music concerts; Entertainment, namely, live performances by musical bands; Entertainment, namely, production of an annual awards ceremony, concerts, charitable events, and lifestyle themed events; Organizing and arranging exhibitions for entertainment purposes; Providing a website featuring entertainment information; Providing a website featuring information in the field of music and entertainment; Providing a website for entertainment purposes featuring music, videos, and information about an annual awards ceremony, concert events, charitable events, and lifestyle themed events in International Class 41; and Serial No. 86563789 - 5 - 3. THE ACM EXPERIENCE4 (in standard characters) for Conducting entertainment exhibitions in the nature of a country music lifestyle event featuring music, food, clothing, and wares from related brands; Entertainment services, namely, providing a web site featuring non- downloadable musical performances, musical videos, related film clips, photographs, and other multimedia materials featuring concert performances and musical artists promoting a country lifestyle event; Entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring concert performances and musical artists promoting a country lifestyle event; Entertainment, namely, live music concerts in International Class 41. The Examining Attorney also required Applicant to provide an acceptable identification of the Class 9 goods. When the refusal and requirement were made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. Applicant and the Examining Attorney filed briefs, and an oral hearing was held on September 28, 2017. We address below the requirement to amend the identification of goods, and AFFIRM the refusal to register based on likelihood of confusion with the three cited registered marks. I. Amendment to Class 9 Identification of Goods Applicant, in its brief, agreed to the identification of goods proposed by the Examining Attorney in her Denial of the Request for Reconsideration,5 and the 4 Registration No. 4639218 issued on November 18, 2014. 5 7 TTABVUE 8 (Applicant’s Brief); 5 TTABVUE 4-5 (Denial of Request for Reconsideration). Serial No. 86563789 - 6 - Examining Attorney, in her brief, expressly accepted the amendment.6 Accordingly, the Class 9 goods have been amended to: Audio recordings featuring Music; Downloadable MP3 files, MP3 recordings, online discussion boards, webcasts and podcasts, news, audio books featuring music; Downloadable musical sound recordings; Downloadable ring tones, graphics and music via a global computer network and wireless devices; Downloadable video recordings featuring Music; Musical video recordings; Sound recordings featuring Music; Video recordings featuring Music; Visual recordings and audio visual recordings featuring music and animation. There has been no amendment to the Class 41 identification of services. II. Evidentiary Issue The Examining Attorney objected to various materials that Applicant attached to its brief. She also objected to Applicant’s reference to, and discussion of, a coexistence agreement not of record, and to Applicant’s assertion, in its brief, that Applicant would seek to submit this agreement to the Board during the oral hearing.7 We sustain the objections. Only evidence filed during examination is timely, Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), and it should not be submitted (or resubmitted) on appeal. Accordingly, we give no further consideration to the following material attached to Applicant’s brief, as detailed by the Examining Attorney:8 pages 19-28, including the first image on page 29 and the last image on page 37, and all images on pages 38-130. Nor can we consider a coexistence agreement that Applicant did not 6 9 TTABVUE 9 (Examining Attorney’s Brief). 7 Id. at 8-9. 8 Id. at 9. Serial No. 86563789 - 7 - timely submit. However, we discuss below the probative value of excerpts, purportedly from the coexistence agreement, that Applicant included in the text of its responses to Office Actions and its brief. III. Applicable Law – Likelihood of Confusion When the question is likelihood of confusion, we analyze the facts as they relate to the relevant factors set out in 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., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of record” need be considered). A. The Similarity or Dissimilarity of the Marks We begin with the first du Pont factor, i.e., whether Applicant’s mark ACM RECORDS and Registrant’s marks ACM, ACM AWARDS, and THE ACM EXPERIENCE, all in standard characters, are similar or dissimilar when viewed “in their entireties as to appearance, sound, connotation and commercial impression.” In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (quoting du Pont, 177 USPQ at 567). See also Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “The proper test is not Serial No. 86563789 - 8 - 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). The marks “‘must be considered … in light of the fallibility of memory ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Here, the average customer includes members of the general public. Our analysis cannot be predicated on dissection of the involved marks. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Rather, we are obliged to consider the marks in their entireties. Id. See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). Nonetheless, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at 1161. For instance, as our principal reviewing court has Serial No. 86563789 - 9 - observed, “[t]hat a particular feature is descriptive or generic with respect to the involved goods or services is one commonly accepted rationale for giving less weight to a portion of a mark….” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Initially, we observe that Applicant’s mark ACM RECORDS incorporates the entirety of Registrant’s mark ACM. Thus, although the marks are not identical, they are similar in sound and appearance in that they both contain the same three-letter combination ACM. Likelihood of confusion often has been found where the entirety of one mark is incorporated within another. See Coca-Cola Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for gin); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark EBONY DRUM for hairdressing and conditioner is likely to cause confusion with EBONY for cosmetics); In re Cosvetic Labs., Inc., 202 USPQ 842 (TTAB 1979) (applicant’s mark HEAD START COSVETIC for vitamins for hair conditioners and shampoo is likely to cause confusion with HEAD START for men’s hair lotion and after-shaving lotion). We find that to be the case here. Because the word RECORDS comprises the only point of difference between the marks, and it is highly descriptive or generic of the goods and services identified in the application, this additional word does not distinguish the marks. Nat’l Data Corp., 224 USPQ at 751. Serial No. 86563789 - 10 - We also find Applicant’s mark ACM RECORDS and Registrant’s marks ACM AWARDS and THE ACM EXPERIENCE to be highly similar in appearance, sound, connotation, and overall commercial impression. With the exception of the word “THE” in Registrant’s mark THE ACM EXPERIENCE, the three marks share the same structure: the three-letter combination ACM followed by a noun. The marks differ only by their last words, each of which would be perceived simply as a variant of Registrant’s mark ACM. Further, in this case, the word “THE” in Registrant’s mark THE ACM EXPERIENCE is a definite article that has no source identifying significance. See In re Thor Tech, 90 USPQ2d 1634, 1635 (2009) (“The addition of the word ‘The’ at the beginning of the registered mark does not have any trademark significance. ‘The’ is a definite article. When used before a noun, it denotes a particular person or thing.”). We found above that the word RECORDS in Applicant’s mark ACM RECORDS has greatly reduced source-identifying capacity because it is highly descriptive, if not generic, of the goods and services identified in the application. The same is true of the word AWARDS in Registrant’s mark ACM AWARDS with respect to the services identified in Reg. No. 4661747. Indeed, each of the terms has been disclaimed (see In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)), leaving the identical common term ACM with the most source-identifying significance in each mark. Nat’l Data Corp., 224 USPQ at 752. There is no evidence that the term “ACM” has any significance as applied to any of the goods or services identified in the application or the services identified in the registrations. Serial No. 86563789 - 11 - The prominence of the term ACM is further enhanced by its placement at the beginning of Applicant’s mark ACM RECORDS and Registrant’s mark ACM AWARDS. See Palm Bay Imps., 73 USPQ2d at 1692; Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed in the mind of a purchaser and remembered”). See also Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers must first notice the identical lead word). For these reasons, we find that ACM is the dominant and sole distinctive element in Applicant’s mark ACM RECORDS and Registrant’s marks ACM AWARDS and THE ACM EXPERIENCE. ACM thus is entitled to more weight in our analysis of these marks. In coming to this conclusion, we do not discount the presence of the additional wording in each of the three marks. However, for the reasons discussed above, we find that the term ACM in each mark is more likely to be remembered by consumers than the other elements of the marks. In its brief, Applicant baldly asserts that its mark is “a significantly different name” than each of Registrant’s marks.9 For the reasons discussed above, we do not find this assertion persuasive, nor is it supported by any evidence. Instead, we find the sound, appearance, meaning, and overall commercial impression of Applicant’s mark ACM RECORDS and Registrant’s marks ACM, ACM AWARDS, and THE ACM EXPERIENCE to be highly similar when viewed in their entireties. ACM RECORDS 9 7 TTABVUE 4-6. Serial No. 86563789 - 12 - incorporates the entirety of Registrant’s mark ACM. ACM RECORDS also is structurally similar to Registrant’s marks ACM AWARDS and THE ACM EXPERIENCE. The marks’ similarity in structure creates a very similar connotation and commercial impression. The additional words RECORDS, AWARDS, and EXPERIENCE imply subcategories of musical recordings and events that point to a common source identified as ACM. B. Goods and Services and Channels of Trade We next consider the du Pont factors of the relatedness of the goods and services and the channels of trade. We must make our determinations under these factors based on the goods and services as they are identified in the registrations and application. See Dixie Rests., 41 USPQ2d at 1534. See also Stone Lion, 110 USPQ2d at 1161; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Serial No. 86563789 - 13 - 1. Relatedness of Goods and Services The second du Pont factor “considers whether ‘the consuming public may perceive [the respective goods and services of the parties] as related enough to cause confusion about the source or origin of the goods [and services]….” In re St. Helena Hosp., 113 USPQ2d at 1086 (quoting Hewlett-Packard, 62 USPQ2d at 1004).The services identified in the cited registrations feature music and a variety of services related to the music industry, such as live musical performances and concerts; personal appearances by musical artists; providing websites featuring music and entertainment information, musical performances, musical videos, and related film clips; and music awards shows. The goods identified in the application include audio and video recordings on various types of media featuring music, while the identified services include educational services in the field of music composition; music composition, music production, and music and song publishing; production of sound and music video recordings; and recording music, songs, and performances by musicians. Although the services identified in the registrations are not identical to the goods or services identified in the application, identity is not required to support a finding of likelihood of confusion. Coach Servs., 101 USPQ2d at 1722 (“it is not necessary that the products [or services] of the parties be similar or even competitive to support a finding of likelihood of confusion.”) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000) (The goods and services need not be identical or even competitive to find a likelihood of confusion). Rather “likelihood of Serial No. 86563789 - 14 - confusion can be found ‘if the respective products [or services] are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven, 83 USPQ2d at 1724). The issue is whether there is a likelihood of confusion as to the source of the goods and services, not whether purchasers would confuse the goods and services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). Here, the goods and services identified in the application are closely related on their face to the services identified in the registrations, in that Applicant and Registrant both provide goods and/or services featuring musical performances under their respective marks. Both also provide recorded music and various ways to listen to and access music, as well as information or other material pertaining to music and musicians. For example, the respective identifications of goods and services are broad enough that Applicant’s audio and video recordings featuring music could be viewed on Registrant’s websites featuring musical performances and musical videos, and Applicant’s services of recording music, songs, and performances by musicians could include the recording of live performances by musicians offered by Registrant under each of the cited marks. The evidentiary record confirms the close relationship between the goods identified in the application and the services identified in the registrations. In particular, the Examining Attorney submitted a number of Internet web pages from Serial No. 86563789 - 15 - third-party websites demonstrating that a single entity is likely to provide or feature Applicant’s goods and Registrant’s services. For example: 1. “The Vault” offers downloadable music through Wolfgang’s Vault, and musical performances and musical videos through the Concert Vault website;10 2. Interscope features music, videos, and information about musical artists;11 and 3. Imagen Records sells recorded music and also features information and videos about musical artists.12 She also submitted various third-party use-based registrations from the USPTO’s electronic database to show that it is common for a single entity to use the same mark on goods and services that are the same as, or very similar to, those at issue. For example: 1. Reg. No. 4156116 for MUSIC IS MY BUSINESS covers musical audio and video recordings, and downloadable MP3 files and recordings featuring music in International Class 9, as well as live musical performances and providing a website featuring musical performances in International Class 41;13 2. Reg. No. 4097872 for JACOBS LADDER covers musical video recordings, and downloadable MP3 files, MP3 recordings, on-line discussion boards, webcasts, webinars and podcasts featuring music in International Class 9, as well as live musical performances, providing a website featuring non-downloadable 10 June 23, 2015 Office Action, TSDR pp. 11-16. 11 Id., TSDR pp. 20-22. 12 Id., TSDR pp. 23-26. 13 Id., TSDR pp. 36-39. Serial No. 86563789 - 16 - musical performances, musical videos, related film clips, photographs, and other multimedia materials featuring musical performances, and provision of information relating to live music concerts in International Class 41;14 and 3. Reg. No. 4730987 for FULL MOON RISING covers musical audio and video recordings, and downloadable music files and musical sound recordings in International Class 9, as well as live musical performances and providing non- downloadable on-line videos featuring musical performances in International Class 41.15 We find these registrations persuasive evidence that the identified goods and services are of a kind that may emanate from a single source under a single mark. See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). See also In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Applicant argues that it offers a “completely different class of goods” from Registrant, there is “no overlap” of goods because they are “specifically different non- confusing goods [sic] under Class 41,” and the items identified in the application and registrations are those which “had been agreed to as not likely to be confused under agreement [sic] between applicant and registrant.”16 To the extent Applicant is arguing that there is no likelihood of confusion because it provides goods and 14 Id., pp. 40-42. 15 Id., pp. 81-84. 16 7 TTABVUE 4-6. Serial No. 86563789 - 17 - Registrant provides only services, this argument is unpersuasive. As discussed above, the goods (and services) identified in the application are sufficiently related to the services identified in the registrations such that if they were offered under similar marks, customers mistakenly would believe that they could emanate from the same source. And as discussed more fully below, absent a written consent from Registrant, which is not of record, Applicant’s assertion of an “agreement between applicant and registrant” lacks evidentiary support. While some of the services identified in the registrations are limited to the field of country music and “promot[ing] a country lifestyle,” most of the identified services contain no such limitation, and there are no such limitations in Applicant’s identified goods and services. Consequently, Applicant’s broadly worded goods and services encompass country music and those that “promote a country lifestyle.” See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (citing In re Elbaum, 211 USPQ 639, 640 (TTAB 1981)); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). Thus, nothing in the application or registrations prevents Applicant or Registrant from providing goods and/or services featuring the same type of music. Based upon the identifications of goods and services and the ample evidence of record, we find that consumers would believe that the goods and services identified in the application are highly related to the services identified in the registrations, and that they may emanate from a common source. 2. Channels of Trade Considering the channels of trade and classes of purchasers, because there are no limitations or restrictions as to trade channels or classes of purchasers in the Serial No. 86563789 - 18 - identifications of goods and services in the application or the identification of services in the registrations, we presume that the identified goods and services are or would be marketed in all normal trade channels for such goods and services and to all normal classes of purchasers of such goods and services. Stone Lion, 110 USPQ2d at 1161. See also Coach Servs., 101 USPQ2d at 1723 (absent limitation “goods are presumed to travel in all normal channels … for the relevant goods.”). The trade channels for both Applicant’s goods and services and Registrant’s services would include venues such as arenas and concert halls where live music is performed and ancillary merchandise such as recorded music is sold, as well as websites that offer live and previously recorded music and videos. The relevant class of consumers is the same for Applicant’s goods and services and Registrant’s services, i.e., those who are interested in listening to music, watching musical performances, and having access to musical material. Accordingly, we find that the goods and services identified in the application and the services identified in the registrations travel in the same channels of trade and are offered to the same classes of consumers. See Anderson, 101 USPQ2d at 1920. C. Other Factors Applicant has raised a number of other arguments in support of its appeal.17 We address the arguments under the rubric of the thirteenth du Pont factor, which allows 17 7 TTABVUE 2-8. We do not include pinpoint cites to the record in this section as Applicant’s arguments are entwined throughout the cited pages. Serial No. 86563789 - 19 - consideration of “[a]ny other established fact probative of the effect of use.” du Pont, 177 USPQ at 567. First, Applicant argues that it owned a prior registration for the same mark for the same goods and services as the applied-for mark, and that Applicant unintentionally allowed the prior registration to lapse for failure to file a timely Section 8 affidavit or declaration of use. On a related point, Applicant argues that the cited registrations were allowed to register despite applicant’s prior registration for the same mark and same goods and services, so there is no likelihood of confusion, and the current refusal “seems fishy and wrong.” The arguments are unpersuasive. The existence of a prior registration does not overcome evidence that a mark is now unregistrable. It is well settled that we must assess each application on its own record at the time registration is sought, and that we are not bound by the decisions of examining attorneys in other cases. In re Cordua Rests., Inc., 823 F.3d 594, 600, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“The PTO is required to examine all trademark applications for compliance with each and every eligibility requirement . . . even if the PTO earlier mistakenly registered a similar or identical mark suffering the same defect.”); see also In re Boulevard Entm’t Inc., 334 F.3d 1336, 67 USPQ2d 1475, 1480 (Fed. Cir. 2003) (“The fact that, whether because of administrative error or otherwise, some marks have been registered even though they may be in violation of the governing statutory standard does not mean that the agency must forgo applying that standard in all other cases.”); In re Nett Designs Inc., Serial No. 86563789 - 20 - 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“[D]ecisions regarding other registrations do not bind either the agency or this court.”). Moreover, Applicant’s prior registration has been cancelled, and thus is not entitled to any of the presumptions of Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b). See Anderson, Clayton & Co. v. Krier, 478 F.2d 1246, 178 USPQ 46, 47 (CCPA 1973) (“Whatever benefits a registration conferred upon appellee were lost by him when he negligently allowed his registration to become canceled.”); In re Hunter Publ’g Co., 204 USPQ 957, 963 (TTAB 1979) (cancellation “destroys the Section [7(b)] presumptions and makes the question of registrability ‘a new ball game’ which must be predicated on current thought.”). We distinguish In re Strategic Partners, Inc., 102 USPQ2d 1397 (TTAB 2012). In that case, an applicant had been refused registration under Section 2(d) even though it owned an existing registration that was over five years old for a mark and for goods that were substantially similar to those set forth in the refused application. The Board noted that, because the registration was over five years old, it was “not subject to attack by the owner of the cited registration on a claim of priority and likelihood of confusion.” Id. at 1399. See Section 14 of the Trademark Act, 15 U.S.C. § 1064. In addition, the Board specified that the facts in Strategic Partners constituted a “unique situation,” limited to cases that fall within those exact parameters. Strategic Partners, 102 USPQ2d at 1400. Unlike Strategic Partners, Applicant’s earlier registration has been cancelled, and the three cited registrations all issued after Applicant’s deadline for filing an affidavit Serial No. 86563789 - 21 - or declaration of continued use under Section 8, and within the four months before the date on which the USPTO performed the ministerial function of cancelling the prior registration. Indeed, Reg. No. 4694051 for the mark ACM registered three days before the USPTO ministerially cancelled Applicant’s prior registration. Cf. In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 (TTAB 2017) (coexistence of Applicant’s prior registration and the cited registration for 3 ½ years “does not outweigh the other du Pont factors” because Applicant’s prior registration “is still subject to a cancellation action by Registrant based on likelihood of confusion.”). Second, Applicant claims that it was the first to use the mark on the goods and in connection with the services identified in the application. This allegation is unsupported by evidence of record. It also is not relevant to this ex parte proceeding. In re Calgon Corp., 435 F.2d 596, 168 USPQ 278, 280 (CCPA 1971). The Examining Attorney issued the refusal under Section 2(d) of the Trademark Act, which provides for refusal on the basis of a mark’s resemblance to “a mark registered in the Patent and Trademark Office…,” without regard to the applicant’s alleged priority. 15 U.S.C. § 1052(d). An ex parte appeal is not the proper forum for challenging the validity of a registration. Dixie Rests., 41 USPQ2d at 1534-35. Third, Applicant asserts that it is the “recognized source” of the goods and services identified in the application, and that its mark “has become famous within the industry and distinctive.” The assertions are unsupported, and in any event, do not Serial No. 86563789 - 22 - demonstrate that Applicant’s mark is not likely to be confused with Registrant’s marks. Finally, Applicant contends that it has entered into a coexistence agreement with Registrant. It is settled that when an applicant and registrant have entered into such an agreement, that fact may play a critical role in the likelihood of confusion analysis. See, e.g., In re Four Seasons Hotels Ltd., 987 F.2d 1565, 26 USPQ2d 1071, 1072 (Fed. Cir. 1993) (holding that the consent agreement carries great weight); Bongrain Int’l (Am.) Corp. v. Delice de France Inc., 811 F.2d 1479, 1 USPQ2d 1775, 1778 (Fed. Cir. 1987) (“We have often said in trademark cases involving agreements reflecting parties’ views on the likelihood of confusion in the marketplace, that they are in a much better position to know the real life situation than bureaucrats or judges and therefore such agreements may, depending on the circumstances, carry great weight….”). Applicant has not submitted the agreement, however, claiming that it is confidential and that Applicant is prohibited from making it part of a public record. Applicant instead provided in its Request for Reconsideration and its brief a purported summary of the relevant provisions of the agreement. Such a summary does not take the place of the actual agreement, and is of little, if any, probative value. We will not infer that Registrant consents to registration of Applicant’s mark based on such a representation.18 18 Nonetheless, we are puzzled that Applicant did not seek a letter of consent from Registrant pursuant to paragraph 9 thereof (as represented by Applicant) (“9. Letters of Consent. In the event that the USPTO cites either party’s trademark applications or registrations as obstacles to the other party’s application to register a trademark as permitted above, the parties shall each sign and provide the other party with a letter of consent, substantially in a form of Exhibit C attached hereto.”). 7 TTABVUE 9. Serial No. 86563789 - 23 - In a recent case involving a consent agreement, the Board confirmed that the actual consent agreement must be made of record so that its content may be examined: “there is no per se rule that a consent, whatever its terms, will always tip the balance to finding no likelihood of confusion, and it therefore follows that the content of each agreement must be examined.” In re Bay State Brewing Co., 117 USPQ2d 1958, 1963 (TTAB 2016) (emphasis added). Moreover, even if Applicant had submitted the agreement properly, a consent is “but one factor to be taken into account with all of the other relevant circumstances bearing on the likelihood of confusion referred to in § 2(d).” In re N.A.D. Inc., 224 USPQ 969, 971 (Fed. Cir. 1985). IV. Conclusion We have carefully considered all evidence of record, even if not specifically discussed herein, and Applicant’s arguments relevant to the pertinent du Pont likelihood of confusion factors. We treat as neutral any du Pont factors for which there is no record evidence. Because the marks are similar when compared in their entireties, and Applicant’s goods and services are closely related to, and move through the same channels of trade as, Registrant’s services, we find that Applicant’s mark ACM RECORDS for its identified goods and services is likely to cause confusion with the registered marks ACM, ACM AWARDS, and THE ACM EXPERIENCE for Registrant’s identified services. Decision: The refusal to register Applicant’s mark ACM RECORDS is AFFIRMED in each class.