Anchor Payment Solutions

Trademark Trial and Appeal BoardAug 31, 2021

88701247 (T.T.A.B. Aug. 31, 2021)

Mailed: August 31, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Anchor Payment Solutions LLC _____ Application Serial No. 88701247 _____ Ashley D. Johnson of Dogwood Patent and Trademark Law, PLLC for Anchor Payment Solutions LLC. Olivia S. Lee, Trademark Examining Attorney, Law Office 128, Travis Wheatley, Managing Attorney. _____ Before Bergsman, Wolfson, and Pologeorgis, Administrative Trademark Judges. Opinion by Wolfson, Administrative Trademark Judge: Anchor Payment Solutions LLC (Applicant) seeks registration on the Principal Register of the mark depicted below (“PAYMENT SOLUTIONS” disclaimed) for “Merchant services, namely, payment transaction processing services; credit card and debit card payment processing services; credit card and debit card transaction processing services,” in International Class 36.1 1 Serial No. 88701247 was filed November 21, 2019, based on Applicant’s allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming first use of the mark at least as early as January 16, 2018, and first use in commerce of at least as early This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 88701247 - 2 - The Examining Attorney refused to register Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that the mark so resembles the following registered marks, all owned by the same entity, for services in International Class 36:2  Reg. No. 2528134 for the mark “ANCHOR BANK, N.A.” (in standard character form with “BANK, N.A.” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2528133 for the mark “ANCHOR BANK, NATIONAL ASSOCIATION” (in standard character form with “BANK” and “NATIONAL ASSOCIATION” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2428127 for the mark “ANCHOR BANCORP, INC.” (in standard character form with “BANCORP, INC.” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2470268 for the mark “ANCHOR TRUST” (in standard character form with “TRUST” disclaimed) for “Banking, Trust, and Related Financial Services;” renewed. as March 13, 2018. The description of the mark reads: “The mark consists of an anchor with an ‘S’ intertwined in the top portion of the anchor, with the words ‘ANCHOR PAYMENT SOLUTIONS’ below the anchor. The words ‘ANCHOR PAYMENT’ is above the word ‘SOLUTIONS’ placed between two horizontal lines.” Color is not claimed as a feature of the mark. 2 The Examining Attorney also cited Reg. No. 4448602 for the mark “ANCHOR” (in stylized form with design), but the registration was cancelled on July 17, 2020 and does not form part of this decision. Serial No. 88701247 - 3 -  Reg. No. 5833649 for the mark “ANCHOR COMMERCIAL BANK” (in standard character form with “COMMERCIAL BANK” disclaimed) for “Banking services;” registered August 13, 2019.  Reg. No. 2080725 for the mark (“BANK” disclaimed) for “Banking services;” renewed.  Reg. No. 2553385 for the mark (“BANK NA” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2528188 for the mark (“BANK NATIONAL ASSOCIATION” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2428123 for the mark (“BANCORP” disclaimed) for “Banking and Related Financial Services;” renewed.  Reg. No. 2576454 for the mark (“TRUST” disclaimed) for “Banking, Trust, and Related Financial Services;” renewed.  Reg. No. 5833950 for the mark (“COMMERCIAL BANK” disclaimed) for “Banking services;” registered August 13, 2019. After the refusal was made final, the application lapsed for failure to file a timely response, and Applicant filed a Petition to Revive the application together with a Serial No. 88701247 - 4 - Notice of Appeal. The petition was granted and, following institution of this appeal, both Applicant and the Examining Attorney filed briefs. We affirm the refusal.3 I. Likelihood of Confusion We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor that is relevant or for which there is evidence of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); 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 DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973) (“[E]ach case must be decided on its own facts and the differences are often subtle ones.”). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re 3 The TTABVUE and Trademark Status &Document Retrieval (“TSDR”) citations refer to the docket and electronic file database for the involved application. All citations to the TSDR database are to the downloadable .pdf version of the documents. Serial No. 88701247 - 5 - Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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 differences in the marks.”). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). II. The similarity or dissimilarity of the marks. The first DuPont likelihood of confusion factor focuses on “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). Because a comparison of the marks is determined based on the marks in their entireties, our analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981). The “touchstone of this factor is consideration of the marks in total.” Jack Wolfskin Ausrustung Fur Draussen GmbH KGAA v. New Millenium Sports, S.L.U., 707 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015). Serial No. 88701247 - 6 - Nonetheless, one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark. “Indeed, this type of analysis appears to be unavoidable.” In re Nat’l Data, 224 USPQ at 751. See also In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018); In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013). Applicant is seeking to register the mark . The dominant portion of Applicant’s mark and Registrant’s marks is the term ANCHOR, because it is the first word in each mark, and because the remaining terms are merely descriptive and have been disclaimed. Purchasers in general are inclined to focus on the first word or portion in a mark, especially where, as here, the first word is followed by a merely descriptive term or phrase. 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 upon the mind of a purchaser and remembered”). In addition, matter that is descriptive of or generic for a party’s services is typically less significant or less dominant in relation to other wording in a mark. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1824-25 (TTAB 2015) (citing In re Chatam Int’l. Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Serial No. 88701247 - 7 - Cir. 2004)); In re Code Consultants Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (a descriptive term is less significant in creating the mark’s commercial impression). The Examining Attorney has shown that the phrase “payment solutions” is used by other entities in Applicant’s industry to describe credit and debit card processing services that solve the problem of payment transactions.4 Moreover, Applicant has disclaimed “PAYMENT SOLUTIONS.” See Code Consultants, 60 USPQ2d at 1702 (disclaimed matter is often “less significant in creating the mark’s commercial impression”). The additional terms in Registrant’s marks, ‘BANK,” “BANK, N.A.,” “BANCORP, INC.,” “TRUST,” and “COMMERCIAL BANK ,” are also merely descriptive of the nature or purpose of the services and have been disclaimed in each of the marks. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000); In re Dixie Rests., 41 USPQ2d at 1533-34 (“DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE). The non-source identifying nature of the words following “ANCHOR” in Applicant’s and Registrant’s marks, and the disclaimers thereof, constitute rational reasons for giving the terms “PAYMENT SOLUTIONS,” ‘BANK,” “BANK, N.A.,” “BANCORP, INC.,” “TRUST,” and “COMMERCIAL BANK” less weight in the analysis. 4 For example, Clearent Intelligent Processing advertises technology that allows businesses to accept payments in-person, via a website, or by email, by promoting: “Fast and secure payment solutions that work for your business.” At https://www.clearent.com/payment- solutions/; March 4, 2020 Office Action, TSDR 46. York Traditions Bank offers “In-person, online and mobile payment solutions” to facilitate its clients’ credit card processing transactions. At https://www.yorktraditionsbank.com; March 4, 2020 Office Action, TSDR 50. Serial No. 88701247 - 8 - Applicant argues that “the term ‘Anchor’ is capable of several different meanings,” Applicant’s Brief, 4 TTABVUE 16, and that because Applicant is “using the term ‘Anchor’ to create the commercial impression of stability and reliability,” id., “the ANCHOR PAYMENT SOLUTIONS mark invokes the impression of a reliable resource or reward for consumers that have had unfavorable experiences with prior merchant providers in the credit and debit card processing arena.” Id. at 17. In contrast, Applicant argues that Registrant’s marks create the commercial impressions of banks “anchored in Minnesota.” Id. As for Registrant’s marks comprising the term “TRUST,” Applicant argues that these marks create “the commercial impression of trust in banking.” Id. We are unpersuaded by Applicant’s arguments that the marks engender different overall commercial impressions. Applicant’s mark, and each of Registrant’s marks, equally projects the idea inherent in the term “anchor” of stability and reliability. Although Applicant’s mark may suggest a reliable payment solution, while Registrant’s marks suggest reliable banking or trust solutions, given the presence of ANCHOR in each of the marks as its dominant feature, the overall commercial impressions are the same. Moreover, consumers familiar with Registrant’s marks may see Applicant’s ANCHOR PAYMENT SOLUTIONS merchant services as an extension of Registrant’s banking services. As for the impression of “anchored in commerce,” this impression may attach to Applicant’s services as well, as “payment solutions anchored in commerce.” Thus, we find the marks similar in overall commercial impression, as well as in appearance and pronunciation. Serial No. 88701247 - 9 - Several of Registrant’s marks are composite marks, including a representation of an anchor. Applicant argues that these features distinguishes the marks from its mark, which also contains a design element. It is axiomatic, however, that in general, the literal portion of a mark is its primary component, and “the one most likely to indicate the origin of the goods to which it is affixed.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018). This is because consumers are unlikely to refer to the design when calling for the services, as designs are generally incapable of being verbalized. Significantly, the Anchor designs of all the marks in which they appear reinforce the word ANCHOR in each mark and underscore its significance. Thus, the design features do not distinguish the marks. Applicant “further submits that the term ANCHOR, common between all marks, is diluted as it applies to financial services in Class 036.” Applicant’s Brief, 4 TTABVUE 23. Because Registrant’s marks have been registered without a claim to acquired distinctiveness on the Principal Register, the marks are entitled to a presumption of validity under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), including that the marks are inherently distinctive for the services. Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). See also In re Fiesta Palms, LLC, 85 USPQ2d 1360, 1363 (TTAB 2007) (when a mark is registered on the Principal Register, “we must assume that it is at least suggestive”). To overcome the Serial No. 88701247 - 10 - presumption, Applicant filed copies of 23 registrations in Class 36 that include the term ANCHOR.5 The third-party registrations submitted by Applicant do not overcome the cited registrations’ presumption of validity. First, the documents submitted by Applicant are incomplete. To make a third-party registration of record, a copy of the registration, either a copy of the paper USPTO record, or a copy taken from the electronic records of the Office, should be submitted. In re Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012); In re Jump Designs LLC, 80 USPQ2d 1370, 1372-73 (TTAB 2006). Because Applicant did not submit the complete TSDR printouts for each mark, their probative value is reduced. Notably, the owner of each mark was not included, one of the TSDR printouts does not include the goods or services for which the mark is registered, and many of the registrations, as can be determined by their registration numbers, are owned by Registrant. Several registrations have been cancelled and are of no value and three of the “live” registrations comprise the term ANCHORAGE, which differs so substantially from ANCHOR in meaning that they are of no probative value. Of the remaining twelve registrations, there are only six in the relevant financial fields, and as can be seen, all but the mark ANCHOR LOANS contain additional words that distinguish them from Applicant’s and Registrant’s marks:  Reg. No. 5414016 for the mark ANCHOR 3(16) for “Providing fiduciary financial administration of qualified retirement plans in compliance with ERISA §3(16).” 5 Response to Office Action April 10, 2020, TSDR 42-77. Serial No. 88701247 - 11 -  Reg. No. 5406887 for the mark ANCHORED IN OUR COMMUNITY for “Banking services; Credit union services; Financial advisory and consultancy services.”  Reg. No. 4785821 for the mark ANCHOR PEABODY for “Financial advisory and consultancy services.”  Reg. No. 2177335 for the mark ANCHOR ADVISOR for “financial investment services, namely, offering variable annuities.”  Reg. No. 2092709 for the mark NORTHERN ANCHOR for “banking and financial services, namely, a bank account which can sweep money in to a money market account.”  Reg. No. 5804741 for the mark ANCHOR LOANS for “Investment and trust company services related to trust deeds; mortgage and real estate loan services related to trust deeds, namely, buying, selling, arranging, placing and servicing trust deeds, mortgages, notes and other lending and collateral instruments, all related to trust deeds; business and commercial loan financing for real estate loans in the form of trust deed investments; trust deed fund investments.” Although third-party use-based registrations can be used to show that a mark or portion thereof has a descriptive or suggestive meaning, leading to the conclusion that it is conceptually weak, here the registrations cited by Applicant fail to show that ANCHOR has a suggestive meaning. See, e.g., In re Nashua Corporation, 229 USPQ 1022, 1023 (TTAB 1986) (“Third-party registrations may provide some evidence as to the meaning of a mark or portion of a mark in the same way dictionaries are used.”). In only one registration, ANCHOR LOANS (“LOANS” disclaimed) does the additional term add little source significance. The others include distinctive words or phrases that imbue the marks with differences sufficient to obviate any likelihood of confusion. A single registration does not demonstrate that ANCHOR is weak or that Serial No. 88701247 - 12 - the cited registrations should be accorded narrow scopes of protection. Cf. Jack Wolfskin, 116 USPQ2d at 1136 & n. 2 (“voluminous” and “extensive” evidence of at least fourteen relevant third-party uses or registrations of record); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1673 n.1 (Fed. Cir. 2015) (at least twenty-six relevant third-party uses or registrations of record). Moreover, Applicant did not submit evidence of marketplace use of third-party ANCHOR marks for banking services. Cf. Palm Bay, 73 USPQ2d at 1694 (Fed. Cir. 2005) (as the Board observed, “[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.’” (internal citation omitted; emphasis supplied)). Registrant’s marks are entitled to the normal scope of protection available to distinctive marks. When considered in their entireties, the marks are similar in appearance, sound, connotation, and commercial impression. The ANCHOR term in the marks is not considered weak. The first DuPont factor, similarity of the marks, strongly favors a finding of a likelihood of confusion. III. Similarity or dissimilarity and nature of the services. Applicant seeks registration for its mark in association with “merchant services, namely, payment transaction processing services; credit card and debit card payment processing services; credit card and debit card transaction processing services .” The cited registrations all include “banking services.” In making our determination regarding the relatedness of Applicant’s and Registrant’s services, we must look to the services as identified in the application and the cited registrations. See Stone Lion Serial No. 88701247 - 13 - Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods [or services], the particular channels of trade or the class of purchasers to which the sales of goods [or services] are directed.”)). “It is not necessary that the respective services be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis.” In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *5 (TTAB 2020) (citing In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1368 (TTAB 2009)). It is sufficient that Applicant’s merchant services are related in some manner to Registrant’s banking services, “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., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Ox Paperboard, 2020 USPQ2d 10878 at *5. The issue here, of course, is not whether consumers would confuse Applicant’s services with Registrant’s services, but rather whether there is a likelihood of confusion as to the source of these services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). Serial No. 88701247 - 14 - Under this DuPont factor, the Examining Attorney need not prove, and we need not find, similarity as to each and every activity listed in the descriptions of services. It is sufficient for a refusal based on likelihood of confusion that relatedness i s established for any activity encompassed by the identification of services in a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application.”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); General Mills Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1397 (TTAB 2007). Applicant asserts that merchant services, which “comprise credit card and debit card payment transaction processing services for business,” 4 TTABVUE 21, are “entirely dissimilar” from banking services. Id. Applicant describes Registrant’s banking services as “checking accounts, savings accounts, certificates of deposit, loans, safe deposit boxes, investment-related services.” 4 TTABVUE 19. It describes merchant services as: services that enable a business to accept a transaction payment through a secure (encrypted) channel using the customer’s credit card or debit card or NFC/RFID enabled device. Merchant service providers work as an Serial No. 88701247 - 15 - intermediary between the bank, a person or organization wanting to receive funds and the person or organization looking to purchase goods or services. Specifically, the merchant service provider provides businesses and individuals with the requirements to accept credit cards, debit cards, and other forms of electronic payment for the transaction to take place. For example, a retailer selling a product to a customer. The customer uses a payment card for the purchase, the merchant service provider will move the customer’s funds to that of the retailer. Id. Evidence that “a single company sells the goods and services of both parties, if presented, is relevant to the relatedness analysis.” Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). The Examining Attorney submitted excerpts from third-party websites showing that banking services and merchant services are commonly provided by a single entity under the same mark. For example, Bank of America offers merchant services.6 Wells Fargo offers “Credit Card Payment Processing.” On the same web page, it provides links to “Banking” and “Merchant Services”:7 6 At https://www.bankofamerica.com, May 4, 2020 Final Office Action, TSDR 13. 7 At https://www.wellsfargo.com, May 4, 2020 Final Office Action, TSDR 12. Serial No. 88701247 - 16 - At chase.com/digital/resources, consumers can browse the “Chase.com sitemap,” which includes categories for such banking-related services as “Checking Accounts” and “Personal Banking” as well as a separate category titled “Merchant Services” (which lists “Payment Solutions” as a sub-category). A copy of the sitemap page is reproduced below:8 8 March 4, 2020 Office Action, TSDR 48. Serial No. 88701247 - 17 - The Examining Attorney also submitted twelve use-based registrations for merchant services and banking services registered under a single mark.9 Third-party registrations based on use in commerce have probative value to the extent they serve to suggest that the services listed in the registrations are of a kind that may emanate from a single source. See, e.g., In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018) (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001)); In re Aquamar, 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Albert Trostel & Sons Co., 9 May 4, 2020 Final Office Action, TSDR 35-70. Serial No. 88701247 - 18 - 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Of the submitted registrations, the following five are most pertinent:  Reg. No. 6026684 for the mark HESAB for “Banking services provided by mobile telephone connections” and “Merchant services, namely, payment transaction processing services;” registered April 7, 2020;  Reg. No. 5895453 for the mark for “Banking services” and “Merchant services, namely, payment transaction processing services;” registered October 29, 2019.  Reg. No. 5831730 for the mark PNC.COM for “Banking services” and “Merchant services, namely, merchant banking services, payment transaction processing services, bill payment services, and credit card and debit card payment transaction processing services;” registered August 13, 2019.  Reg. No. 5753366 for the mark TREASURY ONE for “Banking services” and “Merchant services, namely, payment transaction processing services; Merchant banking services; Merchant banking and investment banking services;” registered May 14, 2019.  Reg. No. 5678383 for the mark SAVINGS BANK OF DANBURY for “Banking services,” “Merchant banking services,” and “Payment processing services, namely, credit card and debit card transaction processing services;” registered February 19, 2019. Based on the record before us, we find that Applicant’s merchant services are related to Registrant’s banking services, and that consumers would mistakenly believe that they emanate from the same source if offered under the same or similar marks. Accordingly, the second DuPont factor favors a finding of likelihood of confusion. Serial No. 88701247 - 19 - IV. Similarity of trade channels and classes of consumers. Next we consider established, likely-to-continue channels of trade, the third DuPont factor. Applicant argues that the channels of trade and classes of consumers are “entirely dissimilar:” Specifically, the merchant service provider provides businesses and individuals with the requirements to accept credit cards, debit cards, and other forms of electronic payment for the transaction to take place. The services covered by the cited Registrations, in contrast, are used by the general public and businesses for the provision of checking accounts, savings accounts, loans, safe deposit boxes, and the like. 4 TTABVUE 21-2. We are not persuaded by Applicant’s arguments. Neither the application nor the cited registrations contain any restrictions on channels of trade, manner of advertising, or classes of prospective purchasers. Therefore, it must be assumed that Applicant’s and Registrant’s services are advertised and rendered everywhere that is normal for such services, including businesses seeking to obtain credit, loans, and investment-related services, and which have the ability to process credit and debit cards to accept a transaction payment. See Coach Servs., 101 USPQ2d at 1723 (absent limitation, “goods are presumed to travel in all normal channels ... for the relevant goods”). See also In re Viterra, 101 USPQ2d at 1908 (finding Board entitled to rely on this legal presumption in determining likelihood of confusion); Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). Serial No. 88701247 - 20 - Here, the evidence of record demonstrates that Applicant’s and Registrant’s services are both provided online, by the same entities, to overlapping classes of purchasers, i.e., business customers interested in obtaining banking services such as credit and debit cards, business loans and mobile banking, and in using merchant services to process credit and debit card payments for their customers. Because merchant service providers act as intermediaries between banks, the merchant, and the customer, banks may refer customers to merchant service providers. “Merchant service providers require the merchant have a merchant account with the provider, either directly or through a referral partner, such as banks or B2B service companies.” Applicant’s Brief, 4 TTABVUE 19. Accordingly, the third DuPont factor also weighs in favor of finding a likelihood of confusion. V. Sophistication of relevant consumers. We accept Applicant’s argument that at least some consumers of Applicant ’s and Registrant’s services will be sophisticated or exercise heightened care in purchasing the services, given the investment necessary for a business to conduct payment processing transactions, and the importance of money and financial management. This factor therefore favors a finding of no likelihood of confusion, but we find this factor outweighed by the similarity of the marks and close relatedness of the services. See, e.g., HRL Assoc., Inc. v. Weiss Assoc., Inc., 12 USPQ2d 1819 (TTAB 1989), aff'd, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decision, and expensive goods). Serial No. 88701247 - 21 - VI. Whether Registrant has dissolved; abandonment of registrations. Applicant argues that industry reports about Registrant, which it has made of record, suggest that Registrant may be out of business, and that at the least, some of the registrations have been abandoned.10 Applicant’s assertions may only be entertained within the context of a cancellation proceeding or as counterclaims against Registrant’s registrations in a proceeding brought by Registrant. Applicant has neither filed a petition to cancel any of the pleaded registrations nor filed a counterclaim against any of the registrations. Accordingly, we have given Applicant’s arguments no consideration. See In re Dixie Rests., 41 USPQ2d at 1534-35 (“As long as the registration relied upon . . . remains uncanceled, it is treated as valid and entitled to the statutory presumptions.”); cf. In re Detroit Ath. Co., 128 USPQ2d at 1053 (applicant’s objection to the breadth of the goods or trade channels described in the cited registration “amounts to an attack on the registration’s validity” and that “the present ex parte proceeding is not the proper forum from which to launch such an attack,” which is “better suited for resolution in a cancellation proceeding”). VII. Conclusion We have considered all of the arguments and evidence of record and have found that: (1) the marks are similar in sound, appearance, connotation and commercial impression; (2) Applicant’s identified merchant services and Registrant’s banking services are closely related; and (3) the parties’ respective services are offered in 10 November 30, 2020 Petition to Revive TSDR 22, 33-4. Serial No. 88701247 - 22 - overlapping trade channels and to the same classes of purchasers. These factors outweigh any purchaser care or sophistication. In view thereof, we conclude that Applicant’s mark, when used in association with the recited services, so resembles Registrant’s marks for “banking services” as to be likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed.