Baja Trademarks LLC

Trademark Trial and Appeal BoardApr 14, 2021

87100812 (T.T.A.B. Apr. 14, 2021)

This Opinion is Not a Precedent of the TTAB Hearing: February 2, 2021 Mailed: April 14, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Baja Trademarks LLC _____ Serial No. 87100812 _____ Lisel M. Ferguson of Procopio Cory Hargreaves & Savitch LLP, for Baja Trademarks LLC. Valerie Kaplan, Trademark Examining Attorney, Law Office 107, J. Leslie Bishop, Managing Attorney. _____ Before Zervas, Lykos, and Lynch, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: Serial No. 87100812 - 2 - I. Background Baja Trademarks LLC (“Applicant”) seeks registration on the Principal Register of the mark SCORE in standard characters for “restaurant and bar services” in International Class 43.1 The Examining Attorney refused registration under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two marks on the Principal Register that are registered to a common owner, both for goods and services that include “bar and restaurant services” in International Class 43: (“NEW YORK” disclaimed)2 and .3 After the Examining Attorney made the refusal final, Applicant requested reconsideration and appealed. After the denial of reconsideration,4 the appeal proceeded and has been fully briefed. An oral hearing took place on February 2, 2021. We note that Applicant attached exhibits to its Reply Brief,5 which is neither a convenience, nor a courtesy. Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1 Application Serial No. 87100812 was filed July 12, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in commerce. Four days later, Applicant filed an acceptable amendment to allege use. 2 Registration No. 1830405 issued on April 12, 1994, and has been renewed. 3 Registration No. 1830135 issued on April 12, 1994, and has been renewed. 4 On reconsideration, the Examining Attorney withdrew an earlier likelihood of confusion refusal as to Registration No. 1855829, owned by the same registrant, which was cancelled for failure to make the required maintenance filings. 5 9 TTABVUE. References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and after this designation are the page references, if applicable. Serial No. 87100812 - 3 - 1955 (TTAB 2008) (evidence attached to briefs will almost always be either untimely or duplicative, and in either event should not be filed); see also 37 C.F.R. § 2.142(b)(3) (“Citation to evidence in briefs should be to the documents in the electronic application record by date, the name of the paper under which the evidence was submitted, and the page number in the electronic record”). The entire record from prosecution of the application is readily available to the Board, and the exhibits in question are duplicative of the exhibits to Applicant’s Request for Reconsideration. For the reasons set forth below, we affirm the refusal to register. II. Likelihood of Confusion Our 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. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “Not all DuPont factors are relevant in each case.” Stratus Networks, Inc. v. UBTA-UBET Communs. Inc., 955 F.3d 994, 2020 USPQ2d 10341 **7 (Fed. Cir. 2020). The Board considers only those DuPont factors for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Two key considerations are the similarities between the marks (the first DuPont factor) and the relatedness of the services (the second DuPont factor). See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry Serial No. 87100812 - 4 - 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.”). These and other factors are addressed below. A. The Services In analyzing the second DuPont factor, the relatedness of the services, we look to the identifications in the application and cited registrations. See Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant’s recited “restaurant and bar services” are identical to the “bar and restaurant services” identified in the cited registrations. Applicant describes itself as “the intellectual property arm of SCORE International, an off-road motorsports racing sanctioning body for famous desert races including the world-renowned BAJA 1000 race, and numerous other races held in Baja California.”6 Applicant contends in addressing the second DuPont factor that because of the respective renown of both it and the registrant in their distinct fields, and the different nature of their businesses,7 consumers would not be confused. According to Applicant, as a result of its alleged reputation and prior use and 6 9 TTABVUE 5 (Applicant’s Reply Brief). 7 At the oral hearing, Applicant’s counsel referred to Applicant providing “pop-up” restaurants at race sites as another distinguishing feature of its services. However, the record and the briefs do not address this point, and this trade channel restriction does not appear in the identification, so we do not further consider it. Even if we did, however, we note that Applicant’s specimen and use evidence shows a brick-and-mortar restaurant/bar that could not be characterized as a “pop-up,” so Applicant’s actual services do not appear to be limited in that manner regardless. Serial No. 87100812 - 5 - registrations of SCORE and SCORE-formative marks in connection with racing, and associated goods and services,8 its “restaurant draws patrons based on this association.”9 In contrast, Applicant maintains that the registrant operates strip clubs that enjoy “widespread consumer recognition” due to media attention.10 Applicant argues that consumers would be motivated to visit the registrant’s establishments “for the adult entertainment services,” and “then may purchase food or beverages while at the strip club establishment.”11 While Applicant seeks to distinguish the services based on reputation and the alleged actual realities of the marketplace, when assessing the relatedness of services, “[t]he authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods [and services] set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods [and services], the particular channels of trade or the class of purchasers to which sales of the goods [and services] are directed.” Octocom Syst., 16 USPQ2d at 1787. As to Applicant’s reputation-based contentions, the U.S. Court of Appeals for the Federal Circuit rejected an argument similar to Applicant’s in In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017), in which the applicant argued that its goods, which were otherwise similar to those in the cited 8 May 11, 2020 Request for Reconsideration at 6-23 (Applicant’s prior registrations, none of which recite bar and restaurant services). 9 9 TTABVUE 6 (Applicant’s Reply Brief). 10 6 TTABVUE 10 (Applicant’s Brief). 11 6 TTABVUE 11 (Applicant’s Brief). Serial No. 87100812 - 6 - registration, would be distinguishable to consumers because the applicant’s identification of goods recited that they would be “associated with William Adams, professionally known as ‘will.i.am,’” a celebrity. Id. at 1476-78. However, the Court rebuffed that assertion, instead holding that “the will.i.am restriction does not impose a meaningful limitation in this case for purposes of likelihood of confusion analysis.” Id. at 1748. The Court noted that the applicant’s “identification of goods does not specify how Adams will be ‘associated with’ the goods, id. at 1748-49, and “‘does not even represent that Mr. Adams will be named, or otherwise identified, in the promotion of the goods.’” Id. at 1749 (quoting the underlying Board decision). The Court disregarded the celebrity association, and held that the identified goods were identical or closely related. In our case, Applicant’s analogous celebrity association argument is even less compelling than the one rejected by the i.am.symbolic Court, because the claimed association of the respective marks and services with a motorsports entity and a line of adult entertainment venues is not reflected in in the recitations of restaurant and bar services in the application and cited registrations. Because both Applicant’s and the registrant’s identifications at issue recite restaurant and bar services, and therefore encompass all kinds of such services, we cannot consider Applicant’s narrower characterizations of its own services as “focused toward the off-road racing enthusiast” and of the registrant’s as for “gentlemen’s club and bars.”12 See S.W. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where the goods in an application or registration are broadly described, they 12 6 TTABVUE 7 (Applicant’s Brief). Serial No. 87100812 - 7 - are deemed to encompass all the goods of the nature and type described therein); In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and commercial furniture.’”). Applicant’s claim that the registrant’s food and beverage services are only incidental to its adult entertainment business is irrelevant, given that the registrations recite restaurant and bar services, without any restriction on their nature or trade channels. “Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of [services].” Paula Payne Prods. v. Johnson Pub. Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (citations omitted) (“What is more significant than appellee’s failure to limit the description of goods to a particular channel of trade or market, is the absence of a limitation in appellant’s registration which would exclude appellee’s market”). To the extent Applicant argues that the services are dissimilar based on assertions that it operates “at the moment primarily on the West Coast,” whereas the registrant is only “on the East Coast,”13 the argument is unavailing because neither the cited registrations nor the application include geographic limitations.14 The cited 13 6 TTABVUE 7 (Applicant’s Brief). 14 Neither Applicant nor the Examining Attorney raised the eighth DuPont factor regarding the length of time during and conditions under which there has been concurrent use without evidence of actual confusion. However, to the extent Applicant’s geographic argument could be construed as falling under that factor, we note that the record does not include evidence of the existence or nonexistence of instances of actual confusion, as set forth in the eighth DuPont factor. Regardless, there also is no evidence that the nature and extent of Applicant’s and the registrant’s actual use of their marks in the marketplace, including the extent of any geographical overlap, has been so substantial so as to render any alleged absence of actual confusion legally significant. See In re Guild Mtg. Co., 2020 USPQ2d 10279, *6 (TTAB 2020) Serial No. 87100812 - 8 - registrations entitle the owner to nationwide rights, regardless of the geographic extent of actual use of the cited marks. 15 U.S.C. § 1057(b); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983). We also note that Applicant introduced evidence of the registrant’s promotional material that shows its locations include Chicago and Las Vegas, such that the registrant’s services apparently are not limited to the East Coast.15 “Inasmuch as [A]pplicant is seeking a geographically unrestricted registration, the Board is constrained to evaluate similarities in terms of potentially nationwide markets.” In re Integrity Mutual Ins. Co., 216 USPQ 895, 896 (TTAB 1982). Thus, given the unrestricted identifications in the cited registrations and the application, all for bar and restaurant services, the services are identical. The second DuPont factor weighs heavily in favor of likely confusion. B. The Trade Channels and Classes of Consumers Turning to the trade channels and consumers, because the relevant bar and restaurant services in the cited registrations and the application are identical, we may presume that the trade channels and classes of consumers for those overlapping services are identical. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels (neither the testimony, nor the evidence, provided any specifics regarding the geographic extent or overlap of applicant’s or registrant’s services); In re Thomas, 79 USPQ2d 1021, 1028 (TTAB 2006). 15 May 11, 2020 Request for Reconsideration at 39, 41. Serial No. 87100812 - 9 - of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); see also Inter IKEA Sys. B.V. v. Akea, 110 USPQ2d 1734, 1743 (TTAB 2014); L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1971 (TTAB 2007) (“Because the goods of both parties are at least overlapping, we must presume that the purchasers and channels of trade would at least overlap.”). As noted above, Applicant attempts to read trade channel limitations into the identifications of services by resorting to extrinsic evidence, but we must rely on the identifications. See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1053 (Fed. Cir. 2018) (noting the impermissibility of an applicant’s attempt to restrict the breadth of the goods or trade channels described in the cited registration). We cannot consider alleged marketplace realities not reflected in the identifications, and we must consider the relevant ordinary consumers of bar and restaurant services, not merely a subset who may be devoted fans of Applicant’s races or the registrant’s venues. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (affirming Board finding that where the identification is unrestricted, “we must deem the goods to travel in all appropriate trade channels to all potential purchasers of such goods”). Thus, the third DuPont factor weighs in favor of likely confusion. C. Similarity of the Marks Under what is known as the first DuPont factor, we compare the marks “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Serial No. 87100812 - 10 - Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the services offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721; see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). Moreover, when marks are used with identical services, as in this case, the degree of similarity between the marks necessary to support a finding of likelihood of confusion declines. See Century 21 Real Estate v. Century Life, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Top Tobacco, L.P. v. N. Atl. Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011). 1. The Cited Mark We first compare Applicant’s SCORE mark to the cited mark . We find that the marks look and sound alike because of the nearly identical wording SCORE(S) that forms the entirety of Applicant’s mark, and, except for the addition of partial underlining, the entirety of the cited mark. Because Applicant’s mark is in standard characters, it could appear in any font or color, including the same font and color as the stylized wording in the cited mark. See Viterra, 101 USPQ2d at 1909 Serial No. 87100812 - 11 - (holding that the specific font style of a mark cannot serve as the basis to distinguish it from a mark in standard character form); Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (registrant “entitled to depictions of the standard character mark regardless of font style, size, or color”). Thus, Applicant’s characterization of the marks as different because it uses “plain text” is unavailing, as the font cannot serve as a point of distinction for its standard- character mark. The words SCORE and SCORES differ only minimally, in that Applicant’s mark uses the singular form rather than the plural form of the same word that appears in the cited mark. We find this to be an insignificant difference in the comparison, as these words look and sound nearly identical. See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (“there is no material difference, in a trademark sense, between the singular and plural forms of the word ‘Zombie’ and they will therefore be regarded here as the same mark”); Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (SHAPE and SHAPES deemed essentially the same mark), appeal dismissed per stipulation, No. 2014-1461 (Fed. Cir. Oct. 10, 2014). Of course, we also remain mindful that “marks must be considered in light of the fallibility of memory and not on the basis of side-by-side comparison.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014). Applicant points to the partial underlining in the cited mark as a substantial difference, but we disagree. It is well-settled that with a composite mark comprising a design and words, the word portion of the mark is usually the one most likely to Serial No. 87100812 - 12 - indicate origin. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983); see also Viterra, 101 USPQ2d at 1908. This is particularly true here, where the underlining is a very minimal design element with no source-indicating significance. The underlining would not be vocalized, In re Electrolyte Labs., Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990), and merely emphasizes the word SCORES, enhancing the dominance of this word that is nearly identical to Applicant’s mark. As to the marks’ connotations and commercial impressions, we also find them similar. Consumers would attribute the same meaning to, and derive the same impression from, the shared wording SCORE(S) in Applicant’s mark and the cited marks. While Applicant has not argued that a different definition of the word SCORE(S) applies in its mark than in the cited marks when addressing the first DuPont factor, we have considered that possibility. However, nothing in Applicant’s and the registrant’s promotional materials in the record show a direct effort by either to point to or capitalize on a particular meaning of SCORE(S).16 And while Applicant emphasizes its sports theme as a distinguishing feature17 that might inform consumer understanding of its mark, the registrant’s promotional materials also draw in part on a similar theme, referring to one club as a “sports cabaret” and a “nightclub that embraces the excitement of sports” where a patron can “catch the big game.”18 See Am. Rice, Inc. v. H.I.T. Corp., 231 USPQ 793, 796 (TTAB 1986) (“[W]e 16 May 11, 2020 Request for Reconsideration at 25-30, 39-41. 17 6 TTABVUE 9 (Applicant’s Brief). 18 May 11, 2020 Request for Reconsideration at 40. Serial No. 87100812 - 13 - may take into account whether the trade dress of packages or labels in the application file as specimens, or otherwise in evidence, may demonstrate that the trademark projects a confusingly similar commercial impression.”); Northwestern Golf Co. v. Acushnet Co., 226 USPQ 240, 244 (TTAB 1985) (“Evidence of the context in which a particular mark is used on labels, packaging, etc., or in advertising is probative of the significance which the mark is likely to project to purchasers.”); see also Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1284 (Fed. Cir. 1984). Thus, the use by both the registrant and Applicant of their marks with sports-themed services suggests the connotation and impression of a sports- related “score,” even if the registrant’s use with adult entertainment services also may have a double entendre of another meaning of “score.”19 The marks as a whole share a similar meaning and commercial impression. Applicant attempts to differentiate the marks by again arguing that confusing similarity is prevented by “existing strong consumer recognition of Applicant and Registrant in connection with the services each offers, which have no relatedness or overlap in the market.”20 Applicant’s premise that a well-known mark makes 19 Among other definitions, “score” can mean “the record of points or strokes made by competitors in a game or match” as well as, in slang usage, “a success in finding a willing sexual partner; sexual conquest.” Dictionary.com, sourced from the Random House Dictionary, accessed April 13, 2021. The Board may take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format. E.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018). 20 6 TTABVUE 9; see also May 11, 2020 Request for Reconsideration at 4. Interestingly, if the marketplace evidence were considered, as just noted, both Applicant and the registrant, at least to some extent, draw on a sports theme. May 11, 2020 Request for Reconsideration at 40. Serial No. 87100812 - 14 - confusion less likely would accord the well-known mark a lesser scope of protection, but the Court of Appeals for the Federal Circuit has noted that “[t]he driving designs and origins of the Lanham Act demand the standard consistently applied by this court - namely, more protection against confusion for famous marks.” Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). In other words, as a matter of law, the registrant’s renown does not render confusion less likely. As to Applicant’s renown, the fame of a junior user’s mark is not a legitimate consideration, for good reason. If an applicant’s fame were to be considered, a newcomer could wrest ownership of a prior user’s mark merely by extensive promotion. If anything, the renown of an applicant’s mark may render confusion more likely by exposing more potential consumers to a mark similar to that of the registrant. Those consumers, upon encountering the registrant’s prior mark, might then incorrectly assume that Applicant is the source of the registrant’s services. See In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993) (“The junior user does not seek to benefit from the goodwill of the senior user; however, the senior user may experience diminution or even loss of its mark's identity and goodwill due to extensive use of a confusingly similar mark by the junior user”). “We compare the applicant’s and registrant’s ‘marks themselves,’” i.am.symbolic, llc, 123 USPQ2d at 1748 (citing Denney v. Elizabeth Arden Sales Corp., 263 F.2d 347, 120 USPQ 480, 481) (CCPA 1959)), for the services set forth in the application and registration. Thus, Applicant’s arguments about extrinsic evidence of fame or Serial No. 87100812 - 15 - reputation of Applicant and the registrant rest on an incorrect premise. Apart from this, Applicant offers no persuasive explanation why consumers encountering the nearly identical marks in connection with what we must consider the same type of services would attribute different meanings to SCORE and SCORES, or view the marks as having different commercial impressions. See i.am.symbolic, 123 USPQ2d at 1749 (the applicant failed to show that the identical words would “‘bring[] to mind’ something different” in the two marks) (citation omitted). Applicant’s evidence of its prior registrations of marks including SCORE for goods and services other than those at issue (such as clothing and entertainment) do not change our view of the connotation and commercial impression of its mark. Given the resemblance in sound, appearance, connotation and commercial impression when viewed in their entireties, we find Applicant’s mark SCORE very similar to . 2. The Cited Mark We next turn to the cited mark , which is the same as the first cited mark, but with the addition of the relatively smaller stylized wording “NEW YORK” appearing beneath the word “SCORES” and its underlining. We incorporate the prior discussion of similarities to the first cited mark, given that this second cited mark includes the same elements, along with others. Serial No. 87100812 - 16 - Considering the second mark in its entirety, we find SCORES to be the dominant portion of the mark for several reasons. First, SCORES dominates because of its size and placement, appearing first, at the top of the mark, in relatively larger and more prominent lettering. Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (first part of a mark “is most likely to be impressed upon the mind of a purchaser and remembered.”) Second, the remaining wording, NEW YORK, is geographically descriptive and has been disclaimed. This reduces its significance in the likelihood of confusion analysis because consumers would view it merely as designating the origin of the restaurant and bar services, and would not rely on the descriptive wording to indicate source. See In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); Bd. of Regents, Univ. of Tex. Sys. v. S. Ill. Miners, LLC, 110 USPQ2d 1182, 1188 (TTAB 2014) (“[I]t is well-settled that disclaimed, geographically descriptive matter, such as the wording SOUTHERN ILLINOIS, may have less significance in likelihood of confusion determinations.”). Thus, while the inclusion of NEW YORK in this cited mark introduces some additional visual and phonetic difference from Applicant’s mark, and adds to the connotation and commercial impression the geographic origin of the services, we find that overall, Applicant’s standard-character SCORE mark and are similar because the dominant element of this cited mark is nearly identical to Applicant’s mark, and the underlining and the wording NEW YORK would not be relied on by consumers to distinguish between the marks. Serial No. 87100812 - 17 - Given the resemblance in sound, appearance, connotation and commercial impression when viewed in their entireties, we find Applicant’s mark similar to . D. Other DuPont Factors Applicant makes an unsupported argument under the sixth DuPont factor regarding the number and nature of similar marks in use on similar services that SCORE is diluted and “the industry is crowded with many similar marks.”21 However, the record includes no evidence of other SCORE or SCORE-formative marks in use by third parties in connection with similar services. Applicant’s bare assertion in its Brief regarding TESS Search results lacks any corresponding evidence in the record, and “[a]ttorney argument is no substitute for evidence.” Cai v. Diamond Hong, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). Presumably under the catchall thirteenth DuPont factor, Applicant asserts that its use and prior registrations for SCORE and SCORE-formative marks in connection with other goods and services should weigh in its favor. Applicant’s registrations and claimed use with other types of goods and services in other classes are unconnected to the likelihood of confusion analysis at issue. Where an applicant owns a prior registration more than five years old, and the mark and goods or services are ‘substantially the same’ as in the applied-for application, this can weigh against 21 6 TTABVUE 11 (Applicant’s Brief). Serial No. 87100812 - 18 - finding that there is a likelihood of confusion.” In re Country Oven, 2019 USPQ2d 443903, *15 (TTAB 2019) (citing Inn at St. John’s, 126 USPQ2d at 1748 (internal citation omitted)). However, where, as here, the prior registrations involve different goods and services than the restaurant and bar services recited by Applicant in this application, “the USPTO’s issuance of Applicant’s prior registrations does not weigh against a finding of likelihood of confusion.” Country Oven, 2019 USPQ2d 443903, at *23. We find this argument unpersuasive. III. Conclusion The overall similarity of the marks for identical services that are presumed to travel in the same channels of trade to the same classes of customers renders confusion likely. Decision: The refusal to register Applicant’s mark is affirmed as to both cited registrations.