Balancz LLC

Trademark Trial and Appeal BoardJul 21, 2017

No. 86614170 (T.T.A.B. Jul. 21, 2017)

This Opinion is not a Precedent of the TTAB Mailed: July 21, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Balancz LLC _____ Serial No. 86614170 _____ Jenifer deWolf Paine and Maya L. Tarr of Proskauer Rose LLP, for Balancz LLC. Michelle E. Dubois, Trademark Examining Attorney, Law Office 107, J. Leslie Bishop, Managing Attorney. _____ Before Zervas, Wolfson and Masiello, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: Balancz LLC (“Applicant”) seeks registration on the Principal Register of the standard character mark REACH for “downloadable software applications for making personal appointments” in International Class 9.1 1 Application Serial No. 86614170, filed on April 29, 2015 pursuant to Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), asserting a bona fide intent to use the mark in commerce. The application includes services in International Class 35. The refusal to register is limited to the goods in International Class 9. Serial No. 86614170 - 2 - The Examining Attorney refused registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 4177080 (“the ‘080 registration”) for the standard character mark SOLUTIONREACH and Registration No. 41770792 (“the ‘079 registration”) for the mark ,3 both owned by the same owner and both for the following International Class 42 services: Software as a service (SAAS) services featuring software for use by business and their customers, patrons and patients in electronically communicating and interacting via the Internet, phone, email, text messages, and social media, for creating, capturing, sharing and distributing audio and video, for conducting, collecting and disseminating online surveys and reviews, for providing, accessing and monitoring business information, healthcare information, and personal information, documents, forms and images, for creating, monitoring and editing appointments, for creating and editing appointments and appointment reminders, for paying bills, for creating and delivering e-newsletters, for sending birthday communications, and for identifying geographical location of customers, patrons and patients; computer services, namely, search engine optimization. After the Examining Attorney made the refusal final, Applicant appealed and requested reconsideration. On remand by the Board, the Examining Attorney denied the request for reconsideration. The appeal resumed and both Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. 2 Both cited marks registered on July 17, 2012. 3 The description of the mark in the record states, “[t]he mark consists of the wording ‘SOLUTIONREACH’ with two semi-circles above the letter ‘i’ depicting transmission waves.” Serial No. 86614170 - 3 - Evidentiary Issue Applicant submitted a list of applications and registrations from a private company search report with its request for reconsideration to demonstrate that there are marks which “cover software goods/services, and which do not disclaim the term ‘SOLUTION.’”4 The Examining Attorney did not address the list in her denial of the request for reconsideration and objected to the list in her brief.5 In In re 1st USA Realty Professionals Inc., 84 USPQ2d 1581 (TTAB 2007), the Board faced the same situation. The Board stated: Applicant also submitted, with its request for reconsideration, a listing of approximately 65 marks taken from the USPTO TESS database for marks containing the words “FIRST” or “1ST” or “USA.” This listing is … insufficient to make the applications and registrations of record. In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3 (TTAB 2002). Nor can we deem the Examining Attorney to have waived any objection to this document by failing to advise applicant of the insufficiency, since at the point that applicant filed the list it no longer had an opportunity to add to the record of the application. Accordingly, this list has not been considered. Id. at 1583. The Examining Attorney’s objection is sustained and we give no further consideration to the list of registrations and applications. TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TBMP”) (April 2017) § 1207.01(d)(iii) (“A list of registrations or a copy of a search report is not proper evidence of third-party registrations. To make registrations of record, copies of the registrations or the electronic equivalent thereof (i.e., printouts or electronic copies of the registrations taken from the 4 Req. for Recon. at 9, 4 TTABVUE 14. 5 15 TTABVUE 7. Serial No. 86614170 - 4 - electronic database of the USPTO) must be submitted.” (citations omitted.)) We point out that, even if we were to consider the list, it would be of uncertain probative value because it does not indicate whether the registrations are on the Principal or Supplemental Register. In addition, several of the listed marks are the subject of trademark applications and not registrations; third-party applications have no evidentiary value other than to show that they were filed. Jetzon Tire & Rubber Corp. v. General Motors Corp., 177 USPQ 467, 468 n. 3 (TTAB 1973). Likelihood of Confusion Our determination under Section 2(d) of the Trademark Act is based on an analysis of the probative facts in evidence that are relevant to the factors bearing on a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). For purposes of the du Pont factors that are relevant to this appeal we will consider Applicant’s involved application and the ‘080 registration. If likelihood of Serial No. 86614170 - 5 - confusion is found as to the mark in this registration, it is unnecessary to consider the ‘079 registration because the mark in the ‘080 registration is more similar to Applicant’s mark than the mark in the ‘079 registration.6 Conversely, if likelihood of confusion is not found as to the mark in the ‘080 registration, we would not find likelihood of confusion as to the mark in the ‘079 registration. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). The Number and Nature of Third-Party REACH Marks Applicant argues under the du Pont factor focusing on the number and nature of similar marks in use on similar services that the existence of third-party registrations that include REACH weighs against likely confusion. Third-party registration evidence is “not evidence that customers are accustomed to seeing the use of other, similar, marks in the marketplace,” In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016). However, such evidence may show that a term carries a suggestive or descriptive connotation in the relevant industry and therefore may be considered somewhat weak. Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). 6 The services in the two registrations, of course, are the same. Serial No. 86614170 - 6 - The following screenshot from Applicant’s brief depicts the third-party registrations which Applicant introduced to demonstrate that REACH is a weak term: 7 7 Applicant also submitted with its February 16, 2016 response, TSDR 3, a USPTO record for the mark EYE REACH PATIENTS (application Serial No. 86730169), which does not indicate that the mark was registered. In its brief, however, Applicant identified this mark as Registration No. 5079216. Because an application has no probative value in establishing that the term REACH is a weak term and we do not take judicial notice of records residing in the USPTO, we do not consider EYE REACH PATIENTS as a registered mark. Serial No. 86614170 - 7 - Serial No. 86614170 - 8 - 8 8 The Examining Attorney cited a pending application for the mark MINDBODY REACH as a possible bar to registration; in the final Office Action, however, the Examining Attorney stated the potential refusal based on this application was “withdrawn.” April 1, 2016 Office Serial No. 86614170 - 9 - We give limited weight to the TEACHERREACHER9 mark because it has a very different commercial impression than SOLUTIONREACH, due to the rhyming nature of TEACHERREACHER. The remaining three third-party registrations are too few in number to establish any weakness in the term REACH in the field of registrant’s services. Compare, Juice Generation, 115 USPQ2d at 1675, involving roughly a dozen third-party registrations of the same phrase for restaurant services; and Jack Wolfskin, 116 USPQ2d at 1136, stating the evidence was “voluminous.” We point out too that Applicant has not submitted evidence of actual marketplace use of REACH by third parties. Compare, Juice Generation, 115 USPQ2d at 1674 (evidence of third parties’ use of similar marks bears on the strength or weakness of a registrant’s mark). In addition, Applicant argues that the cited registrations coexist with each other.10 They do so, however, because they are owned by the same entity. In view of the foregoing, Applicant has not established any substantial weakness in the term REACH through the number and nature of similar marks registered or in use on similar services. The Marks We now compare the marks for similarities and dissimilarities in appearance, sound, connotation and commercial impression. Palm Bay Imps., 73 USPQ2d at 1692. Action, TSDR 1. If this application matured into a registration, it is not of record and Applicant has not relied on it in its briefs. 9 February 16, 2016 Resp., TSDR 19 – 22. 10 Applicant’s brief at 4, 13 TTABVUE 5. Serial No. 86614170 - 10 - The test is not whether the marks can be distinguished when subjected to a side-by- side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Under actual marketing conditions, consumers do not necessarily have the luxury of making side- by-side comparisons between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Assoc. of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). It has not escaped our attention that Applicant’s mark is contained in its entirety within registrant’s mark. “Likelihood of confusion often has been found where the entirety of one mark is incorporated within another.” Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014), (citing In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to registrant’s mark ML MARK LEES), Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women’s dresses is likely to be confused with LILLI ANN for women’s apparel including dresses), In re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (CAREER IMAGE for women’s Serial No. 86614170 - 11 - clothing stores and women’s clothing likely to cause confusion with CREST CAREER IMAGES for uniforms including items of women’s clothing)). The Examining Attorney argues that REACH forms the dominant commercial impression in each mark and will be viewed as the primary source-indicator;11 and that “[a]lthough the term ‘SOLUTION’ or ‘SOLUTIONS’ may be a nebulous term in regards to what type of technology-related product or service it represents … since the term ‘SOLUTION’ is so diluted, particularly in relation to software, consumers will not focus on this term in the registered marks as a differentiating factor in terms of source.”12 She relies on the following regarding the meaning of “solution” in the software context: ● PC Magazine Encycopedia at pcmag.com: “Cataloging a vendor’s hardware and software offerings by industry or application. “Solutions” has become such a marketing buzzword that many vendors tout only solutions on their Web sites, having eliminated reference to their products and services.”13 ● The Free On-line Dictionary of Computing (Denis Howe 2010), accessed at dictionary.com, offers the following examples of use of “solution” (identified as “jargon”): [A] marketroid term for something he wants to sell you without bothering you with the often dizzying distinctions between hardware, software, services, applications, file formats, companies, brand names and operating systems. 11 Examining Attorney’s brief, 15 TTABVUE 5. 12 Examining Attorney’s brief, 15 TTABVUE 6. 13 April 1, 2016 Office Action, TSDR 2. Serial No. 86614170 - 12 - Flash is a perfect image-streaming solution. 14 In addition, the Examining Attorney introduced a definition of “solutions provider” from pcmag.com which discusses the word “solutions”: An umbrella term for an organization that offers any combination of computer hardware, software and consulting. In the past, a solutions provider often built custom hardware and developed custom applications for its customers. Today, a solutions provider may use only packaged products. The word “solutions” has become a buzzword in the IT world, implying that rather than just reselling products, the company solves the customer’s problems through its expertise.15 (emphasis added.) The record also contains the following third-party Supplemental Register registrations, and Principal Register registrations with a disclaimer of SOLUTION, offered by the Examining Attorney to demonstrate that “SOLUTION in Applicant’s mark is a weak term in the context of computer software”:16 ● SOLUTION SERIES, (Supplemental) Registration No. 3443188 for “Computer software for medical practice management, excluding human resource-related computer programs used for payroll, personal, and time and attendance purposes.”17 ● STAFF ALLOCATION SOLUTION, (Supplemental) Registration No. 4280936 for “Computer software for efficiently allocating and monitoring office support personnel.”18 14 Req. for Recon. Exh. C, 4 TTABVUE 30. 15 April 1, 2016 Office Action, TSDR 5. 16 15 TTABVUE 6. 17 November 28, 2016 Office Action, TSDR 7-10. 18 November 28, 2016 Office Action, TSDR 30-32. Serial No. 86614170 - 13 - ● SERVICE ONLINE SOLUTION, (Supplemental) Registration No. 4557710 for, inter alia, “Computer programs for entry, tracking and transmission of service items and requests, creating new service requests, and transmitting service requests to vendors and subcontractors, for the purpose of centralizing, streamlining and automating the process of issue resolution during the construction, purchase and warranty period of a newly constructed home.”19 ● INDIGO EHR/PM SOLUTION, Registration No. 4170310 (“EHR/PM SOLUTION” disclaimed), for “Medical software for electronic health records.”20 ● PATHWAYS ENTERPRISE SOLUTION, Registration No. 2375049 (“ENTERPRISE SOLUTION” disclaimed), for “Computer software and instructional manuals sold as a unit for use in the operation and management of automobile collision repair facilities.”21 Applicant disagrees that SOLUTION is a weak term, and states, “even if the term ‘SOLUTION’ did have a primary technology-related connotation (which it does not), it remains an integral part of the unitary, compound term SOLUTIONREACH, and it is not appropriate for the Examining Attorney to discount it as ‘weak’ and therefore, not significant in evaluating the likelihood of confusion between the marks.”22 The definition of “solution” in The New Penguin Dictionary of Computing (Penguin Books 2001) is “an application of computers and software to a particular problem.”23 19 November 28, 2016 Office Action, TSDR 44-45. 20 November 28, 2016 Office Action, TSDR 23-24. 21 November 28, 2016 Office Action, TSDR 2-4. 22 Applicant’s brief at 11, 13 TTABVUE 12. 23 The Board may take judicial notice of reference works (University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983)), including online reference works which exist in printed format or have regular fixed editions (In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006)). Serial No. 86614170 - 14 - See also, Merriam-Webster Dictionary of “solution” as “something that is used or done to deal with and end a problem : something that solves a problem.” PC Magazine Encyclopedia identifies “solutions” as a “marketing buzzword,”24 and pcmag.com states that in addition to being a buzzword, “solution” implies that “the company solves the customer’s problems through its expertise.”25 Certainly, SOLUTION has significance in connection with computer software and, by extension, services involving software. In view of these definitions, we find that the term “solution” in registrant’s mark is highly suggestive in the field of software and therefore has limited weight as a source-identifying component of Registrant’s mark. While we consider each mark in its entirety, 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 that our ultimate conclusion rests upon a comparison of the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). “Indeed, this type of analysis appears to be unavoidable.” Id. As for REACH, Applicant states that it too has a variety of meanings.26 Applicant points to the definitions of “reach” as a verb from Merriam-Webster Dictionary: 24 April 1, 2016 Office Action, TSDR 2. 25 April 1, 2016 Office Action, TSDR 5. 26 Reply at 3-4, 16 TTABVUE 4-5. Applicant also argues that Registrant’s mark is unitary because there is no space between the terms SOLUTION and REACH. Applicant’s brief at 4, 13 TTABVUE 5. The lack of a space in Registrant’s mark does not so transform the mark that customers would not readily recognize it as merely a combination of the terms SOLUTION and REACH. See In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983). Serial No. 86614170 - 15 - ● to stretch out, ● to hand over, ● to communicate with, ● to strain after something. The Merriam-Webster Dictionary definitions we have located at https://www.merriam-webster.com/dictionary/reach and take judicial notice of include “to communicate with • I tried to reach you by phone” and “to arrive at : come • We should reach the border before noon.”27 Registrant states in its webpage of record, “[b]ased on the principle of reaching people when and where they are most likely to be receptive, our patient relationship management tools use the power of digital technology to keep you connected to the people that matter the most to your business”;28 and “[t]o help you engage every patient, Solutionreach lets you tailor the communication method for individual patients according to what form of message will reach them most effectively,”29 and “You’ll never need to concern yourself with the cost of communicating with your patients.”30 The most logical meaning of “reach” in the context of registrant’s services involving software as a service for communication purposes, i.e., for “business and their customers, patrons and patients in electronically communicating and interacting via the Internet, phone, email, text messages, and social media,” is “to communicate with.” 27 (Accessed July 11, 2017.) 28 February 16, 2016 response, pp., 37-38. 29 February 16, 2016 response, p. 52. 30 February 16, 2016 response, p. 44. Serial No. 86614170 - 16 - While we agree that REACH, in registrant’s mark SOLUTIONREACH, is suggestive of a feature of registrant’s SaaS services, we find that “reach” in both Applicant’s and registrant’s marks will have the same meaning in the context of the goods and services, including any of the meanings proposed by Applicant. Applicant argues in its reply brief that SOLUTION is the last word in all but one of the third-party registrations cited by the Examining Attorney on the Supplemental Register or on the Principal Register with a disclaimer of SOLUTION, and This, in addition to the other numerous registrations that include the term SOLUTION in the last position cited by the Examining Attorney in the November 28, 2016 Office Action, demonstrates that when used descriptively in connection with software and technology, the term SOLUTION is generally not in the first position. The more unusual placement of the term SOLUTION in the first position, which is the most distinctive portion of the mark, distinguishes the marks in the Cited Registrations from Applicant’s Mark such that there is no likelihood of confusion between them.31 As the Examining Attorney’s evidence demonstrates, SOLUTION is a very highly suggestive – and even possibly descriptive – term, and we are without persuasive countering evidence from Applicant. We therefore find that SOLUTION is substantially weaker than REACH in the relevant field. Even though SOLUTION is the first term in the cited mark, we find that REACH is the dominant term for purposes of source-identification. In view of the foregoing, we find that the marks are similar in meaning, and due to the similarity in meaning, are also similar in commercial impression. Further, due 31 Reply at 2, 16 TTABVUE 3. Serial No. 86614170 - 17 - to the shared term REACH, the marks are similar in sound and appearance. Any distinction in the marks caused by the additional term SOLUTION is outweighed by the overall similarity resulting from the shared identical term REACH. The du Pont factor regarding the similarity of the marks favors a finding of likelihood of confusion. The Goods and Services We now turn to the goods and services as they are identified in the application and cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as identified in involved application and cited registration compared); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). Applicant in its brief did not contest the Examining Attorney’s contention that the goods and services are related.32 We may find goods and services related when the circumstances surrounding their marketing are such that they would be likely to be encountered by the same persons under circumstances that would give rise, because of the marks used in connection therewith, to the mistaken belief that the goods and services originate from or are in some way associated with the same source. In re Int’l Telephone and Telegraph Corp., 197 USPQ 910 (TTAB 1978). It is only necessary that there be a viable relationship 32 In its reply brief, Applicant states that its services relate to making personal appointments while registrant’s services relate to healthcare. 16 TTABVUE 5. We consider the services as they are identified in the registration, Stone Lion, 110 USPQ2d at 1161, and the services in the registration are not limited to the healthcare field. Serial No. 86614170 - 18 - between the goods and services to support a finding of likelihood of confusion. In re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). If the goods and services are described broadly, and there is no limitation as to the nature, type, channels of trade or class of purchasers, it is presumed that the application and registration encompass all goods and services of the type described, that they move in all channels of trade normal for the goods and services, and that they are available to all usual classes of purchasers. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992). As noted earlier in this decision, Applicant’s goods are “downloadable software applications for making personal appointments” and registrant’s services are “software as a service (SAAS) services featuring software for use by business and their customers, patrons and patients … for creating, monitoring and editing appointments, for creating and editing appointments and appointment reminders ….” Both Applicant’s goods and registrant’s services allow users to make personal appointments. The fact that one is a good (a downloadable software application) that accomplishes a particular function and the other is a software service for the same function does not distinguish Applicant’s goods from the services. The Examining Attorney submitted approximately ten third party registrations including “software” and “software as a service,” indicating that a single company may make its software products available to customers in both forms. Although such registrations are not evidence that the marks shown therein are in use or that the public is familiar with Serial No. 86614170 - 19 - them, they nonetheless have probative value to the extent that they serve to suggest that the goods and services listed therein are of a kind which may emanate from a single source under a single mark. In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988). See, e.g., the following registrations submitted with the November 28, 2016 Office Action:33 Reg. No. Goods and Services in Registration 3839237 Class 9: Computer software used in healthcare to allow patients to view and request changes of their medical record, request appointments, pay their bill, view or print their results and retrieve other personal healthcare information. Class 42: Providing on-line non-downloadable software used in healthcare to allow patients to view and request changes of their medical record, request appointments, pay their bill, view or print their results and retrieve other personal healthcare information. 3840487 Class 9: Computer software for allowing modeling agencies to manage scheduling, booking, and accounting, and for uploading and downloading text and images over a computer network. Class 42: Providing on-line non-downloadable software for scheduling and booking events and appointments and for performing accounting functions all for use by modeling agencies and their clients. 2970694 Class 9: Downloadable computer software for facilitating the scheduling of appointments for blood banks and blood centers. Class 42: Providing temporary use of on-line non-downloadable software for facilitating the scheduling of appointments for blood banks and blood centers. 4592422 Class 9: Computer software for use in scheduling appointments. Class 42: Providing temporary use of on-line non-downloadable software for use in scheduling appointments. 4610475 Class 9: Computer software for instant appointment scheduling, creating appointment waiting lists, setting up reminders, establishing secure communications, providing special offers, sharing lab results, enabling video conferencing, and collaboration and sharing of other 33 TSDR 115-144. Serial No. 86614170 - 20 - content associated with the relationship between a consumer and a service provider. Class 42: Providing a website featuring non-downloadable software for instant appointment scheduling, creating appointment waiting lists, setting up reminders, establishing secure communications, providing special offers, sharing lab results, enabling video conferencing, and collaboration and sharing of other content associated with the relationship between a consumer and a service provider. In addition, the Examining Attorney submitted a webpage from https://www.clickbook.net offering both scheduling software and a downloadable software application for scheduling appointments.34 In view of the foregoing, and because Applicant has not contested the similarity of the goods and services in its brief, we find that the du Pont factor regarding the similarity of the goods favors a finding of likelihood of confusion. Channels of Trade and Classes of Consumers Applicant has not commented on the Examining Attorney’s assertion that “it is highly likely that applicant’s downloadable software program and registrant’s software as a service would appear in the same channels of trade and/or be advertised together.”35 It is apparent that customers obtain downloadable software through the internet, and also obtain access to software as a service through internet access to the purveyor’s websites. Moreover, because both registrant’s services and Applicant’s goods offer the scheduling of appointments, and there are no trade channel or 34 November 28, 2016 Office Action, TSDR 97 (“ClickBook free appointment scheduling software downloads instantly into any browser and won’t slow down or interfere with your computer’s performance”; and “the free online scheduling software is available via a mobile app.”). 35 Examining Attorney’s brief at 12, 15 TTABVUE 16. Serial No. 86614170 - 21 - purchaser restrictions in the identifications, we find it likely that the same purchasers who are considering registrant’s service, which includes “software as a service (SAAS) services featuring” appointment scheduling, will also consider Applicant’s software as an alternative. We therefore find the du Pont factor regarding the similarity of trade channels and classes of purchasers overlap. Balancing the Factors After considering all of the du Pont factors for which there has been evidence or argument, including evidence and arguments not specifically mentioned in this decision, we find that Applicant’s mark and registrant’s mark SOLUTIONREACH are very similar, Applicant has not established any substantial weakness in registrant’s mark due to use by third parties, the goods and services are related and the classes of purchasers and trade channels overlap. We therefore find that the mark REACH for “downloadable software applications for making personal appointments” is likely to cause confusion with the mark SOLUTIONREACH for “software as a service (SAAS) services featuring software for use by business and their customers, patrons and patients … for creating, monitoring and editing appointments, for creating and editing appointments and appointment reminders … .” Decision: The refusal to register under Section 2(d) is affirmed as to the goods in Class 9. The application will proceed to registration in Class 35 in due course.