DivX, Inc.v.Calyptix Security Corporation

Trademark Trial and Appeal Board

Sep 23, 2010

No. 91178083 (T.T.A.B. Sep. 23, 2010)

Mailed: 9/23/10

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

DivX, Inc.
v.
Calyptix Security Corporation
_____

Opposition No. 91178083
to application Serial Nos. 78829354, 78868288 and 78868291
_____

Jane Shay Wald of Irell & Manella for DivX, Inc.

James M. Harrington of The Harrington Practice for Calyptix
Security Corporation.
______

Before Quinn, Bucher and Zervas, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Calyptix Security Corporation (“applicant”) filed
applications to register the marks DYVAX (standard
characters),1 DYVAX PROTECTED (standard characters)
(“PROTECTED” disclaimed),2 and the mark shown below
(“PROTECTED” disclaimed)3

1 Application Serial No. 78829354, filed March 4, 2006, alleging
a bona fide intention to use the mark in commerce.
2 Application Serial No. 78868291, filed April 24, 2006, alleging
a bona fide intention to use the mark in commerce.
3 Application Serial No. 78868288, filed April 24, 2006, alleging
a bona fide intention to use the mark in commerce.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91178083
2

all for the following goods:
computer hardware; software for securing
computer networks, namely, for
preventing unauthorized access to and
use of computer networks, for virus and
malware prevention, for blocking and
filtering unsolicited commercial e-mail
and unauthorized content traffic, for
enforcing network use policies, and for
establishing virtual private networks.

DivX, Inc. (“opposer”) opposed registration under
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on
the ground that applicant’s mark, when used in connection
with applicant’s goods, so resembles opposer’s previously
used and registered DIVX and DIVX “formative” marks for
computer software and related services as to be likely to
cause confusion.
Applicant, in its answer, denied the salient
allegations of likelihood of confusion.
The record consists of the pleadings; the files of the
involved applications; and trial testimony, with related
exhibits, taken by opposer.4 Applicant neither took
testimony nor offered any other evidence. Only opposer
filed a brief.

4 Although opposer’s testimony deposition was marked
“confidential,” in its brief opposer indicated that the testimony
“is not filed under seal.” (Brief, p. 3).
Opposition No. 91178083
3
Opposer is a digital media company engaged in the
development of computer software, focusing on content
security (as for example, digital rights management that
protects files generated by the motion picture industry).
Opposer commenced use of its DIVX mark in 2000. According
to Lee Milstein, opposer’s vice president of business and
corporate development, the term “DivX” is not derived from
any words, and is not an acronym. Opposer’s encrypted
content software is interoperable with computer hardware and
consumer electronics. The manufacturers of consumer
electronic products (e.g., Sony, Samsung and LG) work with
opposer to create this interoperability and, after testing,
these manufacturers may designate their goods as “DivX
Certified.” These products that include the software, as
for example, DVD players, digital televisions, digital
cameras, mobile telephones and the like, are then sold to
consumers through big-box retailers. Over 25 million
hardware products incorporating opposer’s technology have
been sold in the United States by opposer’s licensees; all
of the products display one of opposer’s DIVX marks that is
visible to consumers. Opposer also sells its software
directly to consumers who are end-users desiring to create
and play back files that are in the DivX format. Mr.
Milstein estimates that consumers in the United States have
downloaded opposer’s software approximately 80 million
Opposition No. 91178083
4
times. Opposer also licenses use of the DivX format to the
creators and sellers of online content. Opposer’s security
solutions are used by the motion picture industry as
opposer’s software protects copyright holders against
unauthorized copying and illegal distribution without
limiting where, how or when consumers may enjoy their video.
Opposer’s security features are promoted on its own website
as well as through third-party online retailers of content.
Opposer has over 200 different business partners that are
distributing opposer’s products in the United States; over
one thousand different products currently are distributed
under the marks via opposer’s partners and licensees.
Opposer has established its standing. Mr. Milstein
testified as to opposer’s use and registrations of its DIVX
marks. In particular, opposer has properly made its pleaded
registrations of record (see infra) and, further, has shown
that it is not a mere intermeddler. Opposer’s use and
registrations of its marks establish that opposer has
standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170
F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982).
Opposer owns the following registrations:

Opposition No. 91178083
5
DIVX (typed form) for “on-line downloadable computer
software for broadband video transfer” (in International
Class 9), and “licensing of computer software” (in
International Class 35);5

DIVX CERTIFIED (typed form)(“CERTIFIED” disclaimed) for
“computer hardware and software for the receipt and display
of broadcast video, audio, and digital data signals” (in
International Class 9);6 and “testing, analysis and
evaluation of the goods of others for the purpose of
certification” (in International Class 42)7;

DIVX ULTRA (standard character form) for “testing, analysis
and evaluation of the goods of others for the purpose of
certification” (in International Class 42);8 and

DivX Connected (standard character form) for “computer
hardware and software for downloading, transferring and
sharing audio, video and other multimedia content among

5 Registration No. 2671143, issued January 7, 2003 under the
provisions of Section 2(f); Section 8 affidavit accepted, Section
15 affidavit acknowledged.
6 Registration No. 3356851, issued December 18, 2007 pursuant to,
in part as to “DIVX”, the provisions of Section 2(f).
7 Registration No. 2857603, issued June 29, 2004 pursuant, in
part as to “DIVX”, to the provisions of Section 2(f); Section 8
affidavit accepted, Section 15 affidavit acknowledged.
8 Registration No. 3432805, issued May 20, 2008.
Opposition No. 91178083
6
networked devices and devices that share a common
communications protocol” (in International Class 9).9
In view of opposer’s ownership of these valid and
subsisting registrations, there is no issue regarding
opposer’s priority. King Candy, Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Thus, the only issue to decide herein is likelihood of
confusion.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion issue.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). Opposer must establish that there is
a likelihood of confusion by a preponderance of the
evidence. In any likelihood of confusion analysis, however,
two key considerations are the similarities between the
marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). These factors,
and the other relevant du Pont factors in the proceeding now
before us are discussed below.
Opposer claims that “DIVX is an extremely well-known
mark.” (Brief, p. 18). To the extent that this claim may

9 Registration No. 3552182, issued December 23, 2008, pursuant
to, in part as to “DivX,” the provisions of Section 2(f).
Opposition No. 91178083
7
be construed as a claim of fame, we begin with this du Pont
factor. Fame of the prior mark plays a dominant role in
likelihood of confusion cases featuring a famous mark. Bose
Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d
1303 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d
1322, 54 USPQ2d 1894 (Fed. Cir. 2000); and Kenner Parker
Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d 350, 22
USPQ2d 1453 (Fed. Cir. 1992). Because of the extreme
deference accorded to a famous mark in terms of the wide
latitude of legal protection it receives, and the dominant
role fame plays in the likelihood of confusion analysis, it
is the duty of the party asserting fame to clearly prove it.
Lacoste Alligator S.A. v. Maxoly Inc., 91 USPQ2d 1594, 1597
(TTAB 2009); and Leading Jewelers Guild Inc. v. LJOW
Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007).
The record establishes that opposer has enjoyed a
degree of success with its goods and services sold under the
DIVX marks, and that there has been appreciable promotion
under the marks. However, opposer has not provided specific
dollar figures for its sales or advertising expenses, nor
has opposer placed its degree of success in any context.
See Bose Corp. v. QSC Audio Products Inc., 63 USPQ2d at
1309. We find, therefore, that the record falls short of
proving fame as contemplated by case law. Thus, while we
find that opposer’s DIVX mark is well known in the software
Opposition No. 91178083
8
field, we decline to confer on it, based on the record
before us, the exalted status of “famous.”
We next direct our attention to the ninth du Pont
involving a “family” of marks. Opposer at various points in
its brief refers to its “family” of DIVX marks. However,
opposer did not plead in the notice of opposition ownership
of a family of marks, and Mr. Milstein did not specifically
make such a claim or otherwise testify as to any asserted
family of marks. Accordingly, opposer’s claim in its brief
that it owns a family of DIVX marks has not been considered
in making our determination herein.
We hasten to add that, in any event, opposer has not
established a family of DIVX marks. In the past, the Board
has looked at whether the marks asserted to comprise a
“family” have been used and advertised in promotional
material or used in everyday sales activities in such a
manner as to create common exposure and, thereafter,
recognition of common ownership based upon a feature common
to each mark. American Standard, Inc. v. Scott & Fetzer
Co., 200 USPQ 457, 461 (TTAB 1978).
We obviously recognize that opposer uses no less than
four different DIVX marks in connection with its software.
The use of four DIVX marks is, of course, sufficient to
comprise a family. This fact, however, is not the end of
the story. That is, the mere fact of adoption, use and/or
Opposition No. 91178083
9
registration of four DIVX marks does not in itself prove
that a family of marks exists. J & J Snack Foods Corp. v.
McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889 (Fed. Cir.
1991); Polaroid Corp. v. Richard Mfg. Co., 341 F.2d 150, 144
USPQ 419 (CCPA 1965); Trek Bicycle Corp. v. Fier, 56 USPQ2d
1527, (TTAB 2000); and Consolidated Foods Corp. v. Sherwood
Medical Industries, Inc., 177 USPQ 279 (TTAB 1973).
Although the record reveals some conjoint use of various
combinations of opposer’s marks, the evidence falls short of
showing that a family of marks has been promoted together.
Accordingly, we find, based on the record before us,
that opposer has not established a family of DIVX marks.
Inasmuch as we are not considering opposer’s belated
claim of a family of marks, the likelihood of confusion
determination rests on a comparison of each of opposer’s
marks, and the goods and/or services offered thereunder,
with each of applicant’s marks and the goods set forth in
the applications. However, for purposes of our decision in
this proceeding, we will focus our analysis on opposer’s
registered marks that cover software: DIVX for “on-line
downloadable computer software for broadband video
transfer”; DIVX CERTIFIED for “computer software for the
receipt and display of broadcast video, audio, and digital
data signals”; and DivX Connected for “computer software for
downloading, transferring and sharing audio, video and other
Opposition No. 91178083
10
multimedia content among networked devices and devices that
share a common communications protocol.”
In comparing the marks under the first du Pont factor,
we examine the similarities and dissimilarities of the marks
in their appearance, sound, meaning, and commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1694 (Fed. Cir. 2005). 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 their entireties that confusion as to the source
of the goods offered under the respective marks is likely to
result.
In addition to the mark DIVX standing alone, opposer’s
marks include DIVX CERTIFIED and DivX Connected.
Applicant’s marks, in addition to the mark DYVAX standing
alone, include DYVAX PROTECTED in both standard character
form and in a logo. With respect to the parties’ composite
marks, it is well settled that 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. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985) (“There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
Opposition No. 91178083
11
particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.”).
As to opposer’s composite marks (all in typed or
standard character form), each is dominated by DIVX, which
is the first portion of the mark. Purchasers in general are
inclined to focus on the first word or portion in a
trademark. Presto Products, Inc. v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the
first part of a mark which is likely to be impressed upon
the mind of a purchaser and remembered”). See Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 73 USPQ2d at 1692. Further, DIVX is likely the more
distinctive portion relative to the respective “CERTIFIED”
and “Connected” portions.10 The DIVX portion is the one
most likely to be remembered by purchasers, and most likely
to be used in calling for opposer’s computer software.
The same type of analysis applies to each of

10 We take judicial notice of the following dictionary
definitions: “certified”: “guaranteed; reliably endorsed”; and
“connected”: “united, joined, or linked; having a connection.”
The American Heritage Dictionary of the English Language (4th ed.
2006). The terms are at least highly suggestive, if not merely
descriptive (“CERTIFIED” has been disclaimed). In the past,
merely descriptive matter that is disclaimed has been accorded
subordinate status relative to the more distinctive portions of a
mark. In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1533-34 (Fed. Cir. 1997).
Opposition No. 91178083
12
applicant’s composite marks, whether in standard characters
or logo form. In each of these marks, DYVAX is the first
portion and is the dominant portion, relative to the term
“PROTECTED” and/or the other design features of applicant’s
logo mark. In each instance, the word “PROTECTED” is
disclaimed.11 See In re Dixie Restaurants Inc., 41 USPQ2d
at 1533-34. In logo marks comprising words and a design,
the words are normally accorded greater weight because the
words are likely to make an impression upon purchasers,
would be remembered by them, and would be used by them to
request the goods. In re Appetito Provisions Co., 3 USPQ2d
1553, 1554 (TTAB 1987); and Kabushiki Kaisha Hattori
Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985). See
also Giant Food, Inc. v. Nation’s Food Service, Inc., 710
F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983). In applicant’s
logo mark, the word “PROTECTED” appears below DYVAX and in
much smaller type font, clearly relegating the word to a
subordinate role in the mark. Purchasers would be inclined
to focus on the DYVAX portion in each of applicant’s
composite marks, and is the portion most likely to be
remembered by them, and most likely to be used in calling
for applicant’s computer software.

11 The term “protected” is defined as “defended or guarded from
attack.” The American Heritage Dictionary of the English
Language (4th ed. 2006).
Opposition No. 91178083
13
In view of the above, in considering the marks, the
critical comparison is between opposer’s DIVX and
applicant’s DYVAX, whether standing alone as a mark or as
the dominant first portion of a composite mark. In terms of
appearance, DIVX and DYVAX are similar, sharing three
letters. As to sound, when asked how opposer’s DIVX mark is
pronounced, Mr. Milstein indicated that the marks sound
“very similar...regardless of how you pronounce the vowel.”
(Milstein dep., p. 65). Although there is no correct
pronunciation of a trademark, it is reasonable to expect
that some consumers likely will vocalize them in a similar
manner. The “DI-” portion of opposer’s mark, and the “DY-”
portion of applicant’s mark can be pronounced similarly with
an “eye” sound, as in “dye.” We also recognize that the “I”
in opposer’s DIVX alternatively may be pronounced as a soft
vowel, and in those cases, the marks may sound somewhat
different. In any event, both DIVX and DYVAX end in the
letter “X,” which further contributes to the similar sound
of the marks.
As to meaning, both DIVX and DYVAX would appear to be
coined, and it is unknown what meaning purchasers are likely
to ascribe to the respective marks.
Given the similarities between the marks in sound and
appearance, opposer’s DIVX marks and applicant’s DYVAX marks
engender similar overall commercial impressions.
Opposition No. 91178083
14
In sum, we find that the similarities between the
parties’ marks outweigh any differences. Accordingly, the
first du Pont factor supports opposer’s position that there
is a likelihood of confusion.
Insofar as the goods are concerned, it is well
established that the goods of the parties need not be
similar or competitive, or even offered through the same
channels of trade, to support a holding of likelihood of
confusion. It is sufficient that the respective goods of
the parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods are such that they would or could be encountered by
the same persons under circumstances that could, because of
the similarity of the marks, give rise to the mistaken
belief that they originate from the same source. See Hilson
Research, Inc. v. Society for Human Resource Management, 27
USPQ2d 1423 (TTAB 1993); and In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The issue,
of course, is not whether purchasers would confuse the
goods, but rather whether there is a likelihood of confusion
as to the source of the goods. In re Rexel Inc., 223 USPQ
830 (TTAB 1984). The question of likelihood of confusion
herein must be determined based on an analysis of the goods
recited in applicant’s applications vis-à-vis the goods
identified in opposer’s pleaded registrations. Canadian
Opposition No. 91178083
15
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1783 (Fed. Cir. 1992.
As indicated earlier, we will focus on the parties’
software. Opposer’s registered marks cover the following:
“on-line downloadable computer software for broadband video
transfer; computer software for the receipt and display of
broadcast video, audio, and digital data signals; and
computer software for downloading, transferring and sharing
audio, video and other multimedia content among networked
devices and devices that share a common communications
protocol.” Applicant is attempting to register its marks
for “software for securing computer networks, namely, for
preventing unauthorized access to and use of computer
networks, for virus and malware prevention, for blocking and
filtering unsolicited commercial e-mail and unauthorized
content traffic, for enforcing network use policies, and for
establishing virtual private networks.”
Both parties’ computer software addresses security
concerns. Although opposer’s identifications of goods do
not specifically set forth a security function, software for
downloading, transferring, sharing and displaying multimedia
content often incorporates security features, a point
confirmed by opposer. Mr. Milstein testified that every
piece of software sold by opposer includes security
features. According to Mr. Milstein, the opposer’s software
Opposition No. 91178083
16
“incorporates the decryption end of the security chain.”
Opposer further “license[s] our technology for encryption to
customers in the United States so that their content can be
encrypted. And we license the technology to the online
retailers so that they can distribute content in the
encrypted format, and that completes that portion of the
security chain for software.” (Milstein dep., pp. 25-26).
Exhibit 1 of Mr. Milstein’s testimony concerning “Content
Distribution” reads, in part, as follows:
The DivX® Digital Rights Management
(DRM) solution enables secure digital
distribution of DivX video through our
content licensing platform for playback
on the computer and the range of DivX
Certified® consumer electronics
products. It protects the copyright
holders against unauthorized copying and
illegal distribution without limiting
where, how or when consumers may enjoy
their video. Flexible, secure and
nearly invisible to the end user, DivX
DRM was developed with MPAA [Motion
Picture Association of America] and
Hollywood studios’ input to protect
copyrights online and in devices while
delivering a seamless user experience.

Opposer owns patents relating to software security
features, and opposer extensively promotes the security
features of its software, especially to online retailers of
content and to content providers like movie studios. In the
words of Mr. Milstein, “[s]ecurity is an absolute
requirement, and we push and market our features very
strongly with them.” (Milstein dep., p. 29). The security
Opposition No. 91178083
17
features are also part of each of the consumer electronic
products that are sold with opposer’s technology as the
hardware “incorporates the decryption aspects of the
security protocols and the digital rights management.”
(Milstein dep., p. 28). “[O]ur encryption solutions are for
use across computer networks. It consists of several
components. There’s a back-end encryption tool. There’s a
storefront for the sale of content. There’s a domain-based
rights management system, and those are all networked
together and have to talk securely.” (Milstein sep., p.
60).
Although the parties’ security software may be
specifically different in overall purpose or function
(security of content versus security of a computer network),
the respective goods incorporate security features. And,
applicant’s software functions, at least in part, to filter
“unauthorized content traffic.” We find that the goods are
sufficiently related for purposes of the likelihood of
confusion analysis.
Given that neither party’s identifications include
limitations on trade channels, it is presumed that the
identified goods are offered in all channels of trade which
would be normal therefor, and that they would be purchased
by all potential buyers thereof. In re Elbaum, 211 USPQ
639, 640 (TTAB 1981). Accordingly, we presume that the
Opposition No. 91178083
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parties’ software travels in the same or similar trade
channels, as in direct sales to purchasers.
As to classes of purchasers, applicant’s software, as
identified in the applications, appears to be directed to
entities with a computer network and, more specifically, to
administrators of those computer networks. Because there
are no limitations in opposer’s identifications of goods,
purchasers of opposer’s software are presumed to include
entities with a computer network and, more specifically, the
network administrators. Based on the identifications of
goods, the overlap in customers includes computer network
administrators who deal, in all likelihood, both with
network security and the security of online content. These
administrators would be exposed to both types of software.
To the extent that the common customers of the parties’
goods may be sophisticated, even careful purchasers are
likely to be confused when encountering similar products
offered under similar marks. As stated by our primary
reviewing court, “[t]hat the relevant class of buyers may
exercise care does not necessarily impose on that class the
responsibility of distinguishing between similar trademarks
for similar goods. ‘Human memories even of discriminating
purchasers ... are not infallible.’” In re Research and
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir.
1986) quoting Carlisle Chemical Works, Inc. v. Hardman &
Opposition No. 91178083
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Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970).
The similarity between the marks and the goods in this
proceeding outweigh any sophisticated purchasing decision.
See HRL Associates, Inc. v. Weiss Associates, Inc., 12
USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v.
HRL Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed.
Cir. 1990) (similarities of goods and marks outweigh
sophisticated purchasers, careful purchasing decision, and
expensive goods).
In view of the above, the similarity between the goods,
trade channels and class of purchasers weigh in favor of a
finding of likelihood of confusion.
Mr. Milstein testified that opposer is unaware of any
actual confusion in the marketplace. (Milstein dep., p.
68). Mr. Milstein hinted at a reason, namely that
applicant’s sales are “quite small.” Id. A showing of
actual confusion would of course be highly probative, if not
conclusive, of a likelihood of confusion. The opposite is
not true, however. The lack of evidence of actual confusion
carries little weight. J.C. Hall Co. v. Hallmark Cards,
Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). In any
event, the involved applications are based on an intention
to use the mark, and the record is devoid of probative
evidence regarding the extent of use, if any, by applicant.
Thus, we are unable to gauge whether there has been a
Opposition No. 91178083
20
meaningful opportunity for confusion to have occurred in the
marketplace. Moreover, as often stated, proof of actual
confusion is not necessary to establish likelihood of
confusion. Giant Food, Inc. v. Nation’s Foodservice, Inc.,
218 USPQ at 396. Accordingly, the eighth du Pont factor of
the length of time during and conditions under which there
has been contemporaneous use without evidence of actual
confusion is considered neutral.
The du Pont factors, on balance, weigh in favor of a
finding of likelihood of confusion. We conclude that
opposer’s DIVX, DIVX CERTIFIED and DivX Connected marks and
applicant’s DYVAX and DYVAX PROTECTED marks, and the
computer software products sold under the marks, are
sufficiently similar that purchasers thereof are likely to
mistakenly believe that the goods originated with or are
somehow associated with or sponsored by the same entity.
Lastly, to the extent that there is any doubt about our
finding of a likelihood of confusion, we resolve that doubt,
as we must, in favor of opposer as the prior user and
registrant. See Giant Food, Inc. v. Nation’s Foodservice,
Inc., 218 USPQ at 395.
Decision: The opposition is sustained, and
registration to applicant is refused in each application.