FY Assets LLC

Trademark Trial and Appeal BoardJan 28, 2021

88243376 (T.T.A.B. Jan. 28, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: January 28, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re FY Assets LLC Serial No. 88243376 _____ Alexander Drapatsky of Astor Law Group, P.C. for FY Assets LLC. Brittany Lee-Richardson, Trademark Examining Attorney, Law Office 116, Elizabeth Jackson, Managing Attorney. _____ Before Wolfson, Kuczma and English, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: FY Assets LLC (“Applicant”) seeks registration on the Principal Register of the mark TAKE BACK YOUR BODY (standard characters) for “medical clinics” in International Class 44.1 The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark 1 Application Serial No. 88243376; filed December 27, 2018 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intent to use the mark in commerce. During prosecution, Applicant deleted “cosmetic surgery services” from its recitation of services. Serial No. 88243376 - 2 - TAKE BACK YOUR BODY (standard characters) for “fitness boot camps; conducting fitness classes; personal fitness training services; physical fitness conditioning classes; physical fitness studio services, namely, providing group exercise instruction, equipment, and facilities; physical fitness training services; providing fitness instruction services in the field of yoga, physical fitness conditioning, barre, cycling, rowing, and bootcamps [sic]; providing an interactive website featuring information and links relating to fitness; providing personal training and physical fitness consultation to corporate clients to help their employees make physical fitness, strength, conditioning, and exercise alterations in their daily living; providing personal training and physical fitness consultation to individuals to help them make physical fitness, strength, conditioning, and exercise improvement in their daily living” in International Class 41.2 After the refusal became final, Applicant appealed. Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. I. Evidence and Evidentiary Issues During prosecution, the Examining Attorney submitted printouts from third- party websites showing the services of Applicant and Registrant offered under the same marks,3 third-party registrations for the same marks covering the services of 2 Registration No. 5726512; registered April 16, 2019. 3 November 12, 2019 Office Action, TSDR 8-34; January 13, 2020 Final Office Action, TSDR 7-39. Citations to the prosecution record are to the Trademark Status & Document Retrieval (“TSDR”) system by page number in the downloadable .pdf versions of the documents. All other citations are to TTABVUE, the Board’s online docketing system. Serial No. 88243376 - 3 - both Applicant and Registrant,4 and printouts from the websites of third-party medical clinics.5 Applicant did not make any evidence of record during prosecution, but identified four third-party registrations in its appeal brief and attached to its brief a website screenshot.6 The Examining Attorney objects that citing third-party registrations does not make them of record and, in any event, such evidence is untimely.7 The Examining Attorney “does not object” to the screenshot Applicant submitted contingent on the Board considering additional evidence from the same website that the Examining Attorney attached to her brief.8 The third-party registrations are untimely because Applicant did not submit copies of them or their electronic equivalent before appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (“The record in the application should be complete prior to the filing of an appeal.”); In re City of Houston, 101 USPQ2d 1534, 1536 n.5 (TTAB 2012) (to make third-party registrations of record, an applicant must submit copies of the registrations themselves or printouts from the Office’s electronic databases). The 4 January 13, 2020 Final Office Action, TSDR 40-70. 5 Id. at 71-88. 6 The screenshot does not include the required URL address and date the page was downloaded. In re I-Coat Co., 126 USPQ2d 1730, 1733 (TTAB 2018) (Internet evidence is not properly of record in an ex parte appeal unless the URL address and date have been provided or the examining attorney does not object to the absence of this information). We need not determine whether any objection to this deficiency was waived or forfeited, however, because the Examining Attorney’s contingency was not met, as discussed more fully infra. 7 Examiner’s Statement, 6 TTABVUE 3-4. 8 Id. at 9, n.5. Serial No. 88243376 - 4 - Examining Attorney’s objection is therefore sustained. We have not considered this evidence. The Internet evidence attached to the briefs also is untimely. The Board may consider untimely evidence if the non-offering party: (i) does not object to the new evidence; and (ii) either discusses it or affirmatively treats it of record. TRADEMARK TRIAL AND APPEAL BOARD MANUAL (TBMP) § 1207.03 (2020) and cases cited therein. Applicant did not address the Examining Attorney’s supplemental evidence in a reply brief so we do not consider it,9 and because the Examining Attorney’s contingency has not been met, we also do not consider the Internet evidence attached Applicant’s appeal brief. II. Analysis Our determination under Section 2(d) of the Trademark Act is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on likelihood of confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co. Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We consider each DuPont factor for which there is argument and evidence.10 See In re 9 Applicant did not file a reply brief. 10 We need not, as Applicant asserts, consider all thirteen DuPont factors as not all of the factors are relevant. Appeal Brief, 4 TTABVUE 8. Applicant has conceded that the seventh, eighth, and twelfth DuPont factors (concerning the nature and extent of actual confusion, the length and conditions of concurrent use without actual confusion, and Applicant’s right to exclude others from using its mark, respectively) are inapplicable because Applicant has not used its mark. Id. at 16-17. Serial No. 88243376 - 5 - 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). However, “we focus our analysis on those factors we find to be relevant.” ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the services. See In re 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 [or services] 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 [or services].’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). We discuss these factors, and the other relevant DuPont factors below. A. First DuPont Factor: Similarity or Dissimilarity of the Marks Under the first DuPont factor, we consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); DuPont, 177 USPQ at 567. Applicant concedes Serial No. 88243376 - 6 - that the marks are identical.11 This weighs heavily in favor of a likelihood of confusion. In re Country Oven, Inc., 2019 USPQ2d 443903, at*4 (TTAB 2019). B. Second DuPont Factor: Similarity or Dissimilarity of the Services The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration[.]” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir 2018) (quoting DuPont, 177 USPQ at 567). Applicant argues that there is no likelihood of confusion because Applicant’s and Registrant’s services fall into different international classes and “there is no actual overlap” between the services.12 These arguments are irrelevant. Classification is merely an administrative act that has no bearing on the relatedness of goods or services. Id. (citing Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993)). Services also do not need to overlap or be directly competitive to support a finding of likelihood of confusion. In re RiseSmart, Inc., 104 USPQ2d 1931, 1934 (TTAB 2012). The evidence need only establish that the services are related in some manner, or the conditions surrounding their marketing are such that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the services emanate from a common source. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); In re RiseSmart, Inc., 104 USPQ2d at 1934; In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); In re Rexel, Inc., 223 USPQ 11 Id. at 8. 12 Id.; see also id. at 16. Serial No. 88243376 - 7 - 830, 831 (TTAB 1984). Moreover, because the marks are identical, the degree of similarity between the services required for confusion to be likely declines. DeVivo v. Ortiz, 2020 USPQ2d 10153, at *11 (TTAB 2020) (citing Orange Bang, Inc. v. Olé Mexican Foods, Inc., 116 USPQ2d 1102, 1117 (TTAB 2015)). A “medical clinic” is a facility where outpatients are cared for and diagnosed.13 The Examining Attorney argues that “medical clinic” services are related to Registrant’s physical fitness services “because they are services targeted at improving one’s health.”14 To support this position, the Examining Attorney submitted printouts from websites showing the third parties below using the same marks to identify both medical clinics and physical fitness services:  TRIHEALTH Fitness & Health Pavilion: “The health and fitness club … brings together a full range of medically sound equipment and programs as well as credentialed health and fitness professionals from Bethesda and Good Samaritan hospitals. Expert guidance from professional personnel, innovative health enhancement programs and the integration of medical, rehabilitative, holistic and fitness services are all delivered in a clean, service oriented environment. As part of its integrated services, the Pavilion offers” services including on-site medical staff, personal training, group fitness classes, corporate health, physical therapy, internal medicine, urgent care, and emergency care.15 13 Pursuant to the Examining Attorney’s request, we take judicial notice of the AMERICAN HERITAGE DICTIONARY definition of “clinic” defined as “[a] facility, often associated with a hospital or medical school, that is devoted to the diagnosis and care of outpatients” and “[a] medical establishment run by several specialists working in cooperation and sharing the same facilities.” Examiner’s Statement, 6 TTABVUE 14 and 19. In re Red Bull GmbH, 78 USPQ2d 1375, 1377-78 (TTAB 2006) (Board may take judicial notice of dictionary definitions including online dictionaries that exist in printed format or have regular fixed editions). 14 January 13, 2020 Final Office Action, TSDR 4. 15 November 12, 2019 Office Action, TSDR 8-17. Applicant asserts that “the medical clinic aspect of TRIHEALTH appears to be owned by a different entity” so this evidence does not show “one party offering both the services of the Cited Mark and [Applicant].” Appeal Brief, 4 TTABVUE 14. As explained above, we have not considered the webpage screenshot Applicant submitted to support this assertion. But even if we accept Applicant’s assertion that the TRIHEALTH services are offered by different entities, this does not preclude that Serial No. 88243376 - 8 -  SPECTRUM HEALTH LAKELAND offering medical and health and wellness services, including a medical fitness center “designed primarily for individuals with medical risk factors due to injury, illness, disease, disability or age.”16  DEKALB Regional Medical Center offering a range of services, including an emergency department, cardiac care, women’s health, wound care, and a fitness center.17  RIVERSIDE Medical Center offering urgent care, a flu clinic, yoga, and health and wellness coaches. “Referrals to one of our [health and wellness] coaches can be placed by physicians, Case Managers, or Health Education Department. During the sessions, the Care Team will help patients achieve their desired health and wellness related goals by developing a personalized action plan” which “may include” physical activity, medication, stress management and emotional health, and fall prevention, “as well as other areas brought forward by the patient.”18  CONWAY Regional Health Center offering “comprehensive care” including critical care services, emergency services, heart care, respiratory therapy, women’s services, wound healing services, and a health and fitness center. “Conway Regional Health & Fitness Center is a 70,000-square foot hospital- based health and wellness center which combines medical technology and training with the latest techniques in rehabilitation, fitness and wellness.”19 This evidence supports that Applicant’s and Registrant’s services are the types of services to be offered under the same mark. See, e.g., In re C.H. Hanson Co., 116 USPQ2d 1351, 1355-56 (TTAB 2015) (relatedness found where Internet evidence demonstrated goods commonly emanated from the same source under a single mark). It also demonstrates that the services are complementary as the third parties there is unity of control over the use of the TRIHEALTH mark in which case the services emanate from a common source. 16 November 12, 2019 Office Action, TSDR 23-34. 17 Id. at 18-22; January 13, 2020 Final Office Action, TSDR 7-12. 18 January 13, 2020 Final Office Action, TSDR 13-30. 19 Id. at 31-39. Serial No. 88243376 - 9 - promote integrating medical care and physical fitness to provide comprehensive patient care. The Examining Attorney also submitted ten use-based registrations issued to different entities covering the services of both Applicant and Registrant:20  Registration No. 3434297– BELLIN HEALTH for services including “providing fitness and exercise facilities; physical fitness consultation; physical fitness instruction; health club services, namely, providing instruction and equipment in the field of physical exercise” and “medical clinics”;  Registration No. 3843506 – MY HEALTH. MY HOSPITAL. for, among other services, “providing fitness and exercise facilities” and “medical clinics”;  Registration No. 3348549 – for, among other services, “providing fitness and exercise facilities… providing instruction in the field of health and wellness” and “medical clinics”;  Registration No. 4426215 – for services including “personal coaching services in the field of medical services; yoga instruction; providing fitness and exercise facilities; physical fitness and instruction; physical fitness training of individual groups; physical fitness conditioning classes” and “medical clinics”;  Registration No. 4264148 – WELLSTAR for services including “providing fitness facilities and exercise facilities” and “medical clinics”;  Registration No. 4573082 – SAUK PRAIRIE for, among other services, “personal training and teaching; personal training services; physical fitness instruction; providing fitness and exercise facilities” and “medical clinics”;  Registration No. 4886650 – PREMISE HEALTH for services including “educational services, namely, conducting classes, workshops and seminars in the fields of healthcare, chronic health condition management, nutrition, and fitness; fitness and exercise studio services, namely equipment and facilities for group and individual exercise”; “counseling services in the fields of … nutrition and fitness for private employer populations”; “providing a website 20 Id. at 40-70. Serial No. 88243376 - 10 - featuring health care information via a global communications network not directed to emergency responders and medical personnel” and “medical clinics providing primary, urgent, occupational, dental and vision care for private employer populations”;  Registration No. 5411258 – THE FULL CIRCLE OF HEALTH MODEL for services including “personal training provided in connection with weight loss and exercise programs; personal training services, namely, strength and conditioning training; providing fitness and exercise facilities; providing personal training and physical fitness consultation to individuals to help them make physical fitness, strength, conditioning, and exercise improvement in their daily living; providing a website featuring information on exercise and fitness” and “medical clinics”;  Registration No. 5775580 – PRACTICE WITH PURPOSE for a range of fitness and exercise services, including “physical fitness conditioning classes; personal fitness training services and consultancy” and “medical clinics”; and  Registration No. 5931168 for OWENSBORO HEALTH for services including “wellness services, namely, providing fitness and exercise facilities” and “medical clinics.” Although registrations are not evidence that the marks are in use or that the public is familiar with them, they have probative value to the extent that they serve to suggest that the services listed therein are of a kind that may emanate from a single source. See, e.g., In re Guild Mortg. Co., 2020 USPQ2d 10279, at *4 (TTAB 2020) (“Copies of use-based, third-party registrations may help establish that the services are of a type which may emanate from a single source.”); In re RiseSmart, Inc., 104 USPQ2d at 1934 (citing Albert Trostel & Sons, 29 USPQ2d at 1785-86)). Applicant has advanced several arguments that the services are not related, none of which are persuasive. First, Applicant argues that the examples of third-party use “are dramatically outnumbered by the number of medical clinics that do not provide fitness classes and the number of fitness instruction businesses that do not provide Serial No. 88243376 - 11 - medical clinic services.”21 Applicant, however, has not submitted any evidence to support this assertion. We have only the Examining Attorney’s evidence showing that Applicant’s and Registrant’s services are the types of services to be offered under the same mark. Second, Applicant argues that “[b]eing a provider of medical services requires extensive formal education and training and require[s] doctors and nurses to be licensed by their respective state and other governmental agencies, whereas providers of fitness class instructions and boot camp classes require little, if any formal education or state licenses”; that “there is no indication that the owner of the [cited registration] is licensed or able to provide medical procedures to individuals”; and that “a reasonable consumer would not think a medical clinic would provide fitness classes nor would the reasonable consumer think that a fitness instruction business would engage in medical procedures.”22 These arguments miss the point. The issue is not whether Registrant provides both types of services or whether medical care is provided in fitness studios and vice versa. The issue is whether these services are related in a way that would cause a likelihood of confusion if Applicant were to use a mark for “medical clinics” that is identical to Registrant’s mark for its fitness instruction services. The evidence supports that the services are so related. Third, Applicant argues that “the Examining Attorney has submitted no evidence that the same customers encountering [Applicant’s and Registrant’s] services in the 21 Appeal Brief, 4 TTABVUE 10. 22 Id. at 10-11, 13. Serial No. 88243376 - 12 - same channels of trade would be confused by [Applicant’s] services and those of the Cited Mark.”23 We are not concerned with whether consumers will confuse the services, but rather whether there is a likelihood of confusion as to their source. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel, 223 USPQ at 831. In addition, the Examining Attorney need not submit direct evidence of consumer confusion. Cf. In re Loew’s Theaters, Inc., 769 F.2d 764, 226 USPQ 865, 868 (Fed. Cir. 2003) (“The practicalities of the limited resources available to the PTO are routinely taken into account in reviewing its administrative action.”). Evidence of third-party use and registration, as was submitted here, is routinely introduced in ex parte appeals to support the relatedness of goods and services. See, e.g., In re C.H. Hanson, 116 USPQ2d at 1356 (“[W]e find that these third-party use-based registrations, considered in conjunction with the Internet evidence, support the conclusion that the goods are related.”). Last, Applicant argues that “the relatedness of medical procedure services and fitness class services are not evident or well known” so “‘something more’ than the mere fact that the goods and services are used together must be shown.”24 While “something more” may be needed to demonstrate relatedness between goods and services, this case involves only services so “something more” is not required. In any event, the evidence demonstrates that the services are related. 23 Id. at 14. 24 Id. at 13. Serial No. 88243376 - 13 - In sum, the Examining Attorney has submitted persuasive evidence that Applicant’s and Registrant’s services commonly emanate from the same source and are complementary services. Accordingly, the second DuPont factor supports a finding that confusion is likely. C. Third DuPont Factor: Similarity or Dissimilarity of the Trade Channels and Classes of Consumers Applicant argues that the trade channels are different because Applicant’s “services are offered at its affiliated medical practice locations, whereas the fitness and boot camp exercise services [identified in the cited registration] are typically offered in gyms or public parks. [Applicant’s] medical services would never be offered in a gymnasium or public park and fitness or boot camp services are typically not offered at its affiliated medical practice locations.”25 Applicant has not submitted any evidence to support this assertion. In any event, the involved application and cited registration do not include any limitations as to trade channels or classes of consumers so we must presume that the services move in all the normal channels of trade for such services and are offered to all prospective consumers for those services. See, e.g., In re Guild Mortg., 2020 USPQ2d 10279, at *5; see also In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). The evidence showing the relatedness of the services demonstrates that the involved services may indeed be rendered by the same providers to some of the same individuals, namely, people seeking to better their overall health and fitness. 25 Id. at 15. Serial No. 88243376 - 14 - Accordingly, the similarity of trade channels and classes of consumers weighs in favor of a likelihood of confusion. D. Fourth DuPont Factor: Sophistication of the Consumers Applicant speculates that “[a]n individual needing a medical procedure by a licensed physician would generally be a sophisticated consumer who properly researches medical clinics, as opposed to making an impulse purchase of [Applicant’s] services.”26 There is no evidence of record that supports this assertion, but even if we were to presume that some patients of medical clinics are sophisticated about their medical care, we must make our determination based on the least sophisticated consumer. In re Guild Mortg., 2020 USPQ2d 10279, at *5. The record shows that medical clinics provide services to low-income and other disenfranchised communities where patients are unlikely to be particularly sophisticated or selective about their medical care.27 There also is no evidence to support that consumers of fitness services are particularly sophisticated. The fourth DuPont factor, therefore, is neutral. E. Fifth DuPont Factor: Fame of the Cited Mark Applicant asserts that the fifth DuPont factor “should be resolved in [its] favor” because there is no evidence that the cited mark is famous,28 but it is settled that the absence of evidence of fame is not significant in an ex parte proceeding. In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009). “[T]he owner of the cited 26 Id. 27 January 13, 2020 Final Office Action, TSDR 71-85. 28 Appeal Brief, 4 TTABVUE 15-16. Serial No. 88243376 - 15 - registration is not a party to this ex parte appeal, and the Examining Attorney is under no obligation to demonstrate fame of the cited mark.” In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016); see also In re Majestic Distilling, 65 USPQ2d at 1205 (“Although we have previously held that the fame of a registered mark is relevant to likelihood of confusion, DuPont, 177 USPQ at 567 (factor five), we decline to establish the converse rule that likelihood of confusion is precluded by a registered mark’s not being famous.”); In re Big Pig, Inc., 81 USPQ2d 1436, 1439 (TTAB 2006) (“It is not necessary that a registered mark be famous to be entitled to protection against a confusingly similar mark.”). Accordingly, we treat the fifth DuPont factor as neutral. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1086 (TTAB 2016) (“[I]n an ex parte appeal, the ‘fame of the mark’ factor is normally treated as neutral because the record generally includes no evidence as to fame.”). F. Sixth DuPont Factor: Number and Nature of Similar Marks in Use on Similar Services There is no evidence of similar marks in use on similar services. As discussed above, we give no consideration to the third-party registrations listed in Applicant’s brief, but even if we did, registrations are not evidence of use. In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016). G. Ninth DuPont Factor: Variety of Services on which the Cited Mark is or is not Used Under the ninth DuPont factor, when a registrant uses its mark for a wide range of goods or services, the registration should be given a wider scope of protection than Serial No. 88243376 - 16 - if the mark is used on a more narrow range of goods or services. We agree with Applicant that Registrant’s services are relatively narrow in that they are limited to physical fitness services. As such, the ninth DuPont factor weighs slightly against a finding of likely confusion. H. Tenth DuPont Factor: Market Interface between Applicant and Registrant Applicant “respectfully submits that the market interface between the two is extremely minimal and that this factor favors [Applicant].”29 Market interface does not concern trade channels, but rather concerns whether there has been any interaction between Applicant and Registrant regarding the involved mark such as a consent agreement, contractual provisions designed to preclude confusion, or an assignment. DuPont, 117 USPQ at 567. There is no evidence in the record regarding any market interface between Applicant and Registrant. Accordingly, this DuPont factor is neutral. I. Twelfth DuPont Factor: Whether the Potential for Confusion is De Minimis or Substantial Given that the marks are identical, the services are related, and the services may be accessed by some of the same individuals through the same trade channels, the potential for confusion is substantial. The twelfth DuPont factor supports a likelihood of confusion. 29 Id. at 17. Serial No. 88243376 - 17 - III. Conclusion We have considered all of the DuPont factors for which there is evidence or argument and find that there is a likelihood of confusion between the marks. With the exception of the ninth DuPont factor, all of the relevant DuPont factors support that Applicant’s mark for “medical clinics” is likely to be confused with Registrant’s identical mark for the physical fitness services identified in the cited registration. Decision: The refusal to register Applicant’s mark, TAKE BACK YOUR BODY, under Section 2(d) of the Trademark Act is affirmed.