HashCash Consultants LLC

Trademark Trial and Appeal Board

Apr 22, 2021

88731278 (T.T.A.B. Apr. 22, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: April 22, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re HashCash Consultants LLC
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Serial No. 88731278
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Francis J. Ciaramella of Francis John Ciaramella, PLLC,
for HashCash Consultants LLC.
Megan Aurand, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____

Before Zervas, Taylor and Adlin,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
HashCash Consultants LLC (“Applicant”) seeks registration on the Principal
Register of the standard character mark PAYBITO for “cryptocurrency exchange
services” in International Class 36.1

1 Application Serial No. 88731278 was filed on December 18, 2019, based on Applicant’s
allegation under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), of first use and use
of the mark in commerce on June 12, 2018.
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark is likely to cause confusion with the following two marks:
1. Registration No. 5438466 (issued on April 3, 2018) for the standard character
mark PAYBIT for;
Electronic commerce payment services, namely, establishing
funded accounts used to purchase goods and services on the
Internet; clearing and reconciling financial transactions via the
Internet; electronic payment processing services; payment
services, namely, transmission of bills and payments thereof via
the Internet; electronic funds transfer services; financial services,
namely, providing an online global exchange in the nature of
virtual currencies for trading and transacting; electronic banking
services; money transmission services, namely, currency transfer
services; cash management, namely, facilitating and tracking
transfers of electronic cash equivalents; providing trading and
investment services for a virtual currency; computerized financial
data services, namely, transaction authorization and settlement
services; electronic commerce payment processing services,
namely, processing electronic payments made through prepaid
cards and electronic accounts via a global computer network;
financial services, namely, providing a cloud-based digital wallet
that stores customer account information to access coupons,
vouchers, discounts, voucher codes and rebates at retailers and to
obtain loyalty or monetary rewards that can be credited to their
accounts via a global computer network; payment gateway
services, namely, authorizing and processing secure, real-time
and recurring payments; mobile payment services, namely,
processing electronic funds transfer via mobile computing devices
in International Class 36; and

2. Registration No. 5728348 (issued on April 16, 2019) for the composite word and
design mark for :
Electronic commerce payment services, namely, establishing
funded accounts used to purchase goods and services on the
Internet; financial services, namely, credit card and debit card
Serial No. 88731278
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transaction processing services; clearing and reconciling financial
transactions via the Internet; electronic payment processing
services, namely, providing electronic processing of digital and
virtual currency payments via the Internet; electronic funds
transfer services; financial services, namely, providing an online
global currency exchange in the nature of virtual currencies for
trading and transacting; banking services; savings account
services; electronic banking services; money transmission
services, namely, currency transfer services; foreign currency
services, namely, foreign exchange information services and
foreign exchange transactions; telephone, mobile phone and
online computer banking services; checking account services;
checking account services, namely, check clearing services;
certificate of deposit account services, namely, banking services
featuring provision of certificates of deposit; cash management,
namely, facilitating and tracking transfers of electronic cash
equivalents; providing currency trading and funds investment
services for a virtual currency; computerized financial data
services, namely, debt settlement services; electronic commerce
payment processing services, namely, processing electronic
payments made through prepaid cards and electronic accounts
via a global computer network; payment gateway services,
namely, authorizing and processing secure, real-time and
recurring payments made via credit cards; mobile payment
services, namely, processing electronic funds transfer via mobile
computing devices in International Class 36.2
After the final Office Action, Applicant requested reconsideration and appealed.
The Board issued an order stating, “action on the appeal is suspended and the
application is remanded to the examining attorney to consider the request for
reconsideration/amendment.”3 The Examining Attorney denied the request for
reconsideration and the Board then issued an order stating, “the appeal is resumed,”

2 Color is not claimed as a feature of Registrant’s composite mark, and the two registrations
issued to the same entity.
3 2 TTABVUE.
Serial No. 88731278
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and allowed Applicant time to file a brief.4 Applicant and the Examining Attorney
filed briefs.
1. Analysis
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion or mistake, or to deceive. 15
U.S.C. § 1052(d). Our determination of likelihood of confusion under Section 2(d) is
based on an analysis of all probative facts in the record that are relevant to the
likelihood of confusion factors set forth in In re E.I. du Pont 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., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We
have considered each DuPont factor that is relevant or for which there is argument
and evidence of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160,
1162-63 (Fed. Cir. 2019).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and goods or 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 and differences in the marks.”); see also In re

4 6 TTABVUE 1.
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i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus ... on dispositive factors, such as similarity of the marks and
relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
Because the registered standard character mark is closer to Applicant’s mark than
the registered composite word and design mark, we will focus our discussion on the
registered standard character mark. We need not decide the issue of likelihood of
confusion with respect to the composite mark because, to the extent that we
determine there is no confusion with the standard character mark, the design of the
composite mark further distinguishes the marks. On the other hand, if we determine
that confusion is likely with the standard character mark, there is no reason to decide
whether there is a likelihood of confusion with another less similar mark. See In re
Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
a. Similarity or Dissimilarity of the Services and Trade Channels
Our analysis begins with our consideration of “[t]he similarity or dissimilarity and
nature of the goods or services as described in an application or registration,” and
“the similarity or dissimilarity of established, likely-to-continue trade channels.” In
re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051-52 (Fed. Cir 2018)
(quoting DuPont, 177 USPQ at 567). See also Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014).
Serial No. 88731278
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We evaluate the relatedness of the respective services based on their
identifications in the subject application and cited registration. Stone Lion Capital
Partners, 110 USPQ2d at 1162; see also Octocom Sys. Inc. v. Hous. Comput. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion
that the question of registrability of an applicant’s mark must be decided on the basis
of the identification of goods [or services] set forth in the application regardless of
what the record may reveal as to the particular nature of an applicant’s goods [or
services], the particular channels of trade or the class of purchasers to which the sales
of goods [or services] are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473
F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the respective descriptions of
goods [or services]”). In the absence of limitations as to channels of trade or classes of
purchasers in the identification of services in the registration, the presumption is
that the services move in all trade channels normal for such services and are available
to all potential classes of ordinary consumers of such services. See In re I-Coat Co.,
126 USPQ2d 1730, 1737 (TTAB 2018); In re Melville Corp., 18 USPQ2d 1386, 1388
(TTAB 1991). When we consider the similarity of Applicant’s and Registrant’s
services, it is sufficient for a refusal based on likelihood of confusion that relatedness
is established for any item encompassed by Applicant’s identification of services in a
particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d
1406, 1409 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017).
Serial No. 88731278
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Applicant’s identification of services is “Cryptocurrency exchange services.” The
identification of services in the cited registration includes, “financial services,
namely, providing an online global exchange in the nature of virtual currencies for
trading and transacting.” “Cryptocurrency” is defined as “any form of currency that
only exists digitally, that usually has no central issuing or regulating authority but
instead uses a decentralized system to record transactions and manage the issuance
of new units, and that relies on cryptography to prevent counterfeiting and fraudulent
transactions.”5 An Internal Revenue Service webpage clarifies, “[c]ryptocurrency is a
type of virtual currency that utilizes cryptography to validate and secure transactions
that are digitally recorded on a distributed ledger, such as a blockchain.”6
Applicant submitted an entry from Wikipedia7 for “virtual currency” stating, “[a]
virtual currency … is a type of unregulated digital currency, which is issued and

5 MERRIAM-WEBSTER DICTIONARY, September 17, 2020 Office Action, TSDR pp. 2-9.
Citations to the briefs are to TTABVUE, the Board’s online docketing system. See Turdin v.
Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding
TTABVUE corresponds to the docket entry number, and any number(s) following TTABVUE
refer to the page number(s) of the docket entry where the cited materials appear. Page
references to the application record are to the downloadable .pdf version of the United States
Patent and Trademark Office’s Trademark Status & Document Retrieval (TSDR) system.
6 (https://www.irs.gov/businesses/small-businesses-self-employed/virtual-currencies,
accessed on April 15, 2021). We take judicial notice of this U.S. government webpage. See In
re Nieves & Nieves LLC, 113 USPQ2d 1639, 16452 (TTAB 2015) (“We take judicial notice of
… recent official U.S. government publications concerning Internet use in the United
States.”).
7 Wikipedia suffers from inherent limitations. The Board explained in In re IP Carrier
Consulting Grp., 84 USPQ2d 1028, 1032 (TTAB 2007):
There are inherent problems regarding the reliability of
Wikipedia entries because Wikipedia is a collaborative website
that permits anyone to edit the entries. In fact, the “About
Wikipedia” section of wikipedia.org warns users that articles can
Serial No. 88731278
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usually controlled by its developers and used and accepted among members of a
specific virtual community” and “a cryptocurrency is a digital currency using
cryptography to secure transactions and to control the creation of new currency units.
Since not all virtual currencies use cryptography, not all virtual currencies are
cryptocurrencies.”8 Applicant argues:
A cryptocurrency is by definition not necessarily a virtual
currency because it may be accepted across different
systems and in different communities. Consequently, a
virtual currency doesn’t necessarily use cryptography, and
therefore, virtual currencies are not necessarily
cryptocurrencies. For example, the Prior Owner, in offering
a virtual currency, may not be controlling the creation of
new currency units, or providing secure transactions like
those found in a cryptocurrency market.9
Applicant and its evidence allow that virtual currencies may include currencies
that include cryptology such as cryptocurrencies. Applicant states, “virtual currencies

be edited by anyone with access to the Internet. That section
further explains that editors do not need any specialized
qualifications to contribute. As a result, entries, especially
newer entries and recent edits, may contain significant
misinformation, false or debatable information,
“unencyclopedic” content, unexpected oversights and omissions,
vandalism, or unchecked information that requires removal. At
any given time an article may be in the middle of an edit or
controversial rewrite. The editors provide the following warning:
“Therefore, a common conclusion is that it [Wikipedia] is a
valuable resource and provides a good reference point on its
subjects, but like any online source, unfamiliar information
should be checked before relying on it.” (citation omitted,
bracketed material in the original.)
See also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 701.01(b) (2018) (“Given
its inherent limitations, any information obtained from Wikipedia® should be treated as
having limited probative value.”).
8 April 13, 2020 Req. for Recon. Exh. C, TSDR 59-61.
9 Applicant’s brief at pp. 7-8, 7 TTABVUE 8-9.
Serial No. 88731278
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are not necessarily cryptocurrencies” and the Wikipedia entry states, “not all virtual
currencies are cryptocurrencies.” The services therefore are in-part legally identical.
Because Applicant’s and Registrant’s services are in-part legally identical, we may
presume that the channels of trade and classes of purchasers are the same. See In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (identical goods
are presumed to travel in same channels of trade to same class of purchasers).
The DuPont factors regarding the similarity of the services and channels of trade
thus strongly favor a finding of likelihood of confusion.
b. Strength of the Mark
Before we turn to the similarity of the marks, we consider the strength of
Registrant’s mark, as that may affect the scope of protection to which it is entitled.
Applicant argues that “[o]ther marks besides those belonging to the Applicant and
Prior Owner have used the word PAY or BIT for similar goods and services.”10
Applicant submitted two third-party registrations registered to the same owner
containing both the terms BIT and PAY for related services, and 11 third-party
registrations containing the term BIT or PAY along with other terms.11 One of the 11

10 Applicant’s brief at p. 11, 7 TTABVUE 12.
11 One submission is a third-party application, not a registration. The application has no
probative value because pending applications are only evidence that they have been filed. In
re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002) (“While applicant also
submitted a copy of a third-party application …, such has no probative value other than as
evidence that the application was filed”).
Serial No. 88731278
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registrations has been cancelled12 and four are for unrelated goods or services. Of the
remainder, two contain the term BIT and four contain the term PAY.
“[E]vidence of third-party registrations is relevant to ‘show the sense in which a
mark is used in ordinary parlance,’ …; that is, some segment that is common to both
parties’ marks may have ‘a normally understood and well-recognized descriptive or
suggestive meaning, leading to the conclusion that that segment is relatively weak[.]’”
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (quoting Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir.
2015).
Registrant’s mark is inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Trademark Act
Section 2(f), 15 U.S.C. § 1052(f). Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d
1881, 1889 (TTAB 2006). At best, we can conclude from Applicant’s third-party
registration evidence – and the meanings of “bit”13 and “pay” in the context of the
services – the terms BIT and PAY alone are not conceptually strong in connection

12 Abandoned applications have “‘no probative value other than as evidence that the
applications [were] filed.’” Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399,
1403 n.4 (TTAB 2010) (quoting In re Phillips-Van Heusen, 63 USPQ2d at 1049). An expired
or cancelled registration is evidence of nothing but the fact that it once issued. Sunnen Prods.
Co. v. Sunex Int’l Inc., 1 USPQ2d 1744, 1747 (TTAB 1987).
13 We take judicial notice of the definition of “bit” — “a unit of computer information
equivalent to the result of a choice between two alternatives (such as yes or no, on or off).”
https://www.merriam-webster.com/dictionary/bit (accessed on April 16, 2021). The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983), including online dictionaries that exist in printed format or regular fixed editions. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Serial No. 88731278
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with the registered services. This does not demonstrate that Registrant’s PAYBIT
mark as a whole is inherently weak. Moreover, only two registrations include both
the terms BIT and PAY, and they are insufficient to show inherent weakness in the
combination of terms, as contemplated by Jack Wolfskin. We thus find Registrant’s
PAYBIT mark to be suggestive, because the mark “requires imagination, thought,
and perception to arrive at the qualities or characteristics of … [Registrant’s] goods
….” In re MBNA Am. Bank, N.A., 340 F.3d 1328, 1332, 67 USPQ2d 1778, 1780 (Fed.
Cir. 2003). That is, it suggests (but does not immediately describe) that Registrant’s
services involve the payment of currencies such as virtual currencies.
Applicant argues that there is no evidence that the prior mark is famous. That is
irrelevant — “the owner of the cited registration is not a party to this ex parte appeal,
and the Examining Attorney is under no obligation to demonstrate the fame of a cited
mark.” In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). See also In
re Majestic Distilling Co., 65 USPQ2d at 1205 (“Although we have previously held
that the fame of a registered mark is relevant to likelihood of confusion, DuPont, 476
F.2d at 1361, 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 Mr. Recipe, LLC, 118 USPQ2d 1084, 1086 (TTAB 2016) (“in 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.”); In re Davey Prods. Pty Ltd., 92 USPQ2d
1198, 1204 (TTAB 2009) (“[I]t is settled that the absence of such evidence is not
particularly significant in the context of an ex parte proceeding.”); In re Big Pig Inc.,
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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.”).
In view of the foregoing, we find that the individual terms in Registrant’s mark
have some inherent weakness when used in connection with Registrant’s services,
but that the mark as a whole is inherently distinctive, and that there is no evidence
of third-party uses of the same or similar marks.
c. Similarity or Dissimilarity of the Marks
We now consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion Capital
Partners, 110 USPQ2d at 1160; 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, 126 USPQ2d 1742, 1746 (TTAB 2018), aff'd mem., 777 F. App’x (Fed. Cir.
2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
The issue is not whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are sufficiently similar that
confusion as to the source of the services offered under the respective marks is likely
to result. In re i.am.symbolic, 123 USPQ2d at 1748; Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Double Coin
Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, *6 (TTAB 2019). The focus is on the
recollection of the average purchaser, who normally retains a general rather than
specific impression of trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438
F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); Double Coin Holdings, 2019 USPQ2d
Serial No. 88731278
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377409 at *6. In this case, the average purchasers of both Applicant’s and Registrant’s
services include members of the general public who require cryptocurrency exchange.
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion Capital Partners, 110 USPQ2d at 1160;
Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal;
rather, it must be considered as a whole in determining likelihood of confusion.”). But
there is nothing improper in giving more or less weight to a particular feature of a
mark, provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Furthermore, we note that, “the degree of similarity [between the marks] necessary
to support the conclusion of likely confusion declines” when the goods or services are
identical, as they are here. Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
Applicant’s PAYBITO mark incorporates Registrant’s PAYBIT mark in its
entirety. In cases such as this, a likelihood of confusion has frequently been found.
Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977)
(CALIFORNIA CONCEPT and surfer design is similar the mark CONCEPT). See
also Coca-Cola Bottling Co. v. Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105,
106 (CCPA 1975) (BENGAL LANCER and Bengal Lancer soldier design is similar to
the mark BENGAL); and In re Bissett-Berman Corp., 476 F.2d 640, 177 USPQ 528,
529 (CCPA 1973) (E-CELL is similar to the mark E).
Serial No. 88731278
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The only difference between the marks is Applicant’s addition of the letter “O” at
the end of Registrant’s mark. This addition creates only a slight difference in sound
and appearance of the marks and is outweighed by the identity of the first six letters
of the two marks, PAYBIT.
As to connotation, we find that purchasers will perceive both marks as a composite
of the terms “pay” and “bit,” with “bit” being associated with cryptocurrencies such as
Bitcoin. Applicant’s webpage states, “PayBito is the easiest and most trusted place
for individuals and institutions to buy, sell and trade a variety of Cryptocurrencies
such as Bitcoin, Bitcoin Cash, and more on a US based exchange.”14 Applicant’s
addition of the terminal letter “O” to Registrant’s mark does not distinguish the
connotation of the marks, or their commercial impression.
Thus, we find the marks to be similar in appearance, sound, meaning and overall
commercial impression, and this similarity in the marks, where the services are
legally identical as discussed above, outweighs the dissimilarities. Century 21 Real
Estate, 23 USPQ2d at 1701 (“When marks would appear on virtually identical goods
or services, the degree of similarity [between the marks] necessary to support a
conclusion of likely confusion declines.”).
The DuPont factor regarding the similarity of the marks also favors a finding of
likelihood of confusion.

14 April 21, 2020 Office Action, Exh. A, TSDR 12.
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d. Purchaser Sophistication/Care
Applicant argues that “the buyers of the respective goods and services will be a
sophisticated. In other words, consumers making purchases of services from either
the Applicant or the Prior Owner are well educated, and not likely to make such
purchases on impulse,” and “[t]he Prior Owner and Applicant deal in respective goods
and services that can be extremely expensive. If the goods or services are relatively
expensive, more care is taken and buyers are less likely to be confused as to source
or affiliation.” (citations omitted.)15
The standard of care for purchasing the services is that of the least sophisticated
potential purchaser. In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing
Stone Lion Capital Partners, 110 USPQ2d at 1163). We have found above that
purchasers include members of the general public who require cryptocurrency
exchange. Such services may not be needed on a regular basis and need not be for
large sums. We see no need why such purchasers would apply anything more than
ordinary care in their selection and use of entities offering cryptocurrency exchanges.
This DuPont factor is neutral in our analysis.
e. No Actual Confusion
Applicant argues that “[t]here has been no documented evidence that shows that
any consumers have confused the respective marks in commerce. There have been no
demonstrated events of confusion by consumers between the respective marks.”16

15 Applicant’s brief at pp. 8-9, 7 TTABVUE 9-10.
16 Id. at p. 9, 7 TTABVUE 10.
Serial No. 88731278
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“[I]n this ex parte context, there has been no opportunity to hear from Registrant
about whether it is aware of any reported instances of confusion.” In re Guild Mortg.
2020 USPQ2d 10279 at *25. Further, a lack of evidence of actual confusion carries
little weight in an ex parte case such as this. Majestic Distilling, 65 USPQ2d at 1205.
“[I]t is unnecessary to show actual confusion in establishing likelihood of confusion.”
Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed.
Cir. 1983). We thus find the DuPont factor regarding the nature and extent of actual
confusion is neutral.
f. Any Possible Confusion is De Minimis
Applicant argues that “any potential confusion between the respective marks
would be de minimis, especially given that there have been no present documented
cases of actual confusion.”17 We disagree. As mentioned, the marks are similar and
the services are in-part legally identical. Further, there is no evidence that there have
been opportunities for confusion and we have not heard from Registrant. This
argument therefore is not persuasive, and the DuPont factor regarding the extent of
possible confusion is neutral.
g. Conclusion
We have found that the marks are similar and the services are in-part legally
identical, and presume the trade channels and purchasers are identical. There is no
evidence of third-party uses of the same or similar marks. We therefore conclude that
Applicant’s PAYBITO mark for cryptocurrency exchange services is likely to be

17 Id. at p. 10, 7 TTABVUE 11.
Serial No. 88731278
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confused with Registrant’s PAYBIT mark for financial services, namely, providing an
online global exchange in the nature of virtual currencies for trading and transacting.
Decision: The refusal to register Applicant’s mark under Section 2(d) is affirmed.