Hyperloop Transportation Technologies, Inc.

Trademark Trial and Appeal Board

May 14, 2020

86556581 (T.T.A.B. May. 14, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: May 14, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Hyperloop Transportation Technologies, Inc.
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Serial No. 86556581
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Elizabeth Lee of Lucas & Mercanti LLP,
for Hyperloop Transportation Technologies, Inc.
Sarah Kunkleman, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
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Before Zervas, Kuhlke and Ritchie,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Hyperloop Transportation Technologies, Inc. (“Applicant”) seeks registration on
the Principal Register for the mark HYPERLOOP, in standard characters, for
services ultimately identified as “Providing transportation services and a
transportation system, namely, transport of passengers in low friction tubes” in
International Class 39.1

1 Application Serial No. 86556581 was filed on March 6, 2015, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. §1051(b).

Serial No. 86556581
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The Trademark Examining Attorney has 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, when used in connection with the identified services, so resembles
the registered standard character mark HYPERLOOP for “transportation services,
namely, high-speed transportation of goods in tubes,”2 in International Class 39, as
to be likely to cause confusion, mistake or deception.3
When the Section 2(d) refusal was made final, Applicant appealed and requested
reconsideration. On October 16, 2019, the Examining Attorney denied the request,
the appeal resumed and briefs have been filed. We affirm the refusal to register.
I. Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). See also M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d

2 We note that the broad word “tubes” in Registrant’s identification encompasses Applicant’s
“low friction tubes.”
3 Registration No. 5176643, issued on April 4, 2017. The cited registration is based on an
underlying application, filed prior to the subject application on August 2, 2013, under Section
1(b), based on an allegation of a bona fide intention to use the mark in commerce. It is owned
by Space Exploration Technologies Corp. (“SpaceX”). SpaceX was founded by Elon Musk.
September 26, 2019 Request for Reconsideration, TSDR pp. 4, 34; March 15, 2019 Response,
TSDR p. 6. All references to the application record are to the USPTO’s Trademark Status
and Document Retrieval (TSDR) system.
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1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (even within the du Pont list of factors,
only factors that are “relevant and of record” need be considered).
A. Similarity/Dissimilarity of the Marks
Applicant’s mark is identical to the mark in the cited registration in “appearance,
sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). Applicant does not dispute this.
In view thereof, the du Pont factor of the similarity of the marks weighs heavily
in favor of a finding of likelihood of confusion.
As discussed below Applicant asserts there is no likely confusion because the mark
HYPERLOOP is weak and the services are sufficiently dissimilar.
B. Strength of the Mark
Applicant argues that the term “Hyperloop” is commonly used in connection with
high-speed tube transport and as such should be afforded weak protection. Applicant
provided a screenshot from a web page titled “Encyclopedia” with the definition of
Hyperloop as: “An ultra-high speed ground transportation system proposed in 2013
by Elon Musk, cofounder of PayPal, Tesla Motors and founder of space transport
company SpaceX.”4 Applicant is not challenging “the validity of the cited mark” but
simply asserting that it is sufficiently weak to be accorded a narrow scope of

4 September 26, 2019 Request for Reconsideration, TSDR 34. There is no date or URL on this
screenshot; however, the Examining Attorney did not object to it and relies on this document
as well. In re I-Coat Co., 126 USPQ2d 1730, 1733 (TTAB 2018); In re Mueller Sports Medicine,
Inc., 126 USPQ2d 1584, 1586-87 (TTAB 2018).
Serial No. 86556581
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protection where Applicant’s mark is distinguishable based on the difference between
their services. App. Brief, 10 TTABVUE 10.5 In support of its position, Applicant
states that:
The term “Hyperloop” is heavily associated as being “An
ultra-high-speed ground transportation system.” This term
was helped promulgated [sic] by companies such as
[Applicant] who in 2013, started a crowd[-]sourcing
platform to start the scientific research in developing the
new Hyperloop transportation system into reality, on
JumpStartFund, a crowdsourcing platform for the
development of new ideas. Since then, [Applicant’s]
establishment has grown into a team of “more than 800
engineers, creatives and technologists in 52
multidisciplinary teams with 40 corporate and university
partners.” Since 2013, [Applicant] has been using multiple
marks comprising of the term HYPERLOOP in connection
with various lines of scientific research and technological
development services involved in the development of a new
transportation system. [Applicant] has been using the
marks HYPERLOOP TRANSPORTATION, HyperloopTT
(in which TT stands for “Transportation Technologies”),
HTT (which stands for “Hyperloop Transportation
Technologies”) and HYPERLOOP TRANSPORTATION
TECHNOLOGIES.
App. Brief, 10 TTABVUE 9-10.
The record includes one third-party website printout of a possible competitor
(Virgin Hyperloop One) and two third-party websites from research teams, using the
term “Hyperloop.” However, all of the examples reference Registrant in particular.6

5 Citations to the briefs are to TTABVUE, the Board’s online file record.
6 October 16, 2019 Reconsideration Letter p. 32 (“Is Elon Musk and investor or affiliated with
Virgin Hyperloop One?”); pp. 36-7 (“Swissloop is a student-led initiative with the goal of
contributing to the research on and advancement of the Hyperloop technology and its
application in the real world.”…“Today, the Hyperloop concept usually refers to a well-known
white paper published in 2013 by Elon Musk in collaboration with a joint team from Tesla
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In addition, the record includes six articles from online sources (e.g., CNBC, Digital
Trends, PBS NewsHour) that discuss the Hyperloop concept and, again, reference
Registrant.7 Between Applicant’s use as a mark and the third-party uses all
referencing Registrant, this record does not support limiting the scope of protection
for the cited mark. In re i.am.symbolic, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed.
Cir. 2017) (stating that evidence of third-party use for similar goods “falls short of the
‘ubiquitous’ or ‘considerable’ use of the mark components present in [applicant’s] cited
cases”). We further note that because Applicant’s mark is identical to the mark in the
cited registration, there are no other terms or elements that we could consider in
distinguishing between them. In any event, even weak marks are entitled to
protection and likely confusion may be found where the marks are identical and the
services closely related. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246
(TTAB 2010).
C. Similarity of the Services
With regard to the services, we must make our determinations under this factor
based on the services as they are identified in the application and cited registration.
See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See
also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110

and SpaceX.”); p. 41 (“Virginia Tech claims fourth place in SpaceX’s international Hyperloop
competition.”) As noted above, Elon Musk is the founder of Registrant, SpaceX.
7 March 15, 2019 Response, TSDR pp. 128-129, 133-137, 142-143; September 26, 2019
Request for Reconsideration, TSDR pp. 5-6, 8-16, 20-24.
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USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston
Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Where
the marks of the respective parties are identical or virtually identical, the
relationship between the goods and/or services need not be as close to support a
finding of likelihood of confusion as would be required if there were differences
between the marks. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010).
The goods and/or services do not have to be identical or even competitive in order
to find that there is a likelihood of confusion. In re Iolo Techs., LLC, 95 USPQ2d 1498,
1499 (TTAB 2010); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1368 (TTAB
2009). The issue is not whether the goods and/or services will be confused with each
other, but rather whether the public will be confused as to their source. See Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) “[E]ven if the
goods in question are different from, and thus not related to, one another in kind, the
same goods can be related in the mind of the consuming public as to the origin of the
goods. It is this sense of relatedness that matters in the likelihood of confusion
analysis.”). It is sufficient that the goods and/or services of the applicant and the
registrant are related in some manner or that the conditions surrounding their
marketing are such that they are likely to be encountered by the same persons under
circumstances that, because of the marks used in connection therewith, would lead
to the mistaken belief that they originate from the same source. See, e.g., Coach
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Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB); On-line
Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000).
Applicant argues that “Appellant provides transportation services for the
transporting of passengers, whereas, Registrant provides transportation services for
transporting goods.” App. Brief, 10 TTABVUE 6. The Examining Attorney submitted
various third-party website printouts showing the same entity under the same mark
providing transportation services for both goods and passengers.8 Applicant counters
that “the comparison between Appellant’s mode of transportation and common
carriers that provide both the transportation of goods and passengers is an unfair
assessment” because the transportation of passengers through low friction tubes is
much more complicated than the transportation of goods due to safety ramifications.
Applicant’s point being while buses, trains and airplanes commonly transport both
passengers and goods, there is no real difference in capability to transport both with
those modes of transportation. By comparison, transporting goods in low friction
tubes does not face the “many technical challenges” as are faced by trying to transport
passengers through low friction tubes. In other words, it is more difficult to hurl a
human through a tube at 760 miles per hour than a box of tools, assuming you want
the human to be alive at the end of the ride.9

8 March 27, 2019 Office Action, TSDR pp. 2-31.
9 September 26, 2019 Request for Reconsideration, TSDR p. 2 (“This new mode of
transportation travels at 760 mph.”).
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The Examining Attorney correctly summarized the issue as being “whether
someone would confuse the source of a cargo transportation service with the source
of a passenger transportation service using the identical mark.” Ex. Att. Brief, 12
TTABVUE 8. The record is quite clear that both Registrant’s and Applicant’s services
may be used for transportation of both goods and passengers through low friction
tubes.10 For example, the following is found on Applicant’s website:
Hyperloop brings airplane speeds to ground level, safely.
Passengers and cargo capsules will hover through a
network of low-pressure tubes between cities and
transforming travel time from hours to minutes;11
The Hyperloop Transportation System is an entirely new
mode of transport that will revolutionize travel by
connecting people and goods safely and efficiently;12 and
This could revolutionize transport between global cities, for
people and goods.13
The record also includes an article on Registrant discussing possible future use of
the HYPERLOOP transportation service for passengers as well:
It’s anyone’s guess how long it will take for Elon Musk’s
Hyperloop dream of an ultra high-speed transit system to
become reality. But with SpaceX’s annual Hyperloop Pod
Competition taking place on Sunday … at least one group
of designers is already offering a conceptual look at what
the high-speed system could eventually look like. …

10 Applicant is correct that we make our determination based on the goods or services as
identified; however, the evidence from the marketplace is relevant to understand what
consumers would expect or be accustomed to seeing. Here, potential consumers are exposed
to the same entity discussing the provision of both passenger and goods transport under the
same mark. We note also that the underlying application of the cited registration included
passengers in the identification of services. See June 11, 2015 Office Action, TSDR p. 2.
11 March 15 2019 Response, TSDR 13 (https:/www.hyperloop.global).
12 Id. at 28 (https://www.jumpstartfund.com).
13 Id. at 37 (facebook page screenprint).
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SpaceX, Musk’s aerospace company, built a test track near
its Hawthorne, California headquarters. … SpaceX has
also looked for an open source solution to Musk’s Hyperloop
dream … ideas for prototypes of the high-speed
transportation pods that would one day make a Hyperloop
system possible.14
This shows consumer exposure to use of low friction tubes for passenger
transportation as well as goods. The record also includes third-party website
printouts discussing the development of low friction tube transportation for both
passengers and goods.15
While we need not rely on the other evidence of relatedness submitted, we agree
with the Examining Attorney that third-party evidence in the transportation
industry generally has some relevance in that both Applicant’s, Registrant’s, and
these examples show consumer exposure to transportation services for both goods
and passengers offered under one mark. Applicant’s and Registrant’s services are
transportation services, although in a still developing mode. The Examining Attorney
submitted several website printouts showing third-party use of a single mark in
connection with transportation of both passengers and goods. For example:

14 October 16, 2019, Reconsideration Letter, TSDR pp. 21, 24.
15 Id., TSDR pp. 31-45.
Serial No. 86556581
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The Examining Attorney also submitted several third-party registrations for
transportation services for both passengers and goods See, e.g., Registration No.
5218396 for the mark BLUE HAWAIIAN for transportation of passengers and/or
goods by air, namely, aircraft charter services; Registration No. 5559493 for the mark
LIMOLINER for, inter alia, transportation of passengers and/or goods by bus;
Registration No. 5709072 for the mark HALLCON for, inter alia, transport of goods,
transport of persons, transport of persons and goods.16 In re Mucky Duck Mustard
Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d per curiam, 864 F.2d 149 (Fed. Cir.
1988).
The record shows consumers exposed to low friction tube transportation for both
goods and passengers under a single mark. Indeed, consumers are generally

16 March 27, 2019 Office Action, TSDR pp. 32-57.
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accustomed to seeing transportation services for goods and passengers under a single
mark. We find Applicant’s and Registrant’s services to be closely related.17
In view thereof, this du Pont factor strongly favors a finding of likelihood of
confusion.
II. Conclusion
In view of the identical marks and related services, confusion is likely between
Applicant’s mark HYPERLOOP and Registrant’s mark HYPERLOOP.
Decision: The refusal to register Applicant’s mark is affirmed.

17 We make no specific findings as to channels of trade inasmuch as the passenger service is
not yet offered anywhere.