IEH Auto Parts LLCv.SSP Otomotiv Sanayi Ve Dis Tic. A.S.Download PDFTrademark Trial and Appeal BoardMar 19, 202091235734 (T.T.A.B. Mar. 19, 2020) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: March 19, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ IEH Auto Parts LLC v. SSP OTOMOTİV SANAYİ VE DIŞ TİC. A.Ş. _____ Opposition No. 91235734 _____ Marsha G. Gentner of Dykema Gossett PLLC, for IEH Auto Parts LLC. John Alumit of ALUMIT IP, for SSP OTOMOTİV SANAYİ VE DIŞ TİC. A.Ş. _____ Before Zervas, Wolfson and Ritchie, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: SSP OTOMOTİV SANAYİ VE DIŞ TİC. A.Ş. (“Applicant”) seeks to register the mark on the Principal Register for the goods and services set forth below: Opposition No. 91235734 - 2 - Motor land vehicles included in this class; motors and engines for land vehicles; motorcycles; mopeds bicycles and their bodies; handlebars and mudguards for bicycles vehicle bodies; tipping bodies for trucks, trailers for tractors; frigorific bodies for land vehicles; trailer hitches for vehicles; tipping bodies for vehicles; vehicle seats; head- rests for vehicle seats, safety seats for children, for vehicles, seat covers for vehicles; shaped vehicle covers; sun-blinds adapted for vehicles, direction signals and arms for direction signals for vehicles, windscreen wipers and wiper arms for vehicles, windows for vehicles, safety windows for vehicles, rearview mirrors and wing mirrors for vehicles, luggage carriers for vehicles, bicycle and ski carriers for cars; saddles for bicycles or motorcycles, anti- theft alarms for vehicles, horns for vehicles, safety belts for vehicle seats, air bags being a safety device for automobiles, baby carriages, wheelchairs, pushchairs, wheelbarrows; shopping carts, single or multi-wheeled wheelbarrows; shopping trolleys; grocery carts; handling carts, locomotives; trains; trams; wagons; cable cars; chairlifts (International Class 12); and Advertising, marketing and public relations; organization of exhibitions and trade fairs for commercial or advertising purposes, office functions; secretarial services; arranging newspaper subscriptions for others; compilation of statistics, rental of office machines; systemization of information into computer databases; telephone answering for unavailable subscribers, business management, business administration and business consultancy, accounting; commercial consultancy services; personnel placement; employment agencies; personnel recruitment; import-export agencies, business appraisal services for commercial or industrial products, auctioneering, the bringing together, for the benefit of others, motor land vehicles and their parts, motors and engines for land vehicles, motorcycles, mopeds, bicycles and their bodies, handlebars and mudguards for bicycles, vehicle bodies, tipping bodies for trucks, trailers for tractors, frigorific bodies for land vehicles, trailer hitches for vehicles tipping bodies for vehicles, tipping apparatus, parts of land vehicles, vehicle seats, head-rests for vehicle seats, safety seats for children, for vehicles, seat covers for vehicles, shaped vehicle covers, sun-blinds adapted for vehicles, direction signals and arms for direction signals for vehicles, Opposition No. 91235734 - 3 - windscreen wipers and wiper arms for vehicles, windows for vehicles, safety windows for vehicles, rearview mirrors and wing mirrors for vehicles, anti-skid chains for vehicles, luggage carriers for vehicles, bicycle and ski carriers for cars, saddles for bicycles or motorcycles, anti-theft alarms for vehicles, horns for vehicles, safety belts for vehicle seats, air bags being safety devices for automobiles, baby carriages, wheelchairs, pushchairs, wheelbarrows, shopping carts, single or multi-wheeled wheelbarrows, shopping trolleys, grocery carts, handling carts, rail vehicles, locomotives, trains, trams, waggons, cable cars, chairlifts, vehicles for locomotion by water and their parts, other than their motors and engines, vehicles for locomotion by air and their parts, other than their motors and engines, enabling customers to conveniently view and purchase those goods, such services may be provided by retail stores, wholesale outlets, by means of electronic media or through mail order catalogues (International Class 35).1 (emphasis added). The mark is described as “consist[ing] of the wording ‘APPLUS’ in stylized form with the ‘A’ and top ‘P’ connected and the two ‘P’s overlapping, with the wording ‘AUTOMOTIVE PARTS’ below. The color red appears in the connected ‘A’ and ‘P’; the color orange appears in ‘PLUS’, and the color black appears in ‘AUTOMOTIVE PARTS’. The color white represents background area and is not part of the mark.” Applicant disclaimed AUTOMOTIVE PARTS. IEH Auto Parts LLC (“Opposer”) opposed registration of Applicant’s mark claiming likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), pleading ten AUTO PLUS formative marks including the standard 1 Serial No. 79180978, filed on October 22, 2015, pursuant to Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f(a), as a Request for Extension of Protection for International Registration No. 1256563. Opposition No. 91235734 - 4 - character mark AUTO PLUS (with a disclaimer of AUTO) of Registration No. 5006010 (“’010 Registration”) for the following International Class 35 services: Retail store services featuring automotive parts and accessories, batteries, tools and equipment, chemicals, paints and body repair products; on-line retail store services featuring automotive parts and accessories, batteries, tools and equipment, chemicals, paints and body repair products; Wholesale distributorships featuring automotive parts and accessories, batteries, tools and equipment, chemicals, paints and body repair products; Wholesale store services featuring automotive parts and accessories, batteries, tools and equipment, chemicals, paints and body repair products; retail automotive parts and accessories stores.2 Applicant, in its Answer,3 denied the salient allegations of the Notice of Opposition. While Opposer filed a brief, Applicant did not file a brief. I. The Trial Record In addition to the pleadings, the trial record automatically includes the involved application file pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). The trial record also includes the following: A. Submitted by Opposer. 1. Opposer’s Notice of Reliance (“NOR”) No. 1 submitting TESS printouts of Opposer’s registrations showing current status and Opposer’s ownership from the USPTO’s Trademark Electronic Search System (“TESS”) database. 2. NOR No. 2: Trial Declaration of Joseph Wesolowski, Vice President Finance-Parts of IEH (15 TTABVUE – Confidential; 16 TTABVUE – redacted public version). 2 Registered July 26, 2016. 3 4 TTABVUE. Opposition No. 91235734 - 5 - 3. NOR No. 3: Trial Declaration of Danielle Porto Parra, Senior Vice President – Chief Marketing Officer of IEH (18 TTABVUE – redacted public version; 19 TTABVUE – Confidential), and exhibits, including a Wikipedia definition for “Automotive aftermarket,” photos, advertising, webpages, sales brochures, catalogs, flyers, radio advertising scripts, video commercials and press releases. 4. NOR No. 4 (20 TTABVUE), submitting Applicant’s Amended Responses to Opposer’s First Request for Admissions Nos. 1-7, 15-23, 25, 34 and 36, Opposer’s First Request for Admissions Exhibit A and Applicant’s Amended Response to Opposer’s Interrogatories Nos. 6 & 17. B. Submitted by Applicant. 1. Affidavit of Mehmet Aydin (23 TTABVUE), with one exhibit. 2. Applicant’s Notice of Reliance (22 TTABVUE), submitting news articles, third party registrations, third party websites and Applicant’s website. II. Evidentiary Issues Opposer has raised two objections to Applicant’s evidence, one on the basis of illegibility and the other on the basis that certain webpages contain hearsay. With regard to the first exhibit (at 22 TTABVUE 176-77), it appears a large portion of it is cut off; it hence has very limited probative value. With regard to the other webpages (at 22 TTABVUE 178-85), because we may consider the webpages only for what they state on their face and not for the truth of any assertion contained therein, Opposer’s objection is moot. See Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.62 (TTAB 2016) (citing Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (Internet webpage evidence admissible only to show what has been printed and not for the truth of what has been printed); Hornby v. TJX Companies Inc., 87 USPQ2d 1411, 1416 (TTAB 2008) (“statements made on website might otherwise be considered hearsay”)). Opposition No. 91235734 - 6 - III. Standing Standing is a threshold issue that must be proven by a plaintiff in every inter partes case. To establish standing in an opposition or cancellation proceeding, a plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable basis’ for its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports, Inc., v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012)); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Opposer made the ‘010 Registration and two other registrations comprising or containing AUTO PLUS of record by submitting TESS printouts for the ‘010 Registration and the two other registrations with its Notice of Opposition. Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1). Opposer’s standing is established by its pleaded registrations, which Opposer has entered into the record, showing Opposer’s ownership and current status. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (party’s ownership of pleaded registration establishes standing). IV. Priority Because Opposer’s pleaded registrations are of record and there is no pending counterclaim to cancel the registrations, priority is not at issue with respect to the mark and services covered by the registrations. See Id., 55 USPQ2d at 1844; King Opposition No. 91235734 - 7 - Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998). V. Likelihood of confusion We now consider Opposer’s claim of likelihood of confusion under Section 2(d) of the Trademark Act. Our determination of Opposer’s claim of likelihood of confusion is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). “[W]e need to consider only the factors that are relevant and of record.” M2 Software Inc. v. M2 Commc’ns Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). If confusion is likely between the marks and services in the application and the ‘010 Registration, there is no need for us to consider the likelihood of confusion with the marks and services of any of the other asserted registrations, while if there is no likelihood of confusion between Applicant’s mark and the mark and services in the ‘010 Registration, then there would be no likelihood of confusion with the marks and services of any of the other asserted registrations because those marks are further removed from Applicant’s mark than the mark in the ‘010 Registration. Opposition No. 91235734 - 8 - A. The Good and Services, Channels of Trade and Classes of Purchasers The nature and scope of a party’s goods or services must be determined on the basis of the goods or services recited in the application or registration. See, e.g., Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Where an identification of services is broad, the Board “presume[s] that the services encompass all services of the type identified.” Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Opposer’s services encompass (i) retail store, on-line retail store, wholesale distributorships, and wholesale store services, all featuring automotive parts and accessories, batteries, tools and equipment, chemicals, paints and body repair products; and (ii) retail automotive parts and accessories stores. International Class 35 Services We consider first Applicant’s and Opposer’s International Class 35 services. Applicant’s services include “the bringing together, for the benefit of others, motor land vehicles and their parts, … enabling customers to conveniently view and purchase those goods, such services may be provided by retail stores, wholesale outlets, by means of electronic media or through mail order catalogues.” These services are legally identical to Opposer’s services, summarized above. Because the services are legally identical, we presume that the channels of trade and classes of purchasers for those services are also the same. See In re Viterra Inc., Opposition No. 91235734 - 9 - 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods [or services] are legally identical, they must be presumed to travel in the same channels of trade, and be sold to the same class of purchasers.”). The ultimate purchaser of Opposer’s and Applicant’s services is a member of the general purchasing public requiring automotive parts. International Class 12 Goods We turn next to Applicant’s International Class 12 automotive goods and Opposer’s retail store, on-line retail store, wholesale distributorships, and wholesale store services involving automotive goods. It is well recognized that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (holding DETROIT ATHLETIC CO. for sports apparel retail services and DETROIT ATHLETIC CLUB for clothing likely to cause confusion); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S (stylized) for retail grocery and general merchandise store services and BIGGS and design for furniture likely to cause confusion); In re Phillips-Van Heusen Corp., 228 USPQ 949 (TTAB 1986) (holding 21 CLUB for various items of clothing and THE “21” CLUB (stylized) for restaurant services likely to cause confusion); In re U.S. Shoe Corp., 229 USPQ 707 Opposition No. 91235734 - 10 - (TTAB 1985) (holding CAREER IMAGE (stylized) for retail women’s clothing store services and CREST CAREER IMAGES (stylized) for uniforms likely to cause confusion); Steelcase, Inc. v. Steelcare, Inc., 219 USPQ 433, 435 (TTAB 1983) (holding STEELCARE INC. and design for refinishing of furniture, office equipment, and machinery and STEELCASE for office furniture likely to cause confusion). In addition, Applicant’s identifications suggests that the goods and services are related to one another. See In re Country Oven, Inc., 2019 USPQ2d 443903, *6 (TTAB 2019) (“[T]he identifications in the application [services in International Classes 35 and 40] and registration [goods in International Class 30] themselves support finding the goods and services are related.”). For example, vehicle accessories such as trailer hitches, vehicle seat covers, windscreen wipers, rearview mirrors and bicycle and ski carriers, are typically sold in “brick and mortar” and online stores. We find that Applicant’s automotive goods and Opposer’s retail and wholesale store services are commercially related. Where one party uses its mark on goods that are sold in retail stores that customarily vend those goods, it is clear that the trade channels and customers overlap. See, e.g., Hyper Shoppes (Ohio), 6 USPQ2d at 1026 (finding that “applicant’s ‘general merchandise store services’ would include the sale of furniture,” the goods in the cited registration). The DuPont factors regarding the goods and services, trade channels and purchasers favor a finding of likelihood of confusion for the goods and services in both International Classes 12 and 35. Opposition No. 91235734 - 11 - B. Strength/Fame of the Opposer’s Mark In examining the strength of Opposer’s mark, the applicable viewpoint is that of the relevant market, that is, of consumers of like products or services. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734- 35 (Fed. Cir. 2017) (“[A] mark’s renown within a specific product market is the proper standard.”). The fame of a mark is not “an all-or-nothing measure” when considered in the context of likelihood of confusion. Id. Rather, likelihood of confusion fame “varies along a spectrum from very strong to very weak.” Palm Bay Imps., 73 USPQ2d at 1694 (quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)). The “stronger” or more “well known” a plaintiff’s mark, the greater the likelihood that use or registration for even minimally related products will cause confusion. “The stronger the mark, the more likely it is that encroachment on it will produce confusion.” Champions Golf Club v. Champions Golf Club, 78 F.2d 1111, 38 USPQ2d 1161, 1164 (6th Cir. 1996). See generally, 2 J.T. MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 11:73 (Author’s Note: (“The Federal Circuit uses the term ‘fame’ instead of ‘strength.”; § 24:49 (4th ed. June 2017)). Therefore, when an opposer’s mark is exceedingly strong or famous, that “plays a ‘dominant role in the process of balancing the DuPont factors,’ ... and ‘[f]amous marks thus enjoy a wide latitude of legal protection.” Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002) (quoting Recot, Inc. v. Benton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000)). It is settled that a strong Opposition No. 91235734 - 12 - mark “casts a long shadow which competitors must avoid.” Kenner Parker Toys, Inc. v. Rose Art Inds., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). In the absence of direct evidence of fame such as through a consumer survey, Bose, 63 USPQ2d at 1305, fame or strength “of a mark may be measured indirectly, among other things, by the volume of sales and advertising expenditures of the goods traveling under the mark, and by the length of time those indicia of commercial awareness have been evident.” Id. at 1305. Other relevant factors include “length of use of the mark, market share, brand awareness, licensing activities, and variety of goods bearing the mark.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012). Here, while Opposer has designated most of its evidence of fame/strength as “confidential,” and we therefore only discuss it generally, suffice it to say that Opposer, with its 271 company retail “brick and mortar” stores located throughout the United States, and its roadside billboard advertisements, promotional items (hats, pens, t-shirts, mouse pads, cups, tumblers and gloves), local phone book advertisements, radio and television advertisements, sponsorships, online and social media presence, has been successful in selling services identified in the ‘010 Registration under its pleaded AUTO PLUS mark.4 Opposer has advertised these AUTO PLUS services fairly extensively, and, as reflected by its gross revenues, successfully. 4 Parra Decl., 18 and 19 TTABVUE. Opposition No. 91235734 - 13 - Nevertheless, “[w]e have no context for opposer’s advertising and sales figures,” or its other evidence of strength/fame, such as how the figures for AUTO PLUS retail and wholesale services featuring automotive parts and accessories compare with that for other sellers of automotive goods. Lebanon Seaboard Corp. v. R&R Turf Supply Inc., 101 USPQ2d 1826, 1831 (TTAB 2012); see also Bose, 63 USPQ2d at 1309 (“some context in which to place raw statistics is reasonable”). Moreover, while Opposer has offered additional evidence of the strength of AUTO PLUS besides its sales and advertising figures, it is also without context, such as circulation figures for print publications. Opposer therefore has not established that AUTO PLUS is at the highest possible level of strength/fame. However, Opposer’s evidence easily establishes that AUTO PLUS is “renowned” in connection with services identified in the ‘010 Registration, and a commercially strong mark entitled to a broad scope of protection. See Joseph Phelps Vineyards, 122 USPQ2d at 1734-35. In arriving at this conclusion, we are mindful that AUTO is at best merely descriptive of Opposer’s services, since it identifies the category of goods that Opposer sells under its mark, and it has been disclaimed.5 PLUS is an inherently weak source indicator for Opposer’s services inasmuch as it is defined as “an added quantity.”6 5 “Automotive” is defined as “relating to cars and other motor vehicles[;] the automotive industry[,] automotive parts” at (American English) https://www.macmillandictionary.com/ dictionary/american/automotive (accessed March 12, 2020). We take judicial notice of this definition. 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). 6 We also take judicial notice of the word “plus” at https://www.merriam- webster.com/dictionary/plus (accessed March 12, 2020). Opposition No. 91235734 - 14 - “Because trademark rights are not static [however], an inherently weak mark may become a strong mark through extensive promotion.” Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1036 (TTAB). See also Jiffy, Inc. v. Jordan Inds., Inc., 481 F.2d 1323, 179 USPQ 169, 170 (CCPA 1973) (“a weak mark need not remain a weak mark forever. Development of association with the user as a source of the goods through continued sales and advertising of the goods may turn a ‘weak’ mark into a strong, distinctive trademark”); Standard Int’l Corp. v. Am. Sponge and Chamois Co., 394 F.2d 599, 157 USPQ 630, 631 (CCPA 1968) (“a mark which is initially a weak one may, by reason of subsequent use and promotion, acquire such distinctiveness that it can function as a significant indication of a particular producer as source of the goods with which it is used”). We find that Opposer’s mark, when considered as a whole, while perhaps not conceptually very strong, is nevertheless inherently distinctive, and, as mentioned above, is a commercially strong mark entitled to a broad scope of protection. This factor therefore weighs in favor of a finding of likelihood of confusion. C. The Similarity or Dissimilarity of the Marks. We now turn to the DuPont factor concerning the similarities or dissimilarities of the marks, and compare the marks for similarities and dissimilarities in appearance, sound, connotation and commercial impression. Palm Bay Imps., 73 USPQ2d at 1692. While marks must be compared in their entireties and the analysis cannot be predicated on dissecting the marks into their various components, different features may be analyzed to determine whether the marks are similar. See In re Nat’l Data Opposition No. 91235734 - 15 - Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); 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.”); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). Similarity in any one of the elements of sound, appearance, meaning, or commercial impression is sufficient to support a determination of likelihood of confusion. See, e.g., Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009). In addition, because Opposer’s and Applicant’s International Class 35 services are legally identical, “the degree of similarity necessary to support a conclusion of likely confusion declines” as to these services. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). There are similarities between Opposer’s and Applicant’s marks but there are also differences. For ease of reference in following our analysis, we display Applicant’s mark below, which Applicant described as “consist[ing] of the wording ‘APPLUS’ in stylized form with the ‘A’ and top ‘P’ connected and the two ‘P’s overlapping, with the wording ‘AUTOMOTIVE PARTS’ below”: Opposition No. 91235734 - 16 - Applicant has described the larger, top portion of its mark as APPLUS. Because AP and PLUS are in different colors, highlighting that they are different elements, and because AP is clearly an abbreviation for AUTOMOTIVE PARTS, we agree that AP and PLUS are distinct. Consumers will therefore perceive the mark as “automotive parts plus” or “plus automotive parts,” which is similar in connotation to AUTO PLUS. The commercial impressions of the marks therefore are similar. We note too that Opposer’s mark is in standard character form. As such, its display is not limited to any particular font style, size or color. See Viterra, 101 USPQ2d at 1909-10; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018) (literal elements of standard character marks may be presented in any font style, size or color). Opposer’s mark hence may be displayed in the same coloring as Applicant’s mark, with the term AUTO in black and the word PLUS in the same orange coloring. Therefore, and because of the shared or related wording, we find the marks to be similar in appearance. The shared term PLUS creates a similarity in the overall sound of the marks, especially if Applicant’s mark is abbreviated to A PLUS or AP PLUS. Consumers tend to shorten or abbreviate marks. See Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1919 (TTAB 2015) (while there was no indication that the mark Opposition No. 91235734 - 17 - PMONEY had any particular meaning other than the letter “P” plus the term “Money,” the Board found it likely that with overlapping services, consumers will perceive PMONEY as an abbreviation for POPMONEY); Barbara’s Bakery, Inc. v. Landesman, 82 USPQ2d 1283, 1288 (TTAB 2007) (BARBARA’S BAKERY is similar to BARB’S BUNS BAKERY in short because Barb is a nickname or shortened version of Barbara). With regard to the meaning of the marks, Applicant introduced third-party registrations containing A+ or A PLUS “to suggest high quality and grading.”7 Only one registration has probative value because it pertains to vehicle parts or services involving vehicle parts (Registration No. 5191144 for goods including “lights for vehicles”). The other registrations are for unrelated goods or services and hence have limited probative value. In addition, Applicant submitted the following third-party uses:8 ● A+ Brakes & Suspension (http://brandonflautoservice.com/)9 listing “Brakes, Alignments, Belts & Hoses” and stating “Located in Brandon, Florida. A local family owned auto repair shop.” ● A+ AUTOCARE, Poway’s premier auto service center (http://www.aplusautocare.com/) ● A+ Automotive Inc. “Trusted Automotive repair since 2010 Fair Prices + Expert Service = A+ Automotive Inc.” (http://www.aplusautomotiveservice.com/) ● A+ Auto Repair (https://dykstrasauto.com/a-plus-automotive- 4450-stauffer-kentwood/) 7 Applicant’s Notice of Reliance, 22 TTABVUE 2; Applicant’s Notice of Reliance Exh. 2, 22 TTABVUE 96-115. 8 Id. at TTABVUE 111-12. 9 Applicant’s Notice of Reliance Exh. 3, 22 TTABVUE 117-76. Opposition No. 91235734 - 18 - ● A+ Motor Vehicle Services (https://www.yellowpages.com/chandler-az/mip/a-motor-vehicle-serv...) ● A Plus Auto Styling - Vehicle Protection Specialists in Maryland “With over 10 years [of] experience in window tinting and protective film installation, the Vehicle Protection Specialists at A-PLUS provide our customers with high quality, state of the art, vehicle protection products and services.” (https://aplusautostyling.com/) ● A-Plus Auto Service (https://southbendautorepair.net/auto-repair- services/) ● A+Auto Glass (https://aplusautoglass.org/) ● A+ Auto Repair (https://aplusauto.net) ● A+ Japanese Auto Repair The examples Applicant submitted do not include the term “Automotive Plus” which in Applicant’s mark produces a different meaning than that offered by the third-party websites. Also, Applicant’s mark includes a second letter “P” which is not in the examples. We therefore are not persuaded by Applicant’s argument. Rather, we find that because of the phrase AUTOMOTIVE PARTS under the letters “AP,” consumers will perceive the letters AP and APPLUS as an arbitrary designation as opposed to A PLUS. For the foregoing reasons, we find that the DuPont factor concerning the similarity of the marks weighs in favor of finding a likelihood of confusion. D. Improper Intent Opposer argues that Applicant has manifested an improper intent by proceeding with the opposed application, relying on an email sent by Mr. Aydin to Opposer’s Opposition No. 91235734 - 19 - counsel.10 Because a party may not offer evidence concerning settlement negotiations directed towards a party's claim, see Fed. R. Evid. 408(a), Opposer’s argument is without evidentiary support and unpersuasive. E. Conclusion. We have considered all of the evidence of record pertaining to the likelihood of confusion. The parties’ International Class 36 services are legally identical in part, and we presume that the trade channels and classes of consumers for these services are identical. The International Class 12 goods are related to Opposer’s services and the trade channels and customers for such goods and services are related to one another. Although there are differences in the marks, on balance, the marks are similar. We therefore conclude that Applicant’s mark for its goods and services is likely to be confused with Opposer’s mark for its services. To the extent that we have any doubts in our conclusion, we have resolved them against Applicant. See Hewlett- Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002) (doubts resolved against newcomer “because the newcomer has the opportunity and obligation to avoid confusion”). Decision: The opposition is sustained and registration to Applicant is refused for goods and services in both International Classes. 10 Opposer’s Notice of Reliance No. 4, 20 TTABVUE 11, 19 and 22. Copy with citationCopy as parenthetical citation