IM Pro Makeup NY LP

Trademark Trial and Appeal Board

Mar 15, 2022

88593451 (T.T.A.B. Mar. 15, 2022)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: March 15, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re IM Pro Makeup NY LP _____ Serial No. 88593451 _____ Kevin T. Duncan of Duncan Galloway Egan Greenwald PLLC, for IM Pro Makeup NY LP. J. Ian Dible, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Taylor, Goodman, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: IM Pro Makeup NY LP (“Applicant”) seeks registration on the Principal Register of the composite mark for: Platform-based services, including Platform as a Service (PaaS) and Application Platform as a Service (aPaaS), namely, providing online non-downloadable e-commerce software and providing websites featuring web-enabled interfaces that allows for collaboration and communication between users being product sponsoring entities, namely, influencers, and product and brand owners; Platform- based services, including Platform as a Service (PaaS) and Serial No. 88593451 - 2 - Application Platform as a Service (aPaaS), namely, providing online non-downloadable e-commerce software and providing websites featuring web-enabled interfaces that allows for collaboration and communication between users being product sponsoring entities, namely, influencers, and product and brand owners and to provide business transactions, content generation, online shopping integration, reporting and analytics services; in International Class 42.1 The Trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the services identified in the application, so resembles the mark KENZA (in standard characters) for: Business management consulting; business process management and consulting; marketing; marketing services; marketing consulting services; promoting the goods and services of others; business marketing consulting services; providing information in the fields of business management consulting and business consulting; business project management in the fields of information systems design, specification, procurement, installations and implementation; market analysis; business appraisals; conducting business and market research surveys; business information services in the field of business change management; business management planning; business merger consultation; business networking; conducting business research and surveys; business supervision; commercial and industrial management assistance; economic forecasting and analysis; personnel management consultation; preparing business reports; arranging and conducting trade shows in the field of business and business management; providing information in the field of business consulting; providing business 1 Application Serial No. 88593451 was filed on August 26, 2019, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use of the mark anywhere and in commerce since at least as early as July 10, 2019. According to the application, as amended: “The mark consists of the stylized wording ‘KENZZA’, where the two ‘Z’ letters are represented as two zigzagged bi-directional arrows.” Color is not claimed as a feature of the mark. Serial No. 88593451 - 3 - consulting by means of a computer database; providing business information in the field of strategic management and development of overall corporate strategy and business initiatives; in International Class 35 and Industrial design; graphic design; engineering design; computer aided design services; computer aided design; software development; software design; computer software testing services; in International Class 42,2 on the Principal Register as to be likely to cause confusion, to cause mistake, or to deceive. After the refusal was made final, the application was abandoned for failure to timely respond to an Office action. Applicant concurrently filed a petition to revive and an appeal to this Board. After the application was revived, the appeal was instituted and fully briefed. We affirm the refusal to register. I. Evidentiary Issues The Examining Attorney objects to “a screen shot” embedded in Applicant’s appeal brief “and quoted information” in the text of the brief, both “purportedly originating from registrant’s website,” as untimely because they were not submitted prior to the appeal. 6 TTABVUE 5 (objection), 4 TTABVUE 10 (embedded image and text).3 Applicant argues that the new web page excerpt “from Registrant’s website, kenza.io,” should be considered because, although it was not submitted prior to appeal, other portions of the same web site were made of record and the new material 2 Registration No. 6010217, issued March 7, 2020, based on a request for extension of protection to the United States under Trademark Act Section 66(a), 15 U.S.C. § 1141f(a). 3 Citations to the briefs in the appeal record refer to the TTABVUE docket system. Citations to the prosecution record refer to the .pdf version of the TSDR system. See In re Integra Biosciences Corp., 2022 USPQ2d 93, *7 (TTAB 2022). Serial No. 88593451 - 4 - derives “from the same website [that] had previously been submitted.” 7 TTABVUE 5. Because the embedded image and textual quote in Applicant’s brief constitute evidence that was not previously submitted, the Examining Attorney’s objection is sustained and the new image and quote will not be considered.4 In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018) (Evidence “submitted with Applicant’s appeal brief that Applicant did not previously submit during prosecution is untimely and will not be considered.”), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)). See also 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. Evidence should not be filed with the Board after the filing of a notice of appeal.”); TRADEMARK TRAIL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.01 (2021). Making part of a web site of record by timely submitting printouts thereof does not make other, unsubmitted portions of that web site of record. Cf. In re ADCO Indus. - Techs., L.P., 2020 USPQ2d 53786, at *2 (TTAB 2020) (web addresses or hyperlinks are insufficient to make the underlying webpages of record); In re HSB Solomon Assocs. LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (“[T]he evanescent nature of web content makes it particularly important that a copy of the relevant material be submitted in the record . . . .”). Applicant submitted as Exhibit 2 to its reply brief the same Exhibit 2 it submitted during the prosecution of the application. See 7 TTABVUE 11-15; November 8, 2020 4 Consideration of the image and text would not change our decision in any event. We have considered the screen shots from Registrant’s website which were made of record with the November 8, 2020 Response to Office Action, at TSDR 26-29. Serial No. 88593451 - 5 - Response to Office Action TSDR 25-29. The Board discourages this practice. In re Lorillard Licensing Co., 99 USPQ2d 1312, 1315 (TTAB 2011) (“[T]he Board discourages attaching such material to briefs. . . . [I]t is far more helpful to identify, by the date of submission and the page numbers in the Office’s [TSDR] database, the material which is referred to in a brief.”); In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007) (attaching evidence from the record to a brief is duplicative and unnecessary). II. Applicable Law Applicant and the Examining Attorney disagree on what law applies to this appeal. As the legal framework for “[t]he test for likelihood of confusion” in its appeal brief, Applicant utilizes the Ninth Circuit’s eight “Sleekcraft factors,” AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808, (9th Cir. 1979). 4 TTABVUE 11. The Examining Attorney argues that although “Applicant insists upon . . . using the Sleekcraft factors,” the question of “likelihood of confusion is determined . . . by applying the factors set forth” by the U.S. Court of Customs and Patent Appeals, a predecessor court to the U.S. Court of Appeals for the Federal Circuit, utilizing the “DuPont factors” “set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973).” 6 TTABVUE 6. While the issue involved in this proceeding is likelihood of confusion under Trademark Act § 2(d),5 each of the Federal circuit courts has crafted its own version 5 Section 2(d) of the Trademark Act provides that a proposed mark, for which application has been made, may be refused registration if it “[c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name Serial No. 88593451 - 6 - of the appropriate test (or has adopted another circuit’s test).6 Because our cases are directly appealable to the Federal Circuit, we apply the 13-factor test laid down by that Court in DuPont; our principal reviewing court and its predecessor have long held that likelihood of confusion is determined by applying the factors set out in DuPont.7 See, e.g., Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002) (“The Board and this court determine likelihood of confusion based on the factors set forth in In re E.I. DuPont DeNemours & Co.”); In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (“Whether a likelihood of confusion exists is . . . determined on a case-specific basis, applying the factors set out in In re E.I. DuPont DeNemours & Co.”) (citations omitted). Our determination under Section 2(d) involves an analysis of all probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. See DuPont, 177 USPQ at 567, cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods [or services] of the applicant, to cause confusion, or to cause mistake, or to deceive . . . .” 15 U.S.C. § 1052(d). 6 See, e.g., Polaroid Corp. v. Polarad Elec. Corp., 287 F.2d 492, 128 USPQ 411 (2d Cir. 1961) (8 factors; First and Second Circuits); Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 200 USPQ 421 (3d Cir. 1978) (10 factors); Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 224 USPQ 185 (4th Cir. 1984) (7 factors); Frisch’s Rest., Inc. v. Elby’s Big Boy, Inc., 670 F.2d 642, 214 USPQ 15 (6th Cir. 1982) (8 factors). 7 Applicant has also, in making some of its arguments, relied on other regional circuit and federal district court cases, some involving the issue of infringement which presents certain differences from the issue of likelihood of confusion as it concerns registrability. We are not bound by these authorities, and we apply the law set forth by the Federal Circuit and its predecessor. At any rate, these cases are distinguishable from the situation in the present appeal, and we will not burden this opinion with a discussion of them. Serial No. 88593451 - 7 - F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We consider each DuPont factor for which there is evidence and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In applying the DuPont factors, we bear in mind the fundamental purposes underlying Trademark Act Section 2(d), which are to prevent confusion as to source and to protect registrants from damage caused by registration of confusingly similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566. The overriding concern is not only to prevent buyer confusion as to the source of the services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993). Varying weights may be assigned to the various DuPont factors depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil, 26 USPQ2d at 1688 (“[T]he various evidentiary factors may play more or less weighty roles in any particular determination.”). In any likelihood of confusion analysis, two key considerations are the similarities between the marks (the first DuPont factor) and the similarity of the goods and services (the second DuPont factor). See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017); In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004). Serial No. 88593451 - 8 - A. Similarity or Dissimilarity of the Marks We begin with the first DuPont factor which considers the “similarities or dissimilarities of the marks in their entireties as to appearance, sound, connotation and commercial impression.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir 2018) (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” Inn at St. John’s, 126 USPQ2d at 1746 (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). Applicant’s mark is . Registrant’s mark is KENZA, in standard characters. Applicant argues that “its mark is not confusingly similar to Registrant’s mark because of the differences in design and stylized form. Applicant’s mark incorporates design elements that Registrant’s mark does not, i.e., the overlapping arrows separating two text strings, which serves to differentiate between the two marks.” 4 TTABVUE 4. The rights associated with a mark in standard characters reside in the wording, not in any particular display. Thus, Registrant’s KENZA registered mark can be depicted in any manner, regardless of the font style, size, or color, and we must consider that Registrant may display its mark so that KENZA is in the exact lettering style used by Applicant. In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1909-10 (Fed. Cir. 2012); Citigroup Inc., 98 USPQ2d at 1259; In re Aquitaine Wine USA, LLC, Serial No. 88593451 - 9 - 126 USPQ2d 1181, 1186 (TTAB 2018). See also Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed or standard character format is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party”). Additionally, purchasers are more likely to remember the identical letters, KENZA appearing in both marks rather than the particular manner of display, because it is the wording in the marks that purchasers will rely on in calling for or referring to the services. See In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987) (the word portion of a composite word and design mark is generally accorded greater weight because it would be used to request the goods or services). The literal element in Applicant’s mark is either KENZA or KENZZA. As the Examining Attorney notes, “[f]rom the time of the initial application filing, [A]pplicant has submitted three separate mark descriptions claiming three different variations of the mark’s literal element.”8 6 TTABVUE 7. The Examining Attorney contends that “the wording conveyed by [A]pplicant’s drawing is that of [R]egistrant’s 8 The initial application described the mark as containing the “letters ‘K’ ‘E’ ‘N’ and ‘A’ . . . with a stylized bi-directional arrow.” August 26, 2019 Application TSDR 1. When required to submit a complete description of the mark, see December 2, 2019 Office Action TSDR 2, Applicant amended the description to: “The mark consists of [sic] the stylized wording ‘KENZA’, where the ‘Z’ is represented as a zigzagged bi-directional arrow.” June 2, 2020 Response to Office Action TSDR 2. The amended description was accepted and entered into the record. June 4, 2020 Office Action TSDR 1. Then, after the Examining Attorney analyzed the similarities of the marks and noted that each comprised the same term ‘KENZA’ which was “identical in appearance, sound, and meaning,” id. at 3, Applicant amended the description to state that its “stylized wording [was] ‘KENZZA’” - with “two ‘Z’ letetrs” [sic] instead of just one. November 8, 2020 Response to Office Action TSDR 2. Serial No. 88593451 - 10 - mark, ‘KENZA’. Specifically, [A]pplicant’s stylized arrow design is presented as the same shape as a single letter ‘Z’ in roughly the same size and proportions of each of the surrounding letters.” Id. Applicant does not directly refute the contention, instead arguing that its mark contains “two overlapping arrows between ‘KEN’ and ‘A.’” 7 TTABVUE 7. We agree with the Examining Attorney that the stylized arrow design in Applicant’s mark appears as the shape of the letter ‘Z’ in approximately the same size and proportion of the other letters in the mark such that consumers are likely to perceive the literal element as KENZA (with one Z). In any event, even assuming that consumers might perceive the literal element of Applicant’s mark as KENZZA (with two Zs), we note that KENZZA is highly similar to the cited mark KENZA in terms of appearance, sound, connotation, and commercial impression. The double letter “Z” as a literal element in Applicant’s mark does little to distinguish the marks. Visually, we find the marks highly similar because they consist of a similarly structured one-word term beginning with the letter string KENZ and ending with ZA. Applicant emphasizes its design element and argues that the Examining Attorney “overlooks the significant visual difference between the marks, [due to Applicant’s] two overlapping arrows versus [Registrant’s] one letter Z.” 4 TTABVUE 6-7. However, as we discussed above, the cited mark is registered in standard characters which means it can be displayed in the same or very similar fonts, with its Z similar to Applicant’s Zs. Citigroup Inc., 98 USPQ2d at 1256. At any rate, Registrant’s standard character KENZA mark is identical to the literal KENZA element of Registrant’s mark, and virtually identical to the literal Serial No. 88593451 - 11 - element KENZZA, should it be perceived with two Zs. While there is no explicit rule that likelihood of confusion automatically applies where an applicant’s mark contains the cited mark, the fact that Applicant’s mark subsumes Registrant’s mark increases the similarity between the two. See, e.g., Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014) (“Likelihood of confusion often has been found where the entirety of one mark is incorporated within another.”). The KENZA or KENZZA element of Applicant’s mark is not only similar and potentially identical in appearance to Registrant’s KENZA mark, it is also identical in sound. Aurally, we find the marks are identical. Applicant has not offered any argument in its briefs with respect to the similarity or dissimilarity of the sound or pronunciation of the marks and thus, appears to concede that the marks have the same sound. As to commercial impression, Applicant argues that the impressions are different because “[t]he two overlapping arrows in Applicant’s mark are distinct and a clear design choice made so that it would catch a consumer’s eye.” 4 TTABVUE 8. Applicant again emphasizes its design element and argues that when its mark is regarded as a whole, it contains “the noticeable design element which strongly differentiates its commercial impression from that of the registered mark in question and eliminates the likelihood of confusion.” Id. at 7. The Examining Attorney, on the other hand, argues that “because their wording portions are identical, the marks are likely to engender the same connotation and overall commercial impression when considered Serial No. 88593451 - 12 - in connection with [A]pplicant’s and [R]egistrant’s respective services.” 6 TTABVUE 8. Applicant does not specifically state what it believes the commercial impression of its mark to be, but Applicant repeatedly points to the design element within its mark. We do not ignore the zigzagged bi-directional arrows in Applicant’s mark, but, we do not find that the overall commercial impression of the composite mark is dominated by the Z-forming arrows. To the contrary, the arrows, while noticeable, are integrated into the wording: the arrow ends overlap with, and serve as a connection between, the N and the A. The mark remains visually balanced, with the arrows merely standing in for one or two Zs. The letters comprising Applicant’s mark maintain uninterrupted readability and consequently, the overall commercial impression of the mark as a whole is the term KENZA or KENZZA. This is the same - or, if KENZZA, highly similar to - the commercial impression of the cited mark. We find the marks are identical in sound, and highly similar in appearance and commercial impression. The first DuPont factor heavily supports a finding of likelihood of confusion. B. Strength or Weakness of the Cited Registered Mark Under the fifth and sixth DuPont factors, we consider the strength of the cited registered mark, and the degree to which that strength may be attenuated by “[t]he number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567. These factors address the strength of a mark with respect to both its inherent strength, based on the nature of the term itself, and its commercial strength, based Serial No. 88593451 - 13 - on the marketplace recognition value of the term as a mark. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014) (citing In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength ....”)). Applicant argues, presumably under the fifth and sixth DuPont factors,9 that the relative strengths of Applicant’s and Registrant’s marks “do not arise to a measurable occurrence of any significance.” 4 TTABVUE 13. However, Applicant submitted no evidence addressing either the conceptual or commercial strength of Registrant’s mark. It is well settled that “[a]ttorney argument is no substitute for evidence,” Cai v. Diamond Hong, 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). Conceptually, there is no evidence that KENZA has any meaning associated with the cited services; thus, it appears on this record to be an arbitrary (conceptually strong) mark. At any rate, because the cited mark is registered on the Principal Register without a claim to acquired distinctiveness, it is presumptively valid and distinctive for the identified services. Trademark Act Sections 7(b) and 33(a), 15 9 Applicant argues “The Relative Strength of the Marks” under Sleekcraft. See 4 TTABVUE 12-14. Because we consider each DuPont factor for which there is evidence and argument, see Guild Mortg., 129 USPQ2d at 1162-63, we have considered this argument under the fifth and sixth DuPont factors. Serial No. 88593451 - 14 - U.S.C. §§ 1057(b) and 1115(a); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007). Commercially, the marketplace strength or “fame” of the cited mark KENZA is presumptively treated as neutral, since the owner of the cited registration is not a party to this ex parte appeal, and examining attorneys, with their somewhat limited resources, are not expected to submit evidence of commercial strength. See, e.g., In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1632 (Fed. Cir. 2003); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1086-88 (TTAB 2016) (citing In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006)). See generally TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1207.01(d)(ix) (July 2021). Without any demonstrated meaningful weakness, the fifth and sixth DuPont factors are neutral in our likelihood of confusion analysis. Accordingly, we accord Registrant’s KENZA mark the normal scope of protection to which a distinctive mark is entitled. See Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies along a spectrum from very strong to very weak). C. Similarity or Dissimilarity of the Services and Channels of Trade The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration,’” while the third DuPont factor considers “the similarity or dissimilarity of established, likely-to continue trade channels.” Detroit Athletic Co., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ at 567). We must make our determinations under these factors based on Serial No. 88593451 - 15 - the services as they are identified in the application and cited registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting 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 [services] set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s [services], the particular channels of trade or the class of purchasers to which the sales of [services] are directed.”)); see also In re Info. Builders Inc., 2020 USPQ2d 10444, *2 (TTAB 2020). In determining whether the services are related, it is not necessary that the services of Applicant and Registrant be similar or competitive in character to support a holding of likelihood of confusion. It is sufficient that the respective services are related in some manner, or that the conditions and activities surrounding the marketing of the services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originate from the same source. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Hilson Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993). The issue is not whether consumers would confuse Applicant’s services with Registrant’s services, but rather whether there is a likelihood of confusion as to the source of these services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). Moreover, Serial No. 88593451 - 16 - registration must be refused if Applicant’s mark for any of its identified services is likely to cause confusion with Registrant’s mark for any of its identified services. Info. Builders, 2020 USPQ2d 10444, *2 (citing SquirtCo v. Tomy Corp., 216 USPQ at 938- 39 (holding that a single good from among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must be found if there is likely to be confusion with respect to any item that comes within the identification of goods or services in the application)). As indicated above, Applicant’s services are Platform-based services, including Platform as a Service (PaaS) and Application Platform as a Service (aPaaS), namely, providing online non-downloadable e-commerce software and providing websites featuring web-enabled interfaces that allows for collaboration and communication between users being product sponsoring entities, namely, influencers, and product and brand owners; Platform- based services, including Platform as a Service (PaaS) and Application Platform as a Service (aPaaS), namely, providing online non-downloadable e-commerce software and providing websites featuring web-enabled interfaces that allows for collaboration and communication between users being product sponsoring entities, namely, influencers, and product and brand owners and to provide business transactions, content generation, online shopping integration, reporting and analytics services; and Registrant’s services include, inter alia, marketing, marketing services, marketing consulting services, and providing business consulting by means of a computer database. Applicant contends that the cited registration contains an “expansive and broadly worded” identification of services that, although acceptable in Europe (where Serial No. 88593451 - 17 - Registrant obtained an international registration that formed the basis for its request for extension of protection to the United States), is “over broad” and “is now being misconstrued as likely to cause confusion with Applicant’s mark” in the United States. 4 TTABVUE 17, 18. Applicant further contends that Registrant “operat[es] solely in Germany” and only “to businesses employing traditional business models,” while Applicant markets its services only “to e-commerce sites, specifically those selling cosmetics, makeup and beauty products.” Id. at 13, 14. Applicant’s contentions about multiple alleged “real world” differences between the services, channels of trade, and geographic scope of use are not reflected in the identifications of services in the registration or application. As stated and now emphasized, we must “decide this ex parte appeal based on the information on the face of the cited registration; we do not read in limitations.” In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1384 (TTAB 2012). See also, e.g., Stone Lion, 110 USPQ2d at 1162 (Board must “give full sweep” to an identification of services regardless of registrant’s actual business); In re FCA US LLC, 126 USPQ2d 1214, 1217 (TTAB 2018) (“In the registration context, likelihood of confusion is determined by the marks, the . . . services, and the usages disclosed in the application and the cited registration. Evidence of actual marketplace usages that seeks to limit or alter the usages encompassed by the marks . . . and services, or usages listed in the application and registration are not considered in assessing likelihood-of-confusion in the registration context.”). In addition, the cited registration entitles the owner to nationwide rights. 15 U.S.C. §§ 1057(b), 1141f(b)10; 10 “Section 66(b), 15 U.S.C. § 1141f(b), confers the same rights as those specified in Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c), including that the filing of an application for Serial No. 88593451 - 18 - Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983); In re Integrity Mutual Ins. Co., 216 USPQ 895, 896 (TTAB 1982). As the Board has pointed out: [A]pplicant was not without possible remedies here, including seeking a consent from the owner of the cited registration, or seeking a restriction of the registration under Section 18 of the Trademark Act, 15 U.S.C. § 1068 . . . . A party in applicant’s position can file a petition for cancellation of the cited registration, requesting a restriction or modification of registrant’s description of its mark on the basis that the description is “ambiguous or overly broad and not specific to the mark actually used” in the marketplace. . . . Such a claim can be used to modify overly broad identification of goods (for example, “computer programs”). See IdeasOne Inc. v. Nationwide Better Health Inc., 89 USPQ2d 1952, 1954-55 (TTAB 2009), citing In re N.A.D. Inc., 57 USPQ2d 1872, 1874 (TTAB 2000). Cook Med. Tech., 105 USPQ2d at 1384.11 In support of the refusal and to demonstrate that the services are related and provided through the same channels of trade to the same customers, the Examining Attorney introduced internet webpage printouts from Obviously, Perlu, and Tribe registration on the Principal Register establishes constructive use and nationwide priority, contingent upon issuance of a registration.” Compagnie Gervais Danone v. Precision Formulations LLC, 89 USPQ2d 1251, 1254 n.4 (TTAB 2009) (emphasis added). 11 Section 18 claims may be asserted only in inter partes proceedings, and not during an ex parte appeal; further, the Board may not grant relief under Section 18 sua sponte. In addition, we note that the third anniversary of the cited registration occurred just three days after Applicant filed this ex parte appeal. If Applicant did not believe Registrant had ever used the mark in the United States with the recited services, it had an additional remedy. See Dragon Bleu (SARL) v. VENM, LLC, 112 USPQ2d 1925, 1931 (TTAB 2014) (for purposes of abandonment, the relevant period nonuse begins to run from the date of issuance of a Section 66(a) registration); Saddlesprings, Inc. v. Mad Croc Brands, Inc., 104 USPQ2d 1948, 1952 (TTAB 2012) (“Section 66(a) registrations which have never been used [in the U.S.], or for which use has been discontinued with no intent to resume use, may be subject to cancellation for abandonment.”). Serial No. 88593451 - 19 - Dynamics demonstrating that the same entity commonly offers Registrant’s identified marketing and marketing consulting services as well as Applicant’s identified online platforms for connecting influencers12 and brands for collaborations. See November 24, 2020 Office Action TSDR 6-14 (obvious.ly), 15-31 (perlu.com), 32- 43 (tribedynamics.com). Obviously advertises itself as “a full-service influencer marketing agency, built to guide you through every step of the process, perfectly tailoring each campaign to meet your unique business needs.” Id. at 7. Obviously “offer[s] innovative marketing packages” for brand owners, id. at 9, and a “technology platform” that provides “continually updated data” related to “all the influencers you work with” and the ability to “track all the content they create for your brand.” Id. at 12. Obviously matches influencers to brand owners and then manages the business relationship. Id. at 12, 13. As the Examining Attorney describes it, and as demonstrated by the evidence, Obviously offers “a technology platform that allows brands to search for, connect with, and track content of influencers.” 6 TTABVUE 11. Perlu allows brand owners to “[c]onnect and collaborate with highly creative influencers,” advertises that it “can scale your influencer marketing to historic levels,” and offers “strategic consulting” and marketing “campaign management” on its platform. November 24, 2020 Office Action TSDR 17, 21. Similarly, Tribe 12 An “influencer” is “a person who is able to generate interest in something (such as a consumer product) by posting about it on social media.” Merriam-webster.com, accessed March 13, 2021. The Board may take judicial notice of dictionary definitions from online sources when the definitions themselves are derived from dictionaries that exist in printed form or have regular fixed editions. See, e.g., In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013). Serial No. 88593451 - 20 - Dynamics allows brand owners to “[d]iscover, track, and measure your best influencer relationships with an influencer marketing platform,” “unlock your brand’s influencer marketing potential,” and “identify and activate your most valuable influencer relationships” using its “comprehensive set of tools, service, and data- driven insights for influencer marketing.” Id. TSDR 32, 38, 40. The Examining Attorney also introduced internet webpage printouts from Marketing Maven, Sensei Marketing, and WPromote to further demonstrate that Applicant’s and Registrant’s “services are provided through the same trade channels and are used by the same classes of consumers in the same fields of use.” The evidence shows that these companies offer, respectively, “influencer marketing services,” “influence marketing services,” and “influencer marketing.” June 4, 2020 Office Action TSDR 8 (marketingmave.con), 9 (senseimarketing.com), 10 (wpromote.com). Marketing Maven explains that “[a]s the marketing landscape continues to evolve, one of the largest trends . . . is influencer marketing. Put simply, influencer marketing is the product of new age marketing tools and traditional public relations. . . . In essence, influencer marketing grasps the concept of celebrity endorsements and transitions it into a more modern content marketing campaign” which begins with “[f]inding the appropriate influencers for your brand.” Id. TSDR 8. This evidence demonstrates a very close, if not overlapping, relationship of Applicant’s services with the broadly identified “marketing services” identified in the cited registration. We agree with the Examining Attorney that Registrant’s broadly identified “marketing services” may “encompass the purpose and function of [A]pplicant’s Serial No. 88593451 - 21 - identified software and website services, which are aimed at connecting influencers with product and brand owners for marketing opportunities.” 6 TTABVUE 11-12. The Examining Attorney’s internet evidence summarized above establishes that Applicant’s platform-based services allowing for collaboration and communication between influencers and product and brand owners, and Registrant’s broadly identified marketing and marketing consulting services, are closely related because they overlap to a degree and consumers are accustomed to encountering such services offered under the same mark. See Detroit Athletic Co., 128 USPQ2d at 1050 (crediting relatedness evidence that third parties use the same mark for the goods and services at issue because “[t]his evidence suggests that consumers are accustomed to seeing a single mark associated with a source that sells both”); Hewlett-Packard, 62 USPQ2d at 1004 (stating that evidence that “a single company sells the goods and services of both parties, if presented, is relevant to a relatedness analysis”). The evidence similarly establishes that these services are offered through the same channels of trade to the same consumers. The DuPont factors relating to the similarity of the services and channels of trade also favor a finding of likelihood of confusion. D. Conditions under which and Buyers to whom Sales are Made Concerning the fourth DuPont factor, which involves “[t]he conditions under which and buyers to whom sales are made, i.e., impulse vs. careful, sophisticated purchasing,” DuPont, 177 USPQ at 567, Applicant contends that “the consumers of both Applicant’s and Registrant’s services can be fairly characterized as ones Serial No. 88593451 - 22 - expected to exercise a relatively high degree of care, as both Applicant’s and Registrant’s services/products have the ability to significantly impact the business operations and revenue generation capabilities of a company and the cost of such services/products pose significant budgetary considerations for most companies.” 4 TTABVUE 14-15. Applicant submitted no supporting evidence, but its argument is grounded in part in the fact that the services are directed to making money. There is no evidence that consumers of Applicant’s and Registrant’s services are otherwise limited beyond the general brand owner, business owner, and influencer populations. There is no evidence to suggest that influencers (i.e., anyone on social media who is able to generate interest in something such as a consumer product) or brand owners would be uniformly sophisticated and likely to exercise more than ordinary care in purchasing the services. Furthermore, we must make our determination based on the least sophisticated consumer. Stone Lion, 110 USPQ2d at 1163 (likelihood-of- confusion decision must be based “on the least sophisticated potential purchasers”). The record does not support any elevated degree of care in purchasing marketing services or web-enabled interface services allowing for collaboration between influencers and brand owners. But even assuming that purchasers of the services at issue might exercise a heightened degree of purchasing care when it comes to their business decisions, even careful, sophisticated purchasers are not immune from source confusion, especially in cases such as this one involving highly similar marks and similar, if not overlapping, services. See In re Research Trading Corp., 793 F.2d Serial No. 88593451 - 23 - 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“Human memories even of discriminating purchasers...are not infallible.”) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)). See also HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840, 1841-42 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decision, and expensive goods). Accordingly, we find the fourth DuPont factor neutral. E. Nature and Extent of any Actual Confusion The seventh DuPont factor considers the “nature and extent of any actual confusion,” DuPont, 177 USPQ at 567, and the eighth DuPont factor considers “the length of time during and conditions under which there has been concurrent use without evidence of actual confusion.” In re Guild Mortg., 2020 USPQ2d 10279, at *6 (TTAB 2020) (quoting DuPont, 177 USPQ at 567). Generally, the absence of any reported instances of confusion is meaningful only if the applicant provides contextual evidence that allows the Board to meaningfully assess the length of time and degree to which the applicant’s and registrant’s commercial activities would have provided an opportunity for confusion to have manifested itself if it were likely. In re Embiid, 2021 USPQ2d 577, at *39 (TTAB 2021) (citing Guild Mortg., 2020 USPQ2d 10279, at *8); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *9 (TTAB 2019). Applicant argues that “no instances of actual confusion have ever come to the attention of Applicant” and “contends this additional factor weighs in favor of no Serial No. 88593451 - 24 - likelihood of confusion, mistake, or deception in the marketplace.” 4 TTABVUE 16. The brief cites no evidence to support Applicant’s argument, and there is no evidence of record as to the length of time and degree to which Applicant’s and Registrant’s commercial activities may have provided an opportunity for confusion to occur. We note that the cited registration was registered under Section 66(a), which, as Applicant notes, see 4 TTABVUE 17, does not require use in commerce for registration. See 15 U.S.C. § 1141h(a)(3). Although Applicant makes assertions in its brief that no actual confusion has occurred, again, “[a]ttorney argument is no substitute for evidence.” Cai v. Diamond Hong, 127 USPQ2d at 1799. Moreover, “in this ex parte context, there has been no opportunity to hear from Registrant about whether it is aware of any reported instances of confusion.” Guild Mortg., 2020 USPQ2d 10279 at *7. Finally, Applicant’s own contentions about the disparate geographic areas of the actual services (i.e., Registrant operates in Germany), a relevant consideration under the eighth DuPont factor, suggest a lack of opportunity for actual confusion to have occurred. See Chutter, Inc. v. Great Mgmt. Grp., 2021 USPQ2d 1001, *46-47 (TTAB 2021) (“differences in the parties’ geographic trading areas ... does not establish that there has been a reasonable opportunity for confusion to have occurred”). We find the seventh and eighth DuPont factors neutral. F. Other Established Facts Probative of the Effect of Use We consider Applicant’s remaining Sleekcraft arguments under the thirteenth DuPont factor, which contemplates “[a]ny other established fact probative of the Serial No. 88593451 - 25 - effect of use.” In re FCA US LLC, 126 USPQ2d at 1219 (quoting DuPont, 177 USPQ at 567) (considering Sleekcraft factors under thirteenth factor). Applicant argues that “no adverse intent on the part of Applicant [in adopting its mark] can be either established or implied” because not only are the “services” and “market segments” of Applicant and Registrant “unrelated,” but “Applicant and Registrant are not competing for business. In addition, Registrant operates in a distinct geographic area, while Applicant operates solely online.” 4 TTABVUE 15, 16. This argument combines several other factors, discussed above. There is no evidence of Applicant’s bad faith intent in adopting its mark or filing the subject application. Nonetheless, while a finding of bad faith intent will weigh against an applicant, good faith adoption and the mere absence of “evidence of intent to trade on the goodwill of another” typically does not aid an applicant attempting to establish no likelihood of confusion.” See J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991); Apple Comput. v. TVNET.net Inc., 90 USPQ2d 1393, 1398 n. 7 (TTAB 2007). Applicant also argues that it “is extremely unlikely” that Registrant would expand its service line such that the “expansion could render the probability of confusion, mistake, or deception greater than it was at the time of original consideration.” 4 TTABVUE 16. However, we are not concerned with such expansion in the ex parte context. See Orange Bang, Inc. v. Ole Mexican Foods, Inc., 116 USPQ2d 1102, 1119 (TTAB 2015) (“natural zone of expansion” doctrine normally applies in inter partes where priority is an issue); In Re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1266 Serial No. 88593451 - 26 - (TTAB 2011) (“[I]n the context of an ex parte proceeding the analysis should be whether consumers are likely to believe that the services emanate from a single source, rather than whether the owner of the cited registration has or is likely to expand its particular business to include the goods [or services] of applicant.”). The Board considers the concept in ex parte proceedings through a traditional relatedness of goods and services approach. In re Ginc UK Ltd., 90 USPQ2d 1472, 1480 n.9 (TTAB 2007). Moreover, and importantly, we have found above that the services identified in the application and cited registration are very close, if not overlapping. The thirteenth DuPont factor is neutral. G. Summary We have found that the marks are identical in sound, and highly similar in appearance and commercial impression; the services are closely related because they overlap to a degree and are commonly offered under the same mark, through the same channels of trade. The first, second, and third DuPont factors favor a finding of likelihood of confusion; and the fourth, fifth, sixth, seventh, eighth, and thirteenth DuPont factors are neutral. Confusion is likely. III. Decision The refusal to register Applicant’s mark is affirmed.