James Miller

Trademark Trial and Appeal Board

Jan 18, 2022

88698506 (T.T.A.B. Jan. 18, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: January 18, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re James Miller _____ Serial No. 88698506 _____ Russell Williams, Esq., for James Miller. Sahar Nasserghodsi, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Kuczma, Greenbaum and Larkin, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: James Miller (“Applicant”) seeks registration on the Principal Register of the mark KYBERDIGITAL and Design, displayed as , for Advertising and business management consultancy; Public relations; Public relations consultancy; Search engine optimization for sales promotion; Social media strategy and marketing consultancy focusing on helping clients create and extend their product and brand strategies by building virally engaging marketing solutions; Advertising and marketing services provided by means of indirect methods of marketing communications, namely, social media, search engine marketing, inquiry marketing, internet marketing, mobile marketing, blogging and other Serial No. 88698506 - 2 - forms of passive, sharable or viral communications channels; Advertising services, public relations and marketing services, namely, promoting and marketing the goods and services of others through all public communication means; Advice in the field of business management and marketing; Branding services, namely, consulting, development, management and marketing of brands for businesses and/or individuals; Business management consulting with relation to strategy, marketing, sales, operation, product design particularly specializing in the use of analytic and statistic models for the understanding and predicting of consumers, businesses, and market trends and actions; Business monitoring and consulting services, namely, tracking web sites and applications of others to provide strategy, insight, marketing, sales, operation, product design, particularly specializing in the use of analytic and statistic models for the understanding and predicting of consumers, businesses, and market trends and actions; Business reputation management and improvement services; Consultancy regarding public relations communication strategies; Consulting services in the field of search engine optimization for sales promotion; Custom writing services comprising public relations and marketing materials for the audio, video and technology industries; Event planning and management for marketing, branding, promoting or advertising the goods and services of others; Marketing services, namely, providing informational web pages designed to generate sales traffic via hyperlinks to other web sites; On-line customer-based social media brand marketing services; Pay per click (PPC) advertising management services; Providing business information in the field of social media; Providing demand creation and lead generation activities and services; Providing marketing consulting in the field of social media; Providing online business management services including accounting, marketing, business project management, and business development, in International Class 35.1 1 Application Serial No. 88698506 was filed on November 19, 2019, based upon Applicant’s claim of first use anywhere since at least as early as July 15, 2019, and first use in commerce since at least as early as August 1, 2019, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). The application includes the following description of the mark and color claim: “The mark consists of two overlapping purple squares outlined in light purple intersected by Serial No. 88698506 - 3 - 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 mark KYBER DATA SCIENCE (in standard characters, DATA SCIENCE disclaimed) for Performing business data analytics services for the purpose of allowing companies, individuals, and organizations to draw conclusions about information and make business and investment decisions; providing business information, namely, providing compiled consumer, financial and business data to be used for analytics for business purposes so that companies, individuals, and organizations may draw conclusions about that information and make informed business and investment decisions, in International Class 35, as to be likely to cause confusion, mistake or deception.2 When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of a two dimensional rectangle with the top and bottom forming a point, being light blue on the left hand side and gray and blue on the right hand side and outlined in light blue with the word ‘KYBERDIGITAL’ written to the right in dark blue with ‘KYBER’ in bold letters. The dark gray background represents transparent or background areas and is not a feature of the mark.” “The colors blue, purple, light purple, dark gray, dark blue and light blue are claimed as a feature of the mark.” 2 Registration No. 5950759 issued on December 31, 2019. Serial No. 88698506 - 4 - 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). We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, however, two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. Similarity or Dissimilarity of the Marks Under this factor, we compare Registrant’s standard character mark KYBER DATA SCIENCE and Applicant’s mark “in their entireties as to appearance, sound, connotation and commercial impression.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 122 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v Coca- Cola Bottling Co., 390 F.2d 728, 156 USPQ523, 526 (CCPA 1968) (“It is sufficient if Serial No. 88698506 - 5 - the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018). Because similarity is determined based on the marks in their entireties, our analysis is not predicated on dissecting the marks into their various components. Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); see also 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.”). On the other hand, “there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). For instance, as the U.S. Court of Appeals for the Federal Circuit has observed, “[t]hat a particular feature is descriptive or generic with respect to the involved goods or services is one commonly accepted rationale for giving less weight to a portion of a mark….” Id. at 751. Further, the marks “must be considered … in light of the fallibility of memory …” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) Serial No. 88698506 - 6 - (quotation omitted). We focus on the recollection of the average consumer, here an average businessperson, who normally retains a general rather than a specific impression of trademarks. Id. at 1085; Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971). Applicant argues that the Examining Attorney dissected the marks, and that when the marks are compared in their entireties, they look and sound different, and they convey different commercial impressions. Pointing to dictionary definitions of “data” as “factual information (such as measurements or statistics) used as a basis for reasoning, discussion, or calculation,” and “science” as “something (such as a sport or technique) that may be studied or learned like systematized knowledge,” Applicant contends Registrant’s mark KYBER DATA SCIENCE “impl[ies] to a consumer that this company is involved in the analysis of data for some specified use” that is “further defined as analyzing investment and business operations as a service,” while KYBERDIGITAL “in no way implies to a general consumer some sort of ‘SCIENCE’ or investment service, rather electronic or computer technology or numbers.” App. Br., 11 TTABVUE 8-9. As a corollary, Applicant argues that “[t]he literal element ‘KYBERDIGITAL’ consists of one word referencing the electronic marketing services which will be sold by the Applicant. This one word does not imply a scientific analysis of data sold for investment purposes or other purposes as does the registered mark.” Id., 11 TTABVUE 13-14. The Examining Attorney focuses on the visual and aural similarities between the marks due to the shared term KYBER, which the Examining Attorney contends is Serial No. 88698506 - 7 - the most distinctive portion, and therefore the strongest source-identifying element, of each of the marks, combined with a term that is descriptive of the identified services. Ex. Atty. Br., 13 TTABVUE 5-9. We agree with the Examining Attorney’s assessment of the similarity of the marks. When considered in their entireties, we find Applicant’s mark and Registrant’s mark KYBER DATA SCIENCE very similar overall due to the shared term KYBER, which appears in the first literal position in each mark, followed by wording which would be perceived simply as indicating the general category of services provided in association with each mark. There is no evidence that KYBER has any meaning or significance when applied to the various advertising, public relations, marketing and related services, including search engine optimization (SEO), digital and pay per click (PPC) advertising services, and business consulting services using analytic and statistical models, identified in the application, or to the business data analytics services identified in the registration, and there is no evidence of use by third parties of similar marks in association with similar services that might dilute the source-identifying capacity of KYBER for those services.3 On the other hand, the trailing term DATA SCIENCE in Registrant’s mark, which is defined as “the use of scientific methods to obtain useful 3 Applicant argues, without evidentiary support, that the shared term KYBER is weak and diluted due to other KYBER-formative marks. App. Br., 11 TTABVUE 19-20. This argument is speculative, and therefore unpersuasive. See Cai, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) (“Attorney argument is no substitute for evidence.”)). Serial No. 88698506 - 8 - information from computer data, especially large amounts of data,” is at least descriptive of the identified data analytics services, and appropriately has been disclaimed.4 See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997). Similarly, the trailing term DIGITAL in Applicant’s mark, which is defined as “available in electronic form; readable and manipulable by computer,”5 describes the manner in or means through which Applicant provides its various advertising, public relations, marketing and related services, including SEO (search engine optimization), digital and PPC (pay per click) advertising services, and business consulting services using analytic and statistical models. Indeed, in arguing that the marks convey different commercial impressions, and as mentioned above, Applicant states: “The literal element ‘KYBERDIGITAL’ consists of one word referencing the electronic marketing services which will be sold by the Applicant.” App. Br., 11 TTABVUE 13. Descriptive matter typically is less significant or less dominant when comparing marks. See Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846 (quoting Nat’l Data, 224 USPQ at 752 (the “descriptive component of a mark may be given little weight in reaching a conclusion on likelihood of confusion”)). We find that to be the case here, 4 We take judicial notice of this definition, accessed at https://dictionary.cambridge.org/us/dictionary/english/data-science on January 13, 2022. 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). 5 We likewise take judicial notice of this definition, accessed at https://www.dictionary.com/browse/digital (based on THE RANDOM HOUSE UNABRIDGED DICTIONARY (2022)) on January 13, 2022. Serial No. 88698506 - 9 - where consumers likely will view the term DATA SCIENCE in Registrant’s mark and the word DIGITAL in Applicant’s mark in their descriptive senses rather than as source-distinguishing elements of either mark. With regard to the design element in Applicant’s mark, although we assess each mark in its entirety, wording often is considered the dominant feature of a mark comprising both literal and design elements because it is most likely to indicate the source of the services. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982 (2016); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). The words are likely to make a greater impression upon purchasers than the designs and would be remembered by them and used by them to request the services. See Viterra, 101 USPQ2d at 1908 and 1911 (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)). This general principle applies here, where the word KYBER appears in a bolder, darker font than the word DIGITAL, and the design element would not be verbalized. The prominence of the term KYBER is further enhanced by its placement as the initial literal element in each mark. See Palm Bay Imps., 73 USPQ2d at 1692; Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed in the mind of a purchaser and remembered”); see also Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers must first notice the identical lead word). Serial No. 88698506 - 10 - Finally, Registrant’s standard character mark is not limited to any particular depiction. The rights associated with a standard character mark reside in the wording and not in any particular display. In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988); Trademark Manual of Examining Procedure (“TMEP”) § 1207.01(c)(iii) (July 2021). We must consider Registrant’s standard character mark “regardless of font style, size, or color” Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011), including iterations displaying the mark in the same font and color as the words KYBER and DIGITAL in Applicant’s mark. Accordingly, we find that KYBER is the dominant element in each mark, and we give that term more weight than the other elements of the marks in our likelihood of confusion analysis. In making this finding, we do not ignore the presence of the additional wording in either mark, or the design element in Applicant’s mark. However, for the reasons discussed above, we believe consumers are more likely to remember and use the term KYBER than the other terms in either mark. Nat’l Data, 224 USPQ at 751. In sum, we find the sound, appearance, meaning and overall commercial impression of the marks KYBER DATA SCIENCE and KYBERDIGITATL and Design, displayed as , to be very similar when the marks are considered in their entireties. Serial No. 88698506 - 11 - The DuPont factor of the similarity of the marks favors a finding of a likelihood of confusion. B. Similarity or Dissimilarity of the Services and Channels of Trade We turn next to the DuPont factors involving the similarity of the services, and the similarity of established, likely-to-continue channels of trade. We base our evaluation on the services as they are identified in the application and cited registration. See Detroit Athletic Co., 128 USPQ2d at 1052; Dixie Rests., 41 USPQ2d at 1534; see also Stone Lion, 110 USPQ2d at 1161; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). 1. Similarity or Dissimilarity of the Services The second DuPont factor “considers whether ‘the consuming public may perceive [the respective services] as related enough to cause confusion about the source or origin of the [services]….’” St. Helena Hosp., 113 USPQ2d at 1086 (quoting Hewlett- Packard, 62 USPQ2d at 1004). “It is sufficient for a finding on likelihood of confusion that relatedness is established for any item encompassed by the identification of [services] in the application.” DeVivo v. Ortiz, 2020 USPQ2d 10153, at *11 (TTAB 2020) (citing Tuxedo Monopoly, Inc. v. Gen Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). Here, the registration identifies “Performing business data analytics services for the purpose of allowing companies, individuals, and organizations to draw Serial No. 88698506 - 12 - conclusions about information and make business and investment decisions; providing business information, namely, providing compiled consumer, financial and business data to be used for analytics for business purposes so that companies, individuals, and organizations may draw conclusions about that information and make informed business and investment decisions.” As the Wikipedia entry for “Analytics” explains, “Analytics is the discovery, interpretation, and communication of meaningful patterns in data. It also entails applying data patterns towards effective decision making. … Organizations may apply analytics to business data to describe, predict, and improve business performance.” March 1, 2020 Office Action, TSDR 6. Marketing optimization/marketing analytics and digital analytics are among the common applications of business analytics. Id., TSDR 6-8. Marketing optimization/marketing analysis is a “highly data-driven process” that uses, among other things, web analytics to allow marketers to collect information about interactions on a website, such as keyword searches (through free tools such as Google Analytics). Id., TSDR 7. Digital analytics “is a set of business and technical activities that define, create, collect, verify or transform digital data into reporting, research, analysis, recommendations, optimizations, predictions, and automations. This also includes the SEO (search engine optimization) where the keyword search is tracked and that data is used for marketing purposes.” Id., TSDR 7-8. The application identifies various advertising, public relations, marketing, and related services, including “search engine optimization for sales promotion” and Serial No. 88698506 - 13 - related SEO consulting services, digital and PPC advertising services, as well as business consulting services using analytic and statistical models, specifically: “business management consulting with relation to strategy, marketing, sales, operation, product design particularly specializing in the use of analytic and statistic models for the understanding and predicting of consumers, businesses, and market trends and actions,” and “business monitoring and consulting services, namely, tracking web sites and applications of others to provide strategy, insight, marketing, sales, operation, product design, particularly specializing in the use of analytic and statistic models for the understanding and predicting of consumers, businesses, and market trends and actions.” The SEO and business consulting services identified in the application involve marketing optimization/marketing analytics and digital analytics services of the types discussed in the Wikipedia entry for “Analytics,” and thus they are closely related to the business data analytics services identified in the registration. Many of the other advertising, marketing and public relations services identified in the application are facially related to the business data analytics services identified in the registration. As the Wikipedia entry for “Analytics” explains, the former use the latter to make effective business decisions including decisions about consumer targeting. March 1, 2020 Office Action, TSDR 6-8. See Hewlett-Packard, 62 USPQ2d at 1004-05 (discussing the relationship of various goods and services based solely on the identifications in the application and registration, without additional evidence). Serial No. 88698506 - 14 - Screenshots from third-party commercial websites provide further support for our findings about the relationship between the services identified in the application and registration. For example, screenshots from the websites of American Eagle, Bain & Co., Centric, DAC, McKinsey & Co., Mindtree and Three Ventures show that each company offers, under the same mark, business data analytics services of the type offered by Registrant, as well as marketing, advertising, digital marketing and advertising, and/or SEO services of the type offered by Applicant. February 3, 2021 Final Office Action, TSDR 2-109. These webpages are probative of the relatedness of the identified services. See, e.g., In re C.H. Hanson Co., 115 USPQ2d 1351, 1355-56 (TTAB 2015); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). Applicant points to Registrant’s website as support for its assertion that the services are different because Registrant’s services are designed to help investors in the healthcare industry improve their investment decisions in that industry, while Applicant only provides marketing and advertising services. App. Br., 11 TTABVUE 16. These arguments are unconvincing because our determination under this DuPont factor is based on the description of the services in the application and cited registration, not on extrinsic evidence of actual use. In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1749 (Fed. Cir. 2017); Stone Lion, 110 USPQ2d at 1162. In other words, an applicant may not restrict the scope of the services covered in its application or the cited registration by argument or extrinsic evidence. Octocom, 16 USPQ2d at 1787 (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth Serial No. 88698506 - 15 - in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed.”). As we just discussed, the record supports a finding that the services identified in the application (which include services beyond marketing and advertising) and the registration include closely and facially related services that may emanate from a common source. In any event, the services do not have to be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis. 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 respective services need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that [the services] emanate from the same source.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (citation omitted). See also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). The issue is not whether purchasers would confuse the services, but rather whether there is a likelihood of confusion as to the source of the services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984). Again, the services as identified in the application and registration include closely and facially related services, and the Wikipedia and third-party commercial website evidence support this finding. Serial No. 88698506 - 16 - 2. Similarity or Dissimilarity of Trade Channels Turning to the channels of trade, we initially note that neither identification of services in the application or cited registration includes any restriction regarding channels of trade, consumer or price; we must therefore presume that the recited services are sold in the ordinary or normal trade channels for such services, to all consumers for such services and without any limitation as to price. Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1357 (Fed. Cir. 2000) (“When the registration does not contain limitations describing a particular channel of trade or class of customer, the goods or services are assumed to travel in all normal channels of trade.”); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). The Internet evidence demonstrating that the services identified in the application and cited registration are closely and facially related also supports a finding that such services move in the same channels of trade, namely, advertising, PR and business consulting firms, and are sold to the same classes of consumers, namely, members of the general public involved in business. Thus, the channels of trade and classes of purchasers for the services overlap. The second and third DuPont factors also favor a finding of likelihood of confusion. C. Other DuPont Factors In a section titled “The Examiner has not Correctly Applied the Remaining DuPont Factors,” Applicant, with one exception, essentially reiterates the arguments addressed and found unpersuasive above. Repetition does not aid Applicant. Serial No. 88698506 - 17 - The only new “argument” is Applicant’s conclusory statement, listed under the eighth DuPont factor, that “There has been no evidence of actual confusion.” 11 TTABVUE 19. Generally, the “lack of evidence of actual confusion carries little weight, especially in an ex parte context,” Majestic Distilling, 65 USPQ2d at 1205, and that is the case here. There is no evidence about the extent of Applicant’s use of his mark or Registrant’s use of the cited mark. Therefore, we cannot conclude that that there has been a meaningful opportunity for confusion to have occurred. Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *9 (TTAB 2019) (explaining that “for the absence of actual confusion to be probative, there must have been a substantial opportunity for confusion to have occurred”); Barbara’s Bakery Inc. v Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the absence of actual confusion depends upon there being a significant opportunity for actual confusion to have occurred). Nor do we know whether Registrant is aware of any instance of actual confusion. In re Guild Mortg. Co., 2020 USPQ2d 10279, at *7 (TTAB 2020) (“[I]n this ex parte context, there has been no opportunity to hear from Registrant about whether it is aware of any reported instances of actual confusion. We therefore are getting only half the story.”). In any event, “[a] showing of actual confusion is not necessary to establish a likelihood of confusion.” i.am.symbolic, 123 USPQ2d at 1747. Again, “the relevant test is likelihood of confusion, not actual confusion.” Detroit Athletic Co., 128 USPQ2d at 1053 (emphasis in original). Accordingly, the eighth DuPont factor is neutral in our likelihood of confusion analysis Serial No. 88698506 - 18 - D. Conclusion In view of the similarity of the marks, the close and facial relationship between the services, and the overlapping channels of trade and classes of consumers, we find confusion is likely between Applicant’s mark KYBERDIGITAL and Design and Registrant’s mark KYBER DATA SCIENCE for the respective services recited in the application and registration. Decision: The refusal to register Applicant’s mark is affirmed.