JDub Music Inc.

Trademark Trial and Appeal Board

Nov 16, 2010

No. 77282607 (T.T.A.B. Nov. 16, 2010)

Mailed:
November 16, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re JDub Music Inc.
________

Serial No. 77282607
_______

Stephen Jadie Coates of Kilpatrick Stockton LLP for JDub
Music, Inc.

Seth A. Rappaport, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Zervas, Taylor and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

JDub Music, Inc. (“applicant”) filed a use-based
application to register the mark JDUB RECORDS, in standard
character form, for the goods and services, as amended, set
forth below:
Audio and audiovisual recordings featuring religious,
cultural, arts and educational material; downloadable
audio and audiovisual recordings featuring religious,
cultural, arts and educational material; downloadable
ringtones and graphics via a global computer network
and wireless devices, in Class 9;

Clothing, namely, t-shirts, wristbands, in Class 25;

Computerized online retail store services in the field
of downloadable audio and audiovisual recordings
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77282607
2
featuring religious, cultures, arts and educational
material, clothing and books; mail-order services in
the field of downloadable audio and audiovisual
recordings featuring religious, cultures, arts and
educational material, clothing and books; issuing gift
certificates which may then be redeemed for goods or
services, in Class 35;

Charitable fundraising services, in Class 36;

Streaming of audio and audiovisual material, namely,
religious, cultural and educational recordings on the
Internet; webcasting services featuring religious,
cultural, arts and educational recordings; providing
on-line message boards for transmission of messages
among users in the fields of general interest,
religion, culture, arts, politics and education, in
Class 38; and

Organizing religious events, namely, religious
instruction services, and cultural events; organizing
exhibitions and events for educational, religious
instruction, cultural, arts and entertainment
purposes; entertainment services, namely, conducting
parties; entertainment, namely, live performances by
musical bands; presentation of musical performance;
providing information in the fields of religious
instruction, cultural events, the arts and education
via the internet; entertainment services, namely,
providing a website featuring audio and audiovisual
recordings featuring religious material, cultural
material, the arts and educational material; on-line
journals, namely, blogs featuring information in the
field of religious, cultural, arts and educational
material, in Class 41.

Applicant disclaimed the exclusive right to use the word
“Records.”1

1 The Examining Attorney required applicant to disclaim the
exclusive right to use the word “records” on the ground that it
is merely descriptive when used in connection with audio
recordings.
Serial No. 77282607
3
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the previously
registered mark JDUBS (stylized), shown below, for “video
and music production services and video editing services
for others,” in Class 41.2

The refusal does not apply to the charitable fundraising
services, in Class 36.
Applicant attached evidence to its brief. To the
extent that it is the same as evidence previously
submitted, it is already of record as part of the
application file, and its submission was unnecessary. See
ITC Entertainment Group Ltd. v. Nintendo of America, Inc.,
45 USPQ2d 2021, 2022-2023 (TTAB 1998) (submission of
duplicative papers is a waste of time and resources, and it
is a burden upon of the Board). On the other hand, if the
evidence was not made of record prior to the filing of the

2 Registration No. 3041100, issued January 10, 2006.
Serial No. 77282607
4
notice of appeal, it was given no consideration. Trademark
Rule 2.142(d).
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative 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); see also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 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. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
Serial No. 77282607
5
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks,
we are mindful that the test is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression so
that confusion as to the source of the goods offered under
the respective marks is likely to result. San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants
Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991),
aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
Applicant’s mark JDUB RECORDS and registrant’s mark
JDUBS (stylized) are similar in terms of sound and
appearance in that both marks incorporate the word “JDUB.”
However, the marks are not identical: applicant’s mark
includes the descriptive word “records”; registrant’s mark
is plural (i.e., JDUBS not JDUB) and it is depicted in a
stylized script.
With respect to descriptive word “Records,” the Court
of Appeals for the Federal Circuit, our primary reviewing
Serial No. 77282607
6
court, has held that the descriptive component of a mark
may be entitled to less weight in reaching a conclusion
regarding the similarity of the marks. In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985);
see also Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1846 (Fed. Cir. 2000); In re Code
Consultants Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (a
descriptive term is less significant in creating the mark’s
commercial impression). Thus, the word JDUB is the
dominant portion of applicant’s mark.
The significance of the word “JDUB” as the dominant
element of applicant’s mark is further reinforced by its
location as the first part of the mark. See Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered”); see also Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part
of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the
label); Century 21 Real Estate Corp. v. Century Life of
Serial No. 77282607
7
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers must first
notice the identical lead word).
We find that the words JDUB and JDUBS are virtually
identical. The omission of the letter “S” at the end of
applicant’s mark does little to distinguish it from the
registered mark. See Calvin Klein Industries, Inc. v.
Calvins Pharmaceuticals Inc., 8 USPQ2d 1269, 1271 (TTAB
1988 (CALVINS is virtually identical to CALVIN); In re
Curtice-Burns, Inc., 231 USPQ 990, 992 (TTAB 1986)
(McKENZIE’S and McKENZIE are virtually identical in
commercial impression); see also In re Kayser-Roth Corp.,
29 USPQ2d 1379, 1385 (TTAB 1993) (the word OLYMPIC(S) is
common to the marks OLYMPIC, UNITED STATES OLYMPIC
COMMITTEE and USA OLYMPICS and has the same suggestive
significance in all the marks).
Moreover, consumers may abbreviate applicant’s mark
JDUB RECORDS to simply JDUBS. “[U]sers of language have a
universal habit of shortening full names – from haste or
laziness or just economy of words. Examples are:
automobile to auto; telephone to phone; necktie to tie;
gasoline service station to gas station.” In re Abcor
Development Corp., 588 F.2d 511, 200 USPQ 215, 219 (CCPA
1978) (J. Rich, concurring).
Serial No. 77282607
8
[C]ompanies are frequently called by
shortened names, such as Penney’s for
J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially
changed its name to Sears alone),
Ward’s for Montgomery Ward’s, and
Bloomies for Bloomingdales.

Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d
1321, 1333 (TTAB 1992).
Finally, registrant’s mark is not so highly stylized
that its script format serves to distinguish that mark from
applicant’s mark given the fact that applicant’s mark is in
standard character form and, thus, could be displayed in
lettering similar to the mark in the cited registration.
See, e.g., Squirtco v. Tomy Corp, 697 F.2d 1038, 216 USPQ
937, 939 (Fed. Cir. 1983) (“[T]he argument concerning a
difference in type style is not viable where one party
asserts rights in no particular display. By presenting its
mark merely in a typed drawing, a difference cannot legally
be asserted by that party”); In re Melville Corp., 18
USPQ2d 1386, 1388 (TTAB 1991) (“While applicant's mark is
in script form and registrant's is in block letters, that
is the only difference between them and that is not a
significant difference in view of the fact that purchasers
are unlikely to remember this simple distinction. Rather,
it is the word itself which will more likely be recalled”);
In re Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015
Serial No. 77282607
9
(TTAB 1988) (by registering its mark in block form,
registrant’s rights reside in the word LITE and not in any
particular form of the mark); In re Hester Industries,
Inc., 231 USPQ 881, 883, n.6 (TTAB 1986) (“Inasmuch as the
drawing of applicant's mark is in typed form, applicant is
not limited to any particular form of display, and might
use its mark in the same form as registrant”).
Applicant argues that “the marks have different
connotations and are marketed to different consumers. The
term ‘JDUB’ is capable of having multiple incongruous
meanings and suggestive connotations to the consumer of
Jewish music records and related goods and services.”3 This
argument is based on the false premise that registrant’s
music and video production and editing services are
divorced from religious and cultural content. As discussed
more fully below, the description of services in the cited
registration may encompass music and video production and
editing services in connection with religious and cultural
content.4

3 Applicant’s Brief, p. 8.
4 Applicant’s reliance on Sunenblick v. Harrell, 895 F.2d 616, 38
USPQ2d 1716 (2nd Cir. 1995) is inapposite because the marks in
that case were not registered and therefore, the court was not
limited to only word marks; it also considered the trade dress.
“[T]he manner in which the logos are displayed on the parties’
respective products immediately reveals certain dissimilarities.
… Plainly the logos are easy to distinguish, a fact conceded by
[plaintiff].” 38 USPQ at 1726.
Serial No. 77282607
10
Applicant also argues that “there are numerous DUB-
formative marks in connection with music related goods and
services on the registry and that ‘dub’ has several music-
related definitions” and, therefore, “‘DUB’ is diluted as
to these goods and services and therefore is afforded a
relatively narrow scope of protection.”5 Even assuming
arguendo that this is true, the argument is not persuasive
because the marks JDUBS and JDUB RECORDS are very similar.
Moreover, the marks at issue are more similar with each
other than they are with any of the registered, third-party
“DUB” marks made of record by applicant.
In view of the foregoing, we find that applicant’s
mark JDUB RECORDS is similar to registrant’s mark JDUBS
(stylized).
B. The similarity or dissimilarity and nature of the
goods and services described in the application and
registration, the channels of trade and classes of
consumers.

To support his contention that the goods and services
of applicant and registrant are related, the Examining
Attorney has submitted the following evidence:
1. An excerpt from the Warner Brothers Records
website (warnerbrosrecords.com) advertising works by

5 Applicant’s Brief, p. 11.
Serial No. 77282607
11
artists presumably signed to the Warner Brothers’ label,
videos, online store services and downloads through iTUNES.
2. An excerpt from the SUB POP! Website (subpop.com)
advertising online store services, streaming audio or
downloading to MP3, podcasting services, advertising the
works of artists who appear to be signed to the SUB POP
label.
3. Use-based, third-party registrations
incorporating video and music production and editing
services and the goods or services in the application.
Third-party registrations which individually cover a number
of different services that are based on use in commerce may
have some probative value to the extent that they serve to
suggest that the listed services are of a type which may
emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
The registrations listed below are representative.6
a. Audio and audiovisual recordings featuring
religious, cultural, arts and educational
material; downloadable audio and audiovisual
recordings featuring religious, cultural, arts and
educational material; downloadable ringtones and

6 We have not included the entire description of goods for each
of the registrations. Only the goods and services in both
applicant’s application and the cited registration are listed.
Also, we have not included registrations that do not incorporate
video or music production and/or editing services (e.g.,
Registration Nos. 2806883; 3271258; and 3560225).
Serial No. 77282607
12
graphics via a global computer network and
wireless devices, in Class 9.

MARK REGISTRATION
NUMBER
GOODS/SERVICES

REPOSSESSSION
RECORDS
3064133 Audio and video recording and
production; downloadable
musical sound and video
recordings; musical sound and
video recordings

CAMPHOR 3433159 Music production services;
musical sound recordings;
musical video recordings

BUDJOA
PRODUCTIONS
3446687 Music production services;
audio recordings featuring
music; downloadable video
recordings featuring music;
visual recordings and audio
visual recordings featuring
music and animation

MINTY FRESH 3621338 Music production services;
sound and video recordings
featuring music and musical
based entertainment;
downloadable sound and video
recordings

TRACK 7 3159260 Audio recording and
production; music production
and videotape production;
cinematographic films and
motion picture films
featuring entertainment and
artistic material; pre-
recorded compact discs
featuring entertainment and
artistic material;
downloadable musical sound
recordings; downloadable vide
recordings featuring
entertainment and artistic
material; pre-recorded video
cassettes featuring artistic
Serial No. 77282607
13
material; sound recordings
featuring artistic material

b. Clothing, namely, t-shirts, wristbands,
in Class 25.

MARK REGISTRATION
NUMBER
GOODS/SERVICES

TRACK 7 3159260 Audio recording and
production; music production
and videotape production;
clothing, namely, bandanas,
beach wear, blouses,
blousons, boxer shorts, caps,
dresses, foulards, hats,
pants, neckties, skirts and
t-shirts

REPOSSESSSION
RECORDS
3064133 Audio and video recording and
production; t-shirts

MINTY FRESH 3621338 Music production services; t-
shirts

FERTILIZE YOUR
MIND
2991785 Motion picture film and video
production featuring human
interest stories, history,
American traditions and
pastimes, lore, gardening,
outdoor enthusiasms,
household advice, kitchen
tips, recipes and natural
remedies; t-shirts

3121 3146834 Music production and
engineering; production and
engineering of video discs
and files; t-shirts;
wristbands

SNOWBOOTS 3659441 Music production services; t-
shirts

Serial No. 77282607
14
c. Computerized online retail store services in the
field of downloadable audio and audiovisual
recordings featuring religious, cultures, arts
and educational material, clothing and books;
mail-order services in the field of downloadable
audio and audiovisual recordings featuring
religious, cultures, arts and educational
material, clothing and books; issuing gift
certificates which may then be redeemed for goods
or services, in Class 35.

MARK REGISTRATION
NUMBER
GOODS/SERVICES

MINTY FRESH 3621338 Music production services;
computerized online retail
store services for musical
sound and musical video
recordings and downloadable
musical sound and musical
video recordings

Curved lines
design
3315864 Music production services;
production of DVDs,
videotapes programs featuring
tourism, cultural exchange,
education and training, and
arts and crafts; online
retail consignment stores and
ordering services in the
field of arts, crafts, music
and films

FERTILIZE YOUR
MIND
2991785 Motion picture film and video
production featuring human
interest stories, history,
American traditions and
pastimes, lore, gardening,
outdoor enthusiasms,
household advice, kitchen
tips, recipes and natural
remedies; online retail store
services featuring audio and
video cassettes and other
pre-recorded media in the
field of gardening, nature
and outdoor enthusiasms
Serial No. 77282607
15
MARK REGISTRATION
NUMBER
GOODS/SERVICES

3121 3146834 Music production and
engineering; production and
engineering of video discs
and files; online retail
store services featuring
clothing, books, music
recordings, video recordings,
and related merchandise

PC 3313770 Video production services;
audio recording and
production; retail music and
video stores featuring pre-
recorded audio and video
cassette tapes, compact
discs, DVDs, CD ROMs, and
laser disks; On-line retail
store services featuring
downloadable pre-recorded
music and video

POLARSTAR 3555356 Music production services;
videotape production; retail
music and record stores

SONGSHINE 3401821
3401822
Music production services;
videotape production; editing
or sounds and images;
distributorships in the field
of books, reviews and other
printed matter, as well as
related electronic data
carriers

Serial No. 77282607
16
d. Streaming of audio and audiovisual material,
namely, religious, cultural and educational
recordings on the Internet; webcasting services
featuring religious, cultural, arts and
educational recordings; providing on-line message
boards for transmission of messages among users
in the fields of general interest, religion,
culture, arts, politics and education, in Class
38.

MARK REGISTRATION
NUMBER
GOODS/SERVICES

“C”
CRAWFORD
COMMUNICATIONS,
INC.
2655965
2642186
Video and audio editing;
transmission of audio and
video streaming media

TRACK 7 3159260 Audio recording and
production; music production
and videotape production;
streaming of audio and video
material on the internet;
providing online chat rooms
concerning arts and
entertainment

PRINCESS PEAPOD 2738502 Music production services;
television show production;
film production; radio and
television production and
programming; sound recording
studios video tape
production; streaming audio
and video material

REPOSSESSSION
RECORDS
3064133 Audio and video recording and
production; streaming sound
and video recordings on the
internet

HARMONY CHANNEL 3202584 Television and music video
production; streaming of
television programming and
other video content

Serial No. 77282607
17
e. Organizing religious events, namely, religious
instruction services, and cultural events;
organizing exhibitions and events for
educational, religious instruction, cultural,
arts and entertainment purposes; entertainment
services, namely, conducting parties;
entertainment, namely, live performances by
musical bands; presentation of musical
performance; providing information in the fields
of religious instruction, cultural events, the
arts and education via the internet;
entertainment services, namely, providing a
website featuring audio and audiovisual
recordings featuring religious material, cultural
material, the arts and educational material; on-
line journals, namely, blogs featuring
information in the field of religious, cultural,
arts and educational material, in Class 41.

MARK REGISTRATION
NUMBER
GOODS/SERVICES

TRACK 7 3159260 Audio recording and
production; music production
and videotape production;
concert booking; conducting
entertainment exhibitions in
the field of arts and
entertainment; entertainment
in the nature of live
performances, musical groups,
or artists and music
festivals

NEXCO 3288645 Television show production
services; motion picture
production services; online
television shows in the field
of comedy and drama

KNOWITALLVIDEO 3141210 Video production; providing a
website for viewing and
uploading videos for
entertainment and
instructional purposes
Serial No. 77282607
18

MARK REGISTRATION
NUMBER
GOODS/SERVICES

FERTILIZE YOUR
MIND
2991785 Motion picture film and video
production and providing
online programming featuring
human interest stories,
history, American traditions
and pastimes, lore,
gardening, outdoor
enthusiasms, household
advice, kitchen tips, recipes
and natural remedies; online
retail store services
featuring audio and video
cassettes and other pre-
recorded media in the field
of gardening, nature and
outdoor enthusiasms

HARMONY CHANNEL 3202584 Television and music video
production; distribution of
audio and television
programming through multiple
media, including electronic
communications networks

SUNDAD 3173361 Entertainment services,
namely, live performances and
shows by a musical group;
music production services for
others; entertainment
services, namely, personal
appearances by a musical
group

BUDJOA
PRODUCTIONS
3446687 Music production services;
entertainment services,
namely, providing prerecorded
music, information in the
field of music, and
commentary and articles about
music, all on-line via a
global computer network
Serial No. 77282607
19
Applicant contends that its description of goods and
services is limited to religious and cultural content and
has no relation to video and music production and editing
services.7 However, the issue of likelihood of confusion in
an ex parte case must be determined on the basis of the
identification of goods and services in applicant's
application and the cited registration. In re Jeep Corp.,
222 USPQ 333, 337 (TTAB 1984). In considering the scope of
the cited registration, we look to the registration itself,
and not to extrinsic evidence about the registrant’s actual
services, customers, or channels of trade. In re Elbaum,
211 USPQ 639, 640 (TTAB 1981), citing Kalart Co., Inc. v.
Camera-Mart, Inc., 258 USPQ 956, 119 USPQ 139 (CCPA 1958).
Thus, where the likelihood of confusion is asserted with a
registered mark, the issue must be resolved on the basis of
the services set forth in the registration and, in the
absence of specific limitations in the registration, on the
basis of all normal and usual channels of trade and methods
of distribution. San Fernando Electric Manufacturing Co.
v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ
1, 2 (CCPA 1977).8 There is no specific limitation in the

7 Applicant’s Brief, pp. 13-17. The t-shirts and wristbands in
Class 25 are not restricted to any particular field.
8 Again, applicant’s reliance on Sunenblick v. Harrell, 895 F.2d
616, 38 USPQ2d 1716 is inapposite because the marks in that case
were not registered and, therefore, the court was not limited to
Serial No. 77282607
20
cited registration, and nothing in the inherent nature of
the registrant’s mark or services that prohibits the use of
JDUBS in connection religious and cultural video and music
production and editing, and we may not read such
limitations into the registration. In other words, the
video and music production and editing services listed in
the cited registration may be used in connection with
religious and cultural content.
Because there are no limitations as to channels of
trade or classes of purchasers in the description of
services in the cited registration, it is presumed that
registrant’s video and music production and editing
services move in all channels of trade normal for those
services, and that they are available to all classes of
purchasers for those services, including channels of trade
and classes of consumers related to religious and cultural
subject matter. See In re Linkvest S.A., 24 USPQ2d 1716,
1716 (TTAB 1992).
Nevertheless, we note that video and music production
and editing services are activities rendered to people
making videos and music while the goods and services listed

the description of goods and services in an application and
registration; it could consider evidence of actual use, channels
of trade and classes of consumers.
Serial No. 77282607
21
in the application are sold or rendered to people
interested in buying videos and music. However, this
apparent disparity between the classes of consumers is not
dispositive because the relevant consumers encompass people
throughout the distribution chain who may be familiar with
all aspects of the music and video business (e.g.,
wholesalers, retailers, broadcasters, promoters, etc.).
Because of the similarity of the marks, consumers may
mistakenly believe that the goods and services emanate from
the same source. Likewise, consumers encountering t-shirts
and wristbands displaying applicant’s mark JDUB RECORDS
could mistakenly associate those products with registrant’s
services because of the similarity of the marks.
Applicant argues that the third-party registrations
submitted by the examining attorney are not probative
because the music production services “do not appear to be
offered ‘to others’ as is the case in the [cited
registration].”9 The problem with this argument is that if
a mark is registered for a service, the activity comprising
the service must be for the benefit of someone other than
the applicant (i.e., for others). TMEP §1301.01(a)(ii) (7th

9 Applicant’s Brief, p. 14.
Serial No. 77282607
22
ed. 2010) (“To be a service, an activity must be primarily
for the benefit of someone other than the applicant”).
C. The degree of care exercised by consumers.
Applicant argues, without any evidentiary support,
that registrant’s customers are “sophisticated or highly-
specialized consumers who are unlikely to be confused as to
the source of the respective parties’ goods and services”
because “music and video production and editing services
are expensive” and the selection of the service vendor
“take[s] time and require[s] industry expertise and acumen
to make a reasoned decision. … Therefore, consumers of
JDUBS music and video production and editing services are
unlikely to be confused as to the source of JDUB RECORDS
religious and cultural goods and services.”10 The problem
with applicant’s argument is that even if the music and
video production and editing services are expensive and the
selection of the vendor takes time and expertise, there is
no assurance that the decision makers can differentiate
between similar marks used in connection with related goods
and services. In re Research Trading Corp., 793 F.2d 1276,
230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical
Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168

10 Applicant’s Brief, p. 18.
Serial No. 77282607
23
USPQ 110, 112 (CCPA 1970) ("Human memories even of
discriminating purchasers ... are not infallible"); In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983). The
sophistication of buyers and the degree of purchaser care
are relevant considerations, but are not controlling on
this factual record.
D. Instances of actual confusion.
Applicant argues that it is unaware of any reported
instances of confusion with the mark in the cited
registration.
[Applicant] has been offering and
organizing [its services] under the
JDUB RECORDS Mark since 2002, including
numerous events in the city of
Registrant’s recorded address … Despite
Applicant’s national renown as a Jewish
cultural organization, Applicant is
aware of no instances of actual
confusion between Applicant’s mark and
Registrant’s Mark in the several years
since Applicant began its operations.11

Applicant’s assertion of no actual confusion between
the marks is entitled to little weight. In re Majestic
Distilling Co., 65 USPQ2d at 1205 (“uncorroborated
statements of no known instances of actual confusion are of
little evidentiary value”); see also In re Bissett-Berman
Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating

11 Applicant’s Brief, p. 16.
Serial No. 77282607
24
that self-serving testimony of applicant’s corporate
president’s unawareness of instances of actual confusion
was not conclusive that actual confusion did not exist or
that there was no likelihood of confusion). A showing of
actual confusion would of course be highly probative, if
not conclusive, of a likelihood of confusion. The opposite
is not true, however. The lack of evidence of actual
confusion carries little weight, J.C. Hall Co. v. Hallmark
Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965),
especially in an ex parte context. In any event, the
record is devoid of probative evidence relating to the
extent of use of registrant’s and applicant’s marks and,
thus, whether there have been meaningful opportunities for
instances of actual confusion to have occurred in the
marketplace.12 See Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000);
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774
(TTAB 1992). Accordingly, the du Pont factors regarding
the length of time during and conditions under which there
has been contemporaneous use without evidence of actual
confusion are neutral.

12 Applicant’s claim that its mark is well known and that it has
rendered its services in close proximity to registrant’s location
is unsupported.
Serial No. 77282607
25
E. Balancing the du Pont factors.
In view of the facts that the marks are similar, the
goods and services are related, and the presumption that
registrant’s services move in the same channels of trade
and are sold to the same classes of consumers as
applicant’s goods and services, we find that applicant’s
registration of the mark JDUB RECORDS for goods and
services set forth in its application is likely to cause
confusion with the marks JDUBS (stylized) in connection
with “video and music production services and video editing
services for others.”
Decision: The refusal to register is affirmed.
The application will be forwarded for publication in Class
36 only.