JDub Music Inc.Download PDFTrademark Trial and Appeal BoardNov 16, 2010No. 77282607 (T.T.A.B. Nov. 16, 2010) Copy Citation 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. Copy with citationCopy as parenthetical citation