Like.fm, Inc.v.Michael Navarini

Trademark Trial and Appeal BoardAug 27, 2021

92070628 (T.T.A.B. Aug. 27, 2021)

Mailed: August 27, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— Like.fm, Inc. v. Michael Navarini _____ Cancellation No. 92070628 _____ Vivek Vaidya of Bend Law Group PC, for Like.fm, Inc. Michael Navarini, pro se. ———— Before Taylor, Bergsman, and Pologeorgis, Administrative Trademark Judges. Opinion by Pologeorgis, Administrative Trademark Judge: Michael Navarini (“Respondent”) is the owner of a registration issued on the Principal Register for the mark INSTAPAINT and design, as displayed below, for “custom paintings” in International Class 16.1 1 Registration No. 4954389, issued on May 10, 2016. The registration includes the following description of the mark: “The mark consists of the wording ‘INSTAPAINT’ with two stylized paint splashes on the right side of the mark. ‘INSTA’ and the bottom paint splash are in purple, and ‘PAINT’ and the top paint splash are in light blue.” The colors blue and purple are claimed as a feature of the mark. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Cancellation No. 92070628 2 Like.fm, Inc. (“Petitioner”) filed a petition to cancel Respondent’s registration on the ground of likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on Petitioner’s alleged prior common law use of the mark INSTAPAINTING used in connection with the service of providing custom art drawings, sketches, paintings, and portraits for others.2 In further support of its likelihood of confusion claim, Petitioner pleaded ownership of pending application Serial No. 88287098 for the standard character mark INSTAPAINTING for “Custom art drawing for others; Custom art sketching for others; Custom painting of artwork in the nature of portraits, landscapes, abstract designs, stylized art on canvas, paper, wood boards, clothing, fabric, and computers for others; Custom painting of artwork on canvas, paper, wood boards, clothing, fabric, and computers for others; Custom painting of artwork for others; Portrait painting services” in International Class 41.3 Respondent filed an answer to the petition to cancel in which he denied the salient allegations asserted therein. In his answer, Respondent did “acknowledge,” however, 2 Petition to Cancel, ¶¶ 1 and 3, 1 TTABVUE 4. Citations in this opinion to the briefs and other docket entries refer to TTABVUE, the Board's online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear. 3 Id. at ¶ 2, 1 TTABVUE 4. Cancellation No. 92070628 3 that Petitioner filed its pleaded pending application for the mark INSTPAINTING on February 3, 2019.4 I. Record The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Respondent’s involved registration file. The record also includes the evidence summarized below. A. Petitioner’s Evidence 1. Testimony Declaration of Chris Chen, Petitioner’s founder and president (Chen Decl.);5 2. Notice of Reliance on various screenshots purportedly of Petitioner’s website, www.instapainting.com;6 3. Notice of Reliance on printouts from various online forums and internet publications purportedly discussing Petitioner’s services under its INSTAPAINTING mark;7 4. Notice of reliance on internet website printouts purportedly of Petitioner’s INSTAPAINTING website as shown on the Internet Archive Wayback Machine;8 and 5. Notice of reliance on internet website printouts purportedly of Respondent’s INSTAPAINT website as shown on the Internet Archive Wayback Machine.9 4 Respondent’s Answer, ¶ 2, 4 TTABVUE 2. 5 20 TTABVUE. 6 16 TTABVUE. 7 17 TTABVUE. 8 18 TTABVUE. 9 19 TTABVUE. Cancellation No. 92070628 4 B. Respondent’s Evidence Respondent did not submit any testimony or any other type of evidence during his assigned trial period. Only Petitioner filed a brief. As noted, Petitioner, by way of its notices of reliance, submitted printouts from various websites downloaded from the Internet. Although admissible for what they show on their face, see Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2), this evidence also contains hearsay that may not be relied upon for the truth of the matters asserted unless supported by testimony or other evidence. Fed. R. Evid. 801(c); WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 (TTAB 2018); Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1039-40 (TTAB 2010); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 704.08(b) (2021) (“The probative value of Internet documents is limited. They can be used to demonstrate what the documents show on their face. However, documents obtained through the Internet may not be used to demonstrate the truth of what has been printed.”). Thus, the various websites downloaded from the Internet have limited probative value, except to the extent noted below. Finally, in its trial brief, Petitioner contends that its pleaded pending application for the mark INSTAPAINTING forms part of the record under Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).10 Petitioner is mistaken. Trademark Rule 2.122(b) provides, in relevant part, that “each registration against which a petition or 10 See Petitioner’s Brief, p. 2, 21 TTABVUE 3. Cancellation No. 92070628 5 counterclaim for cancellation is filed forms part of the record of the proceeding without any action by the parties … ,” not a plaintiff’s pleaded pending application. In order for Petitioner’s pleaded pending application to be received in evidence and made part of the record, Petitioner had to file a copy of its pleaded pending application showing the current status and title under its notice of reliance during its assigned testimony period. See e.g., WeaponX Performance Prods., 126 USPQ2d at 1040 (holding that Trademark Rule 2.122 only makes a defendant’s application or registration automatically of record, not a plaintiff’s pleaded application); Giersch v. Scripps Networks, 90 USPQ2d 1020, 1022 (TTAB 2009) (pending application must be properly introduced, and the fact that it was refused pending outcome of proceeding must be documented, before Board will rely upon application in determining plaintiff’s standing). Alternatively, Petitioner could have introduced into evidence witness testimony, in deposition or declaration form, regarding its pending application and the status thereof. Petitioner did neither. Moreover, while Respondent acknowledged, in his answer, that Petitioner filed its pleaded pending application for the mark INSTPAINTING on February 3, 2019, such acknowledgment does not establish the current status and title of Petitioner’s pleaded application. Thus, contrary to Petitioner’s contention, Petitioner’s pleaded pending application is not of record. II. Entitlement to a Statutory Cause of Action Entitlement to a statutory cause of action is a threshold issue in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Cancellation No. 92070628 6 Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)).11 A party in the position of plaintiff may seek to cancel the registration of another’s mark where such cancellation is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the plaintiff’s reasonable belief in damage is proximately caused by registration of the defendant’s mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, *6-7 (Fed. Cir. 2020). Petitioner’s founder and president, Mr. Chen, testified as follows:12 I am the Founder and President of Like.fm, Inc. and main engineer at INSTAPAINTING, which can be found at www.instapainting.com. The inception of my business and the decision to launch INSTAPAINTING as the trademark associated with our services are as follows: I had colleagues who sold art and I decided to setup a website that took photographs and used it as the basis of a derivative painting in as little as two weeks from a real artist. The first instance of my website being live is shown on the Internet Archive Wayback Machine on August 24, 2013, although my first sale was January 14, 2014. Within weeks of launching my services, I had thousands of dollars in sales. Petitioner also submitted, under one of its notices of reliance, a screenshot from its www.instapainting.com website as it purportedly appeared on August 24, 2013 and as captured by the Internet Archive Wayback Machine and referenced in Mr. Chen’s testimony declaration.13 The screenshot is reproduced below: 11 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 13 and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, *2 (TTAB 2020). 12 Chen Decl., ¶¶ 1-2, 20 TTABVUE 2. 13 Petitioner’s Notice of Reliance, Exhibit A, 18 TTABVUE 6. Cancellation No. 92070628 7 In Spiritline Cruises LLC v. Tour Management Servs. Inc., 2020 USPQ2d 48324 (TTAB 2020), which involved a claim that the applied-for mark was primarily Cancellation No. 92070628 8 geographically descriptive under Section 2(e)(2) of the Trademark Act, we reiterated that “we consider Internet printouts and other materials properly introduced under a notice of reliance without supporting testimony only for what they show on their face rather than for the truth of the matters asserted therein.” Spiritline Cruises, 2020 USPQ2d 48324, at * 2. With respect to certain archived Internet evidence from the Wayback Machine, we held that “Wayback Machine printouts, like other Internet webpages that display a URL and date, generally can be admissible under a notice of reliance as self-authenticating Internet evidence,” but that if such evidence was “supported solely with a notice of reliance, such Internet evidence would be admissible only for what it shows on its face.” Id. at *3 (citing WeaponX, 126 USPQ2d at 1040). As noted above, Petitioner’s president avers in his declaration that “the first instance my website being live is shown on the Internet Archive Wayback Machine on August 24, 2013….” Although Mr. Chen did not attach the screenshot of the August 24, 2013 Wayback Machine printout to his declaration, as noted, the screenshot nonetheless was submitted under one of Petitioner’s notices of reliance. We find Mr. Chen’s testimony is sufficient to establish the reliability of this particular Wayback Machine printout. In view of the foregoing, we find that Petitioner has established its entitlement to a statutory cause of action through the combination of the uncontradicted declaration testimony of Petitioner’s founder and president, Mr. Chris Chen, and the Internet Wayback Machine screenshot of its website dated August 23, 2014. In other words, Cancellation No. 92070628 9 Petitioner has established that it has been using the mark INSTAPAINTING, as displayed in the above-referenced Wayback Machine printout, in connection with the service of providing custom paintings for others derived from photographs provided by Petitioner’s customers since at least as early as January 14, 2014. We further note that Respondent does not dispute Petitioner’s entitlement to a statutory cause of action. III. Section 2(d) Claim Section 2(d) of the Trademark Act prohibits the registration of a mark that “[c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). To prevail on its Section 2(d) claim, Petitioner must prove, by a preponderance of the evidence, that it has priority in the use of its pleaded mark and that use of Respondent’s mark is likely to cause confusion, mistake, or deception as to the source or sponsorship of Respondent’s goods, Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir. 2000), even in the absence of contrary evidence or argument. Threshold TV, Inc. v. Metronome Enters., Inc., 96 USPQ2d 1031, 1040 (TTAB 2010). A. Priority “A party claiming prior use of a registered mark may petition to cancel the registration on the basis of such prior use pursuant to section 14 of the Lanham Act. 15 U.S.C. Section 1064.” W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 31 Cancellation No. 92070628 10 USPQ2d 1660, 1662 (Fed. Cir. 1994). However, “a presumption of validity attaches to” Respondent’s registration. Id.; Cerveceria Centroamericana S.A. v. Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989); See also Trademark Act Section 7(c), 15 U.S.C. § 1057(c). As the alleged prior user, Petitioner bears the burden of proving its claim of acquisition of prior proprietary rights in its pleaded mark by a preponderance of the evidence. Hydro-Dynamics, Inc. v. George Putnam & Co., Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987); cf. Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825, 1834 (TTAB 2013). (“[O]pposer must prove by a preponderance of the evidence that its common law rights were acquired before any date upon which applicant may rely.”). “As a general matter, priority in a Trademark Act § 2(d) case goes to the party which made first use of its mark on the relevant goods [or services].” Cent. Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1139 (TTAB 2013). Insofar as Respondent did not submit any testimony or evidence during his assigned testimony period, Respondent has not demonstrated actual use of his mark for the goods identified in his subject registration prior to the filing date of the underlying use-based application of said registration. Accordingly, the earliest date that Respondent may only rely on for priority purposes is his application filing date, i.e., June 18, 2015, his constructive use date. See, e.g., Media Online Inc. v. El Clasificado Inc., 88 USPQ2d 1285, 1288 (TTAB 2008) (respondent may rely on filing date of registration at issue as constructive date of first use); Levi Strauss & Co. v. R. Josephs Cancellation No. 92070628 11 Sportswear, Inc., 30 USPQ2d 1328, 1332 (TTAB 1994) (an application filing date for a use-based application can establish first use of a mark); Trademark Act § 7(c). As noted above, Petitioner submitted the unrebutted testimony declaration of its president who attested that Petitioner began using its pleaded INSTAPAINTING mark, as displayed in the above-referenced Wayback Machine printout, in connection with its services since at least as early as January 14, 2014. Since Petitioner’s first use in commerce predates Respondent’s constructive use date, Petitioner has established its priority of use of its pleaded mark for its services. See, e.g., DeVivo v. Ortiz, 2020 USPQ2d 10153, *3 (TTAB 2020); Exec. Coach Builders, Inc. v. SPV Coach Co., Inc., 123 USPQ2d 1175, 1184 (TTAB 2017); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB 2007) (testimony of a single witness, if “sufficiently probative,” may be sufficient to prove priority). B. Similarity of the Marks We next consider the first DuPont likelihood of confusion factor, which involves an analysis of the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed Cir. 2005) (quoting du Pont, 177 USPQ at 567). “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.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal citation omitted). The focus is on the recollection of the Cancellation No. 92070628 12 average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Inasmuch as Respondent’s goods are “custom paintings” and Petitioner’s services include the provision of custom paintings derived from a consumer’s own photographs, the average purchasers include ordinary people seeking to convert their photographs into a painting. Our analysis cannot be predicated on dissection of the involved marks. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). Rather, we are obliged to consider the marks in their entireties. Id.; 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.”). Nonetheless, 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 a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at 1161. Petitioner’s mark is . Respondent’s mark is . The marks are similar in sound and appearance since the entirety of the literal portion of Respondent’s mark is incorporated in Petitioner’s mark. Perhaps more importantly, the meanings and overall commercial impressions of the literal portion of the parties’ respective marks are virtually identical. Specifically, the prefix “insta” Cancellation No. 92070628 13 found in both marks is defined as “indicating instant or quickly-produced.”14 Indeed, the presence of the prefix “INSTA” in each of the parties’ respective mark conveys the same suggestive connotation of creating a painting instantly or quickly. See, e.g., Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ 485, 491 (TTAB 1978) (there can be no doubt that the mark “INSTAFIND” is highly suggestive as applied to opposer’s V-belt measuring gauges, in that it clearly conveys the idea of being able to find belts quickly). Thus, both marks, when viewed in connection with their respective goods and services, convey the virtually identical meaning of a quickly- produced painting. Moreover, while Petitioner’s mark includes an “ing” suffix, we find this to be subordinate matter that does very little to distinguish the marks. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). Furthermore, although both Petitioner’s and Respondent’s marks include a design element, “the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed.” 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) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). Greater weight is often given to the wording rather than a design element because it is the wording that purchasers would use to refer to or request the goods 14 Dictionary.com, based on the Collins English Dictionary (2012 digital edition) (accessed on August 26, 2021). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010). Cancellation No. 92070628 14 or services. See, e.g., In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012). Quite simply, we find that the marks are quite similar, particularly taking into account “the recollection of the average customer, who retains a general rather than specific impression of marks,” i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018), and the fact that the “marks ‘must be considered . . . in light of the fallibility of human memory’ and ‘not on the basis of side-by-side comparison.”’ In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)). Although both marks at issue include a design element, a consumer with a fallible memory and a general impression of Petitioner’s INSTAPAINTING- dominated mark who encounters Respondent’s INSTAPAINT-dominated mark is unlikely to distinguish the two marks on the basis of the presence of the design element in either Petitioner’s or Respondent’s marks. Similarly, we find that the colors claimed in Respondent’s mark and the non-distinctive script of the literal portion of Petitioner’s mark are insufficient to distinguish the marks. While we have not overlooked the design elements in each mark, the colors claimed in Respondent’s mark or the stylization of the literal portion of Petitioner’s mark, we nonetheless find that marks are more similar than dissimilar. Thus, the first DuPont factor favors a finding of likelihood of confusion. C. Relatedness of the Goods and Services We next address the second DuPont likelihood of confusion factor focusing on the comparison of the goods identified in Respondent’s subject registration and the Cancellation No. 92070628 15 service provided by Petitioner pursuant to its common law use of its pleaded INSTAPAINTING mark. Respondent’s goods are identified as “custom paintings.” Petitioner’s owner and president testified that Petitioner offers the service of providing derivative paintings from photographs for others under its INSTAPAINTING mark.15 Additionally, the screenshot of Petitioner’s www.instapainting.com website as it appeared on August 14, 2013 (as captured by the Wayback Machine) states that you can “[t]urn any photo into a hand-painted oil painting on canvas.” It is settled that it is not necessary that the respective goods and services be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis. The respective goods and 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 goods [and services] emanate from the same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); 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). Here, Respondent’s broadly worded “custom paintings” encompasses custom paintings derived from photographs. See e.g., In re Country Oven, Inc., 2019 USPQ2d 443903, *4 (TTAB 2019) (quoting Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (“[w]here the identification of services is broad, the Board 15 Chen Decl., ¶2, 20 TTABVUE 2. Cancellation No. 92070628 16 ‘presume[s] that the services encompass all services of the type identified.’”)). Thus, we find that Petitioner’s services and Respondent’s goods are inherently related inasmuch as both provide the identical end product to consumers, i.e., custom paintings. See In re H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347, 347 (CCPA 1961) (“[A] customer who attends a banquet which he knows is catered by the appellant would, when he encounters a food product in the grocery store under an almost identical mark, naturally assum[e] that it came from the catering firm.”); In re Thomas, 79 USPQ2d 1021, 1024 (TTAB 2006) (“It is clear that consumers would be likely to believe that jewelry on the one hand and retail stores selling jewelry on the other emanate from or are sponsored by the same source if such goods and services are sold under the same or similar marks.”). Accordingly, the second DuPont factor also favors a finding of likelihood of confusion. D. Similarity of Trade Channels/Classes of Purchasers Next we consider established, likely-to-continue channels of trade, the third DuPont factor. We initially note that since there are no restrictions as to trade channels or classes of purchasers set forth in the identification of goods of Respondent’s involved registration, we presume Respondent’s goods travel through all usual channels of trade for such goods, e.g., retail stores and online marketplaces, and are offered to all normal potential purchasers for such goods, the general public. Paula Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA); see also Stone Lion, 110 USPQ2d at 1161. Petitioner’s president has testified that Petitioner provides its services online via its own website, Cancellation No. 92070628 17 www.instapainting.com. Accordingly, we find that, at a minimum, both Petitioner’s services and Respondent’s goods travel in overlapping channels of trade and are offered to the same ordinary consumer who desires to create a customized painting from one of their photographs. In view of the foregoing, the third DuPont factor also weighs in favor of finding a likelihood of confusion. E. Actual Confusion The seventh DuPont factor considers “[t]he nature and extent of any actual confusion.” DuPont, 177 USPQ at 567. Petitioner’s president testified that “[o]ver the years there have been more instances of customers who mistook [Respondent’s] website, www.instapaint.com, for [Petitioner’s] website, www.instapainting.com, and placed orders on Respondent’s website but contacted [Petitioner’s] website to get support for poor service.”16 Evidence of actual confusion “is too important to be established by means of an inference, unsupported by corroborating evidence.” Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340, 346 (TTAB 1983). In this case, Petitioner’s testimony regarding actual confusion is lacking in specifics and Petitioner has not provided any documentary evidence to corroborate its assertion that consumers have experienced actual confusion as to the source of Petitioner’s services and Respondent’s goods. Accordingly, Petitioner’s assertions in this regard must be accorded minimal weight. 16 Chen Decl., ¶ 7, 20 TTABVUE 3. Cancellation No. 92070628 18 IV. Conclusion We have considered all of Petitioner’s arguments and evidence of record, and all relevant DuPont factors. We find that the marks at issue are similar; that Petitioner’s services are related to Respondent’s goods; that they would move in overlapping trade channels; and that they are offered to the same or overlapping classes of purchasers. We thus find that Petitioner has established by a preponderance of the evidence that Respondent’s mark for his identified goods so resembles Petitioner’s mark for its services as to be likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act. Decision: The petition to cancel Respondent’s registration for the mark under Section 2(d) of the Trademark Act is granted. The registration will be canceled in due course.