Oblio Telecom, L.L.P.

Trademark Trial and Appeal Board

Nov 3, 2008

No. 78460997 (T.T.A.B. Nov. 3, 2008)

Mailed:
November 3, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Oblio Telecom, L.L.P.
________

Serial No. 78460997
_______

Drude Faulconer, Esq. for Oblio Telecom, L.L.P.

Douglas M. Lee, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
_______

Before Hohein, Walters and Bergsman, Administrative Trademark
Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Oblio Telecom, L.L.P. (“applicant”) filed an intent-to-use
application on the Principal Register for the mark BRAVO, in
standard character format, for “wireless telecommunications,
namely wireless telephone services,” in Class 38. Applicant
claimed ownership of Registration No. 2802973 for the mark
BRAVO!, in standard character format, for “prepaid long distance
telephone calling cards not magnetically encoded,” in Class 16.1

1 Issued January 6, 2004 to DLH Distributing and Marketing, Inc. The
assignment to applicant was recorded on August 11, 2004, at Reel 3041,
frame 0493.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78460997
2
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 following marks, all owned by
Bravosolution S.p.A., and all for, inter alia,
“telecommunications services, namely, providing gateway links
between businesses and their customers via the Internet,” in
Class 38:
1. BRAVOBUILD, in typed drawing form;2
2. BRAVOSOLUTION, in typed drawing form;3
3. BRAVOINDUSTRY, in typed drawing form;4 and,
4. BRAVOINDUSTRY, in standard character format.5
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 Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201,

2 Registration No. 2745925, issued August 5, 2003.
3 Registration No. 2833700, issued April 20, 2004.
4 Registration No. 2873229, issued August 17, 2004.
5 Registration No. 3123776, issued August 1, 2006. The description of
services in this registration also includes “telecommunications,
namely, providing multiple-user access to a global computer
information network,” in Class 38, and therefore it is not identical
to Registration No. 2873229.
Serial No. 78460997
3
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 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., 9 USPQ2d 1534, 1535 (TTAB
1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1988).
In comparing the marks, 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);
Serial No. 78460997
4
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than a specific
impression of the marks. Winnebago Industries, Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). In this
case, the relevant public would be businesses with Internet
networks and users of wireless telephone services.
The marks are similar in appearance and sound because they
all include the word “bravo.” The word “bravo” is a
significant, if not dominant, portion of the registered marks
because of its location as the first word of the marks. 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 America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers must first notice
the identical lead word). Accordingly, we believe that
Serial No. 78460997
5
consumers would likely remember and use “bravo” to refer to the
registrant and its services.
Also, in comparing the marks, we note that the registered
marks contain the applicant’s entire mark (i.e., BRAVO).
Likelihood of confusion is often found where the entirety of one
mark is incorporated within another. Coca-Cola Bottling Co. v.
Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA
1975) (BENGAL LANCER and Bengal lancer design for club soda,
quinine and ginger ale is likely to cause confusion with BENGAL
for gin); In re West Pont-Pepperell, Inc., 468 F2d 200, 175 USPQ
558, 559 (CCPA 1972) (distinctive griffin design above WEST
POINT PEPPERELL is likely to cause confusion with WEST POINT
both used on fabrics); Johnson Publishing Co. v. International
Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY for
cosmetics and EBONY DRUM for hairdressing and conditioner).
When one incorporates the entire arbitrary
mark of another into a composite mark,
inclusion in the composite mark of a
significant, nonsuggestive element will not
necessarily preclude a likelihood of
confusion. And inclusion of a merely
suggestive or descriptive element, of
course, is of much less significance in
avoiding a likelihood of confusion.

The Wella Corp. v. California Concept Corp., 558 F.2d 1019, 194
USPQ 419 (CCPA 1977) (internal citations omitted).
With respect to the meaning of the marks, the Examining
Attorney notes that the word “bravo” is defined as an
Serial No. 78460997
6
interjection “[u]sed to express approval, especially of a
performance.”6 Thus, we find that the registered marks and
applicant’s mark share a similar meaning and engender a similar
commercial impression to the extent that they convey approval
for a job well done.
Applicant agrees that the registered marks “suggest ‘a good
solution, a good builder, or a good industry,’”7 but it
contends that “bravo” standing alone “is a term used to mean
“hurrah” or “ole.”8 Accordingly, applicant concludes that that
the marks convey different commercial impressions because
“hurrah” or “ole” is different than “a good solution, a good
builder, or a good industry.” However, we are not persuaded
that the addition of the words “build,” “industry” and
“solution” to the registered marks is a sufficient basis for
consumers to distinguish applicant’s mark from the registered
marks in any meaningful way. In fact, the additional words in
the registered marks may increase the likelihood of confusion
because customers and potential customers may mistakenly believe
that the registrant’s services are a variation of applicant’s

6 The American Heritage Dictionary of the English Language (4th ed.
2000) attached to the Examining Attorney’s Brief, unnumbered pages 4-
5. The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213
USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983).
7 Applicant’s Brief, unnumbered page 12.
8 Applicant’s Brief, unnumbered page 11.
Serial No. 78460997
7
services and that both services emanate from the same source
because of the joint use of the term “bravo.”
In view of the foregoing, we find the similarity of the
mark is a factor that weighs in favor of finding that there is a
likelihood of confusion.
B. The similarity or dissimilarity and nature of the services
as described in the application and registrations at issue.

Applicant is seeking to register its mark for “wireless
telecommunications, namely wireless telephone services.” The
registered marks are for “telecommunications services, namely,
providing gateway links between businesses and their customers
via the Internet.” A “gateway” is defined as follows:
1) Software that enables communication
between two networks that operate on
different protocols. Gateways are
written for specific purposes, for
example, to provide a link between an
Ethernet LAN and an IBM mainframe
application that uses SNA (Systems
Network Architecture). There is a
gateway between BITNET and the
Internet.

2) A computer system that enables two
dissimilar applications to exchange
data, for example, two mail systems
with different message formats.9

Accordingly, the registrant is providing a service that allows
two parties to communicate through the Internet even though they
operate on different platforms. While the applicant’s wireless

9 net.speak: the internet dictionary, p. 79 (1994).
Serial No. 78460997
8
telephone services and the registrant’s Internet gateway
services are not identical, we must determine whether they are
related in some manner other than both being broadly defined as
telecommunications services.
In this regard, the Examining Attorney has submitted
numerous third-party, use-based registrations encompassing both
wireless telephone services and gateway services. The following
registrations are illustrative:10
Mark Reg. No. Services

POWERFULLY
SIMPLE
SIMPLY
POWERFUL
2330628 Telecommunications gateway
services; wireless telephone
communication services

BELLSOUTH
SOLUTIONS11
2704985 Telecommunications gateway
services for providing access to
global computer communications
networks; telecommunications
services, namely wireless
cellular and digital networks.

WORLDCONNECT 2911625 Wireless telephone services;
telecommunications gateway
services

VINATOUCH 3242429 Cellular telephone communication;
cellular telephone services;
telecommunications gateway
services

10 In the following table, we have not included the entire description
of services for each of the registrations. Only the services found in
applicant’s applications and registrant’s registrations are listed.
11 The Examining Attorney submitted four other registrations owned by
the same entity, BellSouth Intellectual Property Corporation, for
similar services.
Serial No. 78460997
9

Mark Reg. No. Services

YOU ADD WE
SUBSTRACT
3028633 Wireless telecommunication
services; telecommunications
gateway services

Although use-based, third-party registrations are not
evidence that the marks shown therein are in commercial use,
they have some probative value to the extent that they may serve
to suggest that the listed services are of a type which may
emanate from a single source. In re Albert Trostel & Sons Co.,
29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard
Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
While we acknowledge that the services at issue are not
identical, the question is not whether purchasers would confuse
the services, but rather whether purchasers are likely to
confuse the source of the services. Helene Curtis Industries
Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989); In
re Permagrain Products, Inc., 223 USPQ 147, 148 (TTAB 1984). See
also Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ
517, 520 (TTAB 1975) (“In determining whether products are
identical or similar, the inquiry should be whether they appeal
to the same market, not whether they resemble each other
physically or whether a word can be found to describe the goods
of the parties”). Thus, the services at issue need not be
similar or even competitive to support a finding of likelihood
Serial No. 78460997
10
of confusion. It is sufficient if the respective services are
related in some manner and/or that the conditions surrounding
their marketing are such that they would be encountered by the
same persons under circumstances that could, because of the
similarity of the marks used thereon, give rise to the mistaken
belief that they emanate from or are associated with a single
source. In re Albert Trostel & Sons Co., 29 USPQ2d at 1785; In
re International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978).
Applicant contends that the services at issue are not
related because applicant markets pre-paid cell phones to
individual customers. Specifically, “applicant markets cell
phones which are pre-loaded with a specific number of pre-paid
minutes which, when exhausted, can be replenished by purchasing
a new pin card for the phone.”12 However, in an ex parte appeal,
likelihood of confusion is determined on the basis of the
services as they are identified in the application and the cited
registration. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); In
re William Hodges & Co., Inc., 190 USPQ 47, 48 (TTAB 1976). See
also Octocom Systems, Inc. v. Houston Computers Services Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The
authority is legion that the question of registrability of an

12 Applicant’s Brief, unnumbered p. 8.
Serial No. 78460997
11
applicant’s mark must be decided on the basis of the
identification of goods set forth 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 the Court of Customs and Patent Appeals, the predecessor
of our primary reviewing court, explained in Tuxedo Monopoly,
Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981):
Here, appellant seeks to register the word
MONOPOLY as its mark without any
restrictions reflecting the facts in its
actual use which it argues on this appeal
prevent likelihood of confusion. We cannot
take such facts into consideration unless
set forth in its application.

Likewise, in this case, we must also analyze the similarity
or dissimilarity of the services based on the description of
services set forth in the application and the cited
registrations. In other words, we may not limit applicant’s
services to pre-paid cell phones sold to individuals; rather, it
includes all wireless telephone services including wireless
telephone services sold to businesses.
As noted above, the Examining Attorney has made of record
third-party registrations that show various entities have
adopted a single mark for gateway services and wireless
telephone services suggesting that purchasers may expect that
Serial No. 78460997
12
such services sold under similar marks would emanate from the
same source. In re Albert Trostel & Sons Co., 29 USPQ2d at
1785-1786; In re Mucky Duck Mustard Co., 6 USPQ2d at 1470 n.6.
Accordingly, we find that gateway services and wireless
telephone services are sufficiently related that, if identified
by confusingly similar marks, confusion as to source is likely.
C. The similarity or dissimilarity of likely-to-continue trade
channels and classes of consumers.

Because there are no limitations as to channels of trade or
classes of purchasers in either the application of the cited
registrations, it is presumed that the registrations and the
application move in all channels of trade normal for those
services, and that the services are available to all classes of
purchasers for the listed services. See In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992). Both wireless telephone services
and providing gateway links are services that may be sold to
businesses and their customers. Accordingly, we must presume
that applicant’s wireless telephone services and the
registrant’s gateway services move in the same channels of trade
and are rendered to the same classes of purchasers.
D. Strength of the registered marks.
Applicant argues that the registered marks are weak marks
that are entitled to a narrow scope of protection or exclusivity
of use for the following reasons:
Serial No. 78460997
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1. Applicant, “who has provided pre-paid telephone
services in interstate commerce . . . for several years has
never heard of any of the registered marks,” and therefore they
must be considered “‘weak’ since there is no ‘instant buyer
recognition’ of any of these marks among potential customers.”13
2. There are more than 500 “Bravo” marks that have been
registered or the subject of an application “in almost every”
class of goods and services, and this proves that “the word
BRAVO, when used as a mark, is not unique, in and of itself, but
is registrable when uniquely used to identify some specific
goods or services.”14
Applicant’s contention that the registered marks are weak
because applicant has never heard of them is not probative of
the market strength of the registered marks because applicant’s
“testimony” is essentially an informal survey of one interested
party.
Applicant’s assertion that the registered marks are weak
because there are over 500 registered marks and applications for
marks comprising, in whole or in part, the word “bravo” also is
not probative of the strength of the cited registered marks.
First, applicant did not submit copies of the registrations, and
the Board does not take judicial notice of registrations. In re

13 Applicant’s Brief, unnumbered pp. 6-7.
14 Applicant’s Brief, unnumbered p. 7.
Serial No. 78460997
14
Delbar Products, Inc., 217 USPQ 859, 861 (TTAB 1981); In re
Duofold Inc., 184 USPQ 638, 640 (TTAB 1974). Therefore, there
are no third-party “Bravo” registrations in the record to
consider.
Second, any third-party expired registrations and pending
and abandoned applications referenced by applicant have no
probative value in this appeal. Action Temporary Services Inc.
v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989) (“[A] canceled registration does not provide
constructive notice of anything”); In re Phillips-Van Heusen
Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002) (applications are
evidence only of the fact that they were filed).
Third, even if applicant had submitted copies of the third-
party registrations, absent evidence of actual use of those
marks, the third-party registrations are entitled to little
weight in our likelihood of confusion analysis. In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983).
[I]t would be sheer speculation to draw any
inferences about which, if any of the marks
subject of the third party (sic)
registrations are still in use. Because of
this doubt, third party (sic) registration
evidence proves nothing about the impact of
the third-party marks on purchasers in terms
of dilution of the mark in question or
conditioning of the purchasers as their
weakness in distinguishing source.

In re Hub Distributing, Inc., 218 USPQ at 286.
Serial No. 78460997
15
Fourth, the market strength of a mark is determined by
analyzing “the number and nature of similar marks in use on
similar goods.” In re E. I. du Pont De Nemours & Co., 177 USPQ
at 567. See also NCTA v. American Cinema Editors, 937 F.2d
1572, 19 USPQ2d 1424, 1430 (Fed. Cir. 1991) (use of term by
unrelated companies on numerous goods and services does not
require a finding that the term is a weak mark because even in a
common word may stand alone in the relevant market). In this
case, applicant included third-party registrations beyond the
scope of the services identified in the application and
registrations at issue.
Finally, even if we were to consider applicant’s weakness
of the mark argument, third-party registrations will not aid an
applicant to register its mark if it is likely to cause
confusion with the cited registrations. Independent Grocers’
Alliance v. Potter-McCune Co., 404 F.2d 622, 160 USPQ 46, 46
(CCPA 1968) (if applicant’s mark is likely to cause confusion
with a previously registered mark, third-party registrations are
not controlling); In re Hamilton Bank, 222 USPQ 174, 177 (TTAB
1984) (third-party registrations cannot assist an applicant in
registering a mark that is likely to cause confusion with a
registered mark).
E. Applicant’s prior registration for the mark BRAVO!
Serial No. 78460997
16
Applicant contends that its ownership of Registration No.
2802973 for the mark BRAVO! for “prepaid long distance telephone
calling cards not magnetically encoded” proves that applicant’s
mark and the registered marks can coexist because the services
of the applicant and the registrant are completely different.15
Applicant’s argument presupposes that “prepaid long distance
telephone calling cards not magnetically encoded” and “wireless
telephone services” are identical. While “prepaid long distance
telephone calling cards” and “wireless telephone services” may
be related, they are not identical. Therefore, the Office is
not precluded from examining the registrability of applicant’s
mark when it seeks to register additional services, even when,
as here, those services may be related to the goods identified
in its prior registration. In re Sunmarks Inc., 32 USPQ2d 1470,
1472 (TTAB 1994).
[E]ach case must be decided on its own
merits based on the evidence of record. We
obviously are not privy to the record in the
files of the registered marks and, in any
event, the issue of registration(s) by an
Examining Attorney cannot the control the
result of another case.

In re Sunmarks Inc., 32 USPQ2d 1470, 1472

15 Applicant’s Brief, unnumbered pp. 7-8. Applicant’s argument that
its date of first use of the mark BRAVO! precedes the filing dates of
the applications for the cited registrations is irrelevant. The
question of priority of use is not germane in an ex parte appeal
determining an applicant’s right to register. In re Calgon
Corporation, 435 F.2d 596, 168 USPQ 278, 280 (CCPA 1971); In re Cook
United, Inc., 185 USPQ 444, 445 (TTAB 1975).
Serial No. 78460997
17
F. Evidence of actual confusion.
Applicant argues that it “has openly sold its phone cards
for almost 7 years under the registered mark BRAVO without any
complaints from anyone” regarding reported instances of actual
confusion.16 In the context of an ex parte appeal, applicant’s
reliance on the lack of any reported instances of actual
confusion carries little, if any, weight. See In re Majestic
Drilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed.
Cir. 2003) (“The lack of evidence of actual confusion carries
little weight”). First, the registrant is not a party to the
appeal, and therefore it has not had the opportunity to present
any evidence of confusion that may have occurred. Second,
because there is no evidence regarding the nature and extent of
either applicant’s use of its mark the registrant’s use of its
marks, we cannot determine whether there has been an opportunity
for confusion to have occurred. In re Kangaroos, 223 USPQ 1025,
1026-1027 (TTAB 1984).
G. The degree of consumer care.

Applicant contends that degree of consumer care is a factor
that favors finding no likelihood of confusion because price and
convenience are the primary considerations for applicant’s
customers, and the registrant’s consumers will likely be

16 Applicant’s Brief, unnumbered p. 12.
Serial No. 78460997
18
sophisticated, business consumers who will not be mislead as to
the source of its telecommunications services in the nature of
gateway links.
Even though we can make certain suppositions about the
degree of care consumers exercise when selecting wireless
telephone services and providers of gateway links, as with the
other du Pont factors, the degree of care cannot be “supposed,”
it must be supported by evidence. The issue of care includes
the degree to which consumers consider the marks and the process
by which consumers select wireless telephone service and gateway
link providers. Unfortunately, there is no such evidence in the
record, and consequently, there is no evidence regarding the
degree of care exercised by relevant consumers.
H. Balancing the factors.
In view of the facts that the marks are similar and that
the registrant’s services of providing gateway links between
businesses and their customers via the Internet and applicant’s
wireless telephone services are related, and because we must
presume that the services move in the same channels of trade and
are sold to the same classes of consumers, we find that
applicant’s registration of the mark BRAVO is likely to cause
confusion with the marks BRAVOSOLUTIONS, BRAVOINDUSTRY and
BRAVOBUILD in the cited registrations.
Decision: The refusal to register is affirmed.