Porteo Group

Trademark Trial and Appeal BoardAug 30, 2017

No. 86642536 (T.T.A.B. Aug. 30, 2017)

This Opinion is Not a Precedent of the TTAB Mailed: August 30, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Porteo Grp. _____ Serial No. 86642536 _____ Porteo Group, pro se. Ahsen Khan, Trademark Examining Attorney, Law Office 113, Odette Bonnet, Managing Attorney. _____ Before Quinn, Adlin, and Larkin, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Porteo Group (“Applicant”) seeks registration on the Principal Register of the mark PILOT PLUS in standard characters for: (1) “computer application software for mobile phones, namely, software for connecting drivers and passengers, engaging transportation,” in International Class 9; (2) “transportation logistics services, namely, arranging the transportation of goods for others,” in International Class 35; and (3) “supply chain logistics and reverse logistics services, namely, storage, Serial No. 86642536 - 2 - transportation and delivery of goods for others by air, rail, ship or truck,” in International Class 39.1 The Trademark Examining Attorney refused registration of the mark in all three classes under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it so resembles 12 commonly-owned registered marks, including the marks set forth below, as to be likely, when used on or in connection with Applicant’s goods and services, to cause confusion, mistake, or deception:2 ● Registration No. 4003615 for the mark shown below for “providing freight shipment tracking information via an Internet website; international and domestic freight logistics services, namely, freight receiving and inventorying, arranging for freight transportation, and planning and scheduling freight shipments for others,” in International Class 35, and “international and domestic freight transportation by land, air, ocean, sea-air, or land bridge intermodal; international and domestic freight logistics services, namely, freight warehousing and freight shipping,” in International Class 39;3 and ● Registration No. 3545851 for the mark PILOT FREIGHT SERVICES in standard characters for “freight logistics services, namely, transportation related services in the nature of arranging for transportation and planning and scheduling shipments for others, and inventorying,” in International Class 35, 1 Application Serial No. 86642536 was filed on May 27, 2015 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), on the basis of Applicant’s allegation of a bona fide intention to use the mark in commerce. 2 We confine our analysis to these cited marks (jointly the “Cited Marks”) because if we find a likelihood of confusion as to either of them, we need not find it as to the other registered marks cited by the Examining Attorney; conversely, if we do not find a likelihood of confusion as to either of them, we would not find it as to the others. See Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1917 (TTAB 2015); In re Max Capital Grp., Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). 3 Issued July 26, 2011. Serial No. 86642536 - 3 - and “freight transportation by air, rail, ship or truck; freight logistics services, namely, cargo storage, warehousing, and transportation related services in the nature of transportation and delivery by air, rail, ship or truck,” in International Class 39.4 After the Examining Attorney made the refusals final, Applicant appealed. Applicant and the Examining Attorney have filed briefs. We affirm the refusals to register as to the services in Classes 35 and 39, and reverse the refusal to register as to the goods in Class 9. Likelihood of Confusion Analysis Section 2(d) of the Trademark Act prohibits the registration of a mark that so resembles a registered mark as to be likely, when used in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). Our determination of likelihood of confusion under § 2(d) is based upon an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). We consider each du Pont factor for which there is evidence. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015). In every case under Section 2(d), two key considerations are the similarities between the marks and the similarities between the goods or services. See Federated 4 Issued December 16, 2008 and maintained through the filing of a combined declaration under Sections 8 and 15 of the Trademark Act, 15 U.S.C. §§ 1058, 1065. FREIGHT SERVICES is disclaimed. Serial No. 86642536 - 4 - 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”). 1. Similarity of the Marks This du Pont factor focuses on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay Imps. Inc. v. Veuve Cliquot 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) (quotation omitted).5 “[L]ikelihood of confusion cannot be predicated on dissection of a mark, that is, on only part of a mark. On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). 5 As discussed below, the Class 35 and Class 39 services here are legally identical and, as to those services, “‘the degree of similarity necessary to support a conclusion of likely confusion declines.’” Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004) (quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)). Serial No. 86642536 - 5 - The Examining Attorney argues that “PILOT is the dominant feature of applicant’s mark because it is the first term in the mark.” 8 TTABVUE 8. “[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered.” Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); see also Palm Bay, 73 USPQ2d at 1692; In re Integrated Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016). We agree with the Examining Attorney that this general principle applies to the PILOT PLUS mark, especially because the word PLUS is laudatory and thus weak as a source identifier.6 PILOT is the portion of Applicant’s mark that would “make an impression upon purchasers that would be remembered and relied upon to identify the goods [and services] . . . .” In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). PILOT is also the first word in the standard character Cited Mark PILOT FREIGHT SERVICES. The phrase FREIGHT SERVICES merely describes the identified services, and has been disclaimed. Given the position of the word PILOT at the beginning of this Cited Mark, and the weakness, as a source identifier, of the words FREIGHT SERVICES that follow PILOT, PILOT is the dominant portion of this mark. See, e.g., In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (Board properly found that “DELTA” was dominant portion of 6 The Board has long recognized the laudatory nature of the word “plus.” Plus Prods. v. Med. Modalities Assocs., Inc., 217 USPQ 464, 465 (TTAB 1983) (“the word ‘PLUS’ has suggestive significance with respect to both parties’ goods, namely, something additional or extra”); Plus Prods. v. Sterling Food Co., 188 USPQ 586, 589 (TTAB 1975) (“The word “PLUS” is an ordinary dictionary word with a readily understood meaning of something better or an additional quality or quantity.”) Serial No. 86642536 - 6 - Applicant’s mark THE DELTA CAFE for restaurant services where CAFE was disclaimed as generic). The word PILOT also dominates the Cited Mark depicted below: “In the case of a composite mark containing both words and a design, ‘the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed.’” In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). The design element of this Cited Mark is relatively insignificant, and the word PILOT “likely will appear alone when used in text and will be spoken when requested by consumers.” Id. at 1911. The dominant portion of Applicant’s mark is identical to the dominant portions of each of the Cited Marks. Applicant acknowledges that the marks “share the same, weak, overlapping term(s), namely PILOT,” 4 TTABVUE 15, but cites cases for the proposition that “if the common elements of two marks is ‘weak’ in that it is generic, descriptive, or highly suggestive of the named goods or services, it is unlikely that consumers will be confused unless the overall combinations have other commonality.” 4 TTABVUE 13-15. While the word PILOT common to the marks may be somewhat suggestive of transportation-related services based upon its dictionary meaning discussed below, the record is devoid of evidence that it has been weakened as a Serial No. 86642536 - 7 - source identifier by third-party use or registration of PILOT-formative marks.7 Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“evidence of third-party use of similar marks on similar goods ‘can show that customers have been educated to distinguish between different marks on the basis of minute distinctions.’” (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)). In any event, PILOT is more distinctive and source- identifying, and thus more dominant, than either FREIGHT SERVICES or the relatively minor design and stylization in the Cited Marks. We turn now to the required comparison of the marks in their entireties in terms of their appearance, sound, connotation, and commercial impression, giving greater weight in our comparison to the dominant word PILOT. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar,” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citations omitted), and “[i]n a particular case, any one of these means of comparison may be critical in finding the marks to be similar.” M.C.I. Foods, Inc. v. Bunte, 96 USPQ2d 1544, 1550 (TTAB 2010). Applicant does not address the similarity of the marks in either sound or appearance, 4 TTABVUE 10-15, and only argues that the marks have different connotations and commercial impressions. 4 TTABVUE 10-13. Applicant specifically 7 Applicant argues that “the cited registrations are owned by diverse registrants,” resulting in “dilution of the terms involved in the instant refusal,” 4 TTABVUE 9-10, but all of the registrations cited by the Examining Attorney are owned by the same company. The record therefore does not show that PILOT is commonly used or is otherwise weak for the goods and services involved in this appeal. Serial No. 86642536 - 8 - argues that “PILOT PLUS creates a commercial impression of a technology and infrastructure staffing services, with upgraded truck drivers (now called groundpilots),” and “a connotation of Groundpilots and Groundports,” while the Cited Marks create “a commercial impression of air freight transportation services” and “a connotation of an air freight company.” 4 TTABVUE 11, 14. The specific differences in meaning that Applicant attributes to its mark are unsupported by the marks themselves, the identifications of goods and services, or the record. Applicant claimed during prosecution, without supporting evidence, that its mark connotes “truck drivers,” “groundpilots,” or “groundports.” In its noun form, however, the word “pilot” in fact means a “person who operates the flying controls of an aircraft” and a “person with expert local knowledge qualified to take charge of a ship entering or leaving confined waters; a helmsman,” and in its verb form, “pilot” means to “act as a pilot of (an aircraft or ship)” or to “guide, steer.” OXFORD LIVING DICTIONARIES (English). October 11, 2016 Office Action at 2-3. Moreover, Applicant’s Class 35 identification of services, “arranging for the transportation of goods for others,” is not limited to a ground mode of transportation, while the portion of its Class 39 identification covering “transportation and delivery of goods for others” expressly includes transportation of goods by air and ship as well as by ground.8 Therefore, notwithstanding Applicant’s unsupported arguments, we find that the word PILOT 8 Applicant’s Class 9 identification of goods covers “software for connecting drivers and passengers,” which expressly refers to ground transportation. There is no evidence, however, that the word PILOT has the meaning attributed to it by Applicant when it is used with the Class 9 goods. Serial No. 86642536 - 9 - connotes guiding and steering, as by an aircraft’s or ship’s pilot, when it is used in Applicant’s mark, and does not imbue the mark with any connotation relating to trucks, “groundpilots,” or “groundports.” The dominant word PILOT imbues the Cited Marks with the same general connotation and commercial impression, not merely the more limited meaning urged by Applicant. The identifications of services in the registrations of PILOT and design and PILOT FREIGHT SERVICES cover multiple modes of transporting freight in addition to air transportation. Even if the Cited Marks only connoted an airplane pilot, their commercial impression would be essentially the same as that of Applicant’s mark, which is used in connection with “arranging for the transportation of goods for others,” which must be deemed to encompass air transportation, and “transportation and delivery of goods for others by air.” The Cited Marks and Applicant’s mark all connote that consumers of the transportation-related goods and services identified in the application and the transportation-related services identified in the registrations will be guided or steered through the transportation process in the manner that an airplane’s or ship’s pilot guides or steers travelers to their destination. The similar connotations and commercial impressions are a key reason why the marks are similar in their entireties, M.C.I. Foods, 96 USPQ2d at 1550, particularly in the absence of any Serial No. 86642536 - 10 - evidence that anyone other than Applicant and the owner of the Cited Marks uses “PILOT” in connection with the relevant goods and services.9 Applicant’s mark and the Cited Marks are also similar in sound and appearance because of the common dominant first word PILOT, which identifies the source of the goods and services when the marks are spoken and viewed, and Applicant does not argue otherwise. The slight differences in sound and appearance resulting from the different elements that follow the dominant term PILOT in the involved and cited word marks do not differentiate them because these additional elements do not indicate that there is a different source of the goods or services provided by the entity identified by the dominant word PILOT. This du Pont factor supports a finding of a likelihood of confusion because the marks are similar when considered in their entireties. 2. Similarity of the Goods and Services Our determination of the similarity of the goods and services is based upon the identifications of goods and services in the application and cited registrations. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The goods and services do not have to be identical or even competitive for confusion to be likely because the relevant issue is not whether consumers would confuse the respective services per se, but rather 9 While PILOT is suggestive, it is nevertheless more distinctive than the non-dominant elements of Applicant’s mark and the Cited Marks. Serial No. 86642536 - 11 - whether they would confuse the source of the services. Davia, 110 USPQ2d at 1818. “[L]ikelihood of confusion can be found ‘if the respective goods [and services] are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Coach, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The refusals to register may be affirmed if confusion is likely as to any portion of the goods or services in a particular class. See, e.g., Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). The Examining Attorney argues that the Class 35 and Class 39 services in the Application are identical to, or overlap with, the Class 35 and Class 39 services in some of the registrations of the Cited Marks, and that Applicant’s Class 9 software for connecting drivers and passengers and engaging transportation is related to the services in the registrations of the Cited Marks. 6 TTABVUE 10-15. The Class 35 services identified in the application as “arranging the transportation of goods for others” have legally-identical counterparts in the registration of PILOT FREIGHT SERVICES, which covers “arranging for transportation and planning and scheduling shipments for others,” and in the registration of PILOT and design, which covers “arranging for freight transportation” and “planning and scheduling freight shipments for others.”10 10 The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in a printed format or have regular fixed editions. In re C.H. Hanson Co., 116 USPQ2d 1351, 1355 n.10 (TTAB 2015). We judicially notice that “shipment” means “the Serial No. 86642536 - 12 - The Class 39 services identified in the application as “storage, transportation and delivery of goods for others by air, rail, ship or truck” similarly have legally-identical counterparts in the registrations of PILOT FREIGHT SERVICES and PILOT and design, which cover “freight transportation by air, rail, ship or truck,” and “international and domestic freight transportation by land, air, ocean, sea-air, or land bridge intermodal,” respectively. The registration of PILOT and design also covers “freight warehousing and freight shipping,” which encompass the “storage of goods for others” and the “transportation and delivery of goods for others” identified in the application. Given the legal identity of the Class 35 and Class 39 services, this du Pont factor also supports a finding of a likelihood of confusion as to those services. With respect to Applicant’s Class 9 goods, “computer application software for mobile phones, namely, software for connecting drivers and passengers, engaging transportation,” the Examining Attorney argues that this software is “also related to the registrant’s services because it is used to render or facilitate transportation services,” 6 TTABVUE 13, and because third-party registrations and Internet evidence indicate that such software, and the transportation services themselves, “are often marketed and branded in a manner that suggests they emanate from the same source.” 6 TTABVUE 15. Applicant does not address this issue. goods shipped” and that “freight” means “goods to be shipped.” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, accessed on August 22, 2017). Serial No. 86642536 - 13 - As identified, Applicant’s software is used on mobile phones to “connect[] drivers and passengers”11 and “engage[] transportation.”12 It thus facilitates the vehicular transportation of people. There is nothing in the identification relating to the transportation of freight or goods by vehicle. The Examining Attorney’s third-party registration and Internet evidence does not support his claim that Applicant’s software is related to the transportation services identified in the registrations of the Cited Marks because the record does not show that software to facilitate the transportation of people by motor vehicles commonly emanates from providers of freight transportation. The website at zengistics.com reflects the transportation of freight and related software, October 11, 2016 Office Action at 28-29, and the corresponding registration for ZENGISTICS covers “computer software to facilitate the transportation of goods,” as well as “the shipping of goods” and “warehousing services.” October 11, 2016 Office Action at 11-14. The LogistiCare website offers transportation services for people with medical needs 11 We take judicial notice that “driver” means “the operator of a motor vehicle” and that “passenger” means “a traveler in a public or private conveyance.” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, accessed on August 22, 2017). Although passengers can ride in various means of transportation, in the context of Applicant’s Class 9 identification, the word refers to persons seeking transportation in a motor vehicle. 12 Because the phrase “engaging transportation” in Applicant’s field-of-use description for its software directly follows the phrase “connecting drivers and passengers” and a comma, we interpret the identification of goods to refer to software used in “engaging transportation” by “connecting drivers and passengers.” Cf. In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166 (TTAB 2013) (finding that because a semicolon separated the two relevant clauses in registrant’s identification of services “providing banquet and social function facilities for special occasions; restaurant and bar services,” its “restaurant and bar services” was a discrete category of services that stood alone and independently from, and, and was not connected to nor dependent on, the “providing banquet and social function facilities for special occasions” services.). See Trademark Manual of Examining Procedure § 1402.01(a) (2017). Serial No. 86642536 - 14 - through an Internet portal, October 11, 2016 Office Action at 30-33, and the corresponding registration for LOGISTICARE TRIP MANAGER covers “software for arranging for medical transportation services, namely, arranging for transportation of people by ground vehicles,” as well as “providing transportation for people by ground vehicles.” October 11, 2016 Office Action at 15-17. The RailConnect website offers rail shipments, October 11, 2016 Office Action at 34, and the corresponding registration of RAILCONNECT covers mobile applications for the rail industry and rail transportation consulting services and a database featuring information regarding inventory freight, and car accounting, among other Class 39 services. October 11, 2016 Office Action at 5-7. The registration of S (stylized) covers both software for reserving transportation services and transportation reservation services. October 11, 2016 Office Action at 18-20. The registration of BOXSPACE covers software pertaining to “items in storage including both physical and digital items” and for “arranging for shipment of items,” as well as various services regarding the transportation of goods. October 11, 2016 Office Action at 21-23. The record also contains Internet evidence regarding the Uber, Grab, and Lyft mobile phone applications, which enable people to book rides and to obtain related services, including delivery services. October 11, 2016 Office Action at 35-46.13 Uber’s corresponding registration of UBEREATS covers software for engaging and 13 As identified, Applicant’s Class 9 software appears to be similar in use to the software that powers these applications, which also connect passengers with drivers. There is no evidence that Uber and similar service providers provide the sort of transportation services identified in the Class 35 and Class 39 portions of the cited registrations. Serial No. 86642536 - 15 - coordinating transportation and delivery services in Class 9, as well as “transport and delivery of goods” and “transportation and delivery services by road,” in Class 39. October 11, 2016 Office Action at 8-10. To the extent that the Class 39 services in this registration could reasonably be construed to cover the sort of commercial goods transportation identified in the registrations of the Cited Marks, rather than the delivery of goods like food to the user of the Uber application, this registration, and the registration of S and design, both of which are unaccompanied by evidence of use, are insufficient to show that software for facilitating the vehicular transportation of people commonly originates from providers of the services of “storage, transportation, and delivery of freight for others by air, ship, truck, and rail,” and the other commercial services identified in the cited registrations. We find, on this record, that the Examining Attorney has not established that Applicant’s Class 9 software is similar or related to the Class 35 and Class 39 services identified in the registrations of the Cited Marks. This du Pont factor supports a finding that confusion is not likely with respect to the use of Applicant’s mark on its Class 9 software. 3. Similarity in Channels of Trade, and Purchasers and Purchase Conditions The third du Pont factor considers “[t]he similarity or dissimilarity of established, likely-to-continue trade channels,” Stone Lion, 110 USPQ2d at 1061, while the fourth du Pont factor considers the “conditions under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177 USPQ at 567. The Examining Attorney only mentions the third du Pont factor in passing in his Serial No. 86642536 - 16 - brief, 6 TTABVUE 6, 10, while Applicant offers several pages of argument on both factors. 4 TTABVUE 18-19. Applicant claims that there are differences in the trade and marketing channels because “Applicant’s trademark reaches the end consumer by and through sales representative, digital marketing campaigns, professional industry magazines, tradeshows, [and] networking events,” while “the registered trademark appears to reach its end consumers by and through website [sic], telephone, and call center.” 4 TTABVUE 18. There is no evidence in the record to support these distinctions, and Applicant’s argument is unavailing in any event. “Where, as here, Applicant’s and Registrant’s [services] are in part legally identical, we must presume that the channels of trade and classes of purchasers for those [services] are the same.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126 (TTAB 2015) (citing Viterra, 101 USPQ2d at 1908). This du Pont factor supports a finding of a likelihood of confusion as to Applicant’s services in Classes 35 and 39. As discussed above, we have found Applicant’s Class 9 software to be unrelated to the Class 35 and Class 39 services in the registrations of the Cited Marks. There is no evidence in the record that the trade channels for these goods and services are similar, and this du Pont factor supports a finding that confusion is not likely as to Applicant’s Class 9 software. With respect to purchasers and purchase conditions, Applicant argues that the purchasers of the goods and services identified in its application and the services identified in the cited registrations “are sophisticated insofar as they are industry Serial No. 86642536 - 17 - experts,” 4 TTABVUE 19, but we must assess likelihood of confusion from the standpoint of “‘the least sophisticated potential purchasers.” Stone Lion, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011)). Applicant again provides no evidence to support its claim regarding the sophistication of the purchasers and this du Pont factor is thus neutral. Cf. In re N.A.D. Inc., 754 F.2d 996, 224 USPQ 969, 971 (Fed. Cir. 1985) (confusion unlikely where record showed that the involved goods were “elaborate, sizeable, complex pieces of technical apparatus of the kind that would be purchased only in consultation with an anesthesiologist or someone with equivalent technical knowledge” namely “only very sophisticated purchasers . . . who would buy with great care and unquestionably know the source of the goods.”).14 Conclusion The similarity of the marks, and the legal identity of the services, channels of trade, and classes of customers, all support a finding of a likelihood of confusion with respect to the services in Classes 35 and 39. With respect to Applicant’s Class 9 software, the dissimilarity of those goods from the services identified in the cited registrations makes confusion as to those goods unlikely notwithstanding the similarity of the marks. 14 Applicant also argues that the absence of any instances of actual confusion is probative that confusion is not likely, 4 TTABVUE 20, but it is unnecessary to show actual confusion to establish its likelihood, see, e.g., Weiss Assocs. Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842 (Fed. Cir. 1990), and there is, in any event, no evidence that would enable us to determine whether the claimed absence of actual confusion is significant. In re Big Pig Inc., 81 USPQ2d 1436, 1439-40 (TTAB 2006). Serial No. 86642536 - 18 - Decision: The refusal to register as to the services in Classes 35 and 39 is affirmed. The refusal to register as to the goods in Class 9 is reversed.