Ride Today Financial Corp.

Trademark Trial and Appeal Board

Oct 27, 2017

No. 86800220 (T.T.A.B. Oct. 27, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: October 27, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Ride Today Financial Corp.
_____

Serial Nos. 86800214 and 868002201

_____

Joseph G. Fortner, Jr., of Halloran & Sage LLP,
for Ride Today Financial Corp.

Katina S. Jackson, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
_____

Before Zervas, Kuczma and Larkin,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Ride Today Financial Corp. (“Applicant”) seeks registration on the Principal
Register of the standard character marks (hereinafter “RIDE
TODAY”) and (hereinafter “RIDE TODAY
FINANCIAL”), both for “finance and leasing services for motorcycles, ATVs, and

1 The Board consolidated proceedings in its June 29, 2017 order. Citations are to the record
in application Serial No. 86800214.
Serial No. 86800214 and 86800220
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powersports equipment” in International Class 36.2 The term “FINANCIAL” is
disclaimed in the application for RIDE TODAY FINANCIAL.
The Examining Attorney refused registration of both of Applicant’s marks under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 43607073
for the mark

for “automobile dealerships; providing information about automobiles for sale by
means of the Internet” in International Class 35.
After the Examining Attorney issued final Office Actions, Applicant appealed the
refusals to register. Both Applicant and the Examining Attorney filed briefs. We
affirm the refusals to register.

2 Application Serial Nos. 86800214 and 86800220, respectively, both filed on October 27, 2015
pursuant to Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), and both asserting first
use anywhere on June 18, 2013 and first use in commerce on December 15, 2013.
3 Registered July 2, 2013. The mark is described as follows in the registration record:
The mark consists of the word “RIDE” written in the top half of
a circular frame, the word “TODAY” written in the bottom half
of the frame, and a stylized horizontal circle-and-bars design
centered in the frame with three stars immediately above and
three stars immediately below the design, with the stylized
representation of an automotive wheel and tire centered in the
design element.
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Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In
considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014).
Similarity of the Marks
We first compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay Imps., 73 USPQ2d at 1692.
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 that confusion as to the source of the services
offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Under actual
marketplace conditions, consumers do not necessarily have the luxury of making side-
by-side comparisons between marks, and must rely upon their imperfect
Serial No. 86800214 and 86800220
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recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259 (TTAB
1980). The focus is on the recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks. In re Assoc. of the United
States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
The registered mark comprises, of course, the wording RIDE TODAY, a depiction
of an “automotive wheel and tire” and various design elements including stars and a
circle and bar design. Where both words and a design comprise the mark (as in
registrant’s mark), then the words are normally accorded greater weight because the
words are likely to make an impression upon purchasers, would be remembered by
them, and would be used by them to request the goods and/or services. CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark
comprising a design and words, the verbal portion of the mark is the one most likely
to indicate the origin of the goods to which it is affixed”); Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430-31 (TTAB 2013); In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). See also Giant Food, Inc. v.
Nation’s Food Serv., Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983). Additionally,
most of the design elements in the cited mark are common shapes, and the central
automotive wheel and tire design is evocative of registrant’s automobile-related
services. Accordingly, the wording RIDE TODAY is the dominant component of
registrant’s combination word and design mark.
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Applicant’s RIDE TODAY mark and the dominant component of registrant’s mark
are identical. These marks therefore are identical in sound, meaning and commercial
impression. Due to the shared wording, they are also similar in appearance.
With regard to the RIDE TODAY FINANCIAL mark, RIDE TODAY is the first
part of Applicant’s three-word mark, forming a single phrase. “[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 Imps., 73 USPQ2d at 1692; Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992). Additionally, FINANCIAL in Applicant’s mark is at best a descriptive word,
referencing the services which Applicant provides, and has been disclaimed.
Descriptive and generic wording is typically accorded lesser weight in considering a
mark, because such wording readily identifies aspects of the involved goods or
services, unlike suggestive, arbitrary or fanciful words. Thus, in comparing
Applicant’s mark to the cited mark, we accord less weight to the word FINANCIAL
in Applicant’s mark. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (descriptive terms are entitled to “little weight in reaching
a conclusion on the likelihood of confusion,” quoting In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 752 (Fed. Cir. 1985)). We therefore find the RIDE TODAY
FINANCIAL mark to be highly similar in sound, meaning, appearance and
commercial impression to registrant’s mark.4

4 The record does not reflect that there are third-party uses of RIDE TODAY formative marks.
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The du Pont factor regarding the similarity of the marks weighs strongly in favor
of a finding of likelihood of confusion.
Similarity of services, channels of trade and classes of consumers

We next compare the services as they are identified in the applications and cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as identified in involved application
and cited registration compared); Octocom Sys., Inc. v. Houston Comput. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co.
v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). If the services
are described broadly, and there is no limitation as to the nature, type, channels of
trade or class of purchasers, it is presumed that the registration encompasses all
services of the type described, that they move in all channels of trade normal for these
services, and that they are available to all usual classes of purchasers. See In re
Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992).
We also note, at the outset of considering this du Pont factor, that the greater the
degree of similarity between the parties’ marks, the lesser the degree of similarity
between Applicant’s and registrant’s services is required to support a finding of
likelihood of confusion. See In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
If the marks are almost the same, as they are in this case, it is only necessary that
there be a viable relationship between the services in order to support a finding of
likelihood of confusion. See In re Concordia International Forwarding Corp., 222
USPQ 355, 356 (TTAB 1983). Furthermore, it is not necessary that the services at
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issue be similar or competitive, or even that they move in the same channels of trade,
to support a holding of likelihood of confusion. It is sufficient instead that the
respective services be related in some manner, and/or that the conditions and
activities surrounding the marketing of the services are such that they would or could
be encountered by the same persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief that they originate from the
same source. See In re Int’l Tel. & Tel. Corp., 197 USPQ 910, 911 (TTAB 1978).
The Examining Attorney argues that Applicant’s and registrant’s services are
related “because ‘auto dealerships’ often sell more than autos and, in doing so, they
usually offer financing services for what they sell … [; and] the record includes
evidence showing that auto dealerships also sell motorcycles and offer financing for
both.”5 The Examining Attorney relies on the following website evidence:6
• whitesidemotors.com offering cars, trucks and
motorcycles and in-house financing.7
• joeseast.com offering used cars, vans, trucks, SUVs and
motorcycles and containing a link to “Financing.”8
• imaginecarsorlando.com offering cars and
motorcycles and “bank, secondary and in house financing.
Since we are a franchise car dealer and being in business
over 10 years, with our buy here pay here program (in
house financing), you will establish good credit as we

5 9 TTABVUE 9.
6 Much of the evidence concerns a relationship between automotive dealerships and
motorcycle financing. Because for our analysis, it is sufficient that relatedness be established
for any item encompassed by the recitation of services in a particular class in an application,
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981), we focus too on these services.
7 February 25, 2016 Office Action, TSDR 26.
8 February 25, 2016 Office Action, TSDR 27-28.
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partnered up with EQUIFAX directly to rebuilt [sic] your
credit right away.”9
• johngibsonautosales.com offering “over 900 Cars,
Trucks, SUVs, Motorcycles, ATVs, Boats, and Campers in
stock” and stating “At John Gibson Auto Sales, all of our
financing is done in house. We are the premier buy here
pay here dealer in Hot Springs.”10
• bestaustincars.com offers cars and motorcycles and
states, “WE FINANCE!”11
• headmotorco.com offers cars and motorcycles and
states, “Because our customers are so important to us, we’ll
also take the time to find you some great financing options
if you need them. At some point in our lives we all need a
little financial boost, and at Head Motor Company we do
our best to find a reasonable loan that enables you to
purchase the car you’ve always dreamed of.”12
In addition, the Examining Attorney made of record introduced the following third-
party registrations:
•Registration No. 2107626 for the mark SUZUKI
providing “financing for retail purchase and leasing of
automobiles, motorcycles, outboard marine motors, and all-
terrain motor vehicles” and “ automobile retail dealership
services; motorcycle retail dealership services; outboard
marine motor retail dealership services; all-terrain motor
vehicle retail dealership services”;13
• Registration No. 4690520 for the mark GET OUT AND
RIDE for “dealerships in the fields of motorcycles and
motor sport vehicles” and “financial services, namely,

9 February 25, 2016 Office Action, TSDR 32-33.
10 February 25, 2016 Office Action, TSDR, 29-31; October 8, 2016 Office Action, TSDR 2-3.
11 October 8, 2016 Office Action, TSDR 6-7.
12 October 8, 2016 Office Action, TSDR 8-9.
13 February 25, 2016 Office Action, TSDR 5-6.
Serial No. 86800214 and 86800220
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financing of motorcycle and motor sport vehicle purchases
and lease purchase financing for vehicles”;14
•Registration No. 4891800 for the mark M (stylized)
(registered to Cox Automotive, Inc.) for “online searchable
database of motor vehicles for sale or auction via the
internet and other electronic communications networks”
and “motor vehicle financing services.”15
•Registration No. 4766840 for a design mark for “financing
of motor vehicle purchases” and “automotive repair and
maintenance services.”16
•Registration No. 2109504 for the mark “S” for “providing
financing for retail purchase and leasing of automobiles,
motorcycles” and “automobile retail dealership services;
motorcycle retail dealership services.”17
•Registration No. 4108964 for the mark FUTURE
COUNTRY FUTURE NATION FUTURE CITIES
(stylized) for “automobile dealerships” and “financing and
loan services.”18
•Registration No. 3895585 for the mark ICE CREAM
JUST GOT COOLER for “financing services related to the
sales or leasing of motorcycles” and “leasing of automobiles,
namely, motorcycles … which are used in connection with
the sale of ice cream and frozen confections.”19
•Registration No. 4564314 for the mark DEALER NEXT
DOOR for “automobile dealerships” and “financing
services.”20

14 February 25, 2016 Office Action, TSDR 13-15.
15 February 25, 2016 Office Action, TSDR 18-22.
16 October 8, 2016 Office Action, TSDR 10-11.
17 October 8, 2016 Office Action, TSDR 12-14.
18 October 8, 2016 Office Action, TSDR 15-16.
19 October 8, 2016 Office Action, TSDR 17-18.
20 October 8, 2016 Office Action, TSDR 24-26.
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Applicant disputes that there is a relationship between the services, relying
primarily on the declaration of its President, Michael Schwartz, who states in
relevant part:
Financing of motorcycles and financing of automobiles are
for the most part, done by different entities. While one can
obtain financing from banks and similar financial
institutions, when one is looking to finance the purchase of
a vehicle at a dealership, consumers generally do so either
through the dealership at which they are purchasing the
vehicle, or through an entity that is affiliated with the
dealership.21
Further, Applicant finds the Examining Attorney’s website evidence “irrelevant”
because:
[U]nlike the Applicant or the [cited] ‘707 Mark’s owner,
those websites are for entities which, at a single location,
sell some combination of used or new motorcycles and used
or new automobiles. While in those circumstances, the
consumers might come to a location to purchase either cars
or motorcycles, in contrast, Applicant is not part of the ‘707
Mark’s company and neither the Applicant nor the ‘707
Mark’s owner sells or finances both cars and motorcycles.
More critically, neither the websites nor the Examiner offer
evidence that consumers who visit these entities to finance
a motorcycle are the same consumers as those who enter to
purchase a car.22
With regard to the third-party registrations, Applicant finds them to be “without
even arguable relevance.” Applicant explains that the Suzuki registration mentioned
above “does not establish that persons financing Suzuki motorcycles are the same
consumers who would purchase Suzuki automobiles.”23 Applicant concludes:

21 August 23, 2016 Resp., TSDR 12-13.
22 Reply at 4, 10 TTABVUE 5.
23 Reply at 4, 10 TTABVUE 5.
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[T]here is no basis given to conclude that automobile sales
and motorcycle financing are sufficiently related to
preclude the registrations. Accepting Examiner’s
conclusion requires one to assume: first, that it is the same
consumers who purchase automobiles and who finance
motorcycles; second, that those consumers equate
automobiles and motorcycles/powersports equipment; and
third, that at the same time, they also equate the sale of
one kind of vehicle (automobile) with financing of the other
kind of vehicle (motorcycle). The Examiner offers nothing
to support this series of assumptions, and without proof of
consumer behavior, neither the Examiner nor the Board
can jump to the conclusion urged by the Examiner.24
We recognize that the evidence in the record does not demonstrate that
“automobile dealership” services and “financing of motorcycles” are offered under a
single mark, independently of the sale of motorcycles. The evidence demonstrates
that where “automobile dealership” services and “financing of motorcycles” are
provided under the same mark, the source also sells motorcycles. Even though the
sale of motorcycles is not within registrant’s recitation of services, the evidence still
is probative of a relationship between Applicant’s and registrant’s services.
We also recognize that most consumers will not likely be concurrently looking for
an automobile and/or a motorcycle. Mr. Schwartz, Applicant’s President, states in his
declaration that “[i]n [his] experience, consumers looking to purchase a car --
including inexpensive used cars -- are a completely different set of persons from those
looking to purchase or finance a motorcycle, just as those looking to finance or
purchase a motorcycle are rarely, at the same time, also considering an old used car.”
Mr. Schwartz has actively been involved in the sales, services and marketing of

24 Reply at 5, TTABVUE 6.
Serial No. 86800214 and 86800220
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motorcycles, is the owner of a Harley-Davidson motorcycle dealership in Delaware,
and is a former owner and operator of motorcycle dealerships in Pennsylvania, New
Jersey and Connecticut.25
The same consumer, however, may first purchase an automobile and later seek
motorcycle financing in connection with the purchase of a motorcycle. We disagree
with Applicant’s contention that “neither the websites nor the Examining Attorney
offer evidence that consumers who visit these entities to finance a motorcycle are the
same consumers as those who enter to purchase a car,”26 but even if that were true,
it is common knowledge that many people own both a motorcycle and an automobile.
The question, then, is whether a consumer purchasing an automobile and
financing for a motorcycle at different times is likely to believe that there is a common
source of the two services when they are offered under highly similar marks. We find
that the answer is yes.
Mr. Schwartz states that “[f]inancing of motorcycles and financing of automobiles
are for the most part, done by different entities.”27 His testimony is not consistent
with the third-party Internet advertising in the record which suggests that the
dealers who sell both types of vehicles offer financing for both. See, e.g.,
johngibsonautosales.com offering cars, trucks and motorcycles (“At John Gibson Auto
Sales, all of our financing is done in house. We are the premier buy here pay here

25 August 23, 2016 Resp., TSDR 10.
26 Reply at 4, TTABVUE 5.
27 August 23, 2016 Resp., TSDR 12.
Serial No. 86800214 and 86800220
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dealer in Hot Springs.”)28; imaginecarsorlando.com offering cars and motorcycles
(“Since we are a franchise car dealer and being in business over 10 years, with our
buy here pay here program (in house financing), you will establish good credit ….”)29;
and capitolmotorsports.com offering cars and motorcycles (“WE FINANCE”).30 Also,
the Examining Attorney’s evidence regarding financing does not indicate that a
different entity than the auto dealer provides the motorcycle financing services, and
Mr. Schwartz has not explained how the consumer would know that financing of
motorcycles and financing of automobiles “are for the most part, done by separate,
unrelated entities.”
Mr. Schwartz also states that “it would be immediately obvious [from Applicant’s
and registrant’s actual websites] that there is no connection.”31 We point out that the
question of likelihood of confusion is determined based on the identification of the
services stated in the applications and registration, not on extrinsic evidence of actual
use. See Stone Lion Partners, 110 USPQ2d at 1162 (quoting Octocom Sys., 16 USPQ2d
at 1787).
As for Applicant’s argument that the third-party registrations are “without even
arguable relevance” and particularly its challenge to the Suzuki registration, which
Applicant claims “does not establish that persons financing Suzuki motorcycles are
the same consumers who would purchase Suzuki automobiles,” we find these

28 February 25, 2016 Office Action, TSDR 29-31; October 8, 2016 Office Action, TSDR 2-3.
29 February 25, 2016 Office Action, TSDR 26.
30 October 8, 2016, TSDR 6.
31 August 23, 2016 Resp., TSDR 13.
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arguments unhelpful to Applicant for two reasons. First, although not evidence of use
of the marks in commerce, the third-party registrations have probative value to the
extent that they suggest that the respective services are of a type which may emanate
from the same source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988). Second, there is
no reason why a purchaser of an automobile would not also seek motorcycle financing
when purchasing a motorcycle.
Applicant also argues that there are geographic separations between Applicant’s
and registrant’s businesses which eliminates the likelihood of confusion. Because
Applicant is seeking a geographically unrestricted registration, Applicant’s argument
is irrelevant. See Giant Food, 218 USPQ at 393 (“Applicant seeks a geographically
unrestricted registration under which it might expand throughout the United States.
Under these facts, it is not proper, as the TTAB found, to limit our consideration to
the likelihood of confusion in the areas presently occupied by the parties.”). The cases
cited by Applicant in its brief to support its argument are infringement cases, and not
helpful here, where Applicant is seeking a nationwide service mark registration.
In sum, the evidence demonstrates that automobile dealerships, especially those
selling used-automobiles, also frequently sell motorcycles and offer motorcycle
financing. The evidence also indicates that a single source that sells multiple types
of vehicles, when offering financing, does not limit financing to one type of vehicle,
but rather offers financing for different types of vehicles, under the same mark. We
therefore find that a viable relationship exists between “finance and leasing services
Serial No. 86800214 and 86800220
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for motorcycles, ATVs, and powersports equipment” and “automobile dealerships;
providing information about automobiles for sale by means of the Internet.” See In re
Concordia International Forwarding Corp., 222 USPQ at 356. A viable relationship
between the respective services is sufficient, when they are rendered under nearly
identical marks, to support a finding of a likelihood of confusion.
The du Pont factors regarding the similarity of the services and trade channels
favor a finding of likelihood of confusion.
Trade Channels
Next we direct our attention to the du Pont factor regarding established, likely-
to-continue channels of trade. Because the identification in the applications and
“automotive dealerships” have no restrictions on channels of trade, we must presume
that the services travel in all channels of trade appropriate for such services. See
Octocom, 16 USPQ2d at 1787. The evidence reflects that the respective services are
offered on the same webpages.32 As such, the du Pont factor regarding the similarity
or dissimilarity of established, likely to continue trade channels also favors a finding
of likelihood of confusion.
Balancing the factors
Applicant’s marks and the cited mark are very similar, the trade channels and
classes of consumers owning or seeking to own both automobiles and financed
motorcycles overlap, and there is a viable relationship between the services. Thus,
upon consideration of all of the arguments offered by the Examining Attorney and

32 February 25, 2016 Office Action, TSDR, 26-34; October 8, 2016 Office Action, TSDR 2-9.
Serial No. 86800214 and 86800220
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Applicant, and all the evidence in the record, including evidence and arguments not
specifically mentioned in this decision, we find that there is a likelihood of confusion
between both of Applicant’s marks and registrant’s mark for their respective services.
Decision: The refusal to register each of Applicant’s marks is affirmed.