S&T Bank

Trademark Trial and Appeal BoardApr 27, 2017

No. 86590754 (T.T.A.B. Apr. 27, 2017)

This Opinion is not a Precedent of the TTAB Hearing: March 16, 2017 Mailed: April 27, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re S&T Bank _____ Serial Nos. 86590754, 86590769 and 865907871 _____ Bryan H. Opalko of Buchanan Ingersoll & Rooney PC, for S&T Bank. Melissa Winter, Trademark Examining Attorney, Law Office 122, John Lincoski, Managing Attorney. _____ Before Zervas, Wolfson and Shaw, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: S&T Bank (“Applicant”) seeks registration on the Principal Register of three marks, each filed on April 8, 2015: 1 The Board consolidated the appeals for these three applications in an order dated November 7, 2016. Citations are to the record in application Serial No. 86590754. Serial Nos. 86590754, 86590769 and 86590787 - 2 - ● Application Serial No. 86590754,2 with a disclaimer of “BANK”; ● Application Serial No. 86590769,3 with a disclaimer of “BANK” and “A DIVISION OF”; ● Application Serial No. 86590787,4 with a disclaimer of “BANK” and “A DIVISION OF”: Each application seeks registration on the Principal Register pursuant to Trademark Act § 1(b), 15 U.S.C. § 1051(b), claiming a bona fide intent to use the mark in commerce, for the same International Class 36 services, “banking services; banking services, namely, commercial and consumer lending, fiduciary services in the nature 2 The description of the mark in the record states, “The mark consists of a stylized ‘i’ with the words ‘Integrity’ and ‘Bank’ vertically oriented to the right.” 3 The description of the mark in the record states, “The mark consists of a stylized ‘i’ with the words ‘Integrity’ and ‘Bank’ vertically oriented to the right. The phrase ‘a division of S&T Bank’ is underneath, with a horizontal line separating the two phrases.” 4 The description of the mark in the record states, “The mark consists of a stylized ‘i’ with the words ‘Integrity’ and ‘Bank’ vertically oriented to the right. The phrase ‘a division of S&T Bank’ is further to the right, with a vertical line separating the two phrases.” Serial Nos. 86590754, 86590769 and 86590787 - 3 - of fiduciary representative services, investment management and cash management.” The Examining Attorney refused registration of each of Applicant’s marks under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on, ● Registration No. 28766865 (“the ‘686 registration”) for the mark ; and ● Registration No. 2876685 (“the ‘685 registration”) for the typed mark INTEGRITY BANK & TRUST.6 Both registrations issued to the same entity and recite “financial services in the field of money lending” in International Class 36, and “BANK & TRUST” is disclaimed in both registrations. After the Examining Attorney issued Final Office Actions in each application, Applicant appealed the refusals to register. Both Applicant and the Examining Attorney filed briefs, and Applicant filed a reply brief. 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 re 5 Registered August 24, 2004, renewed March 11, 2014. 6 Registered August 24, 2004, renewed March 13, 2014. Serial Nos. 86590754, 86590769 and 86590787 - 4 - Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). 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 services, channels of trade and classes of consumers We first compare the respective services as they are identified in the applications and registrations at issue. 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 registration compared); Octocom Sys., Inc. v. Houston Computers 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). Applicant’s services are “banking services; banking services, namely, commercial and consumer lending, fiduciary services in the nature of fiduciary representative services, investment management and cash management” and registrant’s services are “financial services in the field of money lending.” Applicant’s and registrant’s services are in part legally identical. Applicant identifies “banking services, namely, commercial and consumer lending” and registrant identifies “financial services in the field of money lending” which includes lending to both commercial and individual consumers. Serial Nos. 86590754, 86590769 and 86590787 - 5 - As for the remaining services, they need not “be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that … services are related in some manner or that circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances which could give rise, because of the marks used thereon, to a mistaken belief that they originate from or are in some way associated with the same producer or that there is an association between the producers of each parties’ … services.” In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). See also Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Time Warner Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002). The evidence of relatedness of the services includes webpages from ● Wells Fargo Bank (www.wellsfargo.com) offering banking services, personal and business lending, investing and wealth management,7 ● Bank of America (www.bankofamerica.com) offering personal and commercial banking services, fiduciary services, money management services, investment advice and guidance, and wealth management,8 and ● PNC Bank (www.pnc.com) offering banking services, personal and commercial lending, fiduciary services, wealth management services and investment management services.9 This evidence demonstrates that consumers would expect the remaining services offered by Applicant and those services of registrant to be marketed under the same 7 June 10, 2015 Office Action, TSDR 6-33. 8 June 10, 2015 Office Action, TSDR 34-46. 9 June 10, 2015 Office Action, TSDR 47-70. Serial Nos. 86590754, 86590769 and 86590787 - 6 - mark, and establish that Applicant’s and registrant’s services are related for likelihood of confusion purposes. Because the services are in part legally identical, and because Applicant’s recitation of services specifies both commercial and consumer lending, and has no limitations pertaining to trade channels or classes of purchasers for the remaining related services, and neither do the services of the cited registrations, we presume that the channels of trade and classes of purchasers are the same. See Stone Lion, 110 USPQ2d at 1161; In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same); Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). As such, the du Pont factors regarding the similarity or dissimilarity of the services, as well as established, likely to continue trade channels and classes of purchasers, favor a finding of likelihood of confusion. Strength of the Registrant’s Marks We next analyze the strength of the cited marks because the strength of a registered mark determines its scope of protection or exclusivity of use. Evidence of use by third parties of similar marks on similar services is probative of the ultimate inquiry of likelihood of confusion only when such use is so extensive that “customers Serial Nos. 86590754, 86590769 and 86590787 - 7 - have become so conditioned by a plethora of such similar marks that customers have been educated to distinguish between different [such] marks on the basis of minute distinctions.” Palm Bay Imports, 73 USPQ2d at 1694. See also 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); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015). “[T]he strength of a mark is not a binary factor” and “varies along a spectrum from very strong to very weak.” Juice Generation, 115 USPQ2d at 1675-76 (internal citations omitted). “The weaker [a registrant’s] mark, the closer [an applicant’s] mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Id. at 1674 (internal citations omitted). See also Palm Bay Imports, 73 USPQ2d at 1693 (“Evidence of third-party use of similar marks on similar goods [or services] is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.”). “In determining the strength of a mark, we consider both its inherent strength based on the nature of the mark itself and its commercial strength, based on the marketplace recognition value of the mark.” American Lebanese Syrian Assoc. Charities, 101 USPQ2d at 1028 (citing Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) and McCarthy on Trademarks and Unfair Competition § 11:83 (4th ed. 2011) (“The first enquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time Serial Nos. 86590754, 86590769 and 86590787 - 8 - registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”)). Respondent introduced the following evidence into the record to demonstrate that the registered marks are weak: ● Search results from the USPTO’s TESS database listing live applications and registrations for marks containing the term INTEGRITY in International Class 36;10 ● Search results from the TESS database listing live applications and registrations for marks containing the term INTEGRITY and including the terms “banking” or “lending” in the recitations of services in International Class 36;11 and ● Third-party registrations from the TESS database, namely:12 • Registration No. 4749555 for , “FIRST FLORIDA” and “BANK” disclaimed for “banking and financing services”; • Registration No. 4749444 for FIRST FLORIDA INTEGRITY BANK, “FIRST FLORIDA” and “BANK” disclaimed, for “banking and financing services”; 10 Dec. 9, 2015 Resp., TSDR 3-8. 11 Dec. 9, 2015 Resp., TSDR 10-11. 12 We list and consider only the “live” third party registrations. A “dead” third-party registration is not entitled to any of the presumptions of Section 7(b) of the Trademark Act, 35 U.S.C. § 1057(b), including the presumption of validity. Serial Nos. 86590754, 86590769 and 86590787 - 9 - • Registration No. 4609549 for EXPERIENCE. INTEGRITY. INNOVATION., for “mortgage banking”; • Registration No. 4189069 for INTEGRITY FIRST BANK, “BANK” disclaimed, for services including “banking; banking and financial services, namely, commercial and consumer lending and mortgage lending”; • Registration No. 3999694 for INTEGRITY.COMMITMENT.PERFORMANCE for “investment brokerage, financial and investment banking services, financial and investment counseling services, all of the foregoing for public finance, insurance cooperative and pension fund customers and specifically excluding small business customers and retail or individual consumer customers”; • Registration No. 3408696 for INTEGRITY MORTGAGE “…PERSONAL SERVICE WITH INTEGRITY”, “MORTGAGE” disclaimed, for “mortgage banking”; and • Registration No. 3346552 for QUALITY. VALUE. INTEGRITY. for services including “financial services, namely, mortgage lending services.”13 The TESS search results have virtually no probative value. We cannot determine what the corresponding services are for each application or registration; applications are only evidence that an application has been filed, see In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002); and the listings do not indicate whether any terms in the marks have been disclaimed.14 Further, the lists are 13 Dec. 9, 2015 Resp., TSDR 12-32. 14 International Class 36 includes such unrelated services as charitable fundraising services, providing banking information, banking consultation and business equity research services. See Manual of Classification (accessed at https://www.uspto.gov/trademark/guides-and- manuals/manuals-guides-official-gazette). A mere listing of registrations and applications Serial Nos. 86590754, 86590769 and 86590787 - 10 - insufficient to make the underlying registrations of record. See In re Carolina Apparel, 48 USPQ2d 1542, 1543 n.2 (TTAB 1998) (“The Board does not take judicial notice of third-party registrations, and the mere listing of them is insufficient to make them of record.”). Third-party registrations, however, may be used in the manner of dictionary definitions to show that a mark or a portion of a mark is descriptive or suggestive of goods and services. See Conde Nast Publ’ns, Inc. v. Miss Quality, Inc., 507 F.2d 1404, 184 USPQ 422 (CCPA 1975). Here, the third-party registrations use the term “integrity” to suggest “firm adherence to a code of especially moral or artistic values: incorruptibility,” which is the same definition as that provided by the Merriam- Webster Online Dictionary at https://www.merriam- webster.com/dictionary/integrity.15 Thus, the third-party registrations do not show that the term “integrity” would immediately bring to mind a feature or characteristic of registrant’s services but rather support a finding that the term is suggestive. Notably, “integrity” is not disclaimed in these registrations. In addition to showing that a mark is descriptive or suggestive, evidence of extensive registration and use of a term by others can be “powerful” evidence of weakness. See Jack Wolfskin Ausrustung Fur Draussen, 116 USPQ2d at 1136; Juice without and identification of their services, even if in the same International Class 36 services in which registrant’s services fall, is of little use to us. 15 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). See In re Family Emergency Room LLC, 121 USPQ2d 1886, 1889 n.4 (TTAB 2017) Serial Nos. 86590754, 86590769 and 86590787 - 11 - Generation, 115 USPQ2d at 1674. We note, however, that in Juice Generation, there were at least twenty-six relevant third-party uses or registrations of record, 115 USPQ2d at 1672 n. 1, and in Jack Wolfskin, there were at least fourteen, 116 USPQ2d at 1136 n. 2. By comparison, seven registrations, as is the case here, are not very persuasive to demonstrate that the cited marks are commercially weak. We therefore find that “integrity” has a suggestive connotation (suggesting incorruptibility) in the money lending field, particularly with respect to “financial services in the field of money lending.” As noted above, “BANK & TRUST” is disclaimed in both registrations. We find these terms to be merely descriptive of a feature of “financial services in the field of money lending” because, as the third-party registrations indicate, banks and trusts are engaged in the lending of money. In sum, we find that the term “integrity” is a suggestive term in the context of registrant’s services involving the lending of money, and that the terms BANK and TRUST as well as the combination BANK & TRUST are merely descriptive. We further find that while registrant’s marks are not inherently strong, Applicant has not demonstrated that registrant’s marks are commercially weak. Similarity or Dissimilarity of the Marks We now compare the marks for similarities and dissimilarities in appearance, sound, connotation and commercial impression. Palm Bay Imports, 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 Serial Nos. 86590754, 86590769 and 86590787 - 12 - 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., 101 USPQ2d at 1721. Under actual marketing conditions, consumers do not necessarily have the luxury of making side-by-side comparisons between marks, and must rely upon their imperfect 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). Where the services of an applicant and registrant are legally identical, or even “similar in kind and/or closely related,” as they are in this consolidated appeal, the degree of similarity between the marks required to support a finding of likelihood of confusion is not as great as in the case of diverse services. In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987). Applicant points out differences in the marks at p. 4 of its brief, The initial “i” is distinctly larger than the rest of the mark, and is in a unique, stylized form that appears to take the shape of a person. The dot of the “i” is circular in the form of a person’s head, and the top of the base of the “i” includes a swoosh in the form of an arm, such that the “i” appears to take the shape of a person. The words “INTEGRITY” and “BANK” are vertically oriented to the right of the “i”, with the word “INTEGRITY” in a unique stylized font, and the word “BANK” in a clearly smaller size and centered underneath “INTEGRITY”. In contrast, the “INTEGRITY BANK & TRUST” mark (Reg. No. 2,876,685) does not include any word or letter preceding the word “INTEGRITY”, and includes the term “& TRUST” at the end. Serial Nos. 86590754, 86590769 and 86590787 - 13 - Also in contrast, the “I INTEGRITY BANK & TRUST and Design” mark (Reg. No. 2,876,686) includes a stylized “i” which is outlined in a rectangular box and include [sic] a diagonal line through the box, and in no way remotely resembles a person. Both of the letters “i” which appear in the word “integrity” are exactly the same as the “i” outlined in the rectangular box. The term “BANK & TRUST” appears underneath word “INTEGRITY” in a justified-type layout, extending all the way across the word “INTEGRITY”.16 Although we must consider the mark as a whole, “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 … .” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In this case, we find that the differences among the marks noted by Applicant do not distinguish the marks. Rather, we find that the shared term INTEGRITY is the dominant term in Applicant’s and registrant’s marks. INTEGRITY is the strongest term, and the most prominent term, in the marks. The remaining terms are descriptive or generic of Applicant’s and registrant’s services, or are featured in a smaller, less prominent manner (specifically, the phrase “A Division of S&TBank” in the ‘769 and ‘787 applications). Also, INTEGRITY is the first word a purchaser would read in perceiving the marks, and is the term most likely to be impressed upon the mind of a purchaser and remembered because of its comparative strength and positioning as the first term in the marks. See Palm Bay Imports, 9 USPQ2d at 1692 (contemporaneous use of VEUVE ROYALE, and VEUVE CLICQUOT and VEUVE 16 4 TTABVUE 5. Serial Nos. 86590754, 86590769 and 86590787 - 14 - CLICQUOT PONSARDIN, is likely to cause confusion, noting the “strong distinctive term [VEUVE] as the first word in both parties’ marks renders the marks similar, especially in light of the largely laudatory (and hence non-source identifying) significance of the word ROYALE”); Hewlett-Packard, 62 USPQ2d at 1004 (“the dominant portion of Packard Press’s mark (PACKARD TECHNOLOGIES) is identical to a prominent portion of HP’S HEWLETT PACKARD marks”); Presto Products, Inc. v. Nice Pak Prods., 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”). Further, despite Applicant’s association of the letter “i” in Applicant’s mark with a stylized depiction of a person, and the size of the letter “i” in Applicant’s marks in comparison with the remaining terms in the marks, the letter “i” functions to reinforce the term “integrity”; it is the first letter in “integrity” and despite its size and stylization, is immediately recognized as such. The same applies to the letter “i” in the ‘686 registration. Finally, the term “integrity” is the term purchasers recall and use to refer to the services, in both Applicant’s and registrant’s marks. To the extent the “i” would be perceived only as the design of a person and not as the letter “i,” the wording would still dominate. See Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)); see also In re Viterra Inc., 101 USPQ2d at 1908 (“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 Serial Nos. 86590754, 86590769 and 86590787 - 15 - the goods [or services] to which it is affixed.’”) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)). The Examining Attorney argues that INTEGRITY BANK is the dominant component of each mark.17 We disagree. The disclaimed term BANK is a highly descriptive or even generic term, and consumers are more likely to perceive an arbitrary or suggestive term, rather than a descriptive or generic term, as the dominant source-indicating feature of the mark. See In re Dixie Rests., Inc., 41 USPQ2d at 1533-34 (affirming TTAB’s finding that “DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE). Further, the term BANK is in substantially smaller script in Applicant’s marks than INTEGRITY, and is presented under that term. The same is true in the mark of the ‘686 registration, and there is no reason to separately consider & TRUST from BANK in both of registrant’s marks. Applicant looks to the third-party registrations it has made of record and makes an argument similar to that of the Examining Attorney: Since the marks (specifically, “FIRST FLORIDA INTEGRITY BANK”, “INTEGRITY FIRST BANK”, “INTEGRITY MORTGAGE …”, “I INTEGRITY FIRST REALTY & LOANS” , “FIRST INTEGRITY BANK” and “INTEGRITY BANK & TRUST”) and are centered around the term “INTEGRITY”, they will all be called Integrity Bank or Integrity Mortgage or Integrity Realty, etc. However, all of these marks are registered on the Princip[al] Register and coexist in the marketplace due to their various differences in the additional wording and design features used. Applicant sees no reason why its mark, which is similarly different and distinguishable from 17 8 TTABVUE 5. Serial Nos. 86590754, 86590769 and 86590787 - 16 - the other marks, is also not registrable on the Princip[al] Register.18 Of the registrations we consider above, three of the seven are for very dissimilar marks, and the two FIRST FLORIDA INTEGRITY BANK registrations are owned by the same registrant. These registrations are too few in number to support Applicant’s argument.19 We therefore are not persuaded by Applicant’s argument, which is essentially that on this slim record before us, highly descriptive or generic terms will distinguish these marks. And, there is no evidence in the record of a general practice in the banking and lending industry which supports Applicant’s position that consumers are likely to distinguish the marks based on the addition of such highly descriptive or generic terms. Turning to Applicant’s argument regarding differences in the letter “i” in Applicant’s marks and the mark of the ‘686 registration, we are not persuaded. While there are differences, there are also similarities; both are in lower case form, include a swoosh design (although not positioned similarly with respect to the letter “i”) and are angled slightly to the right.20 These similarities outweigh the differences; the differences do not suitably distinguish the marks, especially as the marks are used in connection with in part legally identical services. 18 Applicant’s brief at 6, 4 TTABVUE 7. 19 The registrations which do not support Applicant’s argument are Registration No. 4609549 for EXPERIENCE. INTEGRITY. INNOVATION; Registration No. 3999694 for INTEGRITY.COMMITMENT.PERFORMANCE; and Registration No. 3346552 for QUALITY. VALUE. INTEGRITY. 20 The lower portion of the black background in the ‘686 registration is part of the background design on which the swoosh is imposed, rather than as a separate design element. Serial Nos. 86590754, 86590769 and 86590787 - 17 - With regard to the mark of the ‘685 registration, which is in typed form, we also find Applicant’s three marks to be similar to this mark. Marks presented in typed characters are not limited, in terms of their font style, color or size, to any particular depiction.21 The rights associated with a mark in typed form reside in the wording, and not in any particular display. Thus, registrant is entitled to all depictions of its mark regardless of the font style, size, or color. In re Viterra, 101 USPQ2d at 1909- 11; Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed drawing is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party”); In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008). The letter “i,” which represents the first letter in the term INTEGRITY, does not change the commercial impression of the marks so as to distinguish the marks. In view of the foregoing, we conclude that Applicant’s three marks are more similar than dissimilar to registrant’s two marks in sound, meaning, appearance and commercial impression, particularly where, as here, we have in part identical and in part overlapping services. We are not convinced otherwise by Applicant’s arguments to the contrary, including its argument that INTEGRITY is a weak term in the lending field. 21 Trademark Rule 2.52(a) was amended in 2003 to refer to “typed drawings” as “standard character” drawings. See Trademark Rule 2.52(a); 37 C.F.R. 2.52(a). Serial Nos. 86590754, 86590769 and 86590787 - 18 - Conditions Under Which, and Buyers to Whom, Sales are Made Applicant argues at pp. 10–11 of its brief: Confusion is further mitigated due to the sophistication of the parties’ relevant consumers. In general, consumers seeking banking and financial services purchase such services only after careful consideration and reflection. This is because they are entrusting their hard earned money to the provider of such services. Choosing a bank is not an impulse purchase. Consumers choosing a bank or financial institution exercise a high degree of care and, thus, any perceived likelihood of confusion is eliminated.22 Applicant has not offered any evidentiary support for its argument and it is not clear why opening a checking or savings account or taking a minor loan would require any sophistication or care. With regard to lending services such as those of registrant, nothing in this record demonstrates that consumers care about from whom they obtain their loans. Members of the general public would care, instead, principally about the interest rate being charged and perhaps closing costs if mortgages are involved, rather than the financial strength of the lender. But even assuming that commercial banking customers are likely to be more sophisticated than ordinary individuals, or that the ordinary purchaser will exercise care in obtaining a loan, it is still the case that even relatively sophisticated and discriminating purchasers are not necessarily sophisticated or otherwise knowledgeable in the field of trademarks nor are they immune from confusion as to origin or affiliation. See, e.g., Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA 1962); In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988); In re Pellerin Milnor Corp., 221 USPQ 558, 560 22 4 TTABVUE 11-12. Serial Nos. 86590754, 86590769 and 86590787 - 19 - (TTAB 1983). This would be especially the case where, as here, substantially similar marks are utilized by Applicant and registrant in connection with legally identical services. Stone Lion, 110 USPQ2d at 1163 (“Substantial evidence supports the Board’s finding that such ordinary consumers … ‘are not immune from source confusion where similar marks are used in connection with related services.’”). Accordingly, we conclude that the circumstances surrounding the purchase of the services at issue here and the sophistication of the purchasers in no way diminish the likelihood of confusion in this case. Absence of Confusion Applicant argues that there is no evidence that there has been any actual confusion between Applicant’s services and registrant’s services despite the use of both marks since 2003.23 The contemporaneous use of Applicant’s mark and registrant’s mark for thirteen years is entitled to little weight. The Federal Circuit has addressed the question of the weight to be given to an assertion of no actual confusion by an applicant in an ex parte proceeding: With regard to the seventh DuPont factor, we agree with the Board that Majestic’s uncorroborated statements of no known instances of actual confusion are of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony of appellant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion. The opposite is not true, however. The lack of evidence of actual 23 Applicant’s brief at 9-10, 4 TTABVUE 10-11. Serial Nos. 86590754, 86590769 and 86590787 - 20 - confusion carries little weight, [citation omitted], especially in an ex parte context. Majestic Distilling, 65 USPQ2d at 1205; see also In re Integrated Embedded, 120 USPQ2d 1504, 1515 (TTAB 2016). Accordingly, while examples of actual confusion may point toward a finding of a likelihood of confusion, an absence of such evidence is not compelling in support of a finding of no likelihood of confusion. Thus, we cannot conclude from the lack of instances of actual confusion that confusion is not likely to occur. In any event, this record is devoid of any probative evidence relating to the extent of use of Applicant’s and registrant’s marks and, thus, whether there have been meaningful opportunities for instances of actual confusion to have occurred in the marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Accordingly, the du Pont factor of the length of time during and conditions under which there has been contemporaneous use without evidence of actual confusion is considered neutral. Balancing the factors We have found that Applicant’s marks and the cited marks are similar, the services are in part legally identical and otherwise related to one another and are provided to the same purchasers through overlapping trade channels. The du Pont factor regarding the conditions under which, and buyers to whom, sales are made does not favor a finding of likelihood of confusion, and the du Pont factor regarding Serial Nos. 86590754, 86590769 and 86590787 - 21 - the absence of confusion is neutral in our analysis. We therefore find that there is a likelihood of confusion among each of Applicant’s three marks for its services and both of registrant’s marks for its services. Decision: The refusals to register Applicant’s marks of application Serial Nos. 86590754, 86590769 and 86590787 are affirmed.