The Drive Media Inc.

Trademark Trial and Appeal BoardJun 7, 2021

86764811 (T.T.A.B. Jun. 7, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: June 7, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re The Drive Media, Inc. _____ Serial No. 86764811 _____ Stephan Matanovic of Bailey Duquette P.C., for The Drive Media, Inc. Yatsye I. Lee, Trademark Examining Attorney, Law Office 107, J. Leslie Bishop, Managing Attorney. _____ Before Pologeorgis, English and Hudis, Administrative Trademark Judges. Opinion by Hudis, Administrative Trademark Judge: The Drive Media, Inc. (“Applicant”) seeks registration on the Principal Register of the mark Serial No. 86764811 - 2 - (“THEDRIVE and Design” mark) for “providing a website featuring non-downloadable articles, news, picture galleries, videos and information in the field of automobiles, motorcycles, lifestyle and entertainment” in International Class 41.1 The Trademark Examining Attorney refused registration under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the services identified in the application, so resembles the typed drawing mark DRIVE2 for “magazines providing information on automobiles, travel and an automobile manufacturer” in International Class 16,3 registered on the Principal Register, as to be likely to cause confusion, to cause mistake, or to deceive. After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board. The appeal is fully briefed. We affirm the refusal to register. 1 Application Serial No. 86764811 originally was filed by Time Inc. (“Time”) on September 22, 2015, under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), based upon Time’s claim of first use anywhere since at least as early as May 22, 2015 and first use in commerce since at least as early as September 15, 2015. The involved application ultimately was assigned to Applicant, and all assignments demonstrating as such have been recorded with the Assignment Branch at the USPTO. The application contains the following description of the mark and claim to color: “The mark consists of the wording ‘THEDRIVE’ wherein ‘THE’ appears in orange and the letters ‘DRVE’ appear in black. The letter ‘I’ in ‘DRIVE’ appears in orange and is slanted to the right.” “The color(s) orange and black is/are claimed as a feature of the mark.” 2 Prior to November 2, 2003, “standard character” marks were known as “typed” drawings. A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard character’ marks formerly were known as ‘typed’ marks.”). 3 Registration No. 2209268, issued December 8, 1998; twice renewed. Serial No. 86764811 - 3 - I. Preliminary Issues Before proceeding to the merits of the refusal, we address evidentiary objections raised by the Examining Attorney, and Applicant’s request to suspend further proceedings in this appeal. A. The Examining Attorney’s Evidentiary Objections The Examining Attorney objects4 to Applicant’s reliance in its brief on the following: (1) references to the use of Applicant’s THEDRIVE and Design mark on its website, and on Facebook, Twitter, and Instagram, (2) Google search results regarding the search terms “drive” and “automobile,” and (3) references to six third-party applications and registrations as to marks registered for Class 16 printed materials (magazines) and Class 41 online entertainment/information services pertaining to vehicles or the automotive industry.5 Applicant responds that “[t]he Examining Attorney did not strike or otherwise object to Applicant’s evidence, all of which was properly submitted during the application process. All such arguments are, therefore, waived.”6 4 Examining Attorney’s Brief, 6 TTABVUE 5-6. Page references herein to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and after this designation are the page references, if applicable. 5 Applicant’s Brief, 4 TTABVUE. 5-7, 9-11. 6 Applicant’s Reply Brief, 7 TTABVUE, 3-4. Serial No. 86764811 - 4 - 1. Whether the Examining Attorney Waived the Evidentiary Objections As an initial matter, all of the cases Applicant cited in support of its waiver argument involve evidentiary submission mediums (e.g., notices of reliance and deposition transcripts) or substantive claims asserted that are the subject of inter partes Board proceedings (e.g., oppositions and cancellations). These particular case law citations are inapplicable to ex parte appeals before the Board. With that said, just because Applicant cited the wrong cases does not mean its waiver argument is totally without merit. To begin, Applicant discussed its use of THEDRIVE and Design mark on its website, and on Facebook, Twitter, and Instagram, during the prosecution of its application.7 The Examining Attorney did timely object to the discussion of these Internet references on the ground that Applicant did not properly make web page captures of these materials of record.8 The Examining Attorney did not waive her objections to this evidence. Applicant also discussed its Google search results regarding the search terms “drive” and “automobile” during prosecution.9 However, the Examining Attorney did not timely object to the discussion of these Google search results. The Examining Attorney did waive her objections to this evidence, but as we note below that is not the end of the matter. 7 Office Action Response of May 1, 2020 at TSDR 7. 8 Office Action of May 26, 2020 at TSDR 3. 9 Office Action Response of May 1, 2020 at TSDR 7. Serial No. 86764811 - 5 - Applicant further discussed the contents of six third-party applications and registrations during prosecution.10 Again, however, the Examining Attorney did not timely object to Applicant’s discussion of these third-party registrations. Board policy is very specific under such circumstances: If the applicant, during the prosecution of the application, provided a listing of third-party registrations, without also submitting actual copies of the registrations, and the examining attorney did not object or otherwise advise the applicant that a listing is insufficient to make such registrations of record at a point when the applicant could cure the insufficiency, the examining attorney will be deemed to have waived any objection as to the admissibility of the list. TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.03 (2020); see also In re City of Houston, 101 USPQ2d 1534, 1536 (TTAB 2012) (“[T]he examining attorney’s failure to advise applicant of the insufficiency of the list of registrations when it was proffered during examination constituted a waiver of any objection to consideration of that list. Accordingly, we will consider the ... list of registrations ... ‘for whatever limited probative value such evidence may have,’” (citing In re Broyhill Furniture Indus. Inc., 60 USPQ2d 1511, 1513 n.3 (TTAB 2001))), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013). Once more, the Examining Attorney waived her objections to this evidence, but again as we note below that is not the end of the matter. 2. Internet References As we elaborated above, the Examining Attorney’s objection to Applicant’s discussion of its use of THEDRIVE and Design mark on its website, and on Facebook, 10 Office Action Response of May 1, 2020 at TSDR 8-9. Actually, Applicant only referred to these third-party registrations by their underlying application serial numbers. Serial No. 86764811 - 6 - Twitter, and Instagram – because these materials were not properly made of record – was not waived. All Applicant provided with respect to its website and social media use of its service mark (in its Office Action Response and Appeal Brief) were URL addresses and concomitant hyperlinks.11 This is not sufficient to introduce the underlying webpages into the record. See In re ADCO Indus. – Techs., L.P., 2020 USPQ2d 53786, at *2 (TTAB 2020) (citing In re Olin, 124 USPQ2d 1327, 1331 n.15 (TTAB 2017); In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269, 1274 (TTAB 2012). To properly introduce Internet evidence into the record, an applicant must provide (1) an image file or printout of the downloaded webpage, (2) the date the evidence was downloaded or accessed, and (3) the complete URL address of the webpage. See In re I-Coat Co., LLC, 126 USPQ2d 1730, 1733 (TTAB 2018). Applicant did not do this. Accordingly, the Examining Attorney’s objection to Applicant’s discussion of its use of THEDRIVE and Design mark on its website and social media use of its service mark is sustained, and we do not consider this discussion further. The Examining Attorney’s objection to Applicant’s discussion of a 24-page output of Google search results regarding the search terms “drive” and “automobile” was waived. However, Applicant never made the Google search results of record during prosecution. “Attorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). 11 Office Action Response of May 1, 2020 at TSDR 7; Applicant’s Brief, 4 TTABVUE 6. Serial No. 86764811 - 7 - Notwithstanding the Examining Attorney’s waiver of the objection, there is no evidence of record to support Applicant’s argument in its brief that: “a simple Google search for the terms ‘drive’ and ‘automobile’ displays Applicant’s Mark as the 6th result on the first page whereas the website of Registrant (https://subarudrive.com/) does not appear in any of the 24 pages of search results.”12 We therefore do not consider this argument further. 3. Third-Party Applications and Registrations The Examining Attorney’s objection to the list of six third-party applications and registrations relied on in Applicant’s brief was waived. We therefore consider the list of registrations for whatever limited probative value such evidence may have. In re City of Houston, 101 USPQ2d at 1536. Pursuing this further, the value of this list of third-party applications and registrations that Applicant discusses in its brief is exceedingly low. Except for the following one registration, all of the third-party references relied on in Applicant’s brief have been canceled or abandoned: Mark App. No., Reg. No. Status Goods/Services Owner TRUCK TREND App. No. 77043373 Reg. No. 3284841 Reg’d: Aug. 28, 2007 Active Periodical magazines featuring trucks and the automotive industry, Cl. 16; Providing on-line magazines and archived magazine articles in the field of trucks and the automotive industry, Cl. 41 Motor Trend Group, LLC 12 Applicant’s Brief, 4 TTABVUE 7. Serial No. 86764811 - 8 - Abandoned trademark applications have “‘no probative value other than as evidence that the applications [were] filed.’” Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1403 n.4 (TTAB 2010) (quoting In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002)).13 A cancelled registration is not evidence of any existing rights in the mark. See Action Temp. Servs. v. Labor Force, 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989). Additionally, an expired or cancelled registration is evidence of nothing but the fact that it once issued. Sunnen Prods. Co. v. Sunex Int’l Inc., 1 USPQ2d 1744, 1747 (TTAB 1987). Therefore, the only active third-party reference on file with the USPTO which Applicant made of record and that we consider is the TRUCK TREND mark of Reg. No. 3284841. B. Applicant’s Suspension Request Applicant requested a suspension of this appeal pending the resolution of Cancellation No. 92075824.14 Applicant filed that cancellation proceeding against Registration No. 2209268 for the mark DRIVE, owned by Subaru of America, Inc. (“Subaru”)15 – the very mark and registration cited against Applicant’s THEDRIVE and Design application in this appeal. The TSDR record for Applicant’s involved application shows that the cancellation action has been “terminated.” Thus, the DRIVE registration cited by the Examining Attorney remains in full force and 13 Even live applications have no probative value. An application has no probative value because pending applications are only evidence that they have been filed. See In re Phillips- Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002) (“While applicant also submitted a copy of a third-party application ..., such has no probative value other than as evidence that the application was filed”). 14 Applicant’s Brief, 4 TTABVUE 11-12. 15 Id. at 11. Serial No. 86764811 - 9 - effect.16 Applicant’s request to suspend proceedings in this appeal is therefore denied as moot. II. Likelihood of Confusion - Applicable Law We base our determination of likelihood of confusion under Trademark Act Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973). In applying the DuPont factors, we bear in mind the fundamental purposes underlying Trademark Act Section 2(d), which are to prevent confusion as to source and to protect registrants from damage caused by registration of confusingly similar marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566. Varying weights may be assigned to the various DuPont factors depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 16 Examining Attorney’s Brief, 6 TTABVUE 3, n.1. Serial No. 86764811 - 10 - 98 USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less weighty roles in any particular determination”). Two key considerations are the similarities between the marks and the relatedness of the goods or services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods [and services].’”)) (citations omitted). III. Likelihood of Confusion - Analysis We now consider the arguments of Applicant and the Examining Attorney, the applicable law and the evidence of record. The likelihood of confusion factors Applicant and the Examining Attorney discussed are the scope of protection (or strength) to be afforded Registrant’s DRIVE mark, the similarity or dissimilarity of Applicant’s and Registrant’s marks, the relatedness of the goods and services associated with the respective marks, and the channels of trade in which the goods and services under the marks travel. We discuss these factors below. A. The Strength of Registrant’s Mark In determining the strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its Serial No. 86764811 - 11 - marketplace strength (secondary meaning).”); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014). We consider the strength of Registrant’s DRIVE mark so that we may evaluate the scope of protection to afford the mark. Applicant asserts that the scope of Registrant’s DRIVE mark “cannot reasonably be construed to encompass” the services identified in Applicant’s THEDRIVE and Design application because, in part, it “exist[s] in a crowded field of similar marks.”17 However, Applicant provided no admissible evidence to support this assertion. As we already said, “[a]ttorney argument is no substitute for evidence.” Cai v. Diamond Hong, 127 USPQ2d at 1799. We further find Registrant’s DRIVE mark to be inherently distinctive inasmuch as it is registered on the Principal Register without a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f). From a conceptual standpoint, we thus afford Registrant’s DRIVE mark the ordinary scope of protection given a registered, inherently distinctive mark, as opposed to a limited scope of protection that would be accorded a conceptually weaker mark. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109-110 (CCPA 1974); In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982). We turn now to the commercial strength of Registrant’s DRIVE mark. In an ex parte appeal, the owner of the cited registration is not a party, and the Examining Attorney is under no obligation to demonstrate exposure to or recognition of the cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 17 Applicant’s Brief, 4 TTABVUE 4. Serial No. 86764811 - 12 - 2016). Moreover, Applicant has not made of record any third-party uses of marks comprising or including the term DRIVE for goods or services identical or similar to the goods listed in the cited registration. “The purpose of a defendant introducing third-party uses is to show that customers have become so conditioned by a plethora of such similar marks that customers ‘have been educated to distinguish between different such marks on the bases of minute distinctions.’” Primrose Retirement Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (quoting Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). Here, in the absence of such evidence, we find no proof of commercial weakness of Registrant’s DRIVE mark. B. The Similarity or Dissimilarity of the Marks We determine the similarity or dissimilarity of Applicant’s and Registrant’s marks in their entireties, the first DuPont factor, taking into account their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019). Under actual marketing conditions, consumers do not necessarily have the luxury of making side-by-side comparisons between marks, and must instead rely upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259 Serial No. 86764811 - 13 - (TTAB 1980). “The proper test[, therefore,] 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.” Cai v. Diamond Hong, 127 USPQ2d at 1801 (internal quotation omitted). The parties’ marks “must be considered … in light of the fallibility of memory ….” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). Therefore, the focus is on the recollection of the average purchaser, here, a member of the general public who is interested in automobiles or the automobile industry, who normally retains a general rather than a specific impression of trademarks. In re Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the similarity or dissimilarity of the marks is determined based on the marks in their entireties, our analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). Further, “[n]o element of a mark is ignored simply because it is less dominant, or would not have trademark significance if used Serial No. 86764811 - 14 - alone.” In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ 35 (CCPA 1974)). Nonetheless, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). We find the identical term DRIVE to be the dominant portion of both marks. DRIVE is the only term comprising Registrant’s mark. Inclusion of the article “the” at the beginning of Applicant’s mark generally does not affect or otherwise diminish the overall similarity between the marks. See In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009) (finding WAVE and THE WAVE “virtually identical” marks; “[t]he addition of the word ‘The’ at the beginning of the registered mark does not have any trademark significance.”); In re Narwood Prods. Inc., 223 USPQ 1034, 1034 (TTAB 1984) (finding THE MUSIC MAKERS and MUSICMAKERS “virtually identical” marks; the inclusion of the definite article “the” is “insignificant in determining likelihood of confusion”). As such, the literal portions of the marks are substantively similar in appearance, sound, and meaning. Applicant attempts to distinguish the respective marks by arguing that “Applicant’s Mark is a design mark with a distinctive color scheme, logo, and stylized elements. In contrast, [Registrant’s mark] … is a simple non-stylized word mark.”18 18 Applicant’s Brief, 4 TTABVUE 4. Serial No. 86764811 - 15 - More specifically, Applicant contends that its mark “is in a stylized form composed of a brand-identifying orange and black color scheme, as well a specific design feature. The letter ‘I’ is in an orange color and is slanted to the right. … [T]his orange slanted ‘I’ logo (the ‘Logo’) is an essential element of Applicant’s Mark and can be just as important as the text element ‘THEDRIVE’ to consumers.”19 Applicant concedes however, that the so-called “Logo,” or stylized non-literal portion “is a relatively small feature of the mark” and “might appear to be minor ….”20 The Examining Attorney makes several counter-arguments with which we agree. For instance, when evaluating a composite mark, such as Applicant’s, consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra, 101 USPQ2d at 1908. Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are similar. In re Viterra, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ2d 390, 395 (Fed. Cir. 1983)). That is the case here. Moreover, the particular stylization in Applicant’s mark (where “DRIVE” appears in larger font) actually enhances the significance of and draws one’s attention to the 19 Id. at 5. 20 Id. at 5-6. Serial No. 86764811 - 16 - shared term “DRIVE,” which is the entirety of Registrant’s mark. Therefore, the literal portion of Applicant’s mark encompasses Registrant’s whole mark. While there is no explicit rule that likelihood of confusion automatically applies where a junior user’s mark incorporates the entirety of another mark, the fact that the cited registered mark is subsumed by Applicant’s mark increases the similarity between the two. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant's mark VANTAGE TITAN for medical magnetic resonance imaging diagnostic apparatus confusingly similar to TITAN for medical ultrasound diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant's mark MACHO COMBOS for food items confusingly similar to MACHO for restaurant entrees); In re Riddle, 225 USPQ 630, 632 (TTAB 1985) (RICHARD PETTY’S ACCU TUNE for automotive service centers confusingly similar to ACCU-TUNE for automotive testing equipment). With the dominant term of the respective marks, “DRIVE,” being identical, and the remaining term of Applicant’s mark, “THE,” having little to no source-identifying significance, we find Registrant’s and Applicant’s marks to be more similar than they are different in overall commercial impression. Moreover, the design or stylization elements of Applicant’s mark do not distinguish it from Registrant’s mark for likelihood of confusion purposes. Since Registrant’s mark is in typed format, it could appear in the same font and stylization as Applicant’s mark. Therefore, the stylization and font of Applicant’s mark is insufficient in this case to distinguish the marks. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1823 Serial No. 86764811 - 17 - (TTAB 2015) (a standard character mark “could be used in any typeface, color, or size, including the same stylization actually used ... [in the cited mark], or one that minimizes the differences or emphasizes the similarities between the marks.”) (citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011)). The similarities of the marks, the first DuPont factor, support the conclusion that confusion is likely. C. The Similarity or Dissimilarity of the Goods and Services We now address the second DuPont factor, the “similarity or dissimilarity and nature of the … services as described in an application or registration.…” DuPont, 177 USPQ at 567; Stone Lion, 110 USPQ2d at 1159 and 1162. Where, as here, the marks are nearly identical, “[i]t is only necessary that there be a ‘viable relationship between the goods’ to support a finding of likelihood of confusion.” Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1471 (TTAB 2016) (quoting L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012)); see also In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even when goods or services are not competitive or intrinsically related, the use of identical marks can lead to the assumption that there is a common source”). Applicant argues “there is no likelihood of confusion here because Applicant’s website services offered under Applicant’s Mark are in Class 41, while the Cited Mark is in Class 16.”21 As Applicant further expounds: Had Registrant intended for the Cited Mark to also cover website services like those offered by Applicant, it would (and perhaps should) 21 Applicant’s Brief, 4 TTABVUE 6. Serial No. 86764811 - 18 - have extended the Cited Mark’s application to also include such services under Class 41. To hold otherwise and thus to extend the services covered by the Cited Mark to additionally include website services in those covered under Class 41, would not only unfairly prejudice Applicant but also reward Registrant for having only submitted its application under Class 16 rather than under both Class 16 and Class 41.22 Applicant’s arguments are not persuasive. That Applicant’s services and Registrant’s goods are in different International Classes does not establish that they are unrelated under Trademark Act Section 2(d). The determination concerning the proper classification of goods or services is a purely administrative determination unrelated to the determination of likelihood of confusion. In re Detroit Athletic, 128 USPQ2d at 1051 (citing Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993)). Rather, it is the manner in which the Applicant and Registrant have identified their goods or services that is controlling. See Nat’l Football League v. Jasper Alliance Corp., 16 USPQ2d 1212, 1216 & n.5 (TTAB 1990). “[The second DuPont] factor considers whether ‘the consuming public may perceive [the respective goods and services of the parties] as related enough to cause confusion about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)). The issue, moreover, is not whether purchasers would confuse the goods and services, but rather whether there is a likelihood of confusion as to the source of the goods and 22 Id. at 9. Serial No. 86764811 - 19 - services. L’Oreal v. Marcon, 102 USPQ2d at 1439; In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The goods and services need not be identical or even competitive to find a likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods and services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012). Evidence of relatedness may include news articles or evidence from computer databases showing that the relevant goods and services are used together or used by the same purchasers; advertisements showing that the relevant goods and services are advertised together or sold by the same manufacturer or dealer; or copies of use based registrations of the same mark for both the applicant’s services and the goods listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014). Here, the Examining Attorney made of record numerous third-party webpages demonstrating that a plethora of companies publish information and articles about all types of vehicles and the automotive industry in printed (magazine) and online formats, including: Autoweek, Road & Track, Motor Trend, Automobile, Hemmings, Serial No. 86764811 - 20 - Hot Rod,23 Under the Hood, Car Pro, Wrench Nation, Car and Driver, Popular Mechanics,24 Down Shift, Truck Trend, Green Car Journal, Four Wheeler/JP Magazine, Road Runner,25 Grassroots Motorsports, Road & Travel and Performance BMW.26 Where the record, such as in this case, includes substantial evidence of consumer exposure to the relevant goods and services being offered under the same mark by a single entity, this suffices to establish relatedness regardless of whether the record also includes use based third-party registrations. See, e.g., Detroit Athletic Co., 128 USPQ2d at 1051-52 (affirming relatedness of goods and services where the record included marketplace evidence of a single mark for both, but no third-party registrations listing the same goods and services under one mark). We also note Reg. No. 3284841 for the mark TRUCK TREND for “periodical magazines featuring trucks and the automotive industry,” in Class 16 and “providing on-line magazines and archived magazine articles in the field of trucks and the automotive industry” in Class 41, discussed by Applicant and to which the Examining Attorney waived her objection.27 Although active third-party registrations are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless have probative value to the extent that they serve to suggest that the services listed therein are of a kind that may emanate from a single source 23 Office Action of October 23, 2015, at TSDR 17-65. 24 Office Action of January 8, 2019, at TSDR 13-61. 25 Office Action of October 15, 2019, at TSDR 11-12, 23-64. 26 Office Action of May 26, 2020, at TSDR 21-54. 27 Office Action Response of May 1, 2020, at TSDR 9; Applicant’s Brief, 4 TTABVUE 10. Serial No. 86764811 - 21 - under a single mark. See, e.g., Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1432 (TTAB 2013) (finding that third-party registrations covering both wine and water were probative of the relatedness of those beverages). We find that the relatedness of Applicant’s services and Registrant’s goods, the second DuPont factor, supports the conclusion that confusion is likely. D. The Similarity or Dissimilarity in Channels of Trade We now turn to the third DuPont factor, the “similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion, 110 USPQ2d at 1159 and 1161. Above, we found Registrant’s goods and Applicant’s services to be related. We also observe that neither the cited Registration nor the Application at issue contains any restrictions on the channels of trade or classes of purchasers. We therefore presume that the cited Registration and involved Application encompass all goods and services of the types described, that they move in all normal channels of trade for such goods and services, and that they are available to all classes of purchasers – members of the general public who are interested in automobiles or the automobile industry, see Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013), on the basis of all normal and usual methods of distribution. SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). We also note the numerous third-party direct-to-consumer websites made of record by the Examining Attorney demonstrating an overlap of trade channels as to the printed and online publication of information relating to vehicles and the automotive industry. Serial No. 86764811 - 22 - The overlapping channels of trade, the third DuPont factor, weigh in favor of a conclusion that confusion is likely. IV. Conclusion on Likelihood of Confusion On balance, the relevant DuPont factors favor finding a likelihood of confusion. The marks at issue are more similar than dissimilar; the goods and services are related and travel in overlapping channels of trade and are offered to overlapping classes of consumers. We therefore find that Applicant’s mark, used in connection with Applicant’s services, so closely resembles Registrant’s mark used in connection with Registrant’s goods as to be likely to cause confusion, mistake or deception as to the source of Applicant’s services. Decision: The refusal to register Applicant’s mark on the ground of likelihood of confusion under Trademark Act Section 2(d) is affirmed.