The Entrepreneur’s Source, Inc.

Trademark Trial and Appeal Board

Jul 27, 2010

No. 77416439 (T.T.A.B. Jul. 27, 2010)

Mailed: July 27, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The Entrepreneur’s Source, Inc.
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Serial No. 77416439
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Raymond A. Nuzzo of Law Offices of Raymond A. Nuzzo, LLC
for The Entrepreneur’s Source, Inc.

Benji Paradewelai, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
_______

Before Walters, Zervas and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

An application was filed by The Entrepreneur’s Source,
Inc. to register in standard characters on the Principal
Register the mark FRANCHISESOURCE.COM for the following
services: “Providing business information via a global
computer network about business marketing, business
advising, business consulting, the franchise industry,
franchise opportunities, business management services
available for women-owned businesses, and business
opportunities available for women-owned businesses”
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 77416439
2
in International Class 35.1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark, as used in
connection with its services, so resembles the mark
FRANSOURCE, previously registered on the Principal Register
in standard characters for “business franchise consulting
services” in International Class 35,2 as to be likely to
cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs on the
issue under appeal.
Evidentiary Matter
The examining attorney has objected to applicant’s
reference in its brief to acronyms for the term FRAN, which
applicant indicates it obtained from the Free Online
Dictionary, an internet website.3 According to this
website, FRAN is an acronym for Functional Reactive
Animation; and Family Relations & Applied Nutrition.
Applicant did not submit these definitions prior to the
filing of its brief, and the internet website from which

1 Application Serial No. 77416439 was filed March 7, 2008, based
upon applicant’s assertion of its bona fide intent to use the
mark in commerce.
2 Registration No. 3407778 issued on April 8, 2008.
3 http://acronyms.thefreedictionary.com/FRAN
Ser No. 77416439
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the acronyms were obtained does not identify the source
thereof. Because the source of these asserted acronyms
cannot be verified, and further because there is no
indication that the source of the acronyms is a widely-
known reference that is readily available in denoted
editions from the internet or CD-ROM, we will give them no
consideration in our determination herein. See In re Red
Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006); and In re
Total Quality Group Inc., 51 USPQ2d 1471 (TTAB 1999). We
further note, however, that inasmuch as the asserted
acronyms for the term FRAN do not appear to be related in
any way to the services recited in either the involved
application or cited registration, they would appear to be
of very limited probative value even if considered.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between
Ser No. 77416439
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the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 27 (CCPA
1976). See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).
The Services and Their Channels of Trade
Turning first to our consideration of the recited
services, we must determine whether consumers are likely to
mistakenly believe that they emanate from a common source
if sold under confusingly similar marks. It is not
necessary that the services at 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 are
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 producer. See In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
In this case, we begin by observing that applicant
does not present any arguments in its brief regarding the
relatedness of the services. We further observe that
Ser No. 77416439
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applicant’s business information services in the fields of,
inter alia, “business consulting, the franchise industry,
franchise opportunities” appear to be related on their face
to registrant’s recited “business franchise consulting
services” in that both concern the provision of advice and
information in the fields of business and franchising.
The examining attorney further has submitted evidence
from informational and commercial internet websites
suggesting that both applicant’s types of services and
registrant’s types of services may emanate from a common
source. For example, the following websites offer, inter
alia, franchise consulting and information on franchise
opportunities: franassist.com; franchisebuilders.com;
sunfranchising.com; frandocs.com; and
franchiseconsultant.brandexpansion.com. The foregoing
evidence suggests that services of the type offered by
applicant as well as services of the type offered by
registrant are offered by the same entities and are
identified by the same marks.
In view of the foregoing, and applying the applicable
law to the evidence of record, we find that applicant’s
business information services in the field of franchising
are related to registrant’s business franchise consulting
Ser No. 77416439
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services, and this du Pont factor favors a finding of
likelihood of confusion.
Furthermore, because there are no restrictions in
either applicant’s or registrant’s identification of
services as to the channels of trade in which the services
may be encountered, or type or class of customer to which
the services are marketed, both applicant’s and
registrant’s services must be presumed to move in all
normal channels of trade and be available to all classes of
potential consumers, including those of each other’s
services. See In re Elbaum, supra. In consequence
thereof, this du Pont factor further favors a finding of
likelihood of confusion.
The Marks
We now consider the similarity of the marks. In
determining the similarity or dissimilarity of marks, we
must consider the marks in their entireties in terms of
sound, appearance, meaning and commercial impression. See
du Pont, supra. See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005).
In this case, applicant’s mark, FRANCHISESOURCE.COM is
similar to the registered mark FRANSOURCE in that both
include the identical term SOURCE; and further in that the
Ser No. 77416439
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term FRANCHISE in applicant’s mark is similar to the term
FRAN in registrant’s mark.
We take judicial notice of the following definition of
“.com” as “ABBREVIATION: commercial organization (in
Internet addresses).”4 We further take judicial notice of
the following definition of “TLD” as “(Top-Level-Domain)
The Highest level domain category in the Internet domain
naming system. There are two types, the generic top-level
domains, such as .com, .org, and .net….”5 The term “.com,”
in itself, has no source-identifying significance. See In
re Hotels.com, L.P., 87 USPQ2d 1100 (TTAB 2008). Rather,
it serves only to signify that the user of the domain name
is a commercial entity, and that the goods or services
offered by the entity involve use of the Internet. See Id.
See also In re Oppendahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370 (Fed. Cir. 2004).
When viewed as a whole, we find that
FRANCHISESOURCE.COM is highly similar to FRANSOURCE in
appearance and sound in that applicant’s mark wholly
incorporates the term SOURCE in registrant’s mark and that
the term FRAN in registrant’s mark is more similar than

4 The American Heritage Dictionary of the English Language, (4th
Ed. 2000).
5 McGraw Hill Computer Desktop Encyclopedia (9th ed. 2001).

Ser No. 77416439
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dissimilar to the word FRANCHISE in applicant’s mark. With
regard to meaning, we find that FRANCHISESOURCE.COM
suggests an internet based source for franchise information
and related services. While we agree with applicant that
FRANSOURCE has no readily apparent meaning in the context
of the identified services, we find that registrant’s mark
may also suggest a source for franchise-related information
and services. Thus, to the extent that registrant’s mark
may have a recognized connotation, that connotation would
be similar to that of applicant’s mark. As discussed
above, the term .COM in applicant’s mark has no source-
identifying significance and does not serve to distinguish
applicant’s mark from that of registrant. Thus, we find
that, when viewed in their entireties, the similarities
between FRANCHISESOURCE.COM and FRANSOURCE outweigh their
dissimilarities.
Consumers who are familiar with the mark, FRANSOURCE,
used in connection with registrant’s services, who then see
the mark FRANCHISESOURCE.COM used in connection with
applicant’s related services, are likely to assume that the
owner of the FRANSOURCE mark expanded FRAN to FRANCHISE and
added .COM to its mark to identify additional internet-
based services such as those identified in the involved
application. In other words, consumers are likely to view
Ser No. 77416439
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both marks as variations of each other, and therefore as
indicators of a single source. It is settled that 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 Corporation, 206 USPQ 255
(TTAB 1980). Accordingly, this du Pont factor favors a
finding of likelihood of confusion.
Sophistication of Purchasers
Applicant also contends that purchasers of the
involved services are sophisticated. Even assuming
arguendo that purchases of applicant’s and registrant’s
services would involve a deliberate decision, this does not
mean that the purchasers are immune from confusion as to
the origin of the respective services, especially when, as
we view the present case, the similarity of the marks and
the similarity between the services outweigh any
sophisticated purchasing decision. See HRL Associates,
Inc. v. Weiss Associates, Inc., 12 USPQ2d 1819 (TTAB 1989),
aff’d, Weiss Associates, Inc. v. HRL Associates, Inc., 902
F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) [similarities of
goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods]. See also In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50
Ser No. 77416439
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(Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112
(CCPA 1970) [“Human memories even of discriminating
purchasers...are not infallible.”]. This du Pont factor
also favors a finding of likelihood of confusion.
Summary
In light of the foregoing, and resolving any doubt as
we must in favor of the prior registrant, we find that a
likelihood of confusion exists between the applied-for mark
and the mark in the cited registration. See Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
1001 (Fed. Cir. 2002); and In re Hyper Shoppes (Ohio),
Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal of registration is affirmed.