YOLK Co. Ltd

Trademark Trial and Appeal Board

Jan 11, 2022

88732502 (T.T.A.B. Jan. 11, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: January 11, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Yolk Co., Ltd. _____ Serial No. 88732502 _____ Charles Y. Park of NSIP Law, for Yolk Company, Ltd. David Yontef, Trademark Examining Attorney, Law Office 118, Michael W. Baird, Managing Attorney. _____ Before Kuhlke, Shaw, and Johnson, Administrative Trademark Judges. Opinion by Johnson, Administrative Trademark Judge: Yolk Company, Ltd. (“Applicant”) seeks registration on the Principal Register of SOLAR COW (or “Applicant’s Mark”), in standard characters, for goods ultimately identified as: Solar-powered battery chargers; solar panels for the production of electricity; inverters for solar-power electricity generation; photovoltaic solar modules for production of electricity; charging stations for battery packs; portable batteries; battery packs; electric accumulators; loudspeakers; electric power converters for solar-power electricity generation; audio speakers; MP4 players; radios; mini beam projectors; TV monitors; Serial No. 88732502 - 2 - wireless audio/video receivers; sound and video recording and playback machines, in International Class 9; and Solar heat collection panels; solar modules, namely, solar thermal installations in the nature of solar thermal modules; LED lighting systems, namely, LED modules; LED head lanterns for lighting, in International Class 11.1 The Trademark Examining Attorney refused registration of Applicant’s Mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that SOLAR COW, as applied to “solar-powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs,” identified in class 9 of the application, so resembles the “Cow Design” registered mark2 (“Registered Mark” or “Registrant’s Mark”), shown below for, inter alia, “rechargeable batteries” in International Class 9, as to be likely to cause confusion, to cause mistake, or to deceive.3 1 Application Serial No. 88732502, filed on December 18, 2019 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and first use in commerce since at least as early as August 27, 2018. Applicant disclaims the exclusive right to use the word “SOLAR.” 2 Registration No. 5988641 issued on February 18, 2020. The mark is registered in International Class 9 for the following goods: “Blank integrated circuit cards; Blank USB flash drives; Calculating machines; Cell phone straps; Computer mouse, namely, trackballs; Covers for smartphones; Decorative magnets; Dog whistles; Earphones; Electrical plugs and sockets; Eyeglasses; Geiger counters; Head-clip cell phone holders; Headphones; Mouse pads; Rechargeable batteries; Reflective safety vests; Scales; Selfie sticks; Smart watches; Cases for smartphones; Protective films adapted for smartphones.” The mark is described as follows: “The mark consists of the wording ‘COW’ inside of a black circle. The letter ‘C’ is doubled in white and clings to the inner left side of the circle, followed by the letter ‘O’ in black on a white circle background with a stylized black and white cow face in the center, followed by the letter ‘W’ in black, outlined in white.” The colors black and white are claimed as a feature of the mark. 3 This refusal is limited to the specific goods in International Class 9 listed above. Serial No. 88732502 - 3 - The Examining Attorney also refused registration of Applicant’s Mark under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, in classes 9 and 11, on the ground that Applicant submitted an improper specimen. When the refusals were made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal resumed. The appeal has been fully briefed.4 We affirm the refusals to register. I. Evidentiary Issues First, we address two evidentiary issues. The Examining Attorney claims that Applicant submitted, for the first time on appeal, a list of ten third-party registrations,5 and for that reason, the ten registrations are not part of the record. 6 TTABVUE 15-16. Indeed, these ten third-party registrations were not a part of the record prior to appeal. 4 Page references to the application record are to the United States Patent and Trademark Office’s (“USPTO” or “Office”) Trademark Status & Document Retrieval (TSDR) system. Citations in this opinion to the briefs and other docket entries refer to TTABVUE, the Board’s online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear. 5 These registration numbers are different from those listed in Applicant’s September 17, 2020 Response to Office Action. Serial No. 88732502 - 4 - The record in the application should be complete prior to the filing of an appeal. Evidence should not be filed with the Board after the filing of a notice of appeal. If the appellant or the examining attorney desires to introduce additional evidence after an appeal is filed, the appellant or the examining attorney should submit a request to the Board to suspend the appeal and to remand the application for further examination. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). See also In re Posthuma, 45 USPQ2d 2011, 2012 n.2 (TTAB 1998) (third-party registration attached to appeal brief not considered). Accordingly, the list of registrations Applicant submitted with its brief were not timely filed. In addition, Applicant did not properly submit the registrations. To make third- party registrations part of the record, Applicant must submit copies of the registrations, or the complete electronic equivalent, prior to appeal. In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2064 (TTAB 2013); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1208.02 (2021). The mere submission of a list of registrations on appeal does not make such registrations a part of the record. In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1405 n.17 (TTAB 2018) (citing In re 1st USA Realty Prof’ls, 84 USPQ2d 1581, 1583 (TTAB 2007)); TBMP § 1208.02. Consequently, we sustain the Examining Attorney’s objection and will not consider the list of registrations. The Examining Attorney also points out that Applicant, for the first time in its brief on appeal, displayed three “screen captures” from a URL which allegedly links to an embedded video showing Applicant’s Mark on product packaging for the identified goods. 6 TTABVUE 11-12. Applicant replies that the URL linking to the Serial No. 88732502 - 5 - screen captures was provided in its Request for Reconsideration After Final Office Action, and that the Examining Attorney “fails to explain why he did not use the web address that was provided by the Applicant” to access the web page with the embedded video. 9 TTABVUE 11. To properly introduce Internet evidence into the record, 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. In re I- Coat Co., LLC, 126 USPQ2d 1730, 1733 (TTAB 2018); TBMP § 1208.03. A URL address or hyperlink is not sufficient to introduce the underlying “screen captures” into the record. In re ADCO Indus. - Techs., L.P., 2020 USPQ2d 53786, at *2 (TTAB Feb. 11, 2020) (citing In re Olin, 124 USPQ2d 1327, 1331 n.15 (TTAB 2017); TBMP § 1208.03). “Because the information displayed at a link’s Internet address can be changed or deleted, merely providing a link to a website is insufficient to make information from that site of record.” Olin, 124 USPQ2d at 1332 n.15. Since the three “screen captures” were not properly introduced into the record prior to appeal, we sustain the Examining Attorney’s objection and decline to consider the “screen captures” as well as the URL link. II. Specimen Refusal As noted above, the Examining Attorney refused to register Applicant’s Mark on the ground that Applicant did not submit a proper specimen showing use of Applicant’s Mark for the goods described in classes 9 and 11. Shown below are the Serial No. 88732502 - 6 - most relevant pages from the specimen Applicant submitted with its application,6 specifically, Internet website printouts from a Kickstarter campaign and a Kicktraq “advertiser pilot.” 6 The original specimen was filed in support of Applicant’s goods as originally claimed in class 9. Applicant amended the identification of goods, adding specific goods in class 11, in its September 17, 2020 Response to Office Action at TSDR 1. Serial No. 88732502 - 7 - Serial No. 88732502 - 8 - Serial No. 88732502 - 9 - Serial No. 88732502 - 10 - Serial No. 88732502 - 11 - Serial No. 88732502 - 12 - Serial No. 88732502 - 13 - Serial No. 88732502 - 14 - Serial No. 88732502 - 15 - Serial No. 88732502 - 16 - The Examining Attorney refused registration of the original specimen under Trademark Act Sections 1 and 45 because the specimen consisted of advertising material that did not properly show Applicant’s Mark as actually used in commerce.7 In response to the refusal, Applicant submitted for its goods in classes 9 and 11 a substitute specimen consisting of printouts from Applicant’s website.8 Applicant claimed the printouts “display[ed] the SOLAR COW mark in close association with pictures and textual descriptions of the identified goods, and provide[d] a means for consumers to contact sales representatives (i.e., sales@yolkstation.com) to purchase the SOLAR COW product, and/or to make inquiries through the website regarding the SOLAR COW product … .”9 The Examining Attorney continued the refusal, stating that the substitute specimen (1) was unacceptable advertising material generally; (2) did not show sufficient means for ordering and purchasing the goods; (3) did not show use on any of the goods at issue in International Class 11; and (4) did not show Applicant’s goods bearing the mark SOLAR COW advertised for sale in Applicant’s “shop.”10 In response to the second refusal, Applicant submitted a second substitute specimen, shown below. 7 Mar. 17, 2020 Office Action, TSDR 5. 8 Sept. 17, 2020 Response to Office Action, TSDR 3, 6, 9, 13. 9 Id. at TSDR 1. 10 Oct. 13, 2020 Final Office Action, TSDR 1. Serial No. 88732502 - 17 - 11 Applicant identified the second substitute specimen as follows: Color photographs of a packaging box displaying the mark in which the goods, namely an LED module with a battery pack are distributed.12 Again, the Examining Attorney continued the refusal for classes 9 and 11. This time, the Examining Attorney argued that the second substitute specimen was merely a mockup of how the SOLAR COW mark would appear on product packaging, consisting of digitally created images of the mark similar to “printers’ proofs,” and thus, was not proper.13 11 Apr. 13, 2021 Specimen, TSDR 1-2. In its April 13, 2021 Request for Reconsideration at TSDR 2, Applicant also incorporated an excerpt from Kickstarter with an image of product packaging. Above the image is the sentence “Unboxing a Solar Milk.” However, the product packaging in the image does not bear the SOLAR COW mark. 12 Apr. 13, 2021 Request for Reconsideration, TSDR 8. 13 May 17, 2021 Request for Reconsideration After Final Action Denied, TSDR 1. In its brief, Applicant states that the Examining Attorney “now claims that the packaging box specimen that is used by the Applicant to support registration of the SOLAR COW mark in both International Classes 09 and 11 can only support registration in Class 11 for LED lighting.” 6 TTABVUE 24-25. To be clear, there is no indication in the record, or in the Examiner’s Statement, that the second substitute (i.e., “packaging box”) specimen, or any of Applicant’s prior specimens, support registration of Applicant’s Mark in class 11 for LED lighting. Serial No. 88732502 - 18 - Applicant does not contest the Office’s rejection of the original and first substitute specimens,14 so we focus our analysis on the second substitute specimen, or “packaging box” specimen. “A trademark specimen must show use of the mark on the goods, on containers or packaging for the goods, on labels or tags affixed to the goods, or on a display associated with the goods.” Trademark Rule 2.56(b)(1), 37 C.F.R. § 2.56(b)(1). “A clear and legible photocopy, photograph, web page printout, or other similar type of reproduction of an actual specimen that meets the requirements of paragraphs (a) and (b) [of Section 2.56] is acceptable.” Trademark Rule 2.56(c), 37 C.F.R. § 2.56(c). But “the specimen may not be a ‘picture’ of the mark, such as an artist’s rendering, a printer’s proof, a computer illustration, or an image of the goods or its packaging or advertising matter for services that has been digitally created/altered or mocked up to include the mark.” TRADEMARK MANUAL OF EXAMINING PROCEDURE § 904.04 (July 2021). Applicant argues that the second substitute specimen is permissible under Trademark Rule 2.56(c) because it “constitute[s] a container for the goods that prominently displays the mark on the front panel.” 6 TTABVUE 24. In support of its argument, Applicant points to the “screen captures” on pages 9 and 10 of its brief, discussed in Section I, supra, which “demonstrate[s] that those specimens are real, See 8 TTABVUE 18-19; May 17, 2021 Request for Reconsideration After Final Action Denied, TSDR 1. 14 See 6 TTABVUE 9, 22; see also Sept. 17, 2020 Response to Office Action, TSDR 1; Apr. 13, 2021 Request for Reconsideration, TSDR 1. For the reasons set forth by the Examining Attorney, we agree that the original specimen and the first substitute specimen are not acceptable. Serial No. 88732502 - 19 - are authentic, and are currently being used to package and distribute the Applicant’s portable batteries/battery packs and LED modules in International Classes 09 and 11.” Id. We find that Applicant’s second substitute specimen does not meet the requirements of Trademark Rule 2.56(c). The specimen is a drawing of the goods and packaging with an illustration of how the mark may be displayed on such packaging, not an actual specimen demonstrating Applicant’s use of the mark in commerce. And as previously discussed, Applicant’s “screen captures,” which show use of the SOLAR COW mark on packaging, are not a part of the record. Accordingly, we affirm the refusal to register Applicant’s Mark in classes 9 and 11 on the ground that Applicant did not submit a proper specimen. III. 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 (CCPA 1973); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). “In discharging this duty, the thirteen DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont, 177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances. Serial No. 88732502 - 20 - Any single factor may control a particular case.” Stratus Networks, Inc. v. UBTA- UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, at *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1533). There is no mechanical test for determining likelihood of confusion and “each case must be decided on its own facts.” DuPont, 177 USPQ at 567. However, in any likelihood of confusion analysis, two key considerations are the similarities of the marks and the relatedness of the goods. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“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.’”) (citation omitted). A. Relatedness of the Goods With respect to the second DuPont factor, the relatedness of the goods, we must make our determination based on the goods as they are identified in the application and the cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Dixie Rests., 41 USPQ2d at 1534. It is sufficient that the goods of the Applicant and Registrant are related in some manner, or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source. See Coach Servs., Inc. v. Triumph Learning, LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); On-line Careline Inc. v. Serial No. 88732502 - 21 - Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). The issue is not whether the goods will be confused with each other, but rather whether the public will be confused as to their source. See Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods. It is this sense of relatedness that matters in the likelihood of confusion analysis.”). To demonstrate that Applicant’s “solar-powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs,” and Registrant’s “rechargeable batteries” are of a kind that emanate from a single source under a single mark, the Examining Attorney submitted third-party registrations15 for goods that are similar or identical to Applicant’s goods and Registrant’s goods. Although these registrations are not evidence that the marks are actually in use or that the public is familiar with them, particularly in the absence of any evidence showing the extent of their use, “they nonetheless have probative value to the extent that they serve to suggest that the goods listed therein are of a kind which may emanate from a single source under a single mark.” In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009) (citing In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1983), and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988)). We list below the third-party registrations with the most relevant goods: 15 Examiner’s Statement, 8 TTABVUE 9-10; March 17, 2020 Office Action, TSDR 16-53; October 13, 2020 Office Action, TSDR 2-41. Serial No. 88732502 - 22 - Reg. No. Mark Relevant Goods 6003945 BINGEBANK Power supply device in the nature of a battery charger; Battery chargers; Batteries; Rechargeable batteries. (International Class 9) 5884533 GLEPOWEER Batteries for lighting; Battery chargers; Battery leads; Battery packs; Battery packs for cordless phone; Electrical storage batteries; Rechargeable batteries; Solar-powered battery chargers; Solar-powered rechargeable batteries; Solar batteries. (International Class 9) 5942450 BLUE HORIZON Solar-powered rechargeable batteries and solar-powered battery chargers. (International Class 9) 5920687 MOVIC Batteries and battery chargers; Battery chargers for mobile phones; Mobile phone cases featuring rechargeable batteries. (International Class 9) 5953719 PROELITE Batteries and battery chargers; Battery chargers for laptop computers; Chargers for batteries; Chargers for electric batteries; Mobile phone cases featuring rechargeable batteries; Battery chargers; Battery chargers for mobile phones; Battery chargers for tablet computers; Cell phone battery chargers. (International Class 9) 5966447 Batteries, electric; Battery charge devices; Battery chargers; Battery chargers for mobile phones; Rechargeable batteries; Solar batteries. (International Class 9) 5976705 ARMER Charging appliances for rechargeable equipment; Rechargeable batteries; Battery chargers.(International Class 9) 5982868 UMIRRO Battery chargers; Rechargeable batteries.(International Class 9) Serial No. 88732502 - 23 - Reg. No. Mark Relevant Goods 5973301 GALAXY WATCH ACTIVE Rechargeable batteries, battery chargers; Battery chargers for smartphones in the shape of a watch. (International Class 9) 5967591 DOWALA Battery chargers for mobile phones; Cell phone battery chargers; Cell phone battery chargers for use in vehicles; Mobile phone cases featuring rechargeable batteries. (International Class 9) 4822158 XSOLAR Chargers for batteries; batteries; solar-powered rechargeable batteries; solar charger. (International Class 9) 5719421 INSTASENSE Batteries; Battery packs; Rechargeable batteries; Battery chargers; Solar-powered battery chargers; Solar-powered rechargeable batteries; Solar rechargeable battery packs and battery chargers. (International Class 9) 5584759 FUSED-IRON TECHNOLOGY Batteries; Batteries and battery chargers; Batteries for lighting; Batteries, electric; Battery packs; Accumulators; Accumulators and batteries; Anode batteries; Electric batteries; Electric storage batteries; Electrical cells and batteries; Electrical storage batteries; Galvanic batteries; Rechargeable batteries; Rechargeable electric batteries; Solar batteries; Solar-powered rechargeable batteries; Wet cell batteries. (International Class 9) 6169239 FERRON Battery chargers for mobile phones; Battery chargers for use with mobile phones, tablets, laptops, drones, cameras, emergency lights; Chargers for smartphones; Mobile phone cases featuring rechargeable batteries; Rechargeable batteries; Rechargeable Serial No. 88732502 - 24 - Reg. No. Mark Relevant Goods electric batteries; Smartphone battery chargers. (International Class 9) 5904362 W SOLAR Batteries; Battery chargers; Battery packs; Solar batteries; Solar cells; Solar-powered battery chargers; Solar-powered rechargeable batteries. (International Class 9) 5898548 GLOWTECH Solar-powered battery chargers; solar-powered rechargeable batteries. (International Class 9) 5939534 zutBe Batteries; Batteries and battery chargers; Batteries for electronic cigarettes; Batteries for lighting; Batteries, electric; Battery cases; Battery charge devices; Battery chargers; Battery chargers for laptop computers; Battery chargers for mobile phones; Battery chargers for tablet computers; Battery chargers for use with telephones; Battery chargers for use with cellular phones; Battery packs; Battery packs for cellular phones; Cell phone battery chargers; Cell phone battery chargers for use in vehicles; Auxiliary battery packs; Car batteries; Chargers for batteries; Chargers for electric batteries; Dry cells and batteries; Electric batteries; Electric batteries for powering electric vehicles; Electric storage batteries; Electrical cells and batteries; Electrical storage batteries; Lithium ion batteries; Lithium iron phosphate batteries; Lithium phosphate batteries; Mobile telephone batteries; Nickel-cadmium storage batteries; Rechargeable batteries; Rechargeable electric batteries; Solar batteries; Solar-powered battery chargers; Solar- powered rechargeable batteries; Serial No. 88732502 - 25 - Reg. No. Mark Relevant Goods Terminals for batteries. (International Class 9) 5798550 TINY WATTS SOLAR Solar batteries; Solar-powered battery chargers; Solar-powered rechargeable batteries. (International Class 9) 5965082 Solar-powered battery chargers; Solar- powered rechargeable batteries. (International Class 9) 6020593 TAMUSYAKA Batteries; Batteries for lighting; Batteries for pocket lamps; Battery charge devices; Solar batteries; Solar- powered battery chargers; Solar- powered rechargeable batteries; Auxiliary battery packs; Chargers for batteries; Chargers for electric batteries; Electric batteries; Electrical storage batteries; Rechargeable batteries. (International Class 9) 6078750 WAKARA LABS Batteries; battery cases; solar- powered rechargeable batteries; batteries, electric, for vehicles; accumulators, electric; batteries for electronic cigarettes; wireless chargers; cell phone battery chargers for use in vehicles; chargers for electric batteries; battery chargers; charging stations for electric vehicles; chargers for electronic cigarettes. (International Class 9) 6085682 SUSCELL Accumulators and batteries; Lithium ion batteries; Lithium iron phosphate batteries; Solar-powered battery chargers; Solar-powered rechargeable batteries; Solar batteries. (International Class 9) Serial No. 88732502 - 26 - Reg. No. Mark Relevant Goods 6101842 MSNTETA Accumulators and batteries; Electric storage batteries; Lithium ion batteries; Solar-powered battery chargers; Solar-powered rechargeable batteries; Solar batteries. (International Class 9) 6113479 DURECOPOW Accumulators and batteries; Solar batteries; Lithium ion batteries; Lithium iron phosphate batteries; Solar-powered battery chargers; Solar-powered rechargeable batteries. (International Class 9) 6082213 EQPT Batteries; Batteries for use in hearing aids; Batteries, electric; Battery charge devices; Battery chargers; Battery chargers for laptop computers; Battery chargers for mobile phones; Battery chargers for tablet computers; Battery chargers for use with telephones; Battery packs; Auxiliary battery packs; Cell phone battery chargers; Chargers for batteries; Chargers for smartphones; Chargers for electric batteries; Dry cells and batteries; Electric batteries; Electric batteries for powering electric vehicles; Electric storage batteries; Electrical storage batteries; Electronic cigar batteries; Electronic cigarette batteries; Lithium ion batteries; Lithium iron phosphate batteries; Mobile telephone batteries; Rechargeable electric batteries; Renewable battery system to provide backup power; Solar batteries; Solar recharging battery pack for digital cameras; Solar-powered battery chargers; Solar-powered rechargeable batteries. (International Class 9) Serial No. 88732502 - 27 - The Examining Attorney also made of record pages from the following relevant third-party Internet websites featuring goods that are similar or identical to Applicant’s goods and Registrant’s goods:16  www.batterytender.com - A company that offers for retail sale a variety of rechargeable batteries, battery chargers, and associated products;  www.eco-worthy.com - A company that offers retail and wholesale goods such as batteries and rechargeable batteries, and battery banks;  www.x-dragon.net - A company that offers solar power banks, external batteries, and rechargeable batteries;  www.ravpower.com - A company that offers solar and non-solar power banks, battery chargers, batteries, and rechargeable batteries; and  www.northerntool.com - A company that offers solar and non-solar battery chargers, power banks, battery packs, and rechargeable batteries. Applicant asserts that Registrant’s goods are different and confusion is unlikely, because there is “no indication” that Registrant’s rechargeable batteries “are in any way connected with solar energy or are recharged by solar-powered battery chargers” like Applicant’s “portable batteries” and “battery packs.” 6 TTABVUE 22. First, we must consider the goods as they are identified, and we may not read limitations into them. Detroit Athletic, 128 USPQ2d at 1052. An applicant may not restrict the scope of the identified goods by extrinsic argument or evidence. In re FCA US LLC, 16 8 TTABVUE 9; Oct. 13, 2020 Final Office Action, TSDR 42-81. Serial No. 88732502 - 28 - 126 USPQ2d 1214, 1217 (TTAB 2018). If the cited registration describes goods broadly, and there is no limitation as to their nature, type, channels of trade, or class of purchasers, it is presumed that the registration encompasses all goods of the type described, that they move in all normal channels of trade, and that they are available to all classes of purchasers. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009). Registrant’s identification of “rechargeable batteries” is not limited and may encompass solar rechargeable batteries; similarly, because Applicant’s “charging stations for battery packs,” “portable batteries,” and “battery packs” are separated by semicolons in the identification of goods, they are not limited to solar charging stations for battery packs, solar portable batteries and solar battery packs. See In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166 (TTAB 2013) (finding that, because a semicolon separated the two relevant clauses in registrant’s identification, its “restaurant and bar services” is a discrete category of services that stands alone and independently as a basis for likelihood-of-confusion analysis, and is not connected to nor dependent on the services set out on the other side of the semicolon). Second, we note that the goods do not have to be identical or competitive in order to find that there is a likelihood of confusion. In re Iolo Techs., 95 USPQ2d 1498, 1499 (TTAB 2010). Here, however, the fundamental issue is not whether the goods will be confused with each other, but rather whether the public will be confused as to their source. See Recot, 54 USPQ2d at 1898. We find the 25 third-party registrations and Serial No. 88732502 - 29 - five third-party Internet websites of record to be highly probative, demonstrating that goods identical or similar to the ones at issue here are marketed to the same consumers, and are of a kind that emanate from a single source. So on balance, we find that Registrant’s “rechargeable batteries” are related to Applicant’s “solar- powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs.” This DuPont factor weighs in favor of likelihood of confusion. B. Established, Likely-to-Continue Channels of Trade The third DuPont factor is the similarity or dissimilarity of established, likely to continue channels of trade. There are no limitations as to trade channels or classes of purchasers in the Application or cited Registration, so it is presumed that the application and registration encompass all goods of the type described, that the goods move in all normal trade channels for those goods, and that the goods are available to all classes of purchasers. i.am.symbolic, 123 USPQ2d at 1750; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). We find the third-party Internet website evidence discussed above demonstrates that rechargeable batteries, solar-powered battery chargers, battery packs, and related goods travel in the same trade channels and are offered to the same classes of purchasers. Applicant argues that the channels of trade for the respective goods are “dissimilar and distinct” since “there is no evidence that [Registrant’s goods] are solar powered.” 6 TTABVUE 23. Applicant also argues, without any evidentiary support, that consumers seeking to purchase solar-powered goods would not purchase them Serial No. 88732502 - 30 - from Registrant, and consumers seeking to purchase non-solar powered or charged batteries, battery packs, or battery chargers would not seek to purchase those types of goods from Applicant. 6 TTABVUE 23. However, “[a]ttorney argument is no substitute for evidence.” Zheng 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)). Moreover, as noted above, Applicant’s goods, as identified, are not all limited to solar power; Registrant’s goods may encompass solar power rechargeable batteries; and we may not rely on extrinsic evidence of actual use. This DuPont factor weighs in favor of likelihood of confusion. C. The Similarity or Dissimilarity of the Marks Finally, we consider the DuPont factor relating to the similarity of the marks. In comparing the marks we must consider their appearance, sound, connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Similarity as to any one of these factors may be sufficient to support a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (“Similarity in any one of these elements may be sufficient to find the marks confusingly similar.”) (quoting In re Davia, Serial No. 88732502 - 31 - 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. Sept. 13, 2019). “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” i.am.symbolic, 123 USPQ2d at 1748 (quoting Coach Servs., 101 USPQ2d at 1721). The emphasis of our analysis must also focus on the recollection of the average purchaser - here, an ordinary consumer of battery packs, charging stations for battery packs, portable batteries, solar-powered battery chargers, and related products - who normally retains a general, rather than specific, impression of trademarks. We remain mindful that “marks must be considered in light of the fallibility of memory and not on the basis of side-by-side comparison.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014). Furthermore, when evaluating a composite mark consisting of words and a design, the literal elements are normally accorded greater weight because they are likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing Viterra, 101 USPQ2d at 1908). So even though we evaluate the similarities of Applicant’s Mark and the Registrant’s Mark by considering them in their entireties, we consider the literal, or verbal, elements of Serial No. 88732502 - 32 - the marks to be the dominant features, and accord greater weight to such portions. Viterra, 101 USPQ2d 1911. In addition, descriptive or disclaimed matter is often “less significant in creating the mark’s commercial impression,” In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001), and may be given little weight. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000). There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, such as a common dominant element, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Viterra, 101 USPQ2d 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Applicant’s Mark, SOLAR COW, is in standard characters. Marks presented in standard characters are not limited to any particular depiction. The rights associated with a mark in standard characters reside in the wording, and not in any particular display. Applicant seeks registration of a mark that might be depicted in any manner, regardless of the font style, size, or color. Accordingly, we must assume that Applicant could display its mark in a stylization similar to that of the Registered Mark. Aquitaine Wine, 126 USPQ2d at 1186 (“[T]he rights associated with a standard character mark reside in the wording per se and not in any particular font style, size, or color.”) (citing Citigroup Inc. v. Capital City Bank Grp. Inc., Serial No. 88732502 - 33 - 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011)); see also Squirtco, 216 USPQ at 939. Turning to the Registered Mark , as a whole, the mark features the word “COW” in stylized typeface inside a black disc, with the letter “C” in black, doubled in white on the outer left edge of the disc for half its circumference. Near the center of the disc sits the letter “O” in a slimmer and smaller black font, doubled in white with a Holstein dairy cow’s17 head in the bullseye of the “O.” Diagonal to the “O” in the lower left quadrant of the disc is the letter “W,” in the slightest and smallest black font, outlined in white. “COW” is positioned in such a way so as to draw the viewer’s eye first to the cow’s head near the center of the black disc, then to the letter “C,” and lastly, to the letter “W” in the lower right quadrant of the disc. We acknowledge that there are differences in sound and appearance between the marks due to the element “SOLAR” in Applicant’s Mark, which is disclaimed, as well as the black disc design element of the Registered Mark, which does not evoke 17 Holstein cows are “any of a breed of large usually black-and-white dairy cattle originally from northern Holland and Friesland that produce large quantities of comparatively low-fat milk.” MERRIAM- WEBSTER DICTIONARY (2022) (https://www.merriam- webster.com/dictiona ry/Holstein) (last accessed January 4, 2022). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format or have regular fixed editions. See In re tapio GmbH, 2020 USPQ2d 11387, at *3 n.10 (TTAB 2020); In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 88732502 - 34 - thoughts of solar-powered goods or anything involving the sun. However, we find that the marks are more similar than dissimilar, largely due to the literal elements of both marks. As previously discussed, greater weight is often given to the literal elements of marks because it is the wording that purchasers use to refer to or request the goods. See Viterra, 101 USPQ2d at 1911. Here, the marks share a significant visual and phonetic similarity because of the common and very arbitrary element, “COW,” which forms the dominant portion of each mark. The Holstein cow head design near the center of the Registered Mark reinforces the word “COW.” Overall, the shared literal element “COW” outweighs the design elements of Registrant’s Mark, thereby resulting in a similar commercial impression. And in Applicant’s Mark, we accord greater weight to the element “COW” than the element “SOLAR,” which is descriptive and disclaimed. As a result, we find it likely that prospective purchasers familiar with Registrant’s Mark for “rechargeable batteries” may believe, mistakenly, that Registrant is the source of Applicant’s “solar-powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs.” That is, upon seeing Applicant’s solar-powered products sold under the SOLAR COW mark, consumers familiar with Registrant’s rechargeable batteries sold under the COW Design mark would think that the products were related, or that Applicant’s goods were an extension of Registrant’s products. Applicant argues that the commercial impressions of the marks are readily distinguishable, primarily due to the distinctive visual elements of Registrant’s Serial No. 88732502 - 35 - Mark, and that the marks are different in sound and meaning due to the inclusion of the word “SOLAR” in its mark. Specifically, Applicant contends, the addition of “SOLAR” to its mark suggests that its goods are powered, charged, or recharged by solar energy, thereby creating a commercial impression that Applicant’s products are solar powered, whereas Registrant’s Mark, which lacks such a modifier, does not generate such an impression in the minds of consumers. 6 TTABVUE 21-22. To support its contention that the marks as a whole are dissimilar in appearance and commercial impression, Applicant cites several fact-specific Federal Circuit and Board cases. See 6 TTABVUE 14-16 (commercial impression) and 17-19 (appearance). But it is well established that each case must be assessed and decided on its own facts and record; the U.S. Patent and Trademark Office’s allowance of prior registrations is not binding on the Board, regardless of what past actions may have been taken by the Office. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“The Board must decide each case on its own merits.”). On balance, the similarities of the marks, resulting from the presence of the dominant element “COW” in both marks and the Holstein cow head design prominently featured in the Registered Mark, outweighs the dissimilarity resulting from the remaining design elements of Registrant’s Mark. Considering the marks in their entireties, they are sufficiently similar so that the first DuPont factor weighs in favor of a finding of likelihood of confusion. Serial No. 88732502 - 36 - D. Conclusion - Likelihood of Confusion Having considered all of the arguments and evidence relating to the relevant likelihood of confusion factors, we find that confusion is likely between Applicant’s Mark, SOLAR COW, when used on Applicant’s “solar-powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs” in International Class 9, and the Registered Mark, , for, inter alia, “rechargeable batteries” in International Class 9, given the similarities of the literal portions of the marks, the relatedness of the goods, and the overlap in classes of purchasers and trade channels. We acknowledge that the Registered Mark has design elements, but those elements are not enough to overcome a likelihood of confusion. Decision: The refusal to register Applicant’s Mark, SOLAR COW, under Sections 1 and 45, for all goods in International Classes 9 and 11, is affirmed. The refusal to register Applicant’s Mark, SOLAR COW, for Applicant’s “solar-powered battery chargers,” “charging stations for battery packs,” “portable batteries,” and “battery packs” in International Class 9 under Section 2(d), is affirmed.