| PTO Form 1957 (Rev 9/2005) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
| Input Field |
Entered |
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|---|---|---|---|---|---|---|---|---|---|
| SERIAL NUMBER | 86068891 | ||||||||
| LAW OFFICE ASSIGNED | LAW OFFICE 116 | ||||||||
| MARK SECTION | |||||||||
| MARK | http://uspto.report/TM/86068891/mark.png | ||||||||
| LITERAL ELEMENT | QUICKCONNECT | ||||||||
| STANDARD CHARACTERS | YES | ||||||||
| USPTO-GENERATED IMAGE | YES | ||||||||
| MARK STATEMENT | The mark consists of standard characters, without claim to any particular font style, size or color. | ||||||||
| ARGUMENT(S) | |||||||||
|
The following responds to the Office Action dated November 22, 2013: Likelihood of Confusion The Examining Attorney has refused registration of the subject mark under Section 2(d) of the Trademark Act based on:
Applicant submits that there is no likelihood of confusion between the registered mark, as issued, and Applicant’s mark as amended. Confusing similarity between goods/services cannot be presumed merely because certain services associated with the marks fall into the same broad category – in this case, electronic payment. See TMEP 1207.01(a)(iv)(noting that there can be no rule that certain goods or services are per se related, such that there must be a likelihood of confusion from the use of similar marks in relation thereto). See also, e.g., Information Resources Inc. v. X*Press Information Services, 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer hardware and software); Hi-Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171 (TTAB 1987) (regarding food products); In re Quadram Corp., 228 USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd., 224 USPQ 854, 855-56 (TTAB 1984) and cases cited therein (regarding clothing); Mr. Hero Sandwich Systems, Inc. v. Roman Meal Company, 228 USPQ 364 (Fed. Cir. 1986) (use of ROMANBURGER in connection with sandwiches held unlikely to be confused with ROMAN MEAL for bread and baker’s flour); John L. Armitage & Co. v. National Industries, Inc., 166 USPQ 504 (TTAB 1970) (ARMORCLAD for use in connection with finishing paints for, among other items, furniture held unlikely to be confused with ARMORCLAD & Helmet Design for cabinets, panels, tables, chairs, desks, and other pieces of furniture); and Season-All Sales Corporation v. Benjamin Moore & Co., 134 USPQ 587 (TTAB 1962) (TEMP-GARD for use in connection with mixed aluminum paints unlikely to be confused by purchasers with TEMP-GARD for use in connection with aluminum storm windows and doors). Applicant’s goods/services, as amended, are: Cl. 9 - Web services software for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services Cl. 36 - Payment processing services, namely, credit card, debit card, and prepaid card transaction and electronic payment processing services; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via computer networks; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via mobile application and software; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via telephone line; electronic funds transfer; web service solutions, namely, providing secure electronic processing of credit card and debit card transactions and electronic payments via a global computer network Cl. 42 - Web services, namely, secure interface with a server for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services; technical support services, namely, troubleshooting credit card, debit card, and prepaid card readers, troubleshooting mobile application and software for accepting credit card, debit card, and prepaid card transactions The services, as issued in connection with US Reg. No. 4,339,245 for the Mark QUICKCONNECT, are: Cl. 36 - Electronic commerce payment services, namely, establishing and administering online spending profiles that are linked to funded accounts or credit, debit or other payment cards that control, facilitate and administer approved payments used to purchase goods and services on the Internet; providing real-time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users, on-line payment processing and management of credit, debit or other payment card transactions; debit card services Cl. 42 - Computer services, namely, providing a web based system and online portal featuring online non-downloadable software that enables customers to control, facilitate and administer approved payments by designated account users to purchase goods and services on the Internet and provides real time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users As amended, Applicant’s self-service point of sale machine, equipment and mobile device connecting and payment processing goods/services are clearly unrelated to the cited Internet commerce account services. Applicant’s goods/services relate to connecting self-service point of sale machines, equipment and mobile devices to payment processing services, processing payments, and providing related customer and troubleshooting services, all over the Internet. Applicant’s goods/services use the Internet to process payments and are not for making purchases on the Internet. Conversely, the registrant’s services relate to purchasing goods and services on the Internet. More specifically, as can be seen from the specimens submitted in support of the cited registration (copies attached), the cited services are for Internet commerce accounts for children (something akin to PayPal for kids) where parents are able to set parameters for and monitor purchases made by children using the account. Consumers would therefore not expect the Applicant’s software for connecting self-service point of sale machines, equipment and mobile devices to payment processing and related payment processing services to emanate from the same source or otherwise be confused with registrant’s services for allowing children to make parent controlled purchases on the Internet. In addition to the differences between the services, Applicant submits that additional du Pont factors supports a finding that there is no likelihood of confusion in this instance. See In re E.I. du Pont at 1361 ((1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression. (2) The similarity or dissimilarity and nature of the goods ... described in an application or registration or in connection with which a prior mark is in use. (3) The similarity or dissimilarity of established, likely-to-continue trade channels. (4) The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing. (5) The fame of the prior mark ... . (6) The number and nature of similar marks in use on similar goods. (7) The nature and extent of any actual confusion. (8) The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion. (9) The variety of goods on which a mark is or is not used ... . (10) The market interface between the applicant and the owner of a prior mark. ... (11) The extent to which applicant has a right to exclude others from use of its mark on its goods. (12) The extent of potential confusion. ... (13) Any other established fact probative of the effect of use.). Applicant’s software for connecting self-service point of sale machines, equipment and mobile devices to payment processing, and payment processing services travel in different channels of trade than the registrant’s services. Applicant’s customers are operators of self-service point of sale machines and in person service providers using Applicant’s services to receive payment for transactions made in the real world. Registrant’s customers are individuals making purchases on the Internet. Given the different likely-to-continue channels of trade of the Applicant’s services and the cited services, Applicant submits that the respective goods/services would not be encountered by the same purchasers under circumstances that would result in a likelihood of confusion as to the separate sources of the goods/services. See Hi-Country Foods Corporation v. Hi Country Beef Jerky, 4 USPQ2d 1169 (TTAB 1987); Shen Manufacturing Co., 73 USPQ2d 1350 (Fed. Cir. 2004) (cooking classes and kitchen textiles not related); Local Trademarks, Inc. v. Handy Boys Inc., 16 USPQ2d 1156 (TTAB 1990) (LITTLE PLUMBER for liquid drain opener held not confusingly similar to LITTLE PLUMBER and design for advertising services, namely the formulation and preparation of advertising copy and literature in the plumbing field); Quartz Radiation Corp. v. Comm/Scope Co., 1 USPQ2d 1668 (TTAB 1986) [QR for coaxial cable held not confusingly similar to QR for various products (e.g., lamps, tubes) related to the photocopying field]. Given the importance of commercial payment, generally, and the risks associated with payment authorization and processing, the respective goods/services are likely to be purchased after careful consideration, further minimizing the likelihood of confusion between Applicant’s mark and the cited mark. Operators of self-service point of sale machines and in person service providers are going to exercise care in selecting and purchasing Applicant’s goods/services, because they will be relying on those goods/services for their livelihood. Internet shoppers using registrant’s spending accounts will exercise care in selecting and purchasing registrant’s services because they will be providing personal information and financial data (bank account information, credit card information, etc.) as part of the service. Circumstances suggesting careful purchasing can minimize likelihood of confusion between Applicant’s mark and the cited mark. See TMEP 1207.01(d)(vii). The careful purchasers of Applicant’s goods/services for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, and payment processing services are not likely to expect the cited registrant’s online retail services to emanate from the same source, nor are the careful purchasers of the cited registrant’s spending account services likely to encounter Applicant’s services in the typical channels of trade, let alone be confused by them. In conclusion, in order to maintain a rejection under Section 2(d) it is not sufficient if confusion is merely “possible.” A higher standard is required. See Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, n.2, 220 USPQ 412 (11th Cir. 1983) (likelihood is synonymous with probability); Rodeo Collection, Ltd. V. West Seventh, 812 F.2d 1215, 2 USPQ2d 1204, 1206 (9th Cir. 1987) (“Likelihood of confusion requires that confusion be probable, not simply a possibility.”); Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 9 USPQ2d 1870, 1875 (5th Cir. 1989) (“[Plaintiff] must show, however, that confusion is probable; a mere possibility that some customers might mistakenly identify the [defendant’s product] as [plaintiff’s] product is not sufficient.”). This burden has not been met in this case. Specimen Applicant respectfully resubmits the attached specimen featuring 24/7 customer service and sales reports. Given the foregoing response, it is respectfully requested that Applicant’s mark be approved for publication in the Official Gazette for opposition purposes. |
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| EVIDENCE SECTION | |||||||||
| EVIDENCE FILE NAME(S) | |||||||||
| ORIGINAL PDF FILE | evi_74117225201-150036033_._Virtual_Pig_QuickConnect.pdf | ||||||||
| CONVERTED PDF FILE(S) (3 pages) |
\\TICRS\EXPORT16\IMAGEOUT16\860\688\86068891\xml5\ROA0002.JPG | ||||||||
| \\TICRS\EXPORT16\IMAGEOUT16\860\688\86068891\xml5\ROA0003.JPG | |||||||||
| \\TICRS\EXPORT16\IMAGEOUT16\860\688\86068891\xml5\ROA0004.JPG | |||||||||
| ORIGINAL PDF FILE | evi_74117225201-150036033_._QUICKCONNECT_-_Cl._35.pdf | ||||||||
| CONVERTED PDF FILE(S) (1 page) |
\\TICRS\EXPORT16\IMAGEOUT16\860\688\86068891\xml5\ROA0005.JPG | ||||||||
| DESCRIPTION OF EVIDENCE FILE | evidence supporting response | ||||||||
| GOODS AND/OR SERVICES SECTION (009)(no change) | |||||||||
| GOODS AND/OR SERVICES SECTION (035)(no change) | |||||||||
| GOODS AND/OR SERVICES SECTION (036)(current) | |||||||||
| INTERNATIONAL CLASS | 036 | ||||||||
| DESCRIPTION | |||||||||
| Payment processing services, namely, credit card, debit card, and prepaid card transaction and electronic payment processing services; Providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via computer networks; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via mobile application and software; providing credit card, debit card, and prepaid card transactions and electronic payments via telephone line; electronic funds transfer; web service solutions, namely, providing secure electronic processing of credit card and debit card transactions and electronic payments via a global computer network | |||||||||
| FILING BASIS | Section 1(a) | ||||||||
| FIRST USE ANYWHERE DATE | At least as early as 08/28/2012 | ||||||||
| FIRST USE IN COMMERCE DATE | At least as early as 08/28/2012 | ||||||||
| GOODS AND/OR SERVICES SECTION (036)(proposed) | |||||||||
| INTERNATIONAL CLASS | 036 | ||||||||
| TRACKED TEXT DESCRIPTION | |||||||||
| Payment processing services, namely, credit card, debit card, and prepaid card transaction and electronic payment
processing services; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via computer networks;
providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via mobile application and software; |
|||||||||
| FINAL DESCRIPTION | |||||||||
| Payment processing services, namely, credit card, debit card, and prepaid card transaction and electronic payment processing services; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via computer networks; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via mobile application and software; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via telephone line; electronic funds transfer; web service solutions, namely, providing secure electronic processing of credit card and debit card transactions and electronic payments via a global computer network | |||||||||
| FILING BASIS | Section 1(a) | ||||||||
| FIRST USE ANYWHERE DATE | At least as early as 08/28/2012 | ||||||||
| FIRST USE IN COMMERCE DATE | At least as early as 08/28/2012 | ||||||||
| GOODS AND/OR SERVICES SECTION (042)(current) | |||||||||
| INTERNATIONAL CLASS | 042 | ||||||||
| DESCRIPTION | |||||||||
| Web services for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services; technical support services, namely, troubleshooting credit card, debit card, and prepaid card readers, troubleshooting mobile application and software for accepting credit card, debit card, and prepaid card transactions | |||||||||
| FILING BASIS | Section 1(a) | ||||||||
| FIRST USE ANYWHERE DATE | At least as early as 08/28/2012 | ||||||||
| FIRST USE IN COMMERCE DATE | At least as early as 08/28/2012 | ||||||||
| GOODS AND/OR SERVICES SECTION (042)(proposed) | |||||||||
| INTERNATIONAL CLASS | 042 | ||||||||
| TRACKED TEXT DESCRIPTION | |||||||||
| FINAL DESCRIPTION | |||||||||
| Web services, namely, secure interface with a server for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services; technical support services, namely, troubleshooting credit card, debit card, and prepaid card readers, troubleshooting mobile application and software for accepting credit card, debit card, and prepaid card transactions | |||||||||
| FILING BASIS | Section 1(a) | ||||||||
| FIRST USE ANYWHERE DATE | At least as early as 08/28/2012 | ||||||||
| FIRST USE IN COMMERCE DATE | At least as early as 08/28/2012 | ||||||||
| SIGNATURE SECTION | |||||||||
| RESPONSE SIGNATURE | /jwm/ | ||||||||
| SIGNATORY'S NAME | John W. McGlynn | ||||||||
| SIGNATORY'S POSITION | Attorney for Applicant, DE bar member | ||||||||
| DATE SIGNED | 05/22/2014 | ||||||||
| AUTHORIZED SIGNATORY | YES | ||||||||
| FILING INFORMATION SECTION | |||||||||
| SUBMIT DATE | Thu May 22 08:30:53 EDT 2014 | ||||||||
| TEAS STAMP | USPTO/ROA-XX.XXX.XXX.XXX- 20140522083053507567-8606 8891-500e50868e57701b3cd3 69b839aea2947673b3dfd0736 bc48af7bfe7e27c5e5-N/A-N/ A-20140522081354637200 |
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| PTO Form 1957 (Rev 9/2005) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
The following responds to the Office Action dated November 22, 2013:
Likelihood of Confusion
The Examining Attorney has refused registration of the subject mark under Section 2(d) of the Trademark Act based on:
|
Reg. No. |
Mark |
Goods/Services |
Owner |
|
4,339,245 |
QUICKCONNECT |
Cl. 36 - Electronic commerce payment services, namely, establishing and administering online spending profiles that are linked to funded accounts or credit, debit or other payment cards that control, facilitate and administer approved payments used to purchase goods and services on the Internet; providing real-time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users, on-line payment processing and management of credit, debit or other payment card transactions; debit card services Cl. 42 - Computer services, namely, providing a web based system and online portal featuring online non-downloadable software that enables customers to control, facilitate and administer approved payments by designated account users to purchase goods and services on the Internet and provides real time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users |
VIRTUAL PIGGY, INC. |
Applicant submits that there is no likelihood of confusion between the registered mark, as issued, and Applicant’s mark as amended.
Confusing similarity between goods/services cannot be presumed merely because certain services associated with the marks fall into the same broad category – in this case, electronic payment. See TMEP 1207.01(a)(iv)(noting that there can be no rule that certain goods or services are per se related, such that there must be a likelihood of confusion from the use of similar marks in relation thereto). See also, e.g., Information Resources Inc. v. X*Press Information Services, 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer hardware and software); Hi-Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171 (TTAB 1987) (regarding food products); In re Quadram Corp., 228 USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd., 224 USPQ 854, 855-56 (TTAB 1984) and cases cited therein (regarding clothing); Mr. Hero Sandwich Systems, Inc. v. Roman Meal Company, 228 USPQ 364 (Fed. Cir. 1986) (use of ROMANBURGER in connection with sandwiches held unlikely to be confused with ROMAN MEAL for bread and baker’s flour); John L. Armitage & Co. v. National Industries, Inc., 166 USPQ 504 (TTAB 1970) (ARMORCLAD for use in connection with finishing paints for, among other items, furniture held unlikely to be confused with ARMORCLAD & Helmet Design for cabinets, panels, tables, chairs, desks, and other pieces of furniture); and Season-All Sales Corporation v. Benjamin Moore & Co., 134 USPQ 587 (TTAB 1962) (TEMP-GARD for use in connection with mixed aluminum paints unlikely to be confused by purchasers with TEMP-GARD for use in connection with aluminum storm windows and doors).
Applicant’s goods/services, as amended, are:
Cl. 9 - Web services software for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services
Cl. 36 - Payment processing services, namely, credit card, debit card, and prepaid card transaction and electronic payment processing services; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via computer networks; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via mobile application and software; providing electronic processing of credit card, debit card, and prepaid card transactions and electronic payments via telephone line; electronic funds transfer; web service solutions, namely, providing secure electronic processing of credit card and debit card transactions and electronic payments via a global computer network
Cl. 42 - Web services, namely, secure interface with a server for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, customer services and troubleshooting services; technical support services, namely, troubleshooting credit card, debit card, and prepaid card readers, troubleshooting mobile application and software for accepting credit card, debit card, and prepaid card transactions
The services, as issued in connection with US Reg. No. 4,339,245 for the Mark QUICKCONNECT, are:
Cl. 36 - Electronic commerce payment services, namely, establishing and administering online spending profiles that are linked to funded accounts or credit, debit or other payment cards that control, facilitate and administer approved payments used to purchase goods and services on the Internet; providing real-time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users, on-line payment processing and management of credit, debit or other payment card transactions; debit card services
Cl. 42 - Computer services, namely, providing a web based system and online portal featuring online non-downloadable software that enables customers to control, facilitate and administer approved payments by designated account users to purchase goods and services on the Internet and provides real time on-line transaction payment approval by funding account holders or cardholders upon request from merchant sites or designated account users
As amended, Applicant’s self-service point of sale machine, equipment and mobile device connecting and payment processing goods/services are clearly unrelated to the cited Internet commerce account services. Applicant’s goods/services relate to connecting self-service point of sale machines, equipment and mobile devices to payment processing services, processing payments, and providing related customer and troubleshooting services, all over the Internet. Applicant’s goods/services use the Internet to process payments and are not for making purchases on the Internet. Conversely, the registrant’s services relate to purchasing goods and services on the Internet. More specifically, as can be seen from the specimens submitted in support of the cited registration (copies attached), the cited services are for Internet commerce accounts for children (something akin to PayPal for kids) where parents are able to set parameters for and monitor purchases made by children using the account. Consumers would therefore not expect the Applicant’s software for connecting self-service point of sale machines, equipment and mobile devices to payment processing and related payment processing services to emanate from the same source or otherwise be confused with registrant’s services for allowing children to make parent controlled purchases on the Internet.
In addition to the differences between the services, Applicant submits that additional du Pont factors supports a finding that there is no likelihood of confusion in this instance. See In re E.I. du Pont at 1361 ((1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression. (2) The similarity or dissimilarity and nature of the goods ... described in an application or registration or in connection with which a prior mark is in use. (3) The similarity or dissimilarity of established, likely-to-continue trade channels. (4) The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing. (5) The fame of the prior mark ... . (6) The number and nature of similar marks in use on similar goods. (7) The nature and extent of any actual confusion. (8) The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion. (9) The variety of goods on which a mark is or is not used ... . (10) The market interface between the applicant and the owner of a prior mark. ... (11) The extent to which applicant has a right to exclude others from use of its mark on its goods. (12) The extent of potential confusion. ... (13) Any other established fact probative of the effect of use.).
Applicant’s software for connecting self-service point of sale machines, equipment and mobile devices to payment processing, and payment processing services travel in different channels of trade than the registrant’s services. Applicant’s customers are operators of self-service point of sale machines and in person service providers using Applicant’s services to receive payment for transactions made in the real world. Registrant’s customers are individuals making purchases on the Internet. Given the different likely-to-continue channels of trade of the Applicant’s services and the cited services, Applicant submits that the respective goods/services would not be encountered by the same purchasers under circumstances that would result in a likelihood of confusion as to the separate sources of the goods/services. See Hi-Country Foods Corporation v. Hi Country Beef Jerky, 4 USPQ2d 1169 (TTAB 1987); Shen Manufacturing Co., 73 USPQ2d 1350 (Fed. Cir. 2004) (cooking classes and kitchen textiles not related); Local Trademarks, Inc. v. Handy Boys Inc., 16 USPQ2d 1156 (TTAB 1990) (LITTLE PLUMBER for liquid drain opener held not confusingly similar to LITTLE PLUMBER and design for advertising services, namely the formulation and preparation of advertising copy and literature in the plumbing field); Quartz Radiation Corp. v. Comm/Scope Co., 1 USPQ2d 1668 (TTAB 1986) [QR for coaxial cable held not confusingly similar to QR for various products (e.g., lamps, tubes) related to the photocopying field].
Given the importance of commercial payment, generally, and the risks associated with payment authorization and processing, the respective goods/services are likely to be purchased after careful consideration, further minimizing the likelihood of confusion between Applicant’s mark and the cited mark. Operators of self-service point of sale machines and in person service providers are going to exercise care in selecting and purchasing Applicant’s goods/services, because they will be relying on those goods/services for their livelihood. Internet shoppers using registrant’s spending accounts will exercise care in selecting and purchasing registrant’s services because they will be providing personal information and financial data (bank account information, credit card information, etc.) as part of the service. Circumstances suggesting careful purchasing can minimize likelihood of confusion between Applicant’s mark and the cited mark. See TMEP 1207.01(d)(vii).
The careful purchasers of Applicant’s goods/services for connecting self-service point of sale machines, equipment and mobile devices to payment processing services, and payment processing services are not likely to expect the cited registrant’s online retail services to emanate from the same source, nor are the careful purchasers of the cited registrant’s spending account services likely to encounter Applicant’s services in the typical channels of trade, let alone be confused by them.
In conclusion, in order to maintain a rejection under Section 2(d) it is not sufficient if confusion is merely “possible.” A higher standard is required. See Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, n.2, 220 USPQ 412 (11th Cir. 1983) (likelihood is synonymous with probability); Rodeo Collection, Ltd. V. West Seventh, 812 F.2d 1215, 2 USPQ2d 1204, 1206 (9th Cir. 1987) (“Likelihood of confusion requires that confusion be probable, not simply a possibility.”); Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 9 USPQ2d 1870, 1875 (5th Cir. 1989) (“[Plaintiff] must show, however, that confusion is probable; a mere possibility that some customers might mistakenly identify the [defendant’s product] as [plaintiff’s] product is not sufficient.”). This burden has not been met in this case.
Specimen
Applicant respectfully resubmits the attached specimen featuring 24/7 customer service and sales reports.
Given the foregoing response, it is respectfully requested that Applicant’s mark be approved for publication in the Official Gazette for opposition purposes.
