| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 07/31/2017) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 87413981 |
| LAW OFFICE ASSIGNED | LAW OFFICE 115 |
| MARK SECTION | |
| MARK | http://uspto.report/TM/87413981/mark.png |
| LITERAL ELEMENT | ACCEL |
| 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) | |
|
RESPONSE TO OFFICE ACTION
Applicant Milestone AV Technologies, LLC (the “Applicant”) has received and reviewed the Office Action dated on May 10, 2017, regarding U.S. Trademark Application Serial No. 87/413,981 (the “Application”). Applicant submits the following response regarding the referenced application.
I. APPLICANT’S MARK IS NOT CONFUSINGLY SIMILAR TO THE CITED MARK
The Examining Attorney has refused registration of Applicant’s mark “ACCEL” (“Applicant’s Mark”) in Class 20 for, “desks” on the ground that Applicant’s Mark purportedly is confusingly similar to U.S. Registration No. 4,766,300 for a stylized design of a boy with pink skin tone and orange hair wearing a short sleeve white t-shirt with red trim on the sleeves, under a red jersey with a white "A" having a white star in the middle of the "A"; the boy is wearing dark blue jeans with light blue cuffs, red and white tennis shoes, black aviator goggles with gray lenses on his head, and a blue and black watch on the right arm; the boy’s eyes are brown with black and white, and with black eyebrows; the boy is holding a blue and white skateboard with black and yellow wheels in his left hand; the word "ACCEL" in orange stylized letters appears to the right of the boy. The mark is registered for use in connection with “Picture frames; umbrella stands; mirrors; chests for toys; beds; tables; dressing tables; 3D decorative plastic ornaments for attachment to walls; decorative mobiles; mattresses; Korean bangsuk cushions; pillows; bassinets; cushions and hand-held flat fans” (the “Cited Mark”). In In re E.I. Du Pont de Nemours & Co., the Court of Customs and Patent Appeals listed thirteen factors to be considered in determining if likelihood of confusion exists under section 2(d). 476 F.2d 1357, 177 U.S.P.Q. 563 (C.C.P.A. 1973). Each of these factors should be considered when there is evidence in the record to support such consideration, including the following factors pertinent to this Response: 1. the number and nature of similar marks in use on similar goods; 2. the similarity or dissimilarity and nature of the goods or services in question; 3. the similarity and 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 similarity or dissimilarity of the marks in their entireties as to appearance, sound, and connotation; and 6. any other established fact probative of the effect of use.
476 F.2d at 1361, 177 U.S.P.Q. at 567 (emphasis added) (RALLY for polishing and cleaning agent not likely to be confused with RALLY for all-purpose detergent). The question of likelihood of confusion turns “not [on] the nature of the mark, but [on] its effect when applied to the goods of the applicant.” Id. “The words ‘when applied’ do not refer to a mental exercise, but to all of the known circumstances surrounding use of the mark” in the marketplace. Id. In this case, upon consideration of the relevant factors, it is apparent that no likelihood of confusion exists because: (1) the goods offered under Applicant’s Mark and the Cited Mark are sufficiently different to preclude confusion; (2) Applicant intends to sell its goods using different trade channels than owner of the Cited Mark and to entirely different groups of consumers, who are sophisticated and are unlikely to be confused as to the source of each party’s respective goods; and (3) Applicant’s Mark is different from the Cited Mark in sight, meaning, and connotation. Each of these factors are discussed in greater detail below.
A. The Goods Covered by Applicant’s Mark Are Significantly Different from the Goods Covered by the Cited Registration Applicant’s amended description of goods makes it abundantly clear that its mark and the one cited by the Examining Attorney are readily distinguishable. The similarity and dissimilarity of the goods and services used in conjunction with trademarks must be considered when evaluating likelihood of confusion between those marks. Id. The Examining Attorney states that, “the goods are closely related in that both parties offer furniture.” Applicant’s description of goods, however, makes clear that Applicant’s goods are, “desks, namely adjustable-height desks that enable workers to switch between a standing position and sitting position while working.” This is very different than the children’s items, namely, chests for toys, decorative mobiles and bassinets that are specifically listed in the cited registration. Moreover, Applicant’s adjustable desks are generally not suitable for a children’s bedroom. Similarly, the children’s bedroom furniture of the cited registration would never be used in a workplace environment. In addition, Applicant’s Mark does not cover any products closely related to the goods covered by the Cited Mark. Thus, a consumer searching for the children’s bedroom furniture offered under the Cited Mark is unlikely to come across Applicant’s adjustable height desks, much less confuse Applicant’s Mark or goods for the Cited Mark or the cited registrant’s goods. In sum, it is apparent that the parties’ respective goods are so different that confusion is unlikely. See Buitoni Foods Corp. v. Gio. Buton & C.S.p.A., 680 F.2d 290, 292 (2d Cir. 1982) (no likelihood of confusion between BUTON and BUITONI, both for alcoholic drinks); see also Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 968 (2d Cir. 1981) (no likelihood of confusion between BRAVOS for crackers and BRAVOS for chips on ground that “the products differ in non-trivial respects and share only some areas of competing use, and the trier has found no significant risk of injury to the senior user”).
B. Applicant’s Goods and Those Offered Under the Cited Marks Will Travel in Different Trade Channels and Be Marketed Toward Different Consumer Bases Who Are Sophisticated Purchasers Not only are the goods offered under the respective marks distinguishable, but the contexts in which those goods are used are substantially different. Courts repeatedly have found that when goods or services of one party “are sold to one class of buyers in a different marketing context than the goods of another seller,” the likelihood of confusion is lessened. 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 24:51, at 24-69 (4th ed. 2010). Here, the goods Applicant intends to offer under its ACCEL mark and those associated with the cited A ACCELL & Design mark are readily distinguishable, and their channels of trade and consumer bases are equally so. Even in situations where the marks at issue are identical and the goods are in the same general category, sales to different groups of purchasers through different channels of trade “are sufficient to raise a doubt as to likelihood of confusion, mistake, or deception.” In re Radiant Color Co., 156 U.S.P.Q. 703, 704 (T.T.A.B. 1968) (RADIANT for coated paper not confusingly similar to RADIANT for loose paper); accord Paul Sachs Originals v. Sachs, 325 F.2d 212 (9th Cir. 1963) (use of marks with identical SACHS name on different sized dresses sold in different stores not likely to cause confusion); In re Shipp, 4 U.S.P.Q.2d 1174 (T.T.A.B. 1987) (confusion not likely between PURITAN for laundry and dry cleaning services and PURITAN for dry cleaning equipment). This is true even where the parties’ applications or registrations do not contain any limitation in their description of goods as to the trade channels. It is true that without any limitation in the applications or registrations’ descriptions, the United States Patent and Trademark Office (the “PTO”) must presume that the goods travel in “normal” trade channels. However, what constitutes a normal trade channel for one type of goods can be entirely different from the normal trade channel for another type. See Embarcadero Techs. Inc. v. RStudio Inc., 105 U.S.P.Q.2d 1825, 1839 (T.T.A.B. 2013) (“[B]ecause opposer’s goods are not the same as applicant’s goods and services, as identified in its amended descriptions, we cannot presume these trade channels and classes of purchasers to necessarily be the same.”). That is the case here. As evidenced by Applicant’s description of goods, the ACCEL mark will only be used by consumers who desire adjustable height workstations in a workplace environment. Business professionals are generally sophisticated and knowledgeable about the goods they are buying. The owner of the Cited Mark, by contrast, markets its goods to purchasers of children’s bedroom furniture, which is a very different classes of consumers. Thus, what constitutes a “normal” trade channel for each of these industries is different. Similarly, the types of consumer seeking out the goods offered under the Cited Mark are unlikely to seek out or encounter the goods Applicant intends to offer under its ACCEL mark in the marketplace. These factors weigh against a finding of likelihood of confusion.
C. The Cited Mark is Sufficiently Distinct From Applicant’s Mark to Avoid Confusion
The Examining Attorney states that consumers are likely to confuse Applicant’s Mark and the Cited Mark due to the fact that, “the dominant portion of the registered mark is identical to applicant’s proposed mark.” This statement is not accurate. First and foremost, the Cited Registration is a design of a boy. The word “ACCEL” is very small when compared to the overall design, resulting in a completely different sound and commercial impression. In addition, the Cited Mark is visually distinguishable in that it is primarily comprised of a design element. The Office Action appears to contend that the design of Cited Mark is minimal. However, “[t]hat marks must be considered in their entireties in determining whether there is a likelihood of confusion or mistake is a basic rule in comparison of marks.” Massey Junior College, Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 1402 (C.C.P.A. 1974). Consequently, not only must a design portion be given the proper weight in the likelihood-of-confusion analysis, but the design portion of a mark is often considered determinative. See, e.g., Mr. Hero Sandwich Sys., Inc. v. Roman Meal Co., 781 F.2d 884, 888 (Fed. Cir. 1986) (reversing Board and holding ROMAN & Design for bread goods including hamburger buns not likely to be confused with ROMANBURGER, without design); Hewlett-Packard Co. v. Human Performance Measurement, Inc., 23 U.S.P.Q.2d 1390, 1396 (T.T.A.B. 1991) (HPM & Design for medical instruments not likely to be confused with HP for medical equipment sold through same channels of trade); Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 U.S.P.Q.2d 1477, 1478-79 (T.T.A.B. 1987) (finding STEVE’S & Design for hot dog restaurant not confusingly similar to STEVE’S, without design, for ice cream). That one mark is a “mere word[]” while another is a combination of words and design may therefore distinguish two otherwise similar marks. Omaha Nat’l Bank v. Citibank (S.D.), N.A., 633 F. Supp. 231, 234 (D. Neb. 1986) (finding BANK-IN-A-BILLFOLD & Design not likely to be confused with BANK-IN-A-WALLET for identical services). These principals apply with equal force here. Thus, the design portion of the Cited Mark serves to distinguish it from Applicant’s Mark. As such, this du Pont factor also weighs against a finding of likelihood of confusion.
D. A Review Of The Relevant Factors Confirms That There Is No Likelihood Of Confusion Between Applicant’s Mark and the Cited Mark
When determining whether an applicant’s mark creates a likelihood of confusion with a mark covered by a cited registration or application, “a likelihood of confusion means a probability of confusion; it is not sufficient if confusion is merely ‘possible.’” Nora Beverages v. Perrier Grp. Of Am., 269 F.3d 114, 121 (2d Cir. 2001) (citations omitted) (emphasis added); see also A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3d Cir. 1999) (finding a “mere possibility” of confusion not sufficient to find a likelihood of confusion); Omaha Nat’l Bank, 633 F. Supp. at 234, 229 U.S.P.Q. at 52 (“A showing of mere possibility of confusion is not enough; a substantial likelihood that the public will be confused must be shown.”). Applicant submits that the factors set forth in Du Pont for which there is record evidence supporting registration of Applicant’s Mark and do not raise a substantial likelihood or a probability of confusion. Under these circumstances, and absent “substantial doubt,” the Examining Attorney should approve Applicant’s Mark for publication. In re Mars, 741 F.2d 395, 396 (Fed. Cir. 1984) (finding CANYON for candy bar not likely to be confused with CANYON for fruit). II. SUMMARY Having addressed all of the issues raised by the Examining Attorney, Applicant respectfully requests that the objections raised in the Office Action be withdrawn and that Applicant’s Mark be approved for publication in due course. |
|
| GOODS AND/OR SERVICES SECTION (current) | |
| INTERNATIONAL CLASS | 020 |
| DESCRIPTION | Desks |
| FILING BASIS | Section 1(b) |
| GOODS AND/OR SERVICES SECTION (proposed) | |
| INTERNATIONAL CLASS | 020 |
| TRACKED TEXT DESCRIPTION | |
| FINAL DESCRIPTION | |
| Desks, namely adjustable-height desks that enable workers to switch between a standing position and sitting position while working | |
| FILING BASIS | Section 1(b) |
| SIGNATURE SECTION | |
| RESPONSE SIGNATURE | /Kyle T. Peterson/ |
| SIGNATORY'S NAME | Kyle T. Peterson |
| SIGNATORY'S POSITION | Attorney of Record, Minnesota Bar Member |
| SIGNATORY'S PHONE NUMBER | (612) 252-1554 |
| DATE SIGNED | 05/11/2017 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Thu May 11 18:53:35 EDT 2017 |
| TEAS STAMP | USPTO/ROA-XX.XXX.XXX.XX-2 0170511185335179502-87413 981-590a181e47fc2bdc53722 9a8d8633d6174a30885f1d587 a8668615e511b31d6b8b1-N/A -N/A-20170511185029022154 |
| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 07/31/2017) |
RESPONSE TO OFFICE ACTION
Applicant Milestone AV Technologies, LLC (the “Applicant”) has received and reviewed the Office Action dated on May 10, 2017, regarding U.S. Trademark Application Serial No. 87/413,981 (the “Application”). Applicant submits the following response regarding the referenced application.
I. APPLICANT’S MARK IS NOT CONFUSINGLY SIMILAR TO THE CITED MARK
The Examining Attorney has refused registration of Applicant’s mark “ACCEL” (“Applicant’s Mark”) in Class 20 for, “desks” on the ground that Applicant’s Mark purportedly is confusingly similar to U.S. Registration No. 4,766,300 for a stylized design of a boy with pink skin tone and orange hair wearing a short sleeve white t-shirt with red trim on the sleeves, under a red jersey with a white "A" having a white star in the middle of the "A"; the boy is wearing dark blue jeans with light blue cuffs, red and white tennis shoes, black aviator goggles with gray lenses on his head, and a blue and black watch on the right arm; the boy’s eyes are brown with black and white, and with black eyebrows; the boy is holding a blue and white skateboard with black and yellow wheels in his left hand; the word "ACCEL" in orange stylized letters appears to the right of the boy. The mark is registered for use in connection with “Picture frames; umbrella stands; mirrors; chests for toys; beds; tables; dressing tables; 3D decorative plastic ornaments for attachment to walls; decorative mobiles; mattresses; Korean bangsuk cushions; pillows; bassinets; cushions and hand-held flat fans” (the “Cited Mark”).
In In re E.I. Du Pont de Nemours & Co., the Court of Customs and Patent Appeals listed thirteen factors to be considered in determining if likelihood of confusion exists under section 2(d). 476 F.2d 1357, 177 U.S.P.Q. 563 (C.C.P.A. 1973). Each of these factors should be considered when there is evidence in the record to support such consideration, including the following factors pertinent to this Response:
1. the number and nature of similar marks in use on similar goods;
2. the similarity or dissimilarity and nature of the goods or services in question;
3. the similarity and 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 similarity or dissimilarity of the marks in their entireties as to appearance, sound, and connotation; and
6. any other established fact probative of the effect of use.
476 F.2d at 1361, 177 U.S.P.Q. at 567 (emphasis added) (RALLY for polishing and cleaning agent not likely to be confused with RALLY for all-purpose detergent).
The question of likelihood of confusion turns “not [on] the nature of the mark, but [on] its effect when applied to the goods of the applicant.” Id. “The words ‘when applied’ do not refer to a mental exercise, but to all of the known circumstances surrounding use of the mark” in the marketplace. Id.
In this case, upon consideration of the relevant factors, it is apparent that no likelihood of confusion exists because: (1) the goods offered under Applicant’s Mark and the Cited Mark are sufficiently different to preclude confusion; (2) Applicant intends to sell its goods using different trade channels than owner of the Cited Mark and to entirely different groups of consumers, who are sophisticated and are unlikely to be confused as to the source of each party’s respective goods; and (3) Applicant’s Mark is different from the Cited Mark in sight, meaning, and connotation. Each of these factors are discussed in greater detail below.
A. The Goods Covered by Applicant’s Mark Are Significantly Different from the Goods Covered by the Cited Registration
Applicant’s amended description of goods makes it abundantly clear that its mark and the one cited by the Examining Attorney are readily distinguishable. The similarity and dissimilarity of the goods and services used in conjunction with trademarks must be considered when evaluating likelihood of confusion between those marks. Id. The Examining Attorney states that, “the goods are closely related in that both parties offer furniture.” Applicant’s description of goods, however, makes clear that Applicant’s goods are, “desks, namely adjustable-height desks that enable workers to switch between a standing position and sitting position while working.” This is very different than the children’s items, namely, chests for toys, decorative mobiles and bassinets that are specifically listed in the cited registration. Moreover, Applicant’s adjustable desks are generally not suitable for a children’s bedroom. Similarly, the children’s bedroom furniture of the cited registration would never be used in a workplace environment. In addition, Applicant’s Mark does not cover any products closely related to the goods covered by the Cited Mark. Thus, a consumer searching for the children’s bedroom furniture offered under the Cited Mark is unlikely to come across Applicant’s adjustable height desks, much less confuse Applicant’s Mark or goods for the Cited Mark or the cited registrant’s goods. In sum, it is apparent that the parties’ respective goods are so different that confusion is unlikely. See Buitoni Foods Corp. v. Gio. Buton & C.S.p.A., 680 F.2d 290, 292 (2d Cir. 1982) (no likelihood of confusion between BUTON and BUITONI, both for alcoholic drinks); see also Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 968 (2d Cir. 1981) (no likelihood of confusion between BRAVOS for crackers and BRAVOS for chips on ground that “the products differ in non-trivial respects and share only some areas of competing use, and the trier has found no significant risk of injury to the senior user”).
B. Applicant’s Goods and Those Offered Under the Cited Marks Will Travel in Different Trade Channels and Be Marketed Toward Different Consumer Bases Who Are Sophisticated Purchasers
Not only are the goods offered under the respective marks distinguishable, but the contexts in which those goods are used are substantially different. Courts repeatedly have found that when goods or services of one party “are sold to one class of buyers in a different marketing context than the goods of another seller,” the likelihood of confusion is lessened. 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 24:51, at 24-69 (4th ed. 2010). Here, the goods Applicant intends to offer under its ACCEL mark and those associated with the cited A ACCELL & Design mark are readily distinguishable, and their channels of trade and consumer bases are equally so.
Even in situations where the marks at issue are identical and the goods are in the same general category, sales to different groups of purchasers through different channels of trade “are sufficient to raise a doubt as to likelihood of confusion, mistake, or deception.” In re Radiant Color Co., 156 U.S.P.Q. 703, 704 (T.T.A.B. 1968) (RADIANT for coated paper not confusingly similar to RADIANT for loose paper); accord Paul Sachs Originals v. Sachs, 325 F.2d 212 (9th Cir. 1963) (use of marks with identical SACHS name on different sized dresses sold in different stores not likely to cause confusion); In re Shipp, 4 U.S.P.Q.2d 1174 (T.T.A.B. 1987) (confusion not likely between PURITAN for laundry and dry cleaning services and PURITAN for dry cleaning equipment).
This is true even where the parties’ applications or registrations do not contain any limitation in their description of goods as to the trade channels. It is true that without any limitation in the applications or registrations’ descriptions, the United States Patent and Trademark Office (the “PTO”) must presume that the goods travel in “normal” trade channels. However, what constitutes a normal trade channel for one type of goods can be entirely different from the normal trade channel for another type. See Embarcadero Techs. Inc. v. RStudio Inc., 105 U.S.P.Q.2d 1825, 1839 (T.T.A.B. 2013) (“[B]ecause opposer’s goods are not the same as applicant’s goods and services, as identified in its amended descriptions, we cannot presume these trade channels and classes of purchasers to necessarily be the same.”). That is the case here. As evidenced by Applicant’s description of goods, the ACCEL mark will only be used by consumers who desire adjustable height workstations in a workplace environment. Business professionals are generally sophisticated and knowledgeable about the goods they are buying. The owner of the Cited Mark, by contrast, markets its goods to purchasers of children’s bedroom furniture, which is a very different classes of consumers. Thus, what constitutes a “normal” trade channel for each of these industries is different. Similarly, the types of consumer seeking out the goods offered under the Cited Mark are unlikely to seek out or encounter the goods Applicant intends to offer under its ACCEL mark in the marketplace. These factors weigh against a finding of likelihood of confusion.
C. The Cited Mark is Sufficiently Distinct From Applicant’s Mark to Avoid Confusion
The Examining Attorney states that consumers are likely to confuse Applicant’s Mark and the Cited Mark due to the fact that, “the dominant portion of the registered mark is identical to applicant’s proposed mark.” This statement is not accurate. First and foremost, the Cited Registration is a design of a boy. The word “ACCEL” is very small when compared to the overall design, resulting in a completely different sound and commercial impression.
In addition, the Cited Mark is visually distinguishable in that it is primarily comprised of a design element. The Office Action appears to contend that the design of Cited Mark is minimal. However, “[t]hat marks must be considered in their entireties in determining whether there is a likelihood of confusion or mistake is a basic rule in comparison of marks.” Massey Junior College, Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 1402 (C.C.P.A. 1974). Consequently, not only must a design portion be given the proper weight in the likelihood-of-confusion analysis, but the design portion of a mark is often considered determinative. See, e.g., Mr. Hero Sandwich Sys., Inc. v. Roman Meal Co., 781 F.2d 884, 888 (Fed. Cir. 1986) (reversing Board and holding ROMAN & Design for bread goods including hamburger buns not likely to be confused with ROMANBURGER, without design); Hewlett-Packard Co. v. Human Performance Measurement, Inc., 23 U.S.P.Q.2d 1390, 1396 (T.T.A.B. 1991) (HPM & Design for medical instruments not likely to be confused with HP for medical equipment sold through same channels of trade); Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 U.S.P.Q.2d 1477, 1478-79 (T.T.A.B. 1987) (finding STEVE’S & Design for hot dog restaurant not confusingly similar to STEVE’S, without design, for ice cream). That one mark is a “mere word[]” while another is a combination of words and design may therefore distinguish two otherwise similar marks. Omaha Nat’l Bank v. Citibank (S.D.), N.A., 633 F. Supp. 231, 234 (D. Neb. 1986) (finding BANK-IN-A-BILLFOLD & Design not likely to be confused with BANK-IN-A-WALLET for identical services). These principals apply with equal force here. Thus, the design portion of the Cited Mark serves to distinguish it from Applicant’s Mark. As such, this du Pont factor also weighs against a finding of likelihood of confusion.
D. A Review Of The Relevant Factors Confirms That There Is No Likelihood Of Confusion Between Applicant’s Mark and the Cited Mark
When determining whether an applicant’s mark creates a likelihood of confusion with a mark covered by a cited registration or application, “a likelihood of confusion means a probability of confusion; it is not sufficient if confusion is merely ‘possible.’” Nora Beverages v. Perrier Grp. Of Am., 269 F.3d 114, 121 (2d Cir. 2001) (citations omitted) (emphasis added); see also A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3d Cir. 1999) (finding a “mere possibility” of confusion not sufficient to find a likelihood of confusion); Omaha Nat’l Bank, 633 F. Supp. at 234, 229 U.S.P.Q. at 52 (“A showing of mere possibility of confusion is not enough; a substantial likelihood that the public will be confused must be shown.”). Applicant submits that the factors set forth in Du Pont for which there is record evidence supporting registration of Applicant’s Mark and do not raise a substantial likelihood or a probability of confusion. Under these circumstances, and absent “substantial doubt,” the Examining Attorney should approve Applicant’s Mark for publication. In re Mars, 741 F.2d 395, 396 (Fed. Cir. 1984) (finding CANYON for candy bar not likely to be confused with CANYON for fruit).
II. SUMMARY
Having addressed all of the issues raised by the Examining Attorney, Applicant respectfully requests that the objections raised in the Office Action be withdrawn and that Applicant’s Mark be approved for publication in due course.