87049123 (T.T.A.B. Jul. 29, 2020)

Alan Chokov

Trademark Trial and Appeal BoardJul 29, 2020

87049123 (T.T.A.B. Jul. 29, 2020)

Mailed: July 29, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Alan Chokov _____ Application Serial No. 87049123 _____ Yiming Zhang of LegalForce RAPC Worldwide, P.C. for Alan Chokov. Jacquelyn A. Jones, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Bergsman, Wolfson and Larkin, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Alan Chokov (Applicant) seeks registration on the Principal Register of the mark SPORTSICANDY, in standard character form, for “clothing, namely, shirts, t-shirts, sweatshirts, pants, jackets, headwear,” in International Class 25.1 The Examining Attorney refused to register Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark for the identified goods so resembles the registered mark EYE CANDY, in standard 1 Serial No. 87049123, filed May 25, 2016, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and in commerce as of October 22, 2012. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 87049123 - 2 - character form, for “blouses; coats; denims; dresses; footwear; hosiery; jackets; jumpers; lingerie; panties; pants; shirts; shorts; skirts; socks; sweaters; t-shirts; tank- tops; vests” in International Class 25, as to be likely to cause confusion.2 We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “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)) (quoting DuPont, 177 USPQ at 567). “Not all of the DuPont factors are relevant to every case, and only 2 Registration No. 5197948, registered May 9, 2017. The Examining Attorney also cited Registration No. 5519803 for the mark EYE CANDY, in standard character form, for “footwear,” in International Class 25, owned by the same registrant, as well as Registration No. 5478142 for the mark INMOTION BY EYECANDY and design for, inter alia, “headbands, head wraps, wristbands as clothing, socks and hats” in International Class 25, owned by a different entity. For the sake of economy, we confine our likelihood of confusion analysis to the mark in Registration No. 5197948 for EYE CANDY, in standard characters, for clothing. Of the three cited marks, this mark and goods are the most similar to Applicant’s mark and goods. If we find a likelihood of confusion as to EYE CANDY for clothing, we need not consider EYE CANDY for footwear or INMOTION BY EYECANDY, but if we do not find a likelihood of confusion as to EYE CANDY for clothing, we would not find it as to EYE CANDY for footwear or INMOTION BY EYECANDY. See North Face Apparel Corp. v. Sanyang Indus. Co., 116 USPQ2d 1217, 1225 (TTAB 2015); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). Serial No. 87049123 - 3 - factors of significance to the particular mark need be considered.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)); see also M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). “Each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). See also 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.’”), quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002). Serial No. 87049123 - 4 - I. The similarity or dissimilarity and nature of the goods and established, likely-to-continue channels of trade and classes of consumers. We must consider the goods as Applicant and Registrant describe them in the application and registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant's goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods”). Furthermore, we cannot and do not read limitations into the identification of goods. In re i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific limitation and nothing in the inherent nature of Squirtco’s mark or goods that restricts the usage of SQUIRT for balloons to promotion of soft drinks. The Board, thus, improperly read limitations into the registration”); In re Thor Tech, 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into the registrant’s description of goods.”). Under this DuPont factor, the Examining Attorney need not prove, and we need not find, similarity as to each product listed in the description of goods. It is sufficient Serial No. 87049123 - 5 - for a refusal based on likelihood of confusion that we find any item encompassed by the identification of goods in a particular class in the application and registration related. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods within a particular class in the application.”). Applicant’s description of goods is “clothing, namely, shirts, t-shirts, sweatshirts, pants, jackets, headwear.” The description of goods in the cited registration is “blouses; coats; denims; dresses; footwear; hosiery; jackets; jumpers; lingerie; panties; pants; shirts; shorts; skirts; socks; sweaters; t-shirts; tank-tops; vests.” Because both descriptions of goods include “t-shirts,” “shirts,” “pants,” and “jackets,” the goods are in part identical. Because the goods described in the application and the cited registration are in part identical, we presume that the channels of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (identical goods are presumed to travel in same channels of trade to same class of purchasers), cited in Cai, 127 USPQ2d at 1801 (“With respect to similarity of the established trade channels through which the goods reach customers, the TTAB properly followed our case law and ‘presume[d] that the identical goods move in the same channels of trade and are available to the same classes of customers for such Serial No. 87049123 - 6 - goods….’”); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same); United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014). Applicant contends that the goods are not related because they are offered in different channels of trade. Simply because Applicant and the Cited mark operate generally in the broad industry of clothing does not establish that the goods are related. Applicant’s goods consist of apparel to promote Applicant’s pre existing [sic] registrations for online entertainment services, while goods under the Cited marks consist of regular women’s apparel and exercise accessories. Consumers looking for apparel that specifically promotes online content have different goals than consumers purchasing women’s apparel or accessories for physical activity.3 As discussed above, in considering the scope of the goods identified in the cited registration, we must look to the registration itself, and not to extrinsic evidence about the Registrant’s actual goods, customers, or channels of trade. See Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987) (quoting CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983)); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958)). Therefore, we must presume that Applicant’s clothing products and Registrant’s clothing products include all types of clothing products. 3 Applicant’s Brief, p. 12 (10 TTABVUE 18). Citations to the briefs are to TTABVUE, the docket history system for the Trademark Trial and Appeal Board. Serial No. 87049123 - 7 - We find that the goods are identical in part and that Applicant and Registrant offer them in the same channels of trade to the same classes of consumers. The second and third DuPont factors support a finding of likelihood of confusion. II. The similarity or dissimilarity of the marks. We now turn to the DuPont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. Sept. 13, 2019); accord Krim- Ko Corp. v. Coca-Cola Bottling 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.”) (citation omitted). In comparing the marks, we are mindful that where, as here, the goods are in part identical, the degree of similarity necessary to find likelihood of confusion need not be as great as where there is a recognizable disparity between the goods. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007). “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’ Serial No. 87049123 - 8 - such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai, 127 USPQ2d at 1801 (quoting Coach Servs., 101 USPQ2d at 1721); see also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are clothing without any restrictions or limitations as to channels of trade, classes of consumers, or price points, the average customer is an ordinary consumer. Applicant is seeking to register the mark SPORTSICANDY, in standard character form, and the mark in the cited registration is EYE CANDY, in standard character form. 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. Thus, Applicant may depict his mark in any manner, regardless of the font style, size, or color. Viterra, 101 USPQ2d at 1909- 11; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, Serial No. 87049123 - 9 - 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 216 USPQ at 939 (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed drawing (equivalent to modern standard character format) is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party” (emphasis in original)). Thus, we must assume that Applicant could display his mark as SPORTSICANDY, SportsICandy, or SportsiCandy as reproduced below in Applicant’s specimen of use filed with the application. See, e.g., In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). At first glance, Applicant’s mark SPORTSICANDY has a different appearance from Registrant’s mark EYE CANDY because it is a compound word consisting of the word “Sports,” the letter “I,” and the word “Candy.” Although Applicant’s mark SPORTSICANDY is presented in the application drawing without a space between the words “Sports,” “I,” and “Candy,” consumers are likely to view and pronounce the mark as “Sports I Candy,” based on normal English pronunciation and relevant consumers recognition of the connotations of “eye candy” (or “i candy”) in the fashion industry, as discussed more fully below. Thus, the presence or absence of a space between the two words is an inconsequential difference that does not serve to distinguish these marks. In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010) (finding ACTIVECARE and ACTIVE CARE confusingly similar); Giersch v. Scripps Serial No. 87049123 - 10 - Networks Inc., 90 USPQ2d 1020, 1025 (TTAB 2009) (finding that petitioner’s mark DESIGNED2SELL is phonetically identical to respondent’s mark DESIGNED TO SELL because the “marks are also highly similar visually, with the sole differences being the substitution in respondent's mark of the short preposition ‘to’ for the number ‘2’ between the two dominant words, and the use of spaces between them” and because “the spaces that respondent places between the words do not create a distinct commercial impression from petitioner’s presentation of his mark as one word.”); Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ2d 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are “essentially identical”). In addition, the marks are similar because they share the phonetically equivalent terms “ICANDY” and “EYE CANDY.” Both terms have the same meaning and engender the same commercial impression (i.e., something attractive). The OXFORD LIVING DICTIONARIES (en.oxforddictionaries.com) defines “Eye Candy” as “[v]isual images that are superficially attractive and entertaining but intellectually undemanding – “the film’s success rested on a promotional campaign showcasing its relentless eye candy.”4 Considering Applicant’s mark in its entirety, inasmuch as “sportswear” is a type of clothing, Applicant’s mark SPORTISCANDY projects the same meaning and commercial impression; that is, attractive sportswear.5 4 October 11, 2018 Office Action (TSDR 16). Citations to the prosecution file refer to the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system in the downloadable .pdf format. 5 The RANDOM HOUSE UNABRIDGED DICTIONARY (2020) defines “sportswear” as, inter alia, “men’s or women’s clothing consisting of separate pieces, as jackets, trousers, sweaters, skirts, and shirts, that are casually styled and can be worn singly or in various combinations for business and informal activity.” Dictionary.com accessed July 24, 2020. The Board may Serial No. 87049123 - 11 - Given the similarities between the marks and the identity of the goods, consumers familiar with EYE CANDY clothing are likely to perceive SPORTISCANDY clothing as a variant of EYE CANDY denoting a product line extension into sportswear. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (VANTAGE TITAN “more likely to be considered another product from the previously anonymous source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices”); Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks may believe that applicant’s mark is a variation of opposer’s mark that opposer has adopted for use on a different product.”). Applicant contends that consumers will focus on the word “Sports” in Applicant’s mark SPORTSICANDY because the word “Sports” is the first part of the mark and consumers are inclined to focus on that first part of a mark.6 We disagree with Applicant’s contention that consumers will focus on the word “Sports” when encountering Applicant’s mark because it is the first part of Applicant’s mark. There is no mechanical test for selecting the dominant element of a mark. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1059 (TTAB 2017). While we generally consider the first term in a mark to be its dominant feature because it is called for, and so remembered, by consumers, this is not invariably the case. See Stone Lion Capital Partners, 110 USPQ2d at 1161 (“the Board did not err in finding that take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format. E.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018). 6 Applicant’s Brief, pp. 3-4 (10 TTABVUE 9-10). Serial No. 87049123 - 12 - ‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial impression’ to ‘LION CAPITAL’ and ‘LION.’”); In re Chatam Int’l Inc., 380 F.3d 1340, 1343, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in their entireties with non- dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”). As explained above, “Sports” brings to mind “Sportswear,” which is a type of clothing, and when “Sports” is used in Applicant’s mark, it functions as an adjective that modifies the noun “ICANDY,” thus, consumers are likely to believe that SPORTSICANDY is a sportswear line of ICANDY clothing. Applicant argues that SPORTSICANDY and EYE CANDY sound distinctly different. [T]here is no indication that Applicant’s mark is used as a first person singular pronoun. The letter “I” appears in the middle of Applicant’s mark. There are no spaces to indicate that it is intended to be pronounced as if it was a first person singular pronoun. Examining Attorney has not included any evidence that would suggest the letter “I” in the middle of a word would be pronounced similarly to the word “eye.”7 In addition, Applicant asserts that his mark is pronounced spōrtsē kan-dē.8 However, it is just as likely that consumers will pronounce it as “sports-eye-candy,” especially in the case of Applicant’s mark that consists of two familiar terms “Sports” and “ICANDY,” a variation of “Eye Candy.” 7 Applicant’s Brief, p. 7 (10 TTABVUE 13). 8 Applicant’s Brief, p. 7 (10 TTABVUE 13). Serial No. 87049123 - 13 - We note that there is no rule for gaging how consumers will pronounce a mark; that is, there is no correct pronunciation of a trademark that is not a recognized word. See Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1409 (TTAB 2010). Absent evidence to the contrary, we must consider all reasonable possibilities. See StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014) (“Where a trademark is not a recognized word and the weight of the evidence suggests that potential consumers would pronounce the mark in a particular way, it is error for the Board to ignore this evidence entirely and supply its own pronunciation.”). As discussed above, many consumers will perceive Applicant’s mark as SPORTS – I – CANDY and it is reasonable to conclude that a substantial number of consumers will pronounce it as such based on normal English pronunciation, especially given the context of the identified goods and the absence of any persuasive evidence supporting Applicant’s proffered alternative pronunciation. See Centraz Indus. v. Spartan Chem. Co., 77 USPQ2d 1698, 1701 (TTAB 2006) (“Even if opposer’s mark is pronounced correctly, with a first syllable “ice,” the marks ICE SHINE and ISHINE sound very much alike. … especially where, as here, identical products are involved.”). Finally, Applicant argues that his mark will be associated with the marks in his prior registrations SPORTSICANDY, MYSPORTSLEGACY and KIDS2PRO SPORTS all for sports entertainment websites. The amount of time Applicant has been using these marks in commerce makes them distinctive. These marks and Serial No. 87049123 - 14 - Applicant's current application all share the common element SPORTS, making that element dominant in all of Applicant’s marks. Besides displaying it on the label, Applicant visibly displays its mark on all of its goods. (See Exhibit B). Any clothing Applicant sells under the SPORTSICANDY mark will give consumers commercial impressions of Applicant’s prior registrations and network of sports websites.9 Applicant’s argument is akin to asserting that he has a family of “Sports” formative marks. However, neither the Examining Attorney, nor Applicant, may invoke the family of marks doctrine in an ex parte proceeding. See In re LC Trademarks, Inc., 121 USPQ2d 1197, 1203 (TTAB 2016). In an ex parte appeal, the focus of the likelihood-of- confusion analysis must be the mark applicant seeks to register, not other marks applicant may have used or registered. In other words, a family-of-marks argument is not available to an applicant seeking to overcome a likelihood-of-confusion refusal. In re Lar Mor International, Inc., 221 USPQ 180 (TTAB 1983) (“In reaching the conclusion of no likelihood of confusion, we have given no weight to applicant’s argument ... that it owns a family of French-word marks all beginning with the word ‘TRES....”); In re Ald, Inc., 148 USPQ 520, 521 (TTAB 1965) (“Likewise, in view of the specific prohibition of Section 2(d) of the Statute, the fact that applicant may possess a ‘family’ of marks characterized by the term ‘ALD’ is of no particular significance herein if the mark for which applicant now seeks registration, ‘ALDPRESS’, when considered in its entirety, is confusingly similar to the previously registered mark ‘ALLPREST’.” (footnote omitted)). See also In re U.S. Plywood-Champion Papers, Inc., 175 USPQ 445, 446 (TTAB 1972) (“Applicant’s ownership and registration of marks other than the mark sought to be registered herein is immaterial and irrelevant to the specific issue before us, and cannot justify the 9 Id. Serial No. 87049123 - 15 - registration of what could be a confusingly similar mark.” (citations omitted)). In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009). In other words, a cited registration must stand on its own as a basis for refusal under Section 2(d) of the Trademark Act. In re Hitachi High-Techs. Corp., 109 USPQ2d 1769, 1772 (TTAB 2014). We find that the marks are similar in their entireties in terms of appearance, sound, connotation and commercial impression. III. Lack of actual confusion Applicant argues that his mark and Registrant’s mark have coexisted for a significant period without any reported instances of actual confusion.10 Applicant’s and the Cited marks have been available together on the market for at least 5 years. Applicant began using its mark in commerce in connection with the identified goods on October 22, 2012. The Cited marks EYE CANDY were first used in commerce on June 1, 2011 and September 30, 2011. The Cited mark INMOTION BY EYECANDY has been used in commerce since at least December, 2, 2014.11 “The length of time during and conditions under which there has been concurrent use without evidence of actual confusion,” see DuPont, 177 USPQ at 567, requires us to look at actual market conditions, to the extent there is evidence of such conditions of record. See In re Guild Mortg. Co., 2020 USPQ2d 10279, *6 (TTAB 2020). The lack of any reported instances of actual confusion is relevant only if the marketing 10 Applicant’s Brief, p. 21 (10 TTABVUE 27). 11 Applicant’s Brief, p. 22 (10 TTABVUE 28). Serial No. 87049123 - 16 - conditions present a reasonable opportunity for confusion to have occurred. See Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011); Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the absence of actual confusion depends upon there being a significant opportunity for actual confusion to have occurred); Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In Guild Mortg., the Board analyzed the purported lack of any actual confusion because applicant submitted a declaration by applicant’s president attesting to the extent of applicant’s use of its mark. In addition, applicant submitted evidence regarding registrant’s business. However, neither the testimony, nor the evidence, provided any specifics regarding the geographic extent or overlap of applicant’s or registrant’s services. 2020 USPQ2d 10279 at *7. In addition, the Board noted, “there has been no opportunity to hear from Registrant about whether it is aware of any reported instances of confusion. We therefore are getting only half the story.” Id., at *7, (citing In re Opus One, Inc., 60 USPQ2d 1812, 1817 (TTAB 2001) (“The fact that an applicant in an ex parte case is unaware of any instances of actual confusion is generally entitled to little probative weight in the likelihood of confusion analysis, inasmuch as the Board in such cases generally has no way to know whether the registrant likewise is unaware of any instances of actual confusion, nor is it usually possible to determine that there has Serial No. 87049123 - 17 - been any significant opportunity for actual confusion to have occurred.”) (citations omitted). In the appeal before us, we just have Applicant’s bald conclusion, based on argument of counsel, that there has been at least five years of simultaneous use of the marks without any reported instances of actual confusion. There is no record evidence describing how there has been a reasonable opportunity for actual confusion to have occurred (e.g., the extent of Applicant’s and Registrant’s sales and advertising, the geographic marketing areas of Applicant and Registrant, etc.). Accordingly, the DuPont factors of the length of time during and conditions under which there has been contemporaneous use without evidence of actual confusion are considered neutral. IV. Conclusion Because the marks are similar, the goods are in-part identical and we presume the goods are offered in the same channels of trade to the same classes of consumers, we find Applicant’s mark SPORTSICANDY for “clothing, namely, shirts, t-shirts, sweatshirts, pants, jackets, headwear” is likely to cause confusion with the registered mark EYE CANDY for “blouses; coats; denims; dresses; footwear; hosiery; jackets; jumpers; lingerie; panties; pants; shirts; shorts; skirts; socks; sweaters; t-shirts; tank- tops; vests.” Decision: The refusal to register Applicant’s mark SPORTSICANDY is affirmed.