Click Control Marketing, LLC

Trademark Trial and Appeal Board

Mar 12, 2020

87895626re (T.T.A.B. Mar. 12, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 12, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Click Control Marketing, LLC
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Serial No. 87895626
On Reconsideration
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Gene Bolmarcich of Law Offices of Gene Bolmarcich,
for Click Control Marketing, LLC.
Jacquelyn A. Jones, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Cataldo, Goodman, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Request for Reconsideration
Pursuant to Rule 2.144 of the Trademark Rules of Practice, 37 C.F.R. § 2.144,
Click Control Marketing, LLC (“Applicant”) timely requests reconsideration of the
Board’s January 24, 2020 final decision in this appeal, 11 TTABVUE, which affirmed
the Examining Attorney’s refusal under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), to register the standard character mark CLICK CONTROL MARKETING
(“MARKETING” disclaimed) for “Advertising and marketing services provided by
Serial No. 87895626
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means of indirect methods of marketing communications, namely, social media,
search engine marketing, inquiry marketing, internet marketing, mobile marketing,
blogging and other forms of passive, sharable or viral communications channels” in
International Class 35, on the ground that the mark so resembles the registered mark
shown below (“MARKETING” disclaimed)

for “Promoting, advertising and marketing of the brands, products, services and
online websites of individuals, businesses and nonprofit organizations” in
International Class 35, as to be likely, when used in connection with the services
identified in the application, to cause confusion, to cause mistake, or to deceive.
The premise underlying a request for reconsideration pursuant to Trademark
Rule 2.144 is that based on the record evidence and the applicable law, the Board
erred in reaching its decision. The request may not be used to simply reargue points
presented in the requesting party’s brief, but should be limited to a demonstration
that, based on the evidence properly of record and the applicable law, the Board’s
decision is in error and requires appropriate change. See TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) §§ 543 and 1219.01 (2019) and cases
cited therein. For the reasons discussed below, we see no error in the final decision.
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Applicant argues in its request for reconsideration that the Board improperly
analyzed the first DuPont factor, specifically the similarity or dissimilarity of the
marks in meaning, 13 TTABVUE 3, which Applicant argued in its appeal brief was
“determinative of the issue of likelihood of confusion.” 7 TTABVUE 3. Applicant
claims that the final decision did not reflect “an understanding of the evidence
concerning the relevance of the words ‘CLICK CONTROL’ in Applicant’s Mark, which
goes to the heart of the argument that the meanings and commercial impressions of
the trademarks are distinctly different.” 13 TTABVUE 3. According to Applicant:
“CLICK CONTROL” is a reference to getting the most
relevant people to click on an online ad for a business (that
would be a consumer of Applicant), to avoid the cost of
clicks that have no potential as customers for the business.
Applicant advertises for businesses online on platforms
such as Google, Microsoft, Amazon and social media. On
those platforms, the advertiser is charged for every click on
an ad. The goal of Applicant’s CLICK CONTROL
MARKETING service is to draw in the most relevant
customers possible so that when that person clicks on an
ad, they are more likely to convert (buy/call/fill out a form).
Thus, this is controlling the clicks to the more relevant
users. None of this meaning has any bearing on the
registered mark which does not even have the word
“CLICK” or the word “CONTROL[”] (but only an image of
an old-fashioned “control key” on a keyboard). Thus, the
marks at issue look and sound different but most
important, they have very different meanings and this
should be sufficient to conclude that they are not similar
enough to cause confusion.
Id.
We noted in our final decision that Applicant made a similar argument in its
appeal brief regarding its mark’s meaning:
Applicant’s primary argument is that the marks differ in
meaning. Applicant argues that in the context of its
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services, which it characterizes as “digital marketing,” 7
TTABVUE 3, the “words ‘CLICK CONTROL’ take on a very
specific meaning having to do with the benefits of getting
‘clicks’ when selling a product or service online.” Id. at 4.
Applicant claims that its mark “thus conveys the meaning
that Applicant can control the ‘clicks’ they [sic] get online
(which clicks are critical to selling a product or service
online).” Id.
11 TTABVUE 13. We found that “Applicant’s claimed ‘very specific meaning’ of the
words CLICK CONTROL in its mark . . . is not supported by the dictionary definitions
of ‘click,’ and Applicant points to no other supporting record evidence.” Id. at 15.1
The same is true on Applicant’s request for reconsideration, where Applicant
asserts an even more specific meaning of its mark. Applicant’s repeated “assertions
are unsupported by sworn statements or other evidence, and ‘attorney argument is
no substitute for evidence.’” In re OEP Enters., Inc., 2019 USPQ2d 309323, *14 (TTAB
2019) (quoting Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799
(Fed. Cir. 2018) (internal quotation omitted)). On the record before us, we see no error
in our analysis and ultimate conclusion in the final decision that confusion is likely:
The CLICK CONTROL MARKETING mark as a whole
alludes generally to the ability to control marketing in
some manner either through “pressing down and releasing
a button on a mouse or other input device” or through the
“selecti[on] of an item in a website or app by clicking or
tapping on a mouse, touchscreen, or other input device.”
These two nebulous meanings differ subtly from the
meaning of the cited mark . . . but not sufficiently to make
the marks dissimilar given their similarities in sound and
appearance. Applicant’s mark adds the word CLICK to the
dominant verbal elements of the cited registrant’s mark,

1 We noted that Applicant made of record the results of a Google search engine search on the
term “advertising clicks,” but that “[b]ecause the search term is not part of the applied-for
mark, we find that the search results are not probative of the meaning of the words CLICK
CONTROL or the mark as a whole.” 11 TTABVUE 15 n.18.
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and the record is devoid of evidence of the use or
registration of any other marks containing the elements
CONTROL/Ctrl and MARKETING that are common to the
involved marks. Under these circumstances, and taking
into account that the added word CLICK in Applicant’s
mark is suggestive of Applicant’s services under either
definition of “click” discussed above, and that the services
identified in the application are a subset of the services
identified in the cited registration, we find that CLICK
CONTROL MARKETING as a whole “looks, sounds, and
conveys the impression of being a line extension of” the
cited mark into the specific services identified in the
application. Double Coin Holdings, 2019 USPQ2d 377409,
*9 (ROAD WARRIOR found to be confusingly similar to
WARRIOR for legally identical goods). Given the legal
identity of the services, channels of trade, and classes of
customers, the marks are sufficiently similar for the first
Du Pont factor to support a finding of a likelihood of
confusion.
11 TTABVUE 15-16. We find, therefore, that Applicant has not pointed out an error
in our final decision, but merely reargues a point raised in its appeal brief and
disagrees with our determination regarding the similarity of the marks under
consideration therein. See, e.g., In re Kroger Co., 177 USPQ 715, 717 (TTAB 1973);
Conwood Corp. v. Loew’s Theatres, Inc., 173 USPQ 829, 830 (TTAB 1972) (denying
petition to reconsider). Cf. Steiger Tractor Inc. v. Steiner Corp., 221 USPQ 165 (TTAB
1984), reh’g granted, 3 USPQ2d 1708, 1710 (TTAB 1984).
Decision: The request for reconsideration is denied.