Intrust Financial Corp.v.nTrust Corp.

Trademark Trial and Appeal Board

Nov 8, 2016

No. 91204456 (T.T.A.B. Nov. 8, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 8, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Intrust Financial Corp.
v.
nTrust Corp.
_____

Opposition No. 91204456
_____

Michael J. Norton and William P. Matthews, Foulston Siefkin LLP,
for Intrust Financial Corp.

James D. Nguyen and Sean M. Sullivan, Davis Wright Tremaine LLP,
for nTrust Corp.
_____

Before Bergsman, Wolfson, and Heasley,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
nTrust Corp. (“Applicant”) seeks to register the mark NTRUST (in standard
character form) on the Principal Register for the following services, in International
Classes 36 and 45:
Financial services conducted via electronic
communications networks, namely, electronic funds
transfer; bill payment services; cashless purchasing
services for merchants and consumers whereby purchase
monies are held in trust and sent to merchants upon sales
to consumers; stored value card services; electronic money
Opposition No. 91204456
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issuance and transfer services; direct deposit of funds into
customer bank accounts (Class 36);
Providing financial fraud protection and prevention (Class
45).1
Intrust Financial Corp. (“Opposer”) opposes registration of Applicant’s mark on
the grounds of likelihood of confusion under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), and dilution under Section 43(c) of the Trademark Act, 15 U.S.C. §
1125(c). In its Notice of Opposition, Opposer claimed ownership2 of the following
registrations:
1. Registration No. 1802917 for the mark INTRUST, in typed drawing form, for
“banking services,” in Class 36;3
2. Registration No. 2738638 for the mark INTRUST MERCHANT SERVICES, in
typed drawing form, for “merchant services, namely, credit card and debit card
services,” in Class 36;4

1 Application Serial No. 85250992, filed February 24, 2011, based on Applicant’s allegation
of its bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b).
2 Two of the claimed registrations are cancelled: Reg. No. 3219237 for the mark INTRUST
VALUE PACK (cancelled October 25, 2013) and Reg. No. 1832427 for the mark INTRUST 24
HOUR BANKING (cancelled February 19, 2016). Any benefits that might have otherwise
been conferred by the registrations, including the evidentiary presumptions afforded by
Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), were lost when the registrations
expired. See, e.g., Anderson, Clayton & Co. v. Krier, 478 F.2d 1246, 178 USPQ 46 (CCPA
1973).
3 Registered November 2, 1993; renewed. Prior to November 2, 2003, “standard character”
marks were known as “typed drawings.”
4 Registered July 15, 2003; renewed. The registration includes a disclaimer of the exclusive
right to use “Merchant Services.”
Opposition No. 91204456
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3. Registration No. 3358359 for the mark INTRUST WEALTH MANAGEMENT
(stylized), for “financial services, namely, management of trusts and
investment accounts,” in Class 36;5
4. Registration No. 2197748 for the mark

for “banking services,” in Class 36;6
5. Registration No. 1957654 for the mark INTRUST CHECK CARD, in typed
drawing form, for “banking card services, specifically on line debit card,” in
Class 36;7
6. Registration No. 1840083 for the mark INTRUST BANK, N.A., in typed
drawing form, for “banking services,” in Class 36;8
7. Registration No. 1849586 for the mark INTRUST FINANCIAL
CORPORATION, in typed drawing form, for “banking services,” in Class 36;9

5 Registered December 25, 2007; Sections 8 and 15 combined declaration accepted and
acknowledged. The registration includes a disclaimer of the exclusive right to use “Wealth
Management.”
6 Registered October 20, 1998; renewed.
7 Registered February 20, 1996; renewed. The registration includes a disclaimer of the
exclusive right to use “Check Card.”
8 Registered June 14, 1994; renewed. The registration includes a disclaimer of the exclusive
right to use “Bank, N.A.”
9 Registered August 9, 1994; renewed. The registration includes a disclaimer of the exclusive
right to use “Financial Corporation.”
Opposition No. 91204456
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8. Registration No. 1841487 for the mark INTRUST BANK, in typed drawing
form, for “banking services,” in Class 36;10
9. Registration No. 1879319 for the mark INTRUST CARD CENTER, in typed
drawing form, for “banking services, namely credit card services,” in Class 36;11
and
10. Registration No. 3711317 for the mark I TRUST INTRUST, in standard
character form, for “banking services,” in Class 36.12
Opposer also alleged ownership and prior use of common law marks containing
the term “INTRUST’ on a variety of banking and financial services.13 Applicant, in
its Answer, denied the salient allegations in the Notice of Opposition.
The proceeding is fully briefed. We sustain the opposition.
I. Evidentiary Objections
Applicant objects to four exhibits introduced by Opposer during the depositions of
Gene M. Reed, graphic designer at Fidelity Information Services (“FIS”), Opposer’s
graphic supplier for credit and debit card designs, and Deborah R. Canfarelli, client

10 Registered June 21, 1994; renewed. The registration includes a disclaimer of the exclusive
right to use “Bank.”
11 Registered February 14, 1995; renewed. The registration includes a disclaimer of the
exclusive right to use “Card Center.”
12 Registered November 17, 2009; Sections 8 and 15 combined declaration accepted and
acknowledged.
13 These services are: “banking and financial services, including, without limitation, mortgage
loans, debit cards and credit cards, savings and checking accounts, investment wealth
management, cashless purchasing services for merchants and consumers whereby purchase
monies are held in trust and sent to merchants upon sales to consumers, cashless payment
and money transfer services, providing financial fraud protection and prevention, and online
and mobile banking, which includes but is not limited to electronic funds transfer, bill
payment services, and direct deposit services.” 1 TTABVUE 3.
Opposition No. 91204456
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services manager at FIS, on the grounds that they were not properly authenticated
or that the witnesses had no personal knowledge of them.14 The Exhibits are
printouts of emails with attachments that Opposer submitted to show actual
confusion. Exhibit 131 was identified by Ms. Canfarelli as being an email thread
containing an email and attached graphic design that she received from Mr. Reed and
an email that she forwarded, with the attachment, to her contacts at Opposer’s place
of business.15 The subject line of the email thread referred to a graphic image as
“nTrust cloud Money Card” and the graphic includes the words “nTrust cloud
money.”16 We find that the Exhibit has been properly authenticated and that Ms.
Canfarelli’s testimony with regard thereto was based on her personal knowledge.
Accordingly, the Exhibit and testimony are admitted into evidence.
With respect to the testimony of Mr. Reed and Exhibits 130, 132 and 133, we find
that Mr. Reed sufficiently recollected the email thread and graphic images attached
to Exhibit 130, and have admitted that Exhibit into evidence.17 On the other hand,
the emails and artwork contained in Exhibits 132 and 133 have not been sufficiently
authenticated and we have not considered them. Mr. Reed did not recall them and
believed that his assistant may have prepared and forwarded them.18

14 Exhibits 130, 132 and 133 to Mr. Reed’s deposition; Exhibit 131 to Ms. Canfarelli’s
deposition.
15 37 TTABVUE 11-12.
16 37 TTABVUE 854-55, Exhibit 131.
17 37 TTABVUE 226.
18 37 TTABVUE 224, 227-8, 230.
Opposition No. 91204456
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Applicant further objects to the testimony of Kimberly Klocek, Opposer’s senior
manager of information reporting and business intelligence, and to Exhibit 74,
marked during her deposition, on the ground that she was not properly disclosed
during pre-trial disclosures.19 Opposer argues in its reply brief that it did reveal Ms.
Klocek as a potential witness in its pretrial disclosures, although Opposer concedes
it did not disclose Ms. Klocek in its initial disclosures. There is nothing in the record
to support Opposer’s position that it disclosed Ms. Klocek in its pretrial disclosures;
although the brief indicates that copies of Opposer’s interrogatory responses and
pretrial disclosures are attached to its reply brief, they are not in the record. The
record is also contradictory with respect to Applicant’s position; during Ms. Klocek’s
deposition, Applicant objected to her testimony on the ground that she was not
disclosed in the initial disclosures, saying nothing about pretrial disclosures.20 The
purpose of identifying witnesses before trial is to “allow parties to know prior to trial
the identity of trial witnesses, thus avoiding surprise witnesses.” Jules
Jurgensen/Rhapsody Inc. v. Baumberger, 91 USPQ2d 1443, 1444 (TTAB 2009). On
balance, we find on this sparse record that Applicant received adequate notice of Ms.
Klocek, had an opportunity to meaningfully cross-examine her, and has not been
prejudiced by her testimony, which is in any event non-dispositive.
Applicant further objects to Exhibits 219-225, and all testimony relating to the
exhibits, that were introduced by Opposer during the testimony of Robert Scott

19 41 TTABVUE 59.
20 37 TTABVUE 132.
Opposition No. 91204456
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MacGregor, Applicant’s founder and CEO, on the ground that they were not produced
during the discovery period. During the deposition, counsel for Opposer stated that
the exhibits were recent printouts from Applicant’s website,21 intended to supplement
those previously introduced under Notice of Reliance by Opposer.22 Opposer also filed
these same exhibits under Notice of Reliance by Opposer as rebuttal evidence.23 They
qualify as Internet documents under Safer Inc. v. OMS Investments, Inc., 94 USPQ2d
1031, 1038 (TTAB 2010), and as rebuttal evidence to show changes to Applicant’s
website and to refute Applicant’s contention that it offers only nonbanking services.
We have considered the documents, noting that as is the case with any Internet
document, we have considered the matter stated in the documents only to show “that
the statements contained therein were made or that information was reported, but
not to prove the truth of the statements contained therein.” TBMP § 704.08(b); see,
e.g., Swiss Watch Int’l Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d
1731, 1735 (TTAB 2012) (Internet printouts submitted as exhibits to testimony are
not hearsay).
II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Applicant’s application files. In light of our evidentiary rulings,
the record also comprises the following testimony and evidence:

21 37 TTABVUE 160.
22 17 TTABVUE 4-133.
23 33 TTABVUE 348-373, Exhibits M-1 through M-7.
Opposition No. 91204456
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A. Opposer’s testimony and evidence.
• First Notice of Reliance on Internet documents reprinted from Applicant’s
website www.ntrust.com, pursuant to Safer purportedly to show that
Applicant provides services comparable to those of a regulated bank;24
• Second Notice of Reliance on
o Internet documents reprinted from Opposer’s websites
www.intrustbankarena.com and www.intrustbank.com,25 as well as
from the websites of unrelated, third-party banks,26 purportedly to
show that banking services are provided in connection with a variety
of financial services;
o A printout from the Trademark Acceptable Identification of Goods &
Services manual (“Trademark ID Manual”) at www.uspto.gov
showing “banking services” as an acceptable identification;27
o Internet articles from the Federal Reserve Bulletin of the Federal
Reserve Board (“U.S. Households’ Access to and Use of Electronic
Banking, 1989-2007”)28and The Economic Review of the Federal
Reserve Board of Kansas City (“New Person-to-Person Payment
Methods: Have Checks Met Their Match?”)29 purportedly to show
that “banking services” include emerging electronic technologies;
• Third Notice of Reliance on printouts from the Trademark Electronic
Search System (“TESS”) of third-party registrations purportedly to show an
overlap between the services offered by the parties.30
• First Rebuttal Notice of Reliance on Internet documents that purportedly
show that the financial services described in Applicant’s application include
services that are part of the business of banking and that consumers

24 17 TTABVUE 4-133.
25 18 TTABVUE 5-64, Exhibits B-1 through B-41.
26 18 TTABVUE 65-73, Exhibits C-1 through C-5.
27 18 TTABVUE 74, Exhibit F.
28 18 TTABVUE 76-103, Exhibit G.
29 18 TTABVUE 104-142, Exhibit H.
30 18 TTABVUE 147-180, Exhibits E-1 through E-14. Exhibits D-1 through D-3 are printouts
of abandoned or cancelled registrations and applications. We have not considered these.
Opposition No. 91204456
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increasingly expect banks to offer mobile person-to-person payment and
stored value card services;31
• Second Rebuttal Notice of Reliance on USPTO records to show that certain
third-party registrations are dead or abandoned,32 and on Internet
documents purportedly showing that specific entities identified by
Applicant purportedly use dissimilar marks or no longer have a website
presence,33 or are no longer in operation or retain a license to operate;34 and
• Third Rebuttal Notice of Reliance on Exhibits that were used during the
testimony deposition of Robert Scott McGregor, Applicant’s founder and
CEO.35
• Testimony depositions of:
o Lisa Elliott, Opposer’s senior manager of marketing;
o Kimberly Klocek, Opposer’s senior manager of information reporting
and business intelligence;
o Linda Cullinen, Opposer’s senior manager for card compliance and
Affinity client relationships;
o Thomas Morrison, Opposer’s division director for the payments
technology and operations division;
o Gene M. (“Geno”) Reed, graphic designer at Fidelity Information
Services (“FIS”), Opposer’s graphic supplier for credit and debit card
designs;
o Deborah R. Canfarelli, client services manager at FIS, and
o Robert Scott MacGregor, Applicant’s founder and CEO;

31 33 TTABVUE 7-291, Exhibits K-1 through K-291.
32 33 TTABVUE 295-300, Exhibits L-1 through L-3.
33 33 TTABVUE 301- 341, Exhibits L-4 through L-19.
34 33 TTABVUE 342-344, Exhibits L-20 and L-21.
35 33 TTABVUE 348-373, Exhibits M-1 through M-7.
Opposition No. 91204456
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together with the exhibits that accompanied these depositions, except Exhibits 132
and 133 to Mr. Reed’s deposition.36
Opposer also properly made its pleaded registrations of record by attaching to its
Notice of Opposition copies of those registrations and print-outs from the Trademark
Applications and Registrations Retrieval (“TARR”) and “Assignments” electronic
database records of the USPTO showing the then current status and title of the
registrations pursuant to 37 CFR § 2.122(d)(1).37
B. Applicant’s evidence.
• First Notice of Reliance on
o Internet documents reprinted from U.S. federal government
agencies’ websites such as www.fincen.gov,38 and
http://federalreserve.gov (“Report to the Congress on the Use of the
Automated Clearinghouse System for Remittance Transfers to
Foreign Countries”)39 purportedly to show differences between
money transmitter/transfer services and banking services;40
o Internet articles and press releases from unrelated third-parties
purportedly to show that money service businesses are not banks and
that money transfers and remittance transfers to foreign countries
are provided by non-bank entities;41
• Second Notice of Reliance on
o Copies of third-party registrations for financial services such as “bill
payment” and “direct deposit services” owned by allegedly non-

36 The deposition transcripts are at 37 TTABVUE and the Exhibits are at 38 TTABVUE and
39 TTABVUE.
37 1 TTABVUE 10-77.
38 30 TTABVUE 15, Exhibit F-3.
39 30 TTABVUE 16, Exhibit F-4.
40 30 TTABVUE 9-128, Exhibits F-1 through F-5.
41 30 TTABVUE 129-182, Exhibits G-1 through G-14.
Opposition No. 91204456
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banking entities purportedly to show that non-banking entities
provide the same services as recited in Applicant’s application;42
o Copies of third-party federal and state registrations for marks
allegedly similar to Opposer’s INTRUST marks and covering various
types of financial services purportedly to show that Opposer’s marks
exist in a crowded field and that the term INTRUST is weak;43 and
• Third Notice of Reliance on Internet documents showing third-party use of
marks allegedly similar to Opposer’s INTRUST marks and covering various
types of financial services purportedly to show that Opposer’s mark is
weak.44
III. Opposer’s Standing and Priority
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); John W.
Carson Found. v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB 2010). Opposer’s
standing to oppose registration of Applicant’s mark is established by its pleaded
registrations, which the record shows to be valid and subsisting, and owned by
Opposer. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1844 (Fed. Cir. 2000); Otter Prods. LLC v. BaseOneLabs LLC, 105 USPQ2d 1252,
1254 (TTAB 2012). In addition, because Opposer’s pleaded registrations are of record,
priority is not an issue with respect to the services covered by Opposer’s pleaded
registrations, namely, “banking services,” “credit card services,” “banking card
services, specifically on line debit card,” “financial services, namely, management of

42 31 TTABVUE 12-96, Exhibits H-1 through H-42.
43 31 TTABVUE 97-126, Exhibits I-1 through I-19, with the exception of Exhibit I-16, which
is a copy of a Letter of Protest Memorandum concerning application Serial No. 77813891.
44 32 TTABVUE 7-183, Exhibits J-1 through J-23.
Opposition No. 91204456
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trusts and investment accounts,” and “merchant services, namely, credit card and
debit card services.” Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB
1998) (citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ
108, 110 (CCPA 1974)). Opposer has further shown that it first used INTRUST BANK
in connection with banking services in 1993 and first used INTRUST at least as early
as 1997.45 Because Applicant’s application was filed on February 24, 2011 and
Applicant has not yet used its mark in the United States,46 Opposer has shown that
it has priority of use for its INTRUST marks in connection with banking services
prior to any date upon which Applicant may rely.
IV. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir.

45 Ms. Elliott testified that Opposer changed its name from First National Bank to Intrust
Bank in 1993, 37 TTABVUE 62, and that Intrust first began using the mark INTRUST
BANK in 1993. 37 TTABVUE 66. Ms. Elliott further testified that she believed Opposer
began using “just Intrust as a stand-alone mark” also in 1993, 37 TTABVUE 66, and
identified the INTRUST mark being used on a page from Opposer’s website in 1997, 37
TTABVUE 68, Exhibit 46. “Oral testimony, if sufficiently probative, is normally satisfactory
to establish priority of use in a trademark proceeding.” Powermatics, Inc. v. Globe Roofing
Prods. Co, 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965) (cited in Daniel J. Quirk, Inc. v.
Vill. Car Co., 120 USPQ2d 1146, 1151 (TTAB 2016)).
46 37 TTABVUE 146.
Opposition No. 91204456
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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, 116 USPQ2d 1406, 1409 (TTAB 2015).
Opposer bears the burden of proving its claim of likelihood of confusion by a
preponderance of the evidence. Cunningham, 55 USPQ2d at 1848.
We address in turn each DuPont factor that is relevant and for which the parties
submitted evidence or argument. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450
F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. and H.J.
Heinz Co. 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.”). We treat any other DuPont factors as neutral.
A. Similarity of the Marks
We begin with a consideration of the DuPont likelihood of confusion factor focusing
on the similarity or dissimilarity of “the marks in their entireties as to appearance,
sound, connotation, and commercial impression.” Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “The proper test is not a side-
by-side comparison of the marks, but instead ‘whether the marks are sufficiently
similar in terms of their commercial impression’ such that persons who encounter the
marks would be likely to assume a connection between the parties.” Coach Services
Inc. v. Triumph Learning LLC, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See also
San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683,
Opposition No. 91204456
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196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants 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 Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ
335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975). Since the goods at issue are banking and financial services, the average
customer includes ordinary consumers, depositors and bank account holders.47
All of Opposer’s pleaded registrations include the term INTRUST. All but two of
the registrations identify “banking services.” If confusion is likely between NTRUST
and INTRUST with respect to banking services, there is no need for us to consider
the likelihood of confusion with Opposer’s other registrations that incorporate the
term INTRUST. On the other hand, if there is no likelihood of confusion between
Applicant’s mark and the mark INTRUST, then there would be no likelihood of
confusion with Opposer’s other INTRUST marks. See, e.g., In re Max Capital Group

47 Ms. Elliott testified that there are no limitations of the types of persons that can be
Opposer’s customers, nor is there an education requirement. 37 TTABVUE 63. Mr.
MacGregor described Applicant’s intended customers as being in two categories of a
remittance transaction: the sender who is “younger, they are more comfortable with sharing
financial information and transacting financially online,” ages 20 to 34, 37 TTABVUE 151-2,
and the receiver, who is “a little bit older, typically less technically savvy, may not be
technically connected, may be--more likely to be unbanked.” 37 TTABVUE 151. Given this
characterization, we find that the relevant purchasing class includes unsophisticated as well
as sophisticated consumers. We must base our decision “on the least sophisticated potential
purchasers” at issue. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1163 (Fed. Cir. 2014).

Opposition No. 91204456
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Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). Accordingly, we have focused our
likelihood of confusion analysis under Section 2(d) on Opposer’s mark INTRUST, the
subject of Reg. No. 1802917.
The marks NTRUST and INTRUST are similar in appearance and pronunciation,
given that the only difference between them is the presence of the initial letter “I” in
Opposer’s mark. This slight difference does not obviate the overall similarities in the
appearance of the marks. Although Mr. MacGregor testified that Applicant always
depicts its mark with a lower-case initial “n” and a capitalized letter “T,”48 the
application is for the mark in standard character form, which may be depicted in any
font style, color or size. Trademark Rule 2.52(a), 37 CFR § 2.52(a); see also Citigroup
Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed.
Cir. 2011). Moreover, given the common pronunciation of the letter “N” as \’en\,49
Applicant’s mark will likely be pronounced as “entrust,” which is highly similar in
sound to Opposer’s mark INTRUST. As for their respective connotations, both parties’
marks convey a similar sense of stability, safety, and security and that customers can
trust the company.50 Despite their single-letter difference, we find that the marks are

48 37 TTABVUE 141.
49 According to merriam-webster.com, the letter “N” in English is pronounced “\’en\.” The
Board may take judicial notice of dictionary definitions, including definitions or entries from
references that are the electronic equivalent of a print reference work. See University of Notre
Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Petroglyph Games, Inc., 91 USPQ2d 1332,
1334 n.1 (TTAB 2009).
50 Mr. MacGregor testified that “nTrust was my first choice because N, the idea of N was to,
sort of, connote the Internet…and Trust, we knew it was going to be an online service, it was
going to deal with money and it was going to be a new brand so that trust was going to be at
the core of being able to make this a success….” 37 TTABVUE 141. Ms. Elliott also testified
to the similar connotation of Opposer’s mark, stating, for example, that in 2008, the “I Trust
Opposition No. 91204456
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substantially similar in appearance, pronunciation, connotation and overall
commercial impression. See, e.g., In re Great Lakes Canning, Inc., 227 USPQ 483, 485
(TTAB 1985) (CAYNA and CANA create “substantially similar commercial
impressions”); United States Mineral Products Co. v. GAF Corp., 197 USPQ 301, 306
(TTAB 1977) (“‘AFCO’ and ‘CAFCO,’ which differ only as to the letter ‘C’, are
substantially similar in appearance and sound”); In re Bear Brand Hosiery Co., 194
USPQ 444, 445 (TTAB 1977) (KIKS and KIKI similar).
The first DuPont factor strongly favors a finding of likelihood of confusion.
B. Similarity of the Services and Channels of Trade
The second and third DuPont factors assess the similarity or dissimilarity of the
parties’ services and their established, likely-to-continue trade channels. In
comparing the parties’ services, “[t]he issue to be determined . . . is not whether the
[services] of plaintiff and defendant are likely to be confused but rather whether there
is a likelihood that purchasers will be misled into the belief that they emanate from
a common source.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618,
1624 (TTAB 1989). The parties’ services need not be similar or competitive to support
a finding of likelihood of confusion. It is sufficient that the respective services are
related in some manner, or that the conditions surrounding their marketing are such
that they would be encountered by the same purchasers under circumstances that
could, in light of the similarity of the marks, give rise to the mistaken belief that they

Intrust Campaign” was intended to “remind[] the community that…their money is safe at
Intrust and they can trust us.” 37 TTABVUE 74.
Opposition No. 91204456
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originate from or are associated with the same source. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
Applicant’s services are described in its application as:
Financial services conducted via electronic
communications networks, namely, electronic funds
transfer; bill payment services; cashless purchasing
services for merchants and consumers whereby purchase
monies are held in trust and sent to merchants upon sales
to consumers; stored value card services; electronic money
issuance and transfer services; direct deposit of funds into
customer bank accounts (Class 36);
Providing financial fraud protection and prevention (Class
45).
Opposer’s registration for the INTRUST mark is for “banking services.” Applicant
argues that while Opposer is a bank, Applicant is a money services business (“MSB”)
and is decidedly not a bank. Applicant argues that both companies are regulated by
the federal government, and that federal regulations draw a distinction between the
two types of entities. In support of this distinction, Applicant points out that Section
§ 1010.100 of Title 31 of the Code of Federal Regulations defines “bank” as, inter alia,
a commercial bank, a private bank, a savings and loan association, a savings bank,
and “any other organization (except a money services business) charted under the
banking laws of any state….”51 Subsection 1010.100(ff) defines a “money services
business” as a dealer in foreign exchange, a check casher, a person that issues or sells
traveler’s checks or money orders, a provider or seller of prepaid access programs,

51 31 CFR § 1010.100(d); see also 30 TTABVUE 15, Exhibit F-3.
Opposition No. 91204456
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and the U.S. Postal Service. Specifically excluded from the definition of a “money
services business” is a “bank or foreign bank.””52
Given this regulatory framework, Applicant argues that Opposer’s INTRUST
registration for “banking services” does not include the type of person-to-person53
money transfer services that Applicant provides. However, we find little in the
evidence to support Applicant’s contention that “banking services” are so narrow in
scope as to exclude person-to-person transactions, and that the Board should “limit
‘banking services’ to only those services uniquely permitted by a bank charter or
license.”54 The Merriam-Webster online dictionary defines “banking” simply as “the
business of operating a bank,”55 and the record does not show that a bank may not
offer MSB services. In response to the question, “What’s your definition of a banking
service?” Ms. Elliott replied, “Anything that relates to a customer’s money and how
it’s handled, whether they’re borrowing money, depositing money, moving their
money electronically, earning interest on their money, investing it.”56 We find the
scope of “banking services” to comport with Ms. Elliott’s interpretation.
Moreover, it has not been shown that consumers are aware of how a bank or an
MSB may be classified under federal code by the Department of the Treasury. It has

52 31 CFR § 1010.100(ff)(8), see also Exhibit F-3.
53 Applicant’s counsel summarized, during Ms. Elliott’s deposition, the definition of “person-
to-person” as a service “that gives an individual the capability to send funds to another
individual using some common identifier such as an e-mail address, mobile phone number,
or social media account.” 37 TTABVUE 114.
54 Applicant’s brief, 41 TTABVUE 21.
55 At www.merriam-webster.com/dictionary/banking.
56 37 TTABVUE 98, Exhibit 1B.
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been shown, however, that Opposer and Applicant engage in related and often
overlapping services. For example, both parties offer bill payment services. Mr.
MacGregor testified that a user of Applicant’s bill payment services could “log in to
your nTrust cloud, and you’d be able to select bill payment as an option, and you
would select your payee from a list of utilities or what have you, and then the funds
would be taken from your cloud and sent to and settled to your utilities provider.”57
Opposer’s account holders can also pay their utility bills online using their checking
accounts.58 In describing Opposer’s personal online banking services, Ms. Elliott
explained that customers can “log in online securely and access the information on
all of their bank accounts with Intrust, including credit cards, loans, and deposit
accounts. They can see their balances, view transactions, transfer funds, order
checks, make payments, set up alerts, [and] pay bills.”59 Mr. Morrison also stated that
Opposer’s online banking services include “bill pay capabilities.”60
Applicant’s recited services also include “electronic funds transfer.” Mr.
MacGregor identified this as a “cloud-to-cloud transfer” service, whereby “funds
mov[e] from one individual’s cloud to the other or from their cloud to a merchant’s

57 37 TTABVUE 148.
58 37 TTABVUE 77, 95, Exhibit 31; 37 TTABVUE 128, Exhibit 123.
59 37 TTABVUE 80, Exhibit 14.
60 37 TTABVUE 176. Mr. Morrison explained, “The bill pay product has an opportunity for
customers to receive their bills electronically via our Intrust online banking product. So, for
example, I have a credit card bill from American Express, and instead of me receiving that
bill in the mail, I’ve used our bill pay product to have that American Express bill presented
to me via Intrust online banking.” 37 TTABVUE 183, Exhibit 53.
Opposition No. 91204456
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cloud.”61 Opposer also offers “external transfer services” whereby “customers
can…transfer money from their account at Intrust Bank to another account that they
have ownership in at another institution.”62 Mr. Morrison explained that from a risk
perspective, Opposer encourages those external transfers only between accounts
owned by a single account holder, “[b]ut there is no control in place that would prevent
me from getting the account information from a friend who banks at Bank of America
and using that external transfer product transferring from my Intrust account that I
own to the account my friend owns at Bank of America.”63 Banks have traditionally
offered their customers the ability to move funds electronically from their individual
bank account to another person, or to send funds to a merchant, by initiating wire
transactions both domestically or internationally, and Opposer offers wire transfer
options to its customers.64
Applicant argues that whereas the electronic funds transfer options provided by
banks require that the sender be a bank customer, MSBs such as Applicant are
designed to handle money transfer transactions for customers that do not necessarily
have a bank account. As Mr. MacGregor stated, “Western Union is probably the
prototypical example.”65 We find the distinction unpersuasive. Applicant does permit
both senders and receivers to be “unbanked”; however, they must each be subscribers

61 37 TTABVUE 148.
62 37 TTABVUE 59, Exhibit 1A.
63 37 TTABVUE 200.
64 37 TTABVUE 186-7.
65 37 TTABVUE 144. Other examples are PayPal, ZashPay, and Popmoney. Id.
Opposition No. 91204456
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to Applicant’s cloud services, which utilizes banks as a repository. That is, an
individual who establishes a cloud account through Applicant’s services may upload
funds directly from his or her bank account into the cloud account,66 and at the
receiving end, the funds can be “withdrawn to your bank account.”67 In this scenario,
the customers are using both Applicant’s and their bank’s account(s) in a
complementary fashion.68 Customers doing so would engage the services of a bank
and an MSB.
Notably, the evidence suggests that some banks are already in the business of
providing person-to-person transfer services to their customers. For example, BBVA
Compass Bancshares, Inc. advertises an online banking option known as “Pay
People.” It “allows you to send money to or receive money from anyone in the United
States via email or text. … Pay People provides a large person to person payment
network through Popmoney that includes 1,400 U.S. financial institutions.”69 U.S.
Bank advertises “Pay A Person” as an “easy way for you to send money electronically

66 37 TTABVUE 142. Mr. MacGregor noted that Applicant has completed “integration” with
most of the Canadian banks, so “you can long into your online banking system and select us
as a payee.” 37 TTABVUE 145.
67 37 TTABVUE 145. “You can, of course, have it withdrawn to your bank account, you can
go and pick up the cash. We’ve done an integration with a Philippines partner where you can
go and just pick up cash. … [Y]ou can go pick up cash, you can also load your nTrust prepaid
card, and once the money is on the card, you can either go and buy things with it or you can
withdraw cash through an ATM network, a local ATM network.”
68 See, e.g., at www.ntrust.com: “nTrust…today announced new withdrawal options for
nTrust members who bank with Bank of the Philippines Islands.” 17 TTABVUE 14, Exhibit
A-7.
69 At http://www.bbvacompass.com, 18 TTABVUE 66, Exhibit C-2.
Opposition No. 91204456
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from your U.S. Bank account to anyone who has a bank account in the United
States.”70 JPMorgan Chase & Co. advertises:
With Chase Person-to-Person QuickPay, you can send
money to nearly anyone using their email address or
mobile number. As long as both of you have a U.S. bank
account and at least one of you has a Chase checking
account, you’ll be able to send or receive money.71
Ms. Elliott testified that Opposer was planning to offer person-to-person payment
services to its customers through FIS and a program called PeoplePay.72 Opposer had
an expected 2014 launch date for such services but is still in negotiation with FIS.73
That banks are offering person-to-person services and that Opposer has been
negotiating for a person-to-person program further tends to validate Opposer’s
position that banks can offer electronic funds transfer options. The fact that at
present, banks apparently require that at least one user of their person-to-person
services have an account with that bank does not lessen the potential for overlap with
Applicant’s services.
Applicant’s recited services also include “stored value card services.” Mr.
MacGregor described Applicant’s “stored value card services” as “a reloadable prepaid
card that would be loadable from the cloud and usable either as a means of
withdrawing cash through ATM network or to purchase goods directly.”74 Opposer

70 At https://www.usbank.com, 18 TTABVUE 72, Exhibit C-5.
71 At https://www.chase.com, 18 TTABVUE 68, Exhibit C-3.
72 37 TTABVUE 114.
73 37 TTABVUE 115.
74 37 TTABVUE 149.
Opposition No. 91204456
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also offers a prepaid gift card.75 Also in Class 36, Applicant’s services include “direct
deposit of funds into customer bank accounts.” Mr. MacGregor explained that “if you
had funds in your cloud and you wanted the money but not on a card or to buy
something, you would need the ability to withdraw it into your bank account.”76 A
similar service is provided by Opposer to its customers as part of its payroll services;
an employee of a participating company can have his or her wages deposited through
direct deposit of funds into his or her bank account. The employee can have a payroll
card that is “reloaded every month or every pay period by our corporate customers.”77
Turning to Applicant’s class 45 services, “providing financial fraud protection and
prevention,” Mr. MacGregor states that Applicant provides “notifications, for
example, that if there is activity that you hadn’t anticipated in your cloud, a large
transaction that you may not have authorized, you want to be alerted by us, an email
or something like that, and then there is all of the things that are happening below
the surface.”78 Opposer also maintains a fraud center that provides customers “access
to alerts and the tips and recommendations, and educational information.”79 Using
an “alerting module,” customers receive a text or email based on transactional
activity.80 “We also list fraud alerts and give them the instructions on how to report

75 37 TTABVUE 53, Exhibit 70.
76 37 TTABVUE 149-150.
77 37 TTABVUE 217.
78 37 TTABVUE 150.
79 37 TTABVUE 124-5, Exhibit 29.
80 37 TTABVUE 187.
Opposition No. 91204456
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fraud or suspicious activity on their accounts.”81 The parties’ fraud protection and
prevention services are highly related, if not virtually identical.
To summarize, despite its designation as an MSB, Applicant provides services
that banks typically provide, and many of the services that Opposer offers its
customers are also provided by Applicant. The evidence also suggests that banks have
been entering the emerging online and mobile banking arena, and that the field of
person-to-person money transfer options is expanding to include banks.
Opposer’s “banking services” are unrestricted, and we therefore must presume
that they move in all channels of trade normal for those services and are available to
all potential classes of ordinary consumers. See Coach Servs., 101 USPQ2d at 1722.
Ms. Elliott identified Opposer’s customers as individuals, including high school
students, blue collar workers, and professionals, as well as businesses.82 “A business
is an entity who would own an account or a product at the bank.”83 Opposer has an
online presence through its www.intrustbankarena.com and www.intrustbank.com
websites. Similarly, Applicant’s customers include individuals ranging from 20 to 34
years in age, and “micro-merchants, small neighborhood merchants who typically
don’t accept credit cards.84 Applicant conducts all its business online.85 Accordingly,
the record shows that the parties’ trade channels and intended customers overlap.

81 37 TTABVUE 79.
82 37 TTABVUE 63.
83 37 TTABVUE 64.
84 37 TTABVUE 152.
85 37 TTABVUE 146.
Opposition No. 91204456
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The second and third DuPont factors strongly support a finding of likely confusion.
C. Strength of Opposer’s Mark; Third-Party Use of Similar Marks
Opposer’s mark INTRUST has been in use since 1993 in association with banking
services. The mark has enjoyed commercial success, particularly in the three states
where Opposer has physical locations: Kansas, Oklahoma, and Arkansas.86 Opposer
has spent significant amounts on advertising and business promotion87 and has
purchased the primary naming rights to the 15,000-seat “Intrust Bank Arena,”
viewable from U.S. Highway 54 in Wichita, Kansas.88
Applicant argues that while Opposer’s mark may be known regionally, it lacks
nationwide recognition and is weakened due to a crowded market. In support,
Applicant has submitted copies of twelve active third-party registrations owned by
eight separate entities89 of marks that include, in part, the term “trust.” None of the
marks contain the term INTRUST.
These marks are:
Reg. No. 2778670 for the mark NTRUST for “financial
services in the field of money lending, namely the
processing and disbursement of financial aid funds on

86 37 TTABVUE 110. See Exhibits 8 (advertising expenses), 9 (2008-2012 gross revenue).
87 37 TTABVUE 71-3, Exhibits 7-9.
88 37 TTABVUE 71-7, Exhibit 11.
89 Applicant also submitted copies of cancelled registrations that we have not considered, and
copies of four state registrations and a letter of protest. While we have considered them, state
registrations have little probative value in determining whether the mark at issue is entitled
to registration. See Faultless Starch Co. v. Sales Producers Assocs., Inc., 530 F.2d 1400, 189
USPQ 141, 142 n.2 (CCPA 1976); Red Carpet Corp. v. Johnstown American Enterprises Inc.,
7 USPQ2d 1404, 1406 (TTAB 1988); Allstate Insurance Co. v. DeLibro, 6 USPQ2d 1220, 1223
(TTAB 1988). The letter of protest also is of extremely limited evidentiary value as it has no
bearing on consumer perception of Opposer’s mark.
Opposition No. 91204456
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behalf of educational institutions and their participating
lenders.”
Reg. No. 3851321 for the mark NTRUST for “database
administration for others, namely, database management.”
Reg. No. 2541717 for the mark ENTRUST FINANCIAL for
“financial planning in the nature of individual retirement
plans.”
Reg. No. 3456660 for the mark THE ENTRUST GROUP
and Reg. No. 3772135 for the mark THE ENTRUST
GROUP GREEN IRA for “financial services, namely, third
party management and record keeping of self-directed tax-
deferred or tax-free retirement plans, retirement accounts
and trusts.”
Reg. No. 3666386 for the mark WINTRUST MORTGAGE
for “mortgage lending services” and Reg. No. 4149962 for
the mark WINTRUST COMMERCIAL BANKING for
“commercial lending services”; both marks owned by
Wintrust Financial Corporation.
Reg. No. 3756325 for the mark MNTRUST and Reg. No.
3789538 for the mark for “trust services,
namely, investment and trust company services; financial
management”; both owned by MN Trust (Minnesota
Trust).
Reg. No. 3793094 for the mark ALLIANCE ENTRUST for
“financial advisory and consultancy services; financial
asset management; financial management; financial
portfolio management; financial risk management;
financial services, namely, a total portfolio offering for high
net worth clients consisting of both separate accounts and
mutual funds for equity and fixed income investments;
insurance brokerage.”
Reg. No. 4168374 for the mark MTRUST for services in
classes 35, 36, 42 and 45, including (in Class 36): “providing
infrastructure, system, network and service for payment by
mobile telecommunications devices, namely, providing
secure commercial transactions and payment options using
Opposition No. 91204456
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a mobile device as a payment apparatus; and providing
consumer protection and security in financial transactions,
namely, providing secure commercial transactions and
payment options” and Reg. No. 4268566 for the mark
MTRUST for “distribution of media content and
promotions for mobile and other telecommunications
devices, namely, mobile media services in the nature of
electronic transmission of entertainment media content;
providing telecommunications gateway services for mobile
media content and promotions; providing infrastructure for
payment by mobile telecommunications devices, namely,
providing third party users with access to
telecommunication infrastructure; providing access to
telecommunication networks, namely, providing network
and service for payment by mobile telecommunications
devices”; both registrations owned by Mobile Messenger
Americas Inc.
Even where the record lacks proof of actual third-party use and the extent of third-
party use, third-party registration evidence may show that a term carries a highly
suggestive connotation in the relevant industry and therefore may be considered
somewhat weak. Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice
Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed.
Cir. 2015). Here, Applicant submitted portions of several third-party websites
showing use of marks containing the terms NTRUST, ENTRUST, WINTRUST,
MNTRUST and ALLIANCE ENTRUST.90 In addition, Applicant submitted online
information from Yelp.com about “Intrust Mortgage Services,” a mortgage broker in

90 32 TTABVUE 7-183, Exhibits J-1 and J-7 (Alliance Entrust); Exhibits J-2 and J-3 (Entrust
Administration Inc.); J-4, J-5, and J-8 through J-10 (Entrust Bankcard); J-11 (Entrust
Capital); J-12 (Entrust Financial, LLC); J-13 (Entrust Financial Credit Union); J-14 (Entrust
Group); J-17 (MNTrust); J-18 (Ntrust); J-19 and J-22 (nTrust Financial LLC); J-20 and J-21
(NTrust Wealth Management Charter); J-23 (Wintrust).
Opposition No. 91204456
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Massachusetts,91 and information about “InTrust Global Investments, LLC,” a
financial services consulting and investment banking firm.92 As for Intrust Mortgage
Services, the information is contained in a Yelp listing, and not in the company’s own
website; accordingly, the evidence does not show how (or whether) the company
actually uses its mark. Regarding InTrust Global Investments, LLC, the webpage
shows that the mark is used with a unique compass design and appears in two colors
that differentiates the marks from Opposer’s mark. The evidence also shows that
third parties that incorporate ENTRUST and NTRUST into their marks do so only
in combination with distinguishing words and/or logos. Use of the marks
WINTRUST, MTRUST, and MNTRUST are of virtually no probative value given the
clear differences in the marks (and the use of MN as an abbreviation for Minnesota).
Also, Reg. No. 3851321 for the mark NTRUST for “database administration for
others, namely, database management” is of little probative value because of the
differences in the nature of the services.
We find that Applicant has not shown that Opposer’s marks are weak. Given their
presumed strength, 15 U.S.C. § 1057(b), and Opposer’s showing of continuous use
since 1993, we find, on balance, that the sixth DuPont factor is neutral.

91 32 TTABVUE 22; Exhibit J-6.
92 32 TTABVUE 95-109; Exhibits J-15 and J-16.
Opposition No. 91204456
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D. Actual Confusion
During her testimony deposition, Ms. Canfarelli testified that she received an
email from Geno Reed containing, as an attachment, a graphic design similar to the
one depicted below.93

Ms. Canfarelli forwarded Mr. Reed’s email, including the graphic, to Opposer. She
testified:
Q. Why would you have forwarded a graphic to Ms. Githens in April of 2014?
A. This graphic or a graphic? The name.
Q. What name?
A. The name in the graphic seemed similar.
Q. What name?
A. I'm sorry. nTrust.
Q. Did you forward this graphic to any other clients of yours?
A. No.
…
Q. Did you believe that the image with nTrust with an n may have belonged to
Intrust Bank?
A. Yes.
Q. And why is that?
A. It sounded similar to me, nTrust.94

93 37 TTABVUE 11; Exhibit 131.
94 37 TTABVUE 11.
Opposition No. 91204456
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Evidence of actual confusion, where it exists, is highly probative in a likelihood of
confusion analysis. “A showing of actual confusion would of course be highly
probative, if not conclusive, of a high likelihood of confusion.” In re Majestic Distilling
Co., 65 USPQ2d at 1205. See also Thompson v. Haynes, 305 F.3d 1369, 64 USPQ2d
1650, 1655 (Fed. Cir. 2002); Exxon Corp. v. Texas Motor Exchange, Inc., 628 F.2d 500,
208 USPQ 384, 389 (5th Cir. 1980) (“The best evidence of likelihood of confusion is
provided by evidence of actual confusion”). Even a single instance of actual confusion
is at least “illustrative of a situation showing how and why confusion is likely.”
Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469, 471 (TTAB 1975) (citing Libbey-
Owens-Ford Glass Co. v. Thermoproof Glass Co., 156 USPQ 510, 511 (CCPA 1968)).
Applicant argues that this incident shows at most that an employee of one of
Opposer’s vendors may have been confused, but that it does not evidence confusion
by a customer or potential consumer. However, even evidence of confusion by a vendor
or supplier has some probative value to show that confusion is likely. Given Opposer’s
testimony and evidence regarding a specific instance of actual confusion, this DuPont
factor favors Opposer.
V. Conclusion
In sum, we have found that the parties’ marks are similar in appearance,
pronunciation, connotation and overall commercial impression. The services overlap
in part and are otherwise highly related, moving in the same channels of trade to the
same customers. The record evidence of third-party use of similar marks for similar
goods and the third-party registrations do not show that Opposer’s inherently
distinctive mark has been weakened by a crowded field of marks. There has been an
Opposition No. 91204456
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incidence of actual confusion by one of Opposer’s suppliers. The first, second, third,
and seventh DuPont factors weigh in favor of a likelihood of confusion, while the
remaining factors, including factor six, are neutral. Considering the record as a
whole, we find that Opposer has carried its burden to establish by a preponderance
of the evidence that Applicant’s mark is likely to cause confusion with Opposer’s mark
INTRUST.
In view of our determination, we need not reach Opposer’s claim of dilution
under Trademark Act Section 43(c).
Decision: The opposition is sustained pursuant to Trademark Act Section 2(d).