Meomi Design, Inc.v.Know Yourself, PBC

Trademark Trial and Appeal Board

Jan 28, 2022

91246554 (T.T.A.B. Jan. 28, 2022)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: January 28, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Meomi Design, Inc. v. Know Yourself, PBC _____ Opposition No. 91246554 _____ Laura Popp-Rosenberg of Fross Zelnick Lehrman & Zissu, P.C., for Meomi Design, Inc. Jefferson F. Scher and Benjamin Ashurov of Carr & Ferrell LLP, for Know Yourself, PBC. _____ Before Bergsman, Shaw, and Lynch, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Know Yourself, PBC (“Applicant”) seeks registration on the Principal Register of the mark ORGANAUTS (in standard characters) for the goods listed below: Comic books; books in the fields of anatomy, physiology, and health; children’s books; educational books featuring anatomy, physiology, natural science, paleontology, and coding; science fiction books in the field of fantasy and adventure, in International Class 16; T-shirts; sweatshirts; hooded sweatshirts, in International Class 25; and Opposition No. 91246554 - 2 - Collectible toy figures; action figures; play sets for action figures and collectible toy figures, in International Class 28.1 Meomi Design, Inc. (“Opposer”) filed a Notice of Opposition against the registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles Opposer’s two registered marks OCTONAUTS, in standard characters,2 and OCTONAUTS and design, reproduced below,3 both for, inter alia, the goods and services listed below: Albums for stickers; Appliques in the form of decals; Baby books; Blank note cards; Book covers; Book markers; Children’s books; Children’s interactive educational books; Coloring books; Decals; Educational publications, namely, educational learning cards, flash cards, activity cards, workbooks, textbooks, activity books, story books, puzzle books, printed puzzles, teacher guides, manuals, posters and educational booklets in the field of children's entertainment and education; Flash cards; Holiday cards; Magazines featuring children’s entertainment and education; Painting sets for children; Paper and cardboard; Paper party decorations; Paper party favors; Photographs; Picture books; Postcards and greeting cards; Posters; Printed instructional, educational, and teaching materials in the field of children’s entertainment and education; Stationery; Stickers; Trading cards, in International Class 16; Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms; Cloth bibs; Footwear; Headwear; Jogging suits; Masquerade costumes and masks sold in connection therewith; Pajamas; Pants; 1 Serial No. 87840736 was filed on March 19, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. 2 Registration No. 4004226 registered August 2, 2011; renewed. 3 Registration No. 3992326 registered July 12, 2011; Section 8 declaration accepted; Combined Section 8 and 9 declaration filed July 9, 2021. Opposition No. 91246554 - 3 - Rainwear; Scarves; Shirts; Shorts; Sleepwear; Sweat shirts; T-shirts; Tank-tops, in International Class 25; and Arcade-type electronic education video games; Balloons; Bathtub toys; Board games; Card games; Christmas tree ornaments and decorations; Dolls; Electronic action toys; Flying discs; Hand-powered non-mechanical flying toy; Infant toys; Inflatable bath toys; Inflatable toys; Jigsaw and manipulative puzzles; Mechanical action toys; Memory games; Model cars; Modeled plastic toy figurines; Party favors in the nature of small toys; Party games; Playing card cases; Plush toys; Remote control toys, namely, vehicles and figures; Rubber character toys; Sandbox toys; Toy action figures; Toy animals and accessories therefor; Toy construction sets; Toy vehicles; Water squirting toys, in International Class 28. The description of the mark reads as follows: The mark consists of a stylized image of an octopus appearing in white in an orange circle with the word “OCTONAUTS” appearing in blue immediately below, surrounded by blue and white. The color(s) blue, orange and white is/are claimed as a feature of the mark. Applicant, in its Answer, denies the salient allegations in the Notice of Opposition. Citations to the record and briefs refer to TTABVUE, the Board’s online docket system. See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, *2 n.1 (TTAB 2020). Opposition No. 91246554 - 4 - I. Preliminary issue Both parties filed numerous objections.4 Because an opposition proceeding is akin to a bench trial, the Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, taking into account the imperfections surrounding the admissibility of such testimony and evidence. As necessary and appropriate, we will point out any limitations in the evidence or otherwise note that we cannot rely on the evidence in the manner sought. We have considered all of the testimony and evidence introduced into the record. In doing so, we have kept in mind the various objections the parties have raised and we have accorded whatever probative value the subject testimony and evidence merit. See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 1017), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017); U.S. Playing Card Co. v. Harbro, LLC, 81 USPQ2d 1537, 1540 (TTAB 2006). See also Poly- America, L.P. v. Ill. Tool Works Inc., 124 USPQ2d 1508, 1510 (TTAB 2017) (where the objections refer to probative value rather than admissibility and the evidence that is subject to the objections is not outcome determinative, “we choose not to make specific rulings on each and every objection”). 4 Opposer’s statement of objections to Applicant’s proffered evidence (41 TTABVUE); Applicant’s evidentiary objections, Applicant’s Brief, Appendix A (44 TTABVUE 56). Opposition No. 91246554 - 5 - 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 file. The parties introduced the testimony and evidence listed below: A. Opposer’s testimony and evidence 1. Notice of reliance on news articles posted on the Internet purportedly referring to Opposer’s marks OCTONAUTS;5 2. Notice of reliance on excerpts from websites purportedly to show that the parties’ goods and services are related;6 3. Notice of reliance on Applicant’s responses to Opposer’s interrogatory Nos. 7-9;7 4. Notice of reliance on Applicant’s supplemental Responses to Opposer’s interrogatory Nos. 10-11;8 5. Testimony declaration of Amy Koudelka, Senior Vice President, Product Development and Brands of Silvergate Media Inc.;9 6. Rebuttal testimony declaration of Amy Koudelka.10 5 25 TTABVUE 7-66. 6 25 TTABVUE 68-115. 7 26 TTABVUE 5-22. 8 26 TTABVUE 24-35. 9 28 TTABVUE. The Board posted the portions of the Koudelka testimony declaration designated confidential at 27 TTABVUE. “Silvergate acquired from Opposer Meomi Design, Inc., owner of the OCTONAUTS marks, the exclusive right to exploit the OCTONAUTS trademarks and brand in the United States (and elsewhere) in connection with certain media, products and services.” Koudelka Decl. ¶ 1 (28 TTABVUE 2). 10 38 TTABVUE. Opposition No. 91246554 - 6 - B. Applicant’s testimony and evidence 1. Notice of reliance on copies of registered marks with “naut- formative” suffixes;11 2. Notice of reliance on excerpts of third-party websites advertising books, toys, or clothing under marks with “naut-formative” suffixes;12 3. Notice of reliance on dictionary definitions for the “naut” suffix and the word “organ”;13 4. Notice of reliance on excerpts from Opposer’s website;14 5. Notice of reliance of Opposer’s Facebook page;15 6. Notice of reliance on third-party websites regarding toy safety;16 7. Testimony declaration of Tim Howes, Applicant’s Chief Executive Officer;17 and 8. Notice of reliance on Opposer’s responses to Applicant’s interrogatories.18 III. Entitlement to a Statutory Cause of Action19 Entitlement to a statutory cause of action, formerly referred to as “standing” by the Federal Circuit and the Board, is an element of the plaintiff’s case in every inter 11 31 TTABVUE 13-122. 12 31 TTABVUE 124-320 and 32 TTABVUE 4-255. 13 32 TTABVUE 256-96. 14 32 TTABVUE 298-99 and 33 TTABVUE 3-9. 15 33 TTABVUE 11-13. 16 33 TTABVUE 36-65. 17 34 TTABVUE. 18 35 TTABVUE. 19 Even though we now refer to standing as entitlement to a statutory cause of action, our prior decisions and those of the Federal Circuit interpreting “standing” under §§ 1063 and Opposition No. 91246554 - 7 - partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2671 (2021); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020), reh’g en banc denied 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020), cert. denied, __ S. Ct. __, 2021 WL 4507693 (2021); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief in damage proximately caused by the registration of the mark. Corcamore, 2020 USPQ2d 11277 at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982); Spanishtown Enters., 2020 USPQ2d 11388, at *1. Opposer introduced copies of its pleaded registrations printed from the USPTO Trademark Status and Document Retrieval system showing the current status of and title to the registrations.20 Because Opposer has properly introduced into evidence copies of its pleaded registrations showing the status and title thereof, Opposer has established its entitlement to a Section 2(d)-based opposition that is not without merit. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (opposer’s two prior registrations suffice to establish its direct commercial 1064 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). 20 Koudelka Testimony Decl. Exhibits 14 and 15 (29 TTABVUE 593-604). Opposition No. 91246554 - 8 - interest and its standing); Primrose Ret. Cmtys., 122 USPQ2d at 1032 (standing established based on pleaded registration made of record). IV. Priority Because Opposer has properly made of record copies of its pleaded registrations, and Applicant has not counterclaimed to cancel them, priority is not an issue as to the mark and the goods covered by the registrations. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d. 1400, 182 USPQ 108, 110 (CCPA 1974)). V. Likelihood of Confusion 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 the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, referred to as “DuPont factors”), 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) and DuPont, 177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances. Any single factor may control a particular case.” Stratus Networks, Opposition No. 91246554 - 9 - Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, at *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1533). “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). “Two key factors in every Section 2(d) case are the first two factors regarding the similarity or dissimilarity of the marks and the goods or services, because 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.’” In re Embiid, 2021 USPQ2d 577, at *10 (TTAB 2021) (quoting Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)); In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004). 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)). We focus our likelihood of confusion analysis on Registration No. 4004226 for the mark OCTONAUTS in standard characters because the design element in Registration No. 3992326 for the mark OCTONAUTS and design arguably contains additional points of difference with Applicant’s mark, and the registrations identify the same goods. If confusion is likely between Applicant’s mark and the standard character mark, there is no need for us to consider the likelihood of confusion with Opposition No. 91246554 - 10 - Opposer’s pleaded mark with design element; the standard character mark is sufficient for us to sustain the opposition. Conversely, if we find there is no likelihood of confusion between Applicant’s mark and Opposer’s pleaded mark in standard characters, then there would be no likelihood of confusion with the mark with design elements. See, e.g., 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). A. The similarity or dissimilarity and nature of the goods. Applicant is seeking to register its mark for, inter alia, ● Books in the fields of anatomy, physiology, and health; children’s books, in International Class 16; ● T-shirts and sweatshirts, in International Class 25; and ● Action figures, in International Class 28. The description of goods in the pleaded registration include the following: ● Children’s books and children’s interactive educational books, in International Class 16; ● Sweat shirts and t-shirts, in International Class 25; and ● Toy action figures, in International Class 28. These goods are in part identical. Under this DuPont factor, the Opposer need not prove, and we need not find, similarity as to each product listed in the description of goods. It is sufficient for our likelihood of confusion analysis that we find any item encompassed by the Opposition No. 91246554 - 11 - identification of goods in a particular class in the application related to goods in Opposer’s pleaded registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); Gen. Mills Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014). Applicant contends that the goods are different. For its arguments and evidence relating to the alleged similarity between the parties’ recitations of goods and service, Opposer relies solely on the recitations of goods and services contained in the parties’ respective registrations and application. Opposer offers no extrinsic evidence purporting to demonstrate any relationship between Applicant’s particular services and Opposer’s particular services. The record does not support Opposer’s argument. Moreover, the record shows the parties’ actual goods and services are quite different. (Internal citation omitted).21 Contrary to Applicant’s arguments, Opposer properly relied on the parties’ descriptions of goods to prove the goods are related. When we analyze the similarity or dissimilarity and nature of the goods, we must consider the goods as the parties describe them in the application and registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 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 21 Applicant’s Brief, p. 45 (44 TTABVUE 46). Opposition No. 91246554 - 12 - 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”). We may not consider extrinsic evidence as Applicant would have us do. 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). Therefore, we cannot countenance Applicant’s attempt to show that Opposer’s actual usage is narrower than the statement of goods in the registration. See generally Stone Lion Capital Partners, 110 USPQ2d at 1162; Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846. Because goods in each class of the application are in part identical to Registrant’s, this DuPont factor weighs in favor of finding a likelihood of confusion as to all classes in the application. B. Established, likely-to-continue channels of trade and classes of consumers. Because the goods described in the application and Opposer’s pleaded registration are in part identical, we presume that the channels of trade and classes of purchasers of such goods also 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 v. Diamond Hong, Inc., 901 F.3d Opposition No. 91246554 - 13 - 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (“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 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); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018), aff’d mem. (No. 18-2236) (Fed. Cir. September 13, 2019) (“Because the services described in the application and the cited registration are identical, we presume that the channels of trade and classes of purchasers are the same.”). Applicant contends, “[t]here is no evidence Opposer’s goods are sold, marketed, or promoted at independent book stores or trade shows like those used by Applicant.”22 However, this contention is unavailing because, as noted above, we may not resort to extrinsic evidence to restrict Applicant’s or Opposer’s channels of trade or classes of consumers. See Canadian Imperial Bank of Commerce, 1 USPQ2d at 1815 (citing CBS, Inc. v. Morrow, 218 USPQ at 199); In re FCA US LLC, 126 USPQ2d 1214, 1217 n.18 (TTAB 2018) (“[W]e may consider any such [trade channel] restrictions only if they are included in the identification of goods or services”). Cf. In re Bercut- Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods 22 Applicant’s Brief, pp. 49-50 (44 TTABVUE 50-51). Opposition No. 91246554 - 14 - are expensive wines sold to discriminating purchasers must be disregarded given the absence of any such restrictions in the application or registration). Because we presume Opposer and Applicant offer their goods in the same channels of trade to the same classes of consumers, this DuPont factor weighs in favor of finding a likelihood of confusion. C. The strength of Opposer’s OCTONAUTS marks. Opposer contends that its OCTONAUTS marks have both inherent strength and marketplace strength and, therefore, they are entitled to a broad scope of protection.23 The fifth DuPont factor enables Opposer to expand the scope of protection afforded its pleaded mark by adducing evidence of “[t]he fame of the prior mark (sales, advertising, length of use);” the sixth DuPont factor allows Applicant to contract that scope of protection by adducing evidence of “[t]he number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567. Under the fifth factor, likelihood of confusion fame is not “an all-or-nothing measure.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). It “varies along a spectrum from very strong to very weak.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)). 23 Opposer’s Brief, p. 25 (39 TTABVUE 27). Opposition No. 91246554 - 15 - To determine a mark’s place on that spectrum, we consider its inherent strength, based on the nature of the mark itself, and its commercial strength, based on its marketplace recognition. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength.”); Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) (market strength is the extent to which the relevant public recognizes a mark as denoting a single source); 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed. March 2021 update) (“The first enquiry is for conceptual strength and focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). 1. The inherent or conceptual strength of Opposer’s OCTONAUTS mark. THE RANDOM HOUSE LEARNER’S DICTIONARY OF AMERICAN ENGLISH (2021) defines “-naut” as follows: -naut- comes from Greek, where it has the meaning “sailor”; it has become generalized to mean “traveler.” These meanings are found in such words as: ASTRONAUT, COSMONAUT, NAUTICAL, NAUTILUS.24 24 WordReference.com (32 TTABVUE 256). Opposition No. 91246554 - 16 - The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “Octo,” a variant of “Octa,” as “eight.”25 Opposer’s mark OCTONAUTS is made up of a prefix and suffix with recognized meanings to form a new term engendering the commercial impression of eight travelers. While eight travelers identifies Opposer’s characters and may be suggestive of the characters in Opposer’s entertainment services,26 it is an arbitrary term when used in connection with the goods identified in Opposer’s pleaded registrations because it has no meaning in connection with those goods. As such, it is an inherently or conceptually strong mark. See Palm Bay Imps., 73 USPQ2d at 1692 (arbitrary terms are conceptually strong trademarks); Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173, 1180 (Fed. Cir. 2004) (defining an arbitrary mark as a “known word used in an unexpected or uncommon way” and observing that such marks are typically strong); In re Ginc UK Ltd., 90 USPQ2d 1472, 1479 (TTAB 2007) (completely unique and arbitrary, if not coined, nature of mark in relation to goods entitles the registered mark to a broad scope of protection, and significantly increases the likelihood that the marks, when used in connection with the identical goods would cause confusion). 25 Accessed January 24, 2022. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). 26 “The OCTONAUTS brand is based on a team of eight adventurers (mostly anthropomorphic animals) dedicated to exploring the world’s oceans, rescuing aquatic creatures, and protecting their natural habitats.” Koudelka Decl. ¶ 7 (28 TTABVUE 4). Opposition No. 91246554 - 17 - Applicant argues to the contrary. According to Applicant, OCTONAUTS is not a coined or made up term; “it is a compound mark consisting of a combination of the commonly used prefix used to refer to the number 8, OCTO, and the commonly used suffix NAUTS, used to refer to a sailor, traveler, or explorer.”27 Opposer’s OCTONAUTS brand entertainment content focuses on a storyline that involves eight undersea explorers dubbed the “Octonauts.” See e.g., Koudelka Decl., 28 TTABVUE ¶¶ 7 -8 (“The OCTONAUTS brand is based on a team of eight adventurers (mostly anthropomorphic animals) dedicated to exploring the world’s oceans, rescuing aquatic creatures, and protecting their natural habitats.”)); id., Ex. MD4. In view of this relationship between the meaning of OCTONAUTS and the nature of Opposer’s goods and services, it would be incorrect to find that OCTONAUTS is fanciful or arbitrary. TMEP § 1209.01(a) (“Fanciful marks comprise terms that have been invented for the sole purpose of functioning as a trademark or service mark. Such marks comprise words that are either unknown in the language (e.g., PEPSI, KODAK, and EXXON) or are completely out of common usage (e.g., FLIVVER)”). As noted above, Opposer took a standard prefix “Octo” and a standard suffix “nauts” and combined them into a new term OCTONAUTS. Opposer coined the new term OCTONAUTS for the sole purpose of functioning as its trademark. Applicant did not submit any evidence in the nature of a dictionary definitions, third-party use, or third-party registrations for the term OCTONAUTS to show that OCTONAUTS describes a quality, characteristic, purpose or function of Opposer’s books, clothing or toys. 27 Applicant’s Brief, p. 24 (44 TTABVUE 25). Opposition No. 91246554 - 18 - Applicant’s evidence proves that the “Naut-formative” suffix is a weak term, but it did not refer to the “Octo” prefix. To counter Opposer’s claim that its mark is strong, Applicant submitted evidence of many (nearly 100) third- party uses and registrations of NAUT-formative marks for goods and services like toys, books, clothing, and multimedia entertainment or educational products.28 ___ This evidence of third party uses and registrations demonstrates that relevant customers have been exposed to so many different NAUT-formative marks in connection with Opposer’s goods that they likely have become alert to “minute distinctions” among the various marks. Palm Bay Imps, 73 USPQ2d at 1691. A mark with the suffix NAUT or NAUTS used in connection with goods like toys, books, clothing, and multimedia entertainment and educational products therefore should be given a restricted scope of protection, and the OCTONAUTS mark is not entitled to such a broad scope of protection that it is a bar to the registration of any mark comprising in part, the word or suffix NAUT.29 We agree that Applicant’s evidence shows that Opposer’s mark OCTONAUTS is not entitled to such a broad scope of protection that it is a bar to the registration of every mark consisting of a “Naut-formative” suffix. However, the record shows that Opposer is the only user of the mark OCTONAUTS. Thus, Opposer is entitled to prevent the registration of marks “as to which the resemblance to [Opposer’s marks] is striking enough to cause one seeing it to assume that there is some connection, 28 Applicant’s Brief, p. 35 (44 TTABVUE 36) (citing 31 TTABVUE 13-122 (third-party registered marks with a “naut-formative” suffix) and 31 TTABVUE 124-320 and 32 TTABVUE 4-254 (third-party use of marks with a “naut-formative” suffix)). 29 Applicant’s Brief, p. 36 (44 TTABVUE 37). Opposition No. 91246554 - 19 - association, sponsorship between the two.” Anthony’s Pizza & Pasta Int’l, Inc. v. Anthony’s Pizza Holding Co., Inc., 95 USPQ2d 1271, 1278 (TTAB 2009), aff’d, 415 F. Appx. 222 (Fed. Cir. 2010) (quoting Pizza Inn, Inc. v. Russo, 221 USPQ 281, 283 (TTAB 1983)). 2. The commercial strength of Opposer’s OCTONAUTS marks. Opposer introduced the evidence listed below to show that its OCTONAUTS mark is commercially strong: ● Opposer first used the OCTONAUTS mark in the United States when Opposer began publishing a children’s book series in 2006;30 ● Opposer first aired the OCTONAUTS animated television series in the United States in 2012 and it has been available since that time;31 ● There are four seasons of the OCTONAUTS television series available in the United States. The first season consists of 50 episodes, the second season has 22 episodes, the third season has 26 episodes and the fourth season consists of 24 episodes;32 ● The Disney Channel and Disney Junior originally aired the OCTONAUTS television series from 2012 through 2015 and then it moved to Netflix. The OCTONAUTS series, in whole or in part, continues to be available on Netflix, as well 30 Koudelka Decl. ¶ 7 (28 TTABVUE 4). 31 Id. at ¶ 9 (28 TTABVUE 5). 32 Id. at ¶ 11 (28 TTABVUE 5). Opposition No. 91246554 - 20 - as on Apple TV+, Google Play, Amazon Video, YouTube, Leap Frog, Fandango Now, iTunes, and Comcast InDemand, among other platforms;33 ● There are 11 OCTONAUTS double-length to movie-length specials available for viewing in the United States, including “Octonauts and the Great Christmas Rescue,” “Octonauts and the Great Swamp Search,” “Octonauts and the Caves of Sac Actun,” and “Octonauts and the Great Barrier Reef,” a musical;34 ● Consumers may purchase the OCTONAUTS television series and specials in DVD format through retailers such as Amazon, Wal-Mart, Best Buy, Target, and Barnes & Noble;35 ● In 2016, Nielsen rated OCTONAUTS the No. 12 pre-school property in the U.S.;36 ● In 2019, Kids Know Best Research rated OCTONAUTS the No. 7 pre-school property in the U.S.;37 ● In 2016, Opposer produced an OCTONAUTS touring showing in the United States that visited 49 cities in 28 states and Washington, D.C.;38 ● OCTONAUTS has a significant presence on social media. For example, the OCTONAUTS Facebook page has more than 60,000 “likes” and nearly 60,000 followers. The OCTONAUTS Twitter account has over 7,600 followers but 33 Id. at ¶ 12 (28 TTABVUE 5-6). 34 Id. at ¶ 11 (28 TTABVUE 5). 35 Id. at ¶ 13 (28 TTABVUE 6). 36 Id. at ¶ 14 (28 TTABVUE 6). 37 Id. (28 TTABVUE 6). 38 Id. at ¶ 16 and Exhibit 1 (28 TTABVUE 6 and 17). Opposition No. 91246554 - 21 - tweet impressions (that is, the number of people who see our tweets) are much higher - for example, in February 2021, tweet impressions exceeded 50,000. The OCTONAUTS Instagram page has more than 5,000 followers and there are more than 52,000 user posts including #octonauts. Not surprisingly, the OCTONAUTS YouTube channel, which started in 2015, is the most popular of the OCTONAUTS social media platforms, with over 650,000 subscribers.39 ● Over the past ten years, Opposer has generated considerable revenues from the OCTONAUTS brand in the United States.40 Because Opposer designated its sales figures confidential, we refer to them in general terms. While the revenues are considerable, they are not overly impressive because they are not that large in the abstract. Opposer has not presented any context by which we can assess its revenues. ● The OCTONAUTS television series has won a Daytime Emmy Award for Outstanding Writing in a Preschool Animated Program in 2018, an Annie Award for Best Animated Television/Broadcast for Preschool Children also in 2018, and a Parents’ Choice Recommended Award from the Parents’ Choice Foundation in 2014;41 ● The OCTONAUTS television series has won praise from numerous publications including the following:  The New York Times (June 25, 2019);42  The Los Angeles Times (March 17, 2020);43 39 Id. at ¶ 29 (28 TTABVUE 9-10). 40 Id. at ¶ 32 (28 TTABVUE 11). 41 Id. at ¶ 34 (28 TTABVUE 11). 42 Id. at Exhibit 13 (28 TTABVUE 493). 43 Id. (28 TTABVUE 495 and 498). Opposition No. 91246554 - 22 -  Common Sense Media (commonsensemedia.org);44  Today’s Parent (todaysparent.com) (April 16, 2020);45 and  Parade (parade.com) (December 21, 2020).46 ● Other media has labeled the OCTONAUTS television series a hit. For example,  Miami Herald (miamiherald.com) (December 1, 2016) Yes, for the first time, children who love watching “The Octonauts” can see the hit Disney Jr. TV show come to life onstage, when “The Octonauts and the Deep Sea Volcano Adventure” wraps up its first U.S. tour Sunday and the Fillmore Miami Beach at Jackie Gleason Theater.47  Variety (variety.com) (July 2, 2018) Silvergate Media, producer of the global hit children’s series “Octonauts,” has set up shop in China.48 “Octonauts” is a rare example of a recent breakout global children’s hit. Having established itself as a kid favorite in the West, on Disney Channel in the U.S. …, it hit a new level in China.49  WXYZ Detroit (wxyz.com) (August 12, 2016) The Octonauts, a team of undersea adventure heroes from the hit animated children’s television show on Disney Jr., will visit SEA LIFE Michigan in Auburn Hills from August 12 to 21.50 44 Id. (28 TTABVUE 502 and 509). 45 Id. (28 TTABVUE 524 and 525). 46 Id. (28 TTABVUE 528 and 535). 47 25 TTABVUE 7-8. 48 25 TTABVUE 16. 49 25 TTABVUE 17. 50 25 TTABVUE 32. Opposition No. 91246554 - 23 - The evidence shows that the OCTONAUTS animated television series is successful. That success carries over to the books, clothing, and toys as licensed promotional merchandise. We find that Opposer’s OCTONAUTS mark is commercially strong. Owners of marks for successful products frequently expand the use of their marks on other products such as books, clothing and toys. See Miles Labs. Inc. v. Naturally Vitamin Supplements, Inc., 1 USPQ2d 1445, 1451 n.26 (TTAB 1986) (extensions into new product categories of existing brand names are frequently utilized to gain marketing advantages from the goodwill of the established brand); Bridgestone Tire Co. v. Bridgestone Trading Co., 221 USPQ 1012, 1014 (TTAB 1984) (“opposer’s use of the [BRIDGESTONE] mark on tires, bicycles, tennis and golf balls, and on a wide variety of promotional items including clothing, together with the established renown and long use of this arbitrary mark demonstrates that purchasers, upon encountering applicant’s BRIDGESTONE mark on shoes, are likely to mistakenly believe that this is another product produced, sponsored or otherwise associated with opposer.”). We find this situation somewhat analogous to Tuxedo Monopoly, 209 USPQ at 988, where the court held the following: We agree with the board that appellee’s evidence establishes that appellee has built up an enormous goodwill in the mark MONOPOLY, which has been used since 1935 for a board game and that MONOPOLY may properly be termed a “famous” mark. We also find no error in the board’s conclusion that it is a matter of common knowledge that famous marks are frequently used on items such as clothing, glassware, and trash cans and that appellee’s licensing of its mark for use on certain novelty items supports this conclusion. Opposition No. 91246554 - 24 - Likewise, our facts are similar to those in Harley-Davidson Motor Co. v. Pierce Foods Corp., 231 USPQ 857, 863 (TTAB 1986), where the Board found: That the mark HARLEY-HOG used on pork products is likely to be associated as to source with opposer is also corroborated by the fact that opposer’s uses of HARLEY and HOG in relation to its collateral goods frequently have been whimsical in character (e.g., HOG piggy banks, T- shirts bearing the phrase, “I LOVE MY HOG HARLEY,” “the HOG Tales” publication, etc.). Because of these uses, a person having knowledge of them would not be surprised to see HARLEY-HOG used in connection with hot dogs or similar products, and the association with opposer of the mark so used would also be not at all surprising. The likelihood of confusion is further enhanced by the fact that opposer’s line of products has been extended to include such goods as beer, wine coolers and chocolate bars. While these products are different than pork, the fact that beer and hot dogs or pork sausages are frequently consumed together, for example, is significant. Because Opposer’s OCTONAUTS mark is both inherently or conceptually strong and commercially strong, it is entitled to a broad scope of protection although not so broad as to bar the registration of all marks featuring a “naut-formative” suffix. D. 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. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is Opposition No. 91246554 - 25 - 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); “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.” Cai v. Diamond Hong, 127 USPQ2d at 1801 (quoting Coach Servs., 101 USPQ2d at 1721); Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012). We keep in mind that “[s]imilarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 68 USPQ2d at 1062). Finally, the parties’ marks “must be considered … in light of the fallibility of memory ….” St. Helena Hosp., 113 USPQ2d at 1085 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). Opposition No. 91246554 - 26 - Therefore, the focus is on the recollection of the average purchaser, here, purchasers of children’s books, clothing, and toys. Applicant is seeking to register the mark ORGANAUTS and Opposer’s registered mark is OCTONAUTS. The marks are visually similar because they share the same structure: they both begin with the letter “O,” they have the same number of letters and syllables, and they end in the suffix “nauts.” Inasmuch as the products on which the marks are used are children’s books, clothing, and toys, many purchasers are unlikely to notice the differences between the two marks. Likewise, the marks sound similar, although not identical, because of their similar structure consisting of the same first letter, same number of syllables and shared “nauts” suffix. Each mark produces the same lilt and cadence when spoken. Finally, the marks have similar but not identical meanings and engender similar commercial impressions in that they impart an impression of some sort of traveler or explorer. While we recognize that there are differences in the marks at issue, we find that ORGANAUTS is nonetheless similar in appearance and sound to OCTONAUTS because of their similar format and structure. When coupled with the similarity in meaning and commercial impression, the marks are more similar than dissimilar. See Am. Cyanamid Co. v. U.S. Rubber Co., 356 F.2d 1008, 148 USPQ 729, 730 (CCPA 1966) (CYGON is similar to PHYGON given the similarity in sound and spelling considering the close relationship of the goods in use.). Opposition No. 91246554 - 27 - In this regard, consumers are not required to dissect and analyze trademarks to avoid confusion. See Bridgestone Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064, (Fed. Cir. 2012) (“Exact identity is not necessary to generate confusion as to source of similarly-marked products.”); B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 6 USPQ 1719, 1721 (Fed. Cir. 1988) (“The purchasing public, we believe, does not indulge in such recognitional contortions but sees things as they are.”); In re Johnson Prods. Co., Inc., 22 USPQ 539, 540 (TTAB 1983) (“It is undeniable that if the mark is carefully examined, the two overlapping ‘S’s can be discerned. What is more significant, however, is that this sort of studied analysis of the mark is unlikely to occur in the marketplace where these products are sold.”). We disagree with Applicant’s contention that consumers are going to focus on the prefixes OCTO and ORGA to differentiate the marks because they are the first part of the marks.51 While we often consider the first term in a mark to be the feature that will be called for, and so remembered, by consumers, this is not invariably the case. See Stone Lion Capital Partners, 110 USPQ2d at 1161 (“[T]he Board did not err in finding that ‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial impression’ to ‘LION CAPITAL’ and ‘LION.’”); In re Chatam Int’l Inc., 71 USPQ2d at 1946 (“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.”). In this case, each mark 51 Applicant’s Brief, p. 42 (44 TTABVUE 43). Opposition No. 91246554 - 28 - consists of a single term, and consumers are more likely to consider the marks in their entirety rather than to place more emphasis on the first syllable of the terms. This factor thus supports a finding of likelihood of confusion. E. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion. Applicant contends there is no evidence of actual confusion. Applicant’s products have been publicly advertised and sold since at least as early as 2019. Howes Decl., 34 TTABVUE ¶ 20. There is no evidence of any actual confusion that occurred during that time. Accordingly, this factor supports a finding of a likelihood of confusion, or is neutral. Applicant submits that 3 years of coexistence without evidence of actual confusion is sufficiently long to render this factor as supportive of a finding of no likelihood of confusion.52 The absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by the parties of their marks for a significant time in the same markets. 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); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In other words, for the absence of actual confusion to be probative, there must have been a reasonable opportunity for confusion to occur. See 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); Red Carpet Corp. v. Johnstown Am. Enters. Inc., 52 Applicant’s Brief, p. 52 (44 TTABVUE 53). Opposition No. 91246554 - 29 - 7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya Co., Inc. v. N. Am. Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he absence of actual confusion over a reasonable period of time might well suggest that the likelihood of confusion is only a remote possibility with little probability of occurring.”). As noted above, we base our analysis as to the similarity and dissimilarity and nature of the goods and established, likely-to-continue channels of trade, as dictated by precedent from the Federal Circuit, on the identifications as set forth in the application and pleaded registrations. See Stone Lion, 110 USPQ2d at 1162. As such, we may not consider, in assessing these DuPont factors, evidence of how Applicant and Opposer are actually selling their products. Id. The eighth DuPont factor, by contrast - “[t]he 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. Any lengthy absence of actual confusion during a period of known, rather than legally presumed, use in the same channels of trade could be telling. In this regard, we consider all of the evidence of record that may be relevant to the eighth DuPont factor. See New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, at *17 (TTAB 2020) (citing In re Guild Mortg. Co., 2020 USPQ2d 10279, at *6 (TTAB 2020)). Tim Howes, Applicant’s Chief Executive Officer, testified to the following facts: Opposition No. 91246554 - 30 - ● In 2019, Applicant “released” a set of collectible human anatomy learning toys called the “Organauts” designed to teach children about the human body.53 ● “Each learning toy comes with a mini comic book and collector’s guide book.”54 ● “Applicant’s ORGANAUTS branded products are sold primarily through Applicant’s company website, knowyourself.com, which accounts for approximately 90% of Applicant’s total sales of the ORGANAUTS brand of products. Our products have also been promoted and sold at trade shows like the New York Toy Fair and the Dallas Toy Fair, for example.”55 ● “Applicant’s ORGANAUTS brand of products target human anatomy educators and parents looking to use our products for the purpose of educating young children (ages 6-12) about concepts relating to vital organs of the human body.”56 ● “Today, Applicant has an active social media following.”57 Applicant’s Facebook page states Applicant has 16,340 followers.58 53 Howes Decl. ¶ 20 (34 TTABVUE 6). 54 Id. at ¶ 21 (34 TTABVUE 7). 55 Id. at ¶ 24 (34 TTABVUE 8). 56 Id. at ¶ 25 (34 TTABVUE 8). 57 Id. at ¶ 11 (34 TTABVUE 4-5). 58 Id. at Exhibit B (34 TTABVUE 23). The probative value of Internet documents is limited. They can be used to demonstrate what the documents show on their face. However, parties may not use documents obtained through the Internet to demonstrate the truth of what has been printed. See, e.g., Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *2 (TTAB 2019) (unaccompanied by testimony, articles from the Internet may not be considered for the truth of the matters asserted but are admissible for what they show on their face). In this case, while Howes testified that Exhibit B is a true and correct copy of Applicant’s Facebook page, he did not testify that the reported number of follower’s is accurate. Accordingly, the number of followers reported on Applicant’s Facebook page is hearsay and we do not consider it. Opposition No. 91246554 - 31 - Amy Koudelka, Senior Vice President, Product Development and Brands of Silvergate Media Inc., Opposer’s exclusive marketer, testified as follows: ● “The OCTONAUTS brand is based on a team of eight adventurers (mostly anthropomorphic animals) dedicated to exploring the world’s oceans, rescuing aquatic creatures, and protecting their natural habitats. This team, dubbed the ‘Octonauts,’ first made their debut in the imaginative children’s book series by Opposer published in the United States starting in 2006.59 ● “Due to the success of the OCTONAUTS books, in 2010, the Octonauts were brought to life in an animated television series, which then aired in the United States beginning in 2012 and has been available since that time.”60 ● “In the United States, the OCTONAUTS television series originally ran on the Disney Channel and Disney Junior from 2012 through 2015 when it moved to Netflix.”61 ● “In addition to being available digitally for streaming and purchase, the OCTONAUTS series, episodes and specials are available for purchase in DVD formats through various retailers, including Amazon, Wal-Mart, Best Buy, Target, Barnes & Noble and many, many others.”62 ● “Still in publication, those books are: The Octonauts & the Only Lonely Monster (published 2006); The Octonauts & the Sea of Shade (2007); The Octonauts & the 59 Koudelka Decl. ¶ 7 (28 TTABVUE 4). 60 Id. at ¶ 9 (28 TTABVUE 5). 61 Id. at ¶ 12 (28 TTABVUE 5). 62 Id. at ¶ 13 (28 TTABVUE 6). Opposition No. 91246554 - 32 - Frown Fish (2008); The Octonauts & the Great Ghost Reef (2009); The Octonauts Explore the Great Big Ocean (2012); The Octonauts & the Growing Goldfish (2014); and The Octonauts Explore the Great Big Ocean (2018).”63 ● “Starting in 2011, Silvergate partnered with the toy company Fisher-Price on a variety of OCTONAUTS toy products such as figurines, toy vehicles and playsets.”64 ● “OCTONAUTS products (including the DVDs discussed earlier) have been sold throughout the United States in both brick-and-mortar stores and on the Internet through a wide variety of retailers, including through general merchandise retailers (such as Amazon, Target, and Walmart), specialty toy retailers (including both large chains such as Toys R Us and smaller companies), other specialty retailers (such as BestBuy and Barnes & Noble), and warehouse clubs (such as Costco), among many other retailers.”65 ● “OCTONAUTS programming is primarily targeted to children aged 3 through 6, but appeals to a wide range of ages. Much of the OCTONAUTS merchandise is also developed with young children in mind, but of course the target audience is not only the children but also their parents and other caregivers, as well as friends and relatives.”66 ● “Much of the marketing surrounding the OCTONAUTS occurs on the Internet. There are two OCTONAUTS websites at octonauts.com and theoctonauts.com. The 63 Id. at ¶ 18 (28 TTABVUE 7). 64 Id. at ¶ 21 (28 TTABVUE 7). 65 Id. at ¶ 23 (28 TTABVUE 8). 66 Id. at ¶ 24 (28 TTABVUE 8). Opposition No. 91246554 - 33 - octonauts.com website has information about Opposer and the Octonauts crew, has coloring sheets, activity sheets and desktop wallpapers for download, and has links to purchase the books from the original OCTONAUTS series.”67 ● “In addition to websites dedicated to the OCTONAUTS brand and property, the OCTONAUTS brand can be found on all major social media outlets, including Facebook, YouTube, Twitter, and Instagram. (Internal citation omitted). The OCTONAUTS brand has a significant number of followers and views on each platform. For example, the OCTONAUTS Facebook page has more than 60,000 ‘likes’ and nearly 60,000 followers. The OCTONAUTS Twitter account has over 7,600 followers but tweet impressions (that is, the number of people who see our tweets) are much higher - for example, in February 2021, tweet impressions exceeded 50,000. The OCTONAUTS Instagram page has more than 5,000 followers and there are more than 52,000 user posts including #octonauts. Not surprisingly, the OCTONAUTS YouTube channel, which started in 2015, is the most popular of the OCTONAUTS social media platforms, with over 650,000 subscribers.”68 ● Over the past ten years, Opposer has generated considerable, but not overly impressive revenues from the OCTONAUTS brand in the United States.69 For the following reasons, we find that there has not been a reasonable opportunity for confusion to occur: 67 Id. at ¶ 26 (28 TTABVUE 8). 68 Id. at 29 (28 TTABVUE 9-10). 69 Id. at 32 (28 TTABVUE 11). Opposition No. 91246554 - 34 - ● Applicant began using its mark in 2019. Opposer’s rebuttal testimony period closed July 25, 2021. Accordingly, there has been a relatively short period of concurrent use.70 ● Applicant sells primarily through its website and advertises through a modest social media presence. Opposer, on the other hand, sells through brick and mortar outlets, as well as the Internet, and has a substantially larger social media presence than Applicant. Neither party provided any testimony regarding the extent of its advertising expenditures. ● Applicant did not provide any testimony regarding the extent of its sales. ● Applicant did not provide any testimony regarding the number of visitors to its website. ● Neither party testified as to how many consumers have bought their respective products or how many units of product bearing their respective marks have been sold. Because the record does not demonstrate a reasonable opportunity for confusion to have occurred, the lack of any reported instances of actual confusion is a neutral DuPont likelihood of confusion factor. 70 Applicant’s 2019 first use date can be no earlier than December 31, 2019, the last day of the specified period. See Bass Pro Trademarks, L.L.C. v. Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1856 (TTAB 2008); Osage Oil & Transp., Inc. v. Standard Oil Co., 226 USPQ 905, 911 n.22 (TTAB 1985) (evidence established first use in 1968-1969, therefore December 31, 1969 is date of first use); EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 213 USPQ 597, 598 n.5 (TTAB 1982) (documentary evidence showed first use in 1977, the month and day were unknown, therefore, the Board could not presume any date earlier than the last day of the proved period). Opposition No. 91246554 - 35 - F. The conditions under which and purchasers to whom sales are made (i.e., impulse vs. careful, sophisticated purchasing). Applicant contends that because its goods are targeted to children and are also educational, the Board should infer that its purchasers exercise “an elevated level of care.”71 Applicant’s Chief Executive Office, Tim Howes, testified that parents and educators are “very discerning” about the educational products they purchase.72 Even if we accepted the conclusory testimony as accurate, it is unpersuasive because the overlapping identified goods are broadly identified and not limited to educational products. For example, Applicant’s Class 16 goods include comic books and there are no limitations or restrictions with respect to the clothing or toy products. We may not read limitations into the description of goods restricting them to educational purposes. See In re i.am.symbolic, LLC, 123 USPQ2d at 1748; In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read any restrictions or limitations into the registrant’s description of goods.”); Bercut- Vandervoort, 229 USPQ at 764 (evidence that relevant goods are expensive wines sold to discriminating purchasers must be disregarded given the absence of any such restrictions in the application or registration). Therefore, we may not restrict all of Applicant’s products to educational materials purchased by “very discerning” parents and educators. See Stone Lion Capital Partners, 110 USPQ2d at 1163-64 (recognizing 71 Applicant’s Brief, p. 53 (44 TTABVUE 54). Applicant argued that its goods and services are targeted to children and are educational in nature. Id. However, Applicant’s application is limited to the products in Classes 16, 25 and 28; it does not include any services. 72 Howes Decl. ¶ 26 (34 TTABVUE 8). Opposition No. 91246554 - 36 - Board precedent requiring consideration of the “least sophisticated consumer in the class”). Likewise, with the exception of Opposer’s “children’s interactive educational books” and “educational publications,” Opposer’s Class 16, 25 and 28 description of goods are not restricted or limited in any way. We find that this DuPont factor is neutral. G. Conclusion Because the marks are similar, the goods are in part identical, and we presume the parties offer their products in the same channels of trade to the same classes of consumers, we find Applicant’s mark ORGANAUTS is likely to cause confusion with Opposer’s strong registered mark OCTONAUTS. Decision: We sustain the opposition.