Regions Asset Companyv.Regional Acceptance CorporationDownload PDFTrademark Trial and Appeal BoardMay 1, 2009No. 91155302 (T.T.A.B. May. 1, 2009) Copy Citation Hearing: Opinion Mailed: February 3, 2009 May 1, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Regions Asset Company, substituted for Regions Financial Corporation1 v. Regional Acceptance Corporation _____ Opposition No. 91155299 to application Serial No. 76413412 filed on May 29, 2002 Opposition No. 91155302 to application Serial No. 76413402 filed on May 29, 2002 _____ William Pecau of Steptoe & Johnson LLP for opposer Regions Financial Corporation. Alice Carmichael Richey of Kennedy Covington Lobdell & Hickman, LLP for applicant Regional Acceptance Corporation. ______ Before Rogers, Drost and Walsh, Administrative Trademark Judges. Opinion by Rogers, Administrative Trademark Judge: Applicant Regional Acceptance Corporation has applied to register REGIONAL, in typed characters, as well as the 1 In view of the final decision of these cases by this opinion, the previously joined Regions Asset Company is now substituted. See Information Resources Inc. v. X*Press Information Services, 6 USPQ2d 1034 (TTAB 1988), and TBMP § 512.01 (2d ed. Rev. 2004). This Opinion is Not a Precedent of the TTAB Opposition No. 91155299 & 91155302 2 stylized display of that term shown below, as marks on the Principal Register, both for “financial services, namely consumer and installment loans.” Both applications assert August 31, 2000 as the date of first use and first use in commerce, and both applications include a claim of applicant’s ownership of a registration for REGIONAL ACCEPTANCE, in typed form, for the same services as identified in the involved applications.2 The prior registration is based on Section 2(f) of the Trademark Act, but neither of the involved applications is. The Pleadings Opposer Regions Financial Corporation opposes issuance of registrations to applicant, relying on claims of long use of the mark REGIONS, in various forms, and a family of REGIONS marks, for a variety of financial and banking goods and services, including consumer and installment loans. The notice of opposition also claims ownership of twenty-six registrations and four applications for various marks including the term REGIONS. Opposer specifically relies on 2 Registration No. 1992325, issued August 13, 1996, and including a recitation of first use of the mark as of December 31, 1978, and first use of the mark in commerce as of December 31, 1987. The registration has been renewed. Opposition No. 91155299 & 91155302 3 its “separate ‘REGIONS’ marks” and its “famous family of ‘REGIONS’ marks.” Contending that it would be damaged by registration of applicant’s marks and that there is a likelihood of confusion, mistake or deception of “consumers, investors and others,” opposer seeks a ruling refusing registration to applicant of both marks.3 In paragraph 3 of its answer, applicant has admitted opposer’s corresponding allegation of ownership of twenty-six registrations for marks including the term REGIONS. We do not, however, view this as an admission that such registrations are “valid and subsisting,” which is a phrase opposer used in paragraph 4 of its notice of opposition, but not in paragraph 3. In paragraph 4 of its answer, applicant has admitted the opposer’s corresponding allegations relating to a particular registration pleaded by opposer. Thus, applicant has admitted opposer’s allegations that it is the owner of Registration No. 1881600 for the mark REGIONS for “banking services” and that such registration “is valid and subsisting and is prima facie evidence of Opposer’s exclusive right to use said mark in commerce on the goods and services specified in said registration.” Applicant has otherwise denied the remaining allegations of paragraph 4 of the opposition, specifically, 3 Each notice of opposition makes specific reference to each opposed application. Otherwise, the notices are the same. Opposition No. 91155299 & 91155302 4 opposer’s allegation of likelihood of confusion between its alleged family of marks and applicant’s marks. Further, applicant has expressly or effectively denied all other allegations in the notice of opposition.4 The two admissions made by applicant are stated to be made “upon information and belief.” We do not take this qualification to mean that applicant has not actually admitted the corresponding allegations of opposer, for applicant has separately stated in response to a number of opposer’s allegations that “it is without sufficient knowledge or information upon which to form a belief as to the truth of the allegations… and therefore, denies the same.” Accordingly, the answer distinguishes between effective denials because of lack of information, and admissions, albeit on information and belief. Though filed separately, the two oppositions were consolidated by stipulation of the parties during discovery. The stipulated motion to consolidate was accompanied by an unopposed motion for amendment of the notice of opposition. Though filed under a caption that listed only Opposition No. 91155299, we view the amended notice as equally applicable to both oppositions. 4 The answers are the same, but for their specific references to the serial numbers of the involved applications. Opposition No. 91155299 & 91155302 5 Through the amendments to the notice of opposition, opposer amended paragraph three. While the amended paragraph still claims ownership of twenty-six registrations for marks including the term REGIONS, the list differs from that in the original pleading. Paragraph five was amended to expand the statements regarding the geographic extent of opposer’s operations and the extent of its advertising. Amended paragraph six still refers to pending applications for marks including the term REGIONS, but refers to only two, rather than four, such applications.5 Paragraph seven was amended to change the description of certain services offered by opposer. The amended notice of opposition is largely similar to the original notice. Applicant’s answer to the amended notice of opposition includes the same admissions as the original answer and, similarly, expressly or effectively denies all other allegations of the notice. The Record By rule, the record includes applicant’s application files and the pleadings. Trademark Rule 2.122(b), 37 CFR §2.122(b). Opposer did not take testimony during its assigned testimony period, as extended. However, on the closing day of that period, opposer filed a Notice of Reliance, discussed below, and a stipulated extension of its 5 One mark referred to in the original paragraph six now appears among the list of registered marks in paragraph three. The other application appears merely to have been deleted. Opposition No. 91155299 & 91155302 6 testimony period, which stated as the reason therefor that the parties were in the process of drafting joint stipulated facts. Following a number of other extensions, and within opposer’s further extended testimony period, the parties filed not a stipulation of facts but a stipulation (1) “that all documents submitted via a Notice of Reliance in this proceeding are authentic” and (2) “to the submission [in lieu of trial testimony] of the discovery depositions and exhibits of Ronnie Wooten,6 Michael Holley,7 and Erin Tapp8 as testimony in this proceeding.” The parties nonetheless reserved the right to object to the submitted depositions, exhibits and other evidence “on the grounds of competency, relevance, and materiality.” In fact, the referenced discovery depositions had already been filed, under cover of opposer’s above referenced notice of reliance; and that notice of reliance foreshadowed the later-filed stipulation, in that opposer stated that its submission of the discovery depositions of Michael Holley and Erin Tapp, opposer’s witnesses, were so submitted “by agreement of Opposing Counsel.” 6 Corporate Secretary, Senior Vice President and Chief Financial Officer of applicant Regional Acceptance Corporation. 7 Senior Vice President and Director of Indirect Lending for opposer Regions Financial Corporation. 8 Director of Advertising and Creative Services for opposer Regions Financial Corporation. Opposition No. 91155299 & 91155302 7 In addition to the three noted discovery depositions, opposer’s notice of reliance also included (1) a certified copy, showing status and title, of opposer’s pleaded registration no. 1881600 for the mark REGIONS for “banking services” (the ‘600 registration);9 (2) dictionary definitions of “region” as meaning “an administrative area, division, or district; an indefinite area of the world or universe; a broad homogeneous geographical area; a sphere of activity of interest: Field” and of “regional” as meaning “of, relating to, or characteristic of a region; affecting a particular region: Localized” and “something (as a branch of an organization or an edition of a magazine) that serves a region”; and (3) various written discovery requests and responses thereto, including documents. We must now briefly address this last category of evidence. Opposer’s notice of reliance recites that “Opposer submits all Interrogatories propounded by Opposer and Applicant’s Answers thereto and documents supporting the Answers submitted by Applicant in further answer to Opposer’s Interrogatories [exhibit F],” and “all Request for Admissions propounded by Opposer and Applicant’s Answers thereto [exhibit G].” Though not employing exactly the same words, in its brief opposer describes its exhibit F in 9 Issued February 28, 1995, renewed. Title is shown in Regions Asset Company. Opposition No. 91155299 & 91155302 8 substantially the same manner; but it describes its exhibit G as including applicant’s responses to opposer’s interrogatories and applicant’s responses to opposer’s requests for admission. Applicant, in its brief, describes opposer’s exhibit F very differently, specifically, as including “Opposer’s Supplemental Answers to Applicant’s First Set of Interrogatories and Opposer’s Answers to Applicant’s Second Set of Interrogatories”; and describes opposer’s exhibit G in substantially similar, but more specific, terms as those used by opposer in its brief. We are not concerned with opposer’s mere imprecision in identifying discovery responses, for example, by saying in its notice of reliance that applicant’s interrogatory responses were included in exhibit F, but saying in its brief that such interrogatory responses were included in both exhibit F and G (in fact, such responses were only included in exhibit G of opposer’s notice of reliance). We must, however, address opposer’s submission of its own responses and supplemental responses to applicant’s interrogatories as exhibit F (both opposer’s notice of reliance and description of this exhibit in its brief misstate the contents of this exhibit to the notice of reliance). A party generally cannot introduce its responses to an adverse party’s written discovery requests by notice of reliance, except in certain circumstances. See Trademark Opposition No. 91155299 & 91155302 9 Rule 2.120(j)(5). The exception does not apply in this case, and we do not view the parties’ stipulation that documents submitted by notice of reliance are authentic and that discovery depositions may be submitted as trial testimony to allow for opposer’s introduction of its own responses to applicant’s interrogatories. Nonetheless, opposer clearly intended to introduce its own responses to applicant’s discovery requests, as opposer refers to such responses in its final brief on the merits. See, for example, pages 3-5, wherein opposer repeatedly cites to its interrogatory responses as support for statements of fact concerning opposer’s marks and services. Applicant did not object to the notice of reliance when filed or in its brief and, in fact, has treated opposer’s discovery responses as properly of record by including them in its recitation of the record for the case, in applicant’s brief. Accordingly, we have considered opposer’s interrogatory responses. See Racine Industries Inc. v. Bane-Clene Corp., 35 USPQ2d 1832, 1834 n.4 (TTAB 1985) (Letters “not proper subject matter for a notice of reliance… deemed to have been stipulated into the record” when adverse party treated them as part of the record). On the other hand, we have given opposer’s interrogatory responses only limited weight. A party’s response to an interrogatory is not without evidentiary value, but Opposition No. 91155299 & 91155302 10 generally is viewed as “self-serving.” General Electric Co. v. Graham Magnetics Inc., 197 USPQ 690, 692 n.5 (TTAB 1977) citing Grace & Co. v. City of Los Angeles, 278 F.2d 771, 776 (9th Cir. 1960), and Beecham Inc. v. Helene Curtis Industries, Inc., 189 USPQ 647 (TTAB 1976). The trier of fact has discretion to decide what weight to give to an interrogatory response. Fidelity & Deposit Co. of Maryland v. Hudson United Bank, 653 F.2d 766, 777 (3d Cir. 1981); Marcoin, Inc. v. Edwin K. Williams & Co., Inc., 605 F.2d 1325, 1328, 28 Fed.R.Serv.2d 157 (4th Cir. 1979); and Freed v. Erie Lackawanna Railway Co., 445 F.2d 619, 621 (6th Cir. 1971). Applicant also filed a notice of reliance, placing in the record only opposer’s responses or supplemental responses to six of applicant’s interrogatories. In briefing the case, however, applicant was also able to rely on any of the discovery depositions that the parties stipulated into the record, even though they were filed under opposer’s notice of reliance. Opposer obtained extensions of its deadline for filing rebuttal evidence but never filed any such evidence. The parties briefed the case and presented oral argument at a hearing before this panel. Opposition No. 91155299 & 91155302 11 Standing Having put into the record its pleaded ‘600 registration, opposer has established its standing. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).10 Priority Because opposer’s pleaded ‘600 registration is of record, Section 2(d) priority is not an issue in this case as to the REGIONS mark for “banking services.” King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). Although opposer also pleaded ownership of numerous other registrations, there is no evidence of record proving the validity of and opposer’s ownership of other pleaded registrations.11 Further, though opposer pleaded actual priority of use of its registered marks, vis a vis the filing date of applicant’s involved applications, and pleaded that it has a family of marks, the 10 As already noted in our discussion of the pleadings, applicant had admitted opposer’s allegations regarding opposer’s ownership of and the validity of the ‘600 registration. 11 We reiterate that while we view applicant’s admission of paragraph three of the notice of opposition as sufficient to excuse opposer from having to prove its ownership of the registrations listed in that paragraph, we do not view the admission as sufficient to excuse opposer from having to prove that the registrations are valid and subsisting. Opposition No. 91155299 & 91155302 12 record is manifestly insufficient to establish opposer’s prior use of any particular mark pleaded in its notice of opposition, or that its purported family of marks was formed and promoted prior to the filing date of applicant’s involved applications.12 Applicant does not claim priority of use of the marks in its involved applications. It does, however, allude to its use of REGIONAL ACCEPTANCE, since 1978, in conjunction with its argument regarding the asserted absence of actual confusion, and the registration of that mark, for the same services as identified in the involved applications. To be absolutely clear on the point, applicant’s use and registration of that mark cannot be tacked onto the REGIONAL marks in the involved applications. See Van Dyne-Crotty Inc. v. Wear-Guard Corp., 926 F.2d 1156, 17 USPQ2d 1866 (Fed. Cir. 1991) (Previously registered mark “CLOTHES THAT WORK. FOR THE WORK YOU DO.” held not the legal equivalent of later mark “CLOTHES THAT WORK.”), Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629 (TTAB 2007) (ARDENBEAUTY is not the legal equivalent of ARDEN), and American Paging Inc. v. American Mobilphone Inc., 13 USPQ2d 2036 (TTAB 1989), aff’d in unpublished decision [at 17 USPQ2d 1726] (Fed. Cir. 12 Neither of the two witnesses produced by opposer for applicant’s taking of discovery depositions discussed issues relative to the first use of any particular pleaded marks or opposer’s purported family of marks. Opposition No. 91155299 & 91155302 13 1990)(AMERICAN MOBILPHONE and design is not the legal equivalent of AMERICAN MOBILPHONE PAGING and design). In sum, priority is not at issue in these proceedings because of opposer’s proof of its pleaded ‘600 registration. Even if priority were at issue, opposer would have priority based on the filing date of that registration, which is much earlier than both the common filing date of the involved applications, and the common date of first use asserted in each of the applications.13 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 Company, Inc., 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 or services. See Federated Foods, Inc. v. Fort Howard Paper 13 The date of first use asserted in the applications is not evidence of use as of that date, as dates of use listed in an application must be proved by evidence. The Wooten discovery deposition references creation of the stylized version of the REGIONAL mark in 2000, but includes only vague references to applicant’s use of REGIONAL alone. See, e.g., p. 81: Q: What is your understanding of what you gain by registering Regional as a mark that you presently do not have? A: Well, we already had been using it, you know, from an earlier period, as Opposition No. 91155299 & 91155302 14 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 [or services] and differences in the marks”). Identified Services As the discovery depositions of record and the briefs of the parties focus a good deal on the involved services, we begin by considering that du Pont factor. Opposer’s REGIONS mark is registered for “banking services.” That is a broad term which we construe to involve all of the various services typically provided by banks, such as checking accounts, savings accounts, money market accounts and IRA accounts. See Supplemental Schedule “A,” opposer’s supplemental responses to applicant’s first set of interrogatories.14 In addition, the record is clear that opposer provides various lines of credit, including personal lines and lines based on home equity, personal installment loans, automobile loans for new and used cars, loans for boats and other recreational vehicles, construction loans, student loans, and credit cards. See exhibit C4, Holley dep. In addition, opposer is involved in we referred to ourselves as Regional for a long time. So it was just intended to be registered simply for protection. 14 While we stated earlier that opposer’s interrogatory responses are entitled to only limited weight, when considered as evidence on opposer’s behalf, there can be no doubt that these types of accounts are routinely offered by banks. Cf. Maine Savings Bank Opposition No. 91155299 & 91155302 15 indirect lending, i.e., providing to consumers, through dealers of boats and recreational vehicles, the funds necessary to purchase such items under installment contracts, and may engage in indirect lending for automobile purchases in the future. Holley dep., pp. 10, 15, 23-27. We consider all of these services to be encompassed by the identification of “banking services” listed in opposer’s ‘600 registration. The identification in each of applicant’s involved applications is “financial services, namely consumer and installment loans.” We are bound to construe this to include all sorts of consumer and installment loans, whether direct or indirect, for personal use or for purchase of, for example, an automobile, boat or recreational vehicle. Paula Payne Products v. Johnson Publishing 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”). See also Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application v. First Banc Group of Ohio, Inc., 220 USPQ 736, 737 (TTAB 1983) and its reference to “services typically associated with a bank.” Opposition No. 91155299 & 91155302 16 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”). Applicant relies on the fact that its actual services are limited to indirect lending, to consumers with subprime credit, for the purchase of automobiles, and on the fact that opposer does not provide such a service under its REGIONS mark. The argument is unavailing, however, because we must focus on the identifications. Applicant cannot artificially limit either its own identification or that of opposer. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). In addition, “Opposer's rights are not to be tied into its current business practices, which may change at any time. Its rights are as broad as its registration.” See San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 2 (CCPA 1977). Applicant also argues that it is not even licensed to engage in direct consumer lending. Brief, p. 7, citing Wooten dep. This is not, however, a fact of which consumers would be aware. Cf. United States National Bank of Oregon v. Midwest Savings and Loan Association, 194 USPQ 232 (TTAB 1977) (“whether there are any banking regulations precluding affiliation of a commercial bank with a savings and loan association and vice versa is a matter that the Opposition No. 91155299 & 91155302 17 average consumer would be unfamiliar with and, more often than not, it would be a matter he would not concern himself with”). Accordingly, we must consider the services in these cases to be overlapping, as opposer’s “banking services” encompass applicant’s “consumer and installment loans.” Even if we were able to consider the involved services to be limited to, for applicant, indirect loans to subprime purchasers of automobiles, and, for opposer, to various loans except for indirect loans to subprime borrowers of any type, we would still find the services related. The Holley deposition includes discussion of opposer’s lending for automobile purchases (pp. 35-36), indirect lending for boats and recreational vehicles (pp. 10, 18, 24-27), and even of its receipt of applications for financing from subprime borrowers, albeit applications that might eventually be serviced by a related company (pp. 39-40). Under these circumstances, there could easily be opportunities for ultimate borrowers to utilize the actual services of both opposer and applicant. Moreover, because a consumer might purchase both a boat or recreational vehicle, on the one hand, and a car, on the other, all the while utilizing indirect lending from applicant and opposer, the indirect nature of the relationships would contribute to the likelihood of confusion arising if the marks used to identify such indirect loans were similar. Opposition No. 91155299 & 91155302 18 Channels of Trade; Classes of Consumers Neither opposer’s nor applicant’s identification includes any restriction as to channels of trade or classes of consumers. Accordingly, we must consider the channels of trade and classes of customers for the services to include all that would be customary for such services. See, e.g., CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula Payne, supra, 177 USPQ at 77. We therefore must assume that both opposer and applicant can advertise their services through general advertising, direct mail, on the internet, and in any other way that may bring to the attention of a prospective borrower various loans available from each. We also must assume that the involved classes of customers include all general consumers who may be in the market for any of the various types of loans that are encompassed by the involved identifications. Applicant’s focus on automobile dealers, rather than ultimate borrowers, as its class of customers, and on its marketing to such dealers, is therefore irrelevant to our required analysis. Sophistication of Consumers Applicant would prefer our focus on the involved consumers to be limited to automobile dealers as applicant’s Opposition No. 91155299 & 91155302 19 customers and boat and recreational vehicle dealers as opposer’s customers, because these are the customers the parties deal with for their respective indirect lending operations. If we could so limit our focus, we would likely agree that the classes of prospective customers would be somewhat more discriminating than members of the general public. However, as noted, because of the involved identifications we must construe the classes of consumers for the various types of loans encompassed by such identifications to include members of the general public, with varying degrees of sophistication. Moreover, consumers borrowing funds for the purchase of a boat, recreational vehicle, automobile, or for some other purchase may be more concerned and discriminating about the purchase itself, rather than the financing particulars. This would be particularly so when the loans involved are indirect loans and the individual purchaser may not even be aware of prospective financing options until after an agreement has been reached to make a purchase, albeit subject to approval for financing. Applicant, in its brief (pp. 14-16), discusses certain cases that found consumers of banking services and credit cards to be somewhat discerning. Opposer, in its reply brief (pp. 4-5) relies on a contrary decision of the Board and distinguishes one of the cases on which applicant Opposition No. 91155299 & 91155302 20 relies. We do not believe that the comparison made by consumers trying to decide which credit card to apply for is directly analogous to the comparisons being made by prospective borrowers. There may be affinity and reward programs that influence the selection of a credit card, but which have little or no role in the selection of a loan, where a consumer may be focused only on the amount being financed, interest rate, the repayment period and the size of the required installment payment. Further, as opposer notes in its reply brief, the Freedom Card case on which applicant relies noted that “where the buyer class is mixed, the standard of care to be exercised by the reasonably prudent purchaser will be equal to that of the least sophisticated consumer in the class.” Freedom Card Inc. v. JPMorgan Chase & Co., 432 F.2d 463, 77 USPQ2d 1515, 1526 (3d Cir. 2005) (internal citation omitted). We find that while some borrowers may pay much attention to the source of a loan being used for the purchase of boat, recreational vehicle, automobile, or for some other reason, there will certainly be borrowers who will pay less attention and may not note the difference between a REGIONS loan and a REGIONAL loan. Comparing the Marks To determine whether the marks are similar, we must consider the appearance, sound, connotation and commercial Opposition No. 91155299 & 91155302 21 impression of each mark. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). While one of applicant’s REGIONAL marks is set out in stylized form, the stylization is slight, and the REGIONS mark of opposer’s ‘600 registration is registered in typed form. We must, therefore, consider that it could be displayed in actual use in any reasonable form of lettering, including the font used by applicant for its stylized mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847-48 (Fed. Cir. 2000); Squirtco v. Tomy Corp., supra, 216 USPQ at 939. When REGIONS and REGIONAL are set forth in the same or similar forms of display, they will have very similar appearances. Moreover, the first parts of marks are often most likely to be impressed on the minds of consumers and remembered, and therefore many consumers will focus on the common use of the root REGION, and pay less attention to the ending S and AL, respectively. See Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895 (TTAB 1988). As for the sounds of the marks, their pronunciation will not be identical, but will be similar because of the common root term. Applicant argues that the marks have different connotations, but we disagree and find the distinction Opposition No. 91155299 & 91155302 22 between “region,” singular or plural, and “regional” to be slight indeed. Especially given the context, both marks carry the connotation of lending from businesses focused on an area or region, as opposed to a smaller area, such as a town, city or county, or a larger area, such as the nation as a whole. In sum, we find the overall commercial impressions of the marks very similar and the slight differences at the end of each mark will not be sufficient to avoid confusion. See In re BASF Aktiengesellschaft, 189 USPQ 424 (TTAB 1975) (Likelihood of confusion found between registered mark LUTEX for various non-resinous chemicals used in the textile industry and applicant’s LUTEXAL for resinous chemicals used for various but different purposes also in the textile industry). See also, United States Olympic Committee v. Olymp-Herrenwaschefabriken Bezner GmbH & Co., 224 USPQ 497 (TTAB 1984) (likelihood of confusion found between OLYMP for shirts, blouses and collars and OLYMPIC for various items of sports apparel, including warmup uniforms and track shoes), and In re Pellerin Milnor Corporation, 221 USPQ 558 (TTAB 1983) (likelihood of confusion between MILTRON for “microprocessor for controlling and programming the operation of a commercial laundry washing and drying machine and sold as part thereof” and MILLTRONICS (stylized) for Opposition No. 91155299 & 91155302 23 “electronic control devices for automatically regulating or controlling the operation of machinery”). Actual Confusion; Applicant’s Good Faith Adoption Applicant places great reliance on the absence of any evidence of actual confusion. Suffice it to say that while evidence of actual confusion may be some of the best evidence of likelihood of confusion, the converse is not true, as evidence of actual confusion is difficult to obtain. Compare 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”) with Giant Food, Inc. v. Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983) (absence of significant evidence of actual confusion does not mean that there is no likelihood of confusion). See also, Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In addition, because the parties have less overlap in the market in terms of their actual use, there likely have been fewer opportunities for actual confusion to occur. In short, the absence of evidence of actual confusion does not aid applicant or allow us to conclude that there is no likelihood of confusion. Similarly, while evidence of bad faith adoption of a mark suggests a likelihood of confusion, the mere fact that Opposition No. 91155299 & 91155302 24 a mark has been adopted in good faith does not mean that confusion is not likely. See J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991), and Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635, 1640 (TTAB 1988). Strength of Opposer’s Mark; Resolving Doubt Opposer argues that its REGIONS mark is particularly strong and famous, especially because of its consistent and deliberate promotion. Brief, pp. 9-10. However, almost all of the support for this argument is derived from opposer’s responses to applicant’s discovery requests. As we have already noted, we consider opposer’s responses somewhat self-serving and we accord them only limited weight. On the other hand, opposer’s witness has testified that she was not aware of other uses of either REGIONS or REGIONAL by financial institutions. Tapp dep., p. 53. Accordingly, while we do not find the record to support opposer’s claim that its mark is famous, it is entitled to the presumption of distinctiveness that accompanies registration; and on the record presented, we consider the mark to have some strength and recognition in the marketplace. Finally, we resolve doubt in favor of opposer as the prior registrant. Balancing the du Pont Factors; Conclusion We find the involved marks very similar and the involved services to be overlapping. Likewise, the channels Opposition No. 91155299 & 91155302 25 of trade and classes of consumers for the overlapping services are presumed to be the same. Consumers of the involved services likely include a mix of individuals with varying degrees of sophistication. On balance, we find there to be a likelihood of confusion and resolve any doubts on the point in favor of opposer as the prior registrant. Decision: The opposition is sustained as to each of the involved applications and registration to applicant is refused. Copy with citationCopy as parenthetical citation