Robert Kirkman, LLCv.Phillip Theodorou and Steven Theodorou

Trademark Trial and Appeal Board

Mar 4, 2022

91233571 (T.T.A.B. Mar. 4, 2022)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: March 4, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Robert Kirkman, LLC v. Phillip Theodorou and Steve Theodorou _____ Opposition No. 91233571 Opposition No. 91240356 Cancellation No. 92068261 Cancellation No. 920686131 _____ James D. Weinberger and Shelby P. Rokito of Fross Zelnick Lehrman & Zissu, P.C., for Robert Kirkman, LLC. Phillip Theodorou and Steven Theodorou, pro se. _____ 1 In the Board’s June 13, 2017 order in Opposition No. 91233571 (6 TTABVUE), June 7, 2018 orders in Cancellation No. 92068261 (5 TTABVUE) and Cancellation No. 92068613 (4 TTABVUE), and December 21, 2018 order in 91240356 (7 TTABVUE), the Board consolidated these proceedings with Opposition Nos. 91217941, 91217992, 91218267, 91222005, 91222719, 91227277, and 91233806, which all involve the mark THE WALKING DEAD (in standard characters). Because THE WALKING DEAD mark is different than the TWD mark, we will decide those proceedings in a separate decision. However, because the Board identified Opposition No. 91217941 as the parent case in which the parties should file all papers in connection with each proceeding, we refer to the record the parties created in that opposition. When citing to the record, we refer to TTABVUE, the Board’s online docketing system. Specifically, the number preceding TTABVUE corresponds to the docket entry number and any numbers following TTABVUE refer to the page numbers of the docket entry where the cited materials appear. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 2 - Before Bergsman, Wolfson, and Larkin, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Phillip Theodorou and Steve Theodorou (“Defendants”) seek registration on the Principal Register of the mark TWD (in standard characters) for the goods listed below: ● “Candles,” in International Class 4;2 ● “Restaurant services,” in International Class 43;3 and ● “Cups,” in International Class 21.4 Defendants are also the owners of the two registrations listed below for the mark TWD (in standard characters): ● Registration No. 5282733 for “lighters for smokers,” in International Class 34;5 and ● Registration No. 5465402 for “playing cards,” in International Class 28.6 2 Serial No. 87197553 filed October 10, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1(b), based on Applicants’ claim of a bona fide intent to use the mark in commerce. The application is the subject of Opposition No. 91233571. 3 Serial No. 87207831 filed October 18, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1(b), based on Applicants’ claim of a bona fide intent to use the mark in commerce. The application is the subject of Opposition No. 91233571. 4 Serial No. 87201594 filed October 13, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1(b), based on Applicants’ claim of a bona fide intent to use the mark in commerce. The application is the subject of Opposition No. 91240356. 5 Registered September 5, 2017 based on application Serial No. 87203061 filed October 14, 2016. Registration No 5282733 is the subject of Cancellation No. 92068261. 6 Registered May 8, 2018 based on application Serial No. 87203057 filed October 14, 2016. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 3 - Robert Kirkman, LLC (“Plaintiff”) filed Notices of Opposition against the registration of Defendants’ mark and Petitions to Cancel the registrations for Defendants’ mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Plaintiff claimed ownership of Registration No. 5323966 for the mark TWD (in standard characters) for the goods and services listed below: ● “Audio and video recordings featuring fictional dramatic television programming and music; magnets; mousepads,” in International Class 9; ● “Blank journals; posters; stickers,” in International Class 16; ● “Online retail store services featuring audio and video recordings, lighting devices, jewelry, guitars and guitar accessories, books, blank journals, pens, posters, calendars, bags, wallets, luggage tags, animal leashes and collars, pet clothing, busts, statutes, sculptures, figurines, key chains, beverageware, dinnerware, bottle openers, cookie jars, clothing, costumes and costume accessories, games, toys and food,” in International Class 35; and ● “Organizing and arranging exhibitions for entertainment purposes; entertainment services, namely, audio-video and live presentations and panel discussions in the field of television and entertainment; entertainment services, namely, live appearances by actors, actresses and celebrities; entertainment information,” in International Class 41.7 Registration No. 5465402 is the subject of Cancellation No. 92068613. 7 Registered October 31, 2017, based on application Serial No. 87975364 filed September 20, 2016. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 4 - Plaintiff also pleaded common law use of its mark in connection with an array of goods related to its television series. Finally, Plaintiff alleged that Defendants’ mark is likely to cause dilution by blurring pursuant to Section 43(c) of the Trademark Act, 15 U.S.C. § 1125(c). Defendants in their Answers denied the salient allegations in the Notices of Opposition and Petitions for Cancellation. I. Preliminary Issue On December 22, 2020, Defendants filed their pretrial disclosures.8 The purpose of a pretrial disclosure is to inform the other party prior to trial of the identity of trial witnesses and documents, thus avoiding surprise. TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 702.01 (2021). See also Domond v. 37.37, Inc., 113 USPQ2d 1264, 1267 (TTAB 2015) (both parties are required to serve initial disclosures identifying witnesses having discoverable information and to serve pretrial disclosures naming the witnesses expected to testify at trial). A party making a pretrial disclosure is not required to file a copy of such disclosure with the Board, and should not do so. Alerting the Board to a party’s witness list and documents is not a purpose of the pretrial disclosure requirement, as the Board does not preside at the taking of testimony or at a pretrial conference. TBMP § 702.01. Plaintiff also pleaded ownership of Registration Nos. 4443715, 4007681, 4429084, and 4314918 for the mark THE WALKING DEAD (in standard characters). 8 47 TTABVUE 2-7. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 5 - In the same docket entry, Defendants also served a notice of reliance that identified documents as follows: Copies of descriptions and/or photographic evidence of all internet documents and tangible things that Applicants [have] in their possession, custody, or control and may be used to support their claims or defenses.9 Defendants identified Exhibits A-J but did not include any of the referenced documents.10 On May 5, 2021, Defendants refiled the notice of reliance including the referenced Exhibits A-J.11 The documents posted at 54 TTABVUE 16, 18, 23, 27, 28, 33, 37, 38, 45, 49, 50, 53 and 54 are only partially legible. The party who submits evidence must ensure that the evidence is legible. See, e.g., RxD Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1806 n.16 (TTAB 2018) (“Illegible evidence is given no consideration.”), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Weider Publications, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1351-52 (TTAB 2014) (duty of the party making submissions to the Board via ESTTA to ensure that they have been entered into the trial record), appeal dismissed per stipulation, No. 14-1461 (Fed. Cir. Oct. 10, 2014); Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1758 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014) (“Petitioner has a duty to ensure that the evidence it submits is legible.”); Hard Rock Café Licensing Corp. v. Elsea, 9 47 TTABVUE 8. 10 47 TTABVUE 12. 11 54 TTABVUE. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 6 - 48 USPQ2d 1400, 1404 (TTAB 1998) (“It is reasonable to assume that it is opposer’s responsibility to review the documents it submits as evidence to ensure that such submissions meet certain basic requirements, such as that they are legible … ). We consider Defendants’ evidence to the extent it is admissible and we can read it. The documents posted at Exhibit A (54 TTABVUE 15) and Exhibit J (54 TTABVUE 52) are Internet documents that are identified by their access information (URL and date) and they are thus admissible through a notice of reliance pursuant to Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2). The remaining documents are photographs of products with purchase receipts, a photograph of a lottery ticket, a photograph purportedly of an action figure, and a photograph purportedly of a casino slot machine. These documents are not the type of evidence that may be submitted through a notice of reliance and, therefore, we give them no consideration. This is the only evidence Defendants submitted during their testimony period. We will not consider any evidence attached to Defendants’ brief because it is not timely filed. See Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a) (“No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board.”). Exhibits and other evidentiary materials attached to a party’s brief on the case can be given no consideration unless they were properly made of record during the time for taking testimony. See, e.g., Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 71345, at *2 (TTAB 2020) (exhibits attached to brief not considered); Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 7 - Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *2 (TTAB 2019) (inserted screenshots and hypertext link within the text of reply brief, if not previously and properly introduced into the record, not considered). Assuming arguendo that Defendants properly pleaded misuse, misrepresentation, fraud, and deceptive practices as affirmative defenses,12 Applicants bear the burden of proof on these defenses, see, e.g., Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *2 (TTAB 2019), and there is no testimony or evidence to support them. Because there is no evidence to support those defenses and “[party] argument is no substitute for evidence,” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)), the affirmative defenses of misuse, misrepresentation, fraud, and deceptive practices fail. II. The Record The record includes the pleadings, and pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Defendants’ application and registration files. The parties introduced the testimony listed below: A. Plaintiff’s testimony and evidence. 1. Testimony declaration of Stefan Reinhardt, President of Business Operations and Studio Production of AMC Studios, the in-house studio, 12 Defendants’ Brief, pp. 11-15 (60 TTABVUE 12-16). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 8 - production and distribution division of AMC Networks, Inc.;13 2. Testimony declaration of Robert Kirkland, author of THE WALKING DEAD comic book series, Plaintiff’s founder, and Principal of Skybound Entertainment, the exclusive licensee for the commercialization of THE WALKING DEAD intellectual property;14 3. Notice of reliance on a copy of Plaintiff’s pleaded registrations printed from the USPTO Trademark Status and Document Retrieval (TSDR) database showing the current status and title to the registrations;15 4. Notice of reliance on copies of non-pleaded registrations owned by Plaintiff for THE WALKING DEAD and FEAR THE WALKING DEAD trademarks for various goods and services printed from the TSDR database;16 5. Notice of reliance on copies of Plaintiff’s applications to register THE WALKING DEAD and TWD marks printed from the TSDR database;17 13 35 TTABVUE. The Board posted the portions of the Reinhardt declaration designated confidential at 34 TTABVUE. AMC Networks, Inc. owns and operates the AMC cable television channel. AMC Studios is responsible for the creation and production of original programming that appears on the AMC channel, including The Walking Dead television series. Reinhardt Decl. ¶ 1 (35 TTABVUE 2). 14 37 TTABVUE. The Board posted the portions of the Kirkman declaration designated confidential at 36 TTAVUE. 15 38 TTABVUE 13-30 and 47-51. Registration No. 5233966 for the mark TWD is the most relevant pleaded registration. 38 TTABVUE 47-51. The other pleaded registrations are for the mark THE WALKING DEAD. 16 38 TTABVUE 32-46. 17 38 TTABVUE 53-70. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 9 - 6. Notice of reliance on the March 1, 2016 Office Action in application Serial No. 86811872 filed by Max Zeevi for the mark FEAR THE WALKING DEAD;18 7. Notice of reliance on the Board’s July 22, 2020 decision in Opposition No. 91242007 (not a precedent of the Board);19 8. Notice of reliance on copies of news articles from printed publications;20 and 9. Notice of reliance on news articles printed from the Internet.21 B. Defendants’ testimony and evidence. As discussed above, Defendants introduced a notice of reliance on “[c]opies or descriptions and/or photographic evidence of all internet documents and tangible things that Applicant[s] ha[ve] in their [possession], custody, or control and may be used to support their claims or defenses.”22 In light of our above evidentiary ruling, Defendants’ admissible documents are limited to Exhibits A and J. III. Entitlement to a Statutory Cause of Action.23 Entitlement to a statutory cause of action, formerly referred to as “standing” by 18 38 TTABVUE 72-239. 19 38 TTABVUE 241-277. 20 39 TTABVUE. 21 40 TTABVUE. 22 54 TTABVUE. 23 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 1064 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 10 - the Federal Circuit and the Board, is an element of the plaintiff’s case in every inter 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, 142 S. Ct. 82 (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. Plaintiff introduced a copy of its pleaded registration of TWD printed from the TSDR database showing the current status of and title to the registration.24 Accordingly, Plaintiff has established its entitlement to bring an opposition and cancellation based on a Section 2(d) claim that is not wholly without merit. Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *2 (TTAB 2020) (citing Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982)); see also Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 24 38 TTABVUE 13-30. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 11 - 1844 (Fed. Cir. 2000) (opposer’s two prior registrations suffice to establish its direct commercial interest and its standing); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016) (standing established based on pleaded registration made of record). Having proved its entitlement to a statutory cause of action on one ground, Plaintiff has the right to assert any other grounds in an opposition proceeding. See Hole In 1 Drinks, 2020 USPQ2d 10020, at *3; Poly-America, L.P. v. Ill. Tool Works Inc., 124 USPQ2d 1508, 1512 (TTAB 2017) (if petitioner can show standing on the ground of functionality, it can assert any other grounds, including abandonment); Azeka Bldg. Corp. v. Azeka, 122 USPQ2d 1477, 1479 (TTAB 2017) (standing established based on surname claim sufficient to establish standing for any other ground). IV. Priority With respect to the oppositions, because Plaintiff has properly made of record a copy of its pleaded registration, and Defendants have not counterclaimed to cancel it, priority is not an issue as to the mark and the goods and services covered by the registration. 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)). In the cancellation proceedings, however, Plaintiff must prove priority to prevail. See Brewski Beer Co. v. Brewski Bros., Inc., 47 USPQ2d 1281, 1284 (TTAB 1998) (when both parties in a cancellation proceeding own a registration, the petitioner Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 12 - must prove its priority). For purposes of priority, Defendants may rely on the October 14, 2016 filing date (also known as the constructive use date) of the underlying applications that matured into their registrations. Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c). See also J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435, 437 (CCPA 1965). Defendants did not introduce any testimony or evidence of an earlier use date. Accordingly, October 14, 2016 is their priority date. Likewise, Plaintiff may rely on the filing date of the underlying application for its pleaded registration for priority (i.e., September 20, 2016). See Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009); Brewski Beer, 47 USPQ2d at 1284. Accordingly, Plaintiff has priority for the goods and services in its pleaded registration, namely, ● “Audio and video recordings featuring fictional dramatic television programming and music; magnets; mousepads,” in International Class 9; ● “Blank journals; posters; stickers,” in International Class 16; ● “Online retail store services featuring audio and video recordings, lighting devices, jewelry, guitars and guitar accessories, books, blank journals, pens, posters, calendars, bags, wallets, luggage tags, animal leashes and collars, pet clothing, busts, statutes, sculptures, figurines, key chains, beverageware, dinnerware, bottle openers, cookie jars, clothing, costumes and costume accessories, games, toys and food,” in International Class 35; and ● “Organizing and arranging exhibitions for entertainment purposes; entertainment services, namely, audio-video and live presentations and panel Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 13 - discussions in the field of television and entertainment; entertainment services, namely, live appearances by actors, actresses and celebrities; entertainment information,” in International Class 41. Neither Robert Kirkman, nor Stefan Reinhardt, testified as to when Plaintiff or its licensees first used TWD on the array of merchandise Kirkman and Reinhardt testified that Plaintiff and its licensees sell. Accordingly, Plaintiff failed to prove priority as to any of the specific products Messrs. Kirkman and Reinhardt testified that they sell bearing the TWD trademark. We analyze the likelihood of confusion based on the goods and services set forth in Plaintiff’s pleaded registration. 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 Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 14 - circumstances. Any single factor may control a particular case.” Stratus Networks, 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). “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)). A. The strength of Plaintiff’s TWD mark. The fifth DuPont factor enables Plaintiff 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),” while the sixth DuPont factor allows Defendants 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. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 15 - 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)). 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.”). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 16 - 1. The inherent or conceptual strength of TWD mark. Because Plaintiff’s TWD mark was registered on the Principal Register without a claim of acquired distinctiveness, it is entitled to the presumptions accorded to registered marks pursuant to Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b) (i.e., validity of the registered mark and of the registration, Plaintiff’s ownership of the mark, and Plaintiff’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate of registrations). Thus, the TWD mark is inherently distinctive. See Tea Bd. of India, 80 USPQ2d at 1889 (“A mark that is registered on the Principal Register is entitled to all Section 7(b) presumptions including the presumption that the mark is distinctive and moreover, in the absence of a Section 2(f) claim in the registration, that the mark is inherently distinctive for the goods.”). In addition, TWD is the abbreviation of Plaintiff’s THE WALKING DEAD mark. As discussed below, Plaintiff did not establish that its TWD mark is commercially strong and there is little evidence that consumers perceive TWD as an abbreviation for THE WALKING DEAD. Because TWD per se has no meaning when used in connection with Plaintiff’s goods and services, it is entitled to a broad scope of protection. We find that TWD is an inherently or conceptually strong mark. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 17 - 2. The commercial strength of the TWD mark. In the Notices of Opposition and Petitions for Cancellation, Plaintiff alleges that TWD became famous prior to any date upon which Defendants can rely.25 In its brief, Plaintiff spends ten pages recounting the evidence purportedly establishing the fame of what it describes as “THE WALKING DEAD Marks” (i.e., THE WALKING DEAD and TWD), primarily due to the success of THE WALKING DEAD television series.26 Fame, if it exists, plays a dominant role in the likelihood of confusion analysis because famous marks enjoy a broad scope of protection or exclusivity of use. A famous mark has extensive public recognition and renown. Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000); Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). Fame may be measured indirectly by the volume of sales of and advertising expenditures for the goods and services identified by the marks at issue, “the length of time those indicia of commercial awareness have been evident,” widespread critical assessments and through notice by independent sources of the products or services identified by the marks, as well as their general reputation. Bose Corp., 63 USPQ2d at 1305-06 and 1309. Raw numbers alone may be misleading, however, and some context in which to place raw statistics may be necessary, for example, market share 25 Notice of Opposition (91233571) ¶¶ 5 and 17 (1 TTABVUE 7 and 10); Notice of Opposition (91240356) ¶¶ 5 and 19 (1 TTABVUE 8 and 13); Petition for Cancellation (92068261) ¶¶ 5 and 17 (1 TTABVUE 8 and 12); Petition for Cancellation (92068613) ¶¶ 5 and 17 (1 TTABVUE 8 and 12). 26 Plaintiff’s Brief, pp. 10-19 (55 TTABVUE 10-19). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 18 - or sales or advertising figures for comparable types of goods. Id. at 1309. Other contextual evidence probative of the renown of a mark may include the following: ● extent of catalog and direct mail advertising, email blasts, customer calls, and use of social media platforms, such as Twitter, Instagram, Pinterest, and Facebook, identifying the number of followers; ● the number of consumers that Opposer solicits through its advertising throughout the year; ● local, regional, and national radio and television advertising campaigns, free- standing print campaigns, and referrals in national publications; ● unsolicited media attention; and ● product placement in television and in movies. Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690-91 (Fed. Cir. 2018). Because of the extreme deference that we accord a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role that fame plays in the likelihood of confusion analysis, Opposer has the duty to prove the fame of its TWD mark clearly. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1720 (Fed. Cir. 2012), (citing Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007)). Here, the record focuses on the renown of THE WALKING DEAD mark with hardly any evidence referring to TWD per se. For example, Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 19 - ● Reinhardt Exhibit 1 contains representative examples of AMC’s licensed merchandise bearing “THE WALKING DEAD Marks.”27 TWD is a stand-alone mark on a t-shirt and a notebook. TWD is used in connection with THE WALKING DEAD in connection with a webpage advertising action figures and a DVD; ● Neither Robert Kirkman, nor Stefan Reinhardt, breaks out any advertising expenditures that can be attributed to the TWD mark; ● Neither Robert Kirkman, nor Stefan Reinhardt, breaks out any sales or the number of products attributed to the TWD mark; ● Only two media articles refer to TWD, with both essentially using TWD as an internal shorthand for The Walking Dead. ➢ Fortune Magazine website (fortune.com), “7-signs America has gone crazy for ‘The Walking Dead’” (October 11, 2015).28 Robert Kirkman created The Walking Dead (TWD) graphic novel in 2003.29 ➢ Entertainment Weekly magazine website (ew.com), “‘Walking Dead’ ratings: Most-watched finale ever” (March 30, 2015). This cements TWD as the top-rated TV show in the adult demo this season.30 27 Reinhardt Decl. ¶ 15 and Exhibit 1 (35 TTABVUE 7-8 and 47-50). Robert Kirkland did not introduce any examples of merchandise bearing the TWD mark. Kirkland Decl. ¶ 15 and Exhibit 6 (37 TTABVUE 5-6 and 40-66). 28 40 TTABVUE 31-38. 29 Id. at TTABVUE 32. 30 40 TTABVUE 68. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 20 - The evidence fails to show that the TWD mark is commercially strong, let alone famous.31 In sum, TWD is entitled to the scope of protection normally accorded an inherently strong mark. See Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1347 (TTAB 2017). B. The similarity or dissimilarity of the marks. The TWD marks of the parties are identical. The first DuPont factor “‘weighs heavily in favor of a likelihood of confusion.’” In re Embiid, 2021 USPQ2d 577, at *22 31 Our finding that P failed to show that TWD is commercially strong for purposes of Plaintiff’s Section 2(d) claim also precludes Plaintiff’s dilution claim, in which the threshold element is proof that Plaintiff owns a “famous” mark. See Coach Servs., 101 USPQ2d at 1372 (“A threshold question in a federal dilution claim is whether the mark at issue is ‘famous.’”). A mark is famous for dilution if it “is widely recognized by the general consuming public of the United States as a designation of source for the goods or services of the mark’s owner.” 15 U.S.C. § 1125(c)(2)(A). By using the “general consuming public” as the benchmark, the Trademark Act eliminates the possibility of “niche fame,” which some courts had recognized under the previous version of the statute. Coach Servs., 101 USPQ2d at 1372. Fame for likelihood of confusion and fame for dilution are distinct concepts, and dilution fame requires a more stringent showing. See 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARK AND UNFAIR COMPETITION § 24:104 at 24-290 (5th ed. 2021) (“The standard for the kind of ‘fame’ needed to trigger anti-dilution protection is more rigorous and demanding than the ‘fame’ which is sufficient for the classic likelihood of confusion test.”). While fame for dilution “is an either/or proposition” - it either exists or does not - fame for likelihood of confusion is a matter of degree along a continuum.” Palm Bay, 73 USPQ2d at 1694. Accordingly, a mark can acquire “sufficient public recognition and renown to be famous for purposes of likelihood of confusion without meeting the more stringent requirement for dilution fame.” Coach Servs., 101 USPQ2d at 1724 (quoting 7- Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1722 (TTAB 2007). It is well-established that dilution fame is difficult to prove. See Coach Servs., 101 USPQ2d at 1724 (citing Toro Co. v. ToroHead Inc., 61 USPQ2d 1164, 1180 (TTAB 2001) (“Fame for dilution purposes is difficult to prove.”). If Plaintiff cannot prove that its TWD mark is commercially strong for purposes of analyzing likelihood of confusion, a fortiori it cannot prove its TWD mark is famous for dilution purposes. Accordingly, we dismiss the dilution claims in the oppositions and deny the dilution claim in the cancellation proceedings. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 21 - (TTAB 2021) (quoting In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017)). C. The similarity or dissimilarity and nature of the goods and services. Where identical marks are involved, as is the case here, the degree of similarity between the parties’ goods and services that is required to support a finding of likelihood of confusion declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-1689 (Fed. Cir. 1993) (“even when the goods or services are not competitive or intrinsically related, the use of identical marks can lead to the assumption that there is a common source”); In re Thor Tech, Inc. 90 USPQ2d 1634, 1636 (TTAB 1009) (the greater the degree of similarity between the marks, the lesser the degree of similarity between the goods or services is required to support a finding of likelihood of confusion); Time Warner Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); In re Concordia Int’l Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983) (it is only necessary that there be a viable relationship between the goods or services where the parties’ marks are identical). The issue here, of course, is not whether purchasers would confuse the parties’ goods or services, but rather whether there is a likelihood of confusion as to the source of these goods or services. See Recot, 54 USPQ2d at 1898 (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.”); In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB 2018) (“the test is not whether consumers would be likely to confuse these goods, but rather whether they Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 22 - would be likely to be confused as to their source.”); In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). Defendants seek to register TWD for the goods and services listed below: ● “Candles,” in International Class 4; ● “Restaurant services,” in International Class 43; and ● “Cups,” in International Class 21. They have registered TWD for the goods listed below: ● “Lighters for smokers,” in International Class 34; and ● “Playing cards,” in International Class 28. Plaintiff has registered TWD for the goods and services listed below: ● “Audio and video recordings featuring fictional dramatic television programming and music; magnets; mousepads,” in International Class 9; ● “Blank journals; posters; stickers,” in International Class 16; ● “Online retail store services featuring audio and video recordings, lighting devices, jewelry, guitars and guitar accessories, books, blank journals, pens, posters, calendars, bags, wallets, luggage tags, animal leashes and collars, pet clothing, busts, statutes, sculptures, figurines, key chains, beverageware, dinnerware, bottle openers, cookie jars, clothing, costumes and costume accessories, games, toys and food,” in International Class 35; and ● “Organizing and arranging exhibitions for entertainment purposes; entertainment services, namely, audio-video and live presentations and panel Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 23 - discussions in the field of television and entertainment; entertainment services, namely, live appearances by actors, actresses and celebrities; entertainment information,” in International Class 41. Plaintiff argues, without any supporting evidence, that the goods and services for which Defendants have attempted to register or have registered TWD are highly related to Plaintiff’s goods and services.32 In short, there are simply no goods or services that [Defendants] could offer under THE WALKING DEAD Marks that would not be sufficiently related to goods offered by [Plaintiff] or its licensees for this factor [not] to weigh in [Plaintiff’s] favor, given the fame and distinctiveness of THE WALKING DEAD Marks. Indeed, as the USPTO noted in rejecting a third-party’s attempt to register the mark FEAR THE WALKING DEAD: “[I]t is common for providers of television shows and movies to also provide a variety of related goods and memorabilia.” (38 TTABVUE 77 (PX 20)). Likewise, as the Board noted in its decision denying registration of the mark THE TOKING DEAD, “[i]t is common knowledge that famous marks are frequently used on collateral or merchandising products such as clothing, mugs and other consumer goods.” (38 TTABVUE 260 (PX 21).).33 As noted above, argument is no substitute for evidence, and these particular arguments of counsel are unpersuasive for three reasons. First, as discussed above, Plaintiff failed to prove that TWD is a commercially strong mark, let alone a famous one, and on this record, Plaintiff cannot leverage the fame of its mark THE WALKING DEAD to show that the goods and services at issue are sufficiently related for confusion to be likely. 32 Plaintiff’s Brief, p. 31 (55 TTABVUE 33) (Opposition No. 91217941). 33 Id. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 24 - Second, the evidence shows that Plaintiff identifies its comic book and television series as THE WALKING DEAD, not TWD. There is no evidence that Plaintiff identifies its comic book or television series as TWD. In addition, there is insufficient evidence that consumers perceive or associate TWD with the comic book or television services from which we may infer that consumers will associate products bearing TWD as being associated with the well-known THE WALKING DEAD comic book and television series. Finally, Plaintiff failed to introduce any testimony or evidence that the types of goods or services identified in Defendants’ registrations and applications are the types of goods or services that would be seen as affiliated or associated with, sponsored by, or emanating from the same source, as the goods and services identified in Plaintiff’s registrations. See, e.g., Embiid, 2021 USPQ2d 577, at *22 (“Evidence of relatedness may include news articles or evidence from computer databases showing that the relevant goods are used together or used by the same purchasers; advertisements showing that the relevant goods are advertised together or sold by the same manufacturer or dealer; or copies of prior use-based registrations of the same mark for both [Defendants’] goods and the goods listed in [Plaintiff’s’] registration[ ].”) (quoting In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *5 (TTAB 2020)). We find that Plaintiff failed to meet its burden of proving that Defendants’ goods and services are related to Plaintiff’s goods and services, with the exception of Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 25 - Defendants’ “cups” vis-à-vis Plaintiff’s “online retail store services featuring … beverageware.” As a general matter, a service that is identified as featuring the sale of a particular product, and the product itself, are inherently related. See In re H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347, 347-48 (CCPA 1961) (affirming likelihood of confusion when applicant listed catering services and registrant listed smoked and cured meats since “the difference between a service for the catering of food and the actual sale of food is a rather fine legal distinction not likely to be drawn by laymen.”). See also In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988) (furniture is related to general merchandise store services because “applicant’s ‘general merchandise store services’ would include the sale of furniture.”); In re Country Oven, Inc., 2019 USPQ2d 443903, at *5 (TTAB 2019) (“It is a matter of common knowledge that retail bakery shops sell bakery products.”); In re Thomas, 79 USPQ2d 1021, 1023 (TTAB 2006) (jewelry store services and jewelry “are competitive, inherently related goods and services.”); Fortunoff Silver Sales, Inc. v. Norman Press, Inc., 225 USPQ 863, 866 (TTAB 1985) (‘’[P]urchasers of jewelry are apt to assume that a jewelry store bearing the same or a confusingly similar mark as that applied to jewelry must be associated with the same source.”); In re the U.S. Shore Corp., 229 USPQ 707 (TTAB 1985) (uniforms are related to retail women’s clothing store services because “the sale of uniform skirts and dresses, for example, falls plainly within applicant’s description of its services.”). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 26 - “Beverageware,” by its very nature, encompasses “cups,” and accordingly we find that Defendant’s “cups” are related to Plaintiff’s “online retail store services featuring … beverageware.” D. Established, likely-to-continue channels of trade and classes of consumers. “AMC [Plaintiff’s licensee], on its own and through its corporate affiliates and sublicensees, advertises and offers merchandise bearing THE WALKING DEAD Marks for sale over the Internet, including but not limited to at shopthewalkingdead.com and Amazon.com, at comic conventions, and in brick-and- mortar stores, including but not limited to Walmart, Target, Spencer’s, and Hot Topic.”34 In addition, Plaintiff, through other licensees, “advertises and offers merchandise bearing THE WALKING DEAD Marks for sale over the internet and in brick and mortar stores all over the United States, including but not limited to at The Skybound Shop, Amazon.com, Target, Walmart, Barnes & Noble, Bid Bad Toy Store, Entertainment Earth, Midtown Comics, and at comic conventions.”35 Because there are no limitations or restrictions as to channels of trade or classes of purchasers in the description of goods or services of Defendants’ applications and registrations and Plaintiff’s pleaded registration, we presume that the parties’ goods and services move in all channels of trade normal for those goods and services, and that they are available to all classes of purchasers for those goods and services. See 34 Reinhardt Decl. ¶ 17 (35 TTABVUE 8) (Opposition No. 91271941). 35 Kirkman Decl. ¶ 17 (37 TTABVUE 6) (Opposition No. 91271941). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 27 - Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002); CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983). We thus must assume that Defendants’ goods would be offered over the Internet and in brick-and-mortar stores such as Target and Walmart. We must also assume that Defendants’ restaurant patrons would also overlap with Plaintiff’s purchasers. However, the Internet “is a ubiquitous information-transmitting medium.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d. 709, 112 USPQ2d 1750, 1756 (Fed. Cir. 2014). “[V]irtually everything is advertised and sold through the Internet." Parfums De Coeur, Ltd. v. Lazarus, 83 USPQ2d 1012, 1021 (TTAB 2007) “[A]dvertising on the Internet is ubiquitous and proves little, if anything, about the likelihood that consumers will confuse similar marks used on such goods or services.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1088 (Fed. Cir. 2014) (internal quotations omitted). Similarly, just because stores like Walmart, Target and Spencer’s sell a wide variety of products under one roof does not mean consumers will necessarily encounter both types of products in the same shopping trip. Recot, 84 USPQ2d at 1899 (absent evidence that the goods are sold in close proximity, sales of the goods in supermarkets has little probative value); Federated Foods, 192 USPQ at 26 (the mere existence of modern supermarket containing wide variety of products should not foreclose further inquiry into the likelihood of confusion arising from the use of Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 28 - similar marks on any goods so displayed); Vital Pharm. v. Kronholm, 99 USPQ2d 1708, 1712 (“the presence of the parties’ respective goods in the same store does not necessarily lead to the conclusion that confusion would arise.”). We find the established, likely-to-continue channels of trade and classes of consumers is a neutral DuPont factor, with the exception that retail stores selling beverageware likely include those selling “cups,” and thus, with respect to the goods in Serial No. 87201594 (“cups”), this DuPont factor favors Defendants. E. Defendants’ bad faith in adopting the TWD mark. “Bad faith, or intent to confuse, falls under the thirteenth du Pont factor of ‘any other established fact probative of the effect of use.’” L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1890 (TTAB 2008). Testimony or evidence that Defendants adopted the TWD mark believing it would be associated with Plaintiff is strong evidence of likelihood of confusion. Harley-Davidson Motor Co., Inc. v. Pierce Foods Corp., 231 USPQ 857, 864 (TTAB 1986). When bad faith is proven, the Board may draw an inference that the imitator intended to create confusion. L.C. Licensing, 86 USPQ2d at 1891 (citing Broadway Catering Corp. v. Carla Inc., 215 USPQ 462, 465 (TTAB 1982)). Plaintiff contends Defendants have “a history and pattern of filing intent-to-use applications for a disparate range of products for which [they have] no industry- relevant experience.”36 36 Plaintiff’s Brief, p. 35 (55 TTABVUE 37) (Opposition No. 91217941). Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 29 - [Defendants] here have filed thirteen applications (inclusive of two registrations) for marks identical to [Plaintiff’s] widely-known THE WALKING DEAD Marks for a host of unrelated goods and services, reflecting their bad faith intent to exploit, extort, or otherwise capitalize upon the commercial success of THE WALKING DEAD brand.37 These arguments are unpersuasive for several reasons. First, there is insufficient evidence to find Defendants acted in bad faith. Second, Plaintiff failed to introduce any testimony or evidence that Defendants have “no-industry relevant experience.” Third, because Plaintiff failed to prove that its TWD mark is commercially strong, let alone famous, there is no evidence that Defendants acted in bad faith to trade on the alleged commercial renown of the Plaintiff’s TWD mark when Defendants filed their applications for their TWD mark. Finally, even assuming Defendants were aware of Plaintiff’s use and registration of Plaintiff’s TWD mark, “‘an inference of ‘bad faith’ requires something more than mere knowledge of a prior similar mark.’” Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 2021 USPQ2d 35, at *4 (Fed. Cir. 2021) (quoting Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987)). “‘[T]he only relevant intent is intent to confuse. There is a considerable difference between an intent to copy and an intent to deceive.’” Id. (quoting 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:113)). 37 Id. Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 30 - Plaintiff failed to meet its burden of proving Defendants acted in bad faith when they adopted their TWD marks and filed their applications. F. Conclusion With respect to the TWD mark used in connection with Defendants’ “cups,” because we find the marks are identical; Defendants’ “cups” are inherently related to Plaintiff’s “online retail store services featuring … beverageware”(which term encompasses “cups”); “cups” are offered in the same channels of trade in which “retail store services featuring . . . beverageware” are rendered; and the goods and services are sold to the same classes of consumers, we find Defendants’ TWD mark for “cups” is likely to cause confusion with Plaintiff’s “online retail store services featuring … beverageware.” Accordingly, we sustain Opposition No. 91240356 and refuse to register Serial No. 87201594. With respect to the remaining applications and registrations, although the marks are identical, there is no evidence that the goods and services are related. Because of the lack of evidence regarding the commercial strength of Plaintiff’s TWD mark and the lack of evidence that the parties’ goods and services commonly emanate from the same source, the presumption that the goods and services are offered in overlapping channels of trade to overlapping classes of consumers does not necessarily establish that consumers will perceive Defendants’ goods and services and Plaintiff’s goods and services as emanating from the same source. See Canada Dry Corp. v. Am. Home Prods. Corp., 468 F.2d 207, 175 USPQ 557 (CCPA 1972) (HI-SPOT for detergent is not likely to cause confusion with HI-SPOT for soft drinks despite the fact that both Opposition Nos. 91233571 and 91240356 Cancellation Nos. 92068261 and 92068613 - 31 - products are sold to the general public in supermarkets, groceries and similar outlets and that both products are purchased by housewives in the normal course of shopping); Autac Inc. v. Walco Sys., Inc., 195 USPQ 11, 15 (TTAB 1977) (AUTAC for thermocouple automatic temperature regulators for brushless wire preheaters is not likely to cause confusion with AUTAC for retractile electric cords despite the fact the products are offered in the same channels of trade to the same classes of consumers). We find that Defendants’ mark TWD for the identified goods and services is not likely to cause confusion with Plaintiff’s registered mark TWD for the goods and services listed in its pleaded registration. Decision: We sustain Opposition No. 91240356 and refuse to register Serial No. 87201594. We dismiss Opposition No. 91233571 and deny Cancellation Nos. 92068261 and 92068613.