87816703 (T.T.A.B. Mar. 23, 2020)

Shingak Kang

Trademark Trial and Appeal BoardMar 23, 2020

87816703 (T.T.A.B. Mar. 23, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: March 23, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Shingak Kang _____ Serial No. 87816703 _____ Charles C.H. Wu and Vikram M. Reddy of Charles C.H. Wu & Associates, APC, for Shingak Kang. Cameron McBride, Trademark Examining Attorney, Law Office 106, Mary Sparrow, Managing Attorney. _____ Before Kuhlke, Adlin, and Johnson, Administrative Trademark Judges. Opinion by Johnson, Administrative Trademark Judge: I. Background Shingak Kang (“Applicant”) seeks registration on the Principal Register of the mark ILYS (in standard characters) for: Underpants; ankle socks; anklets; anti-perspirant socks; men’s socks; socks; socks and stockings; thermal socks; woolen socks; lingerie; lingerie accessories, namely, removable silicone breast enhancer pads used in a bra; maternity lingerie; briefs; knitted underwear; ladies’ underwear; thermal underwear; underwear; underwear, Serial No. 87816703 - 2 - namely, boy shorts; women’s underwear; woven or knitted underwear in International Class 25.1 The Trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the goods identified in the application, so resembles the mark ILYSB for “clothing, namely, t-shirts, shirts, long-sleeved shirts, polo shirts, tank tops, crop tops, sweatshirts, hooded shirts, jackets, pants, shorts, hats, shoes, boxer shorts, boxer briefs, and underwear,” in International Class 25,2 as to be likely to cause confusion. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal resumed. We now affirm the refusal to register. II. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake, or to deceive. Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all probative evidence in the record that is relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling Co., 315 F.3d 1 Application Serial No. 87816703 filed on March 1, 2018, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as November 5, 2007. 2 Registration No. 5,441,378, issued April 10, 2018 [hereinafter the “Registered Mark”]. Serial No. 87816703 - 3 - 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor for which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the goods or services. In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); see Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”); In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all [du Pont] 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. Identity of the Goods, Channels of Trade, and Classes of Consumers When analyzing the second DuPont factor on the relatedness of the goods, we look to the identifications in the application and cited registration. Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); see 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 Serial No. 87816703 - 4 - of goods set forth 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 sales of the goods are directed.”). Applicant concedes that the goods associated with ILYS and the Registered Mark are related.3 Indeed, Registrant’s “clothing, namely . . . underwear,” encompasses Applicant’s “underpants . . . lingerie . . . maternity lingerie; briefs; knitted underwear; ladies’ underwear; thermal underwear; underwear; underwear, namely, boy shorts; women’s underwear; woven or knitted underwear.” These goods are legally identical. As a result, we must presume that the channels of trade and classes of purchasers for those goods are also the same. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). The legal identity (in part) of Applicant’s and Registrant’s goods, as well as their overlapping channels of trade and classes of consumers, weighs heavily in favor of finding a likelihood of confusion. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any item encompassed by the identification of goods in a particular class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015). Applicant asserts that “any relatedness of the goods, is not sufficient to conclude a likelihood of confusion.”4 While we must consider all probative evidence relevant to the DuPont factors, where, as here, the goods are in-part identical, the degree of 3 Applicant’s Appeal Brief, 8 TTABVUE 11. 4 Id. Serial No. 87816703 - 5 - similarity between the marks necessary to find a likelihood of confusion declines. Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). B. The Marks Turning to the marks, we must compare them “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting 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), aff’d 777 Fed.Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We may not dissect the marks into their various components. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); see Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (citation omitted) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). 1. Appearance and Sound Applicant’s mark, ILYS, consists of the first four letters of the Registered Mark, ILYSB, which itself consists of only five letters. Both marks appear in standard characters. The marks are nearly identical. Consumers are generally more inclined Serial No. 87816703 - 6 - to focus on the first word, prefix, or syllable in any trademark or service mark. See Palm Bay Imps., 73 USPQ2d at 1692 (finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because “VEUVE . . . remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876, 23 USPQ2d 1698, 1700 (Fed Cir. 1992) (finding similarity between CENTURY 21 and CENTURY LIFE OF AMERICA in part because consumers must first notice the “identical lead word”). Applicant asserts, however, that ILYS and ILYSB “are by no means identical in sound, appearance, connotation, or commercial impression.”5 As to sound, Applicant cites our decision in Centraz Indus., Inc. v. Spartan Chem. Co., Inc., 77 USPQ2d 1698 (TTAB 2006) for the proposition that “dissimilarity in sound is an important factor in comparing the marks, especially where, as here, similarity of services is involved.”6 To be clear, in Centraz Indus., we opined that “[i]nasmuch as the goods may be ordered by phone or recommended by word of mouth, the similarity in sound is an important factor in comparing the marks, especially where, as here, identical products are involved.” 77 USPQ2d at 1701. Here, the goods are clothing items presumed to be purchased in retail stores or online where sound plays a less important role. Moreover, in Centraz Indus. the Board acknowledged that “there is no correct pronunciation of a trademark.” Id. Curiously, Applicant fails to present 5 Applicant’s Appeal Brief, 8 TTABVUE 12. 6 Id. Serial No. 87816703 - 7 - any further arguments or evidence focusing on the pronunciation of ILYS vis-à-vis that of the Registered Mark, ILYSB. In any event, we conclude that the marks would likely be pronounced similarly, given that only one letter is different, and it comes at the end of the Registered Mark. Considering the fallibility of human memory, the “trailing B” at the end of the Registered Mark is not enough to distinguish how the two marks sound. See Salton Inc. v. Cornwall Corp., 477 F.Supp. 975, 205 USPQ 428, 441 (D.N.J. 1979) (“[T]he test [for similarity in spelling and sound] is not a side-by- side comparison, but the consumer’s state of mind when faced with the marks individually. Here the fallibility of human memory must be taken into account.”). Applicant then argues, “[j]ust because the marks contain some letters in common does not render the marks categorically confusing.”7 But here, the four letters “I,” “L,” “Y,” and “S,” which comprise Applicant’s entire mark, ILYS, are also the first four out of five letters of the Registered Mark, ILYSB. Given this exceedingly minor difference, consumers may not perceive it; or consumers could perceive Applicant’s mark, ILYS, as a modified version of the Registered Mark, ILYSB, perhaps to indicate that Applicant’s goods are related to the goods offered by the owner of the Registered Mark. See Nikon, Inc. v. Ikon Corp., 803 F.Supp. 910, 916-17 (S.D.N.Y. 1992), aff’d 987 F.2d 91, 25 USPQ2d 2021 (2d Cir. 1993) (one letter difference between NIKON and IKON for cameras and camera products); In re Total Quality Grp. Inc., 51 7 Id. at 15. In support of this statement, Applicant cites In re J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1987), which found “marks both beginning with the lettering ‘JM’ to not be confusingly similar.” Applicant’s Appeal Brief, 8 TTABVUE 15. To be clear, in J.M. Originals, we actually affirmed the refusal to register based on likelihood of confusion between the applicant’s mark, JM ORIGINALS, and the cited mark, JM COLLECTABLES. 6 USPQ2d at 1395. Serial No. 87816703 - 8 - USPQ2d 1474, 1476 (TTAB 1999) (one letter difference between STRATEGYN and registrant’s mark, STRATEGEN, not enough to prevent confusion for related software products); Nabisco Brands, Inc. v. Kaye, 760 F.Supp. 25, 19 USPQ2d 1465, 1466 (D. Conn. 1991) (finding A.1 and A.2 likely to be confused in part because use of the number “2” -- as opposed to use of the number “1” -- increases the likelihood that consumers will believe that the defendant’s product is simply a product extension); M&T Chems. Inc. v. Stepan Chem. Co., 150 USPQ 570, 571 (TTAB 1966) (BIO-DENT similar to BIOMET in sound and appearance so as to cause confusion or mistake as to origin of chemical compounds). 2. Meaning As to meaning, Applicant asserts that the “trailing B” at the end of the Registered Mark creates a “new word, having new [sic] meaning unrelated to the original word,”8 and “[i]n such an instance, a single letter makes a significant and notable difference”9 in meaning. In his Appeal Brief, Applicant incorporates a chart with six words, purporting to show how the addition of the letter “B” to the end of each of those words changes the meaning of the words.10 While it is creative, Applicant’s chart, without 8 Id. at 13. 9 Id. Applicant also argues that the Registered Mark, ILYSB, would not have registered in light of Reg. No. 5784466 (the mark consists of stylized letters “ILY” in cursive font followed by a period, all enclosed in an incomplete distressed circle with decorative borders and scalloped edges) “if the Examining Attorney’s conclusion that one or two letters were not significant to distinguish the marks” were correct. Id. at 13-14. However, it is well established that each case must be assessed and decided on its own facts and record. In re Nett Designs Inc., 236 F.2d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); see also In re Sunmarks, Inc., 32 USPQ2d 1470, 1472 (TTAB 1994) (Board must make its own findings of fact and not rely on conclusions reached by an examining attorney in another application). 10 8 TTABVUE 13. Serial No. 87816703 - 9 - more, is unpersuasive, because it presents actual words rather than a string of letters and does not deal with the terms at issue in this case. See, e.g., Hercules Inc. v. Nat’l Starch and Chem. Corp., 223 USPQ 1244, 1248 (TTAB 1984) (citation omitted) (trade names not relevant to registrability proceedings when they are not included as part of marks as registered and as presented for registration). In fact, the omission of one letter is often insufficient to distinguish two otherwise similar marks. See Apple Comput. v. TVNET.net, Inc., 90 USPQ2d 1393, 1396-97 (TTAB 2007) (letter “v” is insufficient to distinguish the dominant portions of the parties’ ITUNES and VTUNES marks when they create sufficiently similar overall commercial impressions when used on competitive goods). As the Board has held several times, “marks involving letter combinations are likely to be inherently difficult to remember and, therefore, consumers are more susceptible to confusion or mistake than with word marks.” The B.V.D. Licensing Corp. v. Rodriguez, 83 USPQ2d 1500, 1509 (TTAB 2007) (citing Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) and Alberto Culver Co. v. F.D.C. Wholesale Corp., 16 USPQ2d 1597 (TTAB 1990)). See also Edison Bros. Stores, 230 USPQ 530, 533 (TTAB 1986) (holding that it is “well known that it is more difficult to remember a series of arbitrarily arranged letters than it is to remember figures, syllables, words, or phrases. The difficulty of remembering such lettered marks makes confusion between such marks, when similar, more likely.”) (quoting Crystal Corp. v. Manhattan Chem. Mfg. Co., 74 F.2d 506, 25 USPQ 5, 6 (CCPA 1935)). Here, we also Serial No. 87816703 - 10 - conclude that the “trailing B” in the Registered Mark is insufficient to distinguish ILYS and ILYSB in meaning. 3. Commercial Impression As to commercial impression, Applicant claims that ILYS is an acronym for “I Love Your Style,” and that the “public has been trained to recognize that the acronym ILYS stands for ‘I Love Your Style’ in connection with Applicant’s goods.”11 Applicant then argues that the primary significance of ILYS is “to indicate a seller of undergarments,” whereas the primary significance of the Registered Mark, ILYSB, is to direct attention to the song “I Love You So Bad,”12 and that it would be “highly unlikely” for Registrant’s customers to “be confused by any mark having some, but not all, letters in common.”13 In support, Applicant incorporates screen shots of the specimens for its registered mark, I LOVE YOUR STYLE (the specimens incorporate Applicant’s Mark, ILYS) in its Reply Brief, and claims that the long use of ILYS has made that mark “distinctive in that the public has been trained to recognize the meaning in Applicant’s Mark and distinguish it from others,” emphasizing the 11 Applicant’s Reply Brief, 8 TTABVUE 4. Applicant also owns a registration for I LOVE YOUR STYLE, Reg. No. 4704244. 12 Applicant devotes an entire section of its Appeal Brief to discussing “ornamental function in the cited mark.” 8 TTABVUE 10-11. Again, we note that the Registered Mark, ILYSB, is registered (Reg. No. 5441378); its validity cannot be challenged in an ex parte proceeding. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016) (citation and internal citation omitted). Such arguments may only be considered in the context of a petition to cancel. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997). And, as long as the Registered Mark remains uncanceled, it is treated as valid and entitled to the statutory presumptions of the Trademark Act. Id. Moreover, even if the Registered Mark is used as secondary source for a musical band, the registration is not restricted to a channel of trade or other manner of use, and we must consider all manners of use and channels of trade for the identified goods. 13 Applicant’s Appeal Brief, 8 TTABVUE 11. Serial No. 87816703 - 11 - marketing of Applicant’s goods with the I LOVE YOUR STYLE mark and “the public’s familiarity with abbreviations as used in daily text communications.”14 We are unpersuaded. The mark in the drawing page of the involved application is ILYS, which is the mark we must compare to the mark in the drawing of the Registered Mark. See Denney v. Elizabeth Arden Sales Corp., 263 F.2d 347, 120 USPQ 480, 481 (CCPA 1959) (“In determining the applicant’s right to registration, only the mark as set forth in the application may be considered ….”); Bellbrook Dairies, Inc. v. Hawthorn-Mellody Farms Dairy, Inc., 253 F.2d 431, 117 USPQ 213, 214 (CCPA 1958) (“The fact that each of the parties applies an additional name or trademark to its product is not sufficient to remove the likelihood of confusion. The right to register a trademark must be determined on the basis of what is set forth in the application rather than the manner in which the mark may be actually used.”). Moreover, the mere intention of a party to convey a mark’s derivation is meaningless: In its brief, National suggests that the fact that the two parties intended their marks be recognized as having these different significances is relevant to an evaluation of how the marks actually will be construed in the marketplace. We disagree with this conclusion. It has long been held that in the absence of evidence establishing that purchasers would be aware of the term or terms from which the marks were derived, how the marks came to be adopted is immaterial to the issue whether confusion is likely from their contemporaneous use …. In the case before us there is no direct evidence concerning whether purchasers would be likely to understand the marks’ different derivations. Clearly the mere intention of the parties to convey the marks’ derivation is meaningless. 14 11 TTABVUE 3-4. Serial No. 87816703 - 12 - Hercules, 223 USPQ at 1248 (TTAB 1984) (citations omitted) (emphasis added); see also Aerojet-Gen. Corp. v. Comput. Learning and Sys. Corp., 170 USPQ 358, 362 (TTAB 1971) (“applicant’s mark and the prominent and most significant feature of opposer’s mark, whether spelled ‘CASE’ or ‘C.A.S.E.’, are for purposes herein identical – the fact that both are acronyms derived from different words is of no particular significance (the average person would not be aware of the derivation)”). So while Applicant may sometimes use his I LOVE YOUR STYLE registered mark in combination with his ILYS mark, any registration that would issue from the application for ILYS would not include the words I LOVE YOUR STYLE, and Applicant would not be required to use those words. “[W]e assess the connotation of applicant’s mark from the perspective that consumers will see only that which applicant seeks to register.” B.V.D. Licensing, 83 USPQ2d at 1508; see Blue Cross and Blue Shield Ass’n. v. Harvard Cmty. Health Plan Inc., 17 USPQ2d 1075, 1077 (TTAB 1990) (applicant sought to register THE CURE FOR THE BLUES for health care services, but claimed actual use of the slogan was HARVARD COMMUNITY HEALTH PLAN. THE CURE FOR THE BLUES.). a. Weakness of the ILY element Before concluding, we must address Applicant’s arguments concerning the ILY- formative. Applicant speculates that “any significance that can be attached to the fact that Applicant’s mark and the Registered Mark contain some identical lettering is inconsequential at best due to the widespread use of the ILY lettering.” In support, Applicant introduced evidence from: Serial No. 87816703 - 13 - • Dictionary.com defining the prefix “ILY” as an abbreviation meaning “I love you”;15 • The Trademark Electronic Search System (TESS) showing a list of 29 records of registrations and applications, live and dead, with the ILY-formative as part of a standard character mark;16 • Corporationwiki.com showing what appears to be a search result listing 129 instances where the ILY-formative is used in a business name;17 • Handspeak.com showing the American Sign Language sign for “ILY”;18 and • Partial results of a Google search for “ily,” showing over 43 million results.19 Again, both marks share ILYS, not just ILY. However, Applicant has introduced third party use evidence of ILY-only formatives. On balance, we do not find this evidence persuasive. The Corporationwiki.com listings are not probative because the listings only show business names, the general location of each business, and, to a lesser extent, the name of a corporate officer. No information about the goods or services offered by each business is included. See SBS Prods. Inc. v. Sterling Plastic & Rubber 15 Request for Reconsideration, Exhibit H, 4 TTABVUE 78-81. 16 Id., Exhibit I, at 82-84. Applicant did not include individual records or registration certificates for the marks on the TESS list. 17 Id., Exhibit J, at 85-98. 18 Id., Exhibit L, at102-103. 19 Id., Exhibit K, at 99-101. Serial No. 87816703 - 14 - Prods. Inc., 8 U.S.P.Q.2d 1147, 1151 n.6 (TTAB 1988) (“Moreover, respondent’s reference to the results of a search report showing registration of “SBS” by others is irrelevant since: 1) the registrations are not evidence of use of the marks by the third parties and 2) even if evidence of such third-party use were submitted, it would be of no aid to respondent herein where the third-party usage was for goods unrelated to either petitioner’s skin care products or respondent’s stuffing box sealant.”). The Google search engine results are without context; consequently, they are insufficient to determine the relevance of the search results in this case. In re Aktiengesellschaft, 488 F.3d 960, 82 U.S.P.Q.2d 1828, 1833 (Fed. Cir. 2007) (“Search engine results — which provide little context to discern how a term is actually used on the webpage that can be accessed through the search result link — may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations.”). Accord, In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2062 n.4 (TTAB 2013); In re BetaBatt Inc., 89 USPQ2d 1152, 1153 n.1 (TTAB 2008). As to the TESS search result list, a mere list does not make the registrations of record, and third-party applications have no probative value other than as evidence that the applications were filed. In re Hoefflin, 97 USPQ2d 1174, 1177 (TTAB 2010) (without including goods or services offered under the marks, mere listings of registrations, or copies of private company search reports, are not sufficient to make registrations of record); In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1159 (TTAB 2019) (“[M]ost of the marks Applicant cites are the subject of cancelled registrations, abandoned applications, or pending applications and none of these categories provide Serial No. 87816703 - 15 - probative support for Applicant's argument.”). Furthermore, without any indication of goods or services, the TESS list offered by Applicant is not useful here. In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1405, n.17 (TTAB 2018) (TESS list does not include enough information to be probative when it includes the serial and/or registration number, mark, and live or dead status, but does not include goods or services); see also Edom Labs v. Licher, 102 USPQ2d 1546, 1550 (TTAB 2012) (“We cannot determine from a mere [TESS] listing like this the nature of the goods or services for which these purported marks have been applied-for or registered and many of the marks themselves appear to contain substantial additional matter. The Board does not take judicial notice of registrations or applications residing in the Office, and further, with respect to the applications, they are evidence of nothing more than that they were filed with the USPTO.”). Finally, although Applicant failed to specifically highlight the third party Internet evidence that is most probative of its position, see Max Capital, 93 USPQ2d at 1246 (“it is incumbent on the applicant and the examining attorney to specify in their briefs those pieces of evidence that they believe are most persuasive of their respective positions, so that the Board can consider that evidence in particular”), we have reviewed Applicant’s third party Internet evidence anyway, and we find it unpersuasive. The overwhelming majority of the evidence is submitted without context generally, so we cannot conclude that there is widespread use of the ILY- formative, and in particular, the evidence shows no relationship to the type of goods Serial No. 87816703 - 16 - claimed in the application for ILYS. Therefore, we do not find this ILY-formative third party evidence probative of any weakness of the shared formative, ILYS. III. Conclusion After considering all of the evidence of record as it pertains to the relevant DuPont factors, even if not specifically discussed herein, we find that confusion is likely because the marks are highly similar, the goods are legally identical, the channels of trade are presumed to be identical, and the classes of consumers are presumed to overlap. Decision: The refusal to register Applicant’s mark, ILYS, is affirmed.