ABQ, Inc.

Trademark Trial and Appeal Board

Jan 15, 2021

88227891 (T.T.A.B. Jan. 15, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: January 15, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re ABQ, Inc.
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Serial No. 88227891
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Timothy J. Zarley of Zarley Law Firm PLC, for
ABQ, Inc.

Hannah Gilbert, Trademark Examining Attorney, Law Office 121,
Richard White, Managing Attorney.
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Before Bergsman, Wellington and Lebow,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
ABQ, Inc. (“Applicant”) seeks registration on the Principal Register of the
standard character mark RIGHT WAY SALES & LEASING (with a disclaimer of
SALES & LEASING) for automobile dealerships in International Class 35.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of

1 Application Serial No. 88227891, filed on December 13, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s allegation of first use of the mark
anywhere and in commerce on October 1, 2017.
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likelihood of confusion with the registered mark:

(with a disclaimer of AUTOMOTIVE CREDIT) for automobile dealerships in
International Class 35.2
When the refusal was made final, Applicant requested reconsideration and
appealed the refusal. The Examining Attorney denied the reconsideration request
and the appeal is fully briefed.3 We affirm the refusal to register.
Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
We must consider each DuPont factor for which there is evidence and argument. See,

2 Registration No. 4521122, issued April 29, 2014; a Sections 8 and 15 combined declaration
has been accepted and acknowledged by the Office. The colors white, black, and orange are
claimed as features of the mark in the registration.
3 Applicant attached evidentiary materials to its appeal brief (6 TTABVUE 8-37). The same
materials were submitted by Applicant with its response filed on September 12, 2019, and
its request for reconsideration filed on April 29, 2019. The practice of attaching evidentiary
materials to briefs is discouraged; the better practice is for applicants to cite to the electronic
record for any materials that have been timely and properly introduced evidence. Trademark
Rule 2.142(b)(3), 37 C.F.R. § 2.142(b)(3). See MISCELLANEOUS CHANGES TO
TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69968 (Oct. 7,
2016) (“The Office is adding new § 2.142(b)(3) to specify that citation to evidence in briefs
should be to the documents in the electronic application record by date, the name of the paper
under which the evidence was submitted, and the page number in the electronic record. The
amendment is intended to facilitate review of record evidence by the applicant, the examining
attorney, the Board, and the public.”).
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e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir.
2019). In any likelihood of confusion analysis, two key considerations are the
similarities between the goods or services and the similarities between the marks.
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.”).
A. Identity of the Services, Trade Channels, and the Classes of Consumers
The second and third DuPont factors involve the relatedness of the involved
services, their trade channels, and classes of consumers. DuPont, 177 USPQ at 567.
In making our determinations as to these factors, we consider the services as
identified in Applicant’s application and the cited registration. Stone Lion Capital
Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
2014). Here, Applicant’s “automobile dealerships” services are identical to
Registrant’s “automobile dealerships” services. When the respective recitations of
services are identical, without any restrictions as to channels of trade or classes of
purchasers, as is the case here, the services are presumed to travel in the same
channels of trade to the same class of purchasers. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)
(citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983) (“[A]bsent
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restrictions in the application and registration, goods and services are presumed to
travel in the same channels of trade to the same class of purchasers.”).
Accordingly, the DuPont factors regarding the similarity of the services, channels
of trade, and classes of consumers strongly favor a finding of a likelihood of confusion.
B. The Similarity or Dissimilarity of the Marks in Their Entireties in Terms of
Appearance, Sound, Connotation and Commercial Impression.
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s mark and the mark in the cited registration in their entireties, taking
into account their appearance, sound, connotation and commercial impression.
DuPont, 177 USPQ at 567; Stone Lion Capital Partners, 110 USPQ2d at 1160; Palm
Bay Imps. Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). Although marks must be considered in their
entireties, it is settled that one feature of a mark may be more significant than
another, and it is not improper to give more weight to this dominant feature in
determining the similarity of the marks. In re Viterra, 101 USPQ2d 1908; In re Nat’l
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties. Indeed, this type of analysis appears
to be unavoidable.”).
The marks in this case are overall very similar because each mark begins with,
and is dominated by, the same wording, RIGHT WAY or RIGHTWAY. This creates
strong visual and aural similarities between the marks. In addition, as the first part
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of each mark, the wording common to both marks is likely to make a stronger
impression on consumers. See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d
1047, 1049 (Fed. Cir. 2018) (“The identity of the marks’ initial two words is
particularly significant because consumers typically notice those words first.”); Palm
Bay Imps., 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark
VEUVE CLICQUOT because “veuve” is 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, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers will first notice the identical lead word); Presto Prods. Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and remembered”).
The inclusion of a space between the terms in Applicant’s mark, or lack thereof in
Registrant’s mark, is not a distinguishing feature of the marks. See, e.g., Seaguard
Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (“[T]he marks
‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation of law, identical (internal
citation omitted).”).
Moreover, the additional, non-shared terms in the marks are highly descriptive or
generic in the context of automobile dealership services and consumers are thus not
likely to attribute any source-identifying significance to them. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“descriptive
component of a mark may be given little weight in reaching a conclusion on likelihood
of confusion”) (quoting In re Nat’l Data Corp., 224 USPQ 752); In re Dixie Rests. Inc.,
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105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (dominant portion of
THE DELTA CAFÉ and design mark is DELTA as the generic term CAFÉ has been
disclaimed). Specifically, the disclaimed wording SALES & LEASING in Applicant’s
mark will be understood by consumers as merely informative of two types of services
that may be expected from any automobile dealership. Similarly, the disclaimed
wording AUTOMOTIVE CREDIT in Registrant’s stylized mark not only appears in
much smaller lettering below RIGHTWAY, but also merely describes a financing
feature that automobile dealerships routinely provide. In sum, the additional highly
descriptive or generic wording in the marks do very little, if anything, to distinguish
the marks.
Referring to the description of the registered mark, Applicant argues that the
marks are “different in appearance” because the registered mark is stylized and
“limited to a very specific design.”4 However, we point out that Applicant seeks
registration of its mark in a standard character format. In other words, any
registration of Applicant’s mark would not limit protection of the mark to any
particular font style, size, or color and Applicant’s mark may appear therefore in a
stylized lettering similar that used by Registrant. See, e.g., Viterra, 101 USPQ2d at
1908 (holding that the specific font style of a mark cannot serve as the basis to
distinguish it from a mark in standard character form).

4 6 TTABVUE 6.
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Applicant also argues that “perhaps most importantly, the marks have different
meanings.”5 Specifically, Applicant contends that Registrant’s mark “has the
meaning ‘a proper course for placing an amount at a person’s disposal for a self-
propelled vehicle,’” whereas Applicant’s mark “has a meaning of a proper course of
selling and contracting equipment for a specified term and for a specified rent.”6 We
disagree with Applicant’s unsupported contention that consumers will glean such
precise meanings from the marks, which are not apparent from the marks
themselves. Rather, as acknowledged to a certain extent by Applicant, the general
commercial impression conveyed by both marks is that the automobile dealership
services involve things being done properly or “the right way.”
In sum, considering the marks in their entireties, we find them to be similar in
appearance and sound, and very similar in terms of connotation and commercial
impression, based on the presence of the same wording RIGHT WAY or RIGHTWAY
that appears first and is the most distinctive element of both marks. Again, the
differences in the marks are minimal, especially given that all other wording is highly
descriptive or generic in the context of automobile dealership services.
The DuPont factor involving the similarity of the marks favors a finding of a
likelihood of confusion.

5 Id.
6 Id.
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C. Strength of the Registered Mark
Applicant argues that “Applicant’s and Registrant’s marks exist in a crowded field
[and] . . . [i]n such a crowd, customers will not likely be confused between any two of
the crowd and may have learned to carefully pick one out from the other.”7
Specifically, and in support of this argument, Applicant points to Internet evidence it
submitted showing 11 different websites where the term RITE WAY or RITEWAY is
used in marks in connection with various automobile-related services:
 “Rite Way Auto Transport” for vehicle delivery services;8

 “Rite Way Auto Sales” for auto sales;9

 “Rite Way Automotive Service” for automotive repair and service;10

 “Riteway Auto Parts” for new and used auto parts;11

 “Riteway Auto Glass LLC” for auto glass service and installation;12

 “Riteway Auto Salvage” for auto salvage and used parts;13

 “Rite Way Auto Service Tire Pros” for tire sales and repair service;14

7 6 TTABVUE 4.
8 From www.autotransport.com; attached to Applicant’s response filed September 12, 2019,
TSDR pp. 2-3.
9 From www.ritewayautos.com; id. at p. 4. We note this website also references “Riteway Auto
Salvage” and thus appears to be a related (or the same) company as an entity mentioned on
a different website provided by Applicant (see Note 13, infra).
10 From www.ritewayautowego.com; id. at pp. 5-6.
11 From www.ritewayauto.com; id. at pp. 7-8.
12 From www.ritewayautoglasssc.com; id. at pp. 9-12.
13 From www.usedautopartsdealers.com; id. at p. 13.
14 From www.ritewaytirepros.com; id. at pp. 14-15.
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 “Riteway Auto Body and Sales Inc.” for body repair, painting and other vehicle
repair service;15

 “Riteway Automotive” for auto repair services;16

 “Rite-Way Auto Body & Towing” for auto body repair and detailing;17 and

 “Rite-way Automotive & Transmission” for various automotive repair
services.18

Internet evidence showing extensive third-party use of a particular term may be
probative for purposes of demonstrating weakness of a term in connection with goods
or services. That is, use of “similar marks on similar [services] is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.” Palm
Bay Imps., 73 USPQ2d at 1693). In this regard, website printouts can be used, “on
their face, [to] show that the public may have been exposed to those internet websites
and therefore may be aware of the advertisements contained therein.” Rocket
Trademarks Pty Ltd v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011).
However, the Internet evidence Applicant relies upon has limited probative value.
Although RITEWAY or RITE WAY is the phonetic equivalent of the shared wording
in Applicant’s and Registrant’s marks, Applicant did not provide any evidence of
third-party use of RIGHTWAY or RIGHT WAY, i.e., the terms as they are spelled in
Applicant’s and Registrant’s marks. Thus, on this record, we cannot assume that
there are others, aside from Registrant and Applicant, who have adopted marks with

15 From www.yellowpages.com/saint-louis-mo...; id. at pp. 16-18.
16 From website www.ritewaytowing.com; id. at pp. 19-25.
17 From website www.rite-wayauto.com; id. at pp. 26-28.
18 From website www.automd.com/shops/riteway-automotive...; id. at p. 29-31.
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the exact terms RIGHTWAY or RIGHT WAY. Thus, Applicant’s mark RIGHT WAY
SALES & LEASING is close to the registered mark RIGHTWAY AUTOMOTIVE
CREDIT (stylized) than any of the above-noted RITEWAY or RITE WAY marks. In
addition, none of the evidence shows others specifically offering “automobile
dealership” services, and there is only one instance involving automobile sales. While
some of the services described in the Internet evidence, e.g., automobile repairs, are
the types of services a consumer could reasonably expect from an automobile
dealership, there is no demonstrated relationship as to some of the other identified
services, e.g., transport, salvage, glass installation.
Nonetheless, the Internet evidence has some probative value to the extent it shows
some commercial weakness in RITEWAY and RITE WAY in connection with different
automotive services, and these are the phonetic equivalents of the wording in the
involved marks. But, for the reasons mentioned, this is not a particularly strong
showing of weakness. Moreover, even weak marks are entitled to protection against
registration of similar marks for identical services. See Max Capital Grp. Ltd., 93
USPQ2d 1243, 1246 (TTAB 2010); see also King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“Confusion is confusion. The
likelihood thereof is to be avoided, as much between ‘weak’ marks as between ‘strong’
marks, or as between a ‘weak’ and a ‘strong’ mark.”).
Given the modest showing of weakness of the shared wording in the marks, we
find that the sixth DuPont factor weighs only slightly in favor of a finding of no
likelihood of confusion. See In re FabFitFun, 127 USPQ2d 1670, 1675 (TTAB 2018)
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(finding that the “relative weakness of the component term SMOKIN’ HOT common
to both marks weighs somewhat in favor of a finding of no likelihood of confusion”).
D. Conclusion
We conclude that there is a likelihood of confusion between Applicant’s mark,
RIGHT WAY SALES & LEASING, and the stylized, cited mark, RIGHTWAY
AUTOMOTIVE CREDIT, when these marks are used in connection with identical
automobile dealership services that are presumed to be offered to the same classes of
consumers in the same trade channels. We make this conclusion based on our finding
that the marks are overall very similar given each mark begins with and is dominated
by the term RIGHT WAY or RIGHTWAY, and after consideration of the evidence of
weakness based on others using RITEWAY and RITE WAY in connection with
automobile-related services.

Decision: The refusal to register Applicant’s mark is affirmed.