AgriGuardian Marketing, LLC

Trademark Trial and Appeal Board

May 9, 2014

No. 85428371 (T.T.A.B. May. 9, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 9, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re AgriGuardian Marketing, LLC
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Serial No. 85428371
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AgriGuardian Marketing, LLC, pro se by David N. Sasseville, Ph.D.

Kimberly Frye, Trademark Examining Attorney, Law Office 113 (Odette Bonnet,
Managing Attorney).
_____

Before Quinn, Wolfson, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
AgriGuardian Marketing, LLC (“applicant”) filed an application to register on
the Principal Register the mark shown below for “Fertilizers for agricultural use,”
in International Class 1.1

1 Application Serial No. 85428371, filed on September 21, 2011 under Trademark Act § 1(a),
15 U.S.C. § 1051(a). Applicant amended the statutory basis of the application on June 7,
2012 to Section 1(b), 15 U.S.C. § 1051(b) (intent to use).
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The application includes the following description of the mark: “The mark consists
of a vertical three leafed plant that separates the word AgriGuardian. The plant
extends below the text to look similar to the horizon.” Color is not a feature of the
mark.
The trademark examining attorney refused registration under § 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, as used in
connection with applicant’s goods, so resembles the registered mark GUARDIAN as
to be likely to cause confusion, or to cause mistake, or to deceive. The cited mark is
registered in typed form for “Slow release water soluble nitrogen fertilizer for use as
an additive to improve the utilization of nitrogen in fluid fertilizer for agricultural
use,” in International Class 1.2 When the refusal was made final, applicant filed a
request for reconsideration, which the examining attorney denied. This appeal
ensued. Applicant and the examining attorney have filed briefs and applicant has
filed a reply brief.
1. Evidentiary matters.
As an initial matter, we note that applicant has submitted evidence with its
reply brief. Such evidence is untimely and we have not considered it. “The record
in the application should be complete prior to the filing of an appeal. The
Trademark Trial and Appeal Board will ordinarily not consider additional evidence
filed with the Board by the appellant or by the examiner after the appeal is filed.”

2 Reg. No. 1593699, issued on May 1, 1990; Section 15 affidavit acknowledged; renewed.
Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (April
2014).
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37 C.F.R. § 2.142(d). See also TBMP § 1207.01 (3rd ed., June, 2013). The
prohibition on additional evidence “is especially true with respect to evidence
submitted for the first time with a reply brief, to which the examining attorney may
not respond.” In re City of Houston, 101 USPQ2d 1534, 1537 (TTAB 2012), aff’d,
731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013).
Appendix B of applicant’s appeal brief refers to the internet addresses, or
“URLs,” of eight websites. Reference to a URL, unaccompanied by any copy of the
matter located at the URL, is insufficient to make internet materials of record in a
Board proceeding. The content available on the internet is constantly in flux and, if
an applicant wishes to have such content considered by the Board, it must capture
and submit, in a timely manner and together with the date accessed and the
location at which the matter is found, a copy of the specific matter to be considered.
In any event, for the reasons set forth in the preceding paragraph, any such matter
submitted for the first time with applicant’s appeal brief would have been untimely.
2. Refusal under Section 2(d).
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion, as set forth in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods and services at issue. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case,
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applicant and the examining attorney have also submitted evidence and arguments
regarding trade channels, customers and conditions under which sales are made,
coexistence of the marks at issue without actual confusion, and a number of other
considerations. We will address each factor in turn.
(a) The marks.
We consider the similarity or dissimilarity of the marks at issue in terms of
their appearance, sound, meaning, and overall commercial impression. See Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). We must base our determination on
a comparison of the marks in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. v. Master
Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981). However, an analysis of
individual aspects of the marks is a permissible part of our determination. Price
Candy Company v. Gold Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266,
268 (CCPA 1955). 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 a consideration of the marks in their entireties. In re
National Data Corp., 224 USPQ at 751. “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs., Inc. v.
Serial No. 85428371

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Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
We note first that applicant’s mark includes within it the entirety of the cited
registered mark GUARDIAN. In such cases, confusing similarity has often been
found. See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ
419, 422 (CCPA 1977) (CALIFORNIA CONCEPT (with surfer design) likely to
cause confusion with CONCEPT); Coca-Cola Bottling Co. of Memphis, Tennessee,
Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975)
(BENGAL LANCER and BENGAL); In re West Point-Pepperell, Inc., 468 F.2d 200,
175 USPQ 558 (CCPA 1972) (WEST POINT PEPPERELL (with griffin design) and
WEST POINT); Johnson Publishing Co. v. International Development Ltd., 221
USPQ 155, 156 (TTAB 1982) (EBONY DRUM and EBONY); In re Cosvetic
Laboratories, Inc., 202 USPQ 842 (TTAB 1979) (HEAD START COSVETIC and
HEAD START); S. Gumpert Co., Inc. v. ITT Continental Baking Company, 191
USPQ 409 (TTAB 1976) (FLAV-O-BAKE and FLAVO).
Applicant’s mark differs in appearance from the registered mark by virtue of
its initial literal element AGRI and its “three leafed plant” design. However, in the
context of goods for agricultural use, the designation AGRI is not particularly
distinctive. AGRI is suggestive of the word “agriculture” and, as the examining
attorney has shown, “agri-” is a prefix “that usually refer[s] to agriculture.”3 The
plant design is also suggestive of agriculture and, for that reason, is not highly

3 Entry for “Agro ” from , final Office action of February 10, 2013 at 12-13.
Serial No. 85428371

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distinctive as a source indicator for goods that are for agricultural use. Moreover, in
the case of marks consisting of words and a design, the words are normally given
greater weight because they would be used by consumers to request the products.
In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re Appetito
Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also Sweats Fashions Inc.
v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant
Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir.
1983).
In sound, applicant’s mark resembles the cited mark in that both include the
designation GUARDIAN, which would be pronounced the same in each mark.
However, applicant’s mark is phonetically distinguished from the cited mark by
virtue of its prefix AGRI.
With respect to suggestive meaning or connotation, applicant argues that its
mark “was selected to mean ‘protector of agriculture’ and/or ‘protector of land.’”4
Applicant also argues that its mark, taken as a whole, “suggests a direct
relationship to plants and plant growth, which is well understood by farmers and
growers who are the sole consumers for these products.”5 We see little distinction
between the respective meanings or connotations of applicant’s mark and the cited
mark. We agree with applicant that customers are likely to understand the word

4 Applicant’s brief at 6.
5 Id. at 7.
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“guardian” to mean “protector,” as this is one of its commonly accepted meanings.6
We also agree that the addition of AGRI and the plant design are likely to cause the
mark to suggest the idea of a protector of the land or of agriculture. However, these
same meanings are very likely to be perceived in the cited mark as well. There is no
reason to believe that the word “guardian” in the cited mark would be understood to
have a meaning different from “protector.” Further, as the cited mark is for use in
the field of agriculture, it will suggest to customers the idea of a “protector” having
something to do with agriculture. Overall, we find that the marks are quite similar
in meaning and connotation.
Considering the marks in their entireties, we find that their similarities in
appearance, sound and meaning outweigh their differences, and that they create
similar overall commercial impressions. Accordingly, the du Pont factor relating to
the similarity or dissimilarity of the marks weighs in favor of a finding of likelihood
of confusion.
(b) The goods.
We next consider the similarity or dissimilarity of the goods at issue. The
goods of both applicant and registrant are identified as being “for agricultural use”;
however, applicant argues that they are otherwise extremely different in nature,
pointing out that applicant’s goods are “fertilizers” and registrant’s goods are

6 This significance of the word “guardian” is confirmed by WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1007 (1993), which defines it to mean, as a noun, “one that
guards or secures : one to whom a person or thing is committed for protection, security or
preservation”; and, as an adjective, “performing or appropriate to the office of a protector.”
The Board may take judicial notice of dictionary definitions. Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).
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fertilizer additives (as identified in the registration, they are “… fertilizer for use as
an additive…”).
Applicant describes its goods as “fertilizers, primarily foliar applied
micronutrients.”7 By contrast, applicant contends that registrant’s goods are not a
fertilizer and cannot be used as a fertilizer:
[Registrant’s product] improves the performance of
nitrogen fertilizers, and [it] is always added to and used
with nitrogen fertilizer.… [N]o one would consider using
[it] to replace urea, anhydrous ammonia, urea ammonium
nitrate (UAN), or other commonly used nitrogen fertilizer.
…
The only labeled and acceptable use of the goods
represented by the Registered mark for the intended
consumers is as a nitrification inhibitor.
…
A nitrification inhibitor tries to suppress or kill the
microorganisms that cause this transformation [of
ammonium to nitrate] in the soil. Because nitrate is the
end product of nitrification and it readily leaches from the
soil with rainfall or irrigation resulting in a loss of the
applied nitrogen fertilizers, growers may want to use a
nitrification inhibitor such as [registrant’s product] to
slow down nitrogen loss.8

Applicant also points out that “EPA (or anyone else) does not classify nitrification
inhibitors as fertilizers.”9
Applicant’s contentions regarding the nature of registrant’s product is largely
consistent with the identification of goods in the cited registration (“slow release
water soluble nitrogen fertilizer for use as an additive to improve the utilization of

7 Applicant’s brief at 10.
8 Id. at 9-11.
9 Id. at 15.
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nitrogen in fluid fertilizer for agricultural use”). However, we must point out that
applicant has not made any evidence of record to demonstrate his contentions that
all goods of the type identified in the registration are necessarily “nitrification
inhibitors,” or to show that such goods are not, in fact, considered in the trade to be
“fertilizers” (despite the fact that the goods are identified as “fertilizers” in the
registration). As we noted above, references in applicant’s brief to websites,
unnamed “soils textbooks,” and “University Extension publications” do not make
these materials of record. Accordingly, we have no more to rely upon than the
statements set forth in applicant’s brief, which constitute argument, not evidence.
In any event, even if we take all of applicant’s contentions as true, we still perceive
a substantial commercial relationship between the goods of applicant and
registrant.
Most obviously, the goods of both applicant and registrant are for use in
agricultural applications; this is explicit in the respective identifications of goods.
In addition, both types of goods have similar purposes, inasmuch as both are used to
improve soil conditions in order to promote better agricultural results.10 Applicant
argues that the goods do not have a common purpose: “[Registrant’s product] has a
total different purpose (it kills or suppresses selected soil microorganisms)
compared to [applicant’s] products… (provides essential plant micronutrients),
there is no comparison, and thus no confusion, in the real world.”11 Although the

10 See, e.g., advertisement for applicant’s AGRI-GRO ULTRA (“increases yields and crop
performance….”), submitted as specimen of use with application filed September 21, 2011.
11 Reply brief at 3.
Serial No. 85428371

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two types of products, being different chemical substances, have different specific
purposes, nonetheless they have the same general purpose to improve plant growth,
and this similarity is likely to lead customers to believe that such goods could
emanate from the same producer. Applicant’s argument that “growers who would
use these products will clearly know the difference”12 is unavailing. The question is
not whether customers would mistake one product for the other, but rather whether
there is a likelihood of confusion as to the source of the products. In re Rexel Inc.,
223 USPQ 830 (TTAB 1984).
It is also significant that the goods of applicant and registrant are types of
goods that would be used together. Applicant’s goods are agricultural fertilizers
and, as applicant explains, registrant’s product “is always added to and used with
nitrogen fertilizer.”13 If goods are complementary in nature, or used together, this
relatedness can support a finding of likelihood of confusion. See, e.g., In re Martin's
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984);
In re Cook Medical Technologies LLC, 105 USPQ2d 1377, 1380 (TTAB 2012). In
connection with this point, it bears noting that applicant’s identification of goods is
broad and would include nitrogen fertilizer within its scope. Even if applicant does
not in fact sell nitrogen fertilizer, it is the identification of goods in its application
which governs, because it defines the scope of the registration that applicant seeks.
See Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990) (“the question of registrability of an applicant’s mark

12 Id.
13 Applicant’s brief at 9.
Serial No. 85428371

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must be decided on the basis of the identification of goods set forth in the
application regardless of what the record may reveal as to the particular nature of
an applicant’s goods…”).
For the reasons discussed, we find that the goods of applicant and registrant
are related in such a manner that customers could mistakenly believe that they
emanate from the same source. Accordingly, the du Pont factor of the similarity or
dissimilarity of the goods favors a finding of likelihood of confusion.
(c) Trade channels.
We next consider the similarity or dissimilarity of established, likely-to-
continue trade channels for the goods. Applicant states that its goods “are rarely, if
ever, sold in stores”;14 rather, they are sold directly to end-user growers and crop
producers through knowledgeable distributors and dealers who are under contract
to applicant.15 Applicant continues:
It is correct that both [registrant] and [applicant] sell
products through independent distributors and dealers.
However, the chances of them being purchased from the
same source of supply (the independent dealer or
distributor) is virtually nil since the companies have
totally different distribution networks. To [applicant’s]
knowledge, no AGRIGUARDIAN distributor or dealer has
ever marketed [registrant’s] products along with
AGRIGUARDIAN products, and again AGRIGUARDIAN
has no comparable products to the Guardian line of
products. Part of the reason for independent distribution
networks, is because of the high degree of technical
knowledge needed to sell agricultural inputs (whether
fertilizers, seeds, chemicals, etc.). Distributors and

14 Id. at 18.
15 Id. at 7.
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dealers tend to stay with one line of products that they
can learn and promote.16

[Registrant] is a multilevel distribution network, similar
to AMWAY, in which sales are only made through
contracted “Independent Business Owners”….
AGRIGUARDIAN is [sic] also sell products through
contracted distributors, but there is no overlap among
these two groups of distributors. As part of the
AGRIGUARDIAN contract with its distributors, an
AGRIGUARDIAN distributor must obtain written
permission to sell products produced and marketed by
other companies. No AGRIGUARDIAN distributor has
ever filed a request to also sell [registrant’s] products.17

Applicant’s contentions that no dealer has ever handled goods of both
applicant and registrant together and that exclusivity contracts will guarantee that
their goods will not be handled by the same distributor or dealer are not persuasive.
These circumstances may change when a dealer finds that it is commercially
expedient to handle both types of goods, or as a result of terminated contracts or
shifting loyalties. Neither applicant’s identification of goods nor that in the cited
registration includes any limitation providing that the goods will be handled only by
exclusive distributors and dealers. Accordingly, we must presume that the goods
will move in all channels of trade normal for such goods. See Paula Payne Products
Co. v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co.
v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958). The examining
attorney has presented evidence of several agricultural suppliers that offer both

16 Id. at 16-17.
17 Reply brief at 3.
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“fertilizer additives” and various forms of dry and liquid fertilizer.18 There is no
countervailing evidence to indicate that such goods would not be handled by a single
distributor. Accordingly, we find that this du Pont factor favors a finding of
likelihood of confusion.
(d) Customers and conditions of sale.
Applicant states that the customers of applicant and registrant are “crop
producers, growers and farmers,”19 and characterizes them as “intelligent,
sophisticated, careful and motivated” and not subject to impulse purchasing.20 They
use large amounts of product and routinely make purchases of “thousands of dollars
at a time.”21 Applicant continues:
The consumers will not spend this kind of money without
understanding what the products do, the benefits of the
products to their crops and what the return is on their
investment into these products. In other words, the goods
are thoroughly investigated and understood before
purchasing since they are essential to producing a
profitable crop. Also as a result of this investigation,
growers know the manufactures [sic] and suppliers of the
products they buy from. Failure to thoroughly know the
products could result in severe economic losses to the
consumers, because the goods influence both the yield and
quality of the crops harvested, which in turn influences
their profitability. The consumers are actually business
people making business decisions that impact their
livelihood.… These consumers read product literature

18 Website located at ; see also website at ,
offering a “urease inhibitor [that] stabilizes nitrogen…” as well as “nitrogen fertilizers”;
both submitted with the final Office action of February 10, 2013 at 29-33 and 20-21,
respectively.
19 Applicant’s brief at 7, 10.
20 Id. at 18.
21 Id. at 19.
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and labels, and seek advice from distributors, university
extension personnel, private consultants, and other
growers who have use [sic] the products.22
It behooves the distributor to educate the grower on what
the products are, what they do, and their proper use.…
Education and marketing to growers on products are
provided by one-on-one sales contacts, sales literature,
grower meetings, university extension/consultant
recommendations, and internet searches.23
The examining attorney argues that “the fact that purchasers are
sophisticated or knowledgeable in a particular field does not necessarily mean that
they are sophisticated or knowledgeable in the field of trademarks or immune from
source confusion.”24
A number of factors – i.e., that the relevant customers are business people
making business-related decisions,25 that the cost of the goods is potentially high,
and that sales may be made in a one-on-one setting – indicate that customers may
use an elevated degree of care in making their product selections. Of course, even
in such settings, the question of whether two offered brands are related to each
other is not necessarily an issue of prime importance to the customer. Nonetheless,
on balance, we find that this du Pont factor weighs against a finding of likelihood of
confusion.

22 Id.
23 Reply brief at 3.
24 Examining attorney’s brief at 9.
25 One may question whether the limiting language “for agricultural use” necessarily limits
the goods of applicant and registrant to goods used in the business of farming, to the
exclusion of goods used by consumers in cultivating personal gardens. However, for
purposes of considering applicant’s argument we will assume that the goods are for use in
the business of agriculture.
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(e) Absence of actual confusion.
Applicant contends that it has been in business since 2005 and that since
then applicant and registrant have coexisted, with both having warehouses and
offices in Minnesota. “In fact, [registrant’s product] has been recommended to
[applicant’s] customers by [registrant’s] distributors, dealers, employees and owners
whenever a nitrification inhibitor… is needed or desired.”26 Applicant contends that
during that time registrant has not expressed any concern about such co-
existence,27 and there has been no confusion involving the goods of applicant and
registrant.28
Although the statements in applicant’s brief suggest that there has been a
meaningful opportunity for confusion to occur, applicant has submitted no evidence
to prove these allegations. In an ex parte proceeding in which registrant has no
opportunity to be heard, we simply cannot accept applicant’s unsupported
statements as to the conditions of co-existence and applicant’s own lack of
awareness of any instances of confusion. See In re Majestic Distilling Co., Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003) (“uncorroborated statements of
no known instances of actual confusion are of little evidentiary value”). See also In
re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (self-
serving testimony of applicant’s corporate president’s unawareness of instances of
actual confusion was not conclusive that actual confusion did not exist).

26 Applicant’s brief at 8.
27 Id.
28 Id. at 20.
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Accordingly, the du Pont factor of the length of time during and conditions under
which there has been contemporaneous use without evidence of actual confusion is
considered neutral.
(f) Other considerations.
Applicant seeks to distinguish its mark from the cited mark by explaining
that AGRIGUARDIAN is used as a company name, while registrant’s GUARDIAN
mark is used as a product name.29 This distinction is not germane. Applicant has
applied to register its mark as a trademark and, accordingly, we must consider its
market impact when used as a trademark, not as a company name. Moreover,
nothing in the cited registration requires registrant to use its mark only as a
product trademark, as opposed to a house mark for all its goods, a mark identifying
a line of goods, or any other type of commercial source indicator.
Applicant frequently characterizes the registrant’s mark as “Conklin
Guardian,” suggesting that the registered mark is typically displayed together with
the house mark Conklin. However, the terms of Section 2(d) require us to compare
applicant’s mark to the mark that is registered, not the mark as it appears in the
marketplace. 15 U.S.C. § 1052(d).
Applicant further argues as follows:
ALL agricultural inputs are required by law to contain
the name and address of the source of the product being
sold. This must be included on the label of every package
sold, and if sold in bulk, then on the invoice and bill of
lading. Every Guardian® package will contain the name
and address of Conklin, while every AGRIGUARDIAN

29 Id. at 8.
Serial No. 85428371

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product will have the name and address of
AGRIGUARDIAN.30
Applicant’s contentions regarding legal requirements applicable to labeling are not
supported by any citations to law or by any evidence of record.31 In any event, we
are not persuaded that this aspect of the marketing of the goods would necessarily
dispel confusion. Customers who rely on a trademark as the symbol of the source of
the goods may have no knowledge of the corporate name or address of the producer;
or they may have no recollection of the name and address that appeared on one
product when they encounter another product that bears a similar trademark.
Moreover, many businesses consist of groups of entities (such as a parent and its
subsidiaries, a group of sister corporations, or a company and its licensed
franchisees). Customers may readily believe that there is a connection between
goods bearing similar trademarks even though they bear, elsewhere on the label,
different corporate names and addresses. We do not discount the possibility that, in
cases involving very careful customers, the presence of a trade name on the goods
would reduce the likelihood of confusion. However, in the absence of probative
evidence of this market practice, we give little weight to this factor.
(g) Balancing the factors.
Having considered the evidence of record and all relevant du Pont factors,
including those not specifically discussed herein, we find that applicant’s mark, as

30 Applicant’s brief at 16. See also reply brief at 2.
31 Applicant’s reply brief at 2 does refer to a publication of the Association of American
Plant Food Control Officials (apparently a trade association); but no copy of the publication
was made of record and it is not the type of matter of which we would take judicial notice.
Serial No. 85428371

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applied to applicant’s goods, so closely resembles the cited registered mark as to be
likely to cause confusion, mistake or deception as to the source of applicant’s goods.
Decision: The refusal to register under Section 2(d) is affirmed.