Airbnb, Inc.v.Edward M. Mangini

Trademark Trial and Appeal Board

May 20, 2021

91242344 (T.T.A.B. May. 20, 2021)

Elgin May 20, 2021 Opposition No. 91242344 Airbnb, Inc. v. Edward M. Mangini Before Kuczma, Lynch, and Coggins, Administrative Trademark Judges. By the Board: Now before the Board is Opposer Airbnb, Inc.’s motion, filed December 22, 2020, for summary judgment under Fed. R. Civ. P. 56 on its claim of priority and likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).1 For purposes of this order, the Board presumes the parties’ familiarity with the arguments and materials submitted in connection with the subject motion. In reaching our decision, all of the parties’ arguments and supporting evidence properly of record were carefully considered, although we do not find it necessary to discuss 1 25 TTABVUE. Record citations are to TTABVUE, the Board’s publicly available docket history system. See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, *2 n.1 (TTAB 2020). UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 General Contact Number: 571-272-8500 General Email: TTABInfo@uspto.gov THIS DECISION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91242344 2 all of them in our opinion. See, e.g., Guess? IP Holder L.P. v. Knowluxe LLC, 116 USPQ2d 2018, 2018 (TTAB 2015). I. Background Applicant Edward M. Mangini seeks registration on the Principal Register of the standard character mark SEABNB for “Providing a web site featuring technology that enables users to list and book travel, lodging and vacation activity opportunities” in International Class 42.2 In support of its claim under Section 2(d), Opposer pleads ownership of five registrations on the Principal Register for the mark AIRBNB in standard characters, as shown below:3 Mark Reg. No. Reg. Date/ Renewed Services AIRBNB 3890025 December 14, 2010/ September 9, 2020 Providing online business directories featuring temporary lodging (International Class 35) AIRBNB 3890027 December 14, 2010/ September 9, 2020 Arranging temporary housing accommodations; Providing online reservation services for temporary lodging; Travel agency services, namely, [ making reservations and bookings for transportation ]4 and lodging; Providing temporary lodging information via the Internet (International Class 43) 2 Application Serial No. 87651028, filed October 18, 2017 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming dates of first use anywhere of August 2, 2011 and first use in commerce of April 15, 2017. 3 See 1 TTABVUE 7-8, ¶ 3. Opposer also pleads common law rights since 2008 in the mark AIRBNB for an “online marketplace to list, view and book accommodations and experiences around the world through its people-powered hospitality service”. 1 TTABVUE 6, ¶ 1. 4 The language in brackets was deleted from the recitation of services pursuant to Opposer’s combined Sections 8 and 9 filing. Opposition No. 91242344 3 Mark Reg. No. Reg. Date/ Renewed Services AIRBNB 3971784 May 31, 2011/ November 23, 2020 (filed) Computer services in the nature of customized web pages featuring user- defined information, personal profiles and information (International Class 42) AIRBNB 4289397 February 12, 2013/ September 26, 2018 Providing an online interactive website featuring the listing and rental of temporary lodging; Providing online computer database and online searchable databases featuring information, listings and announcements about housing, apartments, condominiums, townhouses, real estate, commercial real estate and rental and leasing advertisements for the foregoing; Real estate listing, rental and leasing services for residential housing, apartments, rooms in homes, sublets, vacation homes, cabins and villas and office space in commercial properties on a global computer network; Providing reviews and feedback about listers and renters of real estate (International Class 36) Computer services, namely, creating an on-line community for registered users to participate in discussions, get feedback from their peers, form virtual communities, and engage in social networking featuring the rental and listing of real estate (International Class 42) On-line social networking services (International Class 45) AIRBNB 4884815 January 12, 2016 Vacation real estate listing services and providing such services via a global computer network; Real estate listing services, namely, providing an Opposition No. 91242344 4 Mark Reg. No. Reg. Date/ Renewed Services interactive website and online database of rental properties, rental information, rental property descriptions and images, rental locations and amenities, availability and rates for vacation rental homes, condominiums, cabins, villa, apartments, and time-shares; Real estate services, namely, arranging of rental agreements for real estate for others by through a website where users can post and receive requests to rent short-term houses, condos, apartments, and time-shares (International Class 36) Providing a website for the arrangement and booking of travel tours and excursions; Providing a website featuring travel information and commentary; Providing an online searchable computer database featuring information on travel; Providing reviews of travel service providers; Travel guide and travel information services; Travel agency services, namely, making reservations and bookings for transportation, excursions, travel tours and travel; Providing links to the web sites of others featuring transportation, excursions, travel tours and travel (International Class 39) Providing online reservation, booking and search services for temporary lodging, temporary accommodations and temporary vacation rentals; Providing an online interactive website featuring temporary lodging, Opposition No. 91242344 5 Mark Reg. No. Reg. Date/ Renewed Services temporary accommodations, temporary vacation rentals and temporary rental listings; Providing a website featuring information in the field of temporary lodging, temporary accommodations and temporary vacation rentals; Travel agency services, namely, making reservations and bookings for temporary lodging, temporary accommodations and temporary vacation rentals; Providing rental information for temporary lodging, temporary accommodations and temporary vacation rentals, namely, property descriptions and images, reviews, locations and amenities, availability and rates for temporary lodging, temporary accommodations and temporary vacation rentals (International Class 43) By his answer, Applicant admits, inter alia, that: Opposer owns the pleaded registrations;5 Opposer’s business promoted under its AIRBNB marks has experienced “unparalleled growth” and its brand “has become known worldwide”;6 Opposer is the subject of extensive media attention and awards;7 the services recited in Applicant’s application are “identical,” “highly related” and/or “complementary” to Opposer’s services;8 the opposed application contains no restrictions on trade 5 5 TTABVUE 2, Answer ¶ 1 (admitting to allegations of Notice of Opposition ¶ 3). 6 Id. (admitting to allegations of Notice of Opposition ¶¶ 5, 10). 7 Id. (admitting to allegations of Notice of Opposition ¶¶ 11-14). 8 Id. (admitting to allegations of Notice of Opposition ¶ 16, 21). Opposition No. 91242344 6 channels;9 Applicant’s mark incorporates the entirety of the “BNB” portion of AIRBNB with only the addition of the term “SEA”;10 Applicant was familiar with Opposer’s marks prior to selecting the opposed mark;11 and Opposer’s AIRBNB marks are “first in time, and there are not issues as to priority or seniority.”12 Applicant denies other salient allegations of the notice of opposition, including those regarding: the derivation of Opposer’s mark;13 the inherent distinctiveness of Opposer’s marks as applied to Opposer’s services;14 the term “BNB by itself” being distinctive;15 Applicant’s mark being “highly similar to [Opposer’s] Marks in overall commercial impression, connotation, appearance, and sound;”16 the intended marketing of the parties’ services “to overlapping classes of consumers and potential consumers and through overlapping or related channels of trade,”17 and the likelihood that the parties’ marks will be confused by consumers.18 9 Id. (admitting to allegations of Notice of Opposition ¶ 24). 10 Id. (admitting to allegations of Notice of Opposition ¶ 21). 11 Id. (admitting to allegations of Notice of Opposition ¶ 22). 12 Id. (admitting to allegations of Notice of Opposition ¶ 19); see also id. (admitting to allegations of Notice of Opposition ¶¶ 17, 18). 13 Id., Answer ¶ 2 (denying allegations of Notice of Opposition ¶ 2). 14 Id. (denying allegations of Notice of Opposition ¶ 4). 15 Id. (denying allegations, in part, of Notice of Opposition ¶ 21). 16 Id. (denying allegations of Notice of Opposition ¶ 20). 17 Id. (denying allegations of Notice of Opposition ¶ 25). 18 Id. (denying allegations, in part, of Notice of Opposition ¶ 26). Applicant also asserts 14 “affirmative defenses,” id. at 2-4, none of which is a true affirmative defense but merely amplifies Applicant’s denials of likelihood of confusion. See ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1236 n.11 (TTAB 2015). Opposition No. 91242344 7 II. Motion for Summary Judgment Summary judgment is an appropriate method of disposing of cases in which there is no genuine dispute with respect to any material fact, thus allowing the case to be resolved as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for summary judgment has the burden of demonstrating the absence of any genuine dispute as to a material fact, and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1796 (Fed. Cir. 1987). A factual dispute is genuine if, on the evidence of record, a reasonable fact finder could resolve the matter in favor of the non-moving party. See Opryland USA, Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992); Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992). Additionally, the evidence of record must be viewed in the light most favorable to the non-moving party, and all justifiable inferences must be drawn from the undisputed facts in favor of the non-moving party. See Lloyd’s Food Prods. Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); Opryland USA, Inc., 23 USPQ2d at 1472. We may not resolve genuine disputes as to material facts and, based thereon, decide the merits of the proceeding. Rather, we may ascertain only whether any material fact is genuinely disputed. See Lloyd’s Food Prods. Inc., 25 USPQ2d at 2029; Olde Tyme Foods, Inc., 22 USPQ2d at 1542; Meyers v. Brooks Shoe, Inc., 912 F.2d 1459, 16 USPQ2d 1055, 1056 (Fed. Cir. 1990) (“If there is a real dispute about a Opposition No. 91242344 8 material fact or factual inference, summary judgment is inappropriate; the factual dispute should be reserved for trial.”). “When a moving party’s motion for summary judgment is supported by evidence sufficient to indicate that there is no genuine dispute as to any material fact and the moving party is entitled to judgment, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute regarding at least one material fact which requires resolution at trial.” Embarcadero Techs., Inc. v. Delphix Corp., 117 USPQ2d 1518, 1521 (TTAB 2016). “The nonmoving party, however, may not rest on the mere allegations of its pleadings and assertions, but must designate specific portions of the record or produce additional evidence showing the existence of a genuine dispute as to a material fact for trial.” Id. See also Fed. R. Civ. P. 56(c); Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.3d 831, 221 USPQ 561, 564 (Fed. Cir. 1984) (“The party opposing the motion must point to an evidentiary conflict created on the record at least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant.”). Consequently, factual assertions, without evidentiary support, are insufficient to defend against a motion for summary judgment. See Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., 60 USPQ2d 1733, 1739 (TTAB 2001) (“applicant has produced no evidence, or raised any expectation that at trial it could produce evidence”); S & L Acquisition Co. v. Helene Arpels Inc., 9 USPQ2d 1221, 1225 n.9 (TTAB 1987). As a party moving for summary judgment on its Section 2(d) claim, Opposer must establish there is no genuine dispute that (1) it is entitled to a statutory cause of Opposition No. 91242344 9 action;19 (2) it is the prior user of its pleaded marks; and (3) contemporaneous use of the parties’ respective marks on their respective services would be likely to cause confusion or mistake or to deceive consumers. See Trademark Act Section 2(d); Loreal S.A. v. Marcon, 102 USPQ2d 1434, 1436 (TTAB 2012); Fram Trak Indus., Inc. v. WireTracks LLC, 77 USPQ2d 2000, 2004 (TTAB 2006). In support of its motion, Opposer argues Applicant has admitted to facts conclusively establishing that there is no genuine dispute of material fact as to Opposer’s likelihood of confusion claim and, therefore, Opposer is entitled to judgment as a matter of law. Opposer submits the declaration of its counsel, Christopher Varas, with supporting evidence including: (1) printouts from the USPTO’s TDSR electronic database showing the status and title of Opposer’s pleaded registrations,20 and (2) Applicant’s responses to Opposer’s First and Second Sets of Requests for Admission.21 In addition, because Applicant’s responses to Opposer’s Second Set of Requests for Admission were served well after the thirty-day response period, Opposer asserts the Second Set of Requests for Admission are deemed admitted by operation of law.22 19 Board decisions previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). 20 Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1) (Matters in Evidence: Registrations). See 25 TTABVUE 19-90 (electronic copies of Opposer’s registration records). 21 25 TTABVUE 91-128. 22 See Fed. R. Civ. P. 36(a)(3); Trademark Rule 2.120(a)(3), 37 C.F.R. § 2.120(a)(3); Fram Trak Indus., 77 USPQ2d at 2005. See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 411.03 (2020). It is undisputed that Applicant belatedly served Opposition No. 91242344 10 Applicant does not support his two-page response to the motion for summary judgment with any testimonial or documentary evidence. Instead, he merely argues there are six other marks on the Principal Register that include the term “BNB” in connection with travel and/or accommodation purposes, and asserts the term is a generic phrase meaning “Bed & Breakfast.”23 Applicant contends Opposer has “never used the phrase ‘SeaBnB’ to [sic] rentals of any kind, in any capacity, including any connection to boats, yachts, real estate, land properties.”24 Applicant states he registered the internet domain name on October 18, 2017, prior to filing the subject application.25 Finally, Applicant argues he searched the internet and USPTO database “to make sure the mark ‘SEABNB’ was not being used anywhere before respectfully submitting [his] trademark application. . . .”26 In reply, Opposer argues that Applicant’s arguments lack evidentiary support.27 Further, Opposer points out that Applicant’s arguments are contradicted by his admissions of record, including the distinctiveness of the “BNB” element of Opposer’s unsigned responses to the Second Set of Requests for Admission, and neither moved to reopen his time to respond to the requests, Fed. R. Civ. P. 6(b)(2), nor moved to withdraw and amend his admissions. Fed. R. Civ. P. 36(b). For purposes of summary judgment, the Board will deem a request for admission to be admitted if a copy of the request for admission and the admission, or a statement that the party from which an admission was requested failed to respond thereto, is submitted. Trademark Rule 2.127(e)(2), 37 C.F.R. § 2.127(e)(2). Opposer has done so here. 23 27 TTABVUE 2. 24 Id. 25 Id. at 3. 26 Id. 27 28 TTABVUE 2. Opposition No. 91242344 11 mark.28 Opposer contends Applicant’s argument that “BNB” is generic fails because neither party’s filings specify “bed and breakfast” services.29 Opposer further asserts that the Board should compare the marks in their entireties rather than dissecting them into their component parts.30 Finally, Opposer dismisses Applicant’s arguments as to his domain name and search of the USPTO database as irrelevant to the issue of likelihood of confusion.31 A. Entitlement to a Statutory Cause of Action and Priority We first address whether there are genuine disputes that Opposer is entitled to a statutory cause of action and has priority. A party in the position of plaintiff may oppose registration of mark where such opposition is within the zone of interests protected by the statute, Trademark Act Section 13, and the party has a reasonable belief in damage that is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, *6-7 (Fed. Cir. 2020). In this case, Applicant does not contest Opposer’s entitlement to maintain this proceeding, and admits to Opposer’s claim of priority.32 Moreover, Opposer has submitted copies of its pleaded registrations obtained from the USPTO’s TSDR database.33 These registrations establish Opposer’s direct commercial interest and its 28 Id. at 4-5. 29 Id. at 6. 30 Id. at 6-7. 31 Id. at 7-8. 32 See supra note 12 and accompanying text. 33 See supra note 20 and accompanying text. Opposition No. 91242344 12 entitlement to maintain this proceeding to oppose registration of Applicant’s involved mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016). Thus, there is no genuine dispute as to Opposer’s entitlement to a statutory cause of action. In addition, as a result of Opposer’s ownership of valid and subsisting registrations on the Principal Register for its pleaded marks, priority is not at issue with respect to the marks and services shown in Opposer’s pleaded registrations vis- à-vis Applicant’s services recited in the present application. 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)). Accordingly, there is no genuine dispute of material fact as to Opposer’s priority. B. Likelihood of Confusion The determination under Section 2(d) of the Trademark Act involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) (setting forth thirteen factors to be considered). See also In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (evidence of DuPont factors must be considered when it is of record). This is true even though “not all of the DuPont factors are relevant or of similar weight in every case.” Id. See also Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002) (noting the likelihood of confusion analysis “considers all DuPont Opposition No. 91242344 13 factors for which there is evidence of record” but may focus on dispositive factors). The two primary factors are the similarity of the marks and the similarity of the goods or services. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“[T]he cumulative differences between the respective goods [or services] and the respective marks are sufficient to preclude likelihood of confusion, mistake, or deception”). 1. Similarity of Services, Trade Channels, and Classes of Consumers The determination of whether the services at issue are related in a manner that is likely to give rise to source confusion is made on the basis of the services as identified in Applicant’s involved application and Opposer’s pleaded registrations. See Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Paula Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973). The services need not be identical or even directly competitive for there to be a likelihood of confusion, but the evidence must establish that the goods are related in some manner, or the conditions surrounding their marketing are such, that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the goods come from a common source. Hewlett-Packard Co., 62 USPQ2d 1003-04. Here, however, a comparison of the parties’ services shows that they are legally identical in part. Applicant’s services are “Providing a web site featuring technology that enables users to list and book travel, lodging and vacation activity opportunities.” The recitations of services in Opposer’s pleaded registrations include: Opposition No. 91242344 14  “Providing online reservation services for temporary lodging”;34  “Providing an online interactive website featuring the listing and rental of temporary lodging; Providing online computer database and online searchable databases featuring information, listings and announcements about housing, apartments, condominiums, townhouses, . . . and rental and leasing advertisements for the foregoing; Real estate listing, rental and leasing services for residential housing, apartments, rooms in homes, sublets, vacation homes, cabins and villas . . . on a global computer network”;35  “Vacation real estate listing services and providing such services via a global computer network; Real estate listing services, namely, providing an interactive website and online database of rental properties, rental information, rental property descriptions and images, rental locations and amenities, availability and rates for vacation rental homes, condominiums, cabins, villa, apartments, and time-shares; Real estate services, namely, arranging of rental agreements for real estate for others by through a website where users can post and receive requests to rent short-term houses, condos, apartments, and time-shares”;36  “Providing a website for the arrangement and booking of travel tours and excursions. . . .”; and37  “Providing online reservation, booking and search services for temporary lodging, temporary accommodations and temporary vacation rentals; Providing an online interactive website featuring temporary lodging, temporary accommodations, temporary vacation rentals and temporary rental listings. . . .”38 Moreover, Applicant admits the parties’ services are “highly related,” “complementary,” and/or “nearly identical.”39 34 Registration No. 3890027 35 Registration No. 4289397. 36 Registration No. 4884815. 37 Id. 38 Id. 39 See supra note 8 and accompanying text; 25 TTABVUE 103 (expressly admitting to Request for Admission No. 6, id. at 97). Opposition No. 91242344 15 Where, as here, the services in an application are broadly described and there are no limitations set forth as to their nature, type, channels of trade or classes of purchasers, the Board must presume that the scope of the application encompasses all services of the nature and type described, the identified services move in all channels of trade that would be normal for such services, and the services would be purchased by all potential customers. See Cunningham, 55 USPQ2d at 1846; Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Applicant additionally has admitted (by virtue of his responses and deemed admissions) the parties’ channels of trade overlap,40 and Applicant’s services compete with Opposer’s services.41 Applicant fails to make any evidence of record to contradict these admissions. Moreover, because the parties’ services are legally identical in part, we must presume that these services will be offered in the same channels of trade to the same classes of purchasers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Hewlett- Packard Co., 62 USPQ2d at 1005; Am. Lebanese Syrian Associated Charities Inc. v. Child Health Rsch. Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). Accordingly, there is no genuine dispute of material fact that the services of the parties are, at least in part, legally identical, and travel in the same channels of trade to some of the same classes of consumers. 40 25 TTABVUE 103 (expressly admitting to Request Nos. 8-10, id. at 97). 41 Id. at 111 (Request No. 30 deemed admitted). Opposition No. 91242344 16 2. Strength of Opposer’s Marks In discussing “strength” of a mark, we address two of the DuPont factors.42 “A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).” In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010); see also Top Tobacco, L.P. v. N. Atl. Operating Co., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (considering inherent and commercial strength of mark); J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed. Mar. 2021 update) (“The first enquiry 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.”). The strength of a mark is not “an all-or-nothing measure” in the context of likelihood of confusion. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). Rather, it “varies along a spectrum from very strong to very weak.” Id. (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1374-75 (Fed. Cir. 2005)). “A very strong mark receives a wider latitude of legal protection in the likelihood of confusion analysis.” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017). 42 In DuPont, the court identified the fifth and sixth factors as follows: “the fame of the prior mark” and “the number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567. These two factors go to the strength of Opposer’s marks and, therefore, are treated together here. Opposition No. 91242344 17 Turning first to the conceptual strength of Opposer’s marks, “we evaluate [a mark’s] intrinsic nature, that is, where it lies along the generic-descriptive- suggestive-arbitrary (or fanciful) continuum....” In re Davia, 110 USPQ2d 1810, 1814 (TTAB 2014). Here, Opposer’s AIRBNB marks are registered on the Principal Register without a showing of acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Accordingly, they are presumed to be inherently distinctive. New Era Cap Co. v. Pro Era, LLC, 2020 USPQ2d 10596, *10 (TTAB 2020) (“Opposer’s mark is inherently distinctive as evidenced by its registration on the Principal Register without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.”) (citing Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d 1881, 1889 (TTAB 2006)). Although Applicant now argues that “BnB is a Generic Phrase short for ‘Bed & Breakfast’ used all over the world,”43 his argument is unsupported by evidence. Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 91 USPQ2d 1409, 1415 (Fed. Cir. 2009) (a party’s unsworn argument is not evidence and thus cannot rebut record evidence); Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) (“[A]ttorney argument is no substitute for evidence.”); In re Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief cannot take the place of evidence.”). Moreover, Applicant has admitted (by virtue of his deemed admissions) that the “BNB” element of Opposer’s AIRBNB marks is distinctive for online platforms used to book travel, lodging, 43 27 TTABVUE 2. Opposition No. 91242344 18 vacation activities, and travel experiences.44 Applicant does not argue that AIRBNB as a whole is not distinctive or a strong mark. Cf. Real Foods Pty Ltd. v. Frito-Lay N.A., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (the Board may not dissect the mark into isolated elements but it may weigh the individual components of the mark to determine the overall impression or the descriptiveness of the mark and its various components) (citation omitted). Thus, the evidence of the conceptual strength of Opposer’s marks is undisputed. Next, the commercial strength of a mark rests on the extent to which “a significant portion of the relevant consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, 122 USPQ2d at 1734 (citing Palm Bay Imps., 73 USPQ2d at 1689). Applicant has admitted to indirect evidence of the commercial strength of Opposer’s marks used with its services-for example, global use of the AIRBNB service, its large number of users, media recognition, and significant internet traffic.45 See Tao v. Bender, 125 USPQ2d at 1056 (citing Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate proof of strength)). In his opposition, Applicant lists six registrations that incorporate the term “BNB”46 but, because the registrations are not properly of record, this argument is not entitled to any weight. Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1231-32 (TTAB 1992) (trademark search report “is not 44 See 25 TTABVUE 110 (Request for Admission Nos. 20-23 deemed admitted). 45 See supra notes 6, 7 and accompanying text. 46 27 TTABVUE 2. Opposition No. 91242344 19 credible evidence of the existence of the registrations listed” and legible copies of the registrations, or the electronic equivalent of such copies from USPTO records are required). Accordingly, on this record, there is no genuine dispute of material fact that Opposer’s marks are strong and entitled to a wide scope of protection. See Palm Bay Imps., 73 USPQ2d at 1694 (strong marks “enjoy wide latitude of legal protection” and are “more attractive as targets for would-be copyists”). 3. Similarity of the Parties’ Marks Our analysis of the similarity of the marks is based on the marks at issue as they appear in Applicant’s involved application and Opposer’s pleaded registrations. See Mini Melts, Inc., 118 USPQ2d at 1470-71. Because we have found that the parties’ services at issue are at least in part legally identical, the degree of similarity between the marks required to support a finding of likelihood of confusion declines. See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992). There is no genuine dispute that Applicant’s involved mark SEABNB and Opposer’s pleaded mark AIRBNB, both in standard characters, incorporate the term “BNB”.47 The respective marks of the parties each consist of a recognizable one- syllable word - “air” or “sea” - followed by “BNB.” There is no genuine dispute that the marks overall have similar structures, and therefore look and sound similar. Moreover, there is no genuine dispute that the relevant meanings of the terms “air” 47 See supra note 10 and accompanying text. Opposition No. 91242344 20 and “sea” include well-known methods of travel, resulting in marks with overall similar connotations.48 Moreover, Applicant has admitted (by virtue of his deemed admissions) that the parties’ marks have similar connotations and commercial impressions.49 Viewing the marks as a whole, and against the background of the strength of Opposer’s mark, we find the marks are similar and Applicant fails to raise a genuine dispute of material fact that warrants trial on this issue. 4. Other DuPont Factors Because Applicant did not submit evidence in response to the summary judgment motion, there is no evidence to raise a genuine dispute of material fact regarding any other DuPont factor addressed in the motion. For example, Applicant has admitted the variety of services on which Opposer’s mark is used (factor 9);50 and that consumers have suffered actual confusion between the marks (factors 7 and 8).51 III. Determination In summary, Opposer has met its burden of establishing that it is entitled to summary judgment on its pleaded claim of likelihood of confusion under Trademark Act Section 2(d). Applicant has failed to raise a genuine dispute of material fact for trial. In view thereof, Opposer’s motion for summary judgment is granted. 48 The Board may take judicial notice of commonly known facts that are not reasonably in dispute. See, e.g., In re Brown-Forman Corp., 81 USPQ2d 1284, 1286 (TTAB 2006) (Baton Rouge is the capital of Louisiana). 49 See 25 TTABVUE 110 (Request for Admission Nos. 24, 25 deemed admitted). 50 5 TTABVUE 2 (admitting to allegations of Notice of Opposition ¶¶ 6-9). 51 Id. (Request for Admission Nos. 27-29 deemed admitted). Opposition No. 91242344 21 Judgment is hereby entered against Applicant, the opposition is sustained, and registration of Applicant’s mark is refused.