Aria Growth Partners LLC

Trademark Trial and Appeal Board

Sep 23, 2021

88653231 (T.T.A.B. Sep. 23, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: September 23, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Aria Growth Partners LLC
_____

Serial No. 88653231
_____

Holly Pekowsky and Douglas A. Miro of Amster, Rothstein & Ebenstein LLP,
for Aria Growth Partners LLC.
Alaina Arthur, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____

Before Greenbaum, Lynch, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
Aria Growth Partners LLC (“Applicant”) seeks registration on the Principal
Register of the mark ARIA GROWTH PARTNERS (in standard characters,
GROWTH PARTNERS disclaimed) for
Financial services, namely, investment management,
investment consultation, and investment of funds of
others, particularly private equity, limited to investment
in entrepreneur brands, in International Class 36.1

1 Application Serial No. 88653231 was filed on October 14, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
Serial No. 88653231
- 2 -
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 financial services identified in the application, so resembles the following three
marks on the Principal Register, owned by two separate entities, as to be likely to
cause confusion, to cause mistake, or to deceive:
(1) Registration No. 5842747
Mark: ARYA (in standard characters)
Services:
o Investment management services, in International Class 36;2

owned by the first registrant, and

(2) Registration No.: 3533119
Mark: ARIA SYSTEMS (in standard characters, SYSTEMS disclaimed)
Services:
o Billing, in International Class 35, and
o Electronic payment, namely, electronic processing and transmission of
bill payment data, in International Class 36;3 and

(3) Registration No. 5101536
Mark:
Services:
o Business consultation in the field of e-commerce, billing and invoicing,
financial management, recurring revenue, subscription commerce and
customer relationship management; billing; customer relationship
management, in International Class 35,
o Electronic processing and transmission of bill payment data; electronic
payment, namely, electronic processing and transmission of bill
payment data, in International Class 35,
o Educational services, namely, conducting conferences in the field of
cloud billing, recurring revenue and subscription billing, in
International Class 41, and

2 Registration No. 5842747 issued August 27, 2019.
3 Registration No. 3533119 issued November 18, 2008; renewed.
Serial No. 88653231
- 3 -
o Software as a Service (SAAS) services featuring software for e-
commerce, billing and invoicing, payment processing, financial
management, financial management of recurring revenue, financial
management of subscription commerce and customer relationship
management; software as a service (SAAS) featuring a dashboard for
monitoring and analyzing e-commerce, customer purchases, billing and
invoicing, recurring revenue and subscription commerce; software
design for others, in International Class 42;4

owned by the second registrant.

When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed and briefed.
I. Preliminary Issues
Applicant attached to its reply brief, for the first time in the prosecution of its
application, an article from MERRIAM-WEBSTER titled either “When Is ‘Y’ a Vowel or
Consonant?” or “The Truth About ‘Y’: It’s Mostly a Vowel,” 44 TTABVUE 9-15,5 and
a Google result page for the search “how to pronounce jumbalya [sic].” 44 TTABVUE
16-18. These submissions were not timely made of record and we will not give them
any consideration. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (“The record in
the application should be complete prior to the filing of an appeal. Evidence should
not be filed with the Board after the filing of a notice of appeal.”). Moreover, “[b]y
attempting to introduce evidence with its reply brief, [A]pplicant has effectively
shielded this material from review and response by the Examining Attorney.” In re

4 Registration No. 5101536 issued December 13, 2016.
5 Citations to the briefs in the appeal record refer to the TTABVUE docket system. Citations
to the prosecution file refer to the .pdf version of the TSDR system record. In re Consumer
Protection Firm PLLC, 2021 USPQ2d 238, *3 n.3 (TTAB 2021).
Serial No. 88653231
- 4 -
Zanova, Inc., 59 USPQ2d 1300, 1302 (TTAB 2001). See also In re Nieves & Nieves
LLC, 113 USPQ2d 1629, 1631 (TTAB 2015) (“Because the Examining Attorney did
not treat the evidence attached to Applicant’s brief or reply brief as being of record,
we will not consider the evidence attached to these briefs if such evidence was not
made of record during prosecution of the application.”).
Applicant’s briefs are full of citations to multiple regional circuit and federal
district court cases. We are not bound by these authorities, but rather apply the law
set forth by our primary reviewing court, the U.S. Court of Appeals for the Federal
Circuit, and its predecessor, the U.S. Court of Customs and Patent Appeals.
Similarly, Applicant cites many non-precedential Board decisions involving
likelihood of confusion between marks and goods or services that are dissimilar from
the marks and services at issue herein. While applicants may cite to non-precedential
decisions, such decisions are not binding on the Board and the Board does not
encourage this practice. In re Fiat Grp. Mktg. & Corporate Commc’ns S.p.A., 109
USPQ2d 1593, 1596 n.6 (TTAB 2014); In re Procter & Gamble Co., 105 USPQ2d 1119,
1121 (TTAB 2012). In any event, those non-precedential decisions were decided on
different records, and we must base our analysis and decisions on the evidentiary
record before us. In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (“It has
been said many times that each case must be decided on its own facts.”). We do not
agree that the other cases offer helpful guidance in our analysis “because the critical
facts of different cases almost always differ substantially,” as they do here. In re Gen.
Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1027 (TTAB 2017).
Serial No. 88653231
- 5 -
The Office Actions and Examining Attorney’s brief use generalizations about the
relatedness of the services at issue. We appreciate that it may be time consuming to
tie focused arguments regarding specific services to individual pages of evidence
where there are multiple cited registrations identifying multiple classes of services;
however, instead of making general arguments and citing to website evidence
generally, it is helpful to applicants who must respond to refusals, and to the Board
which must determine issues on appeal, if service-specific arguments are made with
citations to specific pages of evidence, especially when the record includes many
multiple-page websites.
II. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on the likelihood of confusion. In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors
to be considered, referred to as “DuPont factors”); see also In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers
those DuPont factors for which there is evidence and argument. In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); see also Stratus
Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, *3
(Fed. Cir. 2020) (“Not all DuPont factors are relevant in each case . . . .”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities of the services. See In re Chatam Int’l Inc.,
380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort
Serial No. 88653231
- 6 -
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.”); see also In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus . . . on dispositive factors, such as similarity of the marks and
relatedness of the [services].”’) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308
F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). Another factor to be considered
when there is evidence of record is the number and nature of similar marks in use
with similar services, reflecting on the strength of the cited mark. DuPont, 177 USPQ
at 567; see also Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d
1671, 1674 (Fed. Cir. 2015).
We confine our DuPont analysis to the first registrant’s mark and services (i.e.,
Registration No. 5842747 for the standard-character mark ARYA identifying
“investment management services”). If we find a likelihood of confusion as to that
mark for the services identified therein, we need not reach the refusal based on the
other registrations. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010)
(“In view of this finding [of likelihood of confusion with one registration], we need not
consider whether applicant’s use of its mark is likely to cause confusion with [another
cited registration].”); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1201-02 (TTAB
2009) (Board determined likelihood of confusion with respect to only one of the two
cited registrations). Cf. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d
Serial No. 88653231
- 7 -
1043, 1064 (TTAB 2017) (in the interest of judicial economy it is not necessary to
determine each independent basis for relief); Multisorb Tech., Inc. v. Pactiv Corp.,
109 USPQ2d 1170, 1171 (TTAB 2013) (“Like the federal courts, the Board has
generally used its discretion to decide only those claims necessary to enter judgment
and dispose of the case. . . [T]he Board’s determination of registrability does not
require, in every instance, decision on every pleaded claim.”).
A. Similarity of the Services
We begin with the second DuPont factor, which “considers ‘[t]he similarity or
dissimilarity and nature of the goods or services as described in an application or
registration.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed.
Cir 2018) (quoting DuPont, 177 USPQ at 567). We must make our determination
based on the services as they are identified in the application and cited registration.
See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See
also Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston
Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The issue is not whether the services will be confused with each other, but rather
whether the public will be confused as to their source. See Recot Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). The application and
registration themselves may provide evidence of the relationship between the
services. Hewlett-Packard, 62 USPQ2d at 1005.
Serial No. 88653231
- 8 -
As indicated above, the services in the application are “financial services, namely,
investment management, investment consultation, and investment of funds of others,
particularly private equity, limited to investment in entrepreneur brands;” and the
services in cited Registration No. 5842747 are “investment management services.”
Applicant’s argument that its “investment in entrepreneur brands is . . . very
different from traditional investment services” such as those provided by Registrant
which offers investments “with mutual funds[ and] health [and] life insurance” is
unavailing. 41 TTABVUE 10; 44 TTABVUE 5. See also February 14, 2021 Request
for Reconsideration at 38-48 (aryainvestments.com). Applicant improperly seeks to
narrow the scope of the cited registration based on alleged marketplace realities;
however, our analysis of the likelihood of confusion is determined on the basis of the
services as they are identified in the application and registration at issue, not on
extrinsic evidence. There are no mutual fund limitations in Registrant’s identification
of services, which covers any and all types of investment management services. See
Octocom Sys., 16 USPQ2d 1783 at 1787 (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of [services] set forth in the application regardless of what the record may reveal as
to the particular nature of a [registrant’s services], the particular channels of trade
or the class of purchasers to which the sales of [services] are directed.”); Paula Payne
Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973)
(“Trademark cases involving the issue of likelihood of confusion must be decided on
the basis of the respective descriptions of goods [or services].”). “We have no authority
Serial No. 88653231
- 9 -
to read any restrictions or limitations into the registrant’s description of [services].”
In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009).
Moreover, where services are broadly identified in a registration, as is the case in
this appeal, “we must presume that the services encompass all services of the type
identified,” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015).
We give Registrant’s identification its full sweep; because Registrant’s “investment
management services” are broadly identified, they necessarily encompass Applicant’s
more narrowly identified “investment management . . . particularly private equity,
limited to investment in entrepreneur brands.” See In re Hughes Furniture Indus.,
Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.”’). In view thereof, the services are legally
identical, in part. See e.g., Stone Lion, 110 USPQ2d at 1162; In re i.am.symbolic, llc,
127 USPQ2d 1627, 1629 (TTAB 2018).
Due to the in-part legal identity of the services, the second DuPont factor weighs
in favor of finding likelihood of confusion.
B. Channels of Trade and Classes of Consumers
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion, 110 USPQ2d at 1161 (quoting DuPont,
177 USPQ at 567). Because the identifications in the application and cited
registration have no restrictions on channels of trade, we must presume that the
services travel in all channels of trade appropriate for such financial services. See
Serial No. 88653231
- 10 -
Hewlett-Packard, 62 USPQ2d at 1005. Similarly, because the services are legally
identical in part, we must presume that the channels of trade and classes of
purchasers for these services are the same. See Stone Lion, 110 USPQ2d at 1161; In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board
entitled to rely on legal presumption of channels of trade and classes of consumers in
determining likelihood of confusion); In re Info. Builders Inc., 2020 USPQ2d 10444,
*3 (TTAB 2020) (“Because . . . Applicant’s and Registrant’s goods and services are
legally identical in part, we must presume that these goods and services travel
through the same channels of trade and are offered or rendered to the same or
overlapping classes of purchasers.”) (citing Viterra, 101 USPQ2d at 1908; and In re
Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968)). See also
DeVivo v. Ortiz, 2020 USPQ2d 10153, *13 (TTAB 2020) (citing, inter alia, Hewlett-
Packard, 62 USPQ2d at 1004); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB
2003) (“Given the in-part identical and in-part related nature of the parties’ goods,
and the lack of any restrictions in the identifications thereof as to trade channels and
purchasers, these clothing items could be offered and sold to the same classes of
purchasers through the same channels of trade.”). As such, the third DuPont factor
also favors a finding of likelihood of confusion.
C. Consumer Sophistication
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing.’” Stone
Lion, 110 USPQ2d at 1162, quoting DuPont, 177 USPQ at 567. Applicant argues,
Serial No. 88653231
- 11 -
without citing any evidence in the record, that “[b]uyers of financial services are
sophisticated.” 41 TTABVUE 14; 44 TTABVUE 7. It is well settled that “[a]ttorney
argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367,
127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe
Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)).
In support of its argument, Applicant leans heavily on a non-precedential Board
decision from 1998 (In re The Pilot Funds, 1998 WL 306484, 1998 TTAB LEXIS 127,
Application Serial No. 74551253 (TTAB, June 5, 1998)) involving an application to
register a mark for “mutual fund investment service offered to bank and trust
company customers” and a cited registration identifying “security brokerage services;
namely, securities executions in a brokerage account on an annual fee basis in lieu of
commissions on individual transactions.” Pilot Funds, 1998 WL 306484, at *1. Based
on the identifications of services and lack of evidence from the Examining Attorney
in that case, the Board in Pilot Funds found that “not only [were the respective
services] specifically different, but the channels of trade in which such services are
rendered . . . [were] distinctly different . . . .” Id. at *2. Against this backdrop, the
Board also found that:
[W]hile ordinary investors may not necessarily be
sophisticated and highly knowledgeable with respect to
various financial investments and arrangements, the
purchase of mutual funds and the establishment of
securities brokerage accounts typically involve, due to the
not insubstantial sums of money necessary for such
transactions, a significant amount of care and deliberation
prior to the selection and execution thereof. Such activities
clearly are not done impulsively.
Id. at *2.
Serial No. 88653231
- 12 -
Unlike the different services and distinct channels of trade in Pilot Funds, in the
present appeal we are faced with services that are legally identical in part and a
presumption that the channels of trade and classes of purchasers for the services are
the same. Moreover, it is common knowledge that in 1998 when Pilot Funds was
decided the Internet and online banking were in their infancies, and that today – 23
years after the Pilot Funds decision – investment management services are easily
accessible to any adult with an Internet connection or mobile device and even a small
amount of cash.
Instead, we find Stone Lion, 110 USPQ2d 1157 (Fed. Cir. 2014), to be instructive.
Stone Lion involved two “investment management companies,” 110 USPQ2d at 1158,
one of which owned registered marks for services identified as “financial and
investment planning and research,” “investment management services,” “capital
investment consultation,” “equity capital investment,” and “venture capital services,”
id. at 1158-59, while the other party sought registration of “financial services, namely
investment advisory services, management of investment funds, and fund investment
services.” Id. at 1159. In affirming the Board’s finding that the services “‘are not
restricted to high-dollar investments or sophisticated consumers,’ but rather ‘could
be offered to, and consumed by, anyone with money to invest, including ordinary
consumers seeking investment services,’” id. at 1162, the Court determined that “the
Board properly considered all potential investors for the recited services, including
ordinary consumers seeking to invest in services with no minimum investment
requirement. Although the services recited in the application may also encompass
Serial No. 88653231
- 13 -
sophisticated investors, Board precedent requires the decision to be based ‘on the
least sophisticated potential purchasers.’” Id. at 1663 (quoting Gen. Mills, Inc. v. Fage
Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011)).
Even if we assumed that ordinary consumers of financial services will exercise
some care when making financial decisions, “it is well-established that even
sophisticated consumers are not immune from source confusion, especially where, as
here, the services are identical-in-part.” Fiserv, Inc. v. Elec. Transaction Sys. Corp.,
113 USPQ2d 1913, 1922 (TTAB 2015). Nonetheless, because Applicant does not point
to any evidence in the record to demonstrate that consumers in the general public of
the investment management services offered by Applicant and Registrant are
sophisticated or would exercise a high degree of care, and the standard of care is that
of the least sophisticated potential purchaser, Stone Lion, 110 USPQ2d at 1163, we
find the fourth DuPont factor to be neutral.
D. The Strength of the Cited Mark
Before reaching the degree of similarity of the marks, we address Applicant’s
arguments, see 41 TTABVUE 5-8 and 44 TTABVUE 3-4, presumably under the fifth
and sixth DuPont factors which consider the strength of the cited registered mark,
and the extent to which that strength may be attenuated by “[t]he number and nature
of similar marks in use on similar [services].” DuPont, 177 USPQ at 567. The strength
of a mark may be assessed based on its conceptual strength arising out of the nature
of the mark itself and its commercial strength, derived from the marketplace
recognition of the mark. In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d
Serial No. 88653231
- 14 -
1681, 1686 (Fed. Cir. 2010). For likelihood of confusion purposes, a mark’s strength
“varies along a spectrum from very strong to very weak.” Joseph Phelps Vineyards,
LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir.
2017) (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)). Evidence of
extensive registration and use of similar marks by others in the field can be powerful
evidence of a mark’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015); Juice Generation, 115 USPQ2d at 1674.
Two of Applicant’s main arguments focus exclusively on the term ARIA, but not
on the cited mark ARYA. These main arguments – that ARIA is laudatory and
therefore weak, 41 TTABVUE 5, and that there are several third-party registrations
for ARIA, 41 TTABVUE 5-8 – miss the mark when we consider the cited mark ARYA.
There is no evidence of record demonstrating that the term ARYA has any meaning,
nor is there evidence of any third-party registration of ARYA. Indeed, Applicant
appears to address the cited ARYA registration primarily in the context of the
services (the second DuPont factor), 41 TTABVUE 10,6 and the appearance, sound,
and commercial impression of the marks (the first DuPont factor). 41 TTABVUE 11-
12, 13, 14.

6 Although Applicant’s brief refers twice to “the ‘563 Mark [i.e., Registration No. 5101536],”
it is clear from the argument, URL, and exhibit cited that in this paragraph Applicant is
referring to Registration No. 5842747. 41 TTABVUE 10.
Serial No. 88653231
- 15 -
Applicant’s third and final main argument about weakness considers ARYA, but
only in the single sentence that “[t]he weakness of the ARIA element is further
demonstrated by the fact that the [cited marks and ARIA SYSTEMS] coexist
with the [cited mark ARYA].” 41 TTABVUE 8. There are two flaws in this argument.
First, Applicant quotes Jack Wolfskin, 116 USPQ2d at 1136, for the proposition
that “given extensive third party use, customers have been educated to distinguish
between different marks on the basis of minute distinctions.” (emphasis and internal
quotation removed). 41 TTABVUE 8. However, Applicant did not submit evidence of
marketplace use of third-party marks. Cf. Juice Generation, 115 USPQ2d at 1671
(‘[E]vidence of third-party use bears on the strength or weakness of an opposer’s
mark.”); Palm Bay Imps., 73 USPQ2d at 1694 (“[T]he purpose of a defendant
introducing third party uses is to show that customers have become so conditioned
by a plethora of such similar marks that customers have been educated to distinguish
between different [such] marks on the bases of minute distinctions.” (internal
quotation omitted; emphasis supplied)). The three cited registrations cannot show
that Registrants’ marks coexist with a “crowded field” of other similar marks in the
marketplace “because . . . registrations standing alone, are not evidence that the
registered marks are in use on a commercial scale, let alone that consumers have
become so accustomed to seeing them in the marketplace that they have learned to
distinguish among them by minor differences.” In re Morinaga Nyugyo K.K., 120
USPQ2d 1738, 1745 (TTAB 2016) (citing Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462 (CCPA 1973). The “real evidentiary value of third party
Serial No. 88653231
- 16 -
registrations per se is to show the sense in which . . . a mark is used in ordinary
parlance.” Juice Generation, 115 USPQ2d at 1674-75 (quoting 2 MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 11:90 (emphasis added by the Court)).
Second, while the three cited registrations owned by two separate registrants may
coexist, the combination of Applicant’s mark and identified services comes closer to
the cited registrations than those registrants are to each other. Applicant’s services
are encompassed within and in-part legally identical to the first registrant’s services,
and Applicant’s mark incorporates the identical literal, distinctive element of the
second registrant’s marks (i.e., ARIA). In this regard, Applicant’s combination of
elements from each of the first and second registrants moves Applicant impermissibly
close to each cited registration.
Even if we were to consider Applicant’s two main arguments (concerning ARIA),
we would not be persuaded as each argument is inapposite. To the extent Applicant
argues that the term ARIA “is laudatory and therefore [conceptually] weak,” 41
TTABVUE 5, we disagree. Laudatory terms are those that attribute quality or
excellence to goods or services to the point where the term is merely descriptive of the
goods or services. See, e.g., In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001) (THE ULTIMATE BIKE RACK is “a laudatory descriptive
phrase that touts the superiority of Nett Designs’ bike racks”); In re The Place Inc.,
76 USPQ2d 1467, 1468 (TTAB 2005) (“[T]he courts of appeal and this Board have
held that other marks which arguably denote ‘high quality,’ ‘excellence’ and ‘superior
Serial No. 88653231
- 17 -
quality’ are laudatory and thus merely descriptive.”). ARIA does not do this.7 None of
the definitions of record demonstrate that ARIA is laudatory. At worst, it might be
suggestive. Applicant stretches the truth and mischaracterizes the evidence of record
when it states that “ARIA is often used ‘to describe someone’s impressive solo
performance of any type.’” 41 TTABVUE 5 (emphasis added). Instead, the evidence
demonstrates in a usage note that ARIA “is sometimes used almost metaphorically
to describe someone’s impressive solo performance of any type.” See July 17, 2020
Response to Office Action at 21 (vocabulary.com/dictionary/aria). And, Applicant
failed to submit any evidence that consumers of the relevant services would perceive
it thusly to describe the involved services.
To the extent Applicant argues that ARIA is weak due to 12 third-party
registrations “in connection with a wide variety of goods and services,” 41 TTABVUE
6, we find most of the third-party registration evidence carries little to no probative
value because the registrations are for unrelated goods or services so varied and far
afield from the investment management services in this appeal that we need not list
them here.8 See Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d

7 See any of the definitions of “aria” or record, including July 17, 2020 Response to Office
Action at 21 (vocabulary.com, “an elaborate song written specifically for a solo voice.”) and 24
(merriam-webster.com, Entry 1: (1) “an accompanied, elaborate melody sung (as in an opera)
by a single voice,” (2) “a striking solo performance (as in a movie),” and (3) “a written or
spoken passage of text likened to a dramatic or emotional operatic solo.”; and Entry 2: “an
eastern province of the ancient Persian Empire; district now in northwestern Afghanistan
and eastern Iran”); March 10, 2021 Request for Reconsideration Denied at 31-32
(dictionary.com, “an air or melody,” “an elaborate melody sung solo with accompaniment, as
in an opera or oratorio,” and “a nymph, the mother of Miletus, by Apollo.”).
8 The third-party registration certificates were submitted with both the July 17, 2020
Response to Office Action at 33-51, and the February 14, 2021 Request for Reconsideration
at 25-37. Because Applicant made of record copies of registration certificates rather than
Serial No. 88653231
- 18 -
1315, 128 USPQ2d 1686, 1693-94 (Fed. Cir. 2018) (the controlling inquiry under the
sixth DuPont factor is the extent of third-party marks in use on “similar” services);
i.am.symbolic, 123 USPQ2d at 1751 (disregarding third-party registrations for goods
in other classes where the proffering party “has neither introduced evidence, nor
provided adequate explanation to support a determination that the existence of I AM
marks for goods in other classes, . . . support[s] a finding that registrants’ marks are
weak with respect to the goods identified in their registrations”); In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018) (unrelated third-party
registrations of little or no probative value). Only two of the third-party registrations
that could even be considered in the penumbra financial services, involve “energy
brokerage services” (Registration No. 4974003 for ) and “insurance brokerage
services” (Registration No. 5875430 for ARIAS AGENCIES); but, evidence of just two
third-party registrations “is a far cry from the large quantum of evidence of third-
party use and third-party registrations that was held to be significant in both [Jack
Wolfskin] and [Juice Generation].” Inn at St. John’s, 126 USPQ2d at 1746 (internal
citations omitted).
At any rate, as we noted above, our concern is the strength or weakness of the
cited mark ARYA, not Applicant’s mark ARIA. See Juice Generation, 115 USPQ2d at

printouts from the Office’s TSDR database, we cannot determine from the record whether
the registrations are valid and subsisting, and we do not take judicial notice of the status of
third-party registrations. TRADEMARK BOARD MANUAL OF PROCEDURE (TBMP) § 1208.04
(2021). However, we consider the status of the registrations to have been stipulated to by the
Examining Attorney who treated the registrations as of record without objection. See In re
Olin Corp., 124 USPQ2d 1327, 1335 n.22 (TTAB 2017).
Serial No. 88653231
- 19 -
1674. Applicant has not demonstrated any meaning or weakness of the term ARYA,
and because it is registered without a claim to acquired distinctiveness on the
Principal Register, it is entitled to a presumption of validity under Section 7(b) of the
Trademark Act, 15 U.S.C. § 1057(b), including that it is inherently distinctive for the
services. Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006).
In view thereof, we find that ARYA falls at least in the middle of the spectrum of
strength. Joseph Phelps Vineyards, 122 USPQ2d at 1734. Accordingly, fourth DuPont
and fifth DuPont factors are neutral.
E. Similarity or Dissimilarity of the Marks
Finally, we turn to the first DuPont factor which considers the “similarities or
dissimilarities of the marks in their entireties as to appearance, sound, connotation
and commercial impression.” Detroit Athletic, 128 USPQ2d at 1051 (quoting DuPont,
177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find
the marks confusingly similar.” Inn at St. John’s, 126 USPQ2d at 1746 (quoting In re
Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). The emphasis of our analysis must be
on the recollection of the average purchaser who normally retains a general, rather
than specific, impression of trademarks. Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1740 (TTAB 2014). Consumers may not necessarily encounter the
marks in close proximity and must rely upon their recollections thereof over time. In
re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988).
The proper test regarding similarity “is not a side-by-side comparison of the
marks, but instead whether the marks are sufficiently similar in terms of their
Serial No. 88653231
- 20 -
commercial impression such that persons who encounter the marks would be likely
to assume a connection between the parties.” Diamond Hong, 127 USPQ2d at 1801
(quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). We keep
in mind that “[s]imilarity is not a binary factor but is a matter of degree,” In re St.
Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re
Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)), and that
because the involved investment management services are in-part legally identical,
“the degree of similarity between the marks necessary to support a determination
that confusion is likely declines.” i.am.symbolic, 127 USPQ2d at 1630 (citing
Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673 F.3d. 1330, 102 USPQ2d
1061, 1064 (Fed. Cir. 2012); Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601
F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); and Century 21 Real Estate Corp.
v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992)).
The marks must be considered in their entireties, In re St. Julian Wine Co., 2020
USPQ2d 10595, at *4-5 (TTAB 2020), but “in articulating reasons for reaching a
conclusion on the issue of confusion, 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.” Detroit Athletic, 128 USPQ2d at 1050 (quoting In re Nat’l Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)); see also Stone Lion, 110 USPQ2d at
1161.
Serial No. 88653231
- 21 -
Applicant’s mark is ARIA GROWTH PARTNERS in standard characters with
GROWTH PARTNERS disclaimed, and the first registrant’s mark is ARYA in
standard characters.
Applicant argues that the marks are “visually very different” because Applicant’s
mark contains the additional words “GROWTH PARTNERS, both of which are much
longer than the first word, ARIA, and therefore, the consumer is more likely to focus
on these elements as opposed to the ARIA element. The difference between ARIA
with an ‘I’ and ARYA with a ‘Y’ further distinguishes the marks visually . . . .” 41
TTABVUE 11-12. The Examining Attorney argues that “the dominant portion of”
Applicant’s mark is ARIA and this portion is “similar in appearance” to ARYA
because each term “consist[s] of four letters, three of which are identical.” 43
TTABVUE 5.
We agree with the Examining Attorney that the dominant portion of Applicant’s
mark is ARIA, and cannot agree with Applicant that consumers would be more likely
to focus on GROWTH PARTNERS instead of ARIA. The first term in a mark such as
Applicant’s is often its dominant portion. 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”); see also Palm
Bay Imps., 73 USPQ2d at 1692; Century 21 Real Estate, 23 USPQ2d at 1700. The
ARIA portion of Applicant’s mark is similar in appearance to ARYA, differing by one
letter – an I substituting for a Y. The appearance of the marks are additionally similar
because both are in standard characters and thus may be presented in the same or
Serial No. 88653231
- 22 -
highly similar styles or fonts inasmuch as marks presented in standard characters
are not limited to any particular depiction. The rights associated with a mark in
standard characters reside in the wording and not in any particular display. Viterra,
101 USPQ2d at 1909-11.
Applicant has disclaimed the wording GROWTH PARTNERS in recognition of its
descriptiveness,9 and disclaimed matter that is descriptive of or generic for a party’s
services is typically less significant or less dominant when comparing marks. See
Detroit Athletic, 128 USPQ2d at 1050 (citing Dixie Rests., 41 USPQ2d at 1533-34
(Fed. Cir. 1997)). Moreover, given “the penchant of consumers to shorten marks,” In
re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor
Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (“the
users of language have a universal habit of shortening full names--from haste or
laziness or just economy of words”)), and the descriptive nature of GROWTH
PARTNERS, it is unlikely that consumers will rely on this term for purposes of
distinguishing the marks. See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181,
1188 (TTAB 2018) (“consumers often have a propensity to shorten marks” when
ordering goods or services orally); Detroit Athletic 128 USPQ2d at 1049 (“[N]on-source
identifying nature of the words and the disclaimers thereof constitute rational
reasons for giving those terms less weight in the analysis.”). Having determined that

9 The Examining Attorney attached evidence to the first Office action demonstrating that
GROWTH PARTNERS “is commonly used in connection with” Applicant’s services to “refer
to entities or groups focused on equity building and investment services.” January 21, 2020
Office Action at 5, and exhibits at 14 (Bridge Growth Partners), 53 (Industrial Growth
Partners), 91 (H.I.G. Growth Partners).
Serial No. 88653231
- 23 -
ARIA is the dominant portion of Applicant’s mark, we recognize that “[n]o element of
a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239,
1240 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d
1293, 184 USPQ 35 (CCPA 1974)).
The Examining Attorney also argues that ARIA “is phonetically equivalent to [the
first] registrant’s mark” ARYA. 43 TTABVUE 5. Applicant, on the other hand, argues
that its “mark is phonetically very different from [ARYA] because” ARIA GROWTH
PARTNERS “contains three additional syllables . . . [and], while the first element of
Applicant’s Mark would be pronounced as R-EE-AH, the [first registrant’s m]ark
would be pronounced R-YA.” 41 TTABVUE 13. We assume from Applicant’s use of R-
EE-AH that it intends a pronunciation of ARIA as \är-ē-ah\. However, the record
does not support either of Applicant’s proposed pronunciations. Firstly, we note that
there is no evidence of record demonstrating how the cited mark ARYA would be
pronounced; and, secondly, we note the multiple pronunciations of record for ARIA
as \‘är-ē-ə\, \‘er-ē-ə\, \‘a-rē-ə\, and \ə-rī-ə\;10 and \ahr-ee-uh\, \air-ee-uh\, and
\uh-rahy-uh\.11 These pronunciations differ based not only on the various
definitions of ARIA, but, significantly, a single definition may have multiple
pronunciations. Regardless of how Applicant intends for its mark to be pronounced,
the record demonstrates multiple other pronunciations. Similarly, Applicant does not

10 July 17, 2020 Response to Office Action at 24 (merriam-webster.com).
11 March 10, 2021 Request for Reconsideration Denied at 31-32 (dictionary.com).
Serial No. 88653231
- 24 -
provide any evidence in support of its assertion of how customers are likely to
pronounce ARYA. See Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825,
1835 (TTAB 2013) (quoting Viterra, 101 USPQ2d at 1912) (“[T]here is no correct
pronunciation of a trademark, and consumers may pronounce a mark differently than
intended by the brand owner.”); Centraz Indus. Inc. v. Spartan Chem. Co., 77 USPQ2d
1698, 1701 (TTAB 2006) (“[I]t obviously is not possible for a trademark owner to
control how purchasers will vocalize its mark.”). We find that ARIA and ARYA may
be pronounced the same or similarly, given that only one letter is different.
Considering the fallibility of human memory, the difference of a single “I” for a “Y” in
the terms is not enough to distinguish how they sound. See In re Total Quality Grp.
Inc., 51 USPQ2d 1474, 1476 (TTAB 1999) (one letter difference between
STRATEGYN and registered mark STRATEGEN not enough to prevent confusion for
related software products); K.K. Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462
(TTAB 1985) (SEYCOS “is virtually the phonetic equivalent of” SEIKO); In re Great
Lakes Canning, Inc., 227 USPQ 483, 484 (TTAB 1985) (CAYNA and CANA “are
readily susceptible to similar pronunciations”).
Applicant also argues that “[t]he commercial impression of [its m]ark focuses on
GROWTH PARTNERS, which lets the consumer know that he or she will increase
his or her wealth (“grow”) and also have a sense of community by being a part of a
partnership. By contrast, . . . ARYA, sounds like a girl’s name, and therefore, it is . . .
very different from Applicant’s GROWTH PARTNERS.” 41 TTABVUE 14. As
discussed above, we find ARIA to be the dominant portion of Applicant’s mark, not
Serial No. 88653231
- 25 -
the descriptive GROWTH PARTNERS. Neither Applicant nor the Examining
Attorney has demonstrated that any particular definition of ARIA would be
associated with Applicant’s services or the descriptive wording in its mark such that
consumers would likely perceive any one meaning of the wording in the mark. To the
extent that we accept Applicant’s unsupported argument that ARYA “sounds like a
girl’s name,” the record demonstrates that ARIA is also a name, particularly in
Classical Mythology “the mother of Miletus, by Apollo,”12 and thus could convey the
same commercial impression of a female name.
We recognize that the marks have some differences, particularly the one-letter
substitution between ARYA and ARIA, and the addition of the descriptive wording
GROWTH PARTNERS in Applicant’s mark. However, we find that the similarities
in sound, appearance, and commercial impression outweigh the dissimilarities. Thus,
the first DuPont factor favors a finding of likelihood of confusion.
F. Summary
Looking to cited Registration No. 5842747 for the mark ARYA owned by the first
registrant, we find that the marks are overall more similar than dissimilar; the
services are legally identical in-part, move in the same trade channels, and are
marketed to the same consumers; the cited mark is neither conceptually nor
commercially weak; and that ordinary consumers will not exercise a higher degree of
care. Balancing these factors, we conclude that Applicant’s mark ARIA GROWTH

12 March 10, 2021 Request for Reconsideration Denied at 32 (dictionary.com).
Serial No. 88653231
- 26 -
PARTNERS so resembles the registered mark ARYA as to be likely to cause
confusion, mistake, or deception as to the source of Applicant’s services. Due to the
similarity of the marks, and the legal identity of the services and consequent identity
of the trade channels and consumers, we make this conclusion even if consumers of
investment management services would exercise a slightly higher degree of care, as
the former considerations outweigh any slight elevation in consumer sophistication.
III. Decision
The refusal to register Applicant’s mark ARIA GROWTH PARTNERS is affirmed
based on Registration No. 5842747.13

13 As noted above, we need not reach the refusal based on the second registrant. Max Capital
Grp., 93 USPQ2d at 1248; Davey Prods., 92 USPQ2d at 1201-02; Tao Licensing, 125 USPQ2d
at 1064; and Multisorb Tech., 109 USPQ2d at 1171.