Beyond Compare Auto Detail, LLC

Trademark Trial and Appeal Board

Jul 6, 2021

88749147 (T.T.A.B. Jul. 6, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: July 6, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Beyond Kompare Auto Detail, LLC1
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Serial No. 88749147
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Ryan Willis of Dorton & Willis, LLP,
for Beyond Compare Auto Detail, LLC.
Inga Ervin, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
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Before Lykos, Coggins, and Lebow,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
I. Background
Beyond Compare Auto Detail, LLC (“Applicant”) seeks registration on the
Principal Register of the mark BEYOND KOMPARE (in standard characters) for
“automobile interior and exterior detailing; automobile paint reconditioning,

1 The mistake in the spelling of Applicant’s name has been corrected to reflect Applicant’s
August 12, 2020 Voluntary Amendment.
Serial No. 88749147
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restoration services, and application of protective coatings,” in International Class
37.2
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 services identified in the application, so resembles the mark CUSTOMER
CARE BEYOND COMPARE (in standard characters) for “retail store services
featuring automobiles,” in International Class 35,3 on the Principal Register as to be
likely to cause confusion, to cause mistake, or to deceive.
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 fully briefed. For the reasons set forth
below, we affirm the refusal to register.
II. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a 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 only those
DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912

2 Application Serial No. 88749147 was filed on January 7, 2020, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
first use in commerce since at least as early as January 1, 2020.
3 Registration No. 5625602, issued December 11, 2018.
Serial No. 88749147
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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 . . . .”). Two key considerations
are the similarities between the marks and the relatedness 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 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 [services] and differences in the
marks.”). Indeed, these are the only two considerations argued in the briefs.
A. Relatedness 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). The issue is not whether purchasers
would confuse the services, but whether there is a likelihood of confusion as to the
source of the services. L’Oreal v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012). The
services need not be identical or even competitive to find a likelihood of confusion.
On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed.
Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir.
2000). They need only be “related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.” Coach Servs., Inc. v. Triumph Learning
Serial No. 88749147
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LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc.
v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
As indicated above, the services in the application are “automobile interior and
exterior detailing; automobile paint reconditioning, restoration services, and
application of protective coatings,” and the services in the cited registration are “retail
store services featuring automobiles.”
The Examining Attorney argues that the services are related because they often
emanate from a single source, particularly that automotive dealership which sell cars
often provide detailing and protective coating services. In support of this argument
the Examining Attorney cites to copies of web pages attached to the March 26 and
September 8, 2020 Office actions showing various third-parties advertising both sales
of automobiles and detailing or protective coating services for automobiles under the
same mark.4 Applicant does not dispute this evidence, but argues that “the Office
misinterpreted the description of services for the cited mark to overlap with those
services listed for Applicant’s mark, despite different service classifications.”5
Applicant’s arguments are misplaced. Classification is merely an administrative
act that has no bearing on the determination of likelihood of confusion. In re Detroit
Athletic, 128 USPQ2d at 1051 (citing Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 29
USPQ2d 1771, 1774 (Fed. Cir. 1993)). Services also do not need to overlap or be

4 See March 26, 2020 Office Action, TSDR 5 (WendleNissan.com), 6-7 (HudsonFord.com), 8-
10 (VolvoCarsBethesda.com); September 8, 2020 Final Office Action, TSDR 4-5 (jobs.net/jobs/
Chrysler-dealers), 6-8 (parts.Toyota.com/accessories/Toyota_/body-and-paint-protection).
5 Brief, p. 2 (6 TTABVUE 6).
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directly competitive to support a finding of likelihood of confusion. In re RiseSmart,
Inc., 104 USPQ2d 1931, 1934 (TTAB 2012). The evidence need only establish that the
services are related in some manner, or they are marketed in way that could be
encountered by the same purchasers under circumstances that could give rise to the
mistaken belief that they emanate from a common source. Coach Servs., Inc. v.
Triumph Learning LLC, 101 USPQ2d at 1722; In re RiseSmart, 104 USPQ2d at 1934.
We find that the third-party web page evidence showing the same mark used for
both sets of services is probative to demonstrate that Applicant’s and Registrant’s
automotive services are related for likelihood of confusion purposes. See, e.g., In re
Detroit Athletic, 128 USPQ2d at 1051 (relatedness supported by evidence that third
parties sell both types of goods under same mark, showing that “consumers are
accustomed to seeing a single mark associated with a source that sells both.”); In re
Anderson, 101 USPQ2d 1912, 1920 (TTAB 2012) (Internet excerpts from “several
third-party car dealerships offering ‘tires’ for sale on their websites” was “evidence
that consumers expect to find both ‘tires,’ . . . “and ‘automobiles’ . . . emanating from
a common source.”).
The second DuPont factor weighs in favor of finding that confusion is likely.
B. Similarity of the Marks
The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athl. Co., 903 F.3d 1297, 128 USPQ2d 1047. 1051 (Fed. Cir. 2018)
(quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be
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sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d
1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)),
aff’d mem., 777 Fed. App’x. 516 (Fed. Cir. 2019).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but whether their overall commercial impressions are so similar that
confusion as to the source of the services offered under the respective marks is likely
to result. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed.
Cir. 2018) (citing Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721).
Our focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of service marks. See Neutrogena Corp. v.
Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers
“may have but dim recollections from having previously seen or heard one or the other
of the involved marks.”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740
(TTAB 2014).
The Examining Attorney argues that Applicant’s mark BEYOND KOMPARE and
the cited mark CUSTOMER CARE BEYOND COMPARE are similar “because of the
common use of the wording BEYOND C(K)OMPARE in both marks. As such, the
marks sound alike when spoken.”6 Applicant, on the other hand, argues that the
presence of the “two aurally dissimilar words” CUSTOMER CARE in the cited mark
“immediately distinguish [it] from Applicant’s mark;”7 the hard-C alliteration in the

6 Examining Attorney’s Appeal Brief, unnumbered p. 4 (8 TTABVUE 5).
7 6 TTABVUE 8.
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cited mark is significant and that mark “appears to be a double entendre that
comprises a unitary expression for which no disclaimer of its constituent words is
necessary;”8 the “alternative spelling of ‘KOMPARE’” (with an initial “k” instead of a
“c”) is “visually conspicuous and distinctively memorable,”9 especially because the
cited mark contains alliterative Cs;10 and the Examining Attorney generally failed to
“consider the marks in their entireties” and specifically failed to consider the
“objectively distinguishing aspects of the marks.”11
We agree with Applicant that there are differences between the marks, and we
must consider them. However, while Applicant is correct in noting that the marks
have a different number of words and differences in sound when considered as a
whole, Applicant’s arguments require a level of scrutiny of the marks that might be
employed if they were viewed and heard simultaneously. Instead, the marks “‘must
be considered . . . in light of the fallibility of human memory’ and ‘not on the basis of
side-by-side comparison.”’ In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,
1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977)).
It is undisputed that each mark contains the phonetic term BEYOND COMPARE,
which sounds identical. Indeed, BEYOND COMPARE has the same phonetic
pronunciation as Applicant’s entire mark. The letter “k” in Applicant’s KOMPARE is

8 Id. at 9.
9 Id. at 9.
10 Id. at 9-10.
11 Id. at 6.
Serial No. 88749147
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not particularly distinctive, as the substitution of the letter “k” for the “c” in
Registrant’s mark has no effect on pronunciation. See Kabushiki Kaisha Hattori
Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985) (“In our view, the word portion
of applicant’s mark ‘SEYCOS’, is virtually the phonetic equivalent of opposer’s
‘SEIKO’ mark and is, in fact, the phonetic equivalent of the plural of opposer’s
mark.”). Further, while the cited mark contains the additional wording CUSTOMER
CARE, it does not detract from the identical BEYOND COMPARE sound. The
rhyming nature and cadence of the cited mark CUSTOMER CARE BEYOND
COMPARE as a whole, does not detract from the similar sound of Applicant’s
BEYOND KOMPARE mark; because of the CARE-COMPARE rhyme scheme and
cadence, the cited mark maintains a phonetic similarity to Applicant’s mark.
The marks are also visually similar to the extent that Applicant’s mark is
contained within Registrant’s mark, although with a “k” substituted for the “c” in
“compare.” Since both marks appear in standard characters, we must consider that
they may be presented in the same font, size and color. In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). As such, Applicant’s mark could be
depicted in any font size, style, or color that Registrant might adopt for its mark. In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012); Citigroup
Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir.
2011) cited in Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816,
1823 (TTAB 2015). 12

12 See January 7, 2020 Specimen, TSDR 1.
Serial No. 88749147
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In comparing the connotation and commercial impressions of the marks,
Applicant argues that “[c]ontext maters.”13 We agree and must examine what
BEYOND COMPARE connotes in each mark in the context of the marks in their
entireties as well as the involved services.
We take judicial notice that “beyond compare” is an idiom which means “better or
greater than any other: having no equal.”14 The Examining Attorney argues that
“despite the additional term ‘customer care’ in the registered mark, Applicant’s mark
(BEYOND KOMPARE) and the registered mark (CUSTOMER CARE BEYOND
COMPARE) are likely to be confused because the marks have the same commercial
impression. That is, in viewing the marks, the recollection of the average purchaser
would be the same; that of quality service, or service that is ‘beyond compare.’”15
Applicant, on the other hand, argues that “[w]hen observing or hearing Applicant’s
BEYOND KOMPARE mark, one is left without an indication of what goods or services
might be ‘beyond kompare’. In contrast, the cited mark begins with – and emphasizes
– ‘CUSTOMER CARE,’ clearly accentuating customer service aspects.”16
We agree with Applicant that the cited mark connotes extraordinary customer
care. The cited mark is laudatory, expressing praise for Registrant’s customer service

13 Reply brief, p. 2 (9 TTABVUE 6).
14 Merriam-Webster.com/dictionary/beyond%20compare (accessed July 1, 2021). The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823
F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100,
1104 n.9 (TTAB 2018).
15 8 TTABVUE 6.
16 6 TTABVUE 12.
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associated with its sales of automobiles. This is not unlike Applicant’s laudatory mark
which, when viewed in context with Applicant’s services, is also laudatory and
connotes praise for Applicant’s own automotive services.17 Because the connotation
in Applicant’s mark is broad, it encompasses all of Applicant’s services including its
customer service. We find the connotations and commercial impressions of the marks
similar when the marks are compared in their entireties.
Applicant asserts that “customer care” is the dominant portion of the cited mark
because it is modified by “beyond compare.”18 We do not agree. As mentioned above,
“beyond compare” is an idiom and it is the portion of Registrant’s mark that gives the
mark its laudatory connotation; it is an integral portion of the mark not only because
the rhyming scheme, cadence, and alliteration make the mark unitary, but because
it directs the meaning of Registrant’s mark.
The Examining Attorney is correct to note that marks have frequently been found
to be similar where one mark incorporates the entirety of another mark, as is
effectively the case here. See, e.g., Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v.
Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975)
(applicant’s mark BENGAL LANCER for club soda, quinine water and ginger ale

17 Applicant has not demonstrated or argued that either the letter “k” or the word “compare”
spelled with the letter “k” (i.e., “kompare”) has any significance when associated with the
detailing, reconditioning, restoration, or coating services. We are not aware of any such
significance, and the specimen does not reveal unusual use of the letter “k” that would affect
the connotation or commercial impression. See, e.g., Specialty Brands, Inc. v. Coffee Distribs.,
Inc., 748 F.2d 669, 223 USPQ 1281, 1284 (Fed. Cir. 1984) (it is proper to look to the specimens
to determine the connotation or meaning of a mark).
18 9 TTABVUE 6.
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likely to cause confusion with BENGAL for gin); In re Mr. Recipe, LLC, 118 USPQ2d
1084, 1090 (TTAB 2016) (finding JAWS DEVOUR YOUR HUNGER and JAWS
confusingly similar); In re S. Bend Toy Mfg. Co., Inc., 218 USPQ 479, 480 (TTAB
1983) (finding LIL’ LADY BUG for toy doll carriages and LITTLE LADY for doll
clothing confusingly similar). The “beyond compare” portion of Registrant’s mark
lends a similar connotation and commercial impression to that mark which is
encompassed within the meaning of Applicant’s mark.
As to Applicant’s assertion that the “cited mark appears to be a double entendre,”19
we do not discern any ambiguous meaning in that mark, and Applicant offers no
explanation as to what alternative meaning it believes Registrant’s mark engenders.
While the rhyming scheme, cadence, and alliteration may make the cited mark
unitary, such that the individual elements need not be disclaimed if descriptive, see
TMEP § 1213.05(e), they do not create a double entendre. A “double entendre” is
defined as “ambiguity of meaning arising from language that lends itself to more than
one interpretation.” In re The Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005)
(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993)). “For trademark
purposes, a ‘double entendre’ is an expression that has a double connotation or
significance as applied to the goods or services.” TMEP § 1213.05(c), cited in In re
Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017).
Given the resemblance in sound, appearance, connotation and commercial
impression when the marks are considered in their entireties, the marks are more

19 6 TTABVUE 9.
Serial No. 88749147
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similar than dissimilar, and the first DuPont factor weighs in favor of likely
confusion.
C. Summary
We have found that the services are related for likelihood of confusion purposes,
and that although there are difference between the marks, they more similar than
dissimilar when considered in their entireties. When analyzing the DuPont factors,
the overriding concern is not only to prevent buyer confusion as to the source of the
automobile-related services, but also to protect the registrant from adverse
commercial impact due to use of a similar mark by a newcomer. In re Country Oven,
2019 USPQ2d 443903, *2-3 (TTAB 2019) (citing In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1690 (Fed. Cir. 1993)). While additional wording in the cited mark
creates some differences in appearance, sound, and connotation, we find the marks
overall more similar than dissimilar, particularly because we must consider the
marks “‘in light of the fallibility of memory.’” See In re St. Helena Hosp., 113 USPQ2d
at 1085. Accordingly, we find that when Applicant’s mark BEYOND KOMPARE is
used in connection with “automobile interior and exterior detailing; automobile paint
reconditioning, restoration services, and application of protective coatings,” it is likely
to cause confusion with Registrant’s mark CUSTOMER CARE BEYOND COMPARE
used in connection with “retail store services featuring automobiles.”
III. Decision
The refusal to register Applicant’s mark BEYOND KOMPARE is affirmed.