Calero Software, LLC

Trademark Trial and Appeal Board

Nov 3, 2020

88216346 (T.T.A.B. Nov. 3, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 3, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Calero Software, LLC
_____

Serial No. 88216346
_____

Jeffrey P. Thennisch of Lorenz & Kopf, LLP,
for Calero Software, LLC.
Laurie Mayes, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Zervas, Greenbaum and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Calero Software, LLC (“Applicant”) seeks registration on the Principal Register of
the mark COMVIEW (in standard characters) for:
Online, non-downloadable software for telecommunications
management and mobile, cloud, and unified communications
management, namely, for processing voice and data call detail and
billing records, service and maintenance records and equipment location
and inventory records in International Class 42.1

1 Application Serial No. 88216346 (the “‘346 Application”) was filed on December 4, 2018,
based upon Applicant’s claim of first use anywhere since at least as early as January 2018,
and first use in commerce since at least as early as April 5, 2018.
Serial No. 88216346
- 2 -

The Trademark Examining Attorney refused registration of Applicant’s mark on
the grounds of likelihood of confusion under Trademark Act Section 2(d), 15.U.S.C.
§1052(d), with the following marks all registered on the Principal Register to At
Comm Corporation (“Registrant”):
COMMVIEW (in standard characters) for “Computer software in the
field of telephone call and data network accounting and traffic analysis”
in International Class 9.2
COMMVIEW PLUS (in standard characters) for “Computer software in
the field of telephone call and data network accounting and traffic
analysis” in International Class 9.3
COMMVIEW CLOUD (in standard characters; “Cloud” disclaimed) for
“Cloud computing featuring software for use in the field of telephone call
and data network accounting and traffic analysis” in International Class
42.4
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the Board resumed the appeal. Applicant and the Examining
Attorney filed briefs. We affirm the refusal to register.
I. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling Co.,

2 Registration No. 2687134 (the “‘134 Registration”), issued on February 11, 2003; renewed.
3 Registration No. 5486129 (the “‘129 Registration”), issued on June 5, 2018.
4 Registration No. 5486130 (the “‘130 Registration”), issued on June 5, 2018.
Serial No. 88216346
- 3 -

315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to the various DuPont factors depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more
or less weighty roles in any particular determination”). Two key considerations are
the similarities between the marks and the relatedness of the goods and services. See
In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017)
(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,
1380 (Fed. Cir. 2002) (“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 goods.’”)).
Serial No. 88216346
- 4 -

II. Likelihood of Confusion - Analysis
We now consider the arguments of Applicant and the Examining Attorney, the
applicable law and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney discussed are the similarity or dissimilarity
of the marks, the strength of the cited marks, the relatedness of the goods and/or
services associated with the respective marks, the channels of trade and classes of
purchasers therefor, and the sophistication of the consumers for the goods and/or
services.5 We discuss these factors below.
We find the COMMVIEW mark in the ‘134 registration for “computer software in
the field of telephone call and data network accounting and traffic analysis” to be the
most relevant for our DuPont analysis, and we proceed accordingly. Since this is the
most relevant registration, if we find a likelihood of confusion, we need not find it as
to the COMMVIEW PLUS mark of the ‘129 Registration or the COMMVIEW CLOUD
mark of the ‘130 Registration as well. On the other hand, if we do not reach that
conclusion, we would not find it as to the marks of the ‘129 or ‘130 Registrations
because they include additional ostensibly distinguishing elements (the added terms
PLUS and CLOUD). See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).

5 The Examining Attorney also discussed additional DuPont factors, such as the absence of
actual confusion, which Applicant raised during prosecution but did not preserve by way of
argument on appeal, and which we do not consider in this decision.
Serial No. 88216346
- 5 -

A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)).
Under actual marketing conditions, consumers do not necessarily have the luxury
of making side-by-side comparisons between marks, and must instead rely upon their
imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259
(TTAB 1980). “The proper test is not a side-by-side comparison of the marks, but
instead whether the marks are sufficiently similar in terms of their commercial
impression such that persons who encounter the marks would be likely to assume a
connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1801 (Fed. Cir. 2018) (quotation omitted).
The parties’ marks “‘must be considered … in light of the fallibility of memory ….’”
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 (CCPA 1977)). Therefore, the focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
Serial No. 88216346
- 6 -

trademarks. In re Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Applicant argues that its COMVIEW mark grammatically, textually and visually
differs from the cited COMMVIEW mark.6 Yet Applicant also concedes that its mark
and Registrant’s mark have a “degree of similarity.”7
The Examining Attorney contends that the COMVIEW and COMMVIEW marks
are phonetically identical.8 We agree, and further find that the marks are also nearly
identical in appearance with the shared letters “com-view.” Both marks have two
syllables and differ by only one letter in the middle of the marks. Additionally, when
viewed in connection with communications software, we find that the marks have
identical meanings when spoken, and similar meanings when read – “comm” is a
recognized abbreviation for “communications” and “com” in the context of
communications, brings to mind, “communications.9 “View” suggests that the
software allows users to view data relating to calls. Given all of these similarities, we

6 Applicant’s Brief, 21 TTABVUE 7-8. Page references herein to the application record refer
to the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”)
system. All citations to documents contained in the TSDR database are to the downloadable
.pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love
World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal
refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket
entry number; and after this designation are the page references, if applicable.
7 Id. at 15.
8 Examining Attorney’s Brief, 24 TTABVUE 5.
9 See definition of “COMM” from MERRIAM-WEBSTER (https://www.merriam-
webster.com/dictionary/comm, last visited November 2, 2020). The Board may take judicial
notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co.,
213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including
online dictionaries that exist in printed format or regular fixed editions. In re Red Bull
GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Serial No. 88216346
- 7 -

find that the respective marks create highly similar overall commercial impressions.
We find the marks to be nearly identical.
Applicant counters the Examining Attorney’s arguments that the marks are
similar with the argument that Registrant’s COMMVIEW mark has a narrow scope
of protection. Specifically, Applicant repeatedly asserts that a number of prior
registrations have been issued to multiple third parties containing the word
component/variant COMVIEW/COMMVIEW, and similarly that there has been
widespread use of the COMMVIEW trademark component and variants for a wide
array of existing and relevant third party goods. Consequently, says Applicant: 1)
consumers can easily identify and distinguish between the multiple
“COMVIEW/COMMVIEW” goods and services from their respective sources, and 2)
Registrant’s marks are weak and should be afforded a narrow scope of protection.10
However, the evidence of record supporting Applicant’s arguments falls short.
Contrary to its assertions, Applicant made of record only one third-party mark
(registered and used by Tamosoft, Ltd. of New Zealand) that contains “the word
component/variant COMVIEW/COMMVIEW”:
COMMVIEW (in standard characters) for “computer software for packet
decoding and monitoring on the Internet and Local Area Networks” in
International Class 9.11
A Tamosoft webpage made of record states: “CommView is a powerful network
monitor and analyzer designed for LAN administrators, security professionals,

10 Applicant’s Brief, 21 TTABVUE 5-7, 9-11, 13-16.
11 Registration No. 3315089 (the “‘089 Registration”), issued on Oct. 23, 2007; renewed. Office
Action Response of September 11, 2019 at TSDR 13-15.
Serial No. 88216346
- 8 -

network programmers, home users ... virtually anyone who wants a full picture of the
traffic flowing through a PC or LAN segment.”12
A single third-party registration and use of a mark comprising the word
COMVIEW or COMMVIEW comes nowhere near to the quantum of proof required to
demonstrate the inherent or commercial weakness of either term as a trademark or
trademark element as contemplated by Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129,
1136 (Fed. Cir. 2015) (“voluminous evidence of paw print design elements that have
been registered and used [by third parties] in connection with clothing”) and Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed.
Cir. 2015) (“evidence of a fair number of third-party uses [and registrations] of marks
containing ‘peace’ and ‘love’ followed by a third, product-identifying term”). We
therefore find that Registrant’s COMMVIEW mark is entitled to the full scope of
protection afforded by Trademark Act Section 7(b), 15 U.S.C. § 1057(b), for registered
marks. The first DuPont factor, the similarities of the marks, strongly supports a
finding that confusion is likely.
B. The Similarity or Dissimilarity and Nature of the Goods and
Services, Channels of Trade and Classes of Purchasers
1. Goods and Services
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177

12 Tamosoft website, Id. at 16-18.
Serial No. 88216346
- 9 -

USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the … [goods and] services.’” In re St. Helena Hosp., 113
USPQ2d at 1086 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
In view of our finding that Applicant’s mark and Registrant’s mark are nearly
identical, a lesser degree of similarity between the Applicant’s services and
Registrant’s goods is required to support a finding of likelihood of confusion. In re
C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015) (“The greater the degree of
similarity between the marks, the lesser the degree of similarity between the goods
[and services is] necessary to support a finding of likelihood of confusion.”) (citing In
re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001)). Thus, “even when goods or
services are not competitive or intrinsically related, the use of [nearly] identical
marks can lead to the assumption that there is a common source.” In re Shell Oil, 26
USPQ2d at 1689.
To determine the relationship between the respective goods and services, we are
bound by the Identifications in Applicant’s involved application and the cited
registration. In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997) (“Likelihood of confusion must be determined based on an analysis of the marks
as applied to the [goods or] services recited in applicant’s application vis-à-vis the
[goods or] services recited in [a] …registration, rather than what the evidence shows
Serial No. 88216346
- 10 -

the [goods or] services to be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank,
N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987)).
“Likelihood of confusion must be found as to the entire class [of goods or services
identified] if there is likely to be confusion as to any … [product] that comes within
the recitation of … [goods or services] in that class.” Primrose Retirement Cmtys., LLC
v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981)). For that reason we need not discuss all of the services in the
Application. We discuss only those services in the COMVIEW Applicant that are
similar to those goods identified in the cited registration, namely:
Online, non-downloadable software for telecommunications
management and mobile, cloud, and unified communications
management, namely, for processing voice and data call detail and
billing records.

The cited COMMVIEW registration recites the following goods:
Computer software in the field of telephone call and data network
accounting and traffic analysis” in International Class 9
The goods and services need not be identical or even competitive to find a
likelihood of confusion. See 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 [the goods and services] … emanate from the
same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
Serial No. 88216346
- 11 -

1715, 1724 (TTAB 2007)). With respect to software, “it [is] proper for the [B]oard to
ground its determination of relatedness in the fields for which [it is] … created, rather
than the media format in which [it is] … delivered [– otherwise known as a] …
subject-matter-based mode of analysis ….” M2 Software, Inc. v. M2 Commc’ns,
Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1948 (Fed. Cir. 2006).
Evidence of relatedness may include news articles or third-party websites showing
that the relevant goods and services are used by purchasers for the same purpose;
advertisements showing that the relevant goods and services are advertised together;
or copies of use-based registrations of the same mark for both Applicant’s identified
services and the goods or services listed in the cited registration. See, e.g., In re Davia,
110 USPQ2d at 1817 (finding pepper sauce and agave related where evidence showed
both were used for the same purpose in the same recipes and thus consumers were
likely to purchase the products at the same time and in the same stores).
Applicant argues that the limitation “‘… processing voice and data call detail and
billing records, service and maintenance records and equipment location and
inventory records’ [a]re clearly directed to differing voice and call detail billing
records, service and maintenance records and equipment and location and inventory
records … which [are] simply NOT found in any of the three (3) cited registrations.”13
However, this limitation need not be recited in the Identification of the cited
registration for the services and goods to be related. Rather, we find that the function
of Applicant’s narrowly defined services, in part, come within the scope of Registrant’s

13 Applicant’s Brief, 21 TTABVUE 13-14.
Serial No. 88216346
- 12 -

broadly defined goods. Cf. In re Solid State Design Inc., 125 USPQ2d 1409, 1413
(TTAB 2018) (“Applicant’s claim that the identification in the cited registration is
limited to software applications that are ‘specifically and especially useful’ to their
users must be rejected in view of the controlling principle that where the goods in an
application or registration are broadly described, they are deemed to encompass ‘all
the goods of the nature and type described therein ....’”) (quoting In re Jump Designs
LLC, 80 USPQ2d 1370, 1374 (TTAB 2006)).
Moreover, even though Applicant’s argument pertains to its entire Identification
of Services, as noted above, we do not focus on the “service and maintenance records
and equipment location and inventory records” portion of Applicant’s Identification.
See Tuxedo Monopoly, 209 USPQ at 988 (“[L]ikelihood of confusion must be found if
the public, being familiar with [registrant's] use of MONOPOLY for board games and
seeing the mark on any item that comes within the description of goods set forth by
[applicant] in its application, is likely to believe that [registrant] has expanded its
use of the mark, directly or under a license, for such item.”) (emphasis original). Thus,
any argument about a limitation in Applicant’s Identification of Services that
addresses the services that we do not focus on is irrelevant
Beyond the foregoing, the Examining Attorney made of record 21 active, use-based
third-party registrations of marks registered in connection with computer software
generally (in Class 9) (which could include software offered on media such as CDs
and DVDs or in downloadable format) and online, non-downloadable software offered
Serial No. 88216346
- 13 -

as a service (in Class 42) that is used by purchasers for the same purpose.14 The
Examining Attorney further made of record 7 active, use-based third-party
registrations of marks registered in connection with the same types of goods and/or
services as those of Applicant and Registrant.15 These third-party registrations have
probative value to suggest that telecom software featuring various functions relating
to call and network data accounting and traffic analysis are of a kind that may
emanate from a single source, regardless of the modality in which access to the
software is provided. In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB
2001).
The Examining Attorney also made of record portions of Applicant’s and
Registrant’s websites showing in fact that their respective software offerings provide
similar and overlapping functionality:
Registrant’s website descriptions: showing that its software does process voice
and data call details, including details on the most expensive calls, the longest
calls, call anomalies, bottlenecks, call duration, low call turnaround, mismatches
between geographic areas assigned, data relating to billing records, employee bill
history including usage and cost of a specific employee, data for all employees
within a specific department or division, and more.16
Applicant’s website descriptions: showing that its software tracks, analyzes
and provides phone call details and related call information.17
The Examining Attorney additionally made of record (with the Denial of Request
for Reconsideration of April 20, 2020) third-party webpages showing that it is

14 Office Action of September 30, 2019 at TSDR 9-82.
15 Office Action of March 11, 2019 at TSDR 19-30, 37-64.
16 Denial of Request for Reconsideration of April 20, 2020 at TSDR 16-22, 202-03 and 209-
213.
17 Id. at 11-15, 204-08.
Serial No. 88216346
- 14 -

common for communications software to perform a variety of functions such as
processing call details, providing billing records, keeping track of inventory and/or
maintenance records like Applicant’s software and also providing call accounting or
call traffic analysis functions like Registrant’s software:
 MicroCall provides software for call accounting, billing, maintenance, traffic
analysis and for processing call details (at TSDR 126-131).
 RingCentral provides software for processing call traffic data, for analyzing
cost analysis of calls, viewing and analyzing call logs and more (at TSDR 59-
73 and 155-58).
 Oracle provides a variety of software that connects customers to call centers,
manages and tracks calls and emails, monitors assets and processes service
and maintenance data (at TSDR 23-33, 84-90 and 140-151).
 Prism provides software for managing calls and call information and for
tracking and managing IT and telecom equipment location and inventory (at
TSDR 112-122).
 Avotus provides software for call accounting or processing call details,
processing expenses and billing, processing service or maintenance records and
for inventory management of equipment location and records (at TSDR 132-
39).
 IBM provides software for analyzing call details, managing equipment records
and inventory and tracking and managing payments and billing information
and other records (at TSDR 55-58, 93-95).
 Cisco provides call center software and software to monitor call volumes and
call traffic, manage equipment work orders, generate call related billing
reports, and more (at TSDR 98-111).
 Auditel provides software for call traffic analysis, telecom inventory
management and more (at TSDR 123-25).
These third-party websites establish that the same entities commonly provide
Applicant’s and Registrant’s types of goods and/or services through the same trade
channels for use by the same classes of consumers in the same fields of use that are
similar or complementary in purpose or function. Consequently Applicant’s services
and Registrant’s goods are commercially related. See, e.g., In re Davey Prods. Pty
Serial No. 88216346
- 15 -

Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009). The second DuPont factor, the
similarities of the goods and services, support a finding that confusion is likely.
2. Channels of Trade and Classes of Purchasers
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014). Neither the COMMVIEW Registration nor the COMVIEW Application
contains any restriction on the channels of trade or classes of purchasers. The
registered software thus presumptively moves in all relevant trade channels for such
software, and, because of its identical function, would include the same trade
channels through which Applicant’s non-downloadable software services are offered.
M2 Software, 78 USPQ2d 1947-48 (“[I]t [is] proper for the [B]oard to ground its
determination of relatedness in the fields for which the goods [and services] are
created, rather than the media format in which they are delivered.”).
In this appeal, these legal presumptions of overlapping trade channels and classes
of purchasers are confirmed by the Examining Attorney’s third-party registration and
use evidence discussed above – demonstrating an overlap in fact as to channels of
trade. The third DuPont factor, channels of trade, support a finding that confusion is
likely.
C. Purchasing Conditions and Buyer 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 that:
Serial No. 88216346
- 16 -

 Applicant’s services and Registrant’s goods and services are knowingly
selected according to business, personal, and technical needs and
requirements for a specific task;
 A user and relevant purchaser of such goods and services would know what
they are selecting and purchasing;
 A sophisticated purchaser will be involved in the purchase of the respective
goods services who would exercise a greater degree of care in entering into
purchase transactions since this purchaser has a “reasonably focused need” or
“specific purpose” involving the relevant goods;
 The purchasers are keenly aware of the function and performance of the goods
and services, such that they rarely buy on impulse but rather based on
information or experience relating to the quality of the goods or services;
 The types of the highly-specialized computer goods and services at issue make
it unlikely that purchasers would be confused as to the source of the goods or
services based on the similarities between the respective marks; and
 The level of discrimination of the purchasers of these goods and services
dictates that the likelihood of confusion is reduced.18
We begin with the observation that all of these contentions are unsupported in the
record. Counsel’s arguments are not evidence, and we will not rely on them. See Cai
v. Diamond Hong, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe
Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no substitute for
evidence.”)).
Since there are no limitations on the classes of consumers in the Application at
issue or the cited registrations, we can and do find that purchasers of Applicant’s
services or Registrant’s goods and services include IT professionals and non-IT
professionals, large company or small company employees and members of the public
desiring to purchase communications software or services for the delivery of such
software. The standard of care for the purchase of these goods and services is that of

18 Applicant’s Brief, 21 TTABVUE 16-19.
Serial No. 88216346
- 17 -

the least sophisticated potential purchaser. In re FCA US LLC, 126 USPQ2d 1214,
1222 (TTAB 2018) (citing Stone Lion, 110 USPQ2d at 1163)), aff’d per curiam, 778 F.
App’x 962 (Fed. Cir. 2019).
In fact, for example, Registrant’s webpage explains that “[o]ur easy-to-use
solutions are found in businesses of all sizes: ranging from as few as 10 to over 30,000
extensions, from single site networks to complex multi-site, multi-vendor
networks.”19 Certainly, Registrant’s customers with a mere 10 phone extensions with
a single site network are unlikely to be especially sophisticated about telecom
software. Similarly, Applicant’s webpage states that “[w]ith Calero’s powerful, easy-
to-use solutions, services and unparalleled analytics, coupled with exceptional
support, businesses can manage all communication channels, process and policies
while driving insight into the full communication lifecycle.”20 As with Registrant’s
promotional language, Applicant promotes its software delivery services as easy-to-
use – suggesting a customer base that is not very sophisticated about telecom
software. From these descriptions, however, we find that purchasers of Applicant’s
services and Registrant’s goods possess at least modicum level of sophistication in the
purchase of these types of services and goods.
Even assuming that Applicant’s and/or Registrant’s customers were sophisticated
relating to communications software, the fact that purchasers are sophisticated or
knowledgeable in a particular field does not necessarily mean that they are

19 Denial of Request for Reconsideration of April 20, 2020 at TSDR 21.
20 Request for Reconsideration of March 30, 2020 at TSDR 16.
Serial No. 88216346
- 18 -

sophisticated or knowledgeable in the field of trademarks or immune from source
confusion. See, e.g., Stone Lion, 110 USPQ2d 1157, 1163-64. “[E]ven sophisticated
purchasers are not immune from source confusion, especially in cases such as the
present one involving [very similar] marks and related goods [and/or services].” In re
i.am.symbolic, llc, 116 USPQ2d 1406, 1413 (TTAB 2015) (citing In re Research &
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)), aff’d, 866 F.3d 1315,
123 USPQ2d 1744 (Fed. Cir. 2017). The similarity of the marks and the relatedness
of the goods and services sold thereunder “outweigh any presumed sophisticated
purchasing decision.” In re i.am.symbolic, 116 USPQ2d at 1413 (citing HRL Assocs.,
Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989)), aff'd, 902 F.2d 1546,
14 USPQ2d 1840 (Fed. Cir. 1990)). We therefore find the fourth DuPont factor, sales
conditions and purchaser sophistication, only slightly favors a finding that confusion
is unlikely.
III. Likelihood of Confusion - Conclusion
The first, second and third DuPont factors favor finding a likelihood of confusion.
The marks at issue are virtually identical. The goods and services are closely related
because they serve same purpose and would be sold through same channels of trade
to the same purchasers. While the fourth DuPont factor, purchasing conditions and
buyer sophistication, slightly favors finding that confusion is unlikely, this is not
enough to overcome the other factors favoring a finding of likelihood of confusion. We
therefore find that Applicant’s COMVIEW mark, when used in connection with
Applicant’s services, so closely resembles the registered COMMVIEW mark as to be
likely to cause confusion, mistake or deception as to the source of Applicant’s services.
Serial No. 88216346
- 19 -

Decision: The refusal to register Applicant’s COMVIEW mark on the basis of
likelihood of confusion pursuant to Trademark Act Section 2(d) is affirmed.