Catskill Resorts TRS, LLC

Trademark Trial and Appeal Board

Mar 31, 2021

88337961 (T.T.A.B. Mar. 31, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 31, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
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In re Catskill Resorts TRS, LLC
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Serial No. 88337961
Serial No. 88338045
(Consolidated)
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Penny R. Slicer of Stinson LLP, for Catskill Resorts TRS, LLC.

Young Wolfe, Trademark Examining Attorney, Law Office 122,
Kevin Mittler, Managing Attorney.
_____

Before Zervas, Adlin, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Catskill Resorts TRS, LLC (“Applicant”) seeks registration on the Principal
Register of the standard character mark THE KARTRITE,1 and the composite word-
and-design mark shown below

1 Application Serial No. 88337961 was filed on March 13, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.
Serial Nos. 88337961 and 88338045 (Consolidated)
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2
both for the following goods and services as ultimately identified in the applications:
Rafts, in International Class 12;
Jewelry and jewelry charms; key chains, key rings, lapel
pins, clocks, in International Class 14;
Maps; posters; art prints; printed puzzles; blank journal
books; notebooks; note cards, stationery; pens; pencils;
coloring pencils; coloring books; temporary tattoo
transfers; stationery type portfolios; letter openers; photo
albums; decals; stickers; paperweights; calendars; post
cards; money clips; coasters of cardboard; coasters of paper,
in International Class 16;
Tote bags; beach bags; drawstring bags; sack packs,
namely, drawstring bags used as backpacks; backpacks;
luggage; purses; duffle bags; wallets; umbrellas; pet
clothing; leashes for animals; collars for animals, in
International Class 18;
Picture frames; plastic key chain tags; mirrors; pillows, in
International Class 20;
Drinking steins; mugs; cups; glasses, namely, drinking
glasses; plastic water bottles sold empty; shot glasses;
insulating sleeve holders for bottles and beverage cans;
flasks; ceramic plates; spoon rests; bowls; plastic
containers, namely, plastic storage containers for

2 Application Serial No. 88338045 was also filed on March 13, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. Applicant has disclaimed the exclusive right to use “resort &
indoor waterpark” apart from the mark as shown. The application describes the mark as
follows: “The mark consists of the word ‘THE’ in gray lettering and the word ‘KARTRITE’ in
black lettering positioned above the words ‘RESORT & INDOOR WATERPARK’ in gray
lettering, all positioned to the right of the letter ‘K’ in white presented upon a blue rectangle
that is curved at the top.” The colors white, gray, black, and blue are claimed as features of
the mark.
Serial Nos. 88337961 and 88338045 (Consolidated)
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household use; coasters, not of paper or textile; trivets;
bottle openers; candle holders; cutting boards; hair
brushes; watertight capsules used to hold valuables,
namely, plastic containers sold empty to hold wallets and
personal items, in International Class 21;
Clothing, headwear and accessories, namely, t-shirts, tank
tops, sweatshirts, jackets, coats, pants, sweatpants, yoga
pants, shorts, fitness wear in the nature of athletic pants,
athletic shorts, athletic shirts and athletic bras, bathing
suits, swimming trunks, beach cover-ups, pajamas,
nightgowns, nightshirts, hats, caps being headwear, visors
being headwear, scarves, gloves, socks, slippers, sandals,
water shoes, in International Class 25;
Games and playthings, namely, board games and party
games; plush toys and plush animals; dolls; sporting goods,
namely, balls for sports, bats for sports, racquets for sports,
toy flying saucers for toss games; inflatable balls, namely,
inflatable beach balls; playing cards; snow globes; puzzles;
jigsaw puzzles, in International Class 28;
Retail store services featuring clothing and sporting
equipment; Retail clothing stores; Retail gift and souvenir
shops; Retail stores featuring products for recreational
activities and sporting goods; Retail stores featuring a wide
variety of consumer goods of others; Retail grocery and
convenience store services, in International Class 35;
Entertainment services, namely, providing recreational
waterpark, swimming pool, bowling alley, arcade, exercise
and fitness, rock climbing, laser tag, movie theater, escape
room, horseback riding, tennis court, golf course, skating
rink, indoor and outdoor recreational activity, snow skiing,
amusement park and casino gaming facilities; Providing
waterpark services; Providing bowling alley services;
Providing amusement arcade services; Providing fitness,
exercise and yoga services and instruction, namely,
providing fitness and exercise studio services in the nature
of yoga instruction; Providing recreational climbing
services, namely, providing classes in the field of
recreational rock climbing; Providing laser tag services,
namely, providing facilities and equipment for playing
laser tag games; Providing movie and cinema theater
services; Providing escape room services; Providing
Serial Nos. 88337961 and 88338045 (Consolidated)
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horseback riding instruction and trail riding services for
recreational purposes; Providing tennis courts and tennis
instruction; Providing golf courses and golf instruction;
Providing skating rinks; roller and ice skating instruction;
Providing casino gaming contests and tournaments;
providing gaming services in the nature of live blackjack
card game, contests and tournaments; Providing indoor
and outdoor recreational activities in the nature of pools
and horseback riding facilities; providing nature hikes,
namely, arranging and conducting guided nature hiking
tours; Providing snow skiing services, namely, ski
instruction and ski resorts; Providing amusement park
services; Rental services for recreational and sporting
goods equipment, namely, rental of sports equipment
except vehicles; Entertainment services, namely, dinner
theaters and concert venues, in International Class 41;
Resort hotel services; Resort lodging services; Providing
bar, coffee shop, restaurant, and dining services;
Restaurant and bar services; Providing convention
facilities; Providing spa services in the nature of providing
temporary accommodations and meals to clients of a health
or beauty spa, in International Class 43; and
Health spa services for health and wellness of the body and
spirit offered at a health resort; providing beauty spa
services in the nature of cosmetic body care services, in
International Class 44.
The Examining Attorney has refused registration of both marks under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that they so resemble
the registered mark shown below
Serial Nos. 88337961 and 88338045 (Consolidated)
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for “indoor waterpark services,” in International Class 41,3 as to be likely, when used
in connection with the goods and services identified in the application, to cause
confusion, to cause mistake, or to deceive. In Application Serial No. 88337961, the
Examining Attorney also refused registration on the ground that when the appeal
was filed, Applicant had not deleted “rafts” from its Class 28 identification of goods
following reclassification of those goods into a new Class 12 in the application, but
the application was remanded to the Examining Attorney on appeal and an
Examiner’s Amendment was entered deleting “rafts,” which obviated this ground for
refusal of registration.
When the Examining Attorney made the refusals final, Applicant appealed in each
case and requested reconsideration, which was denied. Because the issues presented
in the two appeals are essentially the same and the arguments advanced by Applicant

3 The cited Registration No. 4886612 issued on January 12, 2016. We will refer to the owner
of the registration as the “Registrant.” The registration describes the mark as follows: “The
mark consists of the wording ‘Aquatopia’ in aqua blue outlined in blue above the wording
‘Kartrite's Epic Adventures’ in blue on a sand colored banner with blue stripes, all on an
aqua blue, blue, sand and beige oval with compass points.” The colors aqua blue, blue, sand,
and beige are claimed as features of the mark.
Serial Nos. 88337961 and 88338045 (Consolidated)
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and the Examining Attorney are very similar in each case, we consolidate the two
appeals sua sponte and will decide them in a single opinion. In re Adco Indus. –
Techs., L.P., 2020 USPQ2d 85096, *1 (TTAB 2020). Applicant and the Examining
Attorney have filed briefs.4 We reverse the refusals to register.
I. Records on Appeal5
The records on appeal include USPTO electronic records regarding the cited
registration and two applications, made of record by the Examining Attorney,6 and
third-party Internet webpages displaying goods and services offered in connection
with water parks, made of record by the Examining Attorney.7
II. Analysis of Refusals
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of the likelihood of confusion under Section 2(d) is based

4 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear. Where it is not clear from the context of a citation, we will identify the case to which
the citation pertains.
5 Citations in this opinion to the application record, including the request for reconsideration
and its denial, are to pages in the Trademark Status & Document Retrieval (“TSDR”)
database of the United States Patent and Trademark Office (“USPTO”). The records in the
two cases are virtually identical. Where it is not clear from the context of a citation, we will
identify the case to which the citation pertains.
6 May 30, 2019 Office Actions at TSDR 2-4, 15-19.
7 Id. at TSDR 5-14; January 6, 2020 Final Office Actions at TSDR 2-130 (Serial No.
88337961); 3-131 (Serial No. 88338045).
Serial Nos. 88337961 and 88338045 (Consolidated)
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on an analysis of all probative facts in the record that are relevant to the likelihood
of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (“DuPont”). We 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).
Two key DuPont factors in every Section 2(d) case are the first two factors
regarding the similarity or dissimilarity of the marks and the goods or services,
because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976). Applicant focuses in both cases on the first DuPont factor,
arguing that “the two marks are not remotely similar in overall appearance, sound,
connotation or commercial impression.” 6 TTABVUE 6.
A. Similarity or Dissimilarity of the Goods and Services, and
Channels of Trade
The second DuPont factor “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), while the third DuPont factor considers “the similarity or
dissimilarity of established, likely-to-continue trade channels.’” Id. at 1052 (quoting
DuPont, 177 USPQ at 567). See also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014).
Serial Nos. 88337961 and 88338045 (Consolidated)
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The goods and services need not be identical, but “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 LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or
evidence from computer databases showing that the
relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant
goods are advertised together or sold by the same
manufacturer or dealer; or copies of prior use-based
registrations of the same mark for both applicant’s goods
and the goods listed in the cited registration.
In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *5 (TTAB 2020) (citing In re Davia,
110 USPQ2d 1810, 1817 (TTAB 2014)). See also Detroit Athletic Co., 128 USPQ2d at
1050 (crediting relatedness evidence showing that third parties use the same mark
for the goods and services at issue because “[t]his evidence suggests that consumers
are accustomed to seeing a single mark associated with a source that sells both”);
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both
parties, if presented, is relevant to a relatedness analysis”).
The services identified in the cited registration are “indoor waterpark services.”
Applicant seeks registration of its marks for extensive lists of goods and services in
Classes 12, 14, 16, 18, 20, 21, 25, 28, 35, 41, 43, and 44. The Examining Attorney’s
argument for relatedness of the involved goods and services is twofold: (1) the services
in the cited registration are legally identical to “providing waterpark services” in
Serial Nos. 88337961 and 88338045 (Consolidated)
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Class 41 in the application, 8 TTABVUE 13; and (2) the services in the cited
registration are otherwise related to the other goods and services in the application,
based on Internet evidence showing that “consumers are accustomed to the same
entities providing a variety of waterpark, recreational, hotel, restaurant, and health
spa services as well as offering merchandise bearing its mark, such that confusion is
likely.” Id. at 14.8 We address these arguments in turn.
1. Class 41 Waterpark Services
Applicant’s Class 41 identifications of services include “Providing waterpark
services.” We agree with the Examining Attorney that these broadly identified
services encompass Registrant’s narrower “indoor waterpark services.” See, e.g., In re
AC Webconnecting Holding B.V., 2020 USPQ2d 11048, *11-12 (TTAB 2020) (citing
Southwestern Mgmt. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015)).9
“[A]ccordingly, we must deem the services at issue to be identical.” Ocinomled, 115
USPQ2d at 1025.10 The second DuPont factor strongly supports a finding of a
likelihood of confusion as to the entire Class 41 portions of the applications.

8 The Examining Attorney need not prove, and we need not find, that each good or service
identified in the numerous classes in the application is related to the services identified in
the cited registration. “It is sufficient for finding likelihood of confusion that relatedness is
established for any item encompassed by the identification of goods [or services] in a
particular class in the application.” Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC,
2020 USPQ2d 10914, *14 (TTAB 2020) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
9 In any event, Applicant’s composite mark includes the phrase “resort & indoor waterpark,”
indicating that Applicant actually intends to provide “indoor waterpark services.”
10 Because these Class 41 services are legally identical, we need not consider whether
Applicant’s other Class 41 services are related to Registrant’s services. See In re Aquamar,
Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015).
Serial Nos. 88337961 and 88338045 (Consolidated)
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Because these services are identical, “we must presume that the channels of trade
and classes of purchasers are the same.” In re Am. Cruise Lines, Inc., 128 USPQ2d
1157, 1158 (TTAB 2018) (citing In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012)). The third DuPont factor also strongly supports a finding of a
likelihood of confusion as to the entire Class 41 portions of the applications.
2. Goods and Services in Classes 12, 14, 16, 18, 20, 21, 25, 28,
35, 43, and 4411
The Examining Attorney argues that the record shows that “the same entity
commonly provides a wide variety of waterpark, resort, dining, spa, and
entertainment services and markets these under the same mark,” and that
“waterparks commonly offer a variety of branded merchandise in connection with
their waterpark services, including those identified in Applicant’s application.” 8
TTABVUE 14. The Examining Attorney concludes that “consumers are accustomed
to the same entities providing a variety of waterpark, recreational, hotel, restaurant,
and health spa services as well as offering merchandise bearing its mark, such that
confusion is likely.” Id.

11 The record shows that Coco Key Water Resort, Walt Disney World, Lake Compounce &
Crocodile Cove, Noah’s Ark Waterpark, Parrot Island Waterpark, and Schlitterbahn
Waterpark & Resort operate outdoor waterparks, but the Examining Attorney did not show
that they also operate indoor waterparks. Nevertheless, because we find above that indoor
waterparks are a subset of waterparks, we will consider this evidence in our analysis of the
relatedness of these goods and services.
Serial Nos. 88337961 and 88338045 (Consolidated)
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a. Services
i. Class 35
Turning first to the Class 35 services identified in the applications, the Examining
Attorney focuses solely on Applicant’s “resort, dining, spa, and entertainment
services,” and makes no effort to show the relatedness of the services identified in the
cited registration to Applicant’s Class 35 retail services. There simply is no evidence
to demonstrate a relationship between Registrant’s services and Applicant’s Class 35
services. The second DuPont factor thus weighs against a finding of a likelihood of
confusion as to the Class 35 portions of the applications.
ii. Class 43
The services in Class 43 in the applications include “Resort hotel services; Resort
lodging services; Providing bar, coffee shop, restaurant, and dining services.” The
Examining Attorney points to the webpages of Great Wolf Lodge, Kalahari,
Massanutten, Coco Key, Walt Disney World, Greek Peak, Rocking Horse Ranch,
Wilderness at the Smokies, and Zehnder’s as examples of entities which provide
waterpark services, resort services, and dining services under the same marks.12
The Kalahari webpages, which tout “America’s Largest Indoor Waterparks,
Resorts & Convention Centers,” state that the resort “boasts hair-raising waterslides,
world-class spa, kids’ play areas, and diverse dining options.”13 The Massanutten
webpages display a variety of recreational options, including an indoor waterpark, as

12 May 30, 2019 Office Action at TSDR 5-14; January 6, 2020 Final Office Action at TSDR 2-
45, 49-68, 83-104, 109-130.
13 May 30, 2019 Office Action at TSDR 10.
Serial Nos. 88337961 and 88338045 (Consolidated)
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well as a variety of dining options.14 The Coco Key webpages display and discuss a
waterpark, hotel amenities, and a variety of dining options.15 The Walt Disney World
webpages display and discuss waterparks and food and beverage services.16 The
Greek Peak webpages describe the hotel as a “Mountain Resort,”17 and display and
discuss dining options,18 and the resort’s indoor waterpark.19 The Rocking Horse
Ranch webpages display and discuss the resort’s dining options,20 and indoor
waterpark.21 The Wilderness at the Smokies webpages display and discuss the
resort’s dining options,22 and indoor waterpark.23 Zehnder’s “Splash Village”
webpages display and discuss its indoor waterpark,24 as well as hotel
accommodations.25
This evidence is sufficient to show the relatedness of the “indoor waterpark
services” identified in the cited registration to the Class 43 dining and resort services
identified in the applications. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198,

14 Id. at TSDR 11-14.
15 January 6, 2020 Final Office Action at TSDR 2-8, 11-13.
16 Id. at TSDR 41-45.
17 Id. at TSDR 49.
18 Id. at TSDR 49-51.
19 Id. at TSDR 61-62, 66-67.
20 Id. at TSDR 83-86.
21 Id. at TSDR 102-03.
22 Id. at TSDR 109-11.
23 Id. at TSDR 118-22.
24 Id. at TSDR 123-24.
25 Id. at TSDR 125-28.
Serial Nos. 88337961 and 88338045 (Consolidated)
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1202-04 (TTAB 2009). The dining and resort services are offered in the same channels
of trade to the same consumers as the waterpark services, and the second and third
DuPont factors thus support a finding of a likelihood of confusion as to the entire
Class 43 portions of the applications.
iii. Class 44
Applicant’s Class 44 identifications of services are “Health spa services for health
and wellness of the body and spirit offered at a health resort; providing beauty spa
services in the nature of cosmetic body care services.” The webpages of the Kalahari,
Massanutten, Greek Peak, and Rocking Horse Ranch resorts discussed above also
display or describe available spa services.26 This evidence is sufficient to show the
relatedness of the “indoor waterpark services” identified in the cited registration to
the Class 44 spa services in the applications. Davey Prods., 92 USPQ2d at 1202-04.
The spa services are offered in the same channels of trade to the same consumers as
the waterpark services, and the second and third DuPont factors thus support a
finding of a likelihood of confusion as to the entire Class 44 portions of the
applications.
b. Goods
Given the number of goods identified in the eight goods classes in the applications,
the Examining Attorney’s approach to proving the relatedness of the services
identified in the cited registration to the goods identified in the applications is
problematic. The Examining Attorney cites webpages that purportedly show that

26 May 30, 2019 Office Action at TSDR 9, 13; January 6, 2020 Final Office Action at TSDR
63-64, 95-100.
Serial Nos. 88337961 and 88338045 (Consolidated)
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waterpark operators also sell “branded merchandise in connection with their
waterpark services, including those identified in Applicant’s application,” 8
TTABVUE 14,27 but makes no effort to specify which “branded merchandise”
corresponds to which specific goods in the application.28 The Examining Attorney
leaves it to us to review the cited portions of the record to determine which, if any, of
Applicant’s identified goods are also sold by waterpark operators. The better practice
would have been to specify the goods in each class that are sold by specific waterpark
operators by reference to specific portions of the record. Cf. Trademark Rule
2.142(b)(3), 37 C.F.R. § 2.143(b)(3) (“Citation to evidence in briefs should be to the
documents in the electronic application record by date, the name of the paper under
which the evidence was submitted, and the page number in the electronic record.”)

27 January 6, 2020 Final Office Action at TSDR 2-13, 31-37, 41-48, 69-82, 105-08, 116-30. The
term “branded merchandise” is also essentially meaningless in the absence of evidence of
whose brand appears on what merchandise. This is illustrated by the website of
Schlitterbahn Waterpark & Resort, which refers variously to “branded merchandise” and
“select branded merchandise” sold in the resort’s various shops, id. at TSDR 105-06,
“Schlitterbahn souvenirs” and “Schlitterbahn sale merchandise,” id. at TSDR 106-07, and
“Branded Items.” Id. at TSDR 107-08. The latter reference to “Branded Items” states that
“Schlitterbahn now carries a wide variety of specialty brand name merchandise” from various
companies such as Billabong and Quicksilver. Id. at TSDR 107-08. Thus, in the context of the
website as a whole, the term “branded” appears to refer to merchandise bearing the brands
of companies other than the waterpark operator.
28 The Board has recognized “that the licensing of commercial trademarks on ‘collateral
products’ has become a part of everyday life,” L.C. Licensing, Inc. v. Berman, 86 USPQ2d
1883, 1889 (TTAB 2008), and that certain products are commonly “used as promotional items
for a diverse range of goods and services.” Turner Entm’t Corp. v. Nelson, 38 USPQ2d 1942,
1945 (TTAB 1996) (listing video games, t-shirts, beach towels, caps and other logo-imprinted
products as examples). But our recognition of these general trends does not relieve the
USPTO of its obligation to provide evidence that specific goods and services are related in a
particular case because providers of the services commonly offer the goods as collateral
products.
Serial Nos. 88337961 and 88338045 (Consolidated)
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i. Class 12
Applicant’s Class 12 identifications cover “rafts.” There is no evidence of the sale
of rafts by waterpark operators and the second DuPont factor weighs against a
finding of a likelihood of confusion with respect to the Class 12 goods in the
applications.
ii. Class 14
Applicant’s Class 14 identifications cover “Jewelry and jewelry charms; key
chains, key rings, lapel pins, clocks.” The Massanutten and Coco Key Water Park
websites offer keychains and key rings sold under the resorts’ marks,29 but the
availability of the goods on the website of two waterpark operators is insufficient to
show the relatedness of the goods and the services.30 The second DuPont factor weighs
against a finding of a likelihood of confusion with respect to the Class 14 goods in the
applications.
iii. Class 16
Applicant’s Class 16 identifications cover “Maps; posters; art prints; printed
puzzles; blank journal books; notebooks; note cards, stationery; pens; pencils; coloring

29 January 6, 2020 Final Office Action at TSDR 9-10, 75, 77.
30 A webpage for The Great Wolf Lodge Kids Store refers to “accessories with jewelry,” but
does not further describe or show the goods, and it is not clear whether the goods are sold
under both the Great Wolf Lodge mark under which the waterpark is operated, May 30, 2019
Office Action at TSDR 5-8, and marks pertaining to what the webpage calls “your favorite
kids characters.” January 6, 2020 Final Office Action at TSDR 48. The Walt Disney World
webpages offer a Mickey Mouse Icon Charm by Pandora Jewelry, id. at TSDR 33, and a
Mickey Mouse Balloon Necklace by Rebecca Hook, id. at TSDR 34, but these goods are offered
under character marks, not the marks under which Walt Disney World operates its
waterparks. The Lake Compounce and Noah’s Ark webpages refer generically to jewelry, id.
at TSDR 73, 79, but it is not clear that the goods bear the marks of the waterpark operators.
Serial Nos. 88337961 and 88338045 (Consolidated)
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pencils; coloring books; temporary tattoo transfers; stationery type portfolios; letter
openers; photo albums; decals; stickers; paperweights; calendars; post cards; money
clips; coasters of cardboard; coasters of paper.” The Massanutten website offers
stickers bearing the resort’s mark,31 but the availability of the goods on the website
of a single waterpark operator is insufficient to show the relatedness of the goods and
the services. The second DuPont factor weighs against a finding of a likelihood of
confusion with respect to the Class 16 goods in the applications.
iv. Class 18
Applicant’s Class 18 identifications cover “Tote bags; beach bags; drawstring bags;
sack packs, namely, drawstring bags used as backpacks; backpacks; luggage; purses;
duffle bags; wallets; umbrellas; pet clothing; leashes for animals; collars for animals.”
The Shop Kalahari webpage displays a Kalahari umbrella and drawstring bag, the
Coco Key Water Park webpage displays a drawstring backpack, and the Walt Disney
World webpages display a Walt Disney World sack tote and a Disney Parks icons mini
backpack.32 This evidence is sufficient to show the relatedness of waterpark services
and one or more of the Class 18 goods identified in the application. Those goods are
offered in the same channels of trade to the same consumers as the waterpark
services, and the second and third DuPont factors support a finding of a likelihood of
confusion with respect to the entire Class 18 portions of the applications

31 Id. at TSDR 75-77. The Kalahari website offers various goods that could be goods falling
within Class 16, but they are unidentified. Id. at TSDR 70.
32 Id. at TSDR 10, 34, 36-37, 70.
Serial Nos. 88337961 and 88338045 (Consolidated)
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v. Class 20
Applicant’s Class 20 identifications cover “Picture frames; plastic key chain tags;
mirrors; pillows.” The Massanutten website displays a wooden photo frame,33 but the
availability of the goods on the website of a single waterpark operator is insufficient
to show the relatedness of the goods and the services. The second DuPont factor
weighs against a finding of a likelihood of confusion with respect to the Class 20 goods
in the applications.
vi. Class 21
Applicant’s Class 21 identifications cover “Drinking steins; mugs; cups; glasses,
namely, drinking glasses; plastic water bottles sold empty; shot glasses; insulating
sleeve holders for bottles and beverage cans; flasks; ceramic plates; spoon rests;
bowls; plastic containers, namely, plastic storage containers for household use;
coasters, not of paper or textile; trivets; bottle openers; candle holders; cutting boards;
hair brushes; watertight capsules used to hold valuables, namely, plastic containers
sold empty to hold wallets and personal items.” The Coco Key Water Resort website
displays an empty water bottle,34 the Walt Disney World website displays a Walt
Disney World mug,35 the Shop Kalahari webpage displays a Kalahari mug,36 the
Massanutten webpage displays mugs, glasses, cups, insulating sleeve holders, bottle

33 Id. at TSDR 75-76.
34 Id. at TSDR 10.
35 Id. at TSDR 35.
36 Id. at TSDR 70.
Serial Nos. 88337961 and 88338045 (Consolidated)
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openers, and plastic bottles,37 and the Wilderness of the Smokies Retail Shops
webpage displays a plastic bottle bearing the resort’s mark.38 This evidence is
sufficient to show the relatedness of waterpark services and one or more of the Class
21 goods identified in the application. The drinkware is offered in the same channels
of trade to the same consumers as the waterpark services, and the second and third
DuPont factors support a finding of a likelihood of confusion with respect to the entire
Class 21 portions of the applications.
vii. Class 25
Applicant’s Class 25 identifications cover “Clothing, headwear and accessories,
namely, t-shirts, tank tops, sweatshirts, jackets, coats, pants, sweatpants, yoga
pants, shorts, fitness wear in the nature of athletic pants, athletic shorts, athletic
shirts and athletic bras, bathing suits, swimming trunks, beach cover-ups, pajamas,
nightgowns, nightshirts, hats, caps being headwear, visors being headwear, scarves,
gloves, socks, slippers, sandals, water shoes.” The websites of Coco Key Water Resort,
Walt Disney World, Epic Waters Indoor Waterpark, and Zehnder’s show the sale of a
number of the identified clothing items.39 This evidence is sufficient to show the
relatedness of waterpark services and one or more of the Class 25 goods identified in
the application. The clothing is offered in the same channels of trade to the same
consumers as the waterpark services, and the second and third DuPont factors

37 Id. at TSDR 75-77.
38 Id. at TSDR 117.
39 Id. at TSDR 9-10, 32-33, 35, 37, 46, 129-30.
Serial Nos. 88337961 and 88338045 (Consolidated)
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support a finding of a likelihood of confusion with respect to the entire Class 25
portions of the applications.
viii. Class 28
Applicant’s Class 28 identifications cover “Games and playthings, namely, board
games and party games; plush toys and plush animals; dolls; sporting goods, namely,
balls for sports, bats for sports, racquets for sports, toy flying saucers for toss games;
inflatable balls, namely, inflatable beach balls; playing cards; snow globes; puzzles;
jigsaw puzzles.” The Coco Key Water Resort, Walt Disney World, Shop Kalahari, and
Noah’s Ark websites display various plush toys.40 This evidence is sufficient to show
the relatedness of waterpark services and one of the Class 28 goods identified in the
application. The goods are offered in the same channels of trade to the same
consumers as the waterpark services, and the second and third DuPont factors
support a finding of a likelihood of confusion with respect to the entire Class 28
portions of the applications.
To summarize, we have found that the second and third DuPont factors support a
finding of a likelihood of confusion with respect to Classes 18, 21, 25, 28, 41, 43, and
44, and that the second and third DuPont factors weigh against a finding of a
likelihood of confusion with respect to Classes 12, 14, 16, 20, and 35.
B. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider “the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial

40 Id. at TSDR 9, 32, 70-71, 79.
Serial Nos. 88337961 and 88338045 (Consolidated)
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impression.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee en 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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) (quoting In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019).
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
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) (quoting Coach Servs., 101 USPQ2d
at 1721 (internal quotation marks and citation omitted)). “The proper perspective on
which the analysis must focus is on the recollection of the average customer, who
retains a general rather than specific impression of marks.” In re i.am.symbolic, llc,
127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted). Given the nature of the
goods and services identified in the application, the average customer is an ordinary
consumer.
As discussed above, the involved Class 41 services are legally identical, and this
reduces the degree of similarity between the marks that is necessary for confusion to
be likely as to the Class 41 portions of the applications. See, e.g., Viterra, 101 USPQ2d
at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir.
2010).
Serial Nos. 88337961 and 88338045 (Consolidated)
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1. The Dominant Portion of the Involved and Cited Composite
Marks
The marks must be considered in their entireties, 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 Co., 128 USPQ2d at 1050 (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)). The issue of the relative
weight to be given to the elements of the cited composite mark and Applicant’s
composite mark is central to both appeals, and we turn first to that issue.
We reproduce below the cited composite mark and Applicant’s composite mark in
Serial No. 88338045 for ease of reference in following our discussion:

Applicant argues in Serial No. 88337961 involving its standard character mark that
“AQUATOPIA, either alone or in combination with the compass design elements,
Serial Nos. 88337961 and 88338045 (Consolidated)
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serves as the dominant portion of the Registered Mark, not KARTRITE” because
“KARTRITE’S EPIC ADVENTURES merely serves as a tag line in the Registered
Mark.” 6 TTABVUE 7. Applicant similarly argues in Serial No. 88338045 involving
its composite mark that
[t]here is no word similar to AQUATOPIA or any design
elements similar to the compass design in [its] mark.
Instead, the dominant portion of [its] mark is the blue “K”
since it is the only item presented with different coloring,
and the word KARTRITE since it appears bolded in black
lettering as compared to the other wording. The singular
term KARTRITE is not used in the Registrant’s Mark. The
possessive term KARTRITE'S EPIC ADVENTURES does
appear in the Registrant’s mark, but it merely serves as a
tag line and is dominated by AQUATOPIA.
6 TTABVUE 8.
In both cases, the Examining Attorney acknowledges that the word portion of the
cited composite mark should be accorded greater weight than the design elements, 8
TTABVUE 9, but argues that “Applicant provides no legal basis for its position that
a ‘tag line’ should be given less significance than other wording in a likelihood of
confusion analysis,” and that “it is well established that the presence of a house mark
will not obviate a likelihood of confusion with an otherwise confusingly similar mark
under Section 2(d).” Id. at 11. The Examining Attorney further argues that “although
the wording KARTRITE’S EPIC ADVENTURES is presented in a smaller font than
AQUATOPIA, this wording remains very legible, and the term KARTRITE is
dominant within this phrase in communicating that Aquatopia is a place to have
remarkable experiences.” Id. at 12.
Serial Nos. 88337961 and 88338045 (Consolidated)
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In Serial No. 88338045 involving Applicant’s composite mark, the Examining
Attorney argues that “the term KARTRITE is dominant in the applied-for mark,” 8
TTABVUE 11, and that “the letter K serves merely as an initialization that further
reinforces the wording KARTRITE as most dominant.” Id. The Examining Attorney
concludes that in Applicant’s composite mark, it is “likely that consumers will
recognize or recollect KARTRITE as dominant when making purchase decisions.” Id.
The Federal Circuit has held that while marks must be considered on a case-by-
case basis, “[i]n the case of a composite mark containing both words and a design, ‘the
verbal portion of the mark is the one most likely to indicate the origin of the goods to
which it is affixed.’” Viterra, 101 USPQ2d at 1908 (quoting CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)). The “words are normally accorded
greater weight because they are likely to make a greater impression upon purchasers,
to be remembered by them, and to be used to request the goods.” In re Aquitaine Wine
USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing Viterra, 101 USPQ2d at
1908). As discussed above, neither Applicant nor the Examining Attorney disputes
the applicability of this general principle to the cited mark, but they differ as to which
words in the cited mark are dominant. Applicant has the better of the argument.
The word “Aquatopia” is by far the largest and most visually prominent part of
both the literal elements of the cited mark and the mark as a whole. The word is
centrally positioned within the mark above the tagline and is set off from the other
elements of the mark by its display in large script and in an eye-catching aqua color
that reinforces the “Aqua-” prefix in the word. The word is both larger than the tagline
Serial Nos. 88337961 and 88338045 (Consolidated)
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in size and shorter than the tagline in length, and these features make it more likely
than the tagline “to make a greater impression upon purchasers, to be remembered
by them, and to be used to request the [services].” Id.
In making that determination, we are reminded of the analysis of the Board in
Aquitaine Wine, in which the word LAROQUE was found to be the dominant portion
of the composite mark shown below

id. at 1184-85, and in In re White Rock Distilleries Inc., 92 USPQ2d 1282 (TTAB
2009), in which the Board found no likelihood of confusion between the standard
character mark VOLTA for “energy vodka infused with caffeine” and the composite
mark shown below for “wines”

Serial Nos. 88337961 and 88338045 (Consolidated)
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because the word TERZA was the dominant portion of the composite mark. Id. at
1284. We find that “Aquatopia” is the dominant portion of the cited mark because “it
comprises the largest literal portion of the mark in terms of size, position, and
emphasis,” and because it “is also the first term in the mark, further establishing its
prominence.” Aquitaine Wine, 126 USPQ2d at 1184-85 (citing Palm Bay Imps., 73
USPQ2d at 1692).
With respect to Applicant’s composite mark in Serial No. 88338045, the
Examining Attorney has the better of the argument. The word “kartrite” is bolded in
Applicant’s composite mark and is thus set off visually from the other words in the
mark, which are the preceding definite article “the” and the descriptive or generic
and disclaimed phrase “resort & indoor waterpark.” We agree with the Examining
Attorney that the stylized letter “k” to the left of the words “serves merely as an
initialization that further reinforces the word KARTRITE as most dominant,” id., and
we find that the bolded word “kartrite” is the dominant portion of Applicant’s
composite mark because vis-à-vis the other literal elements, “kartrite” is most “likely
to make a greater impression upon purchasers, to be remembered by them, and to be
used to request the goods [and services].”Aquitaine Wine, 126 USPQ2d at 1184.
We turn now to the required comparisons of the marks in their entireties, giving
greater weight in those comparisons to the word “Aquatopia” in the cited composite
mark and the word “kartrite” in Applicant’s composite mark than to the other
elements of those marks.
Serial Nos. 88337961 and 88338045 (Consolidated)
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2. Applicant’s Standard Character Mark and the Cited Mark
Applicant claims that its standard character mark THE KARTRITE and the cited
composite mark “are not remotely similar in overall appearance, sound, connotation
or commercial impression.” 6 TTABVUE 6. Applicant argues that in the cited mark
the name AQUATOPIA is prominently presented in large
stylized lettering over an ornate compass design. It is the
first and primary word in the mark. The wording
KARTRITE’S EPIC ADVENTURES is presented in much
smaller lettering within a banner below. In contrast,
Applicant’s mark consists of the two words THE
KARTRITE. The overall appearance and sound is therefore
very different.
Id.
According to Applicant, the “connotation and commercial impression of the two
marks is also very different” because the cited mark “invokes the impression that
AQUATOPIA is an imagined underwater community or society that is the place of
KARTRITE’S EPIC ADVENTURES.” Id. at 6-7. Applicant describes KARTRITE’S as
a “possessive modifier” that “connotes that KARTRITE is a person,” id. at 7, and
contrasts that connotation with that of Applicant’s mark, which “uses KARTRITE as
a singular noun indicating that the name of the place is THE KARTRITE.” Id.
Applicant concludes that the “only similarity in the two marks is that they both
include some form of the word KARTRITE, but the manner of use and impression left
by each is very different.” Id.41

41 In both appeals, Applicant cites White Rock Distilleries and In re Covalinski, 113 USPQ2d
1166 (TTAB 2014), in support of its arguments that the involved marks are dissimilar
because of their different dominant elements. 6 TTABVUE 7-9 (Serial No. 88337961); 6
TTABVUE 8-10 (Serial No. 88338045). The Examining Attorney also discusses the cases in
both appeals. 8 TTABVUE 11-12 (Serial No. 88337961); 8 TTABVUE 12-13 (Serial No.
Serial Nos. 88337961 and 88338045 (Consolidated)
- 27 -

The Examining Attorney focuses almost exclusively on the connotation and
commercial impression of the marks, arguing that “[s]ince the distinctive term
KARTRITE and its formative, KARTRITE’S, appear in both the registered and
applied-for marks, the marks convey the impression that they signify a single source,
namely, KARTRITE.” 8 TTABVUE 8. The Examining Attorney further argues that
“the wording ‘THE’ in Applicant’s mark has minimal, if any, trademark significance
in this case” because the Board “has found that inclusion of the term ‘the’ at the
beginning of one of the marks will generally not affect or otherwise diminish the
overall similarity between the marks,” id. at 9, and that the additional apostrophe
and letter ‘s’ in the KARTRITE potion of the registered mark has little, if any,
trademark significance and does not otherwise affect the overall similarity of the
marks in terms of commercial impression.” Id. at 10.
The Examining Attorney rejects Applicant’s arguments regarding the different
connotations of the marks because the presence of KARTRITE’S in the possessive
case in the cited mark “does not necessarily suggest a person. It is just as likely

88338045). We have relied on the White Rock Distilleries case above as support for our finding
as to the dominant portion of the cited mark and we discuss the case below in connection with
our comparison of the marks in their entireties. The Covalinski case, in which the Board
reversed a refusal to register a composite mark consisting of the highly stylized letters “RR”
in which the words “Redneck Racegirl” were displayed within the letters based on the
standard character mark RACEGIRL, is inapposite because the composite mark in that case
and the cited composite mark here are not comparable in nature. In the composite mark in
Covalinski, the letters in the word “Racegirl,” which was the element shared by the involved
and cited marks, were “difficult to notice” because they were partially obscured by the design
elements. Covalinski, 113 USPQ2d at 1168. We agree with the Examining Attorney that in
the cited mark here, “although the wording KARTRITE’S EPIC ADVENTURES is presented
in a smaller font than AQUATOPIA, this wording remains very legible.” 8 TTABVUE 12
(Serial Nos. 88337961 and 88338045).
Serial Nos. 88337961 and 88338045 (Consolidated)
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consumers would perceive KARTRITE’S in the registered mark as modifying a place
name, with Aquatopia being an area within the Kartrite resort where ‘epic
adventures’ take place.” Id. at 10-11.
We find that Applicant’s standard character mark and the cited composite mark
are dissimilar when considered in their entireties. With respect to appearance,
Applicant’s standard character mark “may be presented in any font style, size or
color, including the same font, size and color as the literal portions of [the cited]
mark,” Aquitaine Wine, 126 USPQ2d at 1186, and we must assume that the words
THE KARTRITE may be presented in the same font, size, and aqua color as the words
Aquatopia or Kartrite’s Epic Adventures in the cited mark. We may not similarly
assume, however, that Applicant’s mark may be accompanied by the compass design
that is the backdrop for the words in the cited mark. Id. at 1187 (“We hold that when
we are comparing a standard character mark to a word + design mark for Section 2(d)
purposes, we will consider variations of the depictions of the standard character only
with regard to ‘font style, size or color’ of the ‘words, letters, numbers, or any
combination thereof.’”) (emphasis in original) (citing Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) and Viterra,
101 USPQ2d at 1909). This is significant because the large compass design against
which the words in the cited mark are displayed may be part of the “recollection of
the average customer,” i.am.symbolic, 127 USPQ2d at 1630, and help to form the
general impression of the cited mark, and there is no corresponding design feature to
be seen in Applicant’s standard character mark by consumers who encounter it. Cf.
Serial Nos. 88337961 and 88338045 (Consolidated)
- 29 -

White Rock Distilleries, 92 USPQ2d at 1284 (VOLTA standard character mark and
composite TERZA VOLTA and design mark found to be dissimilar in appearance
because Board assumed that the standard character mark would not “be presented
with the design element appearing in registrant’s mark.”).
But if only the word Aquatopia in stylized aqua script, or the word and the tagline
together, form the general visual impression of the cited mark that will be recalled
by consumers, and the words THE KARTRITE are assumed to be displayed in
stylized aqua script, Applicant’s mark would still remain more dissimilar than
similar in appearance to the cited mark because of the visual impact of the words
other than “Kartrite’s” in the cited mark.
With respect to sound, the aural similarity between the marks is minimal, and
limited to the phrase “Aquatopia Kartrite’s Epic Adventures” including the word
“Kartrite’s,” which is heard in its noun form when Applicant’s mark THE KARTRITE
is verbalized. But we must “keep in mind the penchant of consumers to shorten
marks.” In re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB (2016) (finding
that “it is reasonable that such a practice would lead many consumers to drop the
highly descriptive/generic term ‘Blonde’ [from the applicant’s mark TIME
TRAVELLER BLONDE] when calling for Applicant’s [beer]”) (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 just
economy of words”)). The cited mark is a good candidate for such shortening because
the single and most prominent word “Aquatopia” is articulated first and is far easier
Serial Nos. 88337961 and 88338045 (Consolidated)
- 30 -

to recall and to verbalize than the four-word phrase “Aquatopia Kartrite’s Epic
Adventures.” Cf. Aquitaine Wine USA, 126 USPQ2d at 1185 (holding that the first
word in the applicant’s mark was most prominent because of its position). It is likely
that in verbalizing the cited mark, many consumers would not include the tagline
and would refer to the registrant and its services as “Aquatopia,” which sounds much
more like a waterpark and nothing like “THE KARTRITE.”
Even assuming, however, that the entire four-word phrase “Aquatopia Kartrite’s
Epic Adventures” is verbalized, the first word that is heard is “Aquatopia” and the
phrase as a whole is more dissimilar than similar in sound to “THE KARTRITE” due
to the presence of “Aquatopia” and the words other than “Kartrite’s” in the cited
mark. See White Rock Distilleries, 92 USPQ2d at 1284 (“because the literal portion of
the registered mark begins with the term TERZA, this mark sounds somewhat
different from applicant’s mark.”).
Finally, with respect to meaning, we find unpersuasive the Examining Attorney’s
core argument that because “the distinctive term KARTRITE and its formative,
KARTRITE’S, appear in both the registered and applied-for marks, the marks convey
the impression that they signify a single source, namely, KARTRITE.” 8 TTABVUE
8. We must examine what KARTRITE connotes in each mark in the context of the
marks in their entireties as well as the involved goods and services.
In the cited mark, the dominant word “Aquatopia” identifies a place involving
water, as “aqua” connotes water,42 and the suffix “-topia” is familiar to United States

42 The Board “may take judicial notice of information from dictionaries, encyclopedias, and
other standard referenced works.” In re Info. Builders Inc., 2020 USPQ2d 10444, *3 n.6
Serial Nos. 88337961 and 88338045 (Consolidated)
- 31 -

consumers from the words “utopia” and “dystopia” as identifying a real or imagined
place.43 On the face of the mark alone, the word Kartrite in the possessive case in the
tagline “Kartrite’s Epic Adventures” would logically be viewed by consumers as
identifying someone named Kartrite because people, not places, have “epic
adventures.”
The Examining Attorney’s contrary arguments that “a possessive does not
necessarily suggest a person” and that it “is just as likely consumers would perceive
KARTRITE’S in the registered mark as modifying a place name, with Aquatopia
being an area within the Kartrite resort where ‘epic adventures’ take place,” id., are
belied by record evidence regarding Application Serial No. 88205555 to register the
mark KARTRITE VAN DER BERRIS for “indoor waterpark services” and other
services.44 This application was filed by an apparent affiliate of the registrant,45 and
was noted by the Examining Attorney as a prospective Section 2(d) bar to registration
of both of Applicant’s marks.46 On its face, this mark consists of the full name of a
person with the first name “Kartrite” and the surname “Van Der Berris.” In

(TTAB 2020). We take judicial notice that “aqua” pertains to water. MERRIAM-WEBSTER
DICTIONARY (merriam-webster.com, last accessed on March 30, 2021).
43 We take judicial notice that “utopia” means “a place of ideal perfection especially in laws,
government, and social conditions,” while “dystopia” means “an imagined world or society in
which people lead wretched, dehumanized, fearful lives.” MERRIAM-WEBSTER DICTIONARY
(merriam-webster.com, last accessed on March 30, 2021).
44 May 30, 2019 Office Action at TSDR 17-19.
45 The applicant is CBH2O, LP and the cited registrant is CBK Lodge, LP, and both have
addresses in Tannersville, Pennsylvania. Id. at 17.
46 May 30, 2019 Office Action at TSDR 1. The application was subsequently abandoned.
January 6, 2020 Final Office Action at TSDR 1.
Serial Nos. 88337961 and 88338045 (Consolidated)
- 32 -

recognition of that meaning, the applicant entered a “Name/Portrait Statement” in
the application that the name “shown in the mark does not identify a particular living
individual.”47 This application corroborates that “Kartrite’s” in the tagline “Kartrite’s
Epic Adventures” in the cited mark refers to a fictitious person, not a place. We find
that in the context of the services identified in the cited registration, the word
“Kartrite’s” would be understood and recalled as the name of someone who has epic
adventures in an indoor water park called Aquatopia.
In Applicant’s standard character mark, the noun KARTRITE is preceded by the
definite article THE. The Examining Attorney discounts the significance of the
definite article almost to zero, 8 TTABVUE 9, but in the context of the involved goods
and services, we find that it affects the mark’s meaning because it causes the mark
as a whole to connote a place, THE KARTRITE resort and waterpark.48 The
Examining Attorney tacitly acknowledges this meaning, referring in one argument
to “the Kartrite resort where ‘epic adventures’ take place,” id. at 11, and claiming in
another argument that THE KARTRITE is “the name of the waterpark itself, as well
as the source of any related services and merchandised goods or souvenirs.” Id.

47 May 30, 2019 Office Action at TSDR 17.
48 The Board has frequently stated that when the definite article “The” appears as part of a
mark, it has no source-identifying significance and does not change the meaning of the rest
of the mark or the mark as a whole. See, e.g., The Pierce-Arrow Soc’y v. Spintek Filtration,
Inc., 2019 USPQ2d 471774, *5 (TTAB 2019) (citing In re The Place, Inc., 76 USPQ2d 1467,
1468 (TTAB 2005) (“we find that the definite article THE and the generic term BAR are not
distinctive terms, and they add no source-indicating significance to the mark [THE
GREATEST BAR] as a whole.”)). Here, however, at least in the context of the waterpark and
other identified resort services, the definite article reinforces that THE KARTRITE is a
specific venue, in the manner of hotels such as The Four Seasons, The Ritz Carlton, or The
Waldorf-Astoria. As noted below, on the face of Applicant’s composite mark, that reference to
a specific venue called “the kartrite” is explicit.
Serial Nos. 88337961 and 88338045 (Consolidated)
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Notwithstanding that both marks include KARTRITE in different forms,
Applicant’s mark THE KARTRITE differs in commercial impression from the cited
mark because the words THE KARTRITE connote a place or venue in Applicant’s
mark and the word Kartrite in the possessive case identifies a person in the cited
mark.
Applicant’s standard character mark and the cited mark are dissimilar in
appearance, sound, and connotation and commercial impression, and the first DuPont
factor weighs against a finding of a likelihood of confusion as to the standard
character mark.
3. Applicant’s Composite Mark
Most of the arguments regarding the similarity of Applicant’s standard character
mark to the cited mark pertain to Applicant’s composite mark as well, as does much
of our analysis above. We discuss below our findings that are specific to the composite
mark.
Applicant argues that the “significant differences in the words, presentation of the
words, and design elements result in an overall very different appearance and sound.”
6 TTABVUE 7 (Serial No. 88388045). The Examining Attorney does not specifically
address the appearance and sound of the two marks.
We have found that the word Aquatopia in stylized aqua script dominates the cited
mark and that the large compass design against which the literal elements of the
mark are displayed may also form part of the recalled general visual impression of
the mark. We have also found that Applicant’s composite mark is dominated by the
lowercase bolded word “kartrite” in a plain font, which appears above the disclaimed
Serial Nos. 88337961 and 88338045 (Consolidated)
- 34 -

words “resort & indoor waterpark.” Applicant’s composite mark as a whole is
dissimilar in appearance to the cited mark because the dominant words “kartrite”
and “Aquatopia” are entirely different, Applicant’s mark has no design element or
stylization that is reminiscent of the non-verbal elements of the cited mark, and all
but one of the colors that are claimed as features of the respective marks are different.
With respect to sound, we have found that the cited mark likely would be
verbalized simply as “Aquatopia” because of the “penchant of consumers to shorten
marks.” Bay State Brewing, 117 USPQ2d at 1961. That penchant would be even more
likely to apply to the literal elements of Applicant’s composite mark because the
words “resort & indoor waterpark” are descriptive of or generic for these types of
lodging and entertainment venues, while the preceding and modifying words “the
kartrite” identify the specific resort/waterpark venue. We reiterate that “Aquatopia”
is entirely dissimilar in sound to “the kartrite,” but find that even if “Aquatopia
Kartrite’s Epic Adventures” were verbalized, the phrase is dissimilar in sound to “the
kartrite” due to the presence of the first word “Aquatopia” and the words other than
“Kartrite’s” in the cited mark.49
As to connotation and commercial impression, we have found that in the context
of the involved services, Applicant’s standard character mark THE KARTRITE
suggests a place. In Applicant’s composite mark, that is suggested more specifically
by an express identification of “the kartrite” as a specific “resort & waterpark,” which

49 If the phrase “the kartrite resort and indoor waterpark,” comprising all of the literal
elements of Applicant’s mark, is verbalized, the marks are even more dissimilar in sound
regardless of how the cited mark is verbalized.
Serial Nos. 88337961 and 88338045 (Consolidated)
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further differentiates the composite mark in commercial impression from the cited
mark, in which “Kartrite’s” refers to a person who has epic adventures in a different
place, Aquatopia, the nature of which is suggested, but not immediately described, by
the mark alone.
Applicant’s composite mark and the cited mark are dissimilar in appearance,
sound, and connotation and commercial impression, and the first DuPont factor
weighs against a finding of a likelihood of confusion as to the composite mark.
C. Conclusion
The Class 41 waterpark services in the cited registration and both of Applicant’s
applications are legally identical, and the second and third DuPont factors strongly
support a finding of a likelihood of confusion as to the entire Class 41 portions of the
applications. The legal identity of these services also reduces the degree of similarity
between the marks that is required for confusion to be likely with respect to Class 41.
The second and third DuPont factors also support a finding of a likelihood of confusion
with respect to the goods in Classes 18, 21, 25, and 28, and the services in Classes 43
and 44.
We have found, however, that Applicant’s standard character and composite
marks are both dissimilar to the cited mark, and the first DuPont factor weighs
against a finding of a likelihood of confusion. We find that the marks are too
dissimilar for confusion to be likely even under the lower required standard for
similarity triggered by the legal identity of the Class 41 services. In balancing the
two key DuPont factors, we find that the dissimilarity of the marks outweighs the
Serial Nos. 88337961 and 88338045 (Consolidated)
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legal identity or similarity of the goods and services in Classes 18, 21, 25, 28, 41, 43
and 44. See Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 47
USPQ2d 1459, 1460 (Fed. Cir. 1998) (the Federal Circuit has “upheld Board
determinations that one DuPont factor may be dispositive in a likelihood of confusion
analysis, especially when that single factor is the dissimilarity of the marks”); Kellogg
Co. v. Pack’em Enters., Inc., 951 F.2d 330, 21 USPQ2d 1142, 1144-45 (Fed. Cir. 1991).
The first and second DuPont factors both weigh against a finding of a likelihood of
confusion with respect to the goods in Classes 12, 14, 16, and 20, and the services in
Class 35.
Decision: The refusals to register are reversed.