ComcastCorporation

Trademark Trial and Appeal Board

Jul 5, 2006

No. 76552342 (T.T.A.B. Jul. 5, 2006)

Mailed:
July 5, 2006
jtw

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Comcast Corporation
________

Serial No. 76552342
_______

Mitchell H. Stabbe and Kelly A. Donohue of Dow, Lohnes &
Albertson, PLLC, for Comcast Corporation.

William H. Dawe III, Trademark Examining Attorney, Law
Office 108 (Andrew Lawrence, Managing Attorney).
_______

Before Hairston, Walters and Walsh, Administrative
Trademark Judges.

Opinion by Walsh, Administrative Trademark Judge:

On October 17, 2003, Comcast Corporation (applicant)
filed an intent-to-use application to register the mark
FAN, later amended to THE FAN,1 in standard-character form
for services now identified as “entertainment services,
namely providing access to articles, files and audio and

1 In its brief applicant indicates that the examining attorney
had not acted on its request to amend the mark, but the examining
attorney’s final refusal indicates acceptance by stating, “And
the substitute drawing has been accepted and made of record.”
Final Refusal at 1.

THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 76552342
2
video clips in the fields of international, national and
local news, entertainment, motion pictures, music,
television and sports through an online multimedia player,
In International Class 41.”
The examining attorney refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), in
view of Reg. No. 2117302, which issued on December 2, 1997,
for the mark THE FAN in standard-character form for “radio
broadcasting services” in International Class 38. The
registration claims both first use and first use in
commerce in July 1987. CBS Radio Inc. (registrant) has
filed affidavits under Trademark Act §§ 8 and 15, 15 U.S.C.
§§ 1058 and 1065, and those affidavits have been accepted
and acknowledged.
The examining attorney issued a final refusal and
maintained the refusal after reconsideration, and applicant
appealed. Both applicant and the examining attorney have
filed briefs. Applicant did not request an oral hearing.
We affirm.
PROCEDURAL MATTERS
Before addressing the refusal we must attend to two
procedural loose ends.
The first concerns the identification of goods.
Applicant initially identified its services as “online
Ser No. 76552342
3
computer services, namely providing general and customized
information and listings in the fields of news,
entertainment, sports and games.” In the first office
action the examining attorney found the identification
indefinite and required amendment. Applicant provided an
amended identification in its response. In the final
refusal, which followed, the examining attorney still found
the identification unacceptable and required further
amendment. In its request for reconsideration applicant
provided a new amended identification.
In responding to the request for reconsideration the
examining attorney said nothing about the identification of
goods specifically. The examining attorney simply stated,
“After careful consideration of the law and facts of the
case, the examining attorney must deny the request for
reconsideration and adhere to the final action as written
since no new facts or reasons have been presented that are
significant and compelling with regard to the point at
issue.” In our order forwarding the request for
reconsideration to the examining attorney the Board had
stated, “If the amendment [to the identification of
services] is found unacceptable, the Examining Attorney
should issue an office action indicating the reasons why
the proposed amendment is unacceptable and return the file
Ser No. 76552342
4
to the Board which will then allow applicant time to file
its appeal brief. (Footnote omitted.) However, if the
examining attorney believes the problems with the proposed
identification can be resolved, the Examining Attorney is
encouraged to contact applicant, either by telephone or
written office action, in an attempt to do so.”
In the absence of either any mention of the
identification of services or any attempt to resolve any
remaining problem, applicant indicated in its brief that
the proposed amendment had been accepted. In his brief the
examining attorney advised applicant that the latest
proposed amendment was still unacceptable.
In view of the totality of the circumstances, we
conclude that the identification applicant offered with its
request for reconsideration was accepted. The examining
attorney failed to maintain his objection and otherwise
failed to comply with the Board’s instruction.
Accordingly, the operative identification is,
“entertainment services, namely providing access to
articles, files and audio and video clips in the fields of
international, national and local news, entertainment,
motion pictures, music, television and sports through an
online multimedia player” in International Class 41.
Ser No. 76552342
5
The second procedural issue concerns certain evidence
applicant provided with its reply brief and a related
request. With its reply brief applicant, for the first
time, provided certain Internet web pages allegedly related
to registrant and registrant’s use of the cited mark.
Applicant’s purpose was to show that, “Registrant uses its
mark in conjunction with an all-sports radio station,” a
more restricted identification of services than “radio
broadcasting services” specified in the cited registration.
Applicant apparently recognized that this submission
was late. Therefore, applicant asked that we either take
judicial notice of the evidence or that we remand the case
to enable applicant to submit this evidence. We decline to
do either.
First, the evidence is not the type of material as to
which we would take judicial notice. See TBMP § 1208.04
(2d ed. rev. 2003) and cases cited therein. Secondly,
applicant’s submission, provided with a reply brief, is
manifestly untimely. Trademark Rule 2.142(d) requires that
the record be complete prior to the filing of an appeal
subject to certain exceptions not relevant here. Also, it
is apparent that this evidence was available prior to the
filing of applicant’s appeal.
Ser No. 76552342
6
However, even if applicant had provided this evidence
at the appropriate time, we would not consider it because
it is offered for an impermissible purpose.2 In determining
likelihood of confusion, we must consider the services as
identified in a cited registration and cannot consider
extrinsic evidence regarding a registrant’s actual use of
its mark. In re Bercut-Vandervoort & Co., 229 USPQ 763,
764 (TTAB 1986)(extrinsic evidence and argument suggesting
trade-channel restrictions not specified in application
rejected). Accordingly, we have not considered the
evidence applicant provided with its reply brief, and we
deny applicant’s request for a remand.
LIKELIHOOD OF CONFUSION
Turning to the refusal, Section 2(d) of the Act
precludes registration of an applicant’s mark “which so
resembles a mark registered in the Patent and Trademark
Office . . . as to be likely, when used on or in
connection with the goods of the applicant, to cause
confusion . . .” 15 U.S.C. § 1052(d). To determine
whether there is a likelihood of confusion, we must
consider all evidence of record bearing on the factors

2 We regret any inconvenience to applicant resulting from the
examining attorney’s suggestion in his brief that this evidence
might be considered.

Ser No. 76552342
7
delineated in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1977). Here, as is
often the case, the crucial factors are the similarity of
the marks and the similarity of the services of the
applicant and registrant. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976). In addition to those factors, we will also address
applicant’s and the examining attorney’s arguments relating
to other factors.
Comparison of the Marks
In comparing the marks we must consider the
appearance, sound, connotation and commercial impression of
both marks. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). Applicant’s mark and
registrant’s mark are both THE FAN; both marks are in
standard-character form.
Applicant does not argue that the marks differ in
appearance or sound. The simple fact is that the marks are
identical in appearance and sound. In fact, applicant’s
only argument as to the marks is as follows: “THE FAN has
different connotations as used by Applicant and by
Registrant mitigating any likelihood of confusion. The
Cited Mark is used for a sports radio station.
Ser No. 76552342
8
Accordingly, the Cited Mark is clearly intended to
communicate a reference to sports fanatics or fans. In
contrast, the Applicant’s Mark is intended to communicate
an image of a hand-held fan, an accessory used either as a
costume piece or a cooling device.” The examining attorney
argues that applicant has not provided any evidence to
support its contention that the connotations differ.
In support of its theory, applicant provided an
example of a display it used or intends to use on a web
page in connection with its services showing the mark, THE
FAN. The display consists of a circle with “thumbnail”
photos positioned at the outer band of the circle; the
photos feature persons in the news, including entertainment
and sports personalities. The thumbnails apparently
provide links to related material. It is certainly
arguable that this display resembles a hand-held fan.
However, in considering the connotation of the
respective marks we cannot consider either the restricted
identification of services applicant suggests with regard
to registrant’s services, nor can we consider the example
applicant provides of one display of its mark. We must
evaluate the connotation of applicant’s mark based on the
mark, as shown in its application, and applicant’s
services, as identified in its application. Likewise, we
Ser No. 76552342
9
must evaluate the connotation of registrant’s mark based
the mark, as shown in the cited registration, and
registrant’s services, as identified in the registration.
We cannot base our evaluation of applicant’s mark and
services on a specific display applicant used or intends to
use. Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d
724, 156 USPQ 340, 342 (CCPA 1968)(“. . . the display of a
mark in a particular style is of no material significance
since the display may be changed at any time as may be
dictated by the fancy of the applicant or the owner of the
mark.”). Here, the fan-like display is neither an element
of the mark, nor is it dictated by the services, as
identified.
Likewise, as we have indicated above, we cannot assume
that registrant’s services are more restricted than stated
in the cited registration based on extrinsic evidence, as
applicant urges us to do. In re Bercut-Vandervoort & Co.,
229 USPQ at 764. Registrant’s services are simply
identified as “radio broadcasting services” and could
include news, entertainment and sports, and all of the
other subject matter applicant identifies. Registrant too
could adopt a fan-like display in connection with the use
of its mark.
Ser No. 76552342
10
When we consider the registered mark in view of the
broad identification in the registration we conclude that
it could yield a variety of connotations. The particular
connotation would depend on the precise manner of use and
the precise type of radio broadcasting service being
provided by the registrant. Either may vary significantly.
Accordingly, we must conclude that these connotations would
include the connotations that would possibly be associated
with applicant's mark. Both of the possible connotations
applicant suggests with regard to the registered mark and
its mark, that is, either that of a “fan” of a particular
personality or activity or that of a hand-held fan, could
be among the connotations either applicant’s mark or the
registered mark could project, depending on the
circumstances.
Furthermore, even if we considered registrant’s
services to be restricted as applicant argues, and
applicant’s display of its own mark, as submitted, both
could still connote a “fan” of a particular sports
personality or sports activity. In fact, applicant’s
display includes sports items consistent with its
identification of services.
Accordingly, we conclude that the connotations of both
applicant’s mark and registrant’s mark could be identical.
Ser No. 76552342
11
Furthermore, on the same basis we conclude that the marks
of applicant and registrant could also project identical
commercial impressions. Finally, we conclude that the
marks of applicant and registrant are identical in all
respects.
Comparison of the Goods and Channels of Trade
With respect to the services, applicant argues:
In this case, Applicant Comcast and the owner of the
Cited Mark provide their respective services through
different media, namely, the Internet and radio,
respectively, mitigating against there being a
likelihood of confusion. Moreover, THE FAN radio
station is directed to New York area sports fans
within its broadcast area, while applicant targets
Internet users seeking information on a wide variety
of subjects. Indeed, Applicant’s service is not even
available to the general public; it is offered
exclusively to Applicant’s broadband customers when
they log onto their Comcast Internet account.

On the other hand, the examining attorney argues, “The
registrant’s radio broadcasting services are related to the
various types of entertainment services in the fields of
news, movies, television and sports provided via the
Internet. (Footnote omitted.) Therefore, the services of
the parties are related because they pass through the same
trade channels.” The examining attorney then refers to
certain third-party registrations he made of record to
establish that, “. . . radio broadcasting services appear
with various types of entertainment services in the fields
Ser No. 76552342
12
of news, motion pictures, music, television and/or sports,
including said services offered over the Internet.”
First, we acknowledge, as the examining attorney
argues, the importance of the fact that the marks are
identical in comparing the services of applicant and
registrant. In such cases, the services of applicant and
registrant need not be as closely related to find a
likelihood of confusion compared to cases where the marks
differ. Amcor, Inc. v. Amcor Indus., Inc., 210 USPQ 70, 78
(TTAB 1981).3
Secondly, here again applicant’s argument rests on a
restrictive reading of the services identified in the
registration. As we have stated, we must assume that
registrant’s services include all services logically
included within “radio broadcasting services” and not
merely an all-sports radio station, as applicant suggests.
In re Bercut-Vandervoort & Co., 229 USPQ at 764. Nor can
we assume that registrant’s services are confined to the
New York market, as applicant suggests. There are no
geographic restrictions in either the cited registration or
the application. Amcor, Inc. v. Amcor Indus., Inc., 210

3 We note that this is not a case like the case cited by
applicant where the marks are identical, but applicant and
registrant have entered into a consent agreement. In re Sears
Roebuck and Co., 2 USPQ2d 1312, 1313 (TTAB 1987).

Ser No. 76552342
13
USPQ at 77. We also have no reason to conclude that “radio
broadcasting services” cannot be offered nationwide.
Indeed, as we discuss below, radio broadcasts are now
“streamed” over the Internet nationwide and beyond.
Applicant also rests its argument on a restrictive
reading of the services identified in its own application.
That is, applicant argues that its services are provided
only to its subscribers. Applicant did not limit its
identification of services to services offered through
subscriptions. Even if it had, we do not believe that such
a limitation would alter the analysis here. We have no
basis on which to conclude that subscription services and
nonsubscription services, which are otherwise related,
could not be offered under the same mark and reach the same
consumers.
As the examining attorney correctly points out, in
considering the services, and the channels of trade, we
must consider the services as identified in the application
and registration and, in the absence of any restrictions,
assume that the services include all services identified
and that those services travel in all trade channels
appropriate for such services. CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1981).
Ser No. 76552342
14
Applicant identifies its services as “entertainment
services, namely providing access to articles, files and
audio and video clips in the fields of international,
national and local news, entertainment, motion pictures,
music, television and sports through an online multimedia
player.”4 The services identified in the registration are
“radio broadcasting services.”
The examining attorney has offered several third-party
registrations which include services of the type applicant
identifies as well as services of the type identified in
the cited registration to support his conclusion that the
services are related. These registrations have some
probative value; specifically, they may indicate that the
services are the types of services which may emanate from
the same source. In re TSI Brands Inc., 67 USPQ2d 1657,
1659 (TTAB 2002); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993).
In fact, the third-party registrations do show that
the same mark has been registered in connection with both
radio broadcasting services and various Internet-based
services, including entertainment, news and sports

4 Our conclusions would not change if we had considered
applicant’s original identification of services or its
intervening proposed identification of services.

Ser No. 76552342
15
information services. The registrations also indicate that
broadcasts, including radio broadcasts, are transmitted
over the Internet. See, e.g., the BET registration below.
The following are examples of relevant third-party
registrations5 provided by the examining attorney:
Reg. No. 2615865 for the mark BET, owned by Black
Entertainment Television, Inc., for services including
“television, radio and Internet broadcasting, narrow
casting and cable casting services” in Class 38, as
well as, “entertainment services, namely, ongoing
television or radio programs in the fields of music,
comedy, drama, news, live performances, health and
fitness, lifestyle, travel, fashion, sports and topics
of general interest distributed via cable, broadcast,
satellite, the global computer network, audio and
video media” in Class 41;

Reg. No. 2660469 for the mark WEATHERQUEST, owned by
Weather Channel, Inc., for services including “radio
broadcasting, television broadcasting, and cable
television transmissions” in Class 38, as well as,
“entertainment in the nature of on-going television
programming, cable television programming, and radio
programming in the fields of meteorology, news,
travel, sports, science, and related contests
distributed via broadcast television, cable
television, radio, the Internet, telephones, WAP
phones, personal digital assistants (PDAs), pagers and
other electronic devices capable of receiving wire or
wireless electronic communications” in Class 41;

Reg. No. 2882210 for the mark CLEAR CHANNEL, owned by
Clear Channel Identity, L.P., for services including
“radio and television broadcasting; Internet
broadcasting services, namely the audio and video
transmission of live and pre-recorded events over a
global computer network and related audio and video
entertainment” in Class 38, as well as, “production of

5 We have excluded from consideration any third-party
registration which did not include a claim of use.

Ser No. 76552342
16
live entertainment events, namely, live concerts,
festivals, theatrical shows, shows for the
entertainment of children, magic shows, rib cook-offs,
thrill shows, motor sports events, monster truck
competitions, motorcycle competitions, drag racing
events, and sporting events; production and
distribution of television programs and network radio
programming services; production and development of
motion pictures; television and radio programming
services for others; entertainment services in the
nature of organizing musical, theatrical and
family/variety tours and presentations; providing
entertainment information related to national
schedules of live entertainment events, entertainment
news and personality profiles of touring talent
available in print form and over a global computer
network” in Class 41;

Reg. No. 2823862 for the mark FASTCAST, owned by
FastCast Broadcasting, LLC, for services including
“television, radio, cable television and computer on-
line broadcasting services” in Class 38, as well as,
“entertainment in the nature of on-going television
programs in the field of current events, sports, local
traffic and weather news and information” in Class 41;

Reg. No. 2649546 for the mark THIS IS BUSINESS, owned
by Bloomberg L.P., for services including “Radio and
television broadcasting; interactive electronic and
audio and visual communication and information
broadcasting over, by or through local or wide area
computer networks, wireless communication networks,
global computer information networks and other
electronic communication networks” in Class 38, as
well as, “Entertainment services in the nature of
programming distributed over broadcast, television,
radio, cable, and direct satellite in the fields of
news, business, finance, current events,
entertainment, sports, human interest stories,
securities, securities markets and the energy and
asphalt industries; entertainment services in the
nature of producing and distributing programming
distributed over broadcast, television, radio, cable,
and direct satellite in the fields of news, business,
finance, current events, entertainment, sports, human
interest stories, securities, securities markets and
the energy and asphalt industries” in Class 41;
Ser No. 76552342
17

Reg. No. 2893515 for the mark RADIO SAWA, owned by
Broadcasting Board of Governors, for services
including “communication services, namely,
international radio broadcasting services and
transmitting streamed sound and audio-visual material
via the Internet” in Class 38, as well as, “news
agencies, namely, gathering and international
dissemination of news, news reporting services;
entertainment, namely, providing programs in the field
of local, national and international news, sports,
health, education, arts, music, culture, and current
events via radio and the Internet; production of
international radio programs” in Class 41;

Reg. No. 2600176 for the mark SIGNALSTREAM.COM, owned
by ITN Satellite Services, Inc., for services
including “broadcasting via the Internet to desktop
personal computers, programs containing multimedia
content of others, featuring news, sports,
entertainment, commercial, educational and corporate
programming” in Class 38, as well as, ”producing and
creating audio, video and multimedia content in the
fields of education, entertainment, news and sports,
for delivery to personal computers via the Internet”
in Class 41; and

Reg. No. 2747830 for the mark AIRIA, owned by AIRIA
LIMITED, for services including “provision of
broadcasting services to mobile users; provision of
telecommunications connections to the Internet” in
Class 38, as well as, “entertainment services, namely,
providing television programming and streaming video
content in the fields of sports, news, travel,
history, geography, food, weather comedy . . . “ in
Class 41;

It is abundantly evident from these examples that the
same mark has been registered, based on use, across
numerous types of media, including both radio and the
Internet, and that the content of such transmissions can
include an infinite variety of combinations of subject
Ser No. 76552342
18
matter, including entertainment, news and sports.
Accordingly, we reject applicant’s suggestion that “radio
broadcasting services” stands apart from the entertainment
services it identifies to be offered through the Internet.
In fact, the evidence shows that even radio broadcasts are
transmitted through the Internet, and that media companies
have registered the same mark for use in a wide range of
media, including both radio and the Internet. This
circumstance demonstrates that consumers could believe that
the services of applicant and registrant emanate from the
same source.
We also reject applicant’s argument that registrant’s
potential use of the Internet would be restricted to the
mere promotion of its services over the Internet, and
therefore, the services of applicant and registrant are
distinct. The circumstances here are in no way similar to
the circumstances in the cases cited by applicant, such as,
Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d
1161, 50 USPQ2d 1840, 1843 (D.C. Cal. 1998).6 This is not a
case where the claim is that the services are related

6 In both its main brief and reply brief we note that applicant
has both cited and discussed numerous cases from the district
courts. These cases involve infringement and similar claims
where the focus is the actual use of marks. These cases are of
limited relevance here due to our focus in this proceeding on the
application and registration, not actual use.

Ser No. 76552342
19
simply because both parties use the Internet. Here
applicant and registrant identify services offered through
related media featuring subject matter which is potentially
the same and which could reach the same consumers.
Based on the evidence of record, we conclude that the
services of applicant and registrant, as identified in the
application and cited registration, are closely related.
Similar Marks in Use on Similar Goods
Applicant also argues that the registered mark is
“diluted” and, as such, should be accorded a narrow scope
of protection. This argument apparently addresses Du Pont
factor (8) - ”The number and nature of similar marks in use
on similar goods.” In re E. I. du Pont de Nemours & Co.,
177 USPQ at 567. To support this argument applicant refers
to eight third-party registrations for marks which include
either FAN or THE FAN in some form.
We first note that applicant has referred to certain
information related to the registrations, but applicant has
not provided copies of the registrations. To make
registrations properly of record, the Board requires the
submission of copies of the USPTO paper records or copies
directly from the electronic records of the USPTO. In re
Volvo Cars of North America Inc., 46 USPQ2d 1455, 1456 n.2
(TTAB 1999); In re Duofold Inc., 184 USPQ 638, 640 (TTAB
Ser No. 76552342
20
1974). Furthermore, the Board does not take judicial
notice of registrations. In re JT Tobacconists, 59 USPQ2d
1080, 1081 n.2 (TTAB 2001). In this case, because the
examining attorney has discussed the evidence without
objecting to the form, we will consider the information
applicant provided for whatever probative value it
possesses.
As applicant indicates, in appropriate cases, the
Board has considered whether third-party registrations
“. . . indicate that the word, feature or design is more
suggestive than arbitrary in a particular field, and,
therefore, such a registration for goods or services in the
same or related field should be given a more restricted
scope of protection.” (Citations omitted.) On the other
hand, the Court of Appeals for the Federal Circuit recently
has urged caution in relying on third-party registrations
for this purpose noting that registration alone does not
establish that a term is weak and that the probative value
of third-party trademarks depends entirely upon their
usage. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 73 USPQ2d at 1693.
In this case, even if we give applicant the benefit of
the doubt and assume that the marks in the third-party
registrations are in use, we find the evidence insufficient
Ser No. 76552342
21
to establish that “THE FAN” is weak in the radio
broadcasting and related fields. First, all of the marks
applicant references use “FAN” in a very different form
than the form in both the application and registration,
specifically, STAN THE FAN, THE FAN CHANNEL, THE OFFICIAL
CARD OF THE FAN, FANCASTER, NETS HOT SHOTS FAN CLUB, FAN
PHONE, FIRST FAN BUZZ and F.A.N. The referenced marks not
only differ from applicant’s mark and the registered mark,
but applicant’s and registrant’s marks are identical.
This is not a case like the case cited by applicant
where there were over 150 examples of registrations, as
well as several advertisements from the classified section
of the telephone directory, to show that the common element
at issue, a “pizza man” design, was weak. Pizza Inn Inc.
v. Russo, 221 USPQ 281, 282 (TTAB 1983). Nor is this a
case where the evidence is sufficient to “tip the scales”
when weighed with other factors. In re Dayco Products-
Eaglemotive Inc., 9 USPQ2d 1910, 1912 (TTAB 1998).
Accordingly, on this record we are not persuaded that
the registered mark is weak, and therefore, only entitled
to a limited scope of protection, as applicant argues.
Other Arguments
We have also considered and reject applicant’s
argument noting that the FCC permits radio and television
Ser No. 76552342
22
stations owned by different parties to use the same call
letters. This is simply not relevant to our determination.
The marks at issue are not call letters, and the Trademark
Act, not FCC provisions, governs our actions here. Also,
applicant’s suggestion that call letters are not treated
like other trademarks is not correct. See In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214 (TTAB 2001)
and In re WSM, Inc., 225 USPQ 883 (TTAB 1985).
Also, we reject applicant‘s argument that we should
permit registration here because registrations owned by
different parties allegedly exist for “FOX“ for television
and cable broadcasting services and “FOX 97” for radio
broadcasting services. Again, applicant has provided no
records and no other information related to these marks.
Nevertheless, ultimately we must decide each case on its
own merits, and not based on actions taken on prior
applications involving different facts. In re Nett
Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001).
CONCLUSION
In sum, after considering all evidence of record
bearing on the du Pont factors, we conclude that there is a
likelihood of confusion in this case. We conclude so
principally because the marks of applicant and registrant
Ser No. 76552342
23
are identical and because the services of applicant and
registrant are closely related.
Decision: The refusal to register applicant’s mark
under Section 2(d) of the Act is affirmed.