Conway Wealth Group, LLC

Trademark Trial and Appeal Board

Aug 25, 2020

88309008 (T.T.A.B. Aug. 25, 2020)

Mailed: August 25, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Conway Wealth Group, LLC
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Serial No. 88309008
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Eric H. Melzer of Berkowitz Lichtstein Kuritsky Giasullo & Gross LLC,
for Conway Wealth Group, LLC.

James Prizant, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____

Before Wellington, Wolfson and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Conway Wealth Group, LLC, seeks registration on the Principal
Register of the mark for “Financial advisory and consultancy
services, namely, wealth management services; providing financial services with
respect to securities and other financial instruments and products, namely, providing
money management services; Money management services,” in International Class
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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36.1 The colors green and lime green are claimed as features of the mark. The
description of the mark reads as follows:
The mark consists of a stylized version of the word “SEEDS” with a leaf
design above the word and a leaf design forming part of the letter D. The
lettering is in green and the leaf design is predominately in lime green
with green borders.
Applicant appeals from the Trademark Examining Attorney’s final refusal to
register under Trademark Act § 2(d), 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used in connection with the identified services, so resembles
the mark SEED WEALTH MANAGEMENT, INC., in standard characters, registered
on the Principal Register for “Financial services, namely, wealth management
services for individuals and families; Financial advice and consultancy services for
individuals and families” in International Class 36.2 The appeal is fully briefed.
We affirm the refusal to register.
I. Applicable Law

The fundamental purpose of Trademark Act § 2(d) is to prevent confusion as to
source, and to protect registrants from damage caused by registration of confusingly
similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ
327, 331 (1985). Our analysis is based on all of the probative evidence of record. In re
E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”). In making our determination, we consider each DuPont factor for which

1 Application Serial No. 88309008 was filed on February 20, 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.
2 Registration No. 4755746, issued June 16, 2015.
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there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”). We discuss the relevant DuPont factors below.
A. Similarity or Dissimilarity of the Services and Trade Channels
We begin our analysis with the second and third DuPont factors. The second
DuPont factor considers the “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, 1305, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 476 F.2d
at 1361), and the third DuPont factor considers the “similarity or dissimilarity of
established, likely-to-continue trade channels.” Id. at 1052. It is “not necessary that
the goods [or services] be identical or even competitive to support a finding of a
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likelihood of confusion.” 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)). “[L]ikelihood of confusion can be found ‘if the
respective goods [or services] are 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.’” Id.
Registrant’s “wealth management services for individuals and families” are
encompassed within Applicant’s “wealth management services.” Additionally,
Registrant’s “financial advice and consultancy services for individuals and families”
are encompassed by Applicant’s “money management services.” The services are
therefore legally identical,3 which Applicant does not dispute.
The fact that the respective services are legally identical means that we must also
assume that the relevant purchasers and channels of trade are identical to the same
extent. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1244 (TTAB 2010) (citing
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005
(Fed. Cir. 2002) (“[B]ecause the services are legally identical, they must be presumed
to travel in the same channels of trade and be rendered or offered to the same class
of consumers.”)). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and
classes of consumers, the Board was entitled to rely on this legal presumption in
determining likelihood of confusion).

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Because Applicant’s and Registrant’s services are legally identical, and they travel
in the same trade channels to the same classes of purchasers, the second and third
DuPont factors strongly support a finding of a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athletic Co., 128 USPQ2d at 1047 (quoting DuPont, 177 USPQ at 567).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 Fed.
Appx. 516 (Fed. Cir. 2019)).
The test is not whether the marks can be distinguished in a side -by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the services offered under the respective marks is
likely to result. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d
1797, 1801 (Fed. Cir. 2018) (citing Coach Servs., 101 USPQ2d at 1721). Our focus is
on the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1740 (TTAB 2014); Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d
1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers “may have but dim
recollections from having previously seen or heard one or the other of the involved
marks.”). In making our determination, we keep in mind that the more closely related
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the services are, the more “the degree of similarity [between the marks] necessary to
support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
The Examining Attorney argues that SEED is the dominant word in Registrant’s
mark SEED WEALTH MANAGEMENT, INC. because WEALTH MANAGEMENT,
INC. is merely descriptive of Registrant’s services and has been disclaimed, and
“[d]isclaimed matter that is descriptive of or generic for a party’s services is typically
less significant or less dominant when comparing marks” (citing In re Detroit Athletic
Co., 128 USPQ2d at 1050 (Fed. Cir. 2018) and TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) §1207.01(b)(viii) and (c)(ii)).4 According to the Examining
Attorney, “Applicant’s mark creates a confusingly similar impression to that of
registrant’s mark based on the nearly identical wording of the dominant literal
portions of the respective marks, as well as a design in applicant’s mark that
emphasizes the primacy of that wording.”5
Applicant disagrees, arguing that the design feature of its mark is the dominant
element because “Applicant’s logo which is green and contains a leaf for the SEEDS
gives a completely different appearance and commercial impression than the
Registered Mark which merely looks like a corporate name with form words.” 6
According to Applicant, “[c]onsumers are not going to confuse a green, stylized mark

4 6 TTABVUE 4.
5 6 TTABVUE 6.
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with a logo that is a major component of a mark with a mark that is single and
contains just a corporate name.”7 “[T]he registered mark … is really a phrase that
looks more like a corporate name as it has the ‘Inc.’ on the end of the name. … The
Registered Mark is therefore very weak.”8
As the Examining Attorney notes, “a mark presented in stylized characters and/or
with a design element generally will not avoid likelihood of confusion with a mark in
typed or standard characters because the word portion could be presented in the same
manner of display,” citing In re Viterra Inc., 101 USPQ2d at 1908; Squirtco v. Tomy
Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir. 1983) (“[A]rgument
concerning a difference in type style is not viable where one party asserts rights in
no particular display”).9 Because the mark in the cited registration is in standard
characters, Registrant may display its mark in any “font style, size, or color,”
including in the font and green colors used by Applicant.10
Registrant may also choose to emphasize the word SEED in its mark and
deemphasize the descriptive wording in its standard character mark. Indeed,
Registrant has done that according to a screenshot from Registrant’s website made
of record by the Examining Attorney showing that Registrant also uses a green leaf
design with its mark as shown below:

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10 By “font style,” we refer to the type of font that may be used, and not to a font that may be
stylized in a manner that includes any particular design.
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11
In the words of the Examining Attorney, “Thus we see that registrant too, uses a
green sprouting leaf in association with the dominant wording of its mark, ‘SEED.’
This serves to highlight the primacy of the word ‘SEED’ in the registration as green,
growing things like leaves are certainly evocative of the ‘SEED’ from which they
spring.”12
Applicant cites to four prior Board decisions in support of its argument that an
exception to the general rule on the dominance of wording in a mark is applicable
here: In re Primeway International, 2019 TTAB LEXIS 167 (TTAB 2019) (non-
precedential); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); In re
Covalinski¸113 USPQ 2d 1166 (TTAB 2014); and In re White Rock Distilleries Inc., 92
USPQ2d 1282 (TTAB 2009). However, it is well-established that each case must be
decided on its own merits, see e.g., In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001). Moreover, the cases cited by Applicant are
distinguishable and inapposite to the facts of this case.

11 October 22, 2019 Final Office Action, TSDR 5. The yellow highlighting appears to have
been added by the Examining Attorney for emphasis.
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In Primeway, the Board found the design element in the registrant’s mark
dominant because the letters STS and “the unusual design of a wolf
in sheep’s clothing making a menacing expression, … holding out its
arm with a raised hand against the letters STS” “immediately draws
one’s attention and engage the viewer before he or she may notice the smaller word
‘incognito’ in quotation marks below the picture of the wolf.” Primeway, 2019 TTAB
LEXIS 167, *5. Unlike the situation in Primeway, Applicant’s mark is clearly
dominated by the word SEEDS and the leaf design does not draw one’s attention
away from the word SEEDS.
Jack Wolfskin is also inapposite and actually supports the Examining Attorney’s
argument. There, the Federal Circuit reversed a Board
decision that gave too much weight to the design element in
the opposer’s registered mark shown here in view of the “extensive evidence of third-
party registrations depicting paw prints and evidence of these marks being used in
internet commerce for clothing.” Similarly here, “[Applicant] cannot escape the fact
that the [SEEDS] element of its … mark is the dominant portion of the mark.” Jack
Wolfskin, 116 USPQ2d at 1136.
In In re Covalinski, the Board found certain design features of the applicant’s
mark shown here to be dominant over its wording not only
because the design was large and prominently displayed, but also
because the various design elements within the main double-R
design were so integrated with the rest of the wording as to make the design
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dominant. Id., 113 USPQ2d at 1168. As explained by the Board, “[i]nside the
[horizontal] legs [of each letter R] appear the rest of the letters (i.e., the letter strings
‘edneck’ and ‘acegirl’), in a form in which the initial letters of each string are displayed
in relatively tiny typeface and subsequent letters are displayed in increasing
thickness. Together, these graphic devices serve not only to draw attention to the RR
letters apart from the wording, but also make the letters that form the ‘a-c-e’ of the
word ‘RACEGIRL’ difficult to notice.” Id. In contrast, the wording in Applicant’s mark
is not illegible, obscured by the design portion of the mark, or integrated into the
design. Stylization of the letter “d” in the mark into a small leaf design does not
detract from overall dominance of the word SEEDS in Applicant’s mark.
And in White Rock Distilleries, the Board found that together, “the
prominent design feature and the term TERZA in the registered
mark serve[d] to distinguish the registered mark visually from
applicant’s [VOLTA] mark. The term TERZA clearly dominates
over the term VOLTA in the registered mark as TERZA appears in
large bold letters above VOLTA.” 92 USPQ2d 1282. Unlike the situation in White
Rock Distilleries, Applicant’s design is not shown in tiny font below larger, more
dominant wording with a separate and unique design that could detract from any
wording.
The general principle set forth in Viterra that “the verbal portion of a word and
design mark likely will be the dominant portion,” 101 USPQ2d at 1908, applies to
Applicant’s mark, rather than the exceptions to that principle discussed in the cases
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cited by Applicant. The rationale for that general principle is that “[t]he verbal
portion of the mark is the one most likely to indicate the origin of the goods to which
it is affixed.” Id. (quoting CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200
(Fed. Cir. 1983)). The Viterra court explained that “the literal component of brand
names likely will appear alone when used in text and will be spoken when requested
by consumers.” Id.
Applicant asserts that its mark should not be dissected; we agree that we must
consider the marks in their entireties, but as it has been frequently noted, “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.” In re Detroit Athletic Co., 128 USPQ2d
at 1051 (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985)); see also Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014).
Applicant’s argument that pluralization of the word SEED in its mark makes a
difference in our analysis is also unpersuasive. That difference is not sufficient to
prevent likely confusion. Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011
n.17 (TTAB 2015) (“it is obvious that the virtually identical marks [the singular and
plural of SWISS GRILL] are confusingly similar.”); Weider Publ’ns, LLC v. D & D
Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (the singular and plural forms
of SHAPE are essentially the same mark) (citing Wilson v. Delaunay, 245 F.2d 877,
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878, 44 C.C.P.A. 1019, 1957 Dec. Comm’r Pat. 399, 114 USPQ 339, 341 (CCPA 1957)
(no material difference between the singular and plural forms of ZOMBIE such that
the marks were considered the same mark).
Applicant’s contention that Registrant’s mark is “really a phrase that looks more
like a corporate name as it has the ‘Inc.’ on the end of the name” is also unavailing.
It has long been recognized that business entity indicators are generic and are
without trademark significance. See In re Patent & Trademark Services Inc., 49
USPQ2d 1537, 1539 (TTAB 1998) (“Inc.” merely indicates the type of entity which
performs the services, and thus has no service mark significance); In re E.I. Kane,
Inc., 221 USPQ 1203, 1205 (TTAB 1984) (term “Inc.” has no service mark
significance). The presence of commonly used generic business indicators in
conflicting marks does not add to or lessen any likelihood of confusion that otherwise
exists. See 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 23:49 (5th ed.).
Finally, we note that the word SEED(S) is arbitrary with respect to the services
identified in the application and cited registration. Thus, any meaning or connotation
that consumers may attribute to that term would likely be the same in either mark.
Since Applicant has not presented any evidence showing that the word SEED in
Registrant’s mark is weak in connection with the provision of financial advice,
financial consultancy or wealth management services, we find that Registrant’s mark
is a mark of ordinary strength entitled to all protections accorded to marks registered
on the Principal Register consistent with Trademark Act Section 7(b), 15 U.S.C. §
Serial No. 88309008
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1051(b).
When considered in their entireties, we find Applicant’s mark and Registrant’s
mark similar in appearance, sound, connotation, and commercial impression. The
first DuPont factor therefore weighs strongly in favor of likely confusion.
C. Purchasing Conditions
The fourth DuPont factor considers “[t]he conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. On the one hand, circumstances suggesting care in purchasing may
tend to minimize the likelihood of confusion between similar marks. See, e.g., In re
N.A.D., Inc., 754 F.2d 996, 999-1000, 224 USPQ 969, 971 (Fed. Cir. 1985) (concluding
that, because only sophisticated purchasers exercising great care would purchase the
relevant goods, there would be no likelihood of confusion merely because of the
similarity between the marks NARCO and NARKOMED).
On the other hand, the fact that purchasers are sophisticated or knowledgeable in
a particular field does not mean they are immune to source confusion. See In re Shell
Oil Co., 26 USPQ2d at 1690 (“even sophisticated purchasers can be confused by very
similar marks”); Top Tobacco, LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170
(TTAB 2011). Board precedent requires our decision to be based “on the least
sophisticated potential purchasers.” Stone Lion Capital Partners, L.P. v. Lion Capital
LLP, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A.,
100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 110
USPQ2d 1679 (TTAB 2014).
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Applicant argues that in “the wealth management industry, there are
sophisticated consumers. They certainly know how to distinguish between
investment companies. They would immediately know that the Applicant’s mark
which has color, is stylized and in the plural [sic] cannot possibly come from the same
source as the Registered Mark.”13
While consumers of financial services such as wealth or management services may
be concerned with their investments, there is no evidence showing that such
consumers exercise significantly more care in choosing financial advisors than other
types of consumers. As mentioned above, even sophisticated purchasers are not
immune from source confusion.
The fourth DuPont factor is neutral in our analysis.
D. Actual Confusion
Applicant points to the absence of evidence of actual confusion, the seventh
DuPont factor, as weighing in its favor, DuPont, 177 USPQ at 567, but we accord no
probative value to that contention. As the Examining Attorney notes, “applicant has
not provided any evidence to support its assertion.” Even if it had, an applicant’s
“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value.” In re Majestic Distilling Co., 3154 F.3d 1311, 65 USPQ2d 1201,
1205 (Fed. Cir. 2011) (citing In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ
528, 529 (CCPA 1973)). “[W]hile examples of actual confusion may point toward a
finding of a likelihood of confusion, an absence of such evidence is not compelling in

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support of a finding of no likelihood of confusion.” In re Integrated Embedded, 120
USPQ2d 1504, 1515 (TTAB 2016).14
The seventh DuPont factor is neutral in our analysis.
II. Conclusion

In sum, we find that the marks are similar in overall appearance, sound,
connotation, and commercial impression, and the services are legally identical and
travel in the same trade channels to the same classes of purchasers. Accordingly,
Applicant’s mark is likely to cause confusion with Registrant’s mark
SEED WEALTH MANAGEMENT, INC. for the services recited in the application
and cited registration.
Decision: The refusal to register is affirmed.

14 Applicant’s mark is based on an intent to use under Trademark Act § 1(b) and there is no
evidence that would suggest Applicant’s mark is in use. The eight DuPont factor, which
considers the length of time respective marks are in use without any actual confusion,
Dupont, 177 USPQ at 567, therefore does not come into play.