Hyperloop Transportation Technologies, Inc.

Trademark Trial and Appeal Board

Mar 25, 2021

86589154 (T.T.A.B. Mar. 25, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: March 25, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Hyperloop Transportation Technologies, Inc.
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Serial No. 86589154
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Elizabeth Lee D’Amore of Lucas & Mercanti LLP,
for Hyperloop Transportation Technologies, Inc.
Sarah Kunkleman, Trademark Examining Attorney, Law Office 105,
Jennifer L. Williston, Managing Attorney.
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Before Zervas, Kuhlke and Goodman,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Hyperloop Transportation Technologies, Inc. (“Applicant”) seeks registration on
the Principal Register for the mark HYPERLOOP, in standard characters, for
services ultimately identified as “Research and development of transportation system
for moving passengers in low friction tubes” in International Class 42.1

1 Application Serial No. 86589154 was filed on April 7, 2015, initially based on use in
commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), but later amended
to seek registration based on an allegation of a bona fide intention to use the mark in
commerce under Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b).

Serial No. 86589154
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used in connection with the identified services, so resembles
the registered standard character mark HYPERLOOP for “transportation services,
namely, high-speed transportation of goods in tubes,”2 in International Class 39, as
to be likely to cause confusion, mistake or deception.3
When the Section 2(d) refusal was made final, Applicant appealed and requested
reconsideration. On May 6, 2020, the Examining Attorney suspended further action
on the application until a co-pending appeal proceeding for Application Serial No.
86556581 was resolved. That proceeding involved Applicant’s application for the
identical mark for “Providing transportation services and a transportation system,
namely, transport of passengers in low friction tubes,” in International Class 39 and
the same registration as involved here was cited as a bar to registration under Section
2(d). On May 14, 2020, the Board issued its decision in that appeal affirming the
refusal. On September 26, 2020, the Examining Attorney removed the suspension
and denied the request for reconsideration. The appeal resumed and briefs have been
filed. We affirm the refusal to register.

2 We note that the broad word “tubes” in Registrant’s identification encompasses Applicant’s
“low friction tubes.”
3 Registration No. 5176643, issued on April 4, 2017. The cited registration is based on an
underlying application, filed prior to the subject application on August 2, 2013, under Section
1(b), based on an allegation of a bona fide intention to use the mark in commerce. It is owned
by Space Exploration Technologies Corp. (“SpaceX”). SpaceX was founded by Elon Musk.
September 26, 2019 Reconsideration Letter, TSDR pp. 4, 34; March 15, 2019 Response, TSDR
p. 2. All references to the application record are to the USPTO’s Trademark Status and
Document Retrieval (TSDR) system.
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I. Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (DuPont). See also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We consider each DuPont factor for
which there is evidence and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019); see also M2 Software, Inc. v. M2 Commc’ns,
Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (even within the DuPont
list of factors, only factors that are “relevant and of record” need be considered). In
any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the services. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
A. Similarity/Dissimilarity of the Marks
Applicant’s mark is identical to the mark in the cited registration in “appearance,
sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). Applicant does not dispute this.
In view thereof, the DuPont factor of the similarity of the marks weighs heavily
in favor of a finding of likelihood of confusion.
As discussed below Applicant asserts there is no likely confusion because the mark
HYPERLOOP is weak and the services are sufficiently dissimilar.
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B. Strength of the Mark
Applicant argues that the term “Hyperloop” is commonly used in connection with
high-speed tube transport and as such should be afforded weak protection. Applicant
provided a screenshot from a web page titled “Encyclopedia” with the definition of
Hyperloop as: “An ultra-high speed ground transportation system proposed in 2013
by Elon Musk, cofounder of PayPal, Tesla Motors and founder of space transport
company SpaceX.”4 Applicant is not challenging “the validity of the cited mark” but
simply asserting that it is sufficiently weak to be accorded a narrow scope of
protection where Applicant’s mark is distinguishable based on the difference between
their services. App. Brief, 11 TTABVUE 10.5 In support of its position, Applicant
states that:
The term “Hyperloop” is heavily associated as being “An
ultra-high-speed ground transportation system.” This term
was helped promulgated [sic] by companies such as
[Applicant] who in 2013, started a crowd[-]sourcing
platform to start the scientific research in developing the
new Hyperloop transportation system into reality, on
JumpStartFund, a crowdsourcing platform for the
development of new ideas. Since then, [Applicant’s]
establishment has grown into a team of “more than 800
engineers, creatives and technologists in 52
multidisciplinary teams with 40 corporate and university
partners.” Since 2013, [Applicant] has been using multiple
marks comprising of the term HYPERLOOP in connection
with various lines of scientific research and technological
development services involved in the development of a new
transportation system. [Applicant] has been using the

4 September 26, 2019 Response, TSDR 34. There is no date or URL on this screenshot;
however, the Examining Attorney did not object to it and relies on this document as well. In
re I-Coat Co., 126 USPQ2d 1730, 1733 (TTAB 2018); In re Mueller Sports Medicine, Inc., 126
USPQ2d 1584, 1586-87 (TTAB 2018). Therefore we too have considered the document.
5 Citations to the briefs are to TTABVUE, the Board’s online file record.
Serial No. 86589154
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marks HYPERLOOP TRANSPORTATION, HyperloopTT
(in which TT stands for “Transportation Technologies”),
HTT (which stands for “Hyperloop Transportation
Technologies”) and HYPERLOOP TRANSPORTATION
TECHNOLOGIES.
App. Brief, 11 TTABVUE 10.
The record includes one third-party website printout of a possible competitor
(Virgin Hyperloop One) and two third-party websites from research teams, using the
term “Hyperloop.” However, all of the examples reference Registrant.6 In addition,
the record includes twelve articles from online sources (e.g., CNBC, Digital Trends,
PBS NewsHour) that discuss the Hyperloop concept and, again, reference
Registrant.7 Between Applicant’s use as a mark and the third-party uses all
referencing Registrant, this record does not support limiting the scope of protection
for the cited mark. In re i.am.symbolic, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed.
Cir. 2017) (stating that evidence of third-party use for similar goods “falls short of the
‘ubiquitous’ or ‘considerable’ use of the mark components present in [applicant’s] cited
cases”). We further note that because Applicant’s mark is identical to the mark in the
cited registration, there are no other terms or elements that we could consider in

6 October 16, 2019 Office Action p. 32 (“Is Elon Musk an investor or affiliated with Virgin
Hyperloop One?”); pp. 36-7 (“Swissloop is a student-led initiative with the goal of contributing
to the research on and advancement of the Hyperloop technology and its application in the
real world.”…“Today, the Hyperloop concept usually refers to a well-known white paper
published in 2013 by Elon Musk in collaboration with a joint team from Tesla and SpaceX.”);
p. 41 (“Virginia Tech claims fourth place in SpaceX’s international Hyperloop competition.”)
As noted above, Elon Musk is the founder of Registrant, SpaceX.
7 March 15, 2019 Response, TSDR pp. 128-143; September 26, 2019 Response, TSDR pp. 5-6,
8-16; October 16, 2019 Office Action, TSDR pp. 20-30; April 16, 2020 Request for
Reconsideration, TSDR pp. 29-36; September 26, 2020 Reconsideration Letter, TSDR pp. 2-
25, 67-69.
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distinguishing between them. In any event, even weak marks are entitled to
protection and likely confusion may be found where the marks are identical and the
services closely related. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246
(TTAB 2010).
C. Similarity of the Services
With regard to the services, we must make our determinations under this factor
based on the services as they are identified in the application and cited registration.
See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See
also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston
Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Where
the marks of the respective parties are identical or virtually identical, the
relationship between the goods and/or services need not be as close to support a
finding of likelihood of confusion as would be required if there were differences
between the marks. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1993); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010).
The goods and/or services do not have to be identical or even competitive in order
to find that there is a likelihood of confusion. In re Iolo Techs., LLC, 95 USPQ2d 1498,
1499 (TTAB 2010); In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1368 (TTAB
2009). The issue is not whether the goods and/or services will be confused with each
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other, but rather whether the public will be confused as to their source. See Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) “[E]ven if the
goods in question are different from, and thus not related to, one another in kind, the
same goods can be related in the mind of the consuming public as to the origin of the
goods. It is this sense of relatedness that matters in the likelihood of confusion
analysis.”). It is sufficient that the goods and/or services of the applicant and the
registrant are related in some manner or that the conditions surrounding their
marketing are such that they are likely to be encountered by the same persons under
circumstances that, because of the marks used in connection therewith, would lead
to the mistaken belief that they originate from the same source. See, e.g., 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); On-line
Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000).
Applicant argues that “the defining distinction between both marks is that the
[Applicant] provides research and development for the transporting of
passengers, whereas, Registrant provides only transportation services for the
transporting of goods.” App. Brief, 11 TTABVUE 7 (emphasis in original). The
Examining Attorney submitted various third-party website printouts showing the
same entity under the same mark providing transportation services for both goods
and passengers, and transportation-related research and development.8 Applicant

8 March 27, 2019 Office Action, TSDR pp. 2-31; October 16, 2019 Office Action, TSDR pp. 2-
19; September 26, 2020 Reconsideration Letter, TSDR pp. 27-36; 39-43; 47; 49-54; 55-57; 58-
66.
Serial No. 86589154
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counters that “the comparison between Appellant’s mode of transportation and
common carriers that provide both the transportation of goods and passengers is an
unfair assessment” because the transportation of passengers through low friction
tubes is much more complicated than the transportation of goods due to safety
ramifications. 11 TTABVUE 8-9. Applicant’s point being while buses, trains and
airplanes commonly transport both passengers and goods, there is no real difference
in capability to transport both with those modes of transportation. By comparison,
transporting goods in low friction tubes does not face the “many technical challenges”
as are faced by trying to transport passengers through low friction tubes. In other
words, it is more difficult to hurl a human through a tube at 760 miles per hour than
a box of tools, assuming you want the human to be alive at the end of the ride.9
The Examining Attorney correctly summarized the issue as being “whether
someone would confuse the source of a cargo transportation service with the source
of a passenger transportation research and development service using the identical
mark.” Ex. Att. Brief, 13 TTABVUE 8. The record is quite clear that both Registrant’s
and Applicant’s services relate to transportation of both goods and passengers
through low friction tubes.10 For example, the following is found on Applicant’s
website:

9 September 26, 2019 Response, TSDR p. 2 (“This new mode of transportation travels at 760
mph.”).
10 Applicant is correct that we make our determination based on the goods or services as
identified; however, the evidence from the marketplace is relevant to understand what
consumers would expect or be accustomed to seeing. Here, potential consumers are exposed
to the same entity discussing the provision of both passenger and goods transport under the
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Hyperloop brings airplane speeds to ground level, safely.
Passengers and cargo capsules will hover through a
network of low-pressure tubes between cities and
transforming travel time from hours to minutes;11
The Hyperloop Transportation System is an entirely new
mode of transport that will revolutionize travel by
connecting people and goods safely and efficiently;12
This could revolutionize transport between global cities, for
people and goods;13and
[Applicant is] advancing towards the first commercial
route, with both passenger and freight systems under
development around the world.14
The record also includes an article on Registrant discussing possible future use of
HYPERLOOP transportation service for passengers as well:
It’s anyone’s guess how long it will take for Elon Musk’s
Hyperloop dream of an ultra high-speed transit system to
become reality. But with SpaceX’s annual Hyperloop Pod
Competition taking place on Sunday … at least one group
of designers is already offering a conceptual look at what
the high-speed system could eventually look like. …
SpaceX, Musk’s aerospace company, built a test track near
its Hawthorne, California headquarters. … SpaceX has
also looked for an open source solution to Musk’s Hyperloop
dream … ideas for prototypes of the high-speed
transportation pods that would one day make a Hyperloop
system possible.15

same mark. We note also that the underlying application of the cited registration included
passengers in the identification of services. See June 11, 2015 Office Action, TSDR p. 2.
11 March 15 2019 Response, TSDR p. 13 (https:/www.hyperloop.global).
12 Id. at 28 (https://www.jumpstartfund.com).
13 Id. at 37 (facebook page screenprint).
14 September 26, 2020 Reconsideration Letter, TSDR pp. 129-131.
15 October 16, 2019, Office Action, TSDR pp. 21, 24 (www.cnbc.com).
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This shows consumer exposure to the concept of low friction tubes for passenger
transportation as well as goods. The record also includes third-party website
printouts discussing the development of low friction tube transportation for both
passengers and goods.16
In addition, the record shows consumer exposure to Registrant also providing
research and development services which supports a finding that transportation
services in low friction tubes and transportation-related research and development
in low friction tubes may be provided by the same source under the same mark. See
e.g., September 26, 2020, TSDR p. 26 (www.spacex.com) (“Hyperloop Preliminary
Design Study Technical Section”).
We agree with the Examining Attorney that third-party evidence in the
transportation industry generally has some relevance in that these examples show
consumer exposure to transportation services for both goods and passengers, and
transportation-related research and development services offered under one mark.
Applicant’s and Registrant’s services are transportation-related services. The
Examining Attorney submitted several website printouts showing third-party use of
a single mark in connection with transportation of both passengers and goods. For
example:

16 Id., TSDR pp. 31-45.
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Examples of transportation-related research and development, and
transportation services for both passengers and goods include Lufthansa, Air France,
Korean Air and ANA.17
The Examining Attorney also submitted several third-party registrations for
transportation services for both passengers and goods, and a few that include
transportation-related research and development. See, e.g., Registration No. 5218396
for the mark BLUE HAWAIIAN for transportation of passengers and/or goods by air,
namely, aircraft charter services; Registration No. 5559493 for the mark
LIMOLINER for, inter alia, transportation of passengers and/or goods by bus;
Registration No. 5709072 for the mark HALLCON for, inter alia, transport of goods,
transport of persons, transport of persons and goods; Registration No. 4971455 for

17 September 26, 2020 Reconsideration Letter, TSDR pp. 39-48, 49-54, 58-66.
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the mark HOLLAND for, inter alia, transporting by truck and rail a variety of bulk
cargo, and product development services.18 In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988).
In summary, the record includes examples of consumer exposure to [and
registration of] transportation services for both passengers and goods, and
transportation-related research and development services offered under the same
mark. More specifically, the record shows consumers exposed to the concept of low
friction tube transportation for both goods and passengers and research and
development in that field under a single mark. Based on the totality of the record, we
find Applicant’s and Registrant’s services to be closely related.19
In view thereof, this DuPont factor strongly favors a finding of likelihood of
confusion.
II. Conclusion
In view of the identical marks and related services, confusion is likely between
Applicant’s mark HYPERLOOP and Registrant’s mark HYPERLOOP.
Decision: The refusal to register Applicant’s mark is affirmed.

18 March 27, 2019 Office Action, TSDR pp. 32-57; September 26, 2020 Reconsideration Letter,
TSDR 86-89.
19 We make no specific findings as to channels of trade inasmuch as the passenger service is
not yet offered anywhere.