James Kelleher

Trademark Trial and Appeal Board

Nov 17, 2020

87882281 (T.T.A.B. Nov. 17, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 17, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re James Kelleher
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Serial No. 87882281
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Christopher P. Bussert of Kilpatrick Townsend & Stockton LLP,
for James Kelleher.
Pauline Ha,1 Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
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Before Lykos, Shaw and English,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:

James Kelleher (“Applicant”) seeks to register on the Principal Register the
standard character mark ASK JIM FIRST for, as amended, “Lawyer referral services
provided to consumers who seek to retain an attorney to represent them in personal

1 The application was originally assigned to Trademark Examining Attorney Sahar
Nasserghodsi.
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injury matters, excluding business advice, inquiries and information services” in
International Class 35.2
Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s applied-for mark so resembles the
registered standard character mark ASK JIM on the Principal Register for “Business
advice, inquiries or information” in International Class 35,3 that it is likely to cause
confusion or mistake or to deceive.4
Briefing of the appeal is now complete. For the reasons set forth below, we affirm.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
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, 1203 (Fed. Cir.
2003). We must consider each DuPont factor for which there is evidence and

2 Application Serial No. 87882281, filed April 18, 2018, under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify documents by title and date. References to the briefs
and other materials in the appeal record refer to the Board’s TTABVUE docket system.
3 Registration No. 3289118, registered September 4, 2007; renewed. Registrant’s mark
appears on the drawing page as “Ask Jim” but retains a claim as to standard characters and
not special form. See Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a); see also In re Calphalon
Corp., 122 USPQ2d 1153, 1158-61 (TTAB 2017) (applicant’s amendment of mark from
SHARPIN to SharpIn did not transform mark from standard character to special form). Our
references to Applicant’s mark in this opinion in all uppercase letters reflects the fact that a
term registered as a mark in standard character format is not limited to any particular type
case, font style, size, or color.
4 A Section 2(d) refusal based on cited Registration No. 2151373 became moot following the
cancellation of that registration.
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argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the services, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
1993).
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); Shell Oil Co., 26 USPQ2d at 1688 (“[T]he
various evidentiary factors may play more or less weighty roles in any particular
determination.”). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the 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 [services] and
differences in the marks.”). We discuss these factors and others below.
A. The Marks

This first DuPont likelihood of confusion factor involves an analysis of the
similarity or dissimilarity of the marks in their entireties as to 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, 1692 (Fed. Cir.
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2005) (citing 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, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 F. App’x (Fed. Cir. 2019). Accord
Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA
1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
to cause confusion.”) (citation omitted). “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
As noted above, the applied-for mark is ASK JIM FIRST, and the cited mark is
ASK JIM. To state the obvious, both marks are slogans and are highly similar in
sound and appearance, with an almost identical meaning and commercial impression.
In addition, Applicant’s mark incorporates the entirety of the cited mark. While there
is no per se rule that likelihood of confusion automatically applies where one mark
encompasses another, likelihood of confusion has often been found where the entirety
of one mark is incorporated within another. See In re Denisi, 225 USPQ 624, 626
(TTAB 1985) (PERRY’S PIZZA for restaurant services specializing in pizza and
PERRY’S for restaurant and bar services); see also Coca-Cola Bottling Co. of
Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine
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water and ginger ale likely to cause confusion with BENGAL for gin); In re Integrated
Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016) (applicant’s mark BARR GROUP
wholly encompasses the registered mark BARR); Johnson Publ’g Co. v. Int’l Dev. Ltd.,
221 USPQ 155, 156 (TTAB 1982) (applicant’s mark EBONY DRUM for hairdressing
and conditioner is likely to cause confusion with EBONY for cosmetics); In re U.S.
Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (finding applicant’s CAREER IMAGE
marks similar to registered mark CREST CAREER IMAGES). This principle holds
true here especially given that the sole distinguishing word, FIRST, appears at the
end of the phrase ASK JIM in Applicant’s mark. For this reason, consumers are likely
to perceive the applied-for mark ASK JIM FIRST as a variation of the cited mark
ASK JIM.
Overall the marks are similar in sound, sight, connotation and commercial
impression. In making this finding, we note the differences in sight and sound.
Consumers, however, do not focus on minutia but rather overall impressions. The sole
distinguishing feature is likely to be overlooked when consumers consider the marks
in their entireties. This DuPont factor weighs in favor of finding a likelihood of
confusion.
B. Strength of the Cited Mark
Applicant postulates that the cited registration ASK JIM is entitled to only a
narrow scope of protection. In support thereof, Applicant points to third-party
registered marks incorporating the word ASK for both related and unrelated services
(ASK LEGAL, ASK LEGAL BRAINS, ASK LESLIE THE LAWYER, ASK A
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LAWYER, ASKDOCTORLAW, 1-800-ASK DAVE, ASK RITA K, ASK THE DOM,
ASK THE GENIUS, ASK SOMEONE YOU TRUST ABOUT US, ASK STEVE FOR
FREE, ASK GARY, ASKLAW, ASK LAW OFFICES, ASK DAVE, JUST ASK, and 1-
800-ASK-GARY); third-party registered marks incorporating the word FIRST for
related and unrelated services (CALL BART FIRST, CLICK ME FIRST, CALL ME
FIRST, CLICK BART FIRST, BUSINESS LAWYERS FIRST, and RESULTS FIRST);
and third-party registered marks incorporating both ASK and FIRST (ASK US
FIRST, ASK ME FIRST, ASK COLIN FIRST and ASK FIRST).5
Third-party registrations alone may be relevant, in the manner of dictionary
definitions, “to prove that some segment of the [marks] has a normally understood
and well recognized descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (internal quotation marks omitted).
See also Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir.
2015). In addition, “in determining the degree of weakness, if any, in the shared
terms, we must ‘adequately account for the apparent force of [third-party use and
registration] evidence,’ regardless of whether ‘specifics’ pertaining to the extent and
impact of such use have been proven.” Inn at St. John’s, 126 USPQ2d at 1746.
Some of the third-party registrations have been cancelled. For example,
Registration No. 2151373 for the mark ASK FIRST for “physician referral services”

5 See May 1, 2019 Request for Reconsideration, pp. 66-94.
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was cancelled for failure to file a Section 8 affidavit or declaration showing use of the
mark in commerce in the United States. “The existence of a cancelled registration—
particularly one cancelled for failure to provide a declaration of continued use—does
not tend to show that the cited mark is weak due to third-party use.” Inn at St. John’s,
126 USPQ2d at 1745. See also New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d
10596, *12-13 (TTAB 2020). Of the remaining third-party registrations, none
incorporate the given name JIM, an integral feature of the cited mark, or for that
matter both ASK and JIM for the same or related services. Applicant has not shown
that the cited mark ASK JIM is conceptually weak in connection with the identified
services or services related thereto, making the cited mark deserving a lesser scope
of protection.
C. The Services
Next we compare the services as they are identified in the involved application
and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
1047, 1052 (Fed. Cir. 2018); Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous.
Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); and
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002). The services need not be identical or even competitive to find a
likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56
USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
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circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that the [services] emanate from the same source.” Coach Servs., Inc.
v. Triumph Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler,
83 USPQ2d 1715, 1724 (TTAB 2007)). Evidence of relatedness may include news
articles and/or evidence from computer databases showing that the relevant services
are used together or used by the same purchasers; advertisements showing that the
relevant services are advertised together or sold by the same manufacturer or dealer;
and/or copies of prior use-based registrations for both applicant’s services listed in
the cited registration. See In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014).
Applicant amended his identification of services to exclude Registrant’s services.6
The Examining Attorney’s position is that notwithstanding the amendment, the
services are in-part legally identical, or alternatively, that they are related.
Turning first to the question of whether the services are in-part legally identical,
the Examining Attorney contends that Registrant’s business information services are
sufficiently broad to encompass Applicant’s “Lawyer referral services provided to
consumers who seek to retain an attorney to represent them in personal injury
matters.” As evidentiary support, the Examining Attorney points to the following
dictionary definitions and WIKIPEDIA entries:
The definition of “business” from COLLINS DICTIONARY as
used as “work relating to the production, buying, and

6 The original identification of services was “Legal referral services.” On May 3, 2019,
Applicant’s first amendment to “Legal referral services provided to consumers primarily on
personal injury matters” was approved. The second and final amendment to the identification
was approved on January 29, 2020 following Applicant’s January 27, 2020 Request for
Remand.
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selling of goods or services” or an “organization which
produces and sells goods or which provides a service.”7
The definition of “information” from COLLINS DICTIONARY
as “about someone or something consists of facts about
them.”8
The entry for “business information” from WIKIPEDIA as
“one of the three main segments of the information
industry,” and describing “primary business information
formats” as including “basic reference sources such
as…internet resources,” “[d]irectories,” and “[e]lectronic
business information.”9
Based on these definitions, the Examining Attorney takes a broad view of
Registrant’s business information services as encompassing “directory listings and
business contact information for businesses providing legal services, including law
firms and solo and associated attorneys,” which would presumably include
Applicant’s “Lawyer referral services provided to consumers who seek to retain an
attorney to represent them in personal injury matters.” The Examining Attorney
attempts to make this connection by pointing to the following evidence describing the
nature of online directories:
ApricotLaw Blog stating “Online directory listings are
websites that collect business information to make it easier
for someone to find a business they’re looking for, and to
compare businesses’ basic information to see which one will
meet the potential client’s needs….For example, legal
directories are going to be the most helpful for law firms.
There are even directories that further break down the
listings into practice areas….”10

7 See November 27, 2019 Office Action, pp. 2-3.
8 Id. at 3.
9 Id. at 4.
10 Id. at 5.
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AttorneyatWork highlighting the importance of having
“Correct Business Information” in the nature of “business
address and contact information” and “business category”
on business listing sites.11
PaperStreet stating that business information for use on
various online directories includes “business name,
address, and phone,” as well as “a backlink to their
website.”12
The dictionary definitions of “business,” “information,” and “business information”
proffered by the Examining Attorney are too imprecise for us to find that they
subsume the legal referral services of the type identified in the application. We also
reach the same conclusion as to the excerpts from AttorneyatWork and
PaperStreet describing online directory services. While more on point, the excerpt
from ApricotLaw consists of a blog, which while relevant, is of less probative weight
since we cannot ascertain the degree of exposure.13 See In re Morrison & Foerster
LLP, 110 USPQ2d 1423, 1424 n.2 (TTAB 2014) (“These blog postings are from what
appear to be well-established media sources with national circulation and public
exposure as well as more obscure blogs for which we cannot ascertain the degree of

11 Id. at 6-8.
12 Id. at 9-11.
13 The Board does consider blog postings, taking into account their origin. See TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1208.03 (2020). Blogs hosted by
nationally known enterprises or media outlets will have greater probative value than blogs
hosted by individuals insofar as we do not know the extent of the reach to the public for
individual postings. See, e.g., In re Geller, 751 F.3d 1355, 110 USPQ2d 1867, 1870 (Fed. Cir.
2014) (the Board, in noting that “the probative value of the blog comments … is less than
that of the articles themselves due to the anonymity of the authors,” did not err in concluding
that such comments shed light on the meaning of words in the mark.

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exposure. As such, we are aware that many of the blogs may simply reflect the
perception of a single author and not that of the general public.”).
Having determined that the evidence does not establish that the services are
legally identical, we now turn to the question of whether substantial evidence exists
to show that the services are related. To support the assertion that the services are
related because some entities provide both Applicant’s and Registrant’s services, the
Examining Attorney made of record with the initial Office Action refusing
registration excerpts from the LegalZoom, LegalShield and Rocket Lawyer
websites:14

14 See August 14, 2018 Office Action, pp. 12-38.
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With the May 21, 2019 Office Action, the Examining Attorney supplemented the
record with excerpts from the NOLO website:15

15 May 21, 2019 Office Action, pp. 9-18.
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On November 7, 2019, the Examining Attorney supplemented the record by providing
additional excerpts from the LegalShield and LegalZoom websites:

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These third-party websites constitute substantial evidence that it is not
uncommon for the same entities to provide under the same brand name both
Applicant’s “Lawyer referral services provided to consumers who seek to retain an
attorney to represent them in personal injury matters” as well as Registrant’s
“business advice, inquiries and information services.” According to the excerpts from
LegalZoom and NOLO, both entities offer legal referral services in the precise field
specified by Applicant, personal injury matters. RocketLawyer and LegalShield show
the provision of legal referral services in all practice areas, which we can presume
would include personal injury matters. Cf. In re Country Oven, Inc., 2019 USPQ2d
443903, *5-6 (TTAB 2019) (the terms “bakery goods” and “bakery products” in third-
party registrations were sufficiently broad to encompass “bread buns.”). Each website
also shows the provision of business advice or information. For example, LegalZoom
advises clients on how to select a name for a business and obtaining Employer
Identification Numbers for tax purposes; RocketLawyer provides advice and
information on raising capital for small businesses; LegalShield advises businesses
on debt collection; and NOLO provides advice on how to select a business location, set
up accounting books and maintain tax records. Such services fall within the realm of
non-legal business information or advice. For this reason, Applicant’s restriction to
its identification of services to expressly exclude Registrant’s services is of no matter
because the services are nevertheless related. And contrary to Applicant’s assertions,
the fact that Applicant’s underlying legal services and Registrant’s business
information services fall in two different classes or does not render them per se
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unrelated. “Classification is solely for the ‘convenience of Patent and Trademark
Office administration,’ 15 U.S.C. § 1112, and ‘is wholly irrelevant to the issue of
registrability under section 1052(d), which makes no reference to
classification[.]’” Detroit Athletic Co., 128 USPQ2d at 1051 (quoting Jean Patou Inc.
v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993)). In any event,
Applicant is seeking to register “lawyer referral services” not legal services.
Applicant points to the lack of third-party registration evidence. However, as
noted above, the Examining Attorney is not limited to this particular type of evidence
and may rely on evidence from third-party websites to demonstrate that services are
related. See, e.g., Country Oven, Inc., 2019 USPQ2d 443903 at *5-6 (evidence of
relatedness included third-party websites showing bakeries offering under the same
mark retail bakery shop services and bakery products in their retail bakery shops).
The aforementioned evidence is from companies specializing in legal referrals and
the provision of business information and advice marketed via their own direct-to-
consumer sales websites. This targeted type of marketing involves a niche industry
making it narrower in scope, and as such is entitled to a relatively high degree of
probative weight. In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *6(TTAB 2020).
The question is not whether the services will be confused with each other; rather,
the question is whether there is likely confusion as to source. Accordingly, the second
DuPont factor also weighs in favor of finding a likelihood of confusion.16

16 Much of the other evidence the Examining Attorney relies upon to show that the services
are related consists of excerpts from the websites of various state and county bar associations
throughout the country. See, e.g., website excerpts from the Alameda County Bar Association,
Alaska Bar Association and Allegheny County Bar Association submitted with November 29,
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D. The Channels of Trade and Classes of Purchasers
We now consider the established, likely-to-continue channels of trade. Because
the identifications in the application and cited registration have no restrictions on
channels of trade, we must presume that the services travel in all channels of trade
appropriate for such services, which as the record summarized above shows consists
of entities specializing in legal referrals and business information and advice offered
via their own direct-to-consumer websites. See, e.g., Detroit Athletic Co., 128 USPQ2d
at 1052 (“[T]he registration does not set forth any restrictions on use and therefore
cannot be narrowed by testimony that the applicant’s use is, in fact, restricted to a
particular class of purchasers”) (citation omitted); Citigroup v. Capital City Bank
Grp., 98 USPQ2d at 1261 (“Because the parties’ trade channels and classes of
consumers are unrestricted, the third and fourth DuPont factors also favor
Citigroup.”). We can also glean from the evidence summarized above that the class of
consumers includes businesses seeking business information as well as legal referrals
regarding personal injury matters because businesses may be sued by customers or
employees for personal injuries. This DuPont factor also favors a finding of likelihood
of confusion.
E. Applicant’s Intent
The thirteenth and final DuPont factor pertains to “any other established fact

2019 Office Action, pp. 6-15. We agree with Applicant’s criticism that the evidence fails to
show a relationship between the identified services since the services pertaining to
businesses are strictly legal in nature. In other words, we think that there is a distinction
between business legal advice and the International Class 35 services of “business advice,
inquiries or information.” For this reason, the Board has not relied on any of this evidence to
find that Applicant’s and Registrant’s services are related.
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probative of the effect of use.” DuPont, 177 USPQ at 567, such as an applicant’s
intent. Applicant, without pointing to any evidence, argues that he adopted the ASK
JIM FIRST mark without any predatory intent, and did not adopt it to trade on
anyone’s reputation, including that of the owner of the cited registration.
Issues regarding an applicant’s intent generally are not suited to disposition in
an ex parte appeal. That being said, even if we were to consider Applicant’s
assertions, good faith adoption of a mark that is similar to a prior registered mark,
for use on the same or similar services, cannot overcome the presumption of validity
that inheres in the prior registered mark. 15 U.S.C. § 1057(b). See Miles Labs. Inc. v.
Naturally Vitamin Supplements Inc., 1 USPQ2d 1445, 1455 (TTAB 1986)
(“[A]pplicant is not in any case absolved from the duty imposed by our trademark law
on all late-comers to select marks for their new products that are sufficiently
distinguishable from marks in respect of which others have federally recorded
superior rights to prevent confusion.”). Thus, “[w]hile evidence of bad faith adoption
typically will weigh against an applicant, good faith adoption typically does not aid
an applicant attempting to establish no likelihood of confusion.” Apple Comput. v.
TVNET.net Inc., 90 USPQ2d 1393, 1398 n.7 (TTAB 2007) (citing J & J Snack Foods
Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991)).
We therefore deem this factor neutral.
F. Balancing the Factors
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. With highly similar marks and related services
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marketed in the same trade channels to the same category of consumers, this lead us
to the conclusion that prospective consumers are likely to confuse the source of the
involved services. This is not a situation, as Applicant urges, where the services are
so different as to obviate a likelihood of confusion.
Decision: The Section 2(d) refusal is affirmed.