88204175 (T.T.A.B. Sep. 25, 2020)

Jonathan T. Davis

Trademark Trial and Appeal BoardSep 25, 2020

88204175 (T.T.A.B. Sep. 25, 2020)

Mailed: September 25, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ——— In re Jonathan T. Davis ——— Serial No. 88204175 ——— Francis John Ciaramella, Francis John Ciaramella PLLC, for Jonathan T. Davis. Rachel E. Desjardins, Trademark Examining Attorney, Law Office 123, Susan Hayash, Managing Attorney. ——— Before Mermelstein, Larkin, and Hudis, Administrative Trademark Judges. Opinion by Mermelstein, Administrative Trademark Judge: Applicant seeks to register1 the mark SUNFUN in a stylized format as follows: for “Hats; T-shirts; Tank-tops; Baseball caps and hats; Short-sleeved or long-sleeved 1 Application Serial No. 88204175 was filed on November 23, 2018, under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), alleging Applicant’s first use of the mark at least as early as December 29, 2016, and first use of the mark in commerce at least as early as August 13, 2017. The application includes the following description of the mark: The mark consists of a backwards stylized silhouette design of the State of Florida located to the right of the stylized letters “SUN” and to the left of the stylized letters “UN.” The interpre- tation of the design is the word “SUNFUN” with the backwards silhouette of the State of Florida being the letter “F.” The application also includes goods in International Class 16, but the refusal to register was limited to Applicant’s Class 25 goods. This Opinion is not a Precedent of the TTAB Serial No. 88204175 - 2 - t-shirts; Sports caps and hats” in International Class 25. The Examining Attorney finally refused registration with respect to Applicant’s Class 25 goods under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to cause confusion or mistake or to deceive in view of the mark SUN FUN in a stylized format as follows: registered2 for “Handbags; shoulder bags; tote bags; beach bags” in International Class 18, and “Footwear, namely, sandals, slip-ons, and boots” in International Class 25.3 We affirm the refusal to register. I. Likelihood of Confusion Our determination under Trademark Act § 2(d) is based on an analysis of the pro- bative facts in evidence that are relevant to the factors bearing on the issue of likeli- hood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, 2 Reg. No. 5492773 was issued on June 12, 2018. The registration includes the following de- scription of the mark: The mark consists of the wording “SUN FUN” in stylized letters with the “U” in “SUN” and “FUN” below the “S” and “N”, and “F” and “N.” 3 The Examining Attorney focuses the refusal to register on the cited registrant’s Class 25 goods (footwear), and we will do the same. Serial No. 88204175 - 3 - Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). We must consider each du Pont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In this case, Applicant argues that the relevant factors are (1) the dissimilarity of the marks, App. Br. 7 TTABVUE 4; (2) the similarity of the goods or services, id. at 7; (3) the conditions under which and buyers to whom sales are made, id. at 8; (4) the fame of the prior mark, id. at 10; (5) the nature and extent of any actual confusion, id.; (6) that any confusion would be de minimis, id. at 11; and (7) that the USPTO has consistently allowed registration of similarly situated applications, id. A. Similarity or dissimilarity of the marks In a likelihood of confusion analysis, we compare the marks in their entireties for similarities and dissimilarities 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, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). “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, 1377, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation and internal quotation marks omitted). We agree with Applicant’s description of its own mark that the impression of its Serial No. 88204175 - 4 - mark is that of the stylized word SUNFUN, in which a backwards silhouette of the state of Florida represents the letter F. The verbal portion of Applicant’s mark (SUNFUN) dominates the design or stylization of the mark (the backwards silhou- ette of the state of Florida) because it “likely will appear alone when used in text and will be spoken when requested by consumers.” In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012); In re Solid State Design Inc., 125 USPQ2d 1409, 1411 (TTAB 2018). Indeed, in addition to use of the mark consistent with the drawing, we note Applicant’s use on its specimens of the term SunFun in plain sans serif type : Original specimen (Nov. 23, 2018) (e.g., “Men’s SunFun Tees & Tanks”); Substitute specimen (Jun. 14, 2019). Applicant argues there is no hard-and-fast rule that the literal elements of a mark always dominate the mark’s stylization or design elements. App. Br. 7 TTABVUE 5– Serial No. 88204175 - 5 - 7. Indeed, there is no per se rule, and there are cases in which a design element has been found to be the dominant part of a word-and-design mark. But for the reasons stated by the U.S. Court of Appeals for the Federal Circuit in Viterra, the literal ele- ments of a mark are often found to dominate the stylization or design elements, see In re Viterra Inc., 101 USPQ2d at 1911, and we find that to be the case here. We hasten to add, however, that our task is not simply to identify and compare the dom- inant elements of the marks at issue. Although it is appropriate to give additional weight to dominant elements of the marks, our ultimate analysis must be based on a comparison of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In accordance with this principle, we do not ignore Applicant’s use of the back- wards silhouette of the state of Florida to form the “F” in SUNFUN. While this ele- ment of Applicant’s mark provides a distinction from the registrant’s mark, the de- gree of distinction is lessened in this case because the silhouette reinforces the literal elements. As Applicant itself stated, the design element “takes on an additional meaning in the case of the Applicant, as Applicant is located in the State of Florida, otherwise known as the Sunshine State.” App. Br. 7 TTABVUE 7, n.2. In other words, the design feature “emphasize[s], in a pictorial way, the main word portion of [Appli- cant’s] mark.” In re Wine Soc’y of Am., 12 USPQ2d 1139, 1142 (TTAB 1989). But whatever else it might connote, in this case, the primary function of the silhouette of the state of Florida is to form the letter “F” in SUNFUN. Likewise, we recognize that the mark in the cited registration is also registered in stylized format. Nonetheless, we observe that the words forming the registered mark are easily recognizable, and Serial No. 88204175 - 6 - the stylization does not form a separate impression from the mark as a whole. While we do not ignore the stylization of either mark, the dominant impression of Appli- cant’s mark and that of the cited registrant are clearly the words SUNFUN and SUN FUN, respectively. To state the obvious, the literal portions of the marks — SUNFUN and SUN FUN — are virtually identical, the only difference being Applicant’s omission of the space between the words SUN and FUN to form the compound SUNFUN. The removal of a space between words typically does not create a significant difference in a mark, and we find that to be the case here. See Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (marks STOCKPOT and STOCK POT are phonetically identical and visually al- most identical); Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1025 (TTAB 2009) (“the spaces that respondent places between the words do not create a distinct commercial impression from petitioner’s presentation of his mark as one word” (com- paring DESIGNED TO SELL with DESIGNED2SELL)). The removal of the space in Applicant’s mark does not form a different, recognizable word, and both Applicant’s mark and that of the cited registrant would be pronounced identically. The connotation and commercial impression of the marks are also identical. As Applicant recognizes, both marks suggest that the goods “are used for outdoor day- time leisure,” App. Br. 7 TTABVUE 7, a connotation which is consistent with both Applicant’s goods and those of the cited registrant. Thus, while the marks differ somewhat in appearance due to their different styli- Serial No. 88204175 - 7 - zation, they are readily recognizable as comprising the nearly identical literal ele- ments SUN FUN and SUNFUN. The marks would be pronounced identically and share the same connotation and commercial impression. Compared in their entire- ties, the marks are substantially similar. This factor favors a finding of likely confu- sion. B. The similarity or dissimilarity and nature of the goods or services In comparing the goods, “[t]he issue to be determined . . . is not whether the goods . . . are likely to be confused but rather whether there is a likelihood that purchasers will be misled into the belief that they emanate from a common source.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989). It is not neces- sary that the parties’ goods be similar or even competitive to support a finding of likelihood of confusion. It is sufficient if the goods are related in some manner or that the conditions surrounding their marketing are such that they would be encountered by the same persons under circumstances that could, in light of the similarity of the marks, give rise to the mistaken belief that they come from or are associated with the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993). We base our determination on the goods as identified in the application and cited registration. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Applicant’s identified goods are “Hats; T-shirts; Tank-tops; Baseball caps and hats; Short-sleeved or long-sleeved t-shirts; Sports caps and hats,” while the relevant goods identified in the cited registration are “Footwear, namely, sandals, slip-ons, and boots.” In support of her argument that the goods are related, the Examining Serial No. 88204175 - 8 - Attorney submitted evidence from the websites of six retailers showing the concur- rent sale of goods of the type identified by both Applicant and the registrant under the same mark.4 Ofc. Action (Feb. 26, 2019), TSDR 11 – 31; Ofc. Action (June 27, 2019), TSDR 13–31. The Federal Circuit has said that “evidence, such as whether a single company sells the goods and services of both parties, if presented, is relevant to a relatedness analysis.” Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). This evidence clearly supports a finding that the goods are related. The Examining Attorney also adduced evidence of ten third-party marks regis- tered for use on both goods of the type identified by Applicant and those of the type identified by the cited registrant. Ofc. Action (Feb. 26, 2019), TSDR 32–45; Ofc. Action (June 27, 2019), TSDR 32–45. While such evidence is not proof that the registered marks are in use or that consumers are familiar with them, “[t]hird -party registra- tions that individually cover different items and that are based on use in commerce serve to suggest that the listed goods . . . are of a type that may emanate from a single source.” In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (citing In re Albert Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co., 4 Old Navy: T-shirts, tank tops, baseball caps, sandals, boots; H&M: Tank tops, T-shirts, hats, sandals, boots; Abercrombie & Fitch: Tank tops, T-Shirts, baseball caps, hats; sandals, boots; LuluLemon: Baseball caps, tank tops, T-shirts, slip-on shoes; Banana Republic: Tank tops, T-shirts, baseball caps, sandals, boots, slip-on shoes; Hollister: Tank tops, T-shirts, baseball caps, sandals, slip-on shoes. Serial No. 88204175 - 9 - 6 USPQ2d 1467 (TTAB 1988), aff’d mem., 864 F.2d 149 (Fed. Cir. 1988)). The Exam- ining Attorney’s registration evidence bolsters our conclusion that these goods are related. For its part, Applicant cites several cases5 in which the Board has found clothing and footwear dissimilar. App. Br. 7 TTABVUE 7–8. Applicant misunderstands the relevance of the cases. Except for situations in which issue preclusion applies, a find- ing of fact in one case is not binding in a later case. Among other considerations, trademark cases must be decided based on the particular marks and goods or services at issue, as well as the evidence of record and the arguments of the parties. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). Even if language from a prior case indicates that, say, “clothing and footwear are dissimilar,” that conclusion was reached and must be understood in the context of the particular evidence of record and the marks at issue. As explained in one of Appli- cant’s cited cases, when prior decisions are used for the proposition that par- ticular comparisons of marks and goods have been found likely to cause or not to cause a likelihood of confusion, those cases are more valuable for their instruction on what kinds of evidence resulted in the tribunal’s conclusions than as the sole support for an argument that a particular result is mandated in the case at hand. 5 Of the six cases cited, four are non-precedential. While non-precedential cases may be cited for whatever persuasive weight they may be entitled, “[i]f a non-precedential decision does not appear in the United States Patents Quarterly or the USPTO’s public electronic data- bases [e.g., TTABVUE, TTAB Reading Room], the citing party should append a copy of the decision to the motion or brief in which the decision is cited.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03 (June 2020). With one exception (In re Zel- ikowics), Applicant’s non-precedential cases do not appear in the USPQ or the USPTO’s da- tabases nor were copies of them appended to Applicant’s brief. Accordingly, we do not con- sider these decisions. Serial No. 88204175 - 10 - Hyde Park Footwear Co. v. Hampshire-Designers, Inc., 197 USPQ 639, 643 (TTAB 1977). For example, as Applicant points out, the Board found clothing and footwear dis- similar more than 40 years ago in Hyde Park. But Hyde Park was nothing like this case. In that proceeding, the opposer “bottomed its entire case on its two registrations and prior decisions.” Id. Except for its registrations, Opposer failed to submit any evidence to support its case — including evidence that the goods were related. By contrast, the Examining Attorney in this case has introduced significant unrebutted evidence that Applicant’s type of goods and those types of goods of the cited registrant are related. Similarly, in In re Zelikowics, Ser. No. 74590765 (TTAB May 2, 1997),6 the Examining Attorney appears to have introduced no evidence that the involved goods were related, relying instead on a misguided theory that the registrant’s iden- tification of goods was ambiguous, and broad enough to include the applicant’s goods. Again, a decision based on different marks, different evidence, and different argu- ments is of little relevance to the case before us. Based on the evidence of record, we find that Applicant’s Class 25 goods are re- lated to the Class 25 goods in the cited registration. This du Pont factor supports a finding of likely confusion. C. Channels of trade; conditions under which and buyers to whom sales are made Applicant complains that the Examining Attorney “did not provide much weight” 6 This case can be found in the TTAB Reading Room at https://ttab-reading-room.uspto.gov/ efoia/efoia-ui/#/search/decisions. Serial No. 88204175 - 11 - to its “assertion that the goods are expensive,” and its customers are therefore sophis- ticated. App. Br. 7 TTABVUE 8–9. The Examining Attorney was correct to do so. Goods identified in an application or registration are presumed to include all goods of the type identified and such goods must be presumed to travel in all usual channels of trade and to all usual customers for goods of the type identified. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). There is no evidence that Applicant’s goods or those of the cited registrant are necessarily limited to expensive items, nor is there evidence that either set of goods is comprised of inherently expensive goods. Neither Applicant’s goods nor those of the cited registrant are limited to expensive items. Absent such a limitation, we must construe the identified goods to include all items of the type identified, at al l price points usual for such goods. Sock It to Me, Inc. v. Fan, 2020 USPQ2d 10611, *8 (TTAB 2020) (goods identified as “socks” include “all goods of the type identified, without limitation as to their nature or price.”). We find the conditions of sale to be neutral. As for the channels of trade, the Examining Attorney’s evidence of the concurrent retail sale of the relevant goods, Ofc. Action (Feb. 26, 2019), TSDR 11–31, favors a finding that such goods are sold in overlapping channels of trade, a factor which fa- vors a finding of likely confusion. D. The fame of the prior mark Applicant argues that “there is no evidence that the cited Prior Mark is famous or has acquired secondary meaning within the marketplace or that consumers associate the term SUN FUN with the Prior Owner.” App. Br. 7 TTABVUE 10. Evidence of the fame of the prior mark is rarely produced in an ex parte proceed- ing. As a result, “we would not expect the examining attorney to submit evidence of Serial No. 88204175 - 12 - fame of the cited mark.” In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006) . “[I]n an ex parte appeal the ‘fame of the mark’ factor is normally treated as neutral because the record generally includes no evidence as to fame.” In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1086 (TTAB 2016). Further, as the Federal Circuit noted in re- sponse to a similar argument, we find no evidence in the record to substantiate . . . coun- sel’s argument that [the prior registrant’s] marks are not famous. Even if such evidence were of record, though, it would have little probative value. Although we have previ- ously held that the fame of a registered mark is relevant to likelihood of confusion, we decline to establish the converse rule that likelihood of confusion is precluded by a regis- tered mark’s not being famous. In re Majestic Distilling, 65 USPQ2d at 1205 (citation omitted). Further, Applicant’s suggestion that the cited mark has not acquired secondary meaning or consumer association fails to take account of the statutory benefits of registration. The cited mark was registered on the Principal Register without a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), and, in any event, it is entitled to the presumptions set out in Trademark Act Section 7(b), 15 U.S.C. § 1057(b), which provides that “[a] certificate of registration of a mark upon the principal register . . . shall be prima facie evidence of the validity of the registered mark. . . .” Even if the prior registrant had been required to show second- ary meaning to establish that its mark was eligible for registration on the Principal Serial No. 88204175 - 13 - Register, the distinctiveness of the mark must be presumed once it is registered be- cause a registered mark must be considered valid.7 Any argument to the contrary constitutes an impermissible collateral attack on the validity of the cited registration. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1053 (Fed. Cir. 2018). We consider this du Pont factor neutral. E. Actual confusion Applicant notes that there is no record evidence of actual confusion. Under the eighth du Pont factor, we must consider any evidence of “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion.” Du Pont, 177 USPQ at 567. We note, however, that this factor requires examination of the actual circumstances and conditions under which Applicant’s and registrant’s marks have been concurrently used. In re Guild Mort- gage Co., 2020 USPQ2d 10279, *6 (TTAB 2020) (“The eighth du Pont factor . . . re- quires us to look at actual market conditions, to the extent there is evidence of such conditions of record.”). Because Applicant submitted no evidence of the nature and extent of its use and that of the cited registrant, we consider this factor neutral. F. Whether any confusion would be de minimis Adverting again to the lack of evidence of actual confusion, Applicant argues that any potential confusion would be de minimis. We note again that given the record, we can conclude nothing from the apparent lack of instances of actual confusion. In any event, the test under Trademark Act § 2(d) is likelihood of confusion, not actual 7 While the presumption of validity may be rebutted, an “ex parte proceeding is not the proper forum for such a challenge.” In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (citation omitted). Serial No. 88204175 - 14 - confusion. Weiss Assoc. Inc. v. HRL Assoc. Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842 (Fed. Cir. 1990). Contrary to Applicant’s argument, “we find that the goods involved here are the type of goods that would be marketed to and purchased by significant numbers of purchasers (members of the general public), and that the potential for confusion therefore cannot be deemed to be de minimis.” In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1205 (TTAB 2009). Considering all of the evidence of record, we conclude that confusion is likely to be substantial, not de minimis. G. Consistency with other registrations Arguing that “[t]he USPTO has consistently allowed applications similarly situ- ated to the Application to register,” App. Br. 7 TTABVUE 11, Applicant submitted 27 pairs of registrations sharing identical literal elements. Resp. to Ofc. Action (June 14, 2016), TSDR 35–170; Req. for Recon. (Dec. 23, 2019), TSDR 35–170. One of each pair is registered for footwear and the other for clothing. Applicant argues that the marks in each pair are more similar to each other than Applicant’s mark is to the mark in the cited registration. Applicant contends that if these marks are able to “coexist,” “then it can also be said that there is room for Applicant’s mark . . . to coexist with the cited registration.” App. Br. 7 TTABVUE 21. There are several problems with Applicant’s reliance on these registrations. First, and most obvious, many of the pairs of marks are not similar at all, despite having identical or similar literal elements. For example, consider the following sets of alleg- edly similar marks: Serial No. 88204175 - 15 - Reg. No. Literal Element Mark Mark Reg. No. Literal Element 5455290 ANNIE 2807671 ANNIE 5660650 DP 4630724 DP 4975035 CA 5013002 CA 5360440 AF 5551578 AF 5129006 BB 5161605 BB The marks in these pairs — and in most of Applicant’s paired registrations — are dramatically different. In most of the pairs, the differences in stylization and drawing elements clearly overwhelms the literal elements. In fact, in many cases, the literal elements of the marks are difficult to discern in one or both of the marks. By contrast, in the stylized marks before us, and the literal elements are easily recognizable, as they appear as the same letters in the same order forming the same words, and the marks are overall far more similar to Serial No. 88204175 - 16 - each other than are most of the paired marks in Applicant’s submission. Not all of Applicant’s references to third-party marks are so dissimilar. In partic- ular, Applicant has submitted registrations of the standard-character marks NEWPORT for “outer shirts” on the one hand and “footwear” on the other; VOLLEYBALL EXPRESS (VOLLEYBALL disclaimed) for “tee shirts” on the one hand and EXPRESS BEACH (BEACH disclaimed) for “beach footwear” on the other; and THE CHRONIC for “shirts and t-shirts” on the one hand and CHRONIC STYLE (STYLE disclaimed) for “footwear” on the other. Even if these marks are as similar to each other as Applicant’s mark is to the cited mark, they are too few in number to support any broad generalizations about the registrability of marks for clothing and footwear. As we have noted, the question of likelihood of confusion must be made on a case-by-case basis and in consideration of the evidence in each applica- tion. In re Nett Designs, 57 USPQ2d at 1566 (“The Board must decide each case on its own merits.”). Moreover, although Applicant has submitted 27 pairs of marks registered for clothing and footwear notwithstanding their alleged similarity, it is far from clear whether Applicant has provided us with a representative sample of relevant cases. Although Applicant provided instances in which registration was allowed, Applicant’s evidence does not indicate whether and how many times registration was successfully refused in similar cases. See In re Ala. Tourism Dep’t, 2020 USPQ2d 10485, *11 (TTAB 2020) (the applicant’s “evidentiary submission almost certainly presents an incomplete picture of USPTO practice, as it omits marks in applications that were refused registration under § 2(b) in a manner likely to be highly consistent with the Serial No. 88204175 - 17 - action in this case.”). In any event, it is well-settled that we are not bound by the decisions of examining attorneys, nor do applicants have a substantive right to consistency.” In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); see also In re Rodale Inc., 80 USPQ2d 1696, 1700 (TTAB 2006) (“Alt- hough consistency in examination is a goal of the Office, the decisions of previous Trademark Examining Attorneys are not binding on us, and we must decide each case based on the evidence presented in the record before us”); In re Finisair Corp., 78 USPQ2d 1618, 1621 (TTAB 2006). . . . In re City of Hous., 101 USPQ2d 1534, 1542 (TTAB 2012), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013). “We do not believe that our decision here is incon- sistent with the registration of the third-party marks cited by Applicant, but to the extent that it is, it is the decision required under the statute on the record before us.” Ala. Tourism Dep’t, 2020 USPQ2d 10485 at *11. We have carefully considered Applicant’s third-party registration evidence, but it does not persuade us that confusion is not likely or that consistency requires a differ- ent result. II. Conclusion We find the marks SUNFUN and SUN FUN (both stylized) to be substantially similar, the goods to be related, and the channels of trade to overlap, all of which support a finding of likelihood of confusion. We find the conditions of sale, the fame of the prior mark, and actual confusion to be neutral factors. Finally, while we have considered Applicant’s third-party registration evidence, we do not find it to weigh against a finding that confusion is likely. Decision: The refusal to register under Trademark Act § 2(d) is affirmed with respect Serial No. 88204175 - 18 - to Applicant’s International Class 25 goods. The Application will be published for op- position with respect to Applicant’s International Class 16 goods only.