Kids Helping Kids, Inc.Download PDFTrademark Trial and Appeal BoardDec 17, 202087824899 (T.T.A.B. Dec. 17, 2020) Copy Citation Mailed: December 17, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Kids Helping Kids, Inc. _____ Application Serial No. 87824899 _____ Daniel R. Cooper of Cooper & Kurz for Kids Helping Kids, Inc. Claudia Garcia, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Taylor, Bergsman and Lykos, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Kids Helping Kids, Inc. (Applicant) seeks registration on the Principal Register of the mark KHK KIDS HELPING KIDS and design, reproduced below, for “Charitable services, namely, organizing youth groups to undertake projects to benefit the needy and the community to encourage character and good citizenship,” in International Class 35.1 1 Serial No. 87824899 filed March 7, 2018, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use of its mark anywhere and in commerce as of June 1, 2009. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 87824899 - 2 - The description of the mark reads as follows: The mark consists of the stylized letters “KHK,” with the “K” in green and comprised of a child with an updo consisting of six hair buns holding up a bowl in its hands, the “H” in blue and is comprised of a child with a pony tail facing a child wearing a cap and holding a gift in between them, and the second “K” in red and comprised of a child with short hair and holding up a heart in its hands. Below this design are the words “KIDS HELPING KIDS” in black. The color white represents background, outlining, shading, and/or transparent areas and is not a part of the mark. The color(s) green, blue, red and white is/are claimed as a feature of the mark. The Examining Attorney refused to register Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the registered mark KIDS HELPING KIDS, in typed drawing form, for the services listed below as to be likely to cause confusion:2 2 Registration No. 2528905 registered January 15, 2002; renewed. The mark is registered under the provisions of Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R § 2.52, was amended to replace the term “typed” drawing with “standard character” drawing. A typed mark is the legal equivalent of a standard character mark. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard character’ marks formerly were known as ‘typed’ marks.”). Serial No. 87824899 - 3 - Educational services, namely, organizing and conducting locally-based seminars, workshops, camps, training academies, and participatory events, namely, food drives, poster and poetry contests, pottery training, and volunteer Saturdays, to increase the awareness and involvement of youth in local hunger issues and community leadership, in International Class 41. We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont, 177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns. Inc., 955 F.3d 994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020). “Each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973). In any likelihood of confusion analysis, 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 Serial No. 87824899 - 4 - effect of differences in the essential characteristics of the goods and differences in the marks.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). I. The similarity or dissimilarity of the marks. We turn first to the DuPont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). “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) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. Sept. 13, 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). In comparing the marks, we are mindful that 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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Serial No. 87824899 - 5 - Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)). The marks are similar because they both include the phrase “Kids Helping Kids.” In fact, Applicant’s mark incorporates Registrant’s entire mark. While there is no explicit rule that we automatically must find the marks to be similar where Applicant’s mark incorporates all of Registrant’s mark, the fact that the cited registered mark is subsumed by Applicant’s mark increases the similarity between them. See, e.g., China Healthways Inst. Inc. v. Xiaoming Wang, 491 F.3d 1337, 83 USPQ2d 1123, 1125 (Fed. Cir. 2007) (applicant’s mark CHI PLUS is similar to opposer’s mark CHI both for electric massagers); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for medical magnetic resonance imaging diagnostic apparatus is similar to TITAN for medical ultrasound diagnostic apparatus); Broadcasting Network Inc. v. ABS-CBN Int’l, 84 USPQ2d 1560, 1568 (TTAB 2007) (respondent’s mark ABS-CBN is similar to petitioner’s mark CBN both for television broadcasting services); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO COMBOS for food items confusingly similar to MACHO for restaurant entrees). The element that differs in Applicant’s mark is the addition of the stylized letters KHK where the letters are composed of stylized children. Rather than distinguish the marks, the stylized letters KHK serve to highlight their similarity because the stylized letters KHK are the initials for the term “Kids Helping Kids.” In addition, the first letter “K” is represented by a child holding a bowl, the letter “H” is comprised Serial No. 87824899 - 6 - of one child handing a gift to another, and the second letter “K” is a child holding a heart. The KHK initials and their highly stylized design of children reinforce their connection with the term “Kids Helping Kids.” Accordingly, we disagree with Applicant’s contention that “the design element and stylization … focused on the additional letters ‘KHK’ make Applicant’s mark look strikingly different from the standard character word mark that is the subject of the [cited] registration.”3 For that reason, we also disagree with Applicant’s contention “the placement and dominance of the design element ‘KHK’ renders Applicant’s mark dissimilar in visual, aural and overall commercial impression.”4 However, in this case, the dominant stylized element being prominently placed first and containing the additional phrase “KHK” changes the commercial impression of the mark to such an extent as to render it dissimilar to the standard character word mark that is the subject of the [cited] registration.5 While generally consumers will call for and remember the first term in a mark, this is not invariably the case. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (“the Board did not err in finding that ‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial impression’ to ‘LION CAPITAL’ and ‘LION.’”); Chatam Int’l, 71 USPQ2d at 1946 (“Viewed in their entireties with non-dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE 3 Applicant’s Brief, p. 14 (13 TTABVUE 15). 4 Id. at 15 (13 TTABVUE 16). 5 Id. Serial No. 87824899 - 7 - GASPAR GOLD for tequila] become nearly identical.”). Given Applicant’s incorporation of Registrant’s entire mark, the relevant public familiar with Registrant’s KIDS HELPING KIDS are likely to perceive Applicant’s mark as a variation of Registrant’s mark incorporating the KHK logo. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (“[Applicant’s mark] ML is likely to be perceived as a shortened version of [Registrant’s mark] ML MARK LEES when used on the same or closely related skin care products.”); Toshiba Med. Sys., 91 USPQ2d at 1271 (VANTAGE TITAN “more likely to be considered another product from the previously anonymous source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices”); Schieffelin & Co. v. Molson Cos., Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (“Those consumers who do recognize the differences in the marks may believe that applicant’s mark is a variation of opposer’s mark that opposer has adopted for use on a different product.”). Likewise, in this case, consumers are likely to perceive Registrant’s mark KIDS HELPING KIDS as an abbreviated version of Applicant’s mark KHK KIDS HELPING KIDS and design. Although the marks are not identical, it is clear that because Applicant’s mark incorporates Registrant’s mark in its entirety, the similarities in the marks outweigh the differences. We find that Applicant’s mark KHK KIDS HELPING KIDS and design is similar to Registrant’s mark KIDS HELPING KIDS in their entireties in terms of appearance, sound, connotation and commercial impression. This DuPont factor favors a finding of likelihood of confusion. Serial No. 87824899 - 8 - II. The similarity or dissimilarity and nature of the services. Applicant is seeking to register its mark for “charitable services, namely, organizing youth groups to undertake projects to benefit the needy and the community to encourage character and good citizenship.” Registrant’s description of services reads as follows: Educational services, namely, organizing and conducting locally-based seminars, workshops, camps, training academies, and participatory events, namely, food drives, poster and poetry contests, pottery training, and volunteer Saturdays, to increase the awareness and involvement of youth in local hunger issues and community leadership. These services are very similar, if not overlapping. Applicant renders a charitable service wherein youth groups volunteer to perform charitable projects for others to build the character of the volunteers and to help them learn civic responsibility. Registrant organizes and conducts, inter alia, charitable projects such as food drives and volunteer Saturdays to teach youth about hunger issues and civic responsibility (i.e., community leadership). The Examining Attorney submitted excerpts from third-party websites to show the complementary nature the services. The excerpts demonstrate that organizing and conducting charitable projects is a great way to teach children empathy, citizenship, and responsibility. Thus, organizing and conducting charitable projects goes hand-in-hand with the educational aspects associated with organizing and conducting food drives and other volunteer events to increase awareness and involvement of youth in local hunger issues and community leadership. For example, Serial No. 87824899 - 9 - ● Scouting.org The Cub Scouts under the auspices of the Boy Scouts of America in Arkansas City, Kansas built tents and shelters out of cardboard to encourage resourcefulness and creativity and to learn compassion for those who look to cardboard shelter on the streets. “[T]hey’re getting a lesson in citizenship in their community as well.”6 In addition, the Cub Scouts distributed nonperishable items to the homeless.7 ● FeedingAmerica.org “Feeding America is the largest hunger-relief organization in the United States.” As part of its mission, Feeding America “educates the public about the problem of hunger.”8 Feeding America has a curriculum instructing teachers about teaching students regarding hunger in their communities, encouraging empathy and inspiring them to take steps end hunger.9 Objective: Students will build empathy for people experiencing hunger and will make an action plan to fight hunger in their communities.10 Feeding America suggests ways students may fight hunger with their family such as starting a donation jar, hosting a lemonade stand or birthday party where proceeds go to a local food bank, planting a garden and donating the food to a food bank, and volunteering as a family at a food bank.11 6 January 14, 2019 Office Action (TSDR 8). 7 Id. at TSDR 10. 8 Id. at TSDR 21. 9 Id. at TSDR 18. 10 Id. at TSDR 19. 11 Id. at TSDR 23-25. Serial No. 87824899 - 10 - ● Oxfam America, Inc. (oxfamamerica.org) is a global organization working to end the injustice of poverty. “Our mission is to tackle the root cause of poverty and create lasting solutions.”12 Oxfam hunger banquets “are volunteer-led interactive events that bring statistics about poverty to life.”13 Oxfam America provides everything a volunteer needs to plan and execute an Oxfam hunger banquet.14 Oxfam America encourages students to participate in the fight against poverty. On Campus Connect with like-minded students, take your leadership skills to the next level, and make a difference in the fight against poverty. Join Oxfam America on campus today.15 ● Jane Goodall’s Roots & Shoots (rootsandshoots.org) “provides educators with real tools that develop students’ 21st century learning skills, such as a critical thinking, problem solving, and a spirit of collaboration. Most importantly, it results in a sense of compassion and commitment to their communities and the word around them.”16 All too often we use the curriculum to design our programs, while [Roots & Shoots] is opening my eyes that it all begins with the students and what they see. The curriculum is then tied into the service learning project, and because the students started and researched the ideas, they are already engaged and will stay engaged. 12 Id. at TSDR 32. 13 Id. at TSDR 34. 14 Id. at TSDR 34-37. 15 Id. at TSDR 39. 16 Id. at TSDR 43. Serial No. 87824899 - 11 - Roots & Shoots Educator17 The organization teaches students to do charitable campaigns to benefit people, animals, the environment, or disaster preparedness, including preventing food waster by researching the proper procedure for donating leftover food.18 Applicant argues the description of services are different. On one hand, Registrant’s services “are limited to specific activities that seek to ‘increase the awareness and involvement of youth in local hunger issues and community leadership” (i.e., educational services in the field of hunger in a specific community).19 On the other hand, Applicant’s services “are charitable in nature and are for the purpose of coordinating youth to undertake projects that benefit underprivileged or underserved communities without regard to any particular issue in that community and without regard to any specific locality.”20 There are two problems with Applicant’s argument. First, we must consider Applicant’s services and Registrant’s services to include all activities of the type identified. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013). Applicant’s services are broad enough to include hunger issues in a particular community. Where services are broadly identified in an application or registration, “we must presume that the services encompass all services of the type identified.” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 17 Id. at TSDR 45. 18 Id. at TSDR 49-50. 19 Applicant’s Brief, p. 16 (13 TTABVUE 17). 20 Id. at 16-17 (13 TTABVUE 17-18). Serial No. 87824899 - 12 - 115 USPQ2d 1007, 1025 (TTAB 2015) (where the services in an application or registration are broadly described, they are deemed to encompass all the goods of the nature and type described therein) (quoting In re Country Oven, Inc., 2019 USPQ2d 443903, * 4 (TTAB 2019) and citing In re AC Webconnecting Holding B.V., 2020 USPQ2d 11048, *11-12 (TTAB 2020)). Therefore, Applicant’s broadly worded “organizing youth groups to undertake projects to benefit the needy and the community to encourage character and good citizenship” encompasses Registrant’s organizing and conducting locally-based participatory events, namely, food drives and volunteer Saturdays to increase the awareness and involvement of youth in local hunger issues and community leadership. Second, Registrant’s description of services is not limited to any particular community or locality. The services in a geographically unrestricted registration may expand throughout the U.S. The Board cannot limit its consideration of likelihood of confusion to the areas presently occupied by Registrant. We must decide the question as if Registrant’s mark is in use throughout the entire U.S. See Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983). We find that the services are overlapping and complementary. III. Established, likely-to-continue channels of trade and classes of consumers. 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. Viterra, 101 USPQ2d at 1908 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 Serial No. 87824899 - 13 - (Fed. Cir. 2002) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983)). In this appeal, both sets of services include organizing youth to participate in charity events to teach them about civic responsibility. Based on their identification of services, the services are offered in the same channels of trade to the same classes of consumers. This finding of fact is corroborated by the third-party evidence discussed above. IV. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion. Applicant contends that because it has been using its mark since June 1, 2009 without any reported instances of actual confusion, the lack of any actual confusion is a DuPont factor weighing against finding likelihood of confusion.21 Our analysis of the similarity or dissimilarity and nature of the services and established, likely to continue channels of trade DuPont factors is based, as dictated by precedent from the Federal Circuit, on the identification of services as set forth in the application and the cited registration. See Stone Lion, 110 USPQ2d at 1162. As such, we may not consider evidence of how Applicant and Registrant are actually rendering their services in the marketplace. Id. The eighth DuPont factor, by contrast — “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion,” see DuPont, 177 USPQ at 567 — requires us to look at actual market conditions, to the extent there is evidence of such conditions of record. In re Guild 21 Applicant’s Brief, pp. 17-20 (13 TTABVUE 18-21). Serial No. 87824899 - 14 - Mortg. Co., 2020 USPQ2d 10279, *6 (TTAB 2020). The absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by Applicant of its mark for a significant period in the same markets as those served by Registrant under its mark. Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). In other words, for the absence of actual confusion to be probative, there must have been a reasonable opportunity for confusion to occur. Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the absence of actual confusion depends upon there being a significant opportunity for actual confusion to have occurred); Red Carpet Corp. v. Johnstown American Enterprises Inc., 7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya Co., Inc. v. North American Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he absence of actual confusion over a reasonable period of time might well suggest that the likelihood of confusion is only a remote possibility with little probability of occurring.”). Applicant submitted no evidence regarding the scope or extent of its use of its mark or of Registrant’s mark. In addition, in this ex parte context, there has been no opportunity to hear from Registrant about whether it is aware of any reported instances of confusion. We therefore are getting only half the story. See, e.g., Majestic Drilling, 65 USPQ2d at 1205 (“uncorroborated statements of no known instances of actual confusion are of little evidentiary value.”); Guild Mortg., 2020 USPQ2d 10279, Serial No. 87824899 - 15 - *7; In re Opus One, Inc., 60 USPQ2d 1812, 1817 (TTAB 2001) (“The fact that an applicant in an ex parte case is unaware of any instances of actual confusion is generally entitled to little probative weight in the likelihood of confusion analysis, inasmuch as the Board in such cases generally has no way to know whether the registrant likewise is unaware of any instances of actual confusion, nor is it usually possible to determine that there has been any significant opportunity for actual confusion to have occurred.”). We find that the lack of any reported instances of actual confusion is a neutral DuPont factor. V. The market interface between the Applicant and the owner of a prior mark. In the June 25, 2018 Office Action, the Examining Attorney cited Registration No. 2464779 for the mark KIDS HELPING KIDS, in typed drawing form, for the services listed below, owned by a different entity than the owner of the registered mark at issue in this appeal: Charitable fundraising services, namely, activities in which children participate to raise funds for children in developing countries, in International Class 36; and Educational services, namely, providing information to children about children in developing countries and the conditions in which they live, in International Class 41.22 22 Registered July 3, 2001; renewed. Serial No. 87824899 - 16 - The Examining Attorney withdrew the Section 2(d) refusal based on Registration No. 2464779 based on a Consent Agreement between Applicant and the owner of that registration submitted February 3, 2020.23 According to the Consent Agreement, Applicant and The United States Fund for UNICEF (UNICEF) agree that the concurrent use of Applicant’s mark KHK KIDS HELPING KIDS and design and UNICEF’s mark KIDS HELPING KIDS is not likely to cause confusion based on the factors listed below: ● Differences in the respective forms of display; ● Differences in the services; ● Differences in the respective channels of trade; and ● Lack of any reported instances of confusion.24 While Applicant concedes the agreement between Applicant and UNICEF is not dispositive of the issue currently before the Board, Applicant asserts that it represents a factor that weighs against finding likelihood of confusion.25 At the very least, the existence of a coexistence agreement with a mark identical to the cited mark (and one also originally cited against Applicant) must at least be weighed in the likelihood of confusion analysis for that identical cited mark. However, the Examining Attorney’s statement completely ignores the existence of the coexistence agreement with a cited mark and the representations made evidence of record therein. Applicant submits that not considering the coexistence agreement and the ‘779 mark owner’s representations with respect to likelihood of confusion when evaluating confusing similarity with the 23 February 3, 2020 Response to an Office Action (TSDR 9-12). 24 Id. at 9. 25 Applicant’s Brief, p. 21 (13 TTABVUE 22). Serial No. 87824899 - 17 - cited mark in this case was legal error as the existence of the coexistence and consent agreement with respect to the ‘779 mark is a substantial factor weighing against likelihood of confusion.26 We find that Applicant’s consent agreement with UNIFCEF has little probative value for the reasons discussed below. First, Applicant argues, in essence, because UNICEF agreed that Applicant’s mark is not likely to cause confusion with UNICEF’s mark, there is no likelihood of confusion between Applicant’s mark and Registrant’s mark. Applicant may not assert that its trademark may be registered based on an agreement between Applicant and a third party. This DuPont factor focuses on the market interface between Applicant and Registrant and not between Applicant and the rest of the world. Cf. Krug Vins Fins de Champagne v. Rutman Wine Co., 197 USPQ 572, 574-75 (TTAB 1977) (in a cancellation proceeding, the conflict is between the petitioner and respondent and not between petitioner and the world). Accord Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (an opposer need not have exclusive rights in a mark to oppose its registration to another; it is only necessary that the opposer prove that he would be damaged by the registration of applicant’s mark); Maytag Co. v. Luskin's, Inc., 228 USPQ 747, 750 (TTAB 1986) (“another’s prior use of a confusing similar mark for the same goods or services, may not be relied upon as a defense in opposition and cancellation proceedings.”); Viking Boat Co., Div. Coachmen Indus., Inc. v. Viking Camper Supply, Inc., 191 USPQ 297 (TTAB 1976); Procter & Gamble Co. v. Keystone Auto. Warehouse, 26 Applicant’s Reply Brief, p. 10 (16 TTABVUE 11). Serial No. 87824899 - 18 - Inc., 191 USPQ 468 (TTAB 1976). Simply put, if the Examining Attorney shows there is a likelihood of confusion between Applicant’s mark and Registrant’s mark, we should affirm the refusal to register. Second, to the extent that Applicant is arguing that the UNICEF consent agreement is analogous to a consent by Registrant, we reject the argument. We will not impute such a consent or agreement to Registrant in the absence of explicit documentary evidence. See In re Opus One Inc., 60 USPQ2d 1812, 1820-21 n.13 (TTAB 2001). Finally, the factors on which Applicant and UNICEF based their agreement are a little vague especially if we are going to apply them to the facts in this appeal. For example, it is not clear if the differences in the respective forms of display refer to UNICEF’s typed drawing format or the display it has used, is using, and intends to use. A registrant may use a mark in typed drawing form in any manner, regardless of font, size or color, and a registrant, at any time in the future, might display the mark in a manner similar to an applicant’s mark. See Viterra, 101 USPQ2d at 1909- 11; Citigroup, 98 USPQ2d at 1259; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed drawing (equivalent to modern standard character format) is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party” (emphasis in original)). Thus, if the Agreement refers to UNICEF’s mark in typed form, that factor does not serve to distinguish the way the UNICEF may Serial No. 87824899 - 19 - display its mark. On other hand, if the Agreement refers to the manner in which UNICEF has used, is using, and intends to use its mark, that evidence is not before us. With respect to the lack of any reported instances of actual confusion, there is no evidence in the record regarding the scope or extent of Applicant’s use of its mark, nor UNICEF’s use of its mark. Therefore, we have no basis to impute that factor to the facts in this case. Based on a careful and thorough consideration of the record, we find that the consent agreement between Applicant and UNICEF has no probative value. Therefore, the DuPont factor regarding the market interface between Applicant and the owner of a prior mark is neutral. VI. Conclusion Because the marks are similar, the services are overlapping and complementary and are offered in the same channels of trade to the same classes of consumers, we find that Applicant’s mark KHK KIDS HELPING KIDS and design for “charitable services, namely, organizing youth groups to undertake projects to benefit the needy and the community to encourage character and good citizenship” is likely to cause confusion with the registered mark KIDS HELPING KIDS for “educational services, namely, organizing and conducting locally-based seminars, workshops, camps, training academies, and participatory events, namely, food drives, poster and poetry contests, pottery training, and volunteer Saturdays, to increase the awareness and involvement of youth in local hunger issues and community leadership.” Serial No. 87824899 - 20 - Decision: The Section 2(d) refusal to register Applicant’s mark KHK KIDS HELPING KIDS and design is affirmed. Copy with citationCopy as parenthetical citation