LIVE.ME LTD

Trademark Trial and Appeal Board

Feb 2, 2021

87958116 (T.T.A.B. Feb. 2, 2021)

Mailed: February 2, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re LIVE.ME LTD
_____
Serial No. 87958116
_____
Sean Ploen of Ploen Law Firm PC,
for LIVE.ME LTD.

Matthew Ruskin, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.1
_____

Before Wolfson, Adlin and Goodman, Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Applicant LIVE.ME LTD seeks a Principal Register registration for the standard
character mark LIVE.US for the following goods and services in International Classes
9, 38 and 42: 2
Class 9: Downloadable software in the nature of a mobile
application for uploading, creating, posting, editing,
showing, displaying, sharing, streaming and transmitting
electronic media, video, real-time news, entertainment
content, or information over the Internet and other
communications networks; downloadable software and
mobile application for social networking; software for

1 This application was previously assigned to Trademark Examining Attorney Elissa Garber
Kon during examination and was reassigned to Matthew Ruskin for preparation of the brief
on appeal.
2 Application Serial No. 87958116, filed June 12, 2018 under Trademark Act Section 1(b), 15
U.S.C. § 1051(b), alleging Applicant’s bona fide intent to use the mark in commerce.
This Opinion is Not a
Precedent of the TTAB
Serial No. 87958116
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sending and receiving audio and audio-visual content via
the Internet;

Class 38: Communication services, namely, transmission
and streaming of voice, data, images, audio, video, real-
time news, entertainment content, or information by
means of telecommunications networks, wireless
communication networks, and the Internet; peer-to-peer
video-sharing services, namely, electronic transmission of
digital photo files, videos and audio-visual content among
Internet users; video broadcasting services over the
Internet or other communications networks featuring the
uploaded, posted, displayed, modified, tagged, and
electronically transmitted data, information, audio and
video content of others;

Class 42: Providing a website featuring non-downloadable
software for recording, transmitting, showing, displaying,
blogging, sharing, streaming and transmitting electronic
media, video, real-time news and entertainment content
and other information; providing temporary use of online
non-downloadable software to enable uploading, creating,
posting, editing, showing, displaying, blogging, sharing,
streaming and transmitting of electronic media, video,
real-time news, entertainment content, or information;
providing a web hosting platform featuring temporary use
of non-downloadable software allowing users to upload,
post, display, stream, and share videos and digital content;
creating an online community for registered users to
engage in social networking.

The Examining Attorney refused registration on the ground that LIVE.US is
merely descriptive of Applicant’s goods and services under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1). The Examining Attorney also refused
registration 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 LIVE.ME (in
standard characters) for
Serial No. 87958116
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Class 9: Computer application software for mobile phones,
portable media players, handheld computers, namely,
software for voice and data conferencing, audio and video
teleconferencing, voice and video streaming of messages
and data, audio and video webcasting; Computer
application software for mobile phones, portable media
players, handheld computers, namely, software for linking,
sharing and providing electronic media and electronic
information via computer and communication networks;
downloadable computer application software for streaming
and transmission of data over a communications network;
downloadable computer software for converting video,
images, audio, and data from one digital format to another;
computer software for use in digital content management;
computer software for creating, recording, organizing,
transmitting, receiving, manipulating, editing, posting,
playing and reviewing digital text, image, audio, video and
multimedia files; computer software for producing,
managing, and inserting digital text, images, audio, video
and multimedia into audio and video webcasts and internet
streams; Computer software for the collection, editing,
organizing, modifying, transmission, storage and sharing
of data and information; Computer software for creating
social networks, building social networking applications
and for use in database management by allowing for
retrieval, upload, download, access, display, marking and
management of digital data files; Downloadable graphics
for mobile phones, portable media players, and handheld
computers; Computer application software for mobile
phones, portable media players and handheld computers,
namely, software for use in electronic marketing service
reward programs for offering rewards to frequent users of
websites and downloaded mobile applications;

Class 38: Telecommunication services, namely, providing
online discussion forums and internet chatrooms for
transmission of messages among users; Electronic
transmission of text messages, audio, videos and
audiovisual content via the Internet and wireless networks
among users; Providing online forums for social
networking; Interactive telecommunications services,
namely, interactive delivery of video over digital networks;
broadcasting services, namely, digital audio, video and
audiovisual broadcasting services provided via a
Serial No. 87958116
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communications network and the Internet; Broadcasting
services and provision of telecommunication access to video
and audio content provided via a video-on-demand service
via the Internet; Streaming of audio, visual and
audiovisual data via a global computer network and the
Internet; Telecommunication services, namely,
transmission of podcasts; telecommunication services,
namely, transmission of webcasts; Video on demand
transmissions; File sharing and data sharing services,
namely, electronic transmission of digital files, videos,
audio visual content and data among internet and mobile
device users; Providing access to computer databases in the
fields of social networking;

Class 41: Entertainment services, namely, providing an
online interactive database of non-downloadable audio
recordings featuring music, non-downloadable videos
featuring music; Providing online computer and electronic
databases featuring information relating to the field of
entertainment; Online digital video, audio and multimedia
publishing services; providing an Internet website portal in
the field of entertainment relating to entertainment news,
sports, comedy, drama, TV shows, movies, celebrities,
reality shows and vlogs; providing an Internet website
portal in the field of entertainment relating to critiques,
reviews, and parodies regarding entertainment news,
sports, comedy, drama, TV shows, movies, celebrities,
reality shows and vlogs; providing online entertainment,
namely, production of sound and audiovisual recordings in
the field of culture, sports, travel, and entertainment;
production of sound and music video recordings; post-
production editing services in the field of music, videos and
films; production of videos in the field of education, culture,
entertainment, and sports; Fan club services; Providing
information in the field of entertainment by means of a
global computer network.3

3 The mark is the subject of three registrations, all owned by a single entity: Registration No.
5113754, issued January 3, 2017, in Class 9; Registration No. 5113755, issued January 3,
2017, in Class 38; and Registration No. 5536265, issued August 7, 2018, in Class 41.
Serial No. 87958116
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as to be likely to cause confusion. After the refusal became final, Applicant appealed
and filed a request for reconsideration, which was denied. We affirm the refusal to
register on both grounds.
I. Preliminary Issue - Exhibits Attached to Applicant’s Brief
In its brief, Applicant refers for the first time to six third-party registrations and
attaches copies of the registrations to the brief. The third-party registrations are
untimely because Applicant did not submit the copies before appealing. Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d) (“The record in the application should be complete
prior to the filing of an appeal.”).
The Board may consider untimely evidence if the non-offering party: (i) does not
object to the new evidence; and (ii) either discusses it or affirmatively treats it of
record. TRADEMARK TRIAL AND APPEAL BOARD MANUAL (TBMP) § 1207.03 (2020) and
cases cited therein. Here, the Examining Attorney unequivocally objected to the
evidence, so we have not considered it.
II. Is Applicant’s Mark Merely Descriptive of the Goods or Services?
Section 2(e)(1) of the Trademark Act prohibits the registration of a mark which,
when used on or in connection with the goods or services of the applicant, is merely
descriptive of them. A term is merely descriptive “if it immediately conveys
information concerning a feature, quality, or characteristic of the goods or services
for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707,
1709 (Fed. Cir. 2017) (citing In re Bayer A.G., 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007)). See also In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Omniome, Inc., 2020 USPQ2d 3222, *3
Serial No. 87958116
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(TTAB 2019). Conversely, a mark is suggestive if it “requires imagination, thought,
and perception to arrive at the qualities or characteristics of the goods or services.”
Id. See also Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411,
1413 (Fed. Cir. 2017) (contrasting merely descriptive from suggestive marks); In re
Franklin Cty. Historical Soc’y, 104 USPQ2d 1085, 1087 (TTAB 2012) (same).
“The determination of whether a mark is merely descriptive must be made in
relation to the goods and services for which registration is sought, not in the abstract.”
In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1952-1953 (TTAB 2018) (citing
In re Chamber of Commerce, 102 USPQ2d at 1219). This requires consideration of the
context in which the mark is used or intended to be used in connection with those
goods or services, and the possible significance that the mark would have to the
average purchaser of the goods or services in the marketplace. In re Chamber of
Commerce, 102 USPQ2d at 1219; In re Bayer, 82 USPQ2d at 1831; In re Omaha Nat’l
Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1861 (Fed. Cir. 1987). In other words, the
question is not whether someone presented only with the mark could guess the goods
and services listed in the identification. Rather, the question is whether someone who
knows what the goods and services are will understand the mark to convey
information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc.,
64 USPQ2d 1314, 1316-17 (TTAB 2002)).
“[E]vidence [that a term is merely descriptive] may be obtained from any
competent source, such as dictionaries, newspapers, or surveys.” See In re Stereotaxis,
Serial No. 87958116
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Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005) (citations omitted).
Internet evidence of third-party websites and an applicant’s website may also be
offered as evidence of descriptiveness. In re Promo Ink, 78 USPQ2d 1301, 1303 (TTAB
2006). Evidence of third-party registrations may “show the sense in which the word
is used in ordinary parlance and may show that a particular term has descriptive
significance as applied to certain goods or services.” In re Morinaga Nyugyo
Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016); see also Institut Nat’l Des
Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196
(Fed. Cir. 1992). In this case, the following evidence is of record:
ï‚· Dictionary definition - from www.merriam-webster.com/dictionary/
live, showing “LIVE” defined, inter alia, as “of or involving a
presentation (such as a play or concert) in which both the performers
and an audience are physically present” or “broadcast directly at the
time of production.” September 28, 2018 Office Action, TSDR 155-
166.4

 Domain information – excerpts from www.godaddy.com/help/about-
us-domans-5856, indicating that the term “.US” is a country code top-
level domain name (cc TLD) that represents the United States.
September 28, 2018 Office Action, TSDR 167-170.

 Third-party registrations – printouts of ten registrations from the
USPTO’s database of registered marks wherein “live” is disclaimed
in connection with related software and transmission or streaming
services featuring provision of data and content for others (for
example, Reg. No. 4261019 for LIVE GUIDE for software for
interactive text, audio and video chat; communication services; and
providing non-downloadable software for communication).
September 28, 2018 Office Action, TSDR 171-200.

4 Page references to the application record refer to the downloadable .pdf version of the
USPTO’s Trademark Status & Document Retrieval (TSDR) online database. References to
the briefs on appeal refer to the Board’s TTABVUE docket system.
Serial No. 87958116
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ï‚· Third-party registrations - printouts of ten registrations from the
Office’s database of registered marks wherein the entire literal
portion of the mark, containing the term “.US” (for example, Reg. No.
4613634 for BOOMERSWORK.US), was disclaimed or the mark
registered on the Supplemental Register (for example, Reg. No.
5759734 for CITIZENSHIPFLASHCARDS.US) in connection with
various goods and services. October 17, 2019 Office Action, TSDR 31-
58.

Because LIVE.US is a composite mark, we may examine the meaning of each
component individually for descriptiveness in relation to the identified goods and
services, and then determine whether the mark as a whole is merely descriptive.
Although our final determination is based on a consideration of Applicant’s mark in
its entirety, “[t]he Board to be sure, can ascertain the meaning and weight of each of
the components that makes up the mark.” DuoProSS, 103 USPQ2d at 1756-57.
We start with the meaning of the term “LIVE.” The dictionary definition,
corroborated by the registration evidence, establishes that “live” has a descriptive
meaning when used in connection with Applicant’s goods and services. Applicant’s
Class 9 goods include downloadable software for displaying real-time news, for social
networking, and for “sending and receiving audio and audio-visual content via the
Internet.” The term “LIVE” is descriptive of this software, which as identified
displays and transmits events and communications “directly at the time of
production.”. Likewise, Applicant’s communication services in Class 38 include the
transmission of real-time news and peer-to-peer video-sharing services; and
Applicant’s services in Class 42 include providing a website for streaming and
transmitting real-time news as well as “creating an online community for registered
Serial No. 87958116
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users to engage in social networking.” The term “LIVE” is also descriptive of these
services.
Turning to the designation “.US,” the GoDaddy website evidence establishes that
“.US” is the country code TLD for the United States. The Examining Attorney argues
that the term “merely identifies a top-level domain (TLD) and does not provide any
source indicating significance.” 8 TTABVUE 8. Applicant disagrees, and argues that
“.US” “signals to consumers that the associated goods and services are emanating
from a singular source.” Applicant’s Brief, 6 TTABVUE 5. Applicant asserts that
because each domain name is unique, it forms an “exclusive relationship” with its
owner such that consumers will perceive the mark “as a brand” and not as a merely
descriptive term. 6 TTABVUE 5.
We are unpersuaded by Applicant’s argument. “The fact that Applicant may be
the first or only user of a term does not render that term distinctive” if it otherwise
has been shown to be descriptive. In re Fallon, 2020 USPQ2d 11249, *11 (TTAB 2020)
(citing In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1514 (TTAB 2016)).
Adding “.US” to the mark “adds a further description of the Internet feature of the
identified goods [and services,]” and because Applicant’s goods and services are
Internet-based, “[Applicant’s] argument to consider the mark as a whole only
strengthens the descriptiveness finding.” In re Oppedahl & Larson, 71 USPQ2d at
1374 (affirming Board decision holding PATENTS.COM to be descriptive). The third-
party registrations that include disclaimers of “.US” further corroborate a finding
that “.US,” when used as a country code TLD, has no source significance.
Serial No. 87958116
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Applicant argues that “the complete mark signals not only a particular domain
but also a suggestive word play” and therefore the “complete mark LIVE.US
indirectly conveys that Applicant’s software and services relate to an inclusive
community of live broadcasters and content providers and their viewers.” 6
TTABVUE 5-6. The Examining Attorney suggests that this reading of the mark
would remain descriptive, but that even if it did not, “the applied-for mark clearly
has at least one merely descriptive interpretation.” The Examining Attorney asserts
that reading the mark as a combination of “live” and “.us” (as a domain name TLD)
forms a sufficient basis for finding the mark as a whole to be merely descriptive , any
suggestive connotation as a composite phrase (“live us”) notwithstanding.
In the context of descriptiveness, to be “merely” descriptive does not mean that a
term serves no purpose other than to describe the goods or services. “So long as
any one of the meanings of a term is descriptive, the term may be considered to
be merely descriptive.” In re UST Global (Sing.) Pte. Ltd., 2020 USPQ2d 10435, *5
(TTAB 2020); In re Mueller Sports Med., Inc., 126 USPQ2d 1584, 1590 (TTAB 2018).
See also In re Omniome, 2020 USPQ2d 3222 at *3 (“A mark need not recite each
feature of the relevant goods or services in detail to be descriptive, it need only
describe a single feature or attribute.”) (citing In re Chamber of Commerce, 102
USPQ2d at 1219). We find Applicant’s combination of descriptive terms yields a
designation that is itself merely descriptive.
III. Conclusion – Mere Descriptiveness
Applicant’s mark, LIVE.US, immediately brings to mind a website or mobile
application containing live-streamed or live-broadcast audio and/or video content.
Serial No. 87958116
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Accordingly, the mark is merely descriptive within the meaning of Trademark Act
Section 2(e)(1).
IV. Is Applicant’s Mark Likely to Cause Confusion?
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated 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 Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1161-62 (Fed. Cir. 2019). We have considered each DuPont factor for
which there is evidence and argument. See In re Guild Mortg. Co., 129 USPQ2d at
1162-63.
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods and services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
A. The Marks
Serial No. 87958116
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This 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.” In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *3
(TTAB 2020) (citing Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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), quoted in In re I-Coat Co., LLC, 126 USPQ2d 1730, 1736 (TTAB
2018) (finding INDIGO AR and design for optical lenses likely to cause confusion with
INDIGOSNOW for spectacles).
“Because the similarity of the marks is determined based on the marks in their
entireties, the analysis cannot be predicated on dissecting the marks into their
various components; that is, the decision must be based on the entire marks, not just
part of the marks.” In re I-Coat Co., 126 USPQ2d at 1736; see also Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Nonetheless, there is nothing improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. In re I-Coat Co.,
126 USPQ2d at 1736 (citing In re Nat’l Data, 224 USPQ at 751).
Serial No. 87958116
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Both Applicant’s mark and the cited mark start with the same first term, “LIVE.”
It is often the first part of a mark which is considered dominant, because it is “most
likely to be impressed upon the mind of a purchaser and remembered.” Presto Prods.
Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). See also Palm Bay,
73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE
CLICQUOT because “veuve” is the first word in the mark and the first word to appear
on the label); Brown Shoe Co. v. Robbins, 90 USPQ2d 1752, 1755 (TTAB 2009)
(PALOMA and PALOMITA); Hercules Inc. v. Nat’l Starch and Chem. Corp., 223
USPQ 1244, 1246 (TTAB 1984) (“the clearly dominant aspect of both marks
[NATROL and NATROSOL] is that the first four letters and the final two are the
same.”).
Applicant argues that “LIVE is highly suggestive of an inherent feature of
software for streaming and broadcasting of entertainment content, therefore, greater
emphasis will be placed on the un-shared .ME and .US portions of Applicant’s Mark
and the Cited Registrations.” 6 TTABVUE 3. The third-party registrations from the
USPTO’s database of registered marks, wherein “live” and “.US” were disclaimed,
show that neither term is particularly strong with regard to the relevant goods and
services. However, because “.me” and “.us” provide little, if any, source-indicating
significance, the dominant portion of each mark is “LIVE.” It is also likely that
consumers will notice and possibly pronounce the “.” in each mark as “dot,” thus
rendering them more similar in appearance and pronunciation.
Serial No. 87958116
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Applicant argues that the marks convey different meanings. “Given that at any
given moment, only a single entity can own and occupy a particular Internet domain
name, a consumer readily would deduce that the trademarks LIVE.ME and LIVE.US
refer to different domain names containing Websites operated by unaffiliated service
providers.” 6 TTABVUE 3. The Examining Attorney contends that not only is the
“general meaning” conveyed by each mark the same, but that “even if consumers do
take note of the differing domains in each mark, it does not follow that consumers
would understand the source of the goods and services provided at the different
domains is distinct.” 8 TTABVUE 10.
Although only one entity can own a given domain name at a time, several domain
names may be owned by the same entity at one time. Consumers who encounter
Applicant’s mark may believe that Registrant maintains a presence in both the
United States and in Montenegro, or that it directs its goods and services to both
American and Montenegrin consumers. Moreover, “me” and “us,” as common English
words, have similar meanings. The word “us” is a proper noun designating more than
one person, including the speaker, thus encompassing “me.” To the extent consumers
will view the domain name TLDs in the marks LIVE.ME and LIVE.US as the English
words “me” and “us,” the marks convey similar commercial impressions.
The first DuPont factor favors a finding of likelihood of confusion.
B. The Goods and Services, Their Channels of Trade and Classes of
Consumers
The Examining Attorney argues that the goods and services are “highly related
and are in many cases identical.” 8 TTABVUE 15. He compares Registrant’s
Serial No. 87958116
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“computer software for creating,…editing, posting,…digital text, image, audio, video
and multimedia files” with Applicant’s “downloadable software…for uploading,
creating, posting, editing,…electronic media, video, real-time news, entertainment
content, or information over the Internet and other communications networks.” 8
TTABVUE 16. In Class 38, the Examining Attorney notes the broad wording
Applicant uses to describe its communication services, which encompasses
Registrant’s more narrow “electronic transmission of text messages, audio, videos and
audiovisual content via the Internet and wireless networks among users” services.
Id. And similarly, Registrant’s “file sharing” and “data sharing” encompasses
Applicant’s more narrow “peer-to-peer video sharing” services. Id. As for Applicant’s
Class 42 services of providing a website featuring non-downloadable software for
streaming entertainment content, the Examining Attorney refers to the third-party
registration evidence he introduced, which shows that these services and Registrant’s
entertainment services, including “providing information in the field of
entertainment by means of a global computer network” are of a kind that may
emanate from a single source under a single mark. (for example, Reg. No. 4937513
for ROKU for inter alia “computer software for use in accessing, viewing and
controlling streaming and static audiovisual content over digital media streaming
devices” and “streaming of audio, visual and audiovisual material via the Internet
and wireless networks.”) April 13 2019 Office Action, TSDR 86-121.
We find Applicant’s goods and services to be in-part legally identical and otherwise
closely related to Registrant’s goods and services. Notably, Applicant did not
Serial No. 87958116
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argue otherwise and, in fact, its brief is silent with respect to the relatedness of the
goods or services. Applicant also did not address any other DuPont factor during the
prosecution of the application or in its brief.
As for trade channels and classes of consumers, because there are no limitations
as to classes of consumers in the recitation of goods and services of the cited
registration or, for that matter, in Applicant’s application, we must presume that both
Applicant’s and Registrant’s goods and services will move in all channels of trade
normal for such goods and services and that they are available to all potential classes
of ordinary consumers. See Citigroup Inc., 98 USPQ2d at 1261 (Fed. Cir. 2011); In re
Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ
639, 640 (TTAB 1981).
In view of the above, the DuPont factors of the relatedness of the goods and
services, channels of trade and classes of consumers favor a finding of likelihood of
confusion.
V. Conclusion – Likelihood of Confusion
The marks are similar, the goods and services are in-part legally identical or
closely related, and the channels of trade and classes of consumers overlap.
Notwithstanding that the LIVE.US mark is somewhat weak, it is entitled to a
presumption of validity under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b),
and to protection against registration of a mark likely to cause confusion. In re Guild
Mortg. Co., 2020 USPQ2d 10279, at *3.
Serial No. 87958116
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Decision: The refusal to register Applicant’s proposed mark LIVE.US under
Sections 2(d) and 2(e)(1) of the Trademark Act is affirmed.