Nataraj Dhananjaya

Trademark Trial and Appeal Board

May 17, 2021

88404589 (T.T.A.B. May. 17, 2021)

Mailed: May 17, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Nataraj Dhananjaya
_____
Serial No. 88404589
_____
Francis John Ciaramella of Francis John Ciaramella, PLLC
for Nataraj Dhananjaya.

Andrea D. Saunders, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
_____
Before Mermelstein, Adlin and Lynch, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Applicant Nataraj Dhananjaya seeks registration of CREATIVE NATURE ART,
in standard characters (NATURE ART disclaimed), for “photography; all of the
foregoing in the field of nature and wildlife” in International Class 41.1 The
Examining Attorney 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 CREATIVE NATURE, also in standard characters (CREATIVE disclaimed),
for:

1 Application Serial No. 88404589, filed April 26, 2019 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in commerce.
This Opinion is Not a
Precedent of the TTAB
Serial No. 88404589
2
professional coaching services in the field of art,
photography and creativity, personal reflection and
growth, and art and creativity in conjunction with business
development; providing group coaching and in-person
learning forums in the field of art, photography and
creativity, personal reflection and growth, and art and
creativity in conjunction with business development;
consulting about coaching, training, and teaching services
involving the business of photography, art, and creative
pursuits; portrait photography; fine art photography; all
forms of commercial and editorial photography; digital
imaging services; providing information in the field of art
and photography, also in International Class 412

that it is likely to cause confusion. After the refusal became final, Applicant appealed
and filed a request for reconsideration which was denied. Applicant and the
Examining Attorney filed briefs.
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 the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”)
(setting forth factors to be considered); see also In re Majestic Distilling Co., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor
about which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry

2 Registration No. 5620991, issued December 4, 2018.
Serial No. 88404589
3
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”).
A. The Services, Channels of Trade and Classes of Consumers
The services are legally identical because the cited registration identifies “all
forms of commercial and editorial photography,” which is broad enough to encompass
Applicant’s identified nature and wildlife photography. Similarly, Applicant’s nature
and wildlife photography services are broad enough to encompass commercial and
editorial nature and wildlife photography. See S.W. Mgmt., Inc. v. Ocinomled, Ltd.,
115 USPQ2d 1007, 1025 (TTAB 2015) (where services are broadly identified, they are
deemed to encompass all of the services of the nature and type described); In re
Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s
broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s
narrowly identified ‘residential and commercial furniture’”). This factor therefore not
only weighs heavily in favor of finding a likelihood of confusion, but it also reduces
the degree of similarity between the marks necessary to find a likelihood of confusion.
In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Mighty
Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Max Capital
Grp., Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010).
Furthermore, because the services overlap, we presume that the channels of trade
and classes of purchasers for Applicant’s and Registrant’s identical services also
overlap. See In re Viterra, 101 USPQ2d at 1908 (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); In re Yawata Iron
Serial No. 88404589
4
& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally
identical goods, the channels of trade and classes of purchasers are considered to be
the same); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research
Instit., 101 USPQ2d 1022, 1028 (TTAB 2011). These factors therefore also weigh
heavily in favor of finding a likelihood of confusion.
B. The Marks
The marks are much more similar than dissimilar “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,
1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). In fact, the marks are
identical except for the word ART at the end of Applicant’s mark.3 This distinction
will not prevent confusion, especially when the marks are used for identical services.
Indeed, the marks look and sound highly similar because Applicant’s mark begins
with CREATIVE NATURE, which is Registrant’s mark in its entirety. Thus,
consumers seeing or hearing Applicant’s mark will first see and hear Registrant’s
mark in its entirety. While these consumers will immediately thereafter see and hear
the word ART after Registrant’s mark, that distinction is insignificant here for two
reasons.

3 Applicant contends that he and Registrant both “present their respective marks using
distinct logos or fonts, each connoting a particular and distinct commercial impression.” 7
TTABVUE 5, 8. This misstates the facts. The cited registration is for CREATIVE NATURE
in standard characters, and the involved application is for CREATIVE NATURE ART in
standard characters. To the extent Applicant’s argument concerns how the parties choose to
display their marks, that is of no concern here, as marks in standard characters may be
displayed in any font or with any logo. See In re Viterra, 101 USPQ2d at 1909.
Serial No. 88404589
5
First, ART is not only the shortest word in Applicant’s mark, but it comes last,
after CREATIVE NATURE. Consumers are more likely to focus on the first part of
Applicant’s mark − which is Registrant’s mark in its entirety − than the trailing term
ART. Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988)
(“it is often the first part of a mark which is most likely to be impressed upon the
mind of a purchaser and remembered”); see also, Palm Bay Imports Inc., 73 USPQ2d
at 1692; Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).
Second, in the context of the parties’ identical photography services, ART is at best
suggestive and thus conceptually weak, because photography is an artistic
discipline.4 See e.g. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 752 (Fed. Cir. 1985)). See also Packard Press, Inc. v. Hewlett-Packard Co.,
227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000) (“it is proper to give greater
weight to the PACKARD portion of the PACKARD TECHNOLOGIES mark on the
ground that the word ‘technology’ is highly suggestive/merely descriptive with respect
to the services at issue”).

4 Applicant’s disclaimer of NATURE ART is essentially an admission that the term is merely
descriptive or generic. In re Carlson, 91 USPQ2d 1198, 1200 (TTAB 2009); Bass Pro
Trademarks LLC v. Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1851 (TTAB 2008). See
also Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB
2013), aff’d mem., 565 Fed. Appx. 900 (Fed. Cir. 2014).
Serial No. 88404589
6
The marks also convey similar meanings and create similar commercial
impressions, because they both combine “creative” and “nature” in the same order.
Applicant makes the point that in Registrant’s mark, the term NATURE may relate
to “the consumers’ disposition or temperament (i.e. their nature),” whereas in
Applicant’s mark the term is intended to refer to “wildlife and NATURE (i.e., the
external world).” 7 TTABVUE 8; November 2, 2020 Request for Reconsideration
TSDR 17-34. However, the fact remains that Applicant and Registrant both use the
same terms in the same order connection with the same services, and there is no
evidence that consumers would perceive these terms differently in one mark than the
other. In any event, even if consumers perceived the distinction Applicant makes, the
terms still convey similar meanings and commercial impressions because they focus
on creativity in the context of photography or art. That is, the marks convey creative
photography or art, even if consumers perceive Applicant’s mark as a reference to
creative nature and wildlife photography, and Registrant’s as a reference to creative
photographers or creative photography coaches or coaching.
In short, the marks are similar because Applicant’s mark incorporates the entirety
of Registrant’s mark, and merely adds the conceptually weak term ART to the end of
it. Applicant’s mark could even be perceived as a brand extension of Registrant’s
mark, and some consumers could very well assume from the marks and their
structure that there is some type of affiliation between Applicant and Registrant. In
any event, the marks are more than similar enough to be likely to cause confusion
when they are used for identical services, and therefore this factor also weighs in
Serial No. 88404589
7
favor of finding a likelihood of confusion.
C. Conditions of Sale and Purchaser Sophistication
Applicant argues that photography services are “expensive” and that consumers
of these services are “sophisticated.” 7 TTABVUE 9. There is no evidence supporting
this mere argument, and therefore it is unpersuasive. Cai v. Diamond Hong, Inc., 901
F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) ("Attorney argument is no
substitute for evidence.") (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d
1276, 1284, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)); see also In re U.S. Tsubaki, Inc.,
109 USPQ2d 2002, 2006 (TTAB 2014) (finding that there was no proof to support the
statements in the record by counsel).
In any event, we must base our decision on the “least sophisticated potential
purchasers” for the services, which as identified could encompass inexpensive
photography services, such as photos taken for a local business’s advertisement in a
small town publication (commercial photography as identified in the cited
registration) or photos of a gardener’s work for inclusion on her business card (nature
photography as identified in the involved application). Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162-63 (Fed. Cir. 2014).
This factor is neutral.
D. Fame of the Cited Mark
Applicant correctly points out that there is no evidence that the cited mark is
famous, 7 TTABVUE 10, but that is irrelevant. Indeed, “the owner of the cited
registration is not a party to this ex parte appeal, and the Examining Attorney is
under no obligation to demonstrate the fame of a cited mark.” In re Integrated
Serial No. 88404589
8
Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). See also In re Majestic Distilling
Co., 65 USPQ2d at 1205 (“Although we have previously held that the fame of a
registered mark is relevant to likelihood of confusion, DuPont, 476 F.2d at 1361, 177
USPQ at 567 (factor five), we decline to establish the converse rule that likelihood of
confusion is precluded by a registered mark’s not being famous.”); In re Mr. Recipe,
LLC, 118 USPQ2d 1084, 1086 (TTAB 2016) (“in 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 Davey Prods. Pty Ltd. 92 USPQ2d 1198, 1204 (TTAB
2009) (“[I]t is settled that the absence of such evidence is not particularly significant
in the context of an ex parte proceeding.”); In re Big Pig Inc., 81 USPQ2d 1436, 1439
(TTAB 2006) (“It is not necessary that a registered mark be famous to be entitled to
protection against a confusingly similar mark.”). This factor is also neutral.
E. Actual Confusion
Applicant’s reliance on the absence of actual confusion, 7 TTABVUE 11, is
misplaced, because there is no evidence regarding the extent of Applicant’s use of his
mark, or the extent of Registrant’s use of the cited mark. Therefore, we cannot gauge
whether or the extent to which there has been an opportunity for confusion to occur
if it were likely to occur. See Nina Ricci S.A.R.L. v. E.T.F. Enters. Inc., 889 F.2d 1070,
12 USPQ2d 1901, 1903 (Fed. Cir. 1989) (“The absence of any showing of actual
confusion is of very little, if any, probative value here because (1) no evidence was
presented as to the extent of ETF’s use of the VITTORIO RICCI mark on the
merchandise in question in prior years ….”); In re Kangaroos U.S.A., 223 USPQ 1025,
1026-27 (TTAB 1984). In any event, a lack of evidence of actual confusion carries little
Serial No. 88404589
9
weight in an ex parte case such as this. Majestic Distilling, 65 USPQ2d at 1205. “[I]n
this ex parte context, there has been no opportunity to hear from Registrant about
whether it is aware of any reported instances of confusion.” In re Guild Mortg. Co.,
2020 USPQ2d 10279 *7 (TTAB 2020). “[I]t is unnecessary to show actual confusion
in establishing likelihood of confusion.” Giant Food, Inc. v. Nation’s Foodservice, Inc.,
710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983). This factor is also neutral.
F. The Number and Nature of Similar Marks Used on Similar Goods
Applicant argues that the cited mark is commercially weak based on third-party
uses of similar marks for similar goods. However, the only evidence Applicant relies
upon in support of this argument is several third-party registrations for marks which
include the word CREATIVE for photography-related services. November 2, 2020
Request for Reconsideration TSDR 38-44. Third-party registrations do not establish
that a mark is in use, and therefore there is no basis to find that Registrant’s mark
is commercially weak. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
(TTAB 1998) (third-party registrations are “not evidence that the marks shown
therein are in use on a commercial scale or that the public is familiar with them”).
This factor is also neutral.5

5 Sometimes, third-party registrations may function as a dictionary, by showing “the sense
in which a mark is used in ordinary parlance.” Juice Generation, Inc. v. GS Enterprises, LLC,
794 F.2d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015). Here, we accept that CREATIVE is
suggestive and thus conceptually weak for photography services. Nevertheless, we must
presume that the cited mark is inherently distinctive. In re Fiesta Palms, 85 USPQ2d 1360,
1363 (TTAB 2007) (citing In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35
(Fed. Cir. 1997)). Moreover, it is settled “that likelihood of confusion, mistake or deception is
to be avoided as much between weak marks as between strong marks.” In re Colonial Stores,
Serial No. 88404589
10
II. Conclusion
The services are legally identical in part and travel in the same channels of trade
to the same consumers. The marks are similar. While Registrant’s cited mark is
conceptually fairly weak, we must presume that it is inherently distinctive, and it is
entitled to protection against Applicant’s similar mark. Confusion is likely.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.

Inc., 216 USPQ 793, 795 (TTAB 1982) (citing King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974)).