Patriot Bank

Trademark Trial and Appeal Board

Feb 21, 2007

No. 78454914 (T.T.A.B. Feb. 21, 2007)

Mailed: February 21, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Patriot Bank
________

Serial Nos. 78454907 and 784549141
_______

Zachary D. Messa of Johnson, Pope, Bokor, Ruppel & Burns,
LLP for Patriot Bank.

Matthew J. McDowell2, Trademark Examining Attorney, Law
Office 101 (Ronald R. Sussman, Managing Attorney).
_______

Before Kuhlke, Cataldo and Mermelstein,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applications were filed by Patriot Bank, a Florida
corporation, to register the mark PATRIOT BANK in standard
character form on the Principal Register for “banking

1 Applicant’s July 5, 2006 motion to consolidate its appeals of
the examining attorney’s refusal to register the marks in these
applications was granted in a Board order issued on July 8, 2006.

2 The above applications originally were examined by another
examining attorney, but subsequently were reassigned to the
examining attorney whose name is shown above.

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser Nos. 78454907 and 78454914
2
services,” in International Class 363; and the mark shown
below on the Principal Register, also for “banking
services” in International Class 36.4

The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s marks, as intended to be used in connection
with applicant’s services, so resemble the mark shown
below, previously registered on the Principal Register for
“mortgage financing and mortgage banking services,” in
International Class 365 as to be likely to cause confusion.

3 Application Serial No. 78454907 was filed July 22, 2004, based
upon applicant’s allegation of a bona fide intent to use the mark
in commerce. In response to a requirement by the examining
attorney, applicant disclaimed the exclusive right to use “BANK”
apart from the mark as shown.

4 Application Serial No. 78454914 was filed July 22, 2004, based
on applicant’s allegation of a bona fide intent to use the mark
in commerce. In response to a requirement by the examining
attorney, applicant disclaimed the exclusive right to use “BANK”
apart from the mark as shown.

5 Registration No. 2064663 issued May 27, 1997 with a disclaimer
of “FUNDING” apart from the mark as shown. Section 8 affidavit
accepted. Renewed.

Ser Nos. 78454907 and 78454914
3

When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed
consolidated briefs on the matter under appeal.6
Applicant argues that the examining attorney
improperly dissected its marks as well as the mark in the
cited registration in determining that they are confusingly
similar; that the term “PATRIOT” shared by applicant’s mark
and that of registrant is a weak term both in the financial
field and in general; and that, taken as a whole,
applicant’s marks create different commercial impressions
from that of the cited mark. Applicant further argues that
third party registration of similar “PATRIOT” marks for

6 We note that applicant enclosed as exhibits to its brief copies
of its original applications; the examining attorney’s Office
Actions; applicant’s responses thereto and its motion papers
before the Board; the evidence submitted with each of these
filings; and orders and notices generated by the Trademark
Examining Operation and Board herein. Inasmuch as these filings,
by their very nature, are already of record in these consolidated
proceedings, applicant’s submission of copies thereof with its
brief is unnecessary and duplicative.

We note in addition that the evidentiary record in these
consolidated applications is essentially identical.

Ser Nos. 78454907 and 78454914
4
related services favors registration of the applied-for
marks in this case; that consumers of both applicant’s and
registrant’s services are sophisticated as a result of the
importance of selecting a financial institution; that
applicant is located in Florida whereas registrant confines
its services to the New England area, thus reducing any
likelihood of confusion; and that the case of Sun Banks of
Florida, Inc. v. Sun Federal Savings and Loan Association,
651 F.2d 311, 211 USPQ 855 (5th Cir. 1981) “is controlling
and the Examining Attorney should follow the analysis set
forth therein which holds that Applicant’s Marks are not
likely to cause confusion with Registrant’s Mark” (brief,
p. 13).
The examining attorney argues that applicant’s marks
share the dominant term “PATRIOT” with the mark in the
cited registration; that “PATRIOT” is the first word in
both of applicant’s marks as well as that of registrant;
that, as a result, the term “PATRIOT” is most likely to be
remembered by consumers; that “PATRIOT” is defined as “a
person who loves, supports and defends his or her country
and its interests with devotion,” or “a U.S. Army
antiaircraft missile with a range of 37 mi. (60 km) and a
200 lb. (90 kg) warhead, launched from a tracked vehicle
Ser Nos. 78454907 and 78454914
5
with radar and computer guidance and fire control”7 (brief,
unnumbered p. 3); that the term “PATRIOT” thus is arbitrary
and strong as applied to the recited services; that the
evidence submitted by applicant is insufficient to
establish that the term “PATRIOT” is a weak term as applied
to the recited services; that the remaining wording and/or
design elements in applicant’s and registrant’s marks are
less significant in establishing their overall commercial
impressions; and that, as a result, applicant’s marks when
considered in their entireties are confusingly similar to
the mark in the cited registration. The examining attorney
further argues that applicant’s services are closely
related to those of registrant; that the services as
recited in the applications at issue and the cited
registration contain no limitations as to the channels of
trade or class of purchasers thereof; that the services
thus may be encountered by the same consumers; and that
applicant has introduced no evidence to support its claim
that consumers of such services are sophisticated. In

7 The examining attorney relies upon Random House Unabridged
Dictionary, (2d ed. 1998) for this definition. We grant his
request that we take judicial notice of the reference. The Board
may take judicial notice of dictionary entries and other standard
reference works. See University of Notre Dame du Lac v. J.C.
Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); and In re Broyhill
Furniture Industries Inc., 60 USPQ2d 1511 (TTAB 2001).

Ser Nos. 78454907 and 78454914
6
addition, the examining attorney argues that because
neither the applications at issue nor the cited
registration recite any geographic limitations, applicant’s
assertions regarding their respective geographic locations
is irrelevant; that any absence of actual confusion fails
to lessen the likelihood of confusion between these marks;
and that applicant relies upon authority in support of its
position that is neither on point nor binding upon this
Board.
Applicant argues in reply that its evidence of third
party use of the term “PATRIOT” is admissible and shows the
weakness of that term; that particularly given the weakness
of the term “PATRIOT,” its marks differ from that in the
cited registration to such an extent that confusion is
unlikely; and that applicant’s services differ from those
of registrant in that applicant provides commercial banking
services while registrant provides mortgage lending
services.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Ser Nos. 78454907 and 78454914
7
Cir. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531 (Fed. Cir. 1997).
We begin by comparing applicant’s proposed services
with those of registrant. In making our determination
under the second du Pont factor, we look to the services as
identified in the involved application and cited
registration. See Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which the sales of goods are directed.”) See also Paula
Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the
issue of likelihood of confusion must be decided on the
basis of the respective descriptions of goods.”)
Ser Nos. 78454907 and 78454914
8
In this case, applicant’s services are identified as
“banking services” without limitation and registrant’s
services are identified as “mortgage financing and mortgage
banking services.” Thus, on the face of the services as
recited in the applications at issue, “banking services”
encompass registrant’s more narrowly identified “mortgage
banking services.” Put another way, registrant’s “mortgage
banking services” are a subset of applicant’s more
generally identified “banking services.” In addition, the
examining attorney has made of record a number of use-based
third-party registrations which show that various entities
have adopted a single mark for services that are identified
in both applicant’s applications and the cited
registration. See Registration No. 2943396 for the mark
SILICON VALLEY BANK (Section 2(f), BANK disclaimed) for,
inter alia, “banking and related financial services,
mortgage lending and mortgage financing, mortgage banking;”
Registration No. 2830899 for the mark SHAMROCK BANK N.A.
(BANK N.A. disclaimed) for, inter alia, “banking services,
mortgage financing services, mortgage banking services;”
Registration No. 2827968 for the mark ASB and design for,
inter alia, “banking services, mortgage financing services,
mortgage banking services;” Registration No. 2808814 for
the mark ASB AMERISTATE BANK and design (BANK, A, S, and B
Ser Nos. 78454907 and 78454914
9
disclaimed) for, inter alia, “banking services, mortgage
financing services, mortgage banking services;”
Registration No. 3016166 for the mark SUTTON BANK and
design (BANK disclaimed) for, inter alia, “banking,
mortgage banking;” Registration No. 3030185 for the mark
BCNA for, inter alia, “banking, mortgage banking;”
Registration No. 3027054 for the mark SOLANO BANK and
design (BANK disclaimed) for, inter alia, “banking
services, mortgage banking services;” and Registration No.
3008900 for the mark BANK TO GO (BANK disclaimed) for,
inter alia, “banking services, mortgage banking.” Third-
party registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993).
Based upon the services recited in the challenged
applications and the cited registration, as well as the
above evidence of record, we find that applicant’s proposed
services are identical in part and otherwise closely
related to those provided by registrant. As such, this du
Pont factor weighs heavily against applicant.
Ser Nos. 78454907 and 78454914
10
We are not persuaded by applicant’s argument that because
applicant and registrant “operate in two completely
different geographic locations” (brief, p. 10), that is,
Florida and New England, consumers are not likely to be
confused as to the source of their services. First, the
services as identified in the involved applications and the
cited registration do not contain any such limitation. As
noted above, we must base our determination upon the
recitation of services in the involved applications and the
cited registration. See Octocom Systems, Inc. v. Houston
Computers Services Inc., supra. Absent geographical
limitations in the application and registration, our
likelihood of confusion analysis must presume a nationwide
right to use the mark. See Trademark Act § 7(b). Further,
inasmuch as the recitation of services in the cited
registration is not limited to any specific channels of
trade, we presume an overlap and that the services would be
offered in all ordinary trade channels for these services
and to all normal classes of purchasers. See In re
Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992).
Turning to our consideration of the marks at issue, we
note initially that the test under the first du Pont factor
is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
Ser Nos. 78454907 and 78454914
11
the marks are sufficiently similar in terms of their
overall commercial impression that confusion as to the
source of the goods or services offered under the
respective marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). We note that under actual marketing conditions,
consumers do not necessarily have the luxury of making
side-by-side comparisons between marks, and must rely upon
their imperfect recollections. See Dassler KG v. Roller
Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980).
We begin by observing that the mark shown below

in the cited registration consists of the wording PATRIOT
FUNDING and a design consisting of a stylized flag and the
outline of a building. Neither the above-noticed
dictionary definition nor any evidence made of record by
applicant or the examining attorney supports a finding that
PATRIOT has a recognized meaning in the banking or
financial field. Thus, the term PATRIOT is at least
distinctive, if not arbitrary, as used or intended to be
Ser Nos. 78454907 and 78454914
12
used with both registrant’s and applicant’s services. The
disclaimed term FUNDING in registrant’s mark appears to be
descriptive of registrant’s mortgage banking and financing
services, and thus has little or no source distinguishing
quality and is subordinate to PATRIOT. Further, the
relatively minor flag and building designs are visually
less significant than the wording in registrant’s mark.
When a mark comprises both wording and a design, the
wording is normally accorded greater weight because it
would be used by customers to request the identified goods
or services. See In re Appetito Provisions Co., 3 USPQ2d
1553 (TTAB 1987). For these reasons, we consider PATRIOT
to be the dominant feature of the registered mark.
Likewise, with regard to applicant’s PATRIOT BANK mark
(in its application Serial No. 78454907), the term “BANK”
is descriptive of its banking services, and has been
disclaimed by applicant pursuant to the examining
attorney’s requirement. PATRIOT, also being the first word
of the mark, is the dominant portion of applicant’s mark,
and the portion that is most likely to be remembered by
customers. Thus, applicant’s PATRIOT BANK mark shares the
term PATRIOT with registrant’s mark as its most distinctive
component.
With regard to applicant’s mark shown below
Ser Nos. 78454907 and 78454914
13

in its application Serial No. 78454914, we again note that
the term “BANK” is descriptive of its banking services, and
has been disclaimed by applicant. The wording A REVOLUTION
IN COMMUNITY BANKING appears in a typeface that is much
smaller, and thus less visually prominent, than the above
wording PATRIOT BANK. The relatively minor feather pen and
line design also are less visibly prominent than the
wording PATRIOT BANK. Although the marks at issue must be
considered in their entireties, it is well settled that one
feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant
feature in determining the commercial impression created by
the mark. See In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985). In this case, the term
PATRIOT in applicant’s mark in its application Serial No.
78454914, being the first word of the mark and displayed in
large type font, is the dominant portion of applicant’s
mark, and the portion that is most likely to be remembered
by customers. We find that the additional wording and
design in applicant’s mark fails to alter the commercial
Ser Nos. 78454907 and 78454914
14
impression between its mark and that of registrant so that
confusion is unlikely.
We note applicant’s contention regarding differences
between its marks and registrant’s mark. Nevertheless, the
same portion, namely the word PATRIOT, dominates all of the
marks. As such, when we compare the marks, we conclude
that the similarities between applicant’s marks and the
mark in the cited registration far outweigh the
dissimilarities. Therefore, we find that, when the marks
are compared in their entireties, they are sufficiently
similar in appearance, sound, connotation and commercial
impression that, if used in connection with related
services, confusion would be likely to occur. As such,
this du Pont factor also weighs heavily against applicant.
In considering the involved marks, we have taken into
account third-party Registration No. 2810481 of the mark
PATRIOT.8 The registration covers the following services:
“financial trading services, namely, utilizing hardware and
software for providing order routing, order execution,
messaging, and financial data and news for the equity
marketplace.” This evidence is of limited probative value.

8 Applicant submitted a printed copy of this registration from
the United States Patent and Trademark Office’s Trademark
Electronic Search System (TESS).

Ser Nos. 78454907 and 78454914
15
Firstly, the registration is not evidence of use of the
mark shown therein and it is not proof that consumers are
familiar with said mark so as to be accustomed to the
existence of similar marks in the marketplace. See Smith
Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ
462 (CCPA 1973); and Richardson-Vicks, Inc. v. Franklin
Mint Corp., 216 USPQ 989 (TTAB 1982). Secondly, the
registration covers services which are not as closely
related to those in the cited registration as applicant’s
proposed services.9
In addition, applicant submitted from the Office’s
TESS database a list of third party marks containing the
term PATRIOT. For the following reasons, we find this
listing to be unpersuasive. First, a mere listing of third
party applications and registrations is insufficient to
make them of record. See In re Duofold, Inc., 184 USPQ
638, 640 (TTAB 1974) (“[T]he submission of a list of

9 We note that applicant submitted TESS copies of eight other
“registrations” in support of its arguments regarding the
asserted weakness of the term “PATRIOT” in the financial field.
However, four of the marks cited by applicant, in application
Serial Nos. 74294572; 74294573; 75280023; and 76461253 never
matured into registrations. As noted infra, the applications are
of very limited probative value. See In re Phillips-Van Heusen
Corp. 63 USPQ2d 1047, 1049 n.4 (TTAB 2002). In addition, the
remaining four registrations cited by applicant (Registration
Nos. 1280926; 1781736; 1780558; and 2039149) were all cancelled
prior to the filing of the involved applications, and have no
probative value on the question of the relative strength of
registrant’s mark.
Ser Nos. 78454907 and 78454914
16
registrations is insufficient to make them of record.”)
See also TBMP §1208.02 (2d ed. rev. 2004) and the
authorities cited therein. Thus, we agree with the
examining attorney that applicant’s proffered list of third
party applications and registrations is not properly of
record. See Id. Second, applicant's listing of
applications and registrations, even if considered, has
very limited probative value for the following reasons:
there is no indication as to the services recited therein;
a large percentage of the listed applications and
registrations are dead; and the live registrations are too
few in number to be persuasive. It is further settled that
an application made of record in a Board ex parte
proceeding is of very limited probative value, and is
evidence only of its filing. See In re Phillips-Van Heusen
Corp., supra.
Furthermore, we find unpersuasive applicant’s search
summary from the GOOGLE Internet search engine of the
phrase “Patriot Financial” as well as a sample of the
results obtained thereby. First, with regard to the search
summary, these results do not show use of “Patriot
Financial” as a heading, link or content on a website. Use
in a search summary may indicate only that the two words in
an overall phrase appear separately in the website
Ser Nos. 78454907 and 78454914
17
literature, and it is possible that the words are not
visible at all on the linked page. Therefore, the
appearance of “Patriot Financial” in the submitted search
summary is of very limited probative value. See In re
Fitch IBCA, Inc., 64 USPQ2d 1058, 1060 (TTAB 2002). With
regard to the search results themselves, we note that a
number of the submitted “screenshots” from Internet
websites suggest use of PATRIOT formative marks in
connection with financial services, including mortgages.
However, this evidence does not indicate whether these
marks are currently in use in commerce, or the extent to
which the relevant consuming public has been exposed to
such use. As a result, this evidence falls short of
establishing that PATRIOT is a weak term as used in
connection with banking and financial services.
Nor are we persuaded by applicant’s submission of an
Internet listing from a private website of businesses
located in the State of Florida whose corporate names
include the term PATRIOT that the term is weak either in
general or in the financial field. As noted by the
examining attorney, a mere listing of marks is not evidence
that those marks are currently in use in commerce. See In
re Hub Distributing, Inc., 218 USPQ 284 (TTAB 1983). It is
noted in addition that the status of a significant
Ser Nos. 78454907 and 78454914
18
percentage of the listed corporations is inactive,
suggesting that those corporations are not engaged in any
sort of activity. In any event, the listing fails to
include any information regarding the nature of the goods
or services associated with the named corporations.
We accordingly find that, on the record in this case,
the mark in the cited registration is entitled to more than
a narrow scope of protection, particularly in the field of
mortgage banking and mortgage financing services. See
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
1740 (TTAB 1991), aff’d unpub., (Appeal No. 92-1086,
Federal Circuit, June 5, 1992). Cf. In re Broadway
Chicken, Inc., 38 USPQ2d 1559 (TTAB 1996).
The next du Pont factor discussed by applicant is that
of the conditions of sale. Applicant asserts that
purchasers of its services as well as those of registrant
are sophisticated and will exercise care due to the
importance of selecting a financial institution. However,
applicant has submitted no evidence to support its
contention. Moreover, given the overlap discussed above
between banking, mortgage banking and mortgage financing,
even sophisticated consumers may not realize that
applicant’s recited services do not emanate from the same
source as those of registrant. Furthermore, even if some
Ser Nos. 78454907 and 78454914
19
degree of care were exhibited in making the purchasing
decision, because of the similarities between the marks,
even careful purchasers are not likely to distinguish
between them. As a result, we also find this du Pont
factor to weigh against applicant.
Finally, applicant strenuously argues that the
decision of the Fifth Circuit in Sun Banks of Florida, Inc.
v. Sun Federal Savings and Loan Association, 651 F.2d 311,
211 USPQ 855 (5th Cir. 1981) is controlling in this case and
that in light thereof the examining attorney is required to
find that its marks are not confusingly similar to that of
registrant. Applicant’s reliance upon this decision,
however, is misplaced. First, Sun Banks was an inter
partes trademark infringement case involving different
parties, facts, and evidentiary record from the present
case. As such, the decision of the Court in Sun Banks
cannot be said to be controlling herein.10 Furthermore, the
Court in Sun Banks found the plaintiff’s mark to be weak as
a result of extensive evidence of third-party use of
related marks. As noted above, that is not the case here.

10 Applicant does not argue, nor do we find, that the Sun Banks
decision prevents the examining attorney’s refusals to register
under the theory either of collateral estoppel or res judicata.

Ser Nos. 78454907 and 78454914
20
Applicant’s evidence in this case falls short of
demonstrating the asserted weakness of the term PATRIOT in
the financial field. Accordingly, we do not find that the
Sun Banks decision is either controlling or persuasive on
the facts of this proceeding. For the same reasons, we do
not find that the Court’s decision in First Sav. Bank
F.S.B. v. First Bank System, Inc., 101 F.3d 645, 40 USPQ2d
1865 (10th Cir. 1996) to be persuasive of a different result
herein.11
Neither applicant nor the examining attorney has
discussed any of the remaining du Pont factors. We note,
nonetheless, that none seems to be applicable, inasmuch as
we have no evidence with respect to them.
In light of the foregoing, we conclude that consumers
familiar with registrant’s services sold under its above-
referenced mark would be likely to believe, upon
encountering applicant’s services rendered under its marks
that the services originated with or are associated with or
sponsored by the same entity.
Lastly, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
doubt is required to be resolved in favor of the prior

11 The Court in First Sav. Bank also found that plaintiff’s
asserted mark was weak in connection with its services.
Ser Nos. 78454907 and 78454914
21
registrant. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register is affirmed.