RLP Ventures, LLCv.Windgate Consulting, Inc.

Trademark Trial and Appeal Board

Jan 4, 2021

91240378 (T.T.A.B. Jan. 4, 2021)

Mailed: January 4, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ RLP Ventures, LLC v. Windgate Consulting, Inc. _____ Opposition No. 91240378 _____ Ramona Prioleau of RLP VENTURES LLC, Opposer acting pro se. Edwin Windgate of WINDGATE CONSULTING INC., Applicant acting pro se. _____ Before Zervas, Dunn, and Lebow, Administrative Trademark Judges. Opinion by Dunn, Administrative Trademark Judge: Windgate Consulting, Inc. (Applicant) filed an application to register the mark for “Software as a service (SAAS) services featuring software for a job board to help people find work and businesses to find job seekers” in International Class 42.1 The application includes the statements “The mark consists of the name 1 Application Serial No. 87611099 filed September 16, 2017 based on an allegation of August 1, 2017 as the date of first use anywhere and in commerce. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Opposition No. 91240378 - 2 - ‘mosaic’ with the ‘ai’ in orange, and the other characters in gray denotes our name ‘mosaic ai’. Taking advantage of the ‘ai’ in the middle of the word ‘mosaic,’” and “The color(s) gray and orange is/are claimed as a feature of the mark.” RLP Ventures, LLC (Opposer) opposes registration of Applicant’s mark on the grounds, as amended, of likelihood of confusion and nonuse. Opposer pleads ownership of the previously used mark MOSAEC for a variety of software and online services, including offering a job board.2 Applicant filed an informal answer which we construe as a general denial of the allegations of the amended notice of opposition. Fed. R. Civ. P. 8(b)(3). Applicant did not submit any testimony or other type of evidence during its trial period3, and did not file a brief. I. RECORD The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Applicant’s involved application file. The record also includes four declarations and a notice of reliance. 2 Opposer also pleaded ownership of registrations but, as discussed in the decision, failed to properly make the registrations of record. 3 Because Applicant filed no evidence and provided Opposer with nothing to rebut, we give no consideration to the testimony and second notice of reliance filed during Opposer’s rebuttal testimony period (16 and 17 TTABVUE). “It is axiomatic that rebuttal testimony may be used only to rebut evidence offered by the defendant.” Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1958 (TTAB 2008). Accord Wet Seal Inc. v. FD Mgmt. Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (“This rebuttal evidence was not submitted for the proper purpose of denying, explaining or discrediting applicant’s case but instead was clearly an attempt by opposer to strengthen its case-in-chief.”). Opposition No. 91240378 - 3 - A. DECLARATIONS i. Declaration of Ramona Prioleau, Opposer’s founder and Principal, on Opposer’s use of the MOSAEC mark, and exhibits including4:  Email printout (i) from domain register acknowledging application for MOSAEC.COM; (ii) from U.S. System for Award Management (SAM) acknowledging registration of Ramona Prioleau; and (iii) from Opposer to users of MOSAEC website with links to website articles5  A 2011 syllabus entitled The Business of Publishing which does not mention the MOSAEC mark;6  “Market information for Opposer’s mark” comprising untitled and undated list of countries and “% of audience” which does not list Opposer or the MOSAEC mark;7  Opposer’s interrogatories and document requests, but no responses thereto;8 ii. Declaration of Samantha Miller, visitor to Opposer’s website, on Opposer’s priority and use of the MOSAEC mark.9 iii. Declaration of Dr. Pamela Perry, visitor, financial contributor and reviewer for Opposer’s website, on Opposer’s priority and use of the MOSAEC mark; 10 iv. Declaration of Kescia Prioleau, visitor to Opposer’s website, on Opposer’s priority and use of the MOSAEC mark;11 4 15 TTABVUE 2-9. The exhibits were attached to the notice of reliance, but are not appropriate for submission by notice of reliance. Because the documents also were described in the testimony, we list them here. However, the scant and uninformative descriptions of the documents in the declaration greatly circumscribe their probative value. 5 14 TTABVUE 53, 70, 112-113. 6 14 TTABVUE 66. 7 14 TTABVUE 73. 8 14 TTABVUE 75-98. 9 14 TTABVUE 10-16. 10 14 TTABVUE 17-22. 11 14 TTABVUE 23-28. Opposition No. 91240378 - 4 - B. NOTICE OF RELIANCE AND ACCOMPANYING EXHIBITS:  Copy of Opposer’s application Serial No. 87226106 filed November 4, 2016 for the mark MOSAEC;12  Copies of registration certificates for Opposer’s Registration Nos. 5166424 issued March 21, 2017, 5284032 issued September 12, 2017, and 5409856 issued February 27, 2018, all for the mark MOSAEC;13  Copy of subject application Serial No. 87611099 for the mark MOSAIC filed September 16, 2017;14  Webpages from Opposer’s website printed on June 9, 2019 and August 14, 2019;15  Webpages from Opposer’s social media accounts dated October 2, 2016 and June 9, 2019;16  Webpages from YouTube Analytics dated September 21, 2016;17  Webpages for Opposer’s website from Wayback Machine printed August 14, 2019;18  Opposer’s Request for Admissions and Respondent’s Responses to Opposer’s Request for Admissions;19  Webpage from New York Department of State dated March 6, 2018 with Opposer entity information;20 12 14 TTABVUE 9-24. 13 14 TTABVUE 25-27. 14 14 TTABVUE 29-34. As noted above, the application file for the opposed application automatically is of record. 15 14 TTABVUE 55-65, 67-69, 115-128, 130-131. 16 14 TTABVUE 69, 135-142. 17 14 TTABVUE 36-43. 18 14 TTABVUE 130-131, 133. 19 14 TTABVUE 46-49 (responses), 100-110 (requests). 20 14 TTABVUE 51-52. Opposition No. 91240378 - 5 -  Webpage from System for Award Management (SAM) printed March 8, 2018 about how to do business with the U.S. government;21 II. EVIDENTIARY ISSUE REGARDING OPPOSER’S PLEADED REGISTRATIONS In the amended notice of opposition Opposer pleaded ownership of Registration Nos. 5166424, 5284032, and 5409856, and pending application Serial No. 87226106, which issued June 18, 2019 as Registration No. 5778338, all for the mark MOSAEC. Registrations certificates are public records and are admitted for what they show on their face. Trademark Rule 2.122(e); FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1236 (TTAB 2014); Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1035 (TTAB 2010). However, absent evidence that the registrations remains in force, the registration certificates have no probative value other than to show that they once issued. Bond v. Taylor, 119 USPQ2d 1049, 1054-55 (TTAB 2016). In order to rely on pleaded registrations, an opposer must submit into the record not only the registration, but also proof that the registration is subsisting and is owned by the opposer. See Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1713 (Fed. Cir. 1991). Because Trademark Act Section 7(b), 15 US.C. 1057(b), presumptions of ownership, validity and the exclusive right to use accorded to a registration on the Principal Register accrue only to the benefit of the owner, the Board has simple and clear rules for an owner submitting its pleaded registration into the record. See Hewlett-Packard Co. v. Olympus Corp., 18 USPQ2d at 1713 (“These rules [for the submission of pleaded registrations] are simple and clear, but 21 14 TTABVUE 71. Opposition No. 91240378 - 6 - Hewlett did not follow them.”). To place a pleaded registration into the record, the Board will accept testimony authenticating the current status and title of the registration, a certified copy of the registration, or “a current copy of information from the electronic database records of the Office showing the current status and title of the registration.” See Trademark Rule 2.122(d)(1); TBMP 704.03(b)(1)(A). Opposer submitted the file wrapper for pleaded application Serial No. 87226106; and photocopies of the original registration certificates for its pleaded registrations by notice of reliance.22 Sterling Jewelers Inc. v. Romance & Co., 110 USPQ2d 1598, 1601 (TTAB 2014) (“The Board has routinely held that the submission of a photocopy of a pleaded registration, by itself, is insufficient for purposes of establishing a party’s current ownership, or the current status, of the registration, and therefore does not suffice to make the registration of record.”); In re Binion, 93 USPQ2d 1531, 1535 n.3 (TTAB 2009) (“Applications are evidence of nothing more than that they were filed.”). Applicant has not admitted Opposer’s ownership or the current status of the pleaded registrations. Ms. Prioleau only states “Opposer offers the goods identified in Application No. 87/226,106 under the ’MOSAEC’ trademark. In addition, Opposer offers the services identified in Registration Nos. 5,409,856, 5,284,032 and 5,166,424 under the ’MOSAEC’ trademark.”23 This single reference does not establish the current ownership or status of the pleaded registrations. 22 14 TTABVUE 9-24 (application), 25-27 (registrations). 23 15 TTABVUE 2. Opposition No. 91240378 - 7 - Accordingly, Opposer has not placed its pleaded registrations into the record for the purposes of relying on the statutory presumptions.24 III. ENTITLEMENT TO A STATUTORY CAUSE OF ACTION25 Entitlement to a statutory cause of action is a threshold issue in every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26 (2014)). A party in the position of plaintiff may oppose registration of a mark when such opposition is within its zone of interests and the plaintiff has a reasonable belief in damage that is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-7 (Fed. Cir. 2020) (holding that the test in Lexmark is met by demonstrating a real interest in opposing or cancelling a registration of a mark, which satisfies the zone-of-interests requirement, and demonstrating a reasonable belief in damage by the registration of a mark, which demonstrates damage proximately caused by registration of the mark). 24 Opposer offered the identical submission in support of its June 8, 2020 motion for summary judgment, and the Board’s November 26, 2019 order denying the motion informed Opposer that this submission was insufficient to make the registrations part of the record. 12 TTABVUE 8 n.8. The order also informed Opposer that the registration newly-issued from the pleaded application would have to be filed during trial to be considered. 12 TTABVUE 2 n.2. 25 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this inquiry as entitlement to bring a statutory cause of action. Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain applicable. Opposition No. 91240378 - 8 - Here, Opposer has submitted testimony averring “The MOSAEC platform also uses computer software for a job board for use by job seekers,”26 a service similar to the MOSAIC services identified in the opposed application. Opposer thus possesses a real interest in the proceeding and is not a mere intermeddler. See Toufigh v. Persona Parfum Inc., 95 USPQ2d 1872, 1874 (TTAB 2010) (“we consider that petitioner has shown a reasonable basis for a belief that he is damaged by the registration sought to be cancelled by virtue of the fact that both parties' marks are identical, and their goods are at least arguably related”). Accordingly, Opposer has established its entitlement to bring this opposition proceeding. IV. NONUSE Under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), a mark may not be registered unless it is “used in commerce.” Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides that “[t]he term ‘use in commerce’ means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” In a use-based application, when at the time of application there was no use on any of the goods or services specified, the application and resulting registration is void. Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357, 90 USPQ2d 1301, 1305 (Fed. Cir. 2009) (“The registration of a mark that does not meet the use requirement is void ab initio.”). Applicant filed its use-based application to register the mark MOSAIC for “software as a service (SAAS) services featuring software for a job board to help people find work and businesses to find job seekers” on September 16, 2017. 26 15 TTABVUE 4. Opposition No. 91240378 - 9 - In support of the nonuse claim, Opposer contends “Applicant’s discovery responses indicate that Applicant’s Mark was not used in commerce for the services identified in the Applicant’s application on the Application Date.”27 In relevant part, Opposer’s requests for admission and Applicant’s responses, referring to Applicant’s use as of September 16, 2017 when the application was filed, are set forth below: 28 REQUEST FOR ADMISSION NO. 20: Admit that Applicant has not provided Opposer with documentary evidence dated on or before September 16, 2017 that indicates Applicant’s use of Applicant’s Mark for “Software as a service (SAAS) services featuring software for a job board to help people find work and businesses to find job seekers”. 20. I, Ed Windgate did provide evidence that our mark was in use in commerce. REQUEST FOR ADMISSION NO. 21: Admit that Applicant’s Application to the USPTO was made on these bases - first use and use in interstate commerce since Aug. 1, 2017. 21. I, Ed Windgate, believe the first use of our mark we October 26, 2017. *** REQUEST FOR ADMISSION NO. 23: Admit that the specimen that Applicant submitted with Applicant’s Application is not dated August 1, 2017. 23. I, Ed Windgate, believe the original filing was September 16, 2017. So, not August 1, 2017. REQUEST FOR ADMISSION NO. 24: Admit that the specimen that Applicant submitted with Applicant’s Application does not document Applicant’s applied for services of - Software as a service (SAAS) services featuring software for a job board to help people find work and businesses to find job seekers. 24. I, Ed Windgate, did submit multiple documents showing our website, with the https//:mosaic.ai URL (that is public across the world, this world wide web, www). The “help people find work” could have been expanded to explain in better detail, what the image or our website says, that was submitted with the initial application on September 17, 2017. The text on the image of the site states “Get a great job, and build a better resume, with your own artificial intelligent agent”. The services stated is using AI to build a resume, and find a better job. In addition, there is a chat bot. I’d say this is much more expansive 27 18 TTABVUE 19. 28 14 TTABVUE 108 (request) 47 (response). Opposition No. 91240378 - 10 - an offering than a traditional keyword search. Yet, still offers a job board. Even a job board that suggests jobs without using a traditional keyword search. But, just having a conversation with an AI career again, after it reads a person’s resume. REQUEST FOR ADMISSION NO. 25: Admit that Applicant has not provided Opposer with documentary evidence that indicates Applicant’s first use of Applicant’s Mark for Applicant’s Services as of August 1, 2017. 25. I, Ed Windgate, have provided documented use of our first use of the mark. It is found here from Dec 2ⁿᵈ, 2016 … https://web.archive.org/web/20170623040100/https://mosaic.ai/ REQUEST FOR ADMISSION NO. 26: Admit that Applicant has not provided Opposer with documentary evidence that indicates Applicant’s use in commerce of Applicant’s Mark for Applicant’s Services as of August 1, 2017. 26. I, Ed Windgate, have provided documented evidence of use in commerce. Another site is from Venture Beat magazine from June 22, 2017. Before August 1, 2017… https://venturebeat.com/2017/06/22/5-chatbots-that-will-help-you- find-a-job/ REQUEST FOR ADMISSION NO. 27: Admit that Applicant has not provided Opposer with documentary evidence that indicates Applicant’s use in interstate commerce of Applicant’s Mark for Applicant’s Services as of September 16, 2017. 27. As stated above, Mosaic AI was available for interstate commerce, and was in use across the country. REQUEST FOR ADMISSION NO. 28: Admit that Applicant had not used Applicant’s Mark for Applicant’s Services in interstate commerce of as of September 16, 2017. 28. As stated above, the site was available to the public, reviewed the press such as Venture Beat and Business Insider magazine before September 16, 2017. People had signed up. This information is confidential as to specific names of people. The purpose behind the requests for admission procedure is “to facilitate proof with respect to issues that cannot be eliminated from the case, and to narrow the issues by eliminating those that can be.” Rule 36 of the Federal Rules of Civil Procedure, Notes of Advisory Committee on Rules--1970 Amendment. See LaForte v. Horner, 833 F.2d 977, 983 (Fed. Cir. 1987) (“requests for admissions are designed to Opposition No. 91240378 - 11 - secure the just, speedy and inexpensive determination of actions by avoiding the time, trouble and expense required to prove undisputed facts which should be admitted”); The Phillies v. Phila. Consol. Holding Corp., 107 USPQ2d 2149, 2152 (TTAB 2013) (“In serving requests for admission, a party asks its adversary to stipulate to certain matters as a means of reducing issues for trial.”). Opposer relies on Applicant’s response to Request for Admission No. 21 in which Applicant states that its first use was October 26, 2017, and not September 16, 2017 as an admission that Applicant’s application was void ab initio because the mark was not in use on the date the use-based application was filed. We cannot agree. Applicant’s unorthodox response does not admit Opposer’s request, and does not fail to respond (which would constitute an admission). The denial of a request for admission establishes neither the truth nor the falsity of the assertion, but rather leaves the matter for proof at trial. See Life Zone Inc. v. Middleman Grp., Inc., 87 USPQ2d 1953, 1957 n.10 (TTAB 2008). Opposer had the option to file a motion to test the sufficiency of the response to the request for admissions but chose not to do so, and the inability to rely on the response is a consequence of that choice. In addition, we must observe that Applicant also “admitted” that its mark was in use on October 26, 2017 (No. 21), September 17, 2017 (No. 24), December 2, 2016 (No. 25), June 22, 2017 (No. 26), and September 16, 2017 (No. 28). We see no reason to find the one date which fell after Applicant’s filing date to be any more or less of an admission than the five dates which fell on or before Applicant’s filing date. To the extent that Opposer argues with respect to Applicant’s “different alleged dates of use” Opposition No. 91240378 - 12 - that “Applicant has not substantiated that claim [of other dates] with evidence,” Opposer mistakes the burden of proof on the nonuse claim, which lies with Opposer. On balance, and taking into account the totality of the evidence of record, we find that Opposer has failed to prove by a preponderance of the evidence that the application was void ab initio because the mark was not in use with the services at the time the application was filed. V. PRIORITY OF USE AND LIKELIHOOD OF CONFUSION Because Opposer failed to prove its ownership and the current status of its pleaded registrations, our analysis of Opposer’s likelihood of confusion claim must be based on Opposer’s alleged prior common law use of the MOSAEC mark demonstrated by the evidence of record. To prevail on likelihood of confusion based on a previously used mark, it is the Opposer’s burden to prove both priority of use and likelihood of confusion by a preponderance of the evidence. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir. 2000). C. PRIORITY Opposer must prove use of MOSAEC prior to Applicant’s September 16, 2017 application filing date. Hydro-Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (“The common law and the Lanham Act require that trademark ownership be accorded to the first bona fide user.”); Levi Strauss & Co. v. R. Josephs Sportswear, 28 USPQ2d 1464, 1467 (TTAB 1993) (“[I]n the absence of proof of use, the filing date of the application . . . is treated as the earliest use date on which the applicant may rely.”). Opposer’s proprietary rights may arise from “prior trademark or service mark use, prior use as a trade name, prior use Opposition No. 91240378 - 13 - analogous to trademark or service mark use, or any other use sufficient to establish proprietary rights.” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002). Under Trademark Act Section 45, “a mark shall be deemed to be in use in commerce … on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce ….” 15 U.S.C. § 1127. See Couture v. Playdom, Inc., 778 F.3d 1379, 113 USPQ2d 2042, 2043 (Fed. Cir. 2015) (“On its face, the statute is clear that a mark for services is used in commerce only when both [1] ‘it is used or displayed in the sale or advertising of services and [2] the services are rendered ….’”). To function as a service mark, a mark must be used in a manner that creates in the minds of potential consumers a direct association between the mark and the services. In re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ 456, 457 (CCPA 1973). In support of its priority claim, Opposer submitted three declarations from individuals who include essentially the same relevant averments:29 I have been familiar with Opposer’s MOSAEC-platform since 1998 as a social media and e-commerce entity, notably, in connection with literature, world culture, music, sports, education, youth, adults, extracurricular activities, a job board as well as to advance personal, educational, and career goals and in schools for philanthropic purposes. During the period from 1998 to date, I have visited the Opposer’s platform to ... search [or review] the job board. On December 25, 2003, I received the email from the Opposer, under the subject “Antwone Fisher, Avery Brooks, 25th Hour, Drumline (Hour, Drumline” 29 15 TTABVUE 10-11 (Miller declaration); 17-18 (Perry declaration); 23-24 (Kescia Prioleau declaration). Opposition No. 91240378 - 14 - (which is attached hereto as Example A, …) and that included the link http://www.mosaec.com/jobs/. The same referenced email is attached to each declaration and is reproduced below: Opposition No. 91240378 - 15 - Opposition No. 91240378 - 16 - Opposition No. 91240378 - 17 - A single seventeen year-old email message with a hyperlink that includes the mark and the word “jobs” is extremely sparse documentation of prior use. However, the three declarations from Ms. Miller, Dr. Perry, and Ms. Keschia Prioleau plainly state that each is “familiar with Opposer’s MOSAEC-platform since 1998 as a social media and e-commerce entity, notably, in connection with … a job board;” that “from 1998 to date,” each declarant “visited the Opposer’s platform to … search [or review] the job board;” and that each received the email from Opposer with the hyperlink that includes the mark and the word “jobs.” Because the email includes the hyperlink, we construe the references to Opposer’s “platform” to Opposer’s “website.” While the declarations lack persuasive detail in the form of any description of the job board, or the source of any jobs listed on the board, or examples of jobs posted there, the declarations are consistent and uncontroverted in asserting personal knowledge of the use of the mark MOSAEC in connection with a job board since 1998, and the 2003 email serves as an advertisement of the MOSAEC job board. Accordingly, we find that Opposer has established that the mark MOSAEC was used in both advertising and rendering job board services prior to Applicant’s September 16, 2017 filing date and that Opposer has priority. D. LIKELIHOOD OF CONFUSION Our determination of the issue of likelihood of confusion is based on an analysis of all 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, 567 (CCPA 1973) (“DuPont”). “Not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered.” See Cai v. Diamond Hong, Opposition No. 91240378 - 18 - Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). But 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)). In every Section 2(d) case, two key factors are the similarity or dissimilarity of the marks and the goods or services. 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 [or services] and differences in the marks.”). 1. SIMILARITY OF THE SERVICES AND TRADE CHANNELS The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use” and the third factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Applicant’s services, once again, are: “software as a service (SAAS) services featuring software for a job board to help people find work and businesses to find job seekers.” As discussed in connection with Opposer’s priority, the evidence of record demonstrates that Opposer uses the mark MOSAEC with a “job board” accessed through Opposer’s website. The fact that Opposer offers a job board through its website and Applicant offers a job board through software as a service are not distinctions which make the services dissimilar. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d Opposition No. 91240378 - 19 - 1944, 1947-1948 (Fed. Cir. 2006) (“[I]t was proper for the board to ground its determination of relatedness in the fields for which the goods are created, rather than the media format in which they are delivered.”). We find the services overlap in providing a job board, and so are legally identical in part. Given this legal identity, it is presumed that Opposer’s and Applicant’s services travel in the same channels of trade, and appeal to the same class of customers (ordinary job seekers). See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Information Builders Inc., 2020 USPQ2d 10444, *3 (TTAB 2020). We find the factors of similarity of goods and channels of trade weigh in favor of finding a likelihood of confusion. 2. SIMILARITY OR DISSIMILARITY OF THE MARKS We consider the similarity or dissimilarity of Applicant’s mark and Opposer’s MOSAEC mark in their entireties as to appearance, sound, connotation, and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., (No. 18-2236) (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). When the goods or services are identical or virtually identical, the degree of similarity between the marks necessary to support a determination that confusion is likely declines. See Bridgestone Americas Tire Opposition No. 91240378 - 20 - Operations, LLC v. Fed. Corp., 673 F.3d 1330, 1337, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). In terms of appearance, we compare both the literal element, and any stylization and color in the presentation of the mark. Evidence comprising screen shots from Opposer’s website show use of the MOSAEC mark in lower case lettering and employing multiple colors: Figure 1 Opposer's webpage with MOSAEC mark30 Applicant’s mark displays the mark in lower case lettering and claims the colors orange and gray as features of the mark. The stylization used by both parties appears to be a standard font, and does not create a commercial impression separate from the impression created by the literal elements of the mark. Cf. In re Grande Cheese Co., 2 USPQ2d 1447, 1449 (TTAB 1986) (“We think it likely that purchasers … would not see the lettering style or coloring of the generic designations as an indicium of source.”). The different coloring of the letters “AI” in Applicant’s mark does not distinguish the marks because Opposer also shows the last two vowels of its mark in the same color, and, in general, “[t]he 30 15 TTABVUE 20. Opposition No. 91240378 - 21 - coloring of letters does not generally tend to render a mark distinctive.” In re Serial Podcast, LLC, 126 USPQ2d 1061, 1073 (TTAB 2018). Accord TMEP § 807.14(e)(ii) (“In most cases, the color in the lettering is unlikely to have a significant impact on the commercial impression created by the mark.”). We find that neither the stylization nor the color in the Opposer’s mark MOSAEC and Applicant’s mark MOSIAC create a commercial impression separate from the impression created by the literal terms. See Bos. Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1591-1592 (TTAB 2007)) (“It has frequently been stated that it is the word portion of marks, rather than the particular display of the words, that is likely to have a greater impact on purchasers and be remembered by them.”). With respect to the literal terms, the marks MOSAEC and MOSAIC have an almost identical appearance, sharing five of six letters, and varying only in the third vowel in the third syllable. The term “mosaic” is defined as “surface decoration made by inlaying small pieces of variously colored material to form pictures or patterns.”31 Because MOSAEC has an identical structure and number of letters as “mosaic,” and the sounds made by the letters “I” and “E” when followed by the letter “C” are similar, we find that both marks are highly similar if not identical in sound and pronunciation. 31 Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/mosaic. Accessed 21 Dec. 2020. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). We take judicial notice of this definition of “mosaic.” Opposition No. 91240378 - 22 - Because MOSAIC is a defined word, its connotation is derives from the definition. See Stratus Networks, Inc. v. UBTA-UBET Communs. Inc., 955 F.3d 994, 2020 USPQ2d 10341, *1 (Fed. Cir. 2020) (“The Board relied on dictionary definitions of the terms ‘stratus’ and ‘strata’ to evaluate similarities in the connotation of each mark.”). Based on the visual and phonetic similarities to the term MOSAIC, we find that the term MOSAEC is likely to be perceived as a misspelling of MOSAIC and therefore has the same connotation. The Federal Circuit and the Board have found that the phonetic equivalent of a word will be perceived as the known word. See In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“[T]here is little room in which to debate the similarity between ROPELOCK and ROPELOK in appearance and sound”). See also the following Board cases: In re Tapco Int’l Corp., 122 USPQ2d 1369, 1372 (TTAB 2017) (“Although we note that KLEER has a non-standard spelling, Applicant has provided no evidence that consumers would perceive KLEER as something other than the phonetic equivalent of ‘clear.’”); In re Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017) (“We find that SHARPIN evokes an immediate association with the phonetically-identical and otherwise virtually-identical word ‘sharpen’”); In re Organik Tech. Inc., 41 USPQ2d 1690, 1694 (TTAB 1997) (“ORGANIK, which is the phonetic equivalent of the term ‘organic,’ is deceptive”); Hi-Shear Corp. v. Nat’l Auto. Parts Ass’n, 152 USPQ 341, 343 (TTAB 1966) (HI-TORQUE “is the phonetic equivalent of the words ‘HIGH TORQUE’”). Opposition No. 91240378 - 23 - In sum, we conclude that Applicant’s mark and Opposer’s mark MOSAEC are substantially similar in terms of appearance and sound, and identical in connotation, with MOSAEC being perceived as a misspelling of “mosaic.” Thus, when the marks are considered in their entireties, we find that they are substantially similar in their overall commercial impression. Accordingly, this DuPont factor weighs in favor of finding a likelihood of confusion. VI. CONCLUSION In view of the overlapping nature of the job board services and trade channels for the services offered by Opposer and Applicant, and the substantial similarities between the marks MOSAEC and , we find confusion likely. Decision: The opposition is sustained and registration to Applicant’s application Serial No. 87611099 is refused.