Sundown Sounds Cruise, LLC

Trademark Trial and Appeal Board

Nov 3, 2020

88159692 (T.T.A.B. Nov. 3, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: November 3, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sundown Sounds Cruise, LLC
_____

Serial No. 88159692
_____

Herbert W. Larson of Larson & Larson PA
for Sundown Sounds Cruise, LLC

Marco Wright, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Taylor, Heasley, and Dunn
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant, Sundown Sounds Cruise, LLC, seeks registration on the Principal
Register of the standard character mark SUNDOWN SOUNDS CRUISE (with
“SOUNDS CRUISE” disclaimed) for “entertainment services, namely, live musical
entertainment performances held on yachts or cruise ships” in International Class
41.1

1 Application Serial No. 88159692 was filed on October 18, 2018, based on a declared intention
to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
Applicant, which had disclaimed the exclusive right to use “CRUISE,” complied with the
Examining Attorney’s requirement to disclaim “SOUNDS” in its brief, 6 TTABVUE 2. The
Serial No. 88159692
- 2 -
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark SUNDOWN MUSIC FESTIVAL (in
standard characters, with “MUSIC FESTIVAL” disclaimed) for “entertainment
services in the nature of live musical performances; entertainment services in the
nature of a live music festival; entertainment, namely, live music concerts” in
International Class 41.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal proceeded. We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). We base our determination of likelihood of confusion under Section 2(d) on
an analysis of all of the probative facts of record. See In re E. I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In making our
determination, we have considered each DuPont factor for which there is evidence

disclaimer has been entered into the record. The final requirement to disclaim the word
SOUNDS is therefore moot.

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system.

2 Registration No. 5426256, issued on the Principal Register on March 20, 2018.
Serial No. 88159692
- 3 -
and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62
(Fed. Cir. 2019); see Zheng Cai v. Diamond Hong, 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) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”)).
“The Lanham Act provides national protection of trademarks in order to secure
to the owner of the mark the goodwill of his business and to protect the ability of
consumers to distinguish among competing producers.” Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985). Consistent with these
purposes, varying weights may be assigned to each DuPont factor depending on the
evidence presented in a particular case. 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”). “In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and services.” In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media
Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, 5 (TTAB 2019).
A. Similarity of the Services and Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP
Serial No. 88159692
- 4 -
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). A
proper comparison of the services “considers whether ‘the consuming public may
perceive [the respective goods or services of the parties] as related enough to cause
confusion about the source or origin of the goods and services.” In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co.
v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)) quoted
in In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
Applicant’s identified services are, once again, “entertainment services, namely,
live musical entertainment performances held on yachts or cruise ships,” and
Registrant’s services are “entertainment services in the nature of live musical
performances; entertainment services in the nature of a live music festival;
entertainment, namely, live music concerts.”
Applicant contends that:
…Applicant’s primary business model are single evening cruises on a yacht
with music entertainment. The Registrant’s use on the other hand is
terrestrial several-day music festivals.
…
Applicant’s customers for its yachting services will not confuse sea bound
excursions with that of the Registrant’s terrestrial entertainment-festival
related services. Applicant’s services for cruises on a yacht do not exist in
the same channels of trade as the Registrant’s mark – one occurs on land
– the other at sea.
…
the respective customers surely are able to comprehend the difference of a
land-based festival and a cruise of a yacht.3

However, “[t]he issue, of course, is not whether purchasers would confuse the
services, but rather whether there is a likelihood of confusion as to the source of the

3 Applicant’s brief, 6 TTABVUE 4-5.
Serial No. 88159692
- 5 -
services.” In re Binion, 93 USPQ2d 1531, 1535 (TTAB 2009). To create this kind of
confusion, “[i]t is sufficient that the respective goods and services are related in some
manner, or that the conditions and activities surrounding the marketing of the goods
and services are such that they would or could be encountered by the same persons
under circumstances that could give rise to the mistaken belief that they originate
from the same source.” DeVivo v. Ortiz, 2020 USPQ2d 10153, 11 (TTAB 2020) (citing
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722
(Fed. Cir. 2012)). To make this determination, we look to the identifications in the
application and cited registration. See Stone Lion Capital Partners v. Lion Capital,
110 USPQ2d at 1162; Octocom Sys., Inc. v. Houston Computer Servs. Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
As the Examining Attorney correctly notes,4 the cited registration’s broadly
worded recitation “entertainment services in the nature of live musical
performances,” encompasses such services, whether on land or at sea. “Where the
identification of services is broad, the Board presume[s] that the services encompass
all services of the type identified.” In re Country Oven, Inc., 2019 USPQ2d 443903, 4
(TTAB 2019) (quoting Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d
1007, 1025 (TTAB 2015)) (internal punctuation omitted). For this reason, Registrant’s
broad, unrestricted recitation of live musical performances encompasses Applicant’s
narrower recitation of live musical performances held aboard yachts or cruise ships.
The services are legally identical. See In re Integrated Embedded, 120 USPQ2d 1504,

4 Examining Attorney’s brief, 8 TTABVUE 9.
Serial No. 88159692
- 6 -
1514 (TTAB 2016) (citing In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012)).
To illustrate the point, the Examining Attorney adduces evidence of nine active,
use-based third-party registrations that identify live musical performances on cruise
ships. For example:5
Registration
No.
Mark Pertinent Services
3593946 RESPECT OUR PLANET
& Design

Entertainment in the nature of live comedy, dance and
musical performances on cruise ships
4555942 CHILLIN’ THE MOST Entertainment in the nature of live musical
performances on a cruise ship
5069532 MUSIC WALK Entertainment services in the nature of presenting live
musical performances on cruise ships and on cruise
excursions
4743090 THE LEBREWSKI CRUISE Organizing and hosting themed social entertainment
events in the nature of live musical performances and
food and beer tasting events on cruise ships
5069532 MUSIC WALK Entertainment services in the nature of presenting live
musical performances on cruise ships and on cruise
excursions

This evidence confirms that live musical performances can be provided on cruise
ships. Since Applicant’s and Registrant’s services are legally identical—as both may
offer live musical entertainment performances held on yachts or cruise ships—we
presume that these services travel through the same channels of trade and are offered
or rendered to the same or overlapping classes of purchasers. In re Information
Builders Inc., 2020 USPQ2d 10444, 3 (TTAB 2020) (citing In re Yawata Iron & Steel
Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968)); see also American Lebanese
Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d

5 Jan. 30, 2019 Office Action at 11-38.
Serial No. 88159692
- 7 -
1022, 1028 (TTAB 2011) (where there are legally identical services, marketing
channels of trade and targeted classes of consumers are the same).
While we base our finding on the services as described in the application and
registration, we note that the evidence regarding how the marks are actually used
corroborates our finding that the services overlap. Registrant offers its musical
entertainment services at seaside venues, e.g.:
6

6 June 21, 2019 Response to Office Action at 21.
Serial No. 88159692
- 8 -
7
And Applicant offers its services from shore to ship to shore:
8

7 June 21, 2019 Response to Office Action at 22.
8 Facebook.com/sundownsoundscruise, Jan. 30, 2019 Office Action at 41.
Serial No. 88159692
- 9 -
Concertgoers could thus encounter Applicant’s and Registrant’s services in
circumstances that could give rise to the mistaken belief that they originate from the
same source. Coach Servs. v. Triumph Learning, 101 USPQ2d at 1722. Hence, the
second and third DuPont factors weigh heavily in favor of finding a likelihood of
confusion.
B. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation, and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; 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 777 Fed. Appx. 516 (Fed. Cir. 2019), (citing In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014)). When the marks appear on legally identical
services, as they do here, the degree of similarity necessary to support a conclusion of
likely confusion declines. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1244, 1248
(TTAB 2010) (citing Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d
874 , 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)).
Again, the applied-for mark is:
SUNDOWN SOUNDS CRUISE (with “SOUNDS CRUISE” disclaimed).
The cited registered mark is:
SUNDOWN MUSIC FESTIVAL (with “MUSIC FESTIVAL” disclaimed).
Serial No. 88159692
- 10 -
Even though both marks share the first word SUNDOWN, and disclaim the
following two words, “focusing on one part, or the prominent part of a mark while
ignoring other elements violates the antidissection rule,” Applicant states.9 Viewed
in their entireties, Applicant maintains, the marks are dissimilar.10 The marks are
dissimilar in meaning, it contends, because “FESTIVAL” and “CRUISE” carry
differing connotations. “A music festival is ‘a festival, often an annual event, at which
a lot of different performers play,’ it states, quoting Collins English Dictionary.11
“Cruise means ‘to sail about touching at a series of ports.’ Applicant’s mark creates
no connotation or commercial impression of a festival.”12
Applicant’s argument is belied, however, by the Examining Attorney’s evidence of
over 15 webpage screenshots from third-party entities that provide live musical
performances, such as music festivals, on cruise ships.13 Representative samples
include:
 THE ROCK BOAT XX — “The Galaxy’s greatest floating music festival,”
featuring “5+ stages of music,” and “Dozens of your favorite artists” on a five-
day cruise from Miami to Harvest Caye, Belize and Roatan, Honduras;14

 SAIL ACROSS THE SUN — “FESTIVAL DETAILS” include “5 stages of
music,” “4 days to unwind at sea,” on a ship cruising from Miami to Nassau,
Bahamas and Great Stirrup Cay;15

9 Applicant’s brief, 6 TTABVUE 5.
10 Applicant’s brief, 6 TTABVUE 5-6.
11 June 21, 2019 Response to Office Action at 6, 10 (citing CollinsDictionary.com),
incorporated by reference in Applicant’s brief, 6 TTABVUE 2.
12 June 21, 2019 Response to Office Action at 7 (citing merriam-webster.com).
13 Sept. 27, 2019 Office Action at 8-28.
14 TheRockBoat.com, id. at 12.
15 SailAcrossTheSun.com, id. at 16.
Serial No. 88159692
- 11 -

 COUNTRY CRUISING — “This country music festival on a cruise ship will
bring you all the best performances” on a six night Caribbean cruise from Fort
Lauderdale, Florida to Belize City, Belize, Cozumel, Mexico, and Key West,
Florida;16

 THE JAZZ CRUISE — “With over 200 hours of music, 100 jazz musicians
and a legion of loyal guests from all over the world,” it touts “The Greatest Jazz
Festival At Sea” cruising from Miami to Costa Maya to Cozumel to Key West;17

and

 THE SUPERCRUISE XIV — “Full-Ship Music Festival at Sea,” “8 days and
nights of jazz, soul, comedy, gospel, and funk!” sailing from Fort Lauderdale,
Florida to “three beautiful Caribbean ports of call.”18

In example after example, we see that music festivals and cruises are not mutually
exclusive.19
Applicant emphasizes the marks’ differences in sound, stating that the
“alliteration, assonance, and rhyming pattern of Applicant’s mark is distinct from
Registrant’s mark. As a result, consumers are able to distinguish ‘Sundown Sounds
Cruise”’ from ‘Sundown Music Festival’ despite use of the common word, Sundown.”20
As the Examining Attorney correctly observes, however, the difference in sound
does not overcome the overall similarity of the marks. The proper focus is on the
recollection of the average consumer, who retains a general rather than specific
impression of the marks. In re FabFitFun, 127 USPQ2d at 1675. So “there is nothing

16 CountryCruising.com, id. at 21.
17 TheJazzCruise.com, id. at 22-23.
18 CapitalJazz.com, id. at 24.
19 Sept. 27, 2019 Office Action at 8-28.
20 Applicant’s brief, 6 TTABVUE 6.
Serial No. 88159692
- 12 -
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
consideration of the marks in their entireties.” In re Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753
F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985)).
Both marks begin with the word SUNDOWN. “Thus, upon encountering each
mark, consumers must first notice this identical lead word.” Century 21 Real Estate
v. Century Life, 23 USPQ2d at 1700, cert. denied, 506 U.S. 1034 (1992). Accord 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”).
Although consumers would not ignore the words that follow—SOUNDS CRUISE
in one mark and MUSIC FESTIVAL in the other—the fact that they are disclaimed
as descriptive or generic indicates that they are less likely to be impressed upon their
minds and remembered as source indicators than the prominently placed word
SUNDOWN. See In re Detroit Athletic Co., 128 USPQ2d at 1049-50 (quoting
MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 23:42: “The fact that in a
registration, certain descriptive or generic terms are disclaimed indicates that those
terms are less significant and the other parts of the mark are the dominant parts that
will impact most strongly on the ordinary buyer.”).
Serial No. 88159692
- 13 -
Moreover, the disclaimed descriptive words do not differentiate Applicant’s and
Registrant’s services, as “sounds” refers to a “musical style,”21 and a music “festival,”
as we have seen, can take place on a “cruise.” In the eyes of consumers, SUNDOWN
would thus remain the marks’ prominent, dominant component. Despite the
difference in the marks’ sounds, consumers who are familiar with Registrant’s
SUNDOWN MUSIC FESTIVAL mark and then see Applicant’s SUNDOWN
SOUNDS CRUISE mark are likely to believe that Registrant has adopted a variation
of its original mark for live musical entertainment at sea. See In re Max Capital Grp.
Ltd., 93 USPQ2d at 1244, 1248.
Applicant argues that “SUNDOWN” is diluted and weak:
[A Trademark Electronic Search System (TESS)] list of 47 third-party
registrations reveals the word Sundown is used broadly for a wide variety
of goods and services. Goods and services associated with the word
Sundown include a wide array of goods and services, namely eyewear,
calcium supplements, ladies’ purses, blackout curtains, car audio
equipment, tourist agency services, landscape design and construction,
plastic vacuum hoses for swimming pools, livestock trailers, grass seed,
and construction and repair of offshore oil and gas wells.22

Applicant continues:

Numerous examples exist of goods in the entertainment industry
coexisting in the marketplace without consumer confusion despite the
shared use of the word Sundown.

21 Merriam-Webster.com, MacmillanDictionary.com, April 14, 2020 Office Action (response
to request for reconsideration) at 4-5.
22 Applicant’s brief, 6 TTABVUE 3 (citing TESS listing, March 24, 2020 request for
reconsideration at 11-12).

Serial No. 88159692
- 14 -

23
We find, though, that this third-party evidence fails to show that the shared
element SUNDOWN is weak, either conceptually or commercially.
To begin with, the TESS listing submitted by Applicant did not make the
underlying 47 listed third-party registrations of record. See Edom Labs. Inc. v.

23 Applicant’s brief, 6 TTABVUE 3-4 (citing to printouts of third-party registrations, March
24, 2020 request for reconsideration at 13-24).

Serial No. 88159692
- 15 -
Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012); Truescents LLC v. Ride Skin Care
LLC, 81 USPQ2d 1334, 1337 (TTAB 2006). And the listing does not indicate the goods
or services with which those third-party marks were used. Accordingly, this evidence
is entitled to no probative weight on the question of the strength of the term
SUNDOWN for live musical performances.
The six registered third-party marks in Applicant’s table above were properly
introduced in evidence.24 But only one, SUNDOWN RUSH, has services similar to
Registrant’s: “entertainment, namely live performances by a musical band.” A single
third-party registration is not sufficient to establish that Registrant’s mark is a weak
mark entitled to only a narrow scope of protection. See In re Mr. Recipe, LLC, 118
USPQ2d 1084, 1089 (TTAB 2016) (“[O]ne third-party registration has little probative
value, especially in the absence of evidence that the mark is in use on a commercial
scale or that the public has become familiar with it.”)).
The remaining “third-party registrations submitted by Applicant … do not
identify goods and services related to the goods and services at issue here and,
therefore, have no bearing on the scope of protection to be accorded to Registrant’s …
mark.” In re Information Builders, 2020 USPQ2d 10444 at 8.
Moreover, “In this case there is no evidence of third-party usage, there is only
evidence of just a few third-party registrations. The existence of [third-party]
registrations is not evidence of what happens in the market place or that customers
are familiar with them. In re Inn at St. John’s, 126 USPQ2d at 1746 aff’d 777 Fed.

24 Printouts of third-party registrations, March 24, 2020 request for reconsideration at 13-24.
Serial No. 88159692
- 16 -
Appx. 516 (Fed. Cir. 2019) (quoting AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d
1403, 177 USPQ 268, 269 (CCPA 1973) (internal punctuation omitted)). Applicant’s
third-party evidence thus fails to demonstrate that the shared word “SUNDOWN” is
a weak element as used in connection with Registrant’s and Applicant’s live musical
entertainment services.
Notably, neither Registrant nor Applicant has disclaimed “SUNDOWN,”
indicating that the word is inherently distinctive. Consequently, the third-party
registration evidence does not diminish the registered mark’s entitlement to
protection against registration of Applicant’s mark. SUNDOWN MUSIC FESTIVAL
is entitled to the normal scope of protection accorded registered marks. 15 U.S.C. §
1057(b).
Taken in their entireties, we find that the marks are more similar than dissimilar,
and the first DuPont factor weighs in favor of finding a likelihood of confusion.
C. Consumers’ Sophistication and Care
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
In the course of prosecution, Applicant asserted that “Applicant’s and Registrant’s
consumers are highly sophisticated.” Specifically, it argued, “Applicant’s and
Registrant’s consumers purchase tickets for the services with knowledge of where the
Serial No. 88159692
- 17 -
services will be located. The examiner presents no evidence of consumer confusion
between a festival and a cruise.”25
In its brief on appeal, Applicant now purports to incorporate by reference the
arguments it made during the course of prosecution, including, presumably, its “care
and sophistication” argument.26 The Examining Attorney correctly objects, pointing
out that such arguments, even if made during the course of prosecution, are waived
if they are not carried forward in briefs before the Board.27 Indeed, the TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) provides that “If an
applicant, in its appeal brief, does not assert an argument made during prosecution,
it may be deemed waived by the Board.” TBMP § 1203.02(g) (2020).
We agree that the argument need not be considered, and answer it only for the
sake of completeness. Applicant’s argument is unavailing for several reasons.
First, Applicant’s assertion that concertgoers are careful and sophisticated is just
that: an assertion. Attorney argument is not evidence, Enzo Biochem Inc. v. Gen
Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005), and Applicant
provides no reason to believe that music enthusiasts who frequent beach or cruise
concerts are particularly discriminating as to anything other than their musical
preferences.

25 Applicant’s June 21, 2019 Response to Office Action at 8-9.
26 “Applicant incorporates by reference its arguments in its Response to Office Action dated
June 21, 2019.” Applicant’s brief, 6 TTABVUE 2.
27 “The Examining Attorney objects and respectfully requests that any argument not
presented in Applicant’s Appeal Brief be deemed waived by the Board.” Examining Attorney’s
brief, 8 TTABVUE 13.
Serial No. 88159692
- 18 -
Second, we must base our decision on the least sophisticated potential purchasers.
Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1163. Since there is no
restriction in the subject application and registration as to price or quality, there is
no reason to infer that the concertgoers will be particularly sophisticated,
discriminating, or careful in making their purchases. Bd. of Regents v. So. Illin.
Miners, LLC, 110 USPQ2d 1182, 1193 (TTAB 2014) (“Although some of the parties’
more knowledgeable consumers may be more careful in their purchase, neither the
registrations nor the applications contain limitations on the classes of customers. We
therefore must not limit our consideration of this factor to the more
sophisticated purchasers within the classes of potential customers.”).
Third, Applicant made its “care and sophistication” assertion in the context of
arguing that concertgoers could distinguish between concerts staged on land and at
sea.28 But as we have seen, the issue is whether they could distinguish the source or
sponsorship of the services, not the services themselves. In re Binion, 93 USPQ2d at
1535.
And fourth, in any event, “even if Applicant’s unsupported argument is credited,
purchaser sophistication does not always result in a finding that confusion is
unlikely, especially where legally identical in part goods and services are involved
and … the marks are similar.” In re Information Builders, 2020 USPQ2d 10444 at 4.
“In other words, even careful purchasers who do notice the difference in the marks
will not ascribe it to differences in the source of the [services], but will see the marks

28 “The examiner presents no evidence of consumer confusion between a festival and a cruise.”
Applicant’s June 21, 2019 Response to Office Action at 9.
Serial No. 88159692
- 19 -
as variations of each other, pointing to a single source.” In re I-Coat Co., LLC, 126
USPQ2d 1730, 1739 (TTAB 2018).
Hence, even if Applicant’s assertion is given due consideration (or more
consideration than it is due), we have no reason to conclude that ordinary
concertgoers will exercise more than an ordinary degree of care. This factor is neutral.
II. Conclusion

When we consider the record and the relevant likelihood of confusion factors, and
all of the arguments relating thereto, we conclude that consumers familiar with
Registrant’s services offered under its mark would be likely to believe, upon
encountering services offered under Applicant’s mark, that the services originated
with or are associated with or sponsored by the same entity. There is therefore a
likelihood of confusion under Section 2(d) of the Trademark Act. 15 U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s mark is affirmed.