Team Air Express, Inc.v.Alliance Shippers, Inc.

Trademark Trial and Appeal Board

Dec 11, 2007

No. 92043162 (T.T.A.B. Dec. 11, 2007)

Mailed:
Dec. 11, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Team Air Express, Inc.
v.
Alliance Shippers, Inc.
_____

Cancellation No. 92043162
_____

Diane K. Lettelleir of Winstead PC for Team Air Express,
Inc.

James T. Hultquist of Sachnoff & Weaver, Ltd. for Alliance
Shippers, Inc.
_____

Before Hohein, Grendel and Kuhlke, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

INTRODUCTION

Alliance Shippers, Inc., respondent herein, is the
owner of Registration No. 2445839, which is of the mark TEAM
ALLIANCE (in standard character form) for services recited
in the registration as “transportation of freight by air,
land, ship and rail,” in Class 39. The registration issued
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Cancellation No. 92043162
2
(on the Principal Register) on April 24, 2001, based on an
application filed on October 30, 1999.
On February 24, 2004, Team Air Express, Inc.,
petitioner herein, filed a petition to cancel respondent’s
registration, alleging priority and likelihood of confusion
under Trademark Act Section 2(d), 15 U.S.C. §1052(d), as the
statutory ground for cancellation. Specifically, petitioner
alleges that respondent’s mark, as used in connection with
the services recited in the registration, so resembles
petitioner’s prior family of TEAM marks, previously used and
registered by petitioner in connection with various types of
freight transportation services, as to be likely to cause
confusion, to cause mistake, or to deceive.1
Respondent filed an answer by which it denied the
salient allegations of the petition for cancellation.
Both parties presented evidence at trial. The case is
fully briefed. After careful consideration of the evidence
of record and the arguments of counsel, we grant the
petition for cancellation.

1 Petitioner has pleaded ownership of three registrations, two
for the mark TEAM (discussed infra) and one for the mark TEAM
TRANSPORTATION (Reg. No. 2281102). Because petitioner’s
strongest case is based on the two TEAM registrations, and in the
interest of clarity and economy, we shall base our findings and
decision herein solely on the two TEAM registrations. However,
we shall consider the TEAM TRANSPORTATION mark infra in
connection with the “family of marks” issue.

Cancellation No. 92043162
3
The evidence of record in this case consists of:2
(1) the pleadings;
(2) the file of respondent’s involved registration;
(3) petitioner’s notice of reliance (with Exhibit Nos.
1-87);
(4) the February 16, 2006 Rule 30(b)(6) discovery
deposition of respondent’s corporate representative Larry
Henry and exhibits thereto (Exh. Nos. 1-8), submitted by
petitioner (hereinafter Henry 2/16/06 Disc. Depo.);
(5) the February 16, 2006 testimony deposition (noticed
and taken by petitioner) of respondent’s Vice President
Larry Henry and exhibits thereto (Exh. Nos. 2-3), submitted
by petitioner (hereinafter Henry 2/16/06 Test. Depo.);3
(6) the February 16, 2006 testimony deposition (noticed
and taken by petitioner) of respondent’s general counsel
Mark Schwed and exhibits thereto (Exh. Nos. 9-11), submitted
by petitioner (hereinafter Schwed Depo.);
(7) the February 17, 2006 testimony deposition (noticed
and taken by petitioner) of respondent’s expert witness

2 With their briefs, petitioner and respondent have asserted and
argued for and against numerous and indeed voluminous objections
to each other’s evidence. In this opinion, we shall take into
consideration the parties’ objections only insofar as they
pertain to those portions of the evidence upon which we
specifically base our findings and conclusions herein.

3 It appears that the parties agreed that petitioner would take
Mr. Henry’s discovery deposition on the same day as his testimony
deposition, i.e., February 16, 2006. Respondent later took Mr.
Henry’s testimony deposition on June 5, 2006.

Cancellation No. 92043162
4
George Mantis and exhibits thereto (Exh. Nos. 12-35),
submitted by petitioner (hereinafter Mantis 2/17/06 Depo.);
(8) the February 24, 2006 testimony deposition (noticed
and taken by petitioner) of petitioner’s CEO Bobby Brunson
and exhibits thereto (petitioner’s Exh. Nos. 1-26 and
respondent’s Exh. Nos. 1-10), submitted by petitioner
(hereinafter Brunson Depo.);
(9) respondent’s notice of reliance (with Exh. Nos. 1-
16);4
(10) the June 5, 2006 testimony deposition (noticed and
taken by respondent) of respondent’s expert witness George
Mantis and exhibits thereto (Exh. Nos. AS1-AS15), submitted
by respondent (hereinafter Mantis 6/5/06 Depo.);
(11) the June 5, 2006 testimony deposition (noticed and
taken by respondent) of respondent’s vice-president Larry
Henry and exhibits thereto (Exh. Nos. AS3, AS16-AS31),
submitted by respondent (hereinafter Henry 6/5/06 Depo.);
(12) the June 5, 2006 testimony deposition (noticed and
taken by respondent) of James Beifuss (a paralegal in the
office of respondent’s counsel) and exhibits thereto (Exh.
No. AS32), submitted by respondent (hereinafter Beifuss
Depo.); and

4 Respondent also submitted an untimely supplemental notice of
reliance, which was stricken by the Board on petitioner’s motion.

Cancellation No. 92043162
5
(13) the August 22, 2006 rebuttal testimony deposition
(noticed and taken by petitioner) of petitioner’s expert
witness Daniel Howard and exhibits thereto (petitioner’s
Exh. Nos. 62-68 and respondent’s Exh. Nos. 1-4), submitted
by petitioner (hereinafter Howard Depo.).
PETITIONER’S STANDING

Petitioner has made of record status and title copies
of its pleaded TEAM registrations, establishing that the
registrations are in force and are owned by petitioner.
(Brunson Depo. Exh. Nos. 1 and 3.) These registrations are:

Registration No. 1170590, which is of the mark
TEAM (in standard character form) for “air freight
services” in Class 39, issued on September 22,
1981 based on an application filed on April 28,
1981; and

Registration No. 2282989, which is of the mark
TEAM (in standard character form) for “freight
transportation by air, ground and water” in Class
39, issued on October 5, 1999 based on an
application filed on June 5, 1998.

We find that petitioner’s ownership of these existing
registrations suffices to establish petitioner’s standing to
petition to cancel respondent’s involved registration.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842
(Fed. Cir. 2000).5
PETITIONER’S SECTION 2(d) PRIORITY

5 Respondent argues that petitioner lacks standing because there
has been no actual confusion which has damaged petitioner. We
reject this argument.
Cancellation No. 92043162
6
On this record, we find that the earliest date upon
which respondent can rely for Section 2(d) priority purposes
is October 30, 1999, the filing date of the application
which matured into respondent’s involved registration.6 The
applications which matured into petitioner’s pleaded
registrations, i.e., Reg. No. 1170590 (of the mark TEAM for
“air freight services,” filed on April 28, 1980), and Reg.
No. 2282989 (of the mark TEAM for “freight transportation by
air, ground and water,” filed on June 5, 1998), both were
filed prior to respondent’s October 30, 1999 filing date.
Petitioner therefore has Section 2(d) priority in this
cancellation proceeding as to the marks and services covered
by its registrations. See Brewski Beer Co. v. Brewski
Brothers Inc., 47 USPQ2d 1281 (TTAB 1998). Respondent does
not contend otherwise.
LIKELIHOOD OF CONFUSION
Our likelihood of confusion determination under Section
2(d) is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue (the du Pont factors). See In re E. I.

6 Respondent has asserted (solely in connection with its argument
on the issue of actual confusion) that it has used its mark since
1998. However, the evidence of record on that point is vague at
best. See Henry 6/5/06 Depo. at 21 (mark first used in an
internal sales meeting in January 1998), and Henry 6/5/06 Depo.
at 22 and Exh. No. AS18 (company newsletter dated “first quarter
1998,” announcing that TEAM ALLIANCE campaign will begin “during
1998”). Even if we assume that respondent’s first use was
sometime in 1998, the record establishes that petitioner has used
Cancellation No. 92043162
7
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005); In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Similarity of the Marks
The first du Pont factor requires us to determine the
similarity or dissimilarity of the parties’ marks when
viewed in their entireties in terms of appearance, sound,
connotation and overall commercial impression. Palm Bay
Imports, Inc., supra. 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
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).
Furthermore, although the marks at issue must be considered
in their entireties, it is well-settled that one feature of

its TEAM mark since 1979. (Brunson Depo. at 16-38 and Exh Nos.
Cancellation No. 92043162
8
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 Chatam International Inc., 380 F.3d 1340, 71
USPQ2d 1944 (Fed. Cir. 2004); In re National Data Corp., 753
F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Finally, in cases
such as this, where the defendant’s services are identical
to the plaintiff’s services (see discussion infra), the
degree of similarity between the marks which is required to
support a finding of likelihood of confusion is less than it
would be if the services were not identical. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992).
Applying these principles in the present case, we find
as follows. First, we reject respondent’s argument that the
marks are dissimilar because respondent always uses its TEAM
ALLIANCE mark in conjunction with a logo or design element
and in conjunction with its house mark. Those features are
not present in the mark respondent has registered, and they
therefore have no relevance in our comparison of the marks.
See Vornado, Inc. v. Breuer Elec. Mfg. Co., 390 F.2d 724,
156 USPQ 340 (CCPA 1968); In re Big Pig Inc., 81 USPQ2d 1436
(TTAB 2006). For purposes of our likelihood of confusion

2, 5-7, 10-14.)
Cancellation No. 92043162
9
analysis, petitioner’s mark is TEAM and respondent’s mark is
TEAM ALLIANCE.
Next, we find that TEAM is inherently distinctive as
applied to the freight transportation services involved in
this case. Respondent, citing a dictionary definition of
“team” (Respondent’s Notice of Reliance, Exh. No. 16), as
well as certain language petitioner uses in its
advertisements such as “A transportation team created to
meet your needs...” (Petitioner’s Notice of Reliance, Exh.
No. 27), argues that TEAM is generic for or descriptive of
freight transportation services, and thus entitled to a
narrow scope of protection.7 We reject this argument. We
find that TEAM is an arbitrary term as applied to freight
transportation services or, at most, is only slightly
suggestive of such services. It is entitled to the usual
scope of protection afforded to inherently distinctive
marks.8

7 In its answer to the petition for cancellation, respondent
counterclaimed for cancellation of petitioner’s pleaded
registrations on the ground that TEAM is generic for freight
transportation services. Respondent later withdrew those
counterclaims without prejudice, with petitioner’s consent. To
the extent that respondent’s argument in its brief that
petitioner’s mark is generic or descriptive constitutes an
impermissible attack on the validity of petitioner’s
registrations, we will not consider that argument given
respondent’s withdrawal of its counterclaims.

8 As discussed infra, we find that petitioner has failed to
establish (under the fifth du Pont factor) that its mark is
famous and thus entitled to the expanded scope of protection
afforded to famous marks. However, we also find that respondent
has failed to establish (under the sixth du Pont factor) that the
Cancellation No. 92043162
10
The word TEAM comprises the entirety of petitioner’s
mark, and it appears as the first word in respondent’s TEAM
ALLIANCE mark. Because TEAM is a distinctive word as
applied to freight transportation services, and because it
appears as the first word in respondent’s mark, we find that
TEAM is the dominant feature in the commercial impression
created by respondent’s mark. As discussed infra in
connection with the connotations of the marks, the word
ALLIANCE in respondent’s mark has somewhat the same
connotation as the word TEAM, and could be seen as merely
repeating or reinforcing the significance of the word TEAM
in respondent’s mark. Thus, while we do not disregard the
word ALLIANCE in respondent’s mark, we find that it is
entitled to less weight in our comparison of the marks. See
In re Chatam International Inc., supra, and In re National
Data Corp., supra.
In terms of appearance and sound, the marks are similar
to the extent that they both consist of or prominently
feature the word TEAM, and dissimilar to the extent that
respondent’s mark, but not petitioner’s mark, includes the
word ALLIANCE. In terms of connotation, we find that the

scope of protection to be afforded to petitioner’s mark should be
narrowed by the existence of widespread third-party use of
similar marks in connection with similar services. Instead, we
find that petitioner’s mark is entitled to the scope of
protection usually afforded to inherently distinctive marks.

Cancellation No. 92043162
11
marks are similar because the word TEAM has the same meaning
in both marks. The word ALLIANCE in respondent’s mark has a
somewhat similar meaning to the word TEAM, in that the
members of a team could be said to be “allied” or part of an
“alliance.” ALLIANCE therefore could be viewed by
purchasers as a type of repetition or reinforcement of the
word TEAM, which appears first in respondent’s mark.
ALLIANCE, therefore, does not significantly change the
meaning of respondent’s mark nor does it serve to
distinguish the parties’ marks in terms of connotation when
the marks are viewed in their entireties.
In terms of overall commercial impression, we find that
the marks are similar because the similarity which results
from the presence of the distinctive term TEAM in both marks
outweighs any dissimilarity between the marks which might
result from the presence of the additional word ALLIANCE in
respondent’s mark. Respondent’s mark merely takes
petitioner’s mark in its entirety and adds the word
ALLIANCE. That additional word does not suffice to
distinguish the marks in terms of overall commercial
impression.
For the reasons discussed above, we find that
respondent’s mark is similar to petitioner’s mark in terms
of appearance, sound, connotation and overall commercial
Cancellation No. 92043162
12
impression. The first du Pont factor weighs in favor of a
finding of likelihood of confusion.
Similarity of the Services
We turn next to the second du Pont factor, which
requires us to determine the similarity or dissimilarity of
the parties’ respective services. That determination must
be made based on a comparison of the parties’ services as
they are identified in respondent’s registration and in
petitioner’s registrations, respectively. We reject as
irrelevant respondent’s contention that the parties’
respective freight transportation services, as actually
provided by the parties, are dissimilar (“inter-modal” vs.
“freight forwarding”). See Octocom Systems, Inc. v. Houston
Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed.
Cir. 1990); Carl Karcher Enterprises Inc. v. Stars
Restaurants Inc., 35 USPQ2d 1125 (TTAB 1995).
Respondent’s services, as identified in its
registration, are “transportation of freight by air, land,
ship and rail.” We find that these services as recited in
respondent’s registration encompass or are otherwise legally
identical to the services recited in each of petitioner’s
pleaded TEAM registrations, i.e., “air freight services”
(Reg. No. 1170590) and “freight transportation by air,
ground and water” (Reg. No. 2282989). In view of the legal
identity of the parties’ respective services, we find that
Cancellation No. 92043162
13
the second du Pont factor weighs in favor of a finding of
likelihood of confusion.
Similarity of Trade Channels
The third du Pont factor requires us to determine the
similarity or dissimilarity of the trade channels and
classes of purchasers for the parties’ respective services.
There are no restrictions or limitations in the parties’
respective identifications of services, and we therefore
must presume that the services are marketed in all normal
trade channels for such services and to all normal classes
of purchasers for such services. See Octocom Systems, Inc.,
supra. Because respondent’s services are legally identical
to petitioner’s services, we find that the trade channels
and classes of purchasers for the parties’ respective
services likewise are legally identical. The third du Pont
factor weighs in favor of a finding of likelihood of
confusion.
Conditions of Purchase
The fourth du Pont factor requires us to consider the
conditions under which the parties’ services are purchased.
There is no evidence in the record as to how sophisticated
the purchasers of the services are, or as to the cost of the
services and the degree of care with which they are or would
Cancellation No. 92043162
14
be purchased.9 Given the absence of evidence regarding the
conditions of purchase, we find that the fourth du Pont
factor is neutral in this case.
Fame of the Prior Mark
The fifth du Pont evidentiary factor requires us to
consider evidence of the fame of petitioner’s mark, and to
give great weight to such evidence of fame if it exists.
See Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63
USPQ2d 1303, 1309 (Fed. Cir. 2002); Recot Inc. v. Becton,
214 F.3d 1322, 54 F.2d 1894 (Fed. Cir. 2000); Kenner Parker
Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d 350, 22
USPQ2d 1453 (Fed. Cir. 1992). Petitioner contends that its
TEAM mark is famous because it has been in use since 1979,
because petitioner’s annual sales of its services under the
mark are substantial, because petitioner has expended
“hundreds of thousands” of dollars in promoting and
advertising its services under the mark (including
advertisements in trade publications and its sponsorship of
the U.S. Olympic Luge Team), because petitioner has received

9 We reject petitioner’s contention that, just because there are
no restrictions as to purchasers in the parties’ respective
recitations of services, the purchasers of these services
necessarily should be deemed to include impulse purchasers.

Cancellation No. 92043162
15
industry awards, and because petitioner’s marketing strategy
has been mentioned in a college-level marketing textbook.10
After careful consideration of all of petitioner’s
evidence and arguments, we conclude that petitioner’s mark
is not famous, for purposes of the fifth du Pont factor.
The fact that petitioner has used its mark since 1979
supports petitioner’s claim of fame, but not significantly.
Petitioner’s annual sales figures11 are of little probative
value absent evidence establishing context such as
petitioner’s market share. Petitioner’s advertising
expenditures do not seem especially impressive, given the
length of time (since 1979) over which such expenditures
presumably have taken place. Petitioner’s sponsorship of
the United States Luge Team does not establish fame in the
freight transportation industry. The fact that petitioner
has received industry awards does not weigh significantly in
petitioner’s favor in the absence of evidence establishing
the significance of the awards and knowledge thereof on the
part of relevant purchasers. Finally, the fact that
petitioner has been mentioned in a college-level marketing
textbook might prove some degree of awareness of petitioner

10 Petitioner’s Notice of Reliance, Exh. No. 1 is a copy of page
49 from Churchill and Peter, Marketing: Creating Value for
Customers (2d ed. 1998).

11 Evidence of the amount of petitioner’s annual sales was made of
record under seal.

Cancellation No. 92043162
16
on the part of students and academics familiar with the
textbook, but it does not contribute to any finding that
petitioner’s mark is famous among purchasers in the freight
transportation industry.
We have considered petitioner’s proffered evidence of
fame collectively and in its entirety. For the reasons
discussed above, we find that petitioner has failed to
establish that its mark is famous. The fifth du Pont factor
is neutral in this case.
Third-party Marks
The sixth du Pont factor requires us to consider
evidence of use by third parties of similar marks in
connection with similar services. “The purpose of a
defendant introducing third party uses is to show that
customers have become so conditioned by a plethora of such
similar marks that customers have been educated to
distinguish between different such marks on the bases of
minute distinctions.” Palm Bay Imports Inc., supra, 73
USPQ2d at 1694. However, “[t]he probative value of third-
party trademarks depends entirely upon their usage. E.g.,
Scarves by Vera, Inc. v. Todo Imports, Ltd., 544 F.2d 1167,
1173 (2d Cir. 1976)(“The significance of third-party
trademarks depends wholly upon their usage. Defendant
introduced no evidence that these trademarks were actually
used by third parties, that they were well promoted or that
Cancellation No. 92043162
17
they were recognized by consumers.”).” Palm Bay Imports
Inc., supra, 73 USPQ2d at 1693.
In this case, respondent has submitted the following
evidence purporting to establish third-party uses of the
designation TEAM in the freight transportation industry:
(1) printouts of seven third-party registrations of TEAM
marks (Exh. Nos. 4-10 of respondent’s notice of reliance);
(2) a Thomson and Thomson search report (conducted on
September 26, 2005) for TEAM (Henry 6/5/06 Depo. Exh. No.
AS2612), which includes listings and summaries of federal
and state registrations of TEAM marks, a Dun & Bradstreet
business name listing, and listings of and webpage printouts
purporting to show common law and domain name uses of TEAM;
(3) a separate Dun and Bradstreet report of business names
which include TEAM (Beifuss Depo. Exh. No. AS3213); (4)
printouts from five third-party websites assertedly showing
use of TEAM (Henry 6/5/06 Depo., Exh. Nos. AS27-AS31); and
(5) the testimony of respondent’s officer Larry Henry (Henry
6/5/06 Depo. at 42-55).
After careful review of this evidence, we find that
respondent has failed to establish that third-party uses of

12 This report also was submitted as Exh. No. 2 of respondent’s
notice of reliance, but such search reports are not admissible
via notice of reliance. See, e.g., Riceland Foods Inc. v.
Pacific Eastern Trading Corp., 26 USPQ2d 1883, 1884 n.3 (TTAB
1993).

Cancellation No. 92043162
18
TEAM marks in the freight transportation industry are so
numerous and widespread that petitioner’s TEAM mark should
be afforded only a narrow scope of protection under the
sixth du Pont factor.
First, the printouts of third-party registrations from
the Office’s database (Exh. Nos. 4-10 of respondent’s notice
of reliance) are not probative evidence of third-party use,
and are entitled to no weight under the sixth du Pont
factor. See Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d
200, 22 USPQ2d 1542 (Fed. Cir. 1992).
Second, we find as follows regarding the Thomson and
Thomson search report and its contents (Henry 6/5/06 Depo.,
Exh. No. AS26). We will assume, arguendo and
notwithstanding petitioner’s numerous objections, that the
report itself is admissible and properly made of record,
i.e., that a proper foundation was laid, that the document
was properly authenticated, and that the document falls
within an exception to the hearsay rule.14 Even if deemed

13 This report also was submitted as Exh. No. 3 of respondent’s
notice of reliance, but it is not admissible via notice of
reliance. See Riceland Foods Inc., supra.
14 The report was introduced into evidence as Exh. AS26 to the
June 5, 2006 testimony deposition of respondent’s vice-president
Larry Henry. He testified as follows (at p. 43):

Q. I’m handing you what has been marked as AS26. Do
you recognize this document, Mr. Henry?
A. Yes, I do.
Q. What is this document?
A. This is the report that Thomson & Thomson did to
highlight the different uses and applications of the word
“team” in the transportation and logistics business.
Cancellation No. 92043162
19
admissible, however, a commercial search report like this is
entitled to little or no probative weight under the sixth du
Pont factor, because it is not evidence that the marks
depicted therein are in use by third parties, nor is it
evidence that relevant customers are aware of any such
third-party uses. See, e.g., Tiffany & Co. v. Classic Motor
Carriages Inc., supra; Stagecoach Properties, Inc. v. Wells
Fargo & Company, supra.15

Q. Who is Thomson & Thomson?
A. They’re a research firm that employs specialists
that have access to the different databases for different
subject type to run inquiries.

We note that in other reported cases where a party relied on a
commercial search report, the report was introduced via the
testimony of an employee of the search firm who had knowledge of
the firm’s searching process in general and of the parameters of
the search in question. See, e.g., Tiffany & Co. v. Classic
Motor Carriages Inc., 10 USPQ2d 1835 (TTAB 1989); Stagecoach
Properties, Inc. v. Wells Fargo & Company, 199 USPQ 341 (TTAB
1978). Even in the ex parte case relied on by respondent herein,
In re Broadway Chicken Inc., 38 USPQ2d 1559 (TTAB 1996), the
commercial search report was accompanied by the affidavit of an
employee of the search firm. In our case, it is doubtful that
Mr. Henry is a competent witness to lay the foundation for and
authenticate the Thomson & Thomson search report respondent
relies on. However, because the report and its contents are of
such limited probative value anyway (see discussion infra), we
will assume for purposes of this decision that the foundation and
authentication requirements for its admission have been
satisfied. We also will assume that the report falls within an
exception to the hearsay rule, such as Fed. R. Evid. 803(17)
(“Market reports, commercial publications”).

15 The case cited by respondent, In re Broadway Chicken Inc.,
supra, does not stand for the proposition for which respondent
cites it, i.e., that a commercial search report is prima facie
evidence of third-party use under the sixth du Pont factor. In
that case, the search reports were submitted in addition to, and
merely corroborated, the actual white and yellow pages directory
listings and advertisements submitted by the applicant showing
third-party uses of the mark in question. The Board found that
the applicant’s third-party use evidence (which indeed was
voluminous, with hundreds of third-party listings), when
Cancellation No. 92043162
20
Not only is the Thomson & Thomson report as a whole
entitled to little or no probative weight under the sixth du
Pont factor, the specific contents of the report likewise
provide little support for respondent’s contention that
there is widespread third-party use of TEAM marks in the
freight transportation industry.
In large part, the Thomson & Thomson report consists of
a mere listing of USPTO records of third-party registrations
and applications. However, third-party registrations may
not be made of record via a commercial search report;
submission of documents from the Office’s own database is
required. Carl Karcher Enterprises Inc. v. Stars
Restaurants Corp., supra, 35 USPQ2d at 1130 (TTAB 1995);
Riceland Foods Inc. v. Pacific Eastern Trading Corp., supra,
26 USPQ2d at 1885 (TTAB 1993); Weyerhauser Co. v. Katz, 24
USPQ2d 1230 (TTAB 1992). In any event and as noted above,
third-party registrations (much less third-party
applications), even if properly made of record, are of no
evidentiary value under the sixth du Pont factor. Olde Tyme
Foods Inc. supra.

considered in its entirety, was probative evidence under the
sixth du Pont factor in an ex parte proceeding. The Board also
noted in Broadway Chicken that the standard of proof in an ex
parte proceeding is more akin to the standard applied in
determining whether a genuine issue of fact exists which suffices
to defeat a summary judgment motion in an inter partes case, a
standard which is less stringent than the showing required at
final hearing in an inter partes case, such as in the case
currently before us. 38 USPQ2d at 1565.
Cancellation No. 92043162
21
Likewise, the state trademark registrations included in
respondent’s Thomson & Thomson report are not evidence of
third-party use under the sixth du Pont factor. See
Stagecoach Properties, Inc. v. Wells Fargo & Co., supra, 199
USPQ at 357 n.17.
The next section of the Thomson & Thomson report is
identified as “Web Common Law,” and it includes printouts of
six webpages purporting to show use of TEAM in the freight
transportation industry.16 Initially, we note that Internet
evidence such as this must be introduced and authenticated
via the testimony of the person who downloaded and printed
it. See Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741,
1748 (TTAB 2006); Raccioppi v. Apogee Inc., 47 USPQ2d 1368
(TTAB 1998). Mr. Henry was not that person. Even if this
evidence were deemed to be properly of record, however, we
find that none of the six webpages is evidence of third-
party use contemplated by the sixth du Pont factor. One of
them is petitioner’s webpage (WCL-5). Another, Team
Delivery Systems (WCL-1), appears to be the webpage of a
courier service, not a freight transportation business. The
webpage of Horizon Services Group (WCL-2) does not show
trademark or trade name use of TEAM, but refers only to the

16 We note that this section of the Thomson and Thomson report is
preceded by a disclaimer stating that “[a]ny of the citations
included in your search report may become unavailable at any time
following the preparation of this report.”

Cancellation No. 92043162
22
company’s “management team.” The webpage of Team Logistics
Systems Inc. (WCL-3) is that of a Canadian company, not a
United States company. The webpage at
www.teamconsult.com/services/logistics.php (WCL-4) does not
appear to be that of a company in the freight transportation
industry, but rather that of a government computer systems
procurement consultant using the name “TeAM,” which stands
for “Technology, Automation & Management, Inc.” The last
webpage (WCL-6), www.emergency-management.net, does not
mention TEAM at all, but rather refers to a February 2003
conference called “TIEMS Transportation and Security
Workshop Washington DC.” In short, none of these webpages
shows third-party use of TEAM in the freight transportation
industry.
The next section of the Thomson & Thomson report is
entitled “Common Law Database.” The only potentially
relevant entry in this section is a mere listing from the
2004 edition of “The Advertising Red Books – Advertiser’s
Edition” of the designation DELTA SKY TEAM in connection
with “air transportation services,” owned by Delta Air
Lines, Inc. (CL-1.) We cannot conclude that this entry is
evidence of third-party use of TEAM in connection with
freight transportation services such as those involved in
this case, or that relevant purchasers would be aware of
such use.
Cancellation No. 92043162
23
The next section of the Thomson & Thomson report is a
“Business Names” listing compiled from Dun & Bradstreet
records. Even assuming that this listing is properly
authenticated and of record (see supra at footnote 14), such
a listing of names is of little probative value under the
sixth du Pont factor because it is not evidence of actual
third-party use of TEAM marks in the freight transportation
industry, or of the relevant public’s awareness thereof.
See, e.g., Tiffany & Co. v. Classic Motor Carriages Inc.,
supra; Stagecoach Properties, Inc. v. Wells Fargo & Company,
supra. Additionally, while we cannot determine with
certainty or specificity the nature of the business that
many of the listed companies are engaged in, we note that
many of the listings appear to be of companies engaged in
businesses other than freight transportation. We further
note that many of the listed companies appear to be merely
small, local concerns, whose presumably limited and local
usage of the “team” designation is unlikely to have had any
significant impact on the relevant public under the sixth du
Pont factor. See Carl Karcher Enterprises Inc., supra, 35
USPQ2d at 1131.
The final section of the Thomson & Thomson report is
entitled “Domain Names,” and it consists of a listing of
domain names which include “team” as well as printouts of
the webpages corresponding to some of the listed domain
Cancellation No. 92043162
24
names. The mere fact that a domain name is registered is of
no probative value under the sixth du Pont factor.
Moreover, the printouts of these webpages are not properly
authenticated under Starbucks U.S. Brands LLC, supra, and
Raccioppi v. Apogee Inc., supra. Even if properly of
record, however, the webpage printouts constitute merely de
minimis evidence of third-party use. Only three of the
webpages (DN-43, DN-44, and DN-52) display third-party use
of TEAM marks or names in the freight transportation
industry in the United States.
In summary, we have carefully reviewed the Thomson &
Thomson report submitted by respondent. Even assuming that
it is admissible and properly made of record, we find that
it provides but de minimis evidence of third-party use of
TEAM marks in the United States freight transportation
industry.
The next item of evidence relied upon by respondent in
connection with the sixth du Pont factor is another Dun &
Bradstreet listing of companies with “team” in their names,
submitted as Exh. No. AS32 to the testimony deposition of
James Beifuss, a paralegal in respondent’s counsel’s office.
We again will assume, arguendo, that this evidence has been
made of record with a proper foundation and has been
properly authenticated, and that it falls within an
exception to the hearsay rule. However, as noted above in
Cancellation No. 92043162
25
connection with the Dun & Bradstreet listing that was
included in the Thomson & Thomson report, this listing is of
limited probative value under the sixth du Pont factor
because it is not evidence of actual use by the listed
companies or of the relevant public’s awareness of such use.
See Tiffany & Co. supra; Stagecoach Properties, Inc. supra.
Next, respondent relies on its Exh. Nos. AS27-AS31,
which are printouts of five webpages offered during the June
5, 2006 deposition of Larry Henry. It is apparent from Mr.
Henry’s testimony that these Internet printouts, which bear
download dates of February 26, 2004 and April 2, 2004, were
not downloaded by Mr. Henry but rather by respondent’s
counsel.17 They therefore are not properly authenticated

17 In response to questioning from respondent’s counsel
preliminary to the offering of Exh. Nos. AS27-AS31 into evidence,
Mr. Henry testified as follows at page 47 of his June 5, 2006
deposition:

Q. How are you aware of other common law uses of the
word “team”?
A. There was information provided me through counsel
representative of searches for such uses and sites on the
Internet.
Q. What counsel provided you with this information?
...
A. You provided that to me, my counsel, my legal
counsel.

Exhibit Nos. AS27-AS31, the 2004 webpage printouts, were then
each introduced via testimony similar to the following regarding
Exh. No. AS27 (at Henry 6/5/06 Depo. pp. 49-50):

Q. Now, Mr. Henry, are you aware of any common law
uses of the word “team” other than what we’ve just discussed
in the Thomson & Thomson search?
A. Yes, ma’am.
Q. How are you aware of those uses?
A. I’ve seen it on various websites on the Internet.
Cancellation No. 92043162
26
under Starbucks U.S. Brands LLC, supra, and Raccioppi v.
Apogee Inc., supra. However, even if we deem the webpage
printouts to be properly authenticated and of record, they
provide but de minimis support for respondent’s argument
under the sixth du Pont factor. One of the five printouts
(Exh. No. AS28) is from the website of a company which
offers transportation services for athletic teams traveling
to and from athletic events; it does not show use of “team”
as a mark or a trade name in the freight transportation
industry. One of the remaining four webpages (Exh. No.
AS31) is a duplicate of one of the websites retrieved by the
Thomson & Thomson search and already discussed above (DN-
52). That leaves only three 2004 printouts of webpages
(Exh. Nos. AS27, AS29 and AS30) which show third-party use

Q. I’m handing you what has been marked as AS27. Do
you recognize this document?
A. Yes, I do. It’s a black and white print of – of a
website for a transportation company.
Q. Have you – did you recently visit this website?
A. Yes, I did.
Q. When did you visit this website?
A. Last week.
Q. And is the word “team” displayed anywhere on this
website?
A. Yes. In about the center of the page next to the
word “name” it says Team Transportation, Limited.

It would appear that, although he may have visited the five
websites in the week before his June 5, 2006 deposition, Mr.
Henry’s specific testimony regarding use of “team” on the
websites was based on his review of the 2004 printouts supplied
by counsel, rather than on any such recent review of the websites
themselves. We will assume, however, that the “team” designation
appeared on the websites when he viewed them the week before his
deposition.
Cancellation No. 92043162
27
of “team” as a mark or name in the United States freight
transportation industry.
Finally, respondent cites to the testimony of Larry
Henry (in his June 5, 2006 deposition, at pp. 42-55) as
evidence of third-party use under the sixth du Pont factor.
To the extent that Mr. Henry’s testimony on this issue is
based solely on his review of the Thomson & Thomson report
discussed above (Exh. No. AS26), he lacks personal knowledge
of any such third-party uses and his testimony therefore
lacks foundation. With respect to the four relevant 2004
website printouts provided to him by respondent’s counsel
(Exh. Nos. AS27 and AS29-AS31, discussed above), we will
assume from his statement that he had viewed these websites
“last week” that he at least was aware of their presence on
the Internet at the time of his testimony. However, his
knowledge of these apparent third-party users of TEAM marks
or names obviously was not personal knowledge of the
companies and their use of their marks, and his initial
knowledge of the websites themselves was derived solely from
the information given him by respondent’s counsel. Even if
we assume that Mr. Henry’s testimony has a proper
foundation, the websites (Exh. Nos. AS27-AS31) upon which
his asserted knowledge is based provide merely de minimis
evidence of third-party use under the sixth du Pont factor,
as discussed above.
Cancellation No. 92043162
28
In short, we have carefully and indeed exhaustively
reviewed the evidence of third-party use of TEAM marks upon
which respondent relies in support of its argument under the
sixth du Pont factor. Even assuming in respondent’s favor
that all of this evidence is admissible in terms of
foundation, authentication and hearsay exception, we find
that the only probative evidence of actual third-party use
consists of the printouts of third-party webpages, and there
are at most only five of them which are pertinent (Exh. Nos.
AS27, AS29, AS30 and AS31 to the Henry 6/5/06 Depo., and
entry DN-44 in the Thomson & Thomson report).
Taken as a whole, we find that respondent’s evidence
provides nothing more than a de minimis showing of third-
party use under the sixth du Pont factor. Certainly, we
cannot conclude that third-party uses of TEAM marks in the
freight transportation industry in the United States are so
numerous and widespread that the relevant purchasing public
has been conditioned to distinguish among such marks based
on minute distinctions. Palm Bay Imports Inc., supra.
Thus, we conclude that the scope of protection to be
afforded to petitioner’s TEAM mark is not significantly
constricted by third-party uses of similar marks in
connection with similar services. If the sixth du Pont
factor weighs in respondent’s favor in this case, it does so
only slightly.
Cancellation No. 92043162
29
Actual Confusion
Under the seventh du Pont factor, we consider the
nature and extent of any actual confusion between the
parties’ marks. In this case, there is no evidence that any
actual confusion has occurred.18
However, in the absence of evidence of actual confusion
under the seventh du Pont factor, we proceed to the related
eighth du Pont factor, which requires us to consider
evidence pertaining to “the length of time during and
conditions under which there has been concurrent [i.e.,
contemporaneous] use without evidence of actual confusion.”
Respondent contends that it commenced actual use of its
TEAM ALLIANCE mark in 1998 (a contention which is not
supported by the record – see supra at footnote 6). Even
assuming that is true, however, the evidence of record
clearly establishes that respondent ceased use of the TEAM
ALLIANCE mark in 2000. (Henry 2/17/06 Disc. Depo. at 78.)19
Given respondent’s nonuse of the mark since 2000, we
find that the absence of evidence of actual confusion (under
the seventh du Pont factor) is neither factually surprising
nor legally significant (under the eighth du Pont factor).

18 We give no weight, under the seventh du Pont factor, to
petitioner’s evidence purporting to show petitioner’s awareness
of past instances of actual confusion between petitioner’s TEAM
mark and the TEAM marks of third parties who are not involved in
this case.
19 We note that petitioner has not pleaded or argued abandonment
as a ground for cancellation in this case.
Cancellation No. 92043162
30
The seventh and eighth du Pont factors thus are neutral in
this case.
Family of Marks
Petitioner contends that it owns a family of TEAM
marks, and that the ninth du Pont factor accordingly weighs
in favor of a finding of likelihood of confusion in this
case.
The Board has stated that:

In order to establish a “family of marks,” it must
be demonstrated that the marks asserted to
comprise its “family” or a number of them have
been used and advertised in promotional material
or used in everyday sales activities in such a
manner as to create common exposure and thereafter
recognition of common ownership based upon a
feature common to each mark.

American Standard, Inc. v. Scott & Fetzer Co., 200 USPQ 457,
461 (TTAB 1978). See also J&J Snack Foods Corp. v.
McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889 (Fed. Cir.
1991). The claimed family of marks must be shown to have
been in existence prior to the junior user’s use of its
allegedly confusingly similar mark, and the “surname” of the
family of marks must be distinctive. Marion Laboratories,
Inc. v. Biochemical/Diagnostics, Inc., 6 USPQ2d 1215 (TTAB
1988).
As discussed above in connection with the first du Pont
factor, we find that TEAM is a distinctive term as applied
Cancellation No. 92043162
31
to petitioner’s freight transportation services. It thus is
capable of serving as the “surname” of a family of marks.
Next, the evidence in this case establishes that, beginning
at least as early as 1997 and thus prior to respondent’s
first use of its TEAM ALLIANCE mark, petitioner in its
advertisements and brochures has been using and promoting
together a number of TEAM marks in connection with its
various types of freight transportation services, including
TEAM AIR EXPRESS, TEAM WORLDWIDE, TEAM OCEAN SERVICES, TEAM
TRANSPORTATION, TEAM INTERNATIONAL, TEAM NORTH AMERICA, TEAM
LOGISTICS and TEAM TECHNOLOGY. See Brunson Depo. at 62-64
and Exh. No. 25; petitioner’s notice of reliance at Exh.
Nos. 19, 27, 36 and 37.
Based on this evidence, we find that petitioner has
established ownership of a prior family of marks consisting
of the distinctive “surname” TEAM followed by an additional
word or words. To the extent that respondent’s TEAM
ALLIANCE mark is similarly constructed and thus reasonably
could be mistaken to be another member of the family of
marks, the ninth du Pont factor weighs in petitioner’s
favor.
Respondent’s Survey
To support its argument that there is no likelihood of
confusion, respondent has submitted survey evidence
(respondent’s Exh. Nos. AS1-AS15) accompanied by the
Cancellation No. 92043162
32
testimony of its expert witness George Mantis, who designed
and conducted the survey and who provided his opinion as to
the results of the survey and the significance of those
results to the likelihood of confusion determination in this
case. Petitioner, for its part, has asserted numerous
challenges to the admissibility and the probative value of
respondent’s survey, and has presented the testimony of its
own survey expert, Daniel Howard, in support of those
challenges.20
Initially, we reject respondent’s contention that we
should draw a negative inference from the fact that
petitioner did not conduct its own likelihood of confusion
survey. The Board will consider survey evidence where it is
offered, but does not require a party to submit such
evidence nor does it draw any negative inference from a
party’s failure to do so. See Hilson Research Inc. v.
Society for Human Resource Management, 27 USPQ2d 1423 (TTAB
1993). Relatedly, we reject respondent’s contention that
petitioner, in attacking respondent’s survey instead of

20 Both respondent and petitioner have identified the survey and
the testimony related thereto as being evidence pertaining to the
twelfth du Pont factor, i.e., “the extent of potential confusion,
i.e., whether de minimis or substantial.” We are aware of no
reported cases in which survey evidence has been considered under
the twelfth du Pont factor, specifically. However, for purposes
of our likelihood of confusion analysis in this case, we, like
the parties, will consider the survey evidence in this case to be
pertinent to the twelfth du Pont factor. Obviously, the evidence
is what it is, regardless of which du Pont factor it is
categorized under.

Cancellation No. 92043162
33
conducting its own survey, “improperly attempts to shift the
burden of proving no confusion to the Respondent.”
(Respondent’s brief at 27.) Petitioner indeed bears the
ultimate burden of proof in this case on the issue of
likelihood of confusion. However, the burden of
establishing the admissibility and probative value of a
particular item of evidence is on the party offering it. It
is respondent who has offered and relies upon the Mantis
survey in support of its contention that there is no
likelihood of confusion. It therefore is respondent who
bears the burden of establishing that the survey is proper
and probative evidence.
Each party has attacked the competence of the other’s
survey expert. We find, however, that both Mr. Mantis and
Mr. Howard are competent witnesses and we therefore have
considered their testimony. However, as discussed below, we
have reached our own conclusion as to the probative value of
the Mantis survey in this case.
What we deem to be the pertinent details regarding the
survey are summarized as follows. The survey was a
telephone survey conducted between November 14, 2005 and
November 29, 2005. During the telephone survey, survey
respondents accessed a website on their computers to view
the survey stimulus. The survey sample consisted of 154
individuals employed by companies with annual revenues of
Cancellation No. 92043162
34
over $1 million, doing business in the agriculture,
manufacturing, wholesale trade and retail trade industries.
These 154 individuals qualified for the survey because,
inter alia, they “are involved in selecting companies that
provide air, land, ship and rail freight transportation
services for their organization.”
The survey respondents were shown the following
stimulus:

TEAM ALLIANCE
Transportation of freight by air, land, ship and rail

The survey respondents were given the following
introductory instructions:

Shown on your screen is a name used by a company
to both identify its services and to distinguish
them from services provided by other companies.
Below this name, in smaller type face, is a
description of the kind of services on which this
name is used.

The pertinent substantive questions (without their
follow-up questions), and Mr. Mantis’ stated “findings” with
respect thereto, are as follows.

Question 1: “What company do you believe uses the name
shown on your screen to identify its services and
distinguish them from services provided by other companies?”

Findings: “In response to Question 1, none of the 154
respondents said that Team Air Express, Inc. is the company
that uses the TEAM ALLIANCE name to identify its services
Cancellation No. 92043162
35
and distinguish them from services provided by other
companies.”

Question 3: “Do you believe that the company that uses
the name shown on your screen uses any other name or names
to identify its services and distinguish them from services
provided by other companies?”

Question 4: “What other name or names do you believe
are used by that company to identify and distinguish its
services?”

Question 8: “Whether or not you know the name of the
company that uses the name shown on your screen, do you
believe that company uses any other name or names to
identify its services and distinguish them from services
provided by other companies?”

Question 9: “What other name or names do you believe
are used by that company to identify and distinguish its
services?”

Findings (for questions 3, 4, 8 and 9): “...twenty-
nine (29) respondents answered in the affirmative that the
company that uses the TEAM ALLIANCE name uses another name
to identify its services and distinguish them from services
provided by other companies. None of these 29 respondents
mentioned Team, Team Air Express, Team Transportation, or
Team Worldwide.”

Question 13: “Do you believe that the company that
uses the name shown on your screen did or did not have the
sponsorship of, or permission from any other company in
order to use this name?”

Question 14: “What other company do you believe gave
its sponsorship or permission to use this name?”

Findings (for questions 13 and 14): “In response to
Question 13, eleven (11) respondents stated a belief that
the company that uses the TEAM ALLIANCE name has the
sponsorship of, or permission from another company in order
to use this name. None of these respondents mentioned Team
Air Express, Inc. Further of the 8 respondents who could
not identify a company in response to Question 14, none
described anything specifically related to Team Air Express,
Inc.”

Cancellation No. 92043162
36
Mr. Mantis (respondent’s expert) and Mr. Howard
(petitioner’s expert) disagree on essentially every issue
pertaining to the validity of Mr. Mantis’ survey and what it
proves or does not prove. Among the points of disagreement
are whether the proper universe and sample were selected,
whether the survey’s methodology was correct, whether the
survey was properly administered, and whether the results
were properly reported. However, we do not need to address
and resolve these technical disputes, because even if we
resolve them all in respondent’s favor, we still conclude
that the survey results are of little or no probative value
on the issue of likelihood of confusion presented in this
case. Put simply, the survey failed to ask the right
question.
The problem with respondent’s survey is apparent from
its preliminary statement of purpose (Exh. No. AS1 at 1),
from its summary of findings (Exh. No. AS1 at 6), and from
Mr. Mantis’ stated conclusion based on those findings (Exh.
No. AS1 at 7). The purpose of the survey is stated as
follows:

The purpose of this study is to determine whether,
and if so, to what extent corporate purchasers of
freight transportation services are likely to
mistakenly believe that Team Air Express, Inc.
uses the name TEAM ALLIANCE to identify its
services and distinguish them from services
provided by other companies, or that Team Air
Express, Inc. has sponsored or approved another
company to use this name.
Cancellation No. 92043162
37

The summary of findings states (in pertinent part):

Not one respondent mistakenly believes that Team
Air Express, Inc. uses the name TEAM ALLIANCE to
identify its services and distinguish them from
services provided by other companies, or that Team
Air Express, Inc. has sponsored or approved
another company to use this name.

Mr. Mantis’ conclusion states:

Based on the results of this study, it is my
opinion that the use of the TEAM ALLIANCE name
will not result in confusion. Corporate
purchasers of freight transportation services do
not mistakenly believe that Team Air Express, Inc.
uses the name TEAM ALLIANCE to identify its
services and distinguish them from services
provided by other companies, or that Team Air
Express, Inc. has sponsored or approved another
company to use this name.

However, the issue in this case is not whether relevant
purchasers (“corporate purchasers of freight transportation
services”) can identify petitioner, by name and unaided, as
the owner or user of the mark TEAM ALLIANCE or as the
company which controls use of that mark. The fact that none
of the survey respondents identified or mentioned petitioner
by name (or any of petitioner’s marks) is of no probative
value in our likelihood of confusion analysis in the present
case. At most, it proves that the survey respondents had no
Cancellation No. 92043162
38
preexisting knowledge of petitioner or its marks.21 Rather,
the issue before us is whether and to what extent relevant
purchasers (as represented by the survey respondents), when
they are exposed to the mark TEAM and also to the mark TEAM
ALLIANCE, are likely to mistakenly assume that these two
marks are owned, or that their use is controlled, by a
single, albeit anonymous, source. See Ava Enterprises Inc.
v. Audio Boss USA Inc., 77 USPQ2d 1783 (TTAB 2006).22 That
question was never raised in respondent’s survey, because

21 It appears from reported cases that the survey format used by
respondent in this case is more often used by a plaintiff seeking
to establish likelihood of confusion, not by a defendant seeking
to disprove likelihood of confusion. If survey respondents who
are shown the defendant’s mark identify the plaintiff as the
owner or user of the mark, that is probative evidence of
likelihood of confusion. See, e.g., Starbucks U.S. Brands v.
Ruben, supra; Carl Karcher Enterprises Inc. v. Stars Restaurants
Corp., supra; Miles Laboratories Inc. v. Naturally Vitamin
Supplements Inc., 1 USPQ2d 1445 (TTAB 1986). Likewise in the
present case, if any of the survey respondents had named
petitioner as the owner of the TEAM ALLIANCE mark, such response
would have been probative evidence of the existence of likelihood
of confusion. The converse is not true, however. That is, we
cannot infer an absence of likelihood of confusion from the fact
that none of the respondents identified, unaided, petitioner or
its marks. Such a respondent still reasonably might be confused
as to source or other affiliation if he or she was exposed in the
survey (or in the marketplace) to both the TEAM mark and the TEAM
ALLIANCE mark.
22 In Ava Enterprises Inc., survey respondents were shown two
cards, one with the plaintiff’s mark and then one with the
defendant’s mark. They were asked, “[d]o you think that the
brand name you saw first and the brand name you saw second come
from the same company, different companies, or are you not
sure?”. Such a head-to-head comparison is not the only way to
adequately gauge the potential for confusion in a likelihood of
confusion survey. For example, survey respondents might have
been shown one party’s mark, and then a list of marks which
includes the other party’s mark, and then been asked if the owner
of the first mark was also the owner of any of the listed marks.
The point is, unless survey respondents are given an opportunity
to see both of the marks at issue, we cannot see how the survey
Cancellation No. 92043162
39
petitioner’s marks were never presented for the survey
respondents’ consideration.
For these reasons, we find that respondent’s survey
evidence is entitled to little or no weight in our analysis
of the likelihood of confusion issue in this case. To the
extent that the parties are correct in treating the survey
evidence as evidence pertaining to the twelfth du Pont
factor, we deem that factor to be neutral in this case.
Likelihood of Confusion – Conclusion
We have carefully considered all of the evidence of
record as it pertains to the du Pont likelihood of confusion
factors.23 We find that the parties’ marks are similar
enough to cause confusion, especially given the fact that
the parties’ services are legally identical. See Century 21
Real Estate Corp. v. Century Life of America, supra. The
parties’ trade channels and classes of purchasers are
legally identical. Although petitioner’s mark is not
famous, neither is its scope of protection narrowed by

can be probative on the question of whether the two marks are
likely to be confused as to source or other affiliation.
23 Petitioner has argued that we should consider certain other
facts under the thirteenth du Pont factor (“any other established
fact probative of the effect of use”). Addressing each of these
in turn, we find, first, that the fact that petitioner is aware
of instances of actual confusion between petitioner’s mark and
the marks of third parties is of little or no probative value,
even if proven. Second, the fact that a court declined to find
that petitioner’s TEAM mark is generic or merely descriptive in
prior litigation between petitioner and a third party is not
probative in the present case. Finally, we find that petitioner
has failed to establish that respondent adopted its TEAM ALLIANCE
mark in bad faith.
Cancellation No. 92043162
40
widespread third-party use of similar marks in connection
with similar services. There is no evidence of actual
confusion, but neither is there any evidence that there has
been a significant opportunity for actual confusion to have
occurred. Petitioner’s ownership of a family of TEAM marks
weighs in petitioner’s favor. Respondent’s survey is
entitled to little if any weight in our likelihood of
confusion analysis.
Considering all of the evidence of record as it
pertains to the du Pont factors, and for the reasons
discussed above, we find that a likelihood of confusion
exists in this case.
CONCLUSION
We conclude that petitioner has established its
standing and its Section 2(d) ground for cancellation, and
that it therefore is entitled to prevail in this proceeding.

Decision: The petition to cancel is granted, and
Registration No. 2445839 will be cancelled in due course.