`
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`
`
`
`This Opinion is Not a
`Precedent of the TTAB
`
`Mailed: November 17, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re James Kelleher
`_____
`
`Serial No. 87882281
`_____
`
`
`
`Christopher P. Bussert of Kilpatrick Townsend & Stockton LLP,
`for James Kelleher.
`Pauline Ha,1 Trademark Examining Attorney, Law Office 115,
`Daniel Brody, Managing Attorney.
`
`
`Before Lykos, Shaw and English,
`Administrative Trademark Judges.
`
`_____
`
`
`Opinion by Lykos, Administrative Trademark Judge:
`
`
` James Kelleher (“Applicant”) seeks to register on the Principal Register the
`
`standard character mark ASK JIM FIRST for, as amended, “Lawyer referral services
`
`provided to consumers who seek to retain an attorney to represent them in personal
`
`
`1 The application was originally assigned to Trademark Examining Attorney Sahar
`Nasserghodsi.
`
`

`

`Serial No. 87882281
`
`injury matters, excluding business advice, inquiries and information services” in
`
`International Class 35.2
`
`Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
`
`§ 1052(d), on the ground that Applicant’s applied-for mark so resembles the
`
`registered standard character mark ASK JIM on the Principal Register for “Business
`
`advice, inquiries or information” in International Class 35,3 that it is likely to cause
`
`confusion or mistake or to deceive.4
`
`Briefing of the appeal is now complete. For the reasons set forth below, we affirm.
`
`I. Likelihood of Confusion
`
`Our determination under Section 2(d) is based on an analysis of all of the
`
`probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
`
`de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). See
`
`also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
`
`2003). We must consider each DuPont factor for which there is evidence and
`
`
`2 Application Serial No. 87882281, filed April 18, 2018, under Section 1(b) of the Trademark
`Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
` Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
`Retrieval (“TSDR”) system and identify documents by title and date. References to the briefs
`and other materials in the appeal record refer to the Board’s TTABVUE docket system.
`3 Registration No. 3289118, registered September 4, 2007; renewed. Registrant’s mark
`appears on the drawing page as “Ask Jim” but retains a claim as to standard characters and
`not special form. See Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a); see also In re Calphalon
`Corp., 122 USPQ2d 1153, 1158-61 (TTAB 2017) (applicant’s amendment of mark from
`SHARPIN to SharpIn did not transform mark from standard character to special form). Our
`references to Applicant’s mark in this opinion in all uppercase letters reflects the fact that a
`term registered as a mark in standard character format is not limited to any particular type
`case, font style, size, or color.
`4 A Section 2(d) refusal based on cited Registration No. 2151373 became moot following the
`cancellation of that registration.
`
`- 2 -
`
`

`

`Serial No. 87882281
`
`argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
`
`63 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
`
`only to prevent buyer confusion as to the source of the services, but also to protect the
`
`registrant from adverse commercial impact due to use of a similar mark by a
`
`newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
`
`1993).
`
`Varying weights may be assigned to each DuPont factor depending on the evidence
`
`presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
`
`USPQ2d 1253, 1261 (Fed. Cir. 2011); Shell Oil Co., 26 USPQ2d at 1688 (“[T]he
`
`various evidentiary factors may play more or less weighty roles in any particular
`
`determination.”). In any likelihood of confusion analysis, however, two key
`
`considerations are the similarities between the marks and the similarities between
`
`the services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46
`
`(Fed. Cir. 2004); 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 [services] and
`
`differences in the marks.”). We discuss these factors and others below.
`
`A. The Marks
`
`
`This first DuPont likelihood of confusion factor involves an analysis of the
`
`similarity or dissimilarity of the marks in their entireties as to appearance, sound,
`
`connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot
`
`Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
`
`- 3 -
`
`

`

`Serial No. 87882281
`
`2005) (citing DuPont, 177 USPQ at 567). “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., 777 F. App’x (Fed. Cir. 2019). Accord
`
`Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA
`
`1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
`
`to cause confusion.”) (citation omitted). “The proper test is not a side-by-side
`
`comparison of the marks, but instead ‘whether the marks are sufficiently similar in
`
`terms of their commercial impression’ such that persons who encounter the marks
`
`would be likely to assume a connection between the parties.” Coach Servs., Inc. v.
`
`Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
`
`(citation omitted).
`
`As noted above, the applied-for mark is ASK JIM FIRST, and the cited mark is
`
`ASK JIM. To state the obvious, both marks are slogans and are highly similar in
`
`sound and appearance, with an almost identical meaning and commercial impression.
`
`In addition, Applicant’s mark incorporates the entirety of the cited mark. While there
`
`is no per se rule that likelihood of confusion automatically applies where one mark
`
`encompasses another, likelihood of confusion has often been found where the entirety
`
`of one mark is incorporated within another. See In re Denisi, 225 USPQ 624, 626
`
`(TTAB 1985) (PERRY’S PIZZA for restaurant services specializing in pizza and
`
`PERRY’S for restaurant and bar services); see also Coca-Cola Bottling Co. of
`
`Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
`
`USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine
`
`- 4 -
`
`

`

`Serial No. 87882281
`
`water and ginger ale likely to cause confusion with BENGAL for gin); In re Integrated
`
`Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016) (applicant’s mark BARR GROUP
`
`wholly encompasses the registered mark BARR); Johnson Publ’g Co. v. Int’l Dev. Ltd.,
`
`221 USPQ 155, 156 (TTAB 1982) (applicant’s mark EBONY DRUM for hairdressing
`
`and conditioner is likely to cause confusion with EBONY for cosmetics); In re U.S.
`
`Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (finding applicant’s CAREER IMAGE
`
`marks similar to registered mark CREST CAREER IMAGES). This principle holds
`
`true here especially given that the sole distinguishing word, FIRST, appears at the
`
`end of the phrase ASK JIM in Applicant’s mark. For this reason, consumers are likely
`
`to perceive the applied-for mark ASK JIM FIRST as a variation of the cited mark
`
`ASK JIM.
`
`Overall the marks are similar in sound, sight, connotation and commercial
`
`impression. In making this finding, we note the differences in sight and sound.
`
`Consumers, however, do not focus on minutia but rather overall impressions. The sole
`
`distinguishing feature is likely to be overlooked when consumers consider the marks
`
`in their entireties. This DuPont factor weighs in favor of finding a likelihood of
`
`confusion.
`
`B. Strength of the Cited Mark
`
`Applicant postulates that the cited registration ASK JIM is entitled to only a
`
`narrow scope of protection. In support thereof, Applicant points to third-party
`
`registered marks incorporating the word ASK for both related and unrelated services
`
`(ASK LEGAL, ASK LEGAL BRAINS, ASK LESLIE THE LAWYER, ASK A
`
`- 5 -
`
`

`

`Serial No. 87882281
`
`LAWYER, ASKDOCTORLAW, 1-800-ASK DAVE, ASK RITA K, ASK THE DOM,
`
`ASK THE GENIUS, ASK SOMEONE YOU TRUST ABOUT US, ASK STEVE FOR
`
`FREE, ASK GARY, ASKLAW, ASK LAW OFFICES, ASK DAVE, JUST ASK, and 1-
`
`800-ASK-GARY); third-party registered marks incorporating the word FIRST for
`
`related and unrelated services (CALL BART FIRST, CLICK ME FIRST, CALL ME
`
`FIRST, CLICK BART FIRST, BUSINESS LAWYERS FIRST, and RESULTS FIRST);
`
`and third-party registered marks incorporating both ASK and FIRST (ASK US
`
`FIRST, ASK ME FIRST, ASK COLIN FIRST and ASK FIRST).5
`
` Third-party registrations alone may be relevant, in the manner of dictionary
`
`definitions, “to prove that some segment of the [marks] has a normally understood
`
`and well recognized descriptive or suggestive meaning, leading to the conclusion that
`
`that segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
`
`1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (internal quotation marks omitted).
`
`See also Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
`
`Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir.
`
`2015). In addition, “in determining the degree of weakness, if any, in the shared
`
`terms, we must ‘adequately account for the apparent force of [third-party use and
`
`registration] evidence,’ regardless of whether ‘specifics’ pertaining to the extent and
`
`impact of such use have been proven.” Inn at St. John’s, 126 USPQ2d at 1746.
`
` Some of the third-party registrations have been cancelled. For example,
`
`Registration No. 2151373 for the mark ASK FIRST for “physician referral services”
`
`
`5 See May 1, 2019 Request for Reconsideration, pp. 66-94.
`
`- 6 -
`
`

`

`Serial No. 87882281
`
`was cancelled for failure to file a Section 8 affidavit or declaration showing use of the
`
`mark in commerce in the United States. “The existence of a cancelled registration—
`
`particularly one cancelled for failure to provide a declaration of continued use—does
`
`not tend to show that the cited mark is weak due to third-party use.” Inn at St. John’s,
`
`126 USPQ2d at 1745. See also New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d
`
`10596, *12-13 (TTAB 2020). Of the remaining third-party registrations, none
`
`incorporate the given name JIM, an integral feature of the cited mark, or for that
`
`matter both ASK and JIM for the same or related services. Applicant has not shown
`
`that the cited mark ASK JIM is conceptually weak in connection with the identified
`
`services or services related thereto, making the cited mark deserving a lesser scope
`
`of protection.
`
`C. The Services
`
`Next we compare the services as they are identified in the involved application
`
`and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
`
`1047, 1052 (Fed. Cir. 2018); Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
`
`F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous.
`
`Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); and
`
`Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
`
`(Fed. Cir. 2002). The services need not be identical or even competitive to find a
`
`likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56
`
`USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
`
`1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
`
`- 7 -
`
`

`

`Serial No. 87882281
`
`circumstances surrounding their marketing are such that they could give rise to the
`
`mistaken belief that the [services] emanate from the same source.” Coach Servs., Inc.
`
`v. Triumph Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler,
`
`83 USPQ2d 1715, 1724 (TTAB 2007)). Evidence of relatedness may include news
`
`articles and/or evidence from computer databases showing that the relevant services
`
`are used together or used by the same purchasers; advertisements showing that the
`
`relevant services are advertised together or sold by the same manufacturer or dealer;
`
`and/or copies of prior use-based registrations for both applicant’s services listed in
`
`the cited registration. See In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014).
`
`Applicant amended his identification of services to exclude Registrant’s services.6
`
`The Examining Attorney’s position is that notwithstanding the amendment, the
`
`services are in-part legally identical, or alternatively, that they are related.
`
`Turning first to the question of whether the services are in-part legally identical,
`
`the Examining Attorney contends that Registrant’s business information services are
`
`sufficiently broad to encompass Applicant’s “Lawyer referral services provided to
`
`consumers who seek to retain an attorney to represent them in personal injury
`
`matters.” As evidentiary support, the Examining Attorney points to the following
`
`dictionary definitions and WIKIPEDIA entries:
`
`The definition of “business” from COLLINS DICTIONARY as
`used as “work relating to the production, buying, and
`
`
`6 The original identification of services was “Legal referral services.” On May 3, 2019,
`Applicant’s first amendment to “Legal referral services provided to consumers primarily on
`personal injury matters” was approved. The second and final amendment to the identification
`was approved on January 29, 2020 following Applicant’s January 27, 2020 Request for
`Remand.
`
`- 8 -
`
`

`

`Serial No. 87882281
`
`selling of goods or services” or an “organization which
`produces and sells goods or which provides a service.”7
`The definition of “information” from COLLINS DICTIONARY
`as “about someone or something consists of facts about
`them.”8
`The entry for “business information” from WIKIPEDIA as
`“one of the three main segments of the information
`industry,” and describing “primary business information
`formats” as including “basic reference sources such
`as…internet resources,” “[d]irectories,” and “[e]lectronic
`business information.”9
`Based on these definitions, the Examining Attorney takes a broad view of
`
`Registrant’s business information services as encompassing “directory listings and
`
`business contact information for businesses providing legal services, including law
`
`firms and solo and associated attorneys,” which would presumably include
`
`Applicant’s “Lawyer referral services provided to consumers who seek to retain an
`
`attorney to represent them in personal injury matters.” The Examining Attorney
`
`attempts to make this connection by pointing to the following evidence describing the
`
`nature of online directories:
`
`ApricotLaw Blog stating “Online directory listings are
`websites that collect business information to make it easier
`for someone to find a business they’re looking for, and to
`compare businesses’ basic information to see which one will
`meet the potential client’s needs….For example, legal
`directories are going to be the most helpful for law firms.
`There are even directories that further break down the
`listings into practice areas….”10
`
`
`7 See November 27, 2019 Office Action, pp. 2-3.
`8 Id. at 3.
`9 Id. at 4.
`10 Id. at 5.
`
`- 9 -
`
`

`

`Serial No. 87882281
`
`AttorneyatWork highlighting the importance of having
`“Correct Business Information” in the nature of “business
`address and contact information” and “business category”
`on business listing sites.11
`PaperStreet stating that business information for use on
`various online directories
`includes “business name,
`address, and phone,” as well as “a backlink to their
`website.”12
`
`The dictionary definitions of “business,” “information,” and “business information”
`
`proffered by the Examining Attorney are too imprecise for us to find that they
`
`subsume the legal referral services of the type identified in the application. We also
`
`reach the same conclusion as to the excerpts from AttorneyatWork and
`
`PaperStreet describing online directory services. While more on point, the excerpt
`
`from ApricotLaw consists of a blog, which while relevant, is of less probative weight
`
`since we cannot ascertain the degree of exposure.13 See In re Morrison & Foerster
`
`LLP, 110 USPQ2d 1423, 1424 n.2 (TTAB 2014) (“These blog postings are from what
`
`appear to be well-established media sources with national circulation and public
`
`exposure as well as more obscure blogs for which we cannot ascertain the degree of
`
`
`11 Id. at 6-8.
`12 Id. at 9-11.
`13 The Board does consider blog postings, taking into account their origin. See TRADEMARK
`TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1208.03 (2020). Blogs hosted by
`nationally known enterprises or media outlets will have greater probative value than blogs
`hosted by individuals insofar as we do not know the extent of the reach to the public for
`individual postings. See, e.g., In re Geller, 751 F.3d 1355, 110 USPQ2d 1867, 1870 (Fed. Cir.
`2014) (the Board, in noting that “the probative value of the blog comments … is less than
`that of the articles themselves due to the anonymity of the authors,” did not err in concluding
`that such comments shed light on the meaning of words in the mark.
`
`
`- 10 -
`
`

`

`Serial No. 87882281
`
`exposure. As such, we are aware that many of the blogs may simply reflect the
`
`perception of a single author and not that of the general public.”).
`
`Having determined that the evidence does not establish that the services are
`
`legally identical, we now turn to the question of whether substantial evidence exists
`
`to show that the services are related. To support the assertion that the services are
`
`related because some entities provide both Applicant’s and Registrant’s services, the
`
`Examining Attorney made of record with the initial Office Action refusing
`
`registration excerpts from the LegalZoom, LegalShield and Rocket Lawyer
`
`websites:14
`
`
`14 See August 14, 2018 Office Action, pp. 12-38.
`
`- 11 -
`
`

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`Serial No. 87882281
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`Serial No. 87882281
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`Serial No. 87882281
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`Serial No. 87882281
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`Serial No. 87882281
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`With the May 21, 2019 Office Action, the Examining Attorney supplemented the
`
`record with excerpts from the NOLO website:15
`
`
`
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`15 May 21, 2019 Office Action, pp. 9-18.
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`- 27 -
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`Serial No. 87882281
`
`{I NOLO
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`LIVE CHAT
`Hi‘ you mayyusi he hrnw"
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`recovery amount or ifthe claim is not crystal clear.
`l-iere's where to look for referrals:
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`Friends and Acquaintances
`Talk with friends or coworkers who have been represented by a lawyer in their own personal
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`on your list of people to consult. But do not make a decision about a lawyer solely on the
`basis orsomeone else's recommendation. Different people will have different responses to a
`lawyer’s style and personality: don‘t make up your mind about hiring a lawyer until you've met
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`Nolo's Lawyer Directory
`Nolo offers two ways to find an attorney You can use the "Talk to a Personal injury Lawyer“
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`Other Lawyers
`Another place to seek a referral to an experienced personal injury lawyer is through other
`lawyers you know Lawyers commonly refer cases to one another. and most lawyers will
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`Referral Services
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`“mus- Featured Personal Injury Law Firms In
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`Hi. you mayyust be brow 9 but we
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`Most local bar associations have referral services in which the names ofiawyers are
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