TTAB Dismisses Petition for Cancellation: No Proof of Relatedness of Services or Overlapping Trade Channels

The Board dismissed this petition for cancellation of a registration for the marks MOSAYEC (standard characters) for "providing temporary use of a web-based software application for use by children and youth to evaluate, select, and plan extracurricular activities that advance personal, educational, and career goals", finding the mark not likely to cause confusion with the mark MOSAEC for "entertainment services, namely, providing on-line reviews of entertainment, film, fine arts, museums, literature, culture, music, sports, fashion, theater, and dance; providing a website featuring entertainment information in the field(s) of entertainment, film, fine arts, museums, literature, culture, music, sports, fashion, theater, dance, and news." RLP Ventures, LLC v. All Hands Instruction NF, Cancellation No. 92062870 (March 5, 2018) [not precedential] (Opinion by Judge Lorelei Ritchie).

The Board first brushed aside two harmless procedural errors: Due to a miscalculation, petitioner's main brief was one day late; and petitioner filed a discovery deposition of respondent's president without an accompanying notice of reliance.

Petitioner established priority and its mark was found to be inherently distinctive. Since the involved marks differ only by the addition of the letter "Y," "which is unlikely to affect the pronunciation," the Board deemed the marks to be similar in sight, sound, and commercial impression.

Respondent argued that petitioner's mark is weak, pointing to various websites that use the term “MOSAIC” for similar services and to third-party registrations for that term. The Board, however, found that "by and large these overwhelmingly include the term 'MOSAIC' spelled with an 'I' and not an 'E.'"  The Board considered this factor to be neutral.

Turning to the services and channels of trade, there was "no evidence that consumers would expect these services to derive from a single source." Both parties offer their services via the Internet: respondent’s services are targeted “for use by children and youth,” while petitioner’s services are more generally oriented and may include services for children and youth. The Board, however, concluded that there was "insufficient evidence to find that the channels of trade will overlap."

The Board therefore found no likelihood of confusion and it dismissed the petition for cancellation.

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Text Copyright John L. Welch 2018.