For likelihood of confusion under the second factor of the DuPont test for a Section 2(d) refusal, the goods or services need not be identical or even competitive to support a finding of likelihood of confusion. Rather, it is sufficient that the services are related in some manner and/or that the circumstances surrounding their marketing are such that they would be likely to be encountered by the same persons in situations that would give rise, because of the marks used thereon, to the mistaken belief that they originate from or are in some way associated with the same producer or provider. See Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2021); 7-Eleven Inc. v. Wechsler, 2007 WL 1431084, at *6 (TTAB 2007); see also  In re Thor Tech, Inc., 2009 WL 1098997, at *2 (TTAB 2009) (“[T]he greater the degree of similarity between the applicant's mark and the registered mark, the lesser the degree of similarity between the applicant's goods [or services] and registrant's goods [and services] that is required to support a finding of likelihood of confusion.”).

Indeed, complementary services may be found to be related. In re Summit Hotel Corp., 1983 WL 51899, at *1 (TTAB 1983) (finding restaurant and hotel services related because the services are complementary); In re Code Consultants Inc., 2001 WL 1149619, at *4 (TTAB 2011) (“As the evidence made of record by the Examining Attorney shows, inspection of fire and sprinkler systems is an important part of the construction inspection process. It is clear that there is a complementary relationship between these two activities.”). 

The TTAB recently found that "music lessons and live musical performances are inherently related and complementary services as music students showcase what they have learned in recitals, i.e., live musical performances." In re Freeway Music, LLC, Serial No. 97421483 (TTAB Jun. 12, 2024). The TTAB affirmed a Section 2(d) refusal to register FREEWAY MUSIC for "Instruction in the nature of music lessons" in view of the registered mark FREEWAY for "audio and video recordings featuring musical entertainment."  

Applicant's specimen of use (screenshots from its website), showed Applicant's mark FREEWAY MUSIC being used for both music lessons and live musical performances. The TTAB noted that this supported finding that there is a commercial relationship between Applicant's and Registrant's services. See also Nike, Inc. v. WNBA Enters, LLC, 2007 WL 763166, at *7 (TTAB 2007) (finding persuasive the fact that applicant itself offered or intended to offer both types of products under its mark). 

Also, as a general proposition, third-party registrations that cover goods and/or services of the types identified in both the cited registration and an Applicant's application are relevant to show that the goods and/or services are of a type that may emanate from a single source under one mark.” In re Country Oven, 2019 WL 6170483, at *5 (TTAB 2019) (“Because the benefits of registration are commensurate with the scope of the goods [or services] specified in the certificate of registration, a registration that describes goods [or services] broadly is presumed to encompass all goods or services of the type described.”); see also In re Embiid, 2021 WL 2285576, at *10 (TTAB 2021) (evidence of relatedness may include prior use-based registrations covering both parties' goods or services). Although some of the third-party registrations made of record identified education services generally, the TTAB nonetheless found them to be pertinent "because the recitations are broad enough to encompass education services in the nature of music lessons." 

The TTAB held that FREEWAY MUSIC for “instruction in the nature of music lessons” was likely to cause confusion with the cited mark FREEWAY for “entertainment services, namely, live performances by a musical group.” 

The attorneys at Thomas P. Howard, LLC are experienced in trademarks nationwide including in Colorado.