Determining whether there is a likelihood of confusion under Section 2(d) of the Lanham Act typically involves comparing the goods or services as they are identified in the application and cited registration to evaluate 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 or services. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018); Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding pepper sauce and agave related where evidence showed both were used for the same purpose in the same recipes and thus consumers were likely to purchase the products at the same time and in the same stores). 

Where the identification of goods or services is unclear, extrinsic evidence can be considered to determine whether that identification has a specific meaning in the industry. See In re C.H. Hanson Co., 116 USPQ2d 1351, 1354 (TTAB 2015) (“When identifications are technical or vague and require clarification, it is appropriate to consider extrinsic evidence of use to determine the meaning of the identification of goods [or services].”); In re Thor Tech, Inc., 90 USPQ2d 1634, 1638 & n.10 (TTAB 2009) (noting that, although extrinsic evidence may not be used to limit or restrict the identified goods or services, it is nonetheless proper to consider extrinsic evidence in the nature of dictionary entries to define the terminology used to describe the goods or services); In re Trackmobile Inc., 15 USPQ2d 1152, 1154 (TTAB 1990) (noting that, “when the description of goods [or services] for a cited registration is somewhat unclear . . . it is improper to simply consider that description in a vacuum and attach all possible interpretations to it when the applicant has presented extrinsic evidence showing that the description of goods [or services] has a specific meaning to members of the trade.”).

In reversing a Section 2(d) refusal of the applied-for LendingOne mark in view of the registered mark, LENDERS ONE, the TTAB held that the precise nature of “cooperative mortgage lending services,” as identified in the cited registration, is not readily apparent. In re LendingOne, LLC, Serial No. 97627670 (TTAB Aug. 20, 2024). 

Based on the Registrant's own website, the TTAB found that Registrant is a cooperative comprised of independent mortgage bankers that provides bundled support services to its members in order to compete against large mortgage lenders; but does not provide mortgage loans or mortgage lending services. 

In contrast, Applicant's specimen states that the focus of its services is to provide loans to real estate investors. 

The TTAB concluded that these respective services “are not legally identical.”

Although the marks were highly similar, the TTAB held that this is “outweighed by the findings that the services are unrelated, the channels of trade and classes of purchasers do not overlap, and consumers of both Applicant's and Registrant's services will exercise more than ordinary care in their purchasing decisions.”