Stone Lion Capital Partners, L.P. v. Lion Capital LLP

  United States Court of Appeals
      for the Federal Circuit
                ______________________

     STONE LION CAPITAL PARTNERS, L.P.,
                 Appellant,

                           v.

                LION CAPITAL LLP,
                       Appellee.
                ______________________

                      2013-1353
                ______________________

    Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in Opposition
No. 91191681.
                 ______________________

               Decided: March 26, 2014
               ______________________

   PRATIK A. SHAH, Akin Gump Strauss Hauer & Feld,
LLP, of Washington, DC, argued for appellant. Of counsel
on the brief were KAROL A. KEPCHAR, RUTHANNE M.
DEUTSCH and EMILY C. JOHNSON.

    MICHAEL CHIAPPETTA, Fross, Zelnick, Lehrman & Zis-
su, P.C. of New York, New York, argued for appellee.
                 ______________________

     Before RADER, Chief Judge, REYNA, and WALLACH,
                   Circuit Judges.
2          STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



WALLACH, Circuit Judge.
    Stone Lion Capital Partners, L.P. (“Stone Lion”) ap-
peals from the Trademark Trial and Appeal Board’s
(“Board”) decision refusing registration of the mark
“STONE LION CAPITAL” due to a likelihood of confusion
with opposer Lion Capital LLP’s (“Lion”) registered
marks, “LION CAPITAL” and “LION.” Because the
Board’s decision is supported by substantial evidence and
in accordance with the law, this court affirms.
                     BACKGROUND
                     I. The Parties
    Both Stone Lion and Lion are investment manage-
ment companies. Appellant Stone Lion is a New York
based company founded in November 2008, and manages
a hedge fund that focuses on credit opportunities. Appel-
lee Lion is a private equity firm based in the United
Kingdom that invests primarily in companies that sell
consumer products.
    Lion has two registered marks with the Patent and
Trademark Office (“PTO”), “LION CAPITAL” and “LION.”
Lion started using these marks in the United States in
April 2005, and filed the applications for “LION
CAPITAL” and “LION” in May 2005 and October 2007,
respectively. 1 The services recited in connection with
Lion’s registered trademarks include “financial and
investment planning and research,” “investment man-
agement services,” and “capital investment consultation”
for “LION”; and “equity capital investment” and “venture
capital services” for “LION CAPITAL.” J.A. 7–8. There is




    1 The PTO granted Lion’s application for “LION
CAPITAL” in December 2008 and for “LION” in June
2009.
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP        3



no dispute that Lion has priority over Stone Lion with
respect to these marks.
            II. Proceedings Before the Board
    On August 20, 2008, Stone Lion filed an intent-to-use
application to register the mark “STONE LION
CAPITAL” with the PTO. It proposed using the mark in
connection with “financial services, namely investment
advisory services, management of investment funds, and
fund investment services.” U.S. Trademark Application
Serial No. 77551196 (filed Aug. 20, 2008). Lion opposed
the registration under section 2(d) of the Lanham Act, 15
U.S.C. § 1052(d) (2006), alleging Stone Lion’s proposed
mark would be likely to cause confusion with Lion’s
registered marks when used for Stone Lion’s recited
financial services.
    The Board conducted the likelihood of confusion in-
quiry pursuant to the thirteen factors set forth in In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361
(C.C.P.A. 1973):
   (1) The similarity or dissimilarity of the marks in
   their entireties as to appearance, sound, connota-
   tion and commercial impression.
   (2) The similarity or dissimilarity and nature of
   the goods or services as described in an applica-
   tion or registration or in connection with which a
   prior mark is in use.
   (3) The similarity or dissimilarity of established,
   likely-to-continue trade channels.
   (4) The conditions under which and buyers to
   whom sales are made, i.e. “impulse” vs. careful,
   sophisticated purchasing.
   (5) The fame of the prior mark (sales, advertising,
   length of use).
4          STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



    (6) The number and nature of similar marks in
    use on similar goods.
    (7) The nature and extent of any actual confusion.
    (8) The length of time during and conditions un-
    der which there has been concurrent use without
    evidence of actual confusion.
    (9) The variety of goods on which a mark is or is
    not used (house mark, “family” mark, product
    mark).
    (10) The market interface between applicant and
    the owner of a prior mark . . . .
    (11) The extent to which applicant has a right to
    exclude others from use of its mark on its goods.
    (12) The extent of potential confusion, i.e., wheth-
    er de minimis or substantial.
    (13) Any other established fact probative of the ef-
    fect of use.
Id. The parties presented evidence regarding factors one
through six. The Board found that factors one through
four weighed in favor of finding a likelihood of confusion,
and that the remaining factors were neutral. With re-
spect to the first factor, the similarity of the marks, the
Board reasoned that Stone Lion’s mark “incorporates the
entirety of [Lion’s] marks,” and that the noun “LION” was
“the dominant part of both parties’ marks.” J.A. 13–14.
The addition of the adjective “STONE” was “not sufficient
to distinguish the marks,” and the Board concluded the
marks were “similar in sight, sound, meaning, and overall
commercial impression.” J.A. 14.
    The Board determined the second DuPont factor, the
similarity of the services, “weigh[ed] strongly in favor of
likelihood of confusion,” J.A. 10, because at least some of
the services recited in Stone Lion’s application were
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP         5



“legally identical” to Lion’s covered services, J.A. 11. For
example, Stone Lion’s applied-for services “management
of investment funds” and “investment advisory services”
were at least coextensive with Lion’s recited services
“management of a capital investment fund” and “capital
investment consultation,” respectively. J.A. 10.
    The Board found the third DuPont factor, considering
the application’s and registrations’ “channels of trade,”
also weighed strongly in favor of finding a likelihood of
confusion. “[B]ecause the services described in the appli-
cation and opposer’s registrations are in part legally
identical,” the Board presumed the services “‘travel[ed] in
the same channels of trade and [were] sold to the same
class of purchasers.’” J.A. 11 (quoting In re Smith &
Mehaffey, 31 U.S.P.Q.2d 1531, 1532 (T.T.A.B. 1994)).
    Finally, the Board found that factor four, the sophisti-
cation of the purchasers, weighed in favor of Lion. Alt-
hough the Board acknowledged that the parties in fact
targeted “sophisticated” investors and required large
minimum investments, it was “constrained to consider the
parties’ services as they are recited in the application and
registrations, respectively.” J.A. 19. Because Stone
Lion’s “investment advisory services” and Lion’s “capital
investment consultation” “could be offered to, and con-
sumed by anyone . . . , including ordinary consumers
seeking investment services,” the Board found the fourth
DuPont factor favored Lion. J.A. 19.
     The remaining factors were found to be “neutral.” In
particular, the Board found factor five—the strength of
Lion’s marks—was neutral because Lion failed to show
“that its marks are well-known in the financial services
field.” J.A. 14. With respect to the sixth factor regarding
the number and nature of similar third-party marks, the
Board attached little importance to Stone Lion’s internet
printouts referencing third-party investment groups with
“LION” in their name, stating that such “third-party
6          STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



evidence . . . generally has minimal probative value
where, as here, it is not accompanied by any evidence of
consumer awareness.” J.A. 16. The Board ultimately
found there was not a “crowded field of LION-formative
marks for similar investment services.” J.A. 18. Upon
weighing all of the pertinent DuPont factors, the Board
found Lion met its burden to establish a likelihood of
confusion by a preponderance of the evidence, and refused
Stone Lion’s application.
    Stone Lion filed this timely appeal. This court has ju-
risdiction pursuant to 15 U.S.C. § 1071(a)(1) (2012) and
28 U.S.C. § 1295(a)(4)(B) (2012).
                       DISCUSSION
    Section 2(d) of the Lanham Act provides that a
trademark may be refused registration if it so resembles a
prior used or registered mark “as to be likely, when used
on or in connection with the goods of the applicant, to
cause confusion, or to cause mistake, or to deceive.” 15
U.S.C. § 1052(d). Likelihood of confusion is a question of
law with underlying factual findings made pursuant to
the DuPont factors. M2 Software, Inc. v. M2 Commc’ns,
Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006). This court
reviews the Board’s factual findings on each DuPont
factor for substantial evidence, In re Pacer Tech., 338 F.3d
1348, 1349 (Fed. Cir. 2003), and its legal conclusion of
likelihood of confusion de novo, On-Line Careline, Inc. v.
Am. Online, Inc., 229 F.3d 1080, 1084 (Fed. Cir. 2000).
Substantial evidence is “such relevant evidence as a
reasonable mind would accept as adequate to support a
conclusion.” Consol. Edison Co. of N.Y. v. N.L.R.B., 305
U.S. 197, 229 (1938).
    On appeal, Stone Lion challenges the Board’s findings
with respect to DuPont factors one, three, and four. It
contends the Board: (1) “conducted an erroneous compari-
son of the marks,” pursuant to factor one, Appellant’s Br.
32, (2) “erred in analyzing the purchasers and trade
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP        7



channels” in factor three, id. at 42, and (3) “committed
legal error in dismissing purchaser sophistication and
conditions of sale” in factor four, id. at 22. Each argu-
ment is considered in turn.
 I. The Board Properly Compared the Marks Pursuant to
                the First DuPont Factor
    The similarity of the marks is determined by focusing
on “‘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 1371 (Fed. Cir. 2005) (quoting
DuPont, 476 F.2d at 1361). With respect to the Board’s
reasoning that Stone Lion’s mark “incorporates the en-
tirety of [Lion’s] marks,” Stone Lion contends “the Board’s
analysis rests on the faulty assumption that incorporating
an opposer’s mark necessarily results in a likelihood of
confusion,” which, it says, “is not the law.” 2 Appellant’s
Br. 34. Stone Lion further criticizes the Board’s finding
that the noun “LION” was “the dominant part of both
parties’ marks.” J.A. 14. “‘[L]ikelihood of confusion
cannot be predicated on dissection of . . . only part of a
mark,’” and Stone Lion argues “the Board’s analysis
undertook the very dissection of the mark that this Court
forbids.” Appellant’s Br. 33 (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 1059 (Fed. Cir. 1985)). According to


   2    Stone Lion argues the Board’s “incorporation”
analysis is improper for the additional reason that it gave
“CAPITAL” meaningful weight, even though both parties
“disclaimed the exclusive right to the term.” Appellant’s
Br. 33–34. The Board recognized the parties’ disclaimer,
however, and accordingly attached less significance to
that term. J.A. 13 (quoting In re Code Consultants, Inc.,
60 U.S.P.Q.2d 1699, 1702 (T.T.A.B. 2001) (disclaimed
subject matter is often “less significant in creating the
mark’s commercial impression”)).
8           STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



Stone Lion, the Board improperly “fail[ed] to assess the
commercial impression made by STONE LION CAPITAL
as a whole.” Id. at 33.
    These arguments misconstrue the Board’s analysis.
The Board properly considered whether the marks were
“similar in sight, sound, meaning, and overall commercial
impression.” J.A. 14. Although it reasoned that “LION”
was “dominant” in both parties’ marks, “there is nothing
improper in stating that . . . more or less weight has been
given to a particular feature of a mark, provided the
ultimate conclusion rests on consideration of the marks in
their entireties.” In re Nat’l Data Corp., 753 F.2d at 1059.
Nor did the Board err by according little weight to the
adjective “STONE,” on the ground that it did not “distin-
guish the marks in the context of the parties’ services.”
J.A. 13–14; see 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 23:50 (4th ed.)
(“[A]ddition of a suggestive or descriptive element is
generally not sufficient to avoid confusion.”); see also In re
Rexel Inc., 223 U.S.P.Q. 830 (T.T.A.B. 1984) (finding
likelihood of confusion between GOLIATH for pencils and
LITTLE GOLIATH for a stapler). The Board properly
rested its “ultimate conclusion” of similarity “on consider-
ation of the marks in their entireties.” See In re Nat’l
Data Corp., 753 F.2d at 1059.
    Stone Lion also challenges the Board’s finding that
the proposed mark has the same overall commercial
impression as Lion’s registered marks. It contends that
“STONE LION” “is the most communicative and evocative
aspect of the mark,” and “contains an initial sibilant
sound not found in either of Lion Capital’s marks.” Ap-
pellant Br. 38. Its “meaning[ is] also quite different,”
according to Stone Lion, and connotes “patience, courage,
fortitude and strength” as opposed to “just LION, which
communicates no such lithic significance.” Id. The record
adequately supports the Board’s contrary conclusions,
however, and the Board did not err in finding that
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP        9



“STONE LION CAPITAL” is “similar in sight, sound,
meaning, and overall commercial impression” to “LION
CAPITAL” and “LION.” See J.A. 14.
    Finally, Stone Lion argues the Board gave inadequate
weight to Lion’s statements during prosecution of its
“LION CAPITAL” registration distinguishing the third-
party mark “ROARING LION.” Appellant’s Br. 40. A
party’s prior arguments may be considered as “illumina-
tive of shade and tone in the total picture,” but do not
alter the Board’s obligation to reach its own conclusion on
the record. Interstate Brands Corp. v. Celestial Season-
ings, Inc., 576 F.2d 926, 929 (C.C.P.A. 1978). The Board’s
findings under the first DuPont factor are affirmed. 3
  II. The Board Properly Compared the Relevant Trade
      Channels Pursuant to the Third DuPont Factor
    The third DuPont factor considers “[t]he similarity or
dissimilarity of established, likely-to-continue trade



   3      Stone Lion contends “the Board committed legal
error by according excessive weight to the perceived
similarities between the marks.” Appellant’s Br. 39.
According to Stone Lion, “having concluded that the Lion
Capital marks are not strong or well-known in the finan-
cial services field, the Board overlooked that the level of
renown of an opposer’s mark is supposed to play a ‘domi-
nant role in the process of balancing the DuPont factors.’”
Id. (quoting Recot, Inc. v. M.C. Becton, 214 F.3d 1322,
1327 (Fed. Cir. 2000)). The Board never found that Lion’s
marks were weak. It found that in spite of news about
Lion’s investments featured in, e.g., The Wall Street
Journal and The New York Times, the marks were not
“well-known.” J.A. 14. Stone Lion does not challenge
these fact-findings on appeal, and the Board did not err in
declining to give this neutral factor determinative weight
in its likelihood of confusion analysis.
10         STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



channels.” DuPont, 476 F.2d at 1361. The Board found
the application and the registrations contained “no limita-
tions” on the channels of trade and classes of purchasers
and therefore “presume[d] that the parties’ services travel
through all usual channels of trade and are offered to all
normal potential purchasers.” J.A. 11. The parties’
recited services were in part legally identical, so the
Board concluded the “channels of trade and classes of
purchasers are the same.” J.A. 11. Because the applica-
tion and registrations shared the same channels of trade
and classes of purchasers, the Board determined the third
DuPont factor weighed in favor of finding a likelihood of
confusion.
    On appeal, Stone Lion contends the Board “fail[ed] to
examine the record to determine which types of persons
within these organizations the parties normally dealt
with.” Appellant’s Br. 43. It contends the Board’s find-
ings on the third DuPont factor are unsupported by sub-
stantial evidence because there was no overlap between
the parties’ actual investors.
    It was proper, however, for the Board to focus on the
application and registrations rather than on real-world
conditions, because “the question of registrability of an
applicant’s mark must be decided on the basis of the
identification of goods set forth in the application.” Octo-
com Sys., Inc. v. Houston Comp. Servs. Inc., 918 F.2d 937,
942 (Fed. Cir. 1990). This is so “regardless of what the
record may reveal as to the particular nature of an appli-
cant’s goods, the particular channels of trade or the class
of purchasers to which sales of the goods are directed.”
Id. Even assuming there is no overlap between Stone
Lion’s and Lion’s current customers, the Board correctly
declined to look beyond the application and registered
marks at issue. An application with “no restriction on
trade channels” cannot be “narrowed by testimony that
the applicant’s use is, in fact, restricted to a particular
class of purchasers.” Id. at 943. The Board thus properly
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP       11



found Stone Lion’s application and Lion’s registrations
covered the same potential purchasers and channels of
trade.
III. The Board Properly Considered the Sophistication of
 Potential Customers Under the Fourth DuPont Factor
    The fourth DuPont factor considers “[t]he conditions
under which and buyers to whom sales are made, i.e.
‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
476 F.2d at 1361. Although recognizing that Stone Lion
and Lion in fact require large minimum investments and
target sophisticated investors, the Board focused on the
sophistication of all potential customers of “the parties’
services as they are recited in the application and regis-
trations, respectively.” J.A. 19. Stone Lion’s application
includes all “investment advisory services,” and Lion’s
registrations include “capital investment consultation.”
J.A. 8, 10. Such services, the Board found, “are not re-
stricted to high-dollar investments or sophisticated con-
sumers,” but rather “could be offered to, and consumed by,
anyone with money to invest, including ordinary consum-
ers seeking investment services.” J.A. 19.
    Stone Lion does not contest the broad scope of the
services claimed in its application, but nevertheless
argues the Board erred in considering the sophistication
of potential customers. Both parties agree their current
investors are sophisticated. In light of the services cur-
rently offered by Stone Lion and Lion, securities regula-
tions require substantive, preexisting relationships with
potential investors before they may invest. Stone Lion
contends the Board failed to give proper weight to this
clientele sophistication. Appellant’s Br. 24. 4



   4     Once such sophistication is considered, Stone Lion
maintains there is no likelihood of confusion at the point
of sale, because any potential confusion would be resolved
12          STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



    Stone Lion effectively asks this court to disregard the
broad scope of services recited in its application, and to
instead rely on the parties’ current investment practices.
This would be improper because the services recited in
the application determine the scope of the post-grant
benefit of registration. “[R]egistration provides the regis-
trant with prima facie evidence of . . . the registrant’s
‘exclusive right’ to use the mark on or in connection with
the goods and services specified in the certificate of regis-
tration.” U.S. Search LLC v. U.S. Search.com Inc., 300
F.3d 517, 524 (4th Cir. 2002) (emphasis added); see also
15 U.S.C. § 1115(a) (the registration is prima facie evi-
dence of the registrant’s exclusive right to use the mark


during the lengthy qualification process for qualified
investors. Appellant’s Br. 24 (citing J.A. 303). It con-
tends this court has declined to recognize any form of
confusion other than point-of-sale confusion. Id. at 28
(citing Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d
1546, 1549 (Fed. Cir. 1990) (“reserv[ing]” consideration of
initial interest confusion “for another time”)). Lion re-
sponds that, even assuming a lack of point-of-sale confu-
sion, “the Board did not err in finding likelihood of
confusion” in light of the multiple other forms of “actiona-
ble confusion, including confusion as to affiliation or
connection, initial interest confusion, post-sale confusion,
reverse confusion, confusion of non-purchasers causing
damage to reputation, etc.” Appellee’s Br. 41 (citing 3 J.
Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition § 23:5 (4th ed.)).
     There is no need to address these contentions. As dis-
cussed below, the Board properly held the recited services
may be offered to ordinary consumers and Stone Lion
does not contest that such consumers may be confused at
the point of sale. This finding is sufficient to affirm the
Board’s conclusion that the fourth DuPont factor favored
opposer Lion.
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP         13



“in connection with the goods or services specified in the
registration”). Other benefits of registration are likewise
commensurate with the scope of the services recited in the
application, not with the applicant’s then-existing ser-
vices. See, e.g., 15 U.S.C. § 1072 (federal registrants enjoy
nationwide constructive notice of their ownership of the
registered mark); id. § 1117 (allowing recovery of defend-
ant’s profits, plaintiff’s damages, and the costs of the
action for violation of a registered mark). It would make
little sense for the Board to consider only the parties’
current activities when the intent-to-use application, not
current use, determines the scope of this post-grant
benefit. Parties that choose to recite services in their
trademark application that exceed their actual services
will be held to the broader scope of the application. See
Octocom Sys., 918 F.2d at 943 (stating that a broad appli-
cation “is not narrowed by testimony that the applicant’s
use is, in fact, restricted”).
     At oral argument, Stone Lion contended that although
it is normally proper to focus on the services recited in the
application, investor sophistication should be ascertained
from the record as a whole. It argued that limiting the
investor sophistication analysis to the four corners of the
application is contrary to DuPont, where our predecessor
court considered “all of the evidence” on sophistication,
not only the services recited in the application. In
DuPont, the Board found likelihood of confusion between
DuPont’s applied-for mark, RALLY, for “combination
polishing, glazing and cleaning agent for use on automo-
biles,” and the opposer’s “registered mark RALLY for an
all-purpose detergent.” DuPont, 476 F.2d at 1359. While
DuPont’s appeal was pending before the Board, DuPont
had purchased Horizon’s mark in the context of automo-
bile products and the parties entered into an agreement
allowing DuPont to use the mark in the “automotive
aftermarket” and “incidentally usable” products, and
14          STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP



limiting Horizon to the “commercial building or household
market.” Id.
    Our predecessor court reversed the Board’s refusal of
DuPont’s application, holding that substantial weight
should be given to the parties’ “detailed agreement[ ].” Id.
at 1362. Although such reasoning reaches beyond the
application, it does so only to the extent that the parties
legally bound themselves to using the mark in their
respective product category. See id. at 1363 (explaining
that if either party strays beyond their product category
set forth in the agreement, they would be subject to a
breach of contract action). Such a binding agreement
limits the benefits of registration. For instance, the
agreement’s provision limiting each party to different
product categories would rebut the evidentiary value of a
registered mark provided in 15 U.S.C. § 1115(a) (registra-
tion provides prima facie evidence of the registrant’s
exclusive right to use the mark “in connection with the
goods or services specified in the registration”). The
DuPont court contrasted such a binding agreement to “a
naked ‘consent,’” which it found would merit little weight
because “the consenter may continue or expand his use.”
Id. at 1362.
    Stone Lion has not provided a naked consent, much
less contractually restricted itself to its current high-
minimum-investment services. To the contrary, it admit-
ted during oral argument that it could someday offer
investment services in connection with college education
funds. Oral Arg. at 29:10–29:28, Stone Lion Capital
Partners v. Lion Capital LLP, available at http://www.
cafc.uscourts.gov/oral-argument-recordings/all/stone-lion.
html. Granting Stone Lion’s application would entitle it
to the full scope of services recited therein, and Stone Lion
cannot now distance itself from such breadth when faced
with an opposition.
STONE LION CAPITAL PARTNERS   v. LION CAPITAL LLP        15



     Accordingly, the Board properly considered all poten-
tial investors for the recited services, including ordinary
consumers seeking to invest in services with no minimum
investment requirement. Although the services recited in
the application also encompass sophisticated investors,
Board precedent requires the decision to be based “on the
least sophisticated potential purchasers.” Gen. Mills, Inc.
v. Fage Dairy Proc. Indus. S.A., 100 U.S.P.Q.2d 1584,
1600 (T.T.A.B. 2011), judgment set aside on other
grounds, 2014 WL 343267 (T.T.A.B. Jan. 22, 2014); cf.
Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d
277, 293 (3d Cir. 1991) (stating, in the context of a trade-
mark infringement case, that “when a buyer class is
mixed, the standard of care to be exercised by the reason-
ably prudent purchaser will be equal to that of the least
sophisticated consumer in the class”). Substantial evi-
dence supports the Board’s finding that such ordinary
consumers “will exercise care when making financial
decisions,” but “are not immune from source confusion
where similar marks are used in connection with related
services.” J.A. 19 (citing In re Research & Trading Corp.,
793 F.2d 1276 (Fed. Cir. 1986)). The Board’s conclusion
that the fourth DuPont factor weighs in opposer Lion’s
favor is consistent with Stone Lion’s application, Lion’s
registrations, and with applicable law.
                       CONCLUSION
    The Board properly determined that the first four
DuPont factors weighed in favor of finding a likelihood of
confusion and that the remaining factors were neutral.
The refusal of Stone Lion’s application for trademark
registration is therefore affirmed.
                       AFFIRMED