       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            MICHAEL R. LONGSHORE,
                  Appellant,

                           v.

          RETAIL ROYALTY COMPANY,
                    Appellee.
             ______________________

                      2014-1448
                ______________________

    Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in Opposition
No. 91192917.
                 ______________________

             Decided: September 15, 2014
               ______________________

   MICHAEL R. LONGSHORE, of Duarte, California, pro se.

    LISA PEARSON, Kilpatrick Townsend & Stockton LLP,
of New York, New York, for appellee. Of counsel were
KRISTIN G. GARRIS, of New York, New York, and LAURA
CRAVER MILLER, of Winston-Salem, North Carolina.
                ______________________

    Before DYK, TARANTO, and CHEN, Circuit Judges.
2                     LONGSHORE   v. RETAIL ROYALTY COMPANY




DYK, Circuit Judge.
     Michael Longshore (“Longshore”) sought to register a
mark with the United States Patent and Trademark
Office (“PTO”). Retail Royalty Company (“Retail Royal-
ty”), the owner of a previously registered mark, opposed
the registration. The Trademark Trial and Appeal Board
(“Board”) refused registration pursuant to 15 U.S.C.
§ 1052(d) because it concluded that Longshore’s mark
was likely to cause confusion in light of its resemblance to
Retail Royalty’s previously registered mark. We affirm.
                       BACKGROUND
   Retail Royalty, the opposer, owns a registered mark
depicting a flying bird, shown below:




Retail Royalty Co. v. Longshore, Opp. No. 91,192,917, slip
op. at 2–3, 2014 WL 343268 (TTAB Jan. 21, 2014) (“Board
Op.”).1 Retail Royalty registered its mark for “[w]earing
apparel, clothing, and clothing accessories, namely, bot-
toms, gym suits, tops, lingerie, pants, shirts, shorts,
skirts, sleep wear, sweaters, swim wear, underwear,
footwear, and headwear, in Class 25.” Board Op. 3 (quot-
ing U.S. Trademark Registration No. 3,539,007). Retail



    1  The Board also recognized that Retail Royalty has
two other registered marks depicting flying birds, but
only analyzed the registrations for the particular design
shown above.
LONGSHORE   v. RETAIL ROYALTY COMPANY                       3



Royalty also registered its mark for “[w]earing apparel,
clothing, and clothing accessories, namely, beachwear,
jackets, leg warmers, loungewear, robes, scarves, in Class
25.” Board Op. 3. (quoting U.S. Trademark Registration
No. 3,662,110). Both registrations have the same filing
date of August 24, 2006. See U.S. Trademark Registration
Nos. 3,539,007 and 3,662,110.2
   On May 26, 2009, Longshore filed an intent-to-use
application, seeking to register a mark for clothing, repro-
duced below:




Board Op. 1. The application stated that the mark would
be for the following goods:
    A-shirts; Athletic apparel, namely, shirts, pants,
    jackets, footwear, hats and caps, athletic uni-
    forms; Dress shirts; Hooded sweat shirts; Knit
    shirts; Long-sleeved shirts; Night shirts; Open-
    necked shirts; Polo shirts; Shirts; Shirts for suits;



   2    In 2014, after the Board’s decision issued, Retail
Royalty apparently amended one registration by deleting
the category of wearing apparel in Class 25. See Registra-
tion No. 3,539,007. Even if we could take post-decisional
amendments into account, the amendment here would
have no significance because Retail Royalty’s other regis-
tration continued to identify that category—wearing
apparel in Class 25—as a registered usage for the mark.
See Registration No. 3,662,110.
4                    LONGSHORE   v. RETAIL ROYALTY COMPANY



    Short-sleeved or long-sleeved t-shirts; Short-
    sleeved shirts; Sleep shirts; Sport shirts; Sports
    shirts; Sports shirts with short sleeves; Sweat
    shirts; T-shirts; Turtle neck shirts; Wearable
    garments and clothing, namely, shirts, in Class
    25.
Board Op. 2. The PTO published Longshore’s mark for
opposition on October 26, 2009.
    On December 7, 2009, Retail Royalty filed a Notice of
Opposition, asserting that the PTO should refuse regis-
tration of Longshore’s mark pursuant to 15 U.S.C.
§ 1052(d). That section provides that the Board may
refuse to register a mark that “so resembles a mark
registered in the [PTO], or a mark or trade name previ-
ously used in the United States by another and not aban-
doned, 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). Retail Royal-
ty argued that the design in Longshore’s application so
resembled its registered mark as to create a likelihood of
consumer confusion, mistake, or deception.3
    The Board presumed that the goods associated with
the marks would have the same channels of trade and
classes of purchasers because the application and regis-
tration listed a number of identical goods, including, inter
alia, shirts, pants, and footwear. The Board determined
that Retail Royalty’s mark is arbitrary and inherently
strong when used with clothing. As both marks depict
silhouettes of a bird in flight with outspread wings, the


    3   Retail Royalty amended its Notice of Opposition to
add a claim that Longshore did not have a bona fide
intent to use his mark when he filed his application. The
Board did not reach this issue, and we see no error in its
refusal to address it.
LONGSHORE   v. RETAIL ROYALTY COMPANY                     5



Board deemed the two marks “similar in terms of appear-
ance and commercial impression.” Board Op. 12. Balanc-
ing these considerations, the Board concluded that
Longshore’s mark so resembled Retail Royalty’s mark as
to be likely to cause confusion and therefore refused to
register Longshore’s mark. Longshore appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(B).
    Likelihood of confusion is a legal question based on
underlying facts. On-Line Careline, Inc. v. Am. Online,
Inc., 229 F.3d 1080, 1084 (Fed. Cir. 2000). We review the
Board’s legal conclusion de novo and its factual findings
for substantial evidence. Id. at 1084, 1085; see also Bose
Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370
(Fed. Cir. 2002).
                       DISCUSSION
    Longshore challenges the Board’s finding of a likeli-
hood of consumer confusion. Our predecessor court estab-
lished the factors to consider when assessing the
likelihood of confusion. In re E.I. DuPont DeNemours &
Co., 476 F.2d 1357, 1361 (CCPA 1973). These are known
as the DuPont factors. See, e.g., Citigroup Inc. v. Capital
City Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed. Cir. 2011);
On-Line Careline, 229 F.3d at 1084. This appeal impli-
cates the following DuPont factors: the similarity or
dissimilarity of the marks in their entireties as to appear-
ance, sound, connotation and commercial impression; the
similarity or dissimilarity and nature of the goods or
services as described in an application or registration or
in connection with which a prior mark is in use; the
similarity or dissimilarity of established, likely-to-
continue trade channels; and the number and nature of
similar marks in use on similar goods. See DuPont, 476
F.2d at 1361 (listing factors); On-Line Careline, 229 F.3d
at 1084 (same).
6                    LONGSHORE   v. RETAIL ROYALTY COMPANY



    Longshore argues that the Board erred in characteriz-
ing both images as depicting doves, asserting that his
mark is a dove while Retail Royalty’s mark is in fact a
bird of prey. The Board’s characterization of both marks
as doves is irrelevant. It is well-established that in cases
“involving two design marks which are not word marks
and are not capable of being spoken, the question [of the
similarity of the marks] must be decided primarily on the
basis of visual similarity of the marks.” In re ATV Net-
work Ltd., 552 F.2d 925, 927 (CCPA 1977) (emphasis
added); see also, e.g., In re Burndy Corp., 300 F.2d 938,
939–40 (CCPA 1962); 4 J. Thomas McCarthy, McCarthy
on Trademarks & Unfair Competition § 23:25 (4th ed.
2008) (“Obviously, for picture and design marks (as op-
posed to word marks), similarity of appearance is control-
ling.”). Viewing the marks side-by-side, the Board
recognized slight visual differences, but found the overall
appearance and impression similar because both marks
were silhouettes of birds with outstretched wings. We
conclude that the Board’s conclusion is supported by
substantial evidence.
    Longshore also contends that the Board erred in de-
termining that marks would be used for goods with the
same channels of trade and classes of purchasers. Before
the Board, Longshore argued that his mark would be used
specifically for “inspirational wear,” which apparently
refers to clothing that conveys an inspirational message,
and submitted a website excerpt discussing the signifi-
cance of doves in the Bible. On appeal, he calls the cloth-
ing “Universal Peacewear,” suggesting a message that
connotes support for peace. He attempts to distinguish his
goods by claiming that Retail Royalty’s mark is only used
for women’s apparel.
    “Our precedent requires the Board to look to the reg-
istration to determine the scope of the goods/services
covered by the contested mark.” Cunningham v. Laser
LONGSHORE   v. RETAIL ROYALTY COMPANY                      7



Golf Corp., 222 F.3d 943, 948 (Fed. Cir. 2000); see also
Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918
F.2d 937, 942 (Fed. Cir. 1990) (the application controls
“regardless of what the record may reveal as to the par-
ticular nature of an applicant’s goods”); TMEP § 1207.01
(Apr. 2014) (requiring examiner to make determination
based on “the goods or services identified in the applica-
tion”).
     Longshore’s application does not restrict the use of his
mark to inspirational or peace-related clothing. Nor do
Retail Royalty’s registrations limit its mark to women’s
apparel. Rather, the application and registrations both
list apparel and clothing generally as well as specific
identical items, such as shirts, pants, jackets, and foot-
wear. When an application and registration list identical
goods, “‘absent restrictions in the application and regis-
tration, goods and services are presumed to travel in the
same channels of trade to the same class of purchasers.’”
In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012)
(quoting Hewlett–Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 1268 (Fed. Cir. 2002) (citing CBS Inc. v. Mor-
row, 708 F.2d 1579, 1581 (Fed. Cir. 1983))). Because
substantial evidence supports the Board’s finding that the
application and registrations list certain identical goods,
the Board did not err in presuming that the goods would
have the same channels of trade and classes of consumers.
     Finally, Longshore contends that the Board erred in
failing to consider a third party’s use of a bird silhouette
design when assessing the strength of Retail Royalty’s
mark. To support his application, Longshore submitted an
excerpt from a website that depicts a textual mark ac-
companied by a bird design, as shown below:
8                    LONGSHORE   v. RETAIL ROYALTY COMPANY




Board Op. 9. In fact, the Board did consider this design
when assessing the strength of Retail Royalty’s registered
mark, but ultimately concluded that its probative value
was limited given the absence of any evidence indicating
the extent of the design’s usage or exposure to the public.
We have held that “[t]he probative value of third-party
trademarks depends entirely upon their usage.” Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005). Here,
“where the ‘record includes no evidence about the extent
of [third-party] uses . . . [t]he probative value of this
evidence is thus minimal.’” Id. at 1374 (alterations in
original, emphasis in original omitted) (quoting Han
Beauty, Inc. v. Alberto–Culver Co., 236 F.3d 1333, 1338
(Fed. Cir. 2001)). The Board did not err in concluding that
the design reflected in the website had limited probative
value when there was no evidence showing the extent of
its usage or the public’s awareness of its existence.4



    4   Longshore also relied on a pending application for
the Hollister mark. The Board did not err in declining to
give weight to this submission because, as the Board
explained, “[p]ending applications are evidence only that
the applications were filed on a certain date; they are not
evidence of use of the marks.” Board Op. 4 n.5 (citing Nike
Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8
(TTAB 2007); Interpayment Servs. Ltd. v. Docters &
Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003); In re
Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694, 1699
(TTAB 1992)); see also Conde Nast Pubs., Inc. v. Miss
Quality, Inc., 507 F.2d 1404, 1406–07 (CCPA 1975)
LONGSHORE   v. RETAIL ROYALTY COMPANY                    9



   Longshore has shown no error in the Board’s decision.
                      AFFIRMED
                          COSTS
   No costs.




(“There is no evidence of actual use, and this court has
made clear that, without such evidence, third party
registrations are entitled to little weight on the question
of likelihood of confusion.”).
