1207.01(a)(vi) Evidence Showing Relatedness of Goods or Services
The examining attorney must provide evidence showing that the goods and services are related to support a finding of likelihood of confusion. See, e.g., In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (finding Office had failed to establish that wine and vodka infused with caffeine are related goods because there was no evidence that vodka and wine emanate from a single source under a single mark or that such goods are complementary products that would be bought and used together). Evidence of relatedness may include news articles and/or evidence from computer databases showing that the relevant goods or services are used together or used by the same purchasers; advertisements showing that the relevant goods or services are advertised together or sold by the same manufacturer or dealer; and/or copies of prior use-based registrations of the same mark for both applicant’s goods or services and the goods or services listed in the cited registration. E.g., In re Ox Paperboard, LLC 2020 USPQ2d 10878, at *5 (TTAB 2020) (citing In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014); In re Country Oven, Inc., 2019 USPQ2d 443903, at *4-5 (TTAB 2019). See TMEP §1207.01(d)(iii) and cases cited therein regarding the probative value of third-party registrations.
The identification of goods or services in the subject application and in the cited registration(s) may in itself constitute evidence of the relatedness of the goods or services. Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (finding the Board erred in concluding that there was insufficient evidence of relatedness, because it "did not consider the important evidence already before it, namely the ITU application and [opposer’s] registrations").