throbber
From: Biache, Aubrey
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`
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`Sent: 3/15/2021 4:21:03 PM
`
`
`
`To: TTAB EFiling
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`
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`CC:
`
`
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`Subject: U.S. Trademark Application Serial No. 88471830 - SKIN CARE FRESH FACED - N/A - Request for
`Reconsideration Denied - Return to TTAB
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`*************************************************
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`Attachment Information:
`
`Count: 47
`
`Files: 1-1.jpg, 1-2.jpg, 1-3.jpg, 2-1.jpg, 2-2.jpg, 2-3.jpg, 2-4.jpg, 2-5.jpg, 2021-03-15_15-21-
`02_Page_1.jpg, 2021-03-15_15-21-02_Page_2.jpg, 2021-03-15_15-21-02_Page_3.jpg, 2021-03-15_15-
`21-02_Page_4.jpg, 87821782P001OF003.JPG, 87821782P002OF003.JPG, 87821782P003OF003.JPG,
`88150561P001OF004.JPG, 88150561P002OF004.JPG, 88150561P003OF004.JPG,
`88150561P004OF004.JPG, 88225327P001OF004.JPG, 88225327P002OF004.JPG,
`88225327P003OF004.JPG, 88225327P004OF004.JPG, 88274343P001OF003.JPG,
`88274343P002OF003.JPG, 88274343P003OF003.JPG, 88334803P001OF003.JPG,
`88334803P002OF003.JPG, 88334803P003OF003.JPG, 88617778P001OF003.JPG,
`88617778P002OF003.JPG, 88617778P003OF003.JPG, 88624898P001OF003.JPG,
`88624898P002OF003.JPG, 88624898P003OF003.JPG, 88644614P001OF003.JPG,
`88644614P002OF003.JPG, 88644614P003OF003.JPG, 88668503P001OF002.JPG,
`88668503P002OF002.JPG, 88706302P001OF003.JPG, 88706302P002OF003.JPG,
`88706302P003OF003.JPG, 90001631P001OF003.JPG, 90001631P002OF003.JPG,
`90001631P003OF003.JPG, 88471830.doc
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`

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`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
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`U.S. Application Serial No. 88471830
`
`
`
`Mark: SKIN CARE FRESH FACED
`
`
`Correspondence Address:
` ROBERT R AXENFELD
`
` AXENFELD LAW GROUP LLC
`
` PO BOX 3308
`
` WEST CHESTER, PA 19381
`
`
`
`Applicant: Fresh Faced Skin Care, LLC
`
`
`
`Reference/Docket No. N/A
`
`
`
`Correspondence Email Address:
`
` robert@axenfeldlaw.com
`
`
`
`
`
`
`
`REQUEST FOR RECONSIDERATION
`AFTER FINAL ACTION
`DENIED
`
`
`Issue date: March 15, 2021
`
`
`Applicant’s request for reconsideration is denied. See 37 C.F.R. §2.63(b)(3). The trademark
`examining attorney has carefully reviewed applicant’s request and determined the request did not:
`(1) raise a new issue, (2) resolve all the outstanding issue(s), (3) provide any new or compelling
`
`

`

`evidence with regard to the outstanding issue(s), or (4) present analysis and arguments that were
`persuasive or shed new light on the outstanding issue(s). TMEP §§715.03(a)(ii)(B), 715.04(a).
`
`
`Applicant continues to argue that the marks have different sounds, appearances, and commercial
`impressions. In terms of sound, the marks sound alike. There is only a slight aural distinction in the
`marks’ pronunciations of FRESHFACE and FRESH FACED created by the “D” at the end of "FACED" in
`applicant's mark. Slight differences in the sound of similar marks will not avoid a likelihood of confusion.
`In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983); see In re Viterra Inc., 671 F.3d
`1358, 1367, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012). As explained in the previous office action, the
`marks have similar commercial impressions. Consumer confusion has been held likely for marks that do
`not physically sound or look alike but that convey the same idea, stimulate the same mental reaction, or
`may have the same overall meaning. Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 1336, 164 USPQ
`301, 304 (C.C.P.A. 1970) (holding MISTER STAIN likely to be confused with MR. CLEAN on competing
`cleaning products); see In re M. Serman & Co., 223 USPQ 52, 53 (TTAB 1984) (holding CITY WOMAN for
`ladies’ blouses likely to be confused with CITY GIRL for a variety of female clothing); H. Sichel Sohne,
`GmbH v. John Gross & Co., 204 USPQ 257, 260-61 (TTAB 1979) (holding BLUE NUN for wines likely to be
`confused with BLUE CHAPEL for the same goods); Ralston Purina Co. v. Old Ranchers Canning Co., 199
`USPQ 125, 128 (TTAB 1978) (holding TUNA O’ THE FARM for canned chicken likely to be confused with
`CHICKEN OF THE SEA for canned tuna); Downtowner Corp. v. Uptowner Inns, Inc., 178 USPQ 105, 109
`(TTAB 1973) (holding UPTOWNER for motor inn and restaurant services likely to be confused with
`DOWNTOWNER for the same services); TMEP §1207.01(b).
`
`
`
`Additionally, applicant asserts that its services are unrelated to registrant's goods. However, applicant is
`providing similar goods to the registrant and is providing them in connection with cosmetic skin care
`services. See attached evidence from https://www.lexico.com/en/definition/skin_cream,
`https://www.vanicream.com/skin-basics/skin-lotion-cream-or-ointment-how-to-choose-the-best-
`moisturizer, and https://www.itcosmetics.com/different-types-of-moisturizer.html. The previously
`attached third party evidence shows that applicant's services and registrant's goods are related.
`Therefore, applicant's services are used in connection with goods similar to that of the registrant. The
`trademark examining attorney has attached evidence from the USPTO’s X-Search database consisting of
`a number of third-party marks registered for use in connection with the same or similar goods and/or
`services as those of both applicant and registrant in this case. This evidence shows that the goods
`and/or services listed therein, namely cosmetic skin care services, skin creams, cosmetics, facial
`cleansers, and facial moisturizers are of a kind that may emanate from a single source under a single
`mark. See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018) (citing In re Infinity Broad. Corp., 60
`USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
`1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); TMEP §1207.01(d)(iii).
`Therefore, this argument is unpersuasive.
`
`
`
`Applicant also states that there has been no actual confusion. “‘[A] showing of actual confusion is not
`necessary to establish a likelihood of confusion.’” In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123
`USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-
`
`

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`65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); TMEP §1207.01(d)(ii). “[T]he relevant test is likelihood of
`confusion, not actual confusion.” In re Detroit Athletic Co., 903 F.3d 1297, 1309, 128 USPQ2d 1047,
`1053 (Fed. Cir. 2018) (emphasis in original). “Uncorroborated statements of no known instances of
`actual confusion . . . are of little evidentiary value,” especially in ex parte examination. In re Majestic
`Distilling Co., 315 F.3d 1311, 1317, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). Furthermore, "[g]enerally, in
`an ex parte proceeding a lack of evidence of actual confusion carries little weight, because the cited
`registrant is not a party to the proceeding and the typical contentions of the applicant’s witnesses, to
`the effect that they are not aware of any instances of actual confusion, tell only one side of the story
`and are often uncorroborated." In re FCA US LLC, 126 USPQ2d 1214, 1225 (TTAB 2018). Self-serving
`testimony regarding applicant's unawareness of actual confusion is not conclusive that actual confusion
`does not exist or that there is no likelihood of confusion. See In re Bissett-Berman Corp., 476 F.2d 640,
`177 USPQ 528, 529 (CCPA 1973). Therefore, this argument is unpersuasive.
`
`
`Accordingly, the following refusal made final in the Office action dated August 8, 2020 are maintained
`and continued:
`
`
`
`
`MARK
`
`
`• TRADEMARK ACT SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION WITH REGISTERED
`
`See TMEP §§715.03(a)(ii)(B), 715.04(a).
`
`
`If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will be
`notified to resume the appeal. See TMEP §715.04(a).
`
`
`If applicant has not filed an appeal and time remains in the six-month response period, applicant has
`the remainder of that time to (1) file another request for reconsideration that complies with and/or
`overcomes any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to
`the Board. TMEP §715.03(a)(ii)(B). Filing a request for reconsideration does not stay or extend the time
`for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §715.03(c).
`
`
`
`
`
`/Aubrey Biache/
`
`Examining Attorney
`
`Trademark Law Office 123
`
`(571) 270-0120
`
`

`

`aubrey.biache@uspto.gov
`aubrey.biache@uspto.gov
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`

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`Trendmners Feed
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`ht‘tps #va lexico com/enfdeflnitionlskln cream DBMS/2021 03 16 44 PM
`
`ENGLISH DICTIONARY
`
`SYNONYMS
`
`TRANSLATE
`
`GRAMMAR
`
`EXPLORE
`
`SPANISH DICTIONARY
`
`SITE LANGUAGE
`
`Oxford English and Spanish Dictionary ‘3 nonyms and Spanish to English Translator
`
`US DICTIONARY
`
`Home > US English > skin cream Definition of skin cream in English:
`
`MIMI MINE
`[HM EMMY.
`
`GEIGD.
`LOCAL OFFICE
`
`skin cream
`
`N0U N
`
`000
`
`A creamy cosmetic used tn (rare for the skin, especially at the face; chiefly as a
`mass noun.
`
`Origin
`Late 19th century; earliest use found in SemLWeekly Democrat (Olean, New York).
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`In the 17005, "carbonic” (affixed to an nutrient
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`It's here! Lexico's first Word ufthe
`VFRI'I
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`httpsflmwlekicu cnmfenmefi union/Mn cream
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`0311512021 Ufiflfiifl PM
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`Does English Have Mon: Wards Than
`A'ny (Mic: Language?
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`5. DIA
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`2. d'anceité
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`htlps #va iexico corn/enfdeflnilionlskin cream DBMS/2021 03 16 44 PM
`
`Are You Learning English? Here Are Our Top English Tips
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`Basic Guidelines For English
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`READ THESE ARTICLES 0
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`ETLIWbe The Engiiz-hDiLliunwy‘. # A E G D E F (3 H |
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`Engiiah Diriionsry
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`M N C- F' Ci R S T Ll V 'v"
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`httos #va vanicream com/skinibasicsfskinilotionicreamioriointmentihowitoichooseitheibestimoisturizer
`03/150021 031716 PM
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`Contact
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`Careers
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`5'“: “’5
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`About
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`.0
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`VANICREAM"
`SENSIYlVE SKIN Cull!
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`BODY
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`WHERE TO BUY
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`SKIN BASICS
`
`CARE TIPS
`
`Skin Lotion, Cream, or Ointment: How to
`
`Choose the Best Moisturizer
`
`Dermatologists ofien recommend using a daily skin moisturizer, especially in the winter.
`
`Picking a moisturizer that is right for you can be ovemrhelming. Many people want what's
`
`best for their skin, but with so many brands and variations of products, how do you choose
`what to use?
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`

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`httos #va vanicream com/skinsbasicsfskinsiotionscreamsorsointmentshowstoschoosesthesbestsmoisturizer
`031150021 031716 PM
`
`
`
`A few simple questions about your skin type and a little product knowledge can help
`determine which moisturizer will work for you. Is your skin dry, oily, or a combination
`of the two? Do you know the difference between a lotion, cream, and ointment and
`which works best for your skin type?
`
`Moisturizing Lotion
`Of the three types of moisturizers, a lotion has a greater percentage of water in the
`formula and is thinner in consistency. It is easy to spread, quickly absorbed, and feels
`very light on the skin. Lotions are reasonably hydrating without feeling heavy and work
`well for those with oily skin. Even those with dry skin may use a lotion during the
`summer months when the air is hot and humid. Most facial moisturizers fall into this
`
`category.
`
`Moisturizing Cream
`A cream is typically formulated with half water and half oil. Heavier than a lotion, a
`skin cream tends to be less greasy than an ointment and is easy to spread over large
`areas. A cream helps moisturize dry skin without feeling too heavy and is most
`beneficial to those with normal and dry skin. Many step up their moisturizer to a cream
`during the cold dry winter months for additional skin hydration.
`
`
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`

`

`https #va vanicream com/skinebasicsfskineiotionscreameoreOintmentehowetoechooseetheebestemoisturizer
`031150021 031716 PM
`
`Skin Ointment
`An ointment is the heaviest of the three made primarily with 80% oil and 20% water.
`Ointments form a barrier that helps seal moisture into the skin. Best used for
`extremely dry skin or areas that may be susceptible to dryness such as the elbows
`and feet. Skin ointments may also help protect, relieve, and prevent chapped skin
`during the cold winter months. Ointments are typically greasy, and probably not
`appropriate for those with oily skin.
`
`Additional Skin Care Tips
`. it is important to match your skin type to the moisturizer.
`
`- Seasonal changes can also affect the condition of your skin and may require
`changes to your moisturizer.
`
`. Always moisturize after a shower or bath and after exfoliating or shaving.
`
`- Look for non-comedogenic on the label, which means that it won't clog your pores.
`
`- For sensitive skin, avoid ingredients that may be irritating. Consider products that
`are dye-free, fragrance-free, paraben-free, lanolin-free and free of formaldehyde
`releasers.
`
`Vanicream‘“ Moisturizers come in a variety of formulations and sizes to meet the
`needs of those with sensitive skin. Learn more about Vanicream" Moisturizing Lotion ,
`Vanicream‘“ Moisturizing Cream, Vanicream" Moisturizing Ointmentl and Vanicream"
`Daily Facial Moisturizer.
`
`Vanicream“ Moisturizing Lotion, Cream, and Ointment carry the seal of acceptance
`from the National Eczema Association.
`
`
`http:l/www.walgreens.com/topiclfaqlquestionandanswer.jsp?
`
`guestionTierld=700008&faq|d=1300002
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`
`httos ”WWW vanicrearn corn/skinibasicsfskineiotionecreameoriointrnentehowitoechooseitheibestirnoisturizer
`03/150021 031716 PM
`
`
`http:/labcnews.go.comIHeaithn‘WellnessResourcefstory?id=6858390
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`httos Iii/MN vanicrearn corn/skinibasicsfskiniiotionscreamioriointrnentinowitoichooseitheibestirnoisturizer
`031150021 031716 PM
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`CARE TIPS
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`Tips for Introducing a New
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`Four Steps to Minimize Skin
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`—
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`WMETICS‘
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`[9
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`Home
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`Skincate Basics
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`Discover ‘1': 8 Different Types Of Moisturlzer To Know And Try
`
`DISCOVER IT: 8 DIFFERENT TYPES OF MOISTURIZER TO KNOW AND TRY
`18 Dec 2020
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`
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`

`by 11 Losmcucs rro beauh' team
`
`Page '15-!
`
`Walk through any aisle of skincare products and you‘ll likely be met with what feels like a multitude of moisturizers. You've got face creams,
`neck moisturizers. eye baims. ointments. treatment creams. and lotions galore. Some should be used in the mornings and others only in the
`evening; some say to apply two to three times a week while others advise a daily slathering.
`
`if you're standing there with dizzying Visions of creams swirling around your head. you‘re not alone. Below we've created a handy cheat sheet
`of the most common types of moisturizers on the market. You'll learn how each skin moisturizer works. what its primary skincare benefits are.
`and which skin types will get the most out of it.
`
`Why Are There 80 Many Types of Moisturizers?
`When you reaEiy sit down and think about it.
`it makes sense that there are so many cream. lotion, and ointment formulations. In the same way
`our bodies are ail built differently, people have different skin typesiincluding oily. dry, and combination. Everyone also has their own specific
`concerns they want to target. such as wrinkles an uneven comm. or m. Also, just like you woutdn't wear a shirt on your legs, it doesn't
`make sense to apply an eye cream to your neck or a body lotion to your face.
`
`Different Types of Moisturizers To Try
`The goal at 31' Cosmetics is to ensure you look and feel confident. beautiful. and ready to conquer the day. To do that. we've formulated a
`variety of moisturizers that meet a range of skincare needs. As you'll learn. some can be used individually. while others can be paired together.
`
`Type: Oil-Based Face Moisturizer
`Best for: All skin types
`
`Try: Confidence in a Cream” Hydrating Moisturizer
`
`When in doubt. reach for our best-selling Confidence in a Cream. Tihis] #1 Anti-Aging Prestige Moisturtzer in the U.S., this does-it-all skin
`cream hydrates. reduces the appearance of fine lines. [visibly] evens skin tone. and minimizes [the look of] pores." says Annie Olive, Education
`Manager for lT Cosmetics. "It also helps plump, smooth. and give the look of glowing skin. Who wouldn’t want any and all of those benefits?"
`Apply it after cieansing and toning and before applying your makeup.
`
`Type: Gel Moisturizers
`Best for; Oily and combination skin types
`
`Try:Confidence in a Gel Lotion'l" Moisturizer
`
`While traditional skin creams are formulated with rich oils and butters. a gel moisturizer is made with water. This oil-free formulation makes for a
`lightweight consistency that those with o_ily or acne—prone skin tytfl can benefit from.
`
`“Confidence in a Gel Lotion provides up to 72 hours of hydration with cactus flower extract," says Oliva. "It also has ‘quick-break' innovation.
`[That means] it instantly turns into a water-light liquid when you begin applying. which makes it feel completely weightless." You can also use it
`to help prime your skin for a smooth and even makeup application.
`
`Type: Anti-Aging Creams
`Best for: Mature skin types
`
`Try: Secret SauceTM Moisturizer
`
`The goal of an anti-aging cream is to help combat the most common visible signs of aging. "Secret Sauce is our most advanced anti-aging face
`moisturizer because of the Secret Sauce Fermented Complex“. which consists of 7 fermented ingredients designed to maximize hydrating
`benefits and increase absorbency," says Oliva.
`
`She adds that the inclusion of vitamin C and licorice root can help fade the look of discoloration, while collagen and peptides give your skin
`some anti-aging love. And did we mention that Secret Sauce also contains res! diamond powder? You'll took and feet your most radiant!
`
`Type: Retinot Moisturizers
`
`3 :20: 3 7 PM 3/15/2021
`
`https :ffwvtm‘itcosmotics.comfdifierent-types-of—moisturizer.html
`
`
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`
`

`

`Best for: Mature skin types
`
`Try: Hello Results Wrinkle-Reducing Daily RetinoiTM Serum-ln—Cream
`
`Page 3'4
`
`Think of retinol moisturizers as a sub-category of anti-aging creams. These products are formulated with retinol, a derivative of vitamin Athat’s
`been scientificallyiprovenl to help improve the look of fine lines and wrinkles.
`
`Retinols work by exfoliating dead skin cells and boosting collagen production. Hello Results does exactly that via a blend of tree and
`encapsulated retinol, which starts to reach at least 15 layers into the skin’s surface tn just ’1 hour. While some retinol products can feel harsh on
`the skin, Hello Results was thoughtfully formulated for daily use from day 1, even for those with sensitive skin.
`
`To learn more about retinoi, read through this handy Retinol 101 QM.
`
`Type: Eye Cream
`Best for: All skin types
`
`Try: Confidence in an Eye CreamTM
`
`The skin around your eyes is thinner compared to other areas of your face, which makes it more susceptible to signs of aging. Eye creams are
`a type of moisturizer that are formulated specifically for use on this delicate area, and can help with everything from plumplng the look of fine
`lines to improving tone.
`
`Confidence in an Eye Cream contains a blend of hydrating and firming ingredients, such as collagen, niacin, ceramides, and peptides. The
`formula also features our Drops of Light Technology, which helps visibly color-correct and brighten dark circles. Simply apply morning and
`evening under and around your eyes. (Pro tip: use your ring finger, which is the gentlest since it has fewer muscles than your other fingers.) If
`you’re eager to learn more about how to use eye creams, check out this article which covers when, how, and why to apply.
`
`Type: Night Creams
`Best for: All skin types
`
`TryIConfidence in Your Beauty SleepTM Night Cream
`
`As you might have guessed, night creams are meant to be applied before jumping into bed. Whereas your regular cream or lotion sets you up
`for a brilliant day, a night cream essentially works the evening shift when skin goes into self-repair mode.
`
`“I wish everything i wanted to improve in my life could be done while i’m sleeping, but i'll happily go with improving the top signs of agi_ng for
`
`now," says Oliva. (Psst. The top signs are fine lines and wrinkles, dull and tired-looking skin, loss of firmness, and dryness.) “After the 1st sleep,
`skin is hydrated and more supple.After 7 sleeps, fine lines will lessen in appearance and skin feels firmer."
`
`You can use it in place of a traditional moisturizer in the evenings as a way to level-up your skincare game. In addition to treating your skin, it
`also doubles as a self-care ritual. “The lavender scent is heavenly," says Oliva.
`
`Type: Color-Correcting Moisturizers
`Best for: Sensitive, red, or irritated skin
`
`Try:Bye Bye Rednessm Sensitive Skin Moisturizer
`
`You can think of color-correcting face moisturizers as a way to nourish your skin while concealing discoloration. For example, Bye Bye Redness
`Sensitive Skin Moisturizer helps instantly neutralize the look of redness while simultaneously addressing the underlying cause of your irritation.
`
`“it‘s a must-have for sensitive skin types or those who have facial redness," says Oliva. ”it’s all about soothing, calming, hydrating, and
`neutralizing . "
`
`Colloidal oatmeal, an anti-irritant, swoops in to soothe inflamed skin while aloe vera offers much-needed hydration. The inclusion of anti-
`inflammatory cucumber also helps your skin feel and look calmer. You can learn more about how to cover redness caused by acne or rosacea
`here.
`
`Type: Neck Creams
`Best for: All skin types
`
`3 :20: 3 7 PM 3f15f2021
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`
`
`
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`hops :ffwwwjtcosmetics.comfdifi'erent-types-of—moismrizerhiml
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`

`Try: Confidence in a Neck Cream” Moisturizer
`
`Page 4 4
`
`The skin on our necks is delicate and therefore prone to developing fine lines and wrinkles. Over time. it‘s also susceptible to loss of firmness.
`Add in the constant neck-bending from looking at devices and you've also got "tech neck" to contend with.
`
`Oliva calls this IT Cosmetics skin moisturizer the "holy grail" of neck creams. "Not only does it work on the horizontal lines that appear with age
`and heip to firm and smooth skin. it also fights against ‘tech neck.” she says. For those who are unfamiliar. tech neck refers to the wrinktes that
`develop under your chin and on your neck from constantly bending it to look at a phone or computer.
`
`Oliva adds. "Our Tri-Structural ComplexTMiwhich consists of tucoidan seaweedl elastinI hyaluronic acid: shea butter. and collageniis the key
`to the benefits and our clinical results." You can apply this type of moisturizer to your neck. decoilete. and chest. including the back of your neck
`and behind your ears. For a real treat: try itwith the Heavenly Luxe Citrine Neck Roller, in addition to providing a bit of relaxation, this cooling
`face rolter helps massage cream into your skin for long-lasting hydration.
`
`Sourcing:
`
`I. Siddhanh Mukherjee; Abhijit Date: Vandana Patravale; Hans Christian Korting; Alexander Roeder; and Gtinther Weindl. “Retinoids in the
`treatment of skin aging: an overview of clinical efficacy and safety." Ciinicai interventions in Aging. 2006. 10.2147icii320061.462?
`
`SHOP iT
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`ABOUT IT
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`Subscribe to our Newsletter and Become an lT Girl.
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`I By signing up, t agree to receive emails from IT Cosmetics and other L'Oreal brands and programs. Your information will be collected and used
`in the US subject to our US Privacy Policy and Terms E Conditions. Non-US consumers should visit the country website serving their region.’
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`Cap ght G 2021. IT Cosmetics LLC All rights reserved.
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