This Opinion is Not a
`Precedent of the TTAB
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`
`
`
`
`Mailed: March 13, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____
`
`Trademark Trial and Appeal Board
`
`_____
`
`In re Better Life Nutritional Supplements, LLC
`
`_____
`
`Serial No. 90389844
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`_____
`
`David L. Oppenhuizen of Oppenhuizen Law PLC,
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`for Better Life Nutritional Supplements, LLC.
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`Troy Knight, Trademark Examining Attorney, Law Office 107,
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`J. Leslie Bishop, Managing Attorney.
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`
`
`
`
`_____
`
`Before Greenbaum, Lynch, and Lebow,
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`Administrative Trademark Judges.
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`Opinion by Lynch, Administrative Trademark Judge:
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`Better Life Nutritional Supplements, LLC (“Applicant”) seeks registration on the
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`Principal Register of the mark WAKE-UP CALL in standard characters for “Dietary
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`supplements; Nutritional supplements” in International Class 5.1
`
`
`1 Application Serial No. 90389844 was filed December 17, 2020, under Section 1(b) of the
`Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s alleged bona fide intent to use the
`mark in commerce.
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`

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`Serial No. 90389844
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`The Examining Attorney refused registration under Trademark Act Section 2(d),
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`15 U.S.C. § 1052(d), based on a likelihood of confusion with the previously registered
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`mark WAKE UP CALL, also in standard characters, for “Skin care products, namely,
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`non-medicated skin serum” in International Class 3.2 After the Examining Attorney
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`made the refusal final, Applicant filed a request for reconsideration and appealed.
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`The Examining Attorney denied reconsideration, the appeal proceeded, and
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`Applicant and the Examining Attorney filed briefs.
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`For the reasons set forth below, we affirm the refusal to register.
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`Likelihood of Confusion
`
`Our determination under Section 2(d) involves an analysis of all of the probative
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`evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
`
`& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
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`considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
`
`F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers only those
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`DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912
`
`F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); see also Stratus Networks,
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`Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, **3 (Fed.
`
`Cir. 2020) (“Not all DuPont factors are relevant in each case . . . .”). Two key
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`considerations are the similarities between the marks and the relatedness of the
`
`goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir.
`
`2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
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`2 Registration No. 4590051 issued August 19, 2014, and has been maintained.
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`Serial No. 90389844
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`29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
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`effect of differences in the essential characteristics of the goods and differences in the
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`marks.”).
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`A. Similarity of the Marks
`
`We compare the marks “in their entireties as to appearance, sound, connotation
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`and commercial impression.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison
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`Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting
`
`DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient
`
`to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d
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`1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re
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`Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess not whether the marks can
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`be distinguished in a side-by-side comparison, but rather whether their overall
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`commercial impressions are so similar that confusion as to the source of the goods
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`offered under the respective marks is likely to result. Coach Servs. v. Triumph
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`Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom
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`Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
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`Applicant’s mark WAKE-UP CALL and the cited mark WAKE UP CALL are
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`phonetically identical, identical in meaning and commercial impression, and nearly
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`identical visually. The only difference between the marks is the inclusion of a hyphen
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`in Applicant’s mark, and the presence or absence of the hyphen is insignificant. See
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`The Pierce-Arrow Society v. Spintek Filtration, Inc., 2019 USPQ2d 471774, *31 (TTAB
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`2019) (“The presence of the hyphen in Applicant’s mark does not distinguish it from
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`Serial No. 90389844
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`Opposer’s mark.”) (citing Thymo Borine Lab. v. Winthrop Chem. Co., 155 F.2d 402,
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`69 USPQ 512, 514 (CCPA 1946) (hyphen in mark THY-RIN has “no significance in
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`speech”) and Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1712 (TTAB
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`2010) (MAGNUM without hyphen is “essentially identical” to MAG-NUM with
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`hyphen), aff’d mem., 2011 U.S. App. LEXIS 22673, 2011 WL 5400095 (Fed. Cir. Nov.
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`9, 2011)). Consumers would attribute the same meaning to, and derive the same
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`general impression from, WAKE-UP CALL in Applicant’s mark and the cited mark
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`WAKE UP CALL.
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`In a tacit concession of this DuPont factor, Applicant’s only argument related to
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`our comparison under this factor is that “even identical marks can coexist without
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`confusion” if the goods are dissimilar.3 While that is a true statement, it does not help
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`Applicant with this DuPont factor. Given their overall resemblance in appearance,
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`sound, connotation and commercial impression, we find Applicant’s mark and the
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`cited mark virtually identical. This factor weighs heavily in favor of likely confusion.
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`B. The Relatedness of the Goods
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`In analyzing the relatedness of the goods under the second DuPont factor, we look
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`to the identifications in the application and cited registration. See In re Detroit Ath.
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`Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018); Stone Lion Capital
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`Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
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`2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d
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`3 6 TTABVUE 6 (Applicant’s Brief).
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`Serial No. 90389844
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`1783, 1787 (Fed. Cir. 1990). The application recites dietary supplements and
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`nutritional supplements, and the cited registration identifies skin serum.
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`1. Internet Evidence
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`To demonstrate the relatedness of Applicant’s and Registrant’s goods, the
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`Examining Attorney introduced numerous screenshots from various third-party
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`websites offering both types of goods under the same mark. For example:
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`The Honest website offers skin serum and prenatal
`supplements under the same HONEST mark.4
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`Similarly, the Pacifica website offers various skin serums
`and several nutritional supplements under the PACIFICA
`mark.5
`
`Along the same lines, the Young Living website features a
`few skin serums, as well as supplements under the
`YOUNG LIVING and design mark.6
`
`The doTERRA website offers, under that mark, both skin
`serum and supplements.7
`
`The Kora Organics website offers, under the KORA
`ORGANICS mark, skin serum and supplements.8
`
`The Now website promotes, under the NOW SOLUTIONS
`mark, skin renewal serum and supplements that “provide
`the nutrients your body needs to promote and maintain
`healthy hair, skin and nails.”9
`
`
`4 July 19, 2021 Office Action at TSDR 4-5 (honest.com).
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`5 July 19, 2021 Office Action at TSDR 6-7 (pacificabeauty.com).
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`6 July 19, 2021 Office Action at TSDR 10-11 (youngliving.com)
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`7 November 1, 2021 Office Action at TSDR 3-6 (doterra.com).
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`8 November 1, 2021 Office Action at TSDR 13, 16-17 (koraorganics.com).
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`9 November 1, 2021 Office Action at TSDR 22-23, 27-28 (nowfoods.com).
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`Serial No. 90389844
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`The Paula’s Choice Skincare website features dietary “skin
`supplements” and various skin serums, all under the
`PAULA’S CHOICE mark.10
`
`The Perricone MD site offers, under that mark, various
`skin serums and supplements, including some identified as
`“Skin & Total Body” supplements.11
`
`The Swanson website promotes, under the SWANSON
`SERUM mark, skin serums and supplements.12
`
`The Herbalife Nutrition website offers, under the
`HERBALIFE mark,
`skin
`serums
`and
`various
`supplements.13
`
`The Murad website features MURAD serums as well as
`MURAD “Skincare Supplements.”14
`
`The Gundry MD site features both skin serum and
`supplements under the GUNDRY MD mark.15
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`This evidence supports a finding that the goods in the application and the cited
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`registration are related by showing that consumers are accustomed to encountering
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`them offered under the same mark. See Detroit Ath. Co., 128 USPQ2d at 1050
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`(crediting relatedness evidence that third parties use the same mark for the goods
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`and services at issue because “[t]his evidence suggests that consumers are
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`accustomed to seeing a single mark associated with a source that sells both”); Hewlett-
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`Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir.
`
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`10 November 1, 2021 Office Action at TSDR 30-34 (paulaschoice.com).
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`11 November 1, 2021 Office Action at TSDR 36-43 (perriconemd.com).
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`12 November 1, 2021 Office Action at TSDR 45, 49-52 (swansonvitamins.com).
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`13 November 1, 2021 Office Action at TSDR 8; June 7, 2022 Denial of Reconsideration at
`TSDR 3-4 (herbalife.com).
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`14 June 7, 2022 Denial of Reconsideration at TSDR 5-6 (murad.com).
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`15 June 7, 2022 Denial of Reconsideration at TSDR 7-8 (gundrymd.com).
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`Serial No. 90389844
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`2002) (stating that evidence that “a single company sells the goods and services of
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`both parties, if presented, is relevant to a relatedness analysis”).
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`Many of the retail websites the Examining Attorney introduced are specifically
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`devoted to skincare, and they expose consumers to supplements as part of a skincare
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`regimen that also includes traditional cosmetic skincare products such as skin
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`serums. For example, the Perricone MD website states:
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`Supplements are at the heart of Dr. Perricone’s three-tier
`philosophy of healthy aging and beautiful skin. Combine
`supplements with anti-inflammatory diet and topical
`skincare to look and feel your very best.16
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`Thus, the goods at issue are shown to be promoted for use together as two of the three
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`parts of a skincare program. Similarly, on the Gundry MD site, on the same page
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`with the heading “Skincare,” consumers find, under the GUNDRY MD mark, both
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`“age-defying serum that helps support skin’s natural elasticity” and supplements that
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`“visibly smooth, tighten, and firm skin from the inside out.”17 The Jane Iredale
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`website features supplements touted as “Skin Ultimate,” “Skin Complete,” “Skin
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`Omegas,” and “Skin Youth Biome,”18 showing that supplements are marketed as a
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`skincare product. The Murad website, in addition to promoting MURAD serums as
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`“[a] skincare step you absolutely can’t skip,” also promotes a line of “Skincare
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`Supplements by Murad,” noting that they “multitarget cells” and that “healthier cells
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`16 November 1, 2021 Office Action at TSDR 41 (perriconemd.com) (emphasis added).
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`17 June 7, 2022 Denial of Reconsideration at TSDR 7 (gundrymd.com).
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`18 July 19, 2021 Office Action at TSDR 9 (janeiredale.com).
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`Serial No. 90389844
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`= healthier-looking skin, period.”19 This type of evidence emphasizes the
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`complementary nature of the goods, and reflects a practice in the retail market of
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`presenting these products for use together for the same purpose. This is especially
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`compelling relatedness evidence.
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`Applicant maintains that the Examining Attorney’s third-party online retail
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`evidence is “anecdotal,” and submitted its own counter-evidence which, according to
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`Applicant, shows that “the same or highly similar mark is being used to market
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`dietary or nutritional supplements, by a first entity, and skin serums or highly
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`similar skin care products, by a second entity.”20
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`However, we find some deficiencies in Applicant’s evidence. For example, some of
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`the goods are not the same as the ones at issue, and involve other types of cosmetics
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`(e.g., barrier skin cream that guards against grease, paint, glue, etc.)21 or more
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`specific types of supplements (e.g., children’s gummy vitamins, muscle mass
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`hormones, CBD gummies).22 Consumers who encounter these more specifically and
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`differently targeted goods likely would be less inclined to mistakenly assume they
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`come from the same source even if the marks are similar. By contrast, Applicant’s
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`unrestricted identification must be construed to encompass all types of dietary and
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`nutritional supplements, including those specifically targeted to skincare. See S.W.
`
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`19 June 7, 2022 Denial of Reconsideration at TSDR 5-6 (murad.com).
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`20 6 TTABVUE 14 (Applicant’s Brief); see May 22, 2022 Request for Reconsideration Exhibit
`C.
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`21 May 2, 2022 Request for Reconsideration at TSDR 424.
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`22 May 2, 2022 Request for Reconsideration at TSDR 393, 413, 423.
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`Serial No. 90389844
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`Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where the
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`goods in an application or registration are broadly described, they are deemed to
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`encompass all the goods of the nature and type described therein); In re Hughes
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`Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly
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`worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly
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`identified ‘residential and commercial furniture.’”). Consumers who encounter skin
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`serum and skincare supplements under the same mark would be inclined to
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`mistakenly assume they come from the same source.
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`Also, unlike the nearly identical standard-character marks at issue, most of these
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`third-party marks include stylization and/or design elements, and appear with other
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`distinguishing matter. For example, Applicant presents as “the same or highly
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`similar” CARB BOOM! for energy gel and BOOM! BY CINDY JOSEPH for an
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`unspecified type of cosmetic.23 Applicant’s also presents as “the same or highly
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`similar” the marks shown below, but consumers encountering them see the first
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`stylized, interlocking CB with “CORDY BIOTECH” underneath it and the second,
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`differently stylized cb with “CELLBONE” underneath it:24
`
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`23 May 2, 2022 Request for Reconsideration at TSDR 407-08.
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`24 May 2, 2022 Request for Reconsideration at 425-26.
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`Serial No. 90389844
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`
`
`
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`Thus, the coexistence of such uses presents a different scenario than would the
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`coexistence on the Trademark Register, with all its attendant presumptions, of the
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`standard-character marks at issue in this case, which could be presented much more
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`similarly. Because a registration in standard characters is “entitled to depictions of
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`the standard character mark regardless of font style, size, or color,” we must presume
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`that Applicant’s mark could appear in the same font and color as the cited mark
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`would. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d
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`1253, 1259 (Fed. Cir. 2011). We also lack information about any potential commercial
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`or conceptual weakness of the common terms in the third-party use evidence.25 For
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`the cited mark at issue in this case, Applicant had the opportunity to submit such
`
`weakness evidence and did not do so, leaving the cited mark entitled to the full scope
`
`
`25 For example, “vitality” may be conceptually weak for supplements that “support[] energy”
`or for a hydrating lip serum “that last[s]!” May 2, 2022 Request for Reconsideration at TSDR
`431-32.
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`Serial No. 90389844
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`of protection accorded an inherently distinctive registered mark. Ultimately, we do
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`not find most of the third-party use evidence analogous.
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`Applicant’s argument that consumers would rarely encounter the types of
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`products at issue together is not borne out by the record., While Applicant points to
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`alleged brick-and-mortar marketplace realities about beauty product counters at
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`department stores and vitamin aisles of pharmacies as a basis for distinction,26 the
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`Internet evidence indicates that consumers commonly encounter these types goods
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`together under the same mark, including on specialized skincare retail websites.
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`2. Third-Party Registration Evidence
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`Both the Examining Attorney and Applicant also introduced third-party
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`registrations as evidence of relatedness of the lack thereof. The Examining Attorney’s
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`records of use-based registrations show that the same entity has registered a single
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`mark identifying goods identical to those in the subject application as well as goods
`
`identical the cited registration.27 Such registration evidence is considered relevant to
`
`show that the respective goods are of a type that may emanate from a single source
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`under one mark. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1140 (TTAB 2012); In re
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`Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
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`Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d (unpublished), No. 88-
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`1444, 864 F.2d 149 (Fed. Cir. Nov. 14, 1988). Applicant submitted a much larger
`
`
`26 6 TTABVUE 11 (Applicant’s Brief).
`
`27 November 1, 2021 Office Action at TSDR 62-106. We consider only relevant registration
`records in which the goods at issue have not been deleted and remain part of the “live”
`registration, and therefore disregard Registration Nos. 3632082 and 3476535. Id. at 53-61.
`The other registrations remain live and include the relevant goods.
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`Serial No. 90389844
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`number of third-party registrations -- pairs of allegedly identical or similar marks
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`registered to different parties for some of the same goods at issue.28 According to
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`Applicant, this “demonstrates that the USPTO actually has a long and consistent
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`practice of not finding dietary and nutritional supplements to be related or similar to
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`skin serums.29
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`However, Applicant’s evidence does not support the proposition for a host of
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`reasons, including:
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`• Many of the registrations do not identify skin serums or legally identical goods,
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`and instead list other types of skincare products (even some “for animals”)30
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`that are not at issue in this case.
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`• While Applicant characterized the pairs of marks as “identical or highly
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`similar,” we reject that contention as to many of the pairs. As just a few
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`examples, Applicant includes the following, which we consider a far cry from
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`analogous in their degree of similarity to WAKE-UP CALL versus WAKE UP
`
`CALL:
`
`&
`
`31
`
`
`28 September 21, 2021 Response to Office Action; May 2, 2022 Request for Reconsideration.
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`29 6 TTABVUE 13 (Applicant’s first brief).
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`30 E.g., May 2, 2022 Request for Reconsideration at TSDR 197.
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`31 May 2, 2022 Request for Reconsideration at TSDR 115-17.
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`Serial No. 90389844
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` &
`
`32
`
`
`
`&
`
`33
`
`ORIGINS in standard characters &
`
`34
`
`EVOLVE in standard characters &
`
`35
`
`
`32 May 2, 2022 Request for Reconsideration at TSDR 126-27.
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`33 May 2, 2022 Request for Reconsideration at TSDR 118-19.
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`34 May 2, 2022 Request for Reconsideration at TSDR 128-19.
`
`35 September 24, 2021 Response to Office Action at TSDR 27-28.
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`Serial No. 90389844
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`GOOD in standard characters &
`
`36
`
`LIVE GREEN in standard characters &
`
`SUNNY EYES in standard characters &
`
`37
`
`38
`
`• We lack information about potential weakness of any common elements in the
`
`pairs of cited marks.39
`
`• Applicant’s blanket assertion does not take account of nuances in the
`
`registrations that affect their commercial impressions. As one example shows,
`
`the registered mark, REGULAR GIRL for supplements containing soluble fiber
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`conjures up a different meaning of “regular” in the digestive context than in
`
`
`36 September 24, 2021 Response to Office Action at TSDR 29-30.
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`37 September 24, 2021 Response to Office Action at TSDR 55-56.
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`38 May 2, 2022 Request for Reconsideration at TSDR 198-99.
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`39 For example, we do not know whether and to what extent the common terms in MIGHTY
`CLEAN for supplements and MIGHTY HEALER for non-medicated skin care preparations,
`or in HAPPY PILLS for supplements and HAPPY HYALURONIC for serums might be
`considered conceptually weak in the relevant industries. May 22, 2022 Request for
`Reconsideration at TSDR 275-76, 290-91. Applicant has not offered any evidence of
`conceptual weakness of the cited mark at issue in this case.
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`Serial No. 90389844
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`REGULAR GIRL COSMETICS for cosmetics (that do not include serums, as
`
`another issue).40
`
`• Applicant presents the pairs of registrations as having different owners, but
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`Applicant’s evidentiary record does not necessarily support that proposition.
`
`Instead of submitting the customary USPTO records (available online) that
`
`reflect any recorded assignments and show the current listed ownership for the
`
`registrations, Applicant only submitted copies of original registration
`
`certificates. Thus, registrations may have been assigned after issuance and
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`some of the pairs of registrations could be commonly owned.
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`Finally, to the limited extent that essentially identical registered marks coexist
`
`for skin serum and nutritional and dietary supplements, we lack contextual
`
`information about the underlying marketplace at the time of registration of each pair
`
`and any consent agreements or other considerations that may be distinguishable from
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`the case at hand. Additionally, the mere existence of these pairs of registrations “does
`
`not prove that they coexisted during that time without confusion in the marketplace.”
`
`In re Thomas, 79 USPQ2d 1021, 1028 (TTAB 2006). Also, this showing of issued pairs
`
`of registrations does not take account of the unknown number of applicants who may
`
`have been refused registration of marks for one type of the relevant goods, based on
`
`a prior registration of the same or a similar mark for the other type of relevant goods.
`
`See In re Ala. Tourism Dep’t, 2020 USPQ2d 10485, *11 (TTAB 2020) (“Applicant’s
`
`evidentiary submission almost certainly presents an incomplete picture of USPTO
`
`
`40 September 24, 2021 Response to Office Action at TSDR 57-58.
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`Serial No. 90389844
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`practice, as it omits marks in applications that were refused registration under
`
`Section 2(b) in a manner likely to be highly consistent with the action in this case.”).
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`The Board rejected arguments and evidence similar to Applicant’s in In re Toshiba
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`Medical Systems Corp.:
`
`Applicant points to six pairs of registrations and argues
`that the USPTO “has allowed similar marks for MRI and
`ultrasound equipment.”…. We note that “the third party
`registrations relied on by applicant cannot justify the
`registration of another confusingly similar mark.” Plus
`Products v. Star-Kist Foods, Inc., 220 USPQ 541, 544
`(TTAB 1983). See also Curtice-Burns, Inc. v. Northwest
`Sanitation Products, Inc., 530 F.2d 1396, 189 USPQ 138
`(CCPA 1976); Accord In re Nett Designs Inc., 236 F.3d 1339,
`57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior
`registrations had some characteristics similar to Nett
`Designs’ application, the PTO’s allowance of such prior
`registrations does not bind the Board or this court”).
`
`91 USPQ2d 1266 (TTAB 2009).
`
`Ultimately, the prior decisions and actions of other trademark examining attorneys
`
`in registering other marks are not binding as an indication that goods are not related.
`
`3. Caselaw
`
`We also have considered Applicant’s reliance on Vital Pharm., Inc. v. Kronholm,
`
`99 USPQ2d 1708 (TTAB 2011) for the proposition that the types of goods at issue are
`
`not related, but are not persuaded for numerous reasons. First, the case involved
`
`different goods – supplements versus cosmetics and perfumes. Second, Applicant’s
`
`summary of the case conspicuously omits that the opposer failed to submit any
`
`evidence other than attaching pleaded registrations to its notice of opposition, and
`
`did not file a brief. Id. at 1708-09. The Board concluded that “[t]he evidence of record
`
`does not make a prima facie case for opposer.” Id. at 1712. Thus, Vital Pharm.
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`Serial No. 90389844
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`certainly does not stand for the proposition that these types of goods cannot be
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`considered related; instead, the case reflects a failure of proof by a litigant that did
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`not avail itself of the opportunity to submit evidence in the proceeding. Third, even if
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`Vital Pharm. had involved a more robust record, our precedent points out “the limited
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`utility of reliance, in lieu of supporting evidence, on past decisions in which the Board
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`has or has not found various [goods] to be related.” In re Embiid, 2021 USPQ2d 577
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`at *26 (TTAB 2021). We must rely on the evidentiary record before us regarding
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`potential relatedness, including the marketplace evidence and current registration
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`evidence, rather than the holding of a case that was based on a different evidentiary
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`record compiled (or not) by the involved parties at that time. While prior decisions
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`assessing the relatedness of goods may be valuable for their instruction on what kinds
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`of evidence resulted in the Board’s conclusions, they do not constitute evidence to
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`support relatedness or unrelatedness in another proceeding. See Hyde Park Footwear
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`Co. v. Hampshire-Designers, Inc., 197 USPQ 639, 643 (TTAB 1977). Ultimately, “each
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`case must be decided on its own facts and the differences are often subtle ones.” In re
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`St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1087 (Fed. Cir. 2014).
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`On this record, we find Applicant’s goods related to those in the cited
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`registration.41 The second DuPont factor weighs in favor of likely confusion.
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`41 To the extent Applicant suggests that the nature of the goods at issue in this case requires
`“something more” than the usual legal standard for relatedness of goods, we reject the
`contention. The “something more” standard has been applied when comparing services and
`goods that are not inherently related, requiring, for example, “show something more than
`that similar or even identical marks are used for food products and for restaurant services.”
`In re Coors Brewing, 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003); see also In re
`St. Helena Hosp., 113 USPQ2d at 1087 (explaining the need to show “‘something more’ than
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`Serial No. 90389844
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`C. The Trade Channels and Classes of Consumers
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`Turning to the trade channels, the third-party retail website evidence discussed
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`above establishes that goods such as Applicant’s and Registrant’s travel in some of
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`the same channels of trade to the same classes of consumers. Applicant has not
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`argued otherwise. Thus, the third DuPont factor weighs in favor of likely confusion.
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`D. Conclusion
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`The near identity of the marks for related goods that move in some of the same
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`channels of trade to the same classes of customers renders confusion likely. 15 U.S.C.
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`§ 1052(d).
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`Decision: The refusal to register Applicant’s mark is affirmed.
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`the mere fact that the goods and services are ‘used together’” in situations where the
`relatedness of the goods and services is obscure or not generally recognized).
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