RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 23a0216p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`BLISS COLLECTION, LLC dba bella bliss,
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`Plaintiff-Appellant (21-5723),
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`Plaintiff-Appellee (22-5361),
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`v.
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`LATHAM COMPANIES, LLC dba little english,
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`Defendant-Appellee (21-5723),
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`Defendant-Appellant (22-5361).
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`Nos. 21-5723/22-5361
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`
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`Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
`No. 5:20-cv-00217—Claria Horn Boom, District Judge.
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`Argued: January 25, 2023
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`Decided and Filed: September 21, 2023
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`Before: BUSH, LARSEN, and MATHIS, Circuit Judges.
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`_________________
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`COUNSEL
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`ARGUED: Jaci L. Overmann, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Bliss
`Collection, LLC. Laurence J. Zielke, ZIELKE LAW FIRM, PLLC, Louisville, Kentucky, for
`Latham Companies, LLC. ON BRIEF: Jaci L. Overmann, DINSMORE & SHOHL LLP,
`Cincinnati, Ohio, for Bliss Collection, LLC. Laurence J. Zielke, Janice M. Theriot, ZIELKE
`LAW FIRM, PLLC, Louisville, Kentucky, for Latham Companies, LLC.
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`MATHIS, J., delivered the opinion of the court in which BUSH, J., joined. LARSEN, J.
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`(pp. 22–29), delivered a separate opinion concurring in part and dissenting in part.
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`
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 2
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`_________________
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`OPINION
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`_________________
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`MATHIS, Circuit Judge. In the latest chapter in the saga of two children’s clothing
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`manufacturers, we are asked to determine whether one of the manufacturers has properly brought
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`trademark and trade dress infringement claims against the other. And, if not, whether the
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`defending party is entitled to attorney’s fees. Bliss Collection, LLC and Latham Companies,
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`LLC have had a long and acrimonious relationship after one of Bliss’s founders left the company
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`to start Latham as a direct competitor. The parties have since engaged in sporadic litigation
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`against each other.
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`The district court dismissed Bliss’s trademark and trade dress infringement claims. After
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`Latham sought attorney’s fees for successfully defending against those claims, the district court
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`declined to award fees to Latham. Both parties appealed. We find that Bliss has stated claims
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`for federal and state trademark infringement but has not stated a claim for trade dress
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`infringement. We also find that the district court did not err in denying attorney’s fees to Latham
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`for defending the trademark and trade dress infringement claims. Therefore, we affirm in part
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`and reverse in part.
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`I.
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`In 1999, Shannon Latham, Elizabeth McLean, and Jennifer Vernooy formed Bliss to sell
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`children’s clothing under the name “bella bliss.” According to Bliss, bella bliss products are
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`“heirloom-quality pieces” based on “retro-inspired prints,” “handmade knits,” and “separates.”
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`About bella bliss, BELLA BLISS, https://www.bellabliss.com/pages/about (last visited Sept. 1,
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`2023). Because it creates its own distinctive designs and prints, Bliss asserts that such pieces can
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`only be purchased from Bliss. See id.
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`In 2003, Shannon left Bliss following differences of opinion with the other founders and
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`started Latham to sell her own children’s clothing under the name “little english.” According to
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`Latham, little english products are “forever quality garments” that are “[i]nspired by the
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 3
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`
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`exceptional
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`quality
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`of
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`hand-sewn
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`clothing.”
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`
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`About Us,
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`LITTLE
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`ENG.,
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`https://www.littleenglish.com/pages/about-us-2021-update (last visited Sept. 1, 2023).
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`Bliss’s Relevant Trademarks. Bliss’s logo is a lowercase “b” drawn out as if stitched in
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`thread. Bliss has three registered trademarks for this logo, each of which registers the logo for
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`different applicable uses.1 These trademarks were all registered in October 2007 and relate only
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`to the logo itself, rather than whatever color the logo may appear in. Bliss has a fourth trademark
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`application pending with the U.S. Patent and Trademark Office (filed on May 5, 2020) to register
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`the logo in its signature light blue color (termed “bliss Blue”) with the words “bella bliss”
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`underneath it.2 This fourth trademark covers the uses of the first three trademarks, plus several
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`others.
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`Bliss’s Relevant Clothing Designs. Bliss has several designs that it claims as signature
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`looks of the bella bliss brand:
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`• Bliss’s “Mirabelle” swimsuit, which features “an exaggerated C-shaped scoop
`neckline featuring a heavily pleated highly ruffled swim fabric.” R. 11, PageID
`461.
`
`• Bliss’s jungle print design, a “unique combination of jungle animals” that
`“create[s] a visually appealing Print with yellow, orange, and blue jungle animals
`and palm trees.” Id. at 462.
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`• Bliss’s color-blocked gingham swim trunks, which feature “a pink gingham
`waistband, light blue gingham right short leg, and light green gingham left short
`leg.” Id. at 462–63.
`
`• Bliss’s “Shep Bubble” romper, which features “an emphasized ‘Peter Pan’ collar
`trimmed in white piping, with two white buttons and white stitching with a loose
`overall fit.” Id. at 463.
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`• Bliss’s “Sailor Bubble” look, which features “contrasting outlining and visible
`buttons at the top and sides.” Id. at 464.
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`• Bliss’s “Eloise” blouse, which features “a unique small floral pattern.” Id. at 465.
`
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`1U.S. Reg. No. 3,321,192 covers “children’s clothing, namely sweaters, dresses, hats, pajamas, rompers
`and infant sleepers.” U.S. Reg. No. 3,327,352 covers “bed blankets.” U.S. Reg. No. 3,469,536 covers “duffel bags,
`and tote bags.” R. 11, PageID 431–33.
`2The “bliss Blue” color covers “Pantone color 13-4220, Artic Paradise (alternative Pantone colors listed as
`291 CP, 112-3 C, 442-U, and 115-4 U).” Id. at 433.
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 4
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`
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`• Bliss’s “Eloise” jumper, which features the same floral pattern as the blouse with
`“distinctive stitching in a contrast color, with straps across the front of the jumper
`in a contrasting color and drop-down piping connecting to the side straps.” Id. at
`465.
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`Bliss contends that these designs have “become famous and widely known and
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`recognized as symbols of unique and high quality garments throughout the state of Kentucky and
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`the whole United States.” Id. at 459.
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`In 2005, not long after Latham began operations, Bliss sued Latham for copyright
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`infringement, false designation of origin, unfair competition, and misappropriation of
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`confidential information and trade secrets. Ultimately, that case settled.
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`In 2020, Latham sued Bliss in Kentucky state court for breach of contract and tortious
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`interference.
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`Bliss then filed this action against Latham. Bliss asserts claims for: (1) federal copyright
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`infringement, (2) federal trademark infringement, (3) federal trade dress infringement, (4) federal
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`false designation of origin and misappropriation of source, (5) federal unfair competition, (6)
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`trademark infringement under Kentucky common law, and (7) unfair competition under
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`Kentucky common law. Bliss alleges that Latham copied several designs that Bliss copyrighted;
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`altered its logo to match Bliss’s logo; altered its logo, website, and social media accounts to
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`match Bliss’s signature color; and copied a number of signature designs that Bliss had produced
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`for years. According to Bliss, these actions led consumers to confuse Bliss’s and Latham’s
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`products and diverted customers from Bliss to Latham.
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`After Latham moved to dismiss Bliss’s amended complaint, the district court dismissed
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`Bliss’s federal copyright and trade dress infringement claims but denied Latham’s motion on
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`Bliss’s other claims. The court dismissed Bliss’s remaining claims after Latham filed a motion
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`for reconsideration.
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`Latham pursued recovery of its attorney’s fees for defeating Bliss’s federal copyright,
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`trademark, and trade dress infringement claims. The district court granted Latham attorney’s
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`fees for defending the copyright claim but denied the motion with respect to the trademark
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`infringement and trade dress claims. The court found that Latham was not entitled to attorney’s
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 5
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`
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`fees for defending Bliss’s federal trademark and trade dress infringement claims because such
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`awards were warranted only in “exceptional” cases. The court found that Bliss filed its action in
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`good faith and that, despite dismissing Bliss’s trademark and trade dress claims, the claims were
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`not so “exceptionally meritless” that Latham “merit[ed] a rare attorney’s fees award under [15
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`U.S.C.] § 1117.” R. 59, PageID 1642–43.
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`II.
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`We review an order dismissing a complaint under Federal Rule of Civil Procedure
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`12(b)(6) de novo. See Lindke v. Tomlinson, 31 F.4th 487, 495 (6th Cir. 2022). A complaint
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`“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Id. In this regard, a pleading that offers only “labels and
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`conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
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`Twombly, 550 U.S. at 555.
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`An award of attorney’s fees is reviewed for an abuse of discretion. See Max Rack, Inc.
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`v. Core Health & Fitness, LLC, 40 F.4th 454, 477 (6th Cir. 2022). “A district court abuses its
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`discretion when it relies on clearly erroneous findings of fact, when it improperly applies the
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`law, or uses an erroneous legal standard.” New London Tobacco Mkt., Inc. v. Ky. Fuel Corp., 44
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`F.4th 393, 403 (6th Cir. 2022) (quoting Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th
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`Cir. 2019)).
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`III.
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`Bliss argues that the district court erred in dismissing its claims for federal trademark
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`infringement, federal trade dress infringement, and trademark infringement under Kentucky
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`common law. Latham argues that the district court erred in refusing to award Latham attorney’s
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 6
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`
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`fees in connection with Bliss’s claims for federal trademark and trade dress infringement. We
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`take each argument in turn.3
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`A.
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`Bliss’s Federal Trademark Infringement Claim. A trademark is “any word, name,
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`symbol, or device, or any combination thereof . . . [used] to identify and distinguish his or her
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`goods, including a unique product, from those manufactured or sold by others and to indicate the
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`source of the goods, even if that source is unknown.” 15 U.S.C. § 1127. To establish a claim for
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`trademark infringement for a registered trademark, a plaintiff must show that: (1) it owns the
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`registered trademark, (2) the defendant used the trademark in commerce, and (3) the use was
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`likely to cause confusion. See 15 U.S.C. § 1114(1); Hensley Mfg. v. ProPride, Inc., 579 F.3d
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`603, 609 (6th Cir. 2009).
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`For an unregistered trademark, the mark is not afforded the same presumption of validity
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`that registered marks receive. See Fuji Kogyo Co. v. Pac. Bay Int’l, Inc., 461 F.3d 675, 683 (6th
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`Cir. 2006) (citation omitted). Still, unregistered marks may receive protection under § 43(a) of
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`the Lanham Act (15 U.S.C. § 1125(a)(1)). See T. Marzetti Co. v. Roskam Baking Co., 680 F.3d
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`629, 633 (6th Cir. 2012) (citing Tumblebus v. Cranmer, 399 F.3d 754, 760–61 (6th Cir. 2005)).
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`The use of such marks (assuming they meet the other criteria used for registered marks) is
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`protected “if followed by continuous commercial utilization.” Allard Enters., Inc. v. Advanced
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`Programming Res., Inc., 146 F.3d 350, 358 (6th Cir. 1998) (citation omitted).
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`The relevant trademarks at issue include Bliss’s three registered trademarks for its
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`lowercase “b” as depicted below:
`
`
`
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`3Bliss does not challenge the dismissal of its claims for federal copyright infringement, federal false
`designation of origin and misappropriation of source, federal unfair competition, and unfair competition under
`Kentucky common law.
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 7
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`In addition, the amended complaint alleges trademark infringement based on the
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`following pending trademark that includes the color bliss Blue with the words “bella bliss” under
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`it:
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`R. 11, PageID 430–33, 469–71.
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`
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`As a preliminary question, we must decide whether the unregistered trademark for the
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`lowercase “b” logo in bliss Blue is entitled to the same analysis as the other three registered
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`trademarks. The question is ultimately one of “continuous commercial utilization.” Allard
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`Enters., 146 F.3d at 358.
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`With respect to continuous use of the unregistered mark, Bliss alleges that it has used its
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`bliss Blue color since 2001 “consistently, extensively, and repeatedly throughout its website,
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`social media pages, on hang tags for the bella bliss Products, and on its packaging . . . .” R. 11,
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`PageID 434 (emphasis removed). It supports these allegations by attaching exhibits to the
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`amended complaint which show Bliss’s catalog and social media pages using the color in its
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`branding. Concerning the mark’s place in the market, Bliss alleges that bliss Blue has become
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`“widely known and recognized as [a] symbol[] of unique and high quality garments throughout
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`the state of Kentucky and the whole United States.” Id. at 434, 459. We therefore find that Bliss
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`has adequately alleged continuous use in the unregistered mark.4
`
`
`4To the extent Bliss alleges that it has a trade dress claim in the color bliss Blue alone, that claim fails. To
`establish a trade dress claim in a color, Bliss must adequately allege that the color has achieved distinctiveness
`through “secondary meaning.” See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 212 (2000).
`There are several factors for assessing secondary meaning, and the party seeking to establish secondary meaning
`bears a substantial evidentiary burden in doing so. DeGidio v. W. Grp. Corp., 355 F.3d 506, 513 (6th Cir. 2004);
`Burke-Parsons-Bowlby Corp. v. Appalachian Log Homes, Inc., 871 F.2d 590, 596 (6th Cir. 1989). Though direct
`evidence is rare and Bliss need not establish every factor, Bliss must still sufficiently allege “that the attitude of the
`consuming public toward the mark denotes ‘a single thing coming from a single source.’” Burke-Parsons-Bowlby
`Corp., 871 F.2d at 596 (emphasis added, citation omitted). In that sense, alleging little or no evidence regarding
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 8
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`As to these Bliss marks, the complaint sets out a history of Latham’s actions that,
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`according to Bliss, shows Latham’s infringement. Bliss alleges that Latham initially used a
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`unique logo to brand its clothing:
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`Id. at 431–33. But, over time, Latham allegedly changed its logo to appear similar to, if not
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`mirror, Bliss’s trademarks:
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`
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`consumer testimony, surveys, or sales and number of customers appears to be detrimental, if not fatal. See, e.g.,
`DeGidio, 355 F.3d at 513–14 (insufficient evidence of consumer testimony and no evidence of consumer surveys);
`Burke-Parsons-Bowlby Corp., 871 F.2d at 596; cf. Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 419–20
`(6th Cir. 2006) (exceptionally strong survey evidence sufficient to overcome absence of evidence for five other
`factors). Bliss’s amended complaint asserts no facts concerning factors related to the attitude of the consuming
`public toward the color bliss Blue.
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 9
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`Id. at 459.
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`For purposes of the motion to dismiss, the parties dispute only whether the amended
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`complaint properly alleges that Latham’s logo constitutes a use of Bliss’s trademarks that is
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`likely to cause confusion. We have previously found that “[g]enerally, dismissal for failure to
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`state a claim upon which relief can be granted is appropriate in only the most extreme trademark
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`infringement cases, such as where goods are unrelated as a matter of law, since the likelihood of
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`confusion is generally a question of fact.” Hensley, 579 F.3d at 613 (emphasis added, citation
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`and quotation omitted). Accepting Bliss’s well-pleaded factual allegations as true, we do not
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`find that Bliss’s trademark infringement claim is so extreme as to warrant dismissal at this stage
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`of the case. See id.
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`“The touchstone of liability [for trademark infringement] is whether the defendant’s use
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`of the disputed mark is likely to cause confusion among consumers regarding the origin of the
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`goods offered by the parties.” Id. at 610 (alteration in original) (quoting Daddy’s Junky Music
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`Stores, Inc. v. Big Daddy’s Fam. Music Ctr., 109 F.3d 275, 280 (6th Cir 1997)). To be liable, the
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`defendant need not use an identification of its goods that is identical to the plaintiff’s trademark.
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`See, e.g., Daddy’s Junky, 109 F.3d at 283–84 (finding a genuine issue of fact concerning
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`trademark infringement where “Big Daddy’s Music” was sufficiently similar to—though not the
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`exact same as—“Daddy’s Junky Music”). Rather, the defendant’s identification must be such
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`that it can be deemed a use of the plaintiff’s trademark that causes confusion. See id. When
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`determining whether there was a likelihood of confusion, we first ask the gatekeeping question
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`of whether the defendant is “using the challenged mark in a way that identifies the source of [its]
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`goods.” Interactive Prods. Corp. v. a2z Mobile Off. Sols., Inc., 326 F.3d 687, 695 (6th Cir.
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`2003); see Hensley, 579 F.3d at 610. If not, then the defendant is using the trademark in a “non-
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`trademark way” and no trademark infringement exists. Hensley, 579 F.3d at 610 (citation and
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`quotation omitted).
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`If the defendant uses the challenged mark in a “trademark way,” we then weigh the
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`following factors (sometimes called the Frisch factors) to determine whether a likelihood of
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`confusion exists—(1) the strength of the senior mark, (2) the relatedness of the goods or services,
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`(3) the similarity of the marks, (4) evidence of actual confusion, (5) the marketing channels used,
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 10
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`(6) the likely degree of purchaser care, (7) the intent of the defendant in selecting the mark, and
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`(8) the likelihood of expansion of the product lines. Id.; see Sunless, Inc. v. Palm Beach Tan,
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`Inc., 33 F.4th 866, 869 (6th Cir. 2022) (citing Frisch’s Rests., Inc. v. Elby’s Big Boy of
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`Steubenville, Inc. (“Frisch I”), 670 F.2d 642, 648 (6th Cir. 1982)). These factors are meant to be
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`“helpful guides rather than rigid requirements.” Groeneveld Transp. Efficiency, Inc. v. Lubecore
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`Int’l, Inc., 730 F.3d 494, 509 (6th Cir. 2013) (citation omitted). Ultimately, the question is
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`“whether relevant consumers are likely to believe that the products or services offered by the
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`parties are affiliated in some way.” Id. (quoting Daddy’s Junky, 109 F.3d at 280).
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`1. Whether Latham Used Its Logos in a Trademark Way
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`Bliss alleges that Latham infringed on the Bliss trademarks by revising its logos over
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`time to mirror Bliss’s. Thus, the infringing use in question is that of Latham’s logos, as opposed
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`to Latham’s products.
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`Latham does not dispute that it used its logos in a way that identified the source of its
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`goods. Consequently, Latham uses its allegedly infringing logos in a “trademark way.” See
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`Hensley, 579 F.3d at 610 (citation and quotation omitted).
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`2. Whether Latham’s Logos Were Likely to Cause Confusion
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`Having cleared the preliminary threshold question, we next consider whether Latham
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`used its logos in a manner that was likely to cause confusion among consumers regarding the
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`origin of Bliss’s and Latham’s goods. Applying the Frisch factors, we find that Bliss’s amended
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`complaint contains sufficient factual matter to show that Latham’s use of its logos was likely to
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`cause confusion. We address each factor below.
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`i.
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`Strength of the Senior Mark
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`“The strength of a mark is a factual determination of the mark’s distinctiveness. The
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`more distinct a mark, the more likely is the confusion resulting from its infringement, and,
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`therefore, the more protection it is due.” Frisch’s Rest., Inc. v. Shoney’s Inc. (“Frisch II”), 759
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 11
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`F.2d 1261, 1264 (6th Cir. 1985).5 “A mark is strong and distinctive when ‘the public readily
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`accepts it as the hallmark of a particular source;’ such acceptance can occur when the mark is
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`unique, when it has received intensive advertisement, or both.” Daddy’s Junky, 109 F.3d at 280
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`(quoting Frisch II, 759 F.2d at 1264). When assessing a mark’s strength, we initially place the
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`trademark into “one of four categories: generic, descriptive, suggestive, and fanciful or
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`arbitrary.” Id. “These categories constitute a spectrum of increasing strength and are not
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`perfectly discrete.” Id.
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`Fanciful and arbitrary marks are considered the strongest or most distinctive marks. See
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`id.; Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1117 (6th Cir.
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`1996); Daddy’s Junky, 109 F.3d at 280. “A fanciful mark is a combination of letters or other
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`symbols signifying nothing other than the product or service to which the mark has been
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`assigned (e.g., Exxon, Kodak).” Little Caesar Enters., Inc. v. Pizza Caesar, Inc., 834 F.2d 568,
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`571 (6th Cir. 1987) (citation and quotation omitted). “An arbitrary mark has a significance
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`recognized in everyday life, but the thing it normally signifies is unrelated to the product or
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`service to which the mark is attached (e.g., Camel cigarettes or Apple computers).” Id. (citation
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`and quotation omitted). In this regard, encroachment on a strong mark tends to produce the
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`greatest likelihood of confusion. See id. Alternatively, “[s]uggestive and descriptive marks
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`either evoke some quality of the product (e.g., Easy Off, Skinvisible) or describe it directly (e.g.,
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`Super Glue).” Id. (quotation omitted). “Such marks are considered weaker, and confusion is
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`said to be less likely where weak marks are involved.” Id. (quotation omitted).
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`After placing the mark into one of the four categories, we then analyze several other
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`considerations to determine the strength of the plaintiff’s mark, such as (1) the existence of
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`similar third-party registrations, (2) the incontestability of the mark, and (3) the degree of
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`consumer recognition of the mark. See Daddy’s Junky, 109 F.3d at 280–82.
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`5The Lanham Act offers protection against infringement of both registered and unregistered marks and the
`analysis for distinctiveness is the same. See DeGidio, 355 F.3d at 509–10.
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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 12
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`
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`a. Whether the Trademarks are Generic, Descriptive, Suggestive, or
`Fanciful or Arbitrary
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`As to the registered trademarks, the lowercase “b” of Bliss’s logo appears to be arbitrary
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`as it has no inherent connection to the sale of children’s clothing. See id. at 281 (finding the
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`marks “Daddy’s Junky Music Store” and “Daddy’s” to be arbitrary marks because, “although
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`consisting of words with recognized meaning in everyday speech, [they did] not have any
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`inherent connection with the sale of musical instruments[]”). In this regard, the lowercase “b” of
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`the logo is inherently distinctive and warrants the heaviest weight. See Wal-Mart Stores, Inc.
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`v. Samara Bros., Inc., 529 U.S. 205, 210–12 (2000) (holding that fanciful, arbitrary, and
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`suggestive marks are inherently distinctive); Daddy’s Junky, 109 F.3d at 280 (fanciful or
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`arbitrary are the strongest and most distinct of the four categories or marks).
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`The same may be said of the unregistered mark containing the lowercase “b” that
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`includes the color bliss Blue with the words “bella bliss” under it. We have already determined
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`that the lowercase “b” is inherently distinctive, and the words “bella bliss” likewise have no
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`inherent connection to children’s clothes. Daddy’s Junky, 109 F.3d at 281. Yet Latham disputes
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`that the logo’s color can be part of the mark’s distinctiveness when considering the mark’s
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`strength. But what Bliss seeks to protect is not merely the color bliss Blue, but the color as it is
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`specifically used in the unregistered mark. Color may feature as a component of a trademark,
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`especially where that color can limit the scope of the mark. See, e.g., Maker’s Mark Distillery,
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`Inc. v. Diageo N. Am., Inc., 703 F. Supp. 2d 671, 683, (W.D. Ky. 2010) (finding that a claim that
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`marks were similar based on a red wax drip—though the color was not specified in the protected
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`trademark—could proceed in part because the focus on color narrowed, rather than expanded,
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`the plaintiff’s trademark interests). Here, Bliss’s unregistered mark similarly limits the scope of
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`its mark. It does not encompass every use of “b” and “bella bliss,” but it does encompass those
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`things used in conjunction with the color bliss Blue. The unregistered mark, as a whole, is
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`arbitrary and thus inherently distinctive.
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`b. The Existence of Third-Party Registrations, Incontestability of the
`Marks, and Degree of Consumer Recognition of the Marks
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`Bliss did not include in its amended complaint any facts concerning whether there are
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`third-party registrations like the “b” or “bella bliss,” so this consideration is neutral.
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 13
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`Regarding the incontestability of the marks, this consideration generally comes into play
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`when the mark in question is merely descriptive, rather than fanciful or arbitrary. See Daddy’s
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`Junky, 109 F.3d at 282. Specifically, a mark becomes “incontestable” if it has not been
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`“successfully challenged within five years of its registration.” Id.; see 15 U.S.C. § 1065. Three
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`of Bliss’s four marks have been registered for over five years. Thus, the only relevant mark for
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`purposes of contestability is Bliss’s fourth pending trademark (i.e., Bliss’s lowercase “b” logo in
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`bliss Blue with the words “bella bliss” under it). The question of contestability is likely
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`irrelevant here because “incontestable status benefits those marks which otherwise would lack
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`inherent strength, i.e., generic marks or descriptive marks without secondary meaning.” Daddy’s
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`Junky, 109 F.3d at 282. As previously discussed, the components of Bliss’s unregistered mark
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`are arbitrary. Even if this mark was contestable, its contestability would not detract from the
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`inherent strength of its components. See id. To the degree that contestability is at issue, it
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`weighs in Bliss’s favor.
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`For the degree of consumer recognition of the mark component, Bliss’s amended
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`complaint alleges that its logos have been commercially used throughout Kentucky and the
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`United States for years and, when combined with Bliss’s “extensive use and advertisement
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`expenditures,” have achieved “substantial consumer recognition.” R. 11, PageID 431, 433.
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`Latham does not appear to contest Bliss’s allegations regarding the degree of consumer
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`recognition of Bliss’s logo.
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`In sum, the strength-of-the-senior-mark factor weighs in Bliss’s favor.
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`ii. Relatedness of the Goods
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`“[I]f the parties compete directly by offering their goods or services, confusion is likely if
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`the marks are sufficiently similar[.]” Daddy’s Junky, 109 F.3d at 282. Bliss and Latham are
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`direct competitors. They both sell children’s clothing. Latham’s founder was one of Bliss’s
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`founders and appears to have continued in the same business with Latham as she had with Bliss.
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`This factor thus weighs in Bliss’s favor.
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 14
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`
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`iii.
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`Similarity of the Marks
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`The similarity of the relevant marks “is a factor of considerable weight.” See Daddy’s
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`Junky, 109 F.3d at 283. While a side-by-side comparison is helpful for reference purposes, “[i]t
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`is axiomatic in trademark law that ‘side-by-side’ comparison is not the test.” Wynn Oil Co. v.
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`Thomas (“Wynn I”), 839 F.2d 1183, 1187 (6th Cir. 1988) (quoting Levi Strauss & Co. v. Blue
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`Bell, Inc., 632 F.2d 817, 822 (9th Cir. 1980)). Instead, we must determine “whether a given
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`mark would confuse the public when viewed alone, in order to account for the possibility that
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`sufficiently similar marks ‘may confuse consumers who do not have both marks before them but
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`who may have a general, vague, or even hazy, impression or recollection of the other party’s
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`mark.’” Daddy’s Junky, 109 F.3d at 283 (quoting Wynn I, 839 F.2d at 1188). In this regard, we
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`“must view marks in their entirety and focus on their overall impressions, not individual
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`features.” Id.
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`Latham (and the dissent) argues that its logos are so inherently distinct from Bliss’s logo
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`that no reasonable consumer would ever confuse them. Bliss’s amended complaint includes a
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`convenient side-by-side comparison of the logos in question. See supra III.A. Comparing the
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`logos next to each other, Latham is correct that the logos share no words or homophones. But
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`the letter “e” in Latham’s “Le” logo is tucked into the uppercase “L” in a manner that tracks the
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`shape of Bliss’s logo. Similarly, the words “little english” are underneath Latham’s “Le” logo
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`just as the words “bella bliss” are underneath Bliss’s lowercase “b” logo. Lastly, the colors
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`appear nearly identical.
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`Of course, these similarities are not per se evidence of trademark infringement such that
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`summary judgment would be appropriate. But they are also not per se evidence of the converse,
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`especially at the motion-to-dismiss stage. This factor thus weighs slightly in Bliss’s favor.
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`iv. Evidence of Actual Confusion
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`“Evidence of actual confusion is undoubtedly the best evidence of likelihood of
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`confusion.” Wynn I, 839 F.2d at 1188. But “[d]ue to the difficulty of securing evidence of actual
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`confusion, a lack of such evidence is rarely significant[.]” Daddy’s Junky, 109 F.3d at 284. As
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`such, a plaintiff need not identify specific instances of actual confusion to state a trademark
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`

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`Nos. 21-5723/22-5361
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` Bliss Collection, LLC v. Latham Cos., LLC
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`Page 15
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`
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`infringement claim. See, e.g., Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 536
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`(6th Cir. 2014) (“Plaintiff did not need to show actual confusion to prevail at trial.”).
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`The amended complaint does not allege instances of actual customer confusion between
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`the parties’ marks, but it does include numerous instances of consumers identifying little english
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`products as bella bliss products on social media and of consumers who have attempted to return
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`little english products to Bliss, “mistakenly believing them to be bella bliss [p]roducts.” R. 11,
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`PageID 465; R. 11-10; R. 11-11; R. 11-12. Most telling is the example of a customer attempting
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`to return a Latham product to Bliss. Although Latham’s logo is on the clothing, the customer
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`mistook the article as originating from Bliss.
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`Because evidence of actual confusion is not required to properly plead a claim for
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`trademark infringement, this factor is neutral.
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`v. Marketing Channels Used
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`This factor considers “how and to whom the respective goods or services of the parties
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`are sold.” Champions Golf, 78 F.3d at 1120 (quoting Homeowners Grp., Inc. v. Home Mktg.
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`Specialists, Inc., 931 F.2d 1100, 1110 (6th Cir. 1991)). Bliss and Latham sell similar products
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`(children’s clothing) to similar customers (families purchasing children’s clothing) in similar
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`ways (social media/print). In the amended complaint, Bliss alleges that it “allocates extensive
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`resources to marketing and advertisement, sending out a substantial number of catalogs
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`nationwide” and using several other forms of print marketing. R. 11, PageID 424. Bliss also
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`alleges that the parties both use social media to market their products and