Greenbaum*
Heasley
English
This Opinion is Not a
Precedent of the TTAB
Mailed: September 4, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re IM Production
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Serial No. 79206371
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R. Peter Spies of Dineff Trademark Law Limited,
for IM Production.
Louis Kolodner, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
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Before Greenbaum, Heasley and English,
Administrative Trademark Judges.
Opinion by Greenbaum, Administrative Trademark Judge:
IM Production (Applicant) seeks registration on the Principal Register of the
mark ISABEL MARANT (in standard characters) for
Perfumes; Eaux de toilette; Skin soaps; Toilet soaps;
Cosmetics products, namely, eye shadows, blush, blush-
pencils, and make-up sets; Skin lotions; Non-medicated
salts, oils and gels for bathing, shaving and toilet purposes;
Essential oils; Make-up powder; Make-up; Nail varnish;
Serial No. 79206371
Lipstick; Non-medicated hair lotions; Hair sprays;
Shampoos; Dentifrices, in International Class 3.1
The Trademark Examining Attorney has refused registration of Applicants mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicants mark, when used on Applicants goods, so resembles the previously
registered standard character mark MARANT2 for Cosmetic creams; Cosmetics and
cosmetic preparations; Cosmetics in general, including perfumes; Hair shampoo;
Lotions for face and body care; Perfumes in International Class 3, as to be likely to
cause confusion, mistake, or deception.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. In re Chatam Intl Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed.
Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
1 Application Serial No. 79206371 was filed on February 9, 2017 based upon a request for
extension of protection filed under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141(f).
Isabel Marant is an individual whose consent to register is of record.
2 Registration No. 5008839, issued on July 26, 2016.
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Serial No. 79206371
24, 29 (CCPA 1976) (The fundamental inquiry mandated by § 2(d) goes to the
cumulative effect of differences in the essential characteristics of the goods and
differences in the marks.); see also In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (The likelihood of confusion analysis considers
all DuPont factors for which there is record evidence but may focus on dispositive
factors, such as similarity of the marks and relatedness of the goods) (quoting
Herbko Intl, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002)). We have considered each du Pont factor that is relevant and for which
there is evidence of record. See M2 Software, Inc. v. M2 Commcns, Inc., 450 F.3d
1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (even within the du Pont list, only
factors that are relevant and of record need be considered). Varying weights may be
assigned to each du Pont factor depending on the evidence presented. See Citigroup
Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir.
2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (the
various evidentiary factors may play more or less weighty roles in any particular
determination).
A. Relatedness of the Goods and Channels of Trade
Under the second and third du Pont factors, we base our evaluation on the goods
as they are identified in the application and cited registration. See In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Stone Lion
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Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014).
Here, the hair shampoo and lotions for face and body care identified in the
cited registration are essentially identical to the shampoo and skin lotions
identified in the application, and the broadly worded cosmetics and cosmetics
preparations identified in the registration encompass, and therefore are legally
identical to, Applicants more narrowly identified cosmetics products, namely, eye
shadows, blush, blush-pencils, and make-up sets, make-up powder, make-up,
nail varnish, and lipstick. See In re Hughes Furniture Indus., Inc., 114 USPQ2d
1134, 1137 (TTAB 2015) (Applicants broadly worded identification of furniture
necessarily encompasses Registrants narrowly identified residential and
commercial furniture.). The registration also identifies cosmetics in general,
including perfumes, which are legally identical to the more specific perfumes,
eaux de toilette and essential oils identified in the application. Id. Because the
goods in the application and cited registration include legally identical products, we
need not further consider the relatedness of the goods. See SquirtCo v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good
from among several may sustain a finding of likelihood of confusion); Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981) (likelihood of confusion must be found if there is likely to be confusion with
respect to any item that comes within the identification of goods or services in the
application).
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Applicant does not dispute the relatedness of the goods, but argues that they move
in different channels of trade, with Applicant marketing its products through its own
outlets and high-end retailers and Registrant purportedly marketing its products
through its website. This argument is unavailing. Given the in-part legal identity of
the identified goods, and the lack of restrictions or limitations in the application or
registration as to their nature, channels of trade, or classes of customers, we must
presume that the channels of trade and classes of purchasers for these goods are the
same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
(legally identical goods are presumed to travel in same channels of trade to same class
of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723
(CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same).
Moreover, we must make our determination regarding the similarity between the
goods based on the goods as they are identified in the application and cited
registration, respectively, not on any extrinsic evidence of actual use. i.am.symbolic,
123 USPQ2d at 1749; Stone Lion, 110 USPQ2d at 1162. In other words, an applicant
may not restrict the scope of the goods covered in its application or the cited
registration by argument or extrinsic evidence. Octocom Sys., Inc. v. Hous. Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (The authority is
legion that the question of registrability of an applicants mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicants goods, the
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particular channels of trade or the class of purchasers to which the sales of goods are
directed.). We therefore cannot limit or restrict the fragrances and cosmetics
products identified in the application or cited registration by price point or quality,
but rather must consider the products to include modestly priced as well as more-
expensive, high-end varieties.
These du Pont factors weigh heavily in favor of likelihood of confusion.
B. Conditions of Sale
Under the fourth du Pont factor, we consider [t]he conditions under which and
buyers to whom sales are made, i.e., impulse vs. careful, sophisticated purchasing.
du Pont, 177 USPQ at 567. Applicant acknowledges that [h]ere, we are not
confronted with professional buyers, but argues that Applicants goods are
expensive high end products, which may only be purchased after careful review and
consideration, and that purchasers of fragrances and cosmetics exercise care in their
purchasing decisions for health and esthetic reasons. App. Br., 12 TTABVUE 26.
However, as discussed, the fragrance and cosmetics products identified in the
application and cited registration must be presumed to include both expensive and
inexpensive varieties, subject to casual, impulse purchases. There is nothing in the
nature of these products, without any limitation as to their types, price points or
intended consumers, to suggest their purchasers are particularly sophisticated or
careful. See In re I-Coat Co., 126 USPQ2d 1730, 1739 (TTAB 2018). In fact, the
standard of care is that of the least sophisticated potential purchaser. Stone Lion,
110 USPQ2d at 1163. And as to the more modestly priced fragrances and cosmetic
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products, [w]hen products are relatively low-priced and subject to impulse buying,
the likelihood of confusion is increased because purchasers of such products are held
to a lesser standard of purchasing care. Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1899 (Fed. Cir. 2000).
This factor also favors a likelihood of confusion.
C. The Similarity or Dissimilarity of the Marks
We compare Applicants mark ISABEL MARANT and the cited registered mark
MARANT, both in standard characters, in their entireties as to appearance, sound,
connotation and commercial impression. Detroit Athletic Co., 128 USPQ2d at 1048
(quoting du Pont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005). The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018).
Because similarity is determined based on the marks in their entireties, our
analysis is not predicated on dissecting the marks into their various components.
Stone Lion, 110 USPQ2d at 1161; see also Franklin Mint Corp. v. Master Mfg. Co.,
667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (It is axiomatic that a mark should
not be dissected and considered piecemeal; rather, it must be considered as a whole
in determining likelihood of confusion.). On the other hand, there is nothing
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Serial No. 79206371
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties. In re Natl Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
Further, the marks must be considered in light of the fallibility of memory .
In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014)
(quotation omitted). We focus on the recollection of the average consumer here, an
ordinary consumer of cosmetics and fragrances who normally retains a general
rather than a specific impression of trademarks. See id. at 1085; Geigy Chem. Corp.
v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971). And we
bear in mind that where, as here, goods are legally identical in part, the degree of
similarity necessary to support a conclusion of likely confusion declines. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722
(Fed. Cir. 2012) (quotation omitted).
Applicant argues that the differences in the marks in appearance and sound are
sufficient to distinguish them, and that the marks create different commercial
impressions because Applicants mark ISABEL MARANT is the name of a famous
designer, and the cited mark MARANT is an acronym for the owners name and not
a surname, which the Examiner argues repeatedly. App Br. 12 TTABVUE 9. The
Examining Attorney contends that the marks are similar overall because the
applied-for mark appears to be the full name version of the registered mark[.] Ex.
Atty. Br. 14 TTABVUE 14. We agree with the Examining Attorney.
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Serial No. 79206371
When considered in their entireties, we find Applicants mark ISABEL MARANT
and the cited mark MARANT, both in standard characters, to be very similar in
appearance, sound, connotation and commercial impression, due to the shared term
MARANT. Applicants mark ISABEL MARANT incorporates the entire registered
mark MARANT. While there is no rule that a likelihood of confusion is present where
one mark encompasses another, in this case, as in many others, the fact that
Applicants mark includes the entirety of the cited mark increases the similarity
between them. See, e.g., Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 194 USPQ
419, 422 (CCPA 1977) (finding CALIFORNIA CONCEPT marks substantially similar
to prior mark CONCEPT); Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph
E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicants
mark BENGAL LANCER for club soda, quinine water and ginger ale is likely to cause
confusion with BENGAL for gin).
Here, the given name Isabel in Applicants mark modifies the surname
Marant, in effect identifying a specific individual with the surname Marant, and
thereby emphasizing the Marant portion of Applicants mark. Because the marks
share the surname Marant, which is the sole element in the cited mark and a
distinct element in Applicants mark, consumers likely would believe that the two
marks refer to the same person. See, e.g., In re Chatham Intl Inc., 380 F.3d 1340, 71
USPQ2d 1944, 1946 (Fed. Cir. 2004) (JOSE GASPAR GOLD confusingly similar to
GASPARS ALE); In re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015) (C.H.
HANSON confusingly similar to HANSON); Harry Winston, Inc. v. Bruce Winston
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Serial No. 79206371
Gem Corp., 111 USPQ2d 1419, 1446-47 (TTAB 2014) (BRUCE WINSTON confusingly
similar to WINSTON); In re SL&E Training Stable Inc., 88 USPQ2d 1216, 1219
(TTAB 2008) (SAM EDELMAN confusingly similar to EDELMAN); Somerset
Distilling Inc. v. Speymalt Whisky Distribs. Ltd., 14 USPQ2d 1539, 1542 (TTAB 1989)
(JAS. GORDON confusingly similar to GORDONS). This is especially true given the
legally identical nature of goods at issue. Hughes Furniture, 114 USPQ2d at 1139.
We have considered Applicants argument that there is no likelihood of confusion
because Isabel Marant is a famous French house of fashion, App. Br., 12 TTABVUE
11, and Applicants voluminous supporting evidence.3 Although this record supports
a finding that Applicant is a somewhat well known fashion designer, the finding is to
Applicants detriment, as it weighs in favor of a likelihood of confusion. As the Board
explained in i.am.symbolic, llc, 116 USPQ2d 1406, 1412, n.7 (TTAB 2015), affd, 866
F.3d 1315 (Fed. Cir. 2017), the fame of either an applied-for or registered mark
increases the likelihood of confusion by making it more
likely that purchasers will remember the famous mark and
think of it when encountering similar goods sold under a
similar mark. Of course, such likelihood of confusion is only
a reason to refuse a new registration, not grant one. To the
extent that [Applicant] and Applicants mark are well-
known, such fact supports refusal of Applicants
application, because when confusion is likely, it is the prior
Registrant which must prevail. Even if it eclipses the
renown of the prior Registrant, Applicants fame does not
entitle it to usurp the cited Registrants rights in the mark.
3Applicant submitted with its February 2, 2018 Petition to Revive and September 6, 2018
Request for Reconsideration approximately 2000 pages of evidence to demonstrate that
Applicant is a well known designer of clothing and clothing accessories.
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Serial No. 79206371
Applicant also relies on a statement in a declaration submitted by Registrants
CEO about the origin of the cited mark MARANT, made during prosecution of the
application underlying the cited registration to overcome a surname refusal under
Section 2(e)(4) of the Trademark Act, 15 U.S.C. § 2(e)(4).4 However, Registrants
statement has no effect on the matter before us as it simply expresses a legal
argument and the purported intention of the Registrant, rather than reflecting how
the purchasing public views the cited mark. [A]n applicants or registrants intended
interpretation of the mark is not necessarily the same as the consumers perception
of it. In re Yale Sportswear Corp., 88 USPQ2d 1121, 1125 (TTAB 2008); see also
Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1465 (TTAB 2003)
(In short, it does not matter what applicants intentions were in creating its mark or
what its characterization of its mark is.). This is but one reason that we follow here
the Boards often repeated principle that every application is examined on its own
record. See In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir.
2016) ([The Federal Circuit], like the Board must evaluate the evidence in the
present record to determine whether there is sufficient evidence .); In re
Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221 (Fed. Cir. 2009)
(Applicants allegations regarding similar marks are irrelevant because each
application must be considered on its own merits.); see also In re Nett Designs, Inc.,
4The declaration appears in the application file for the cited registration, which Applicant
attached to the February 2, 2018 Petition to Revive, TSDR p. 388, and reads, in relevant part,
as follows: [t]he denomination MARANT as a trademark
was named after the initials of
my own name as exemplified below: MARIA ANTONIETA. (emphasis in original).
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Serial No. 79206371
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 PTOs
allowance of such prior registrations does not bind the [Trademark Trial and Appeal]
Board or this court.).
Here, the record shows that consumers likely will perceive MARANT as a
surname. MARANT is the surname of Ms. Isabel Marant, whose consent to register
is of record. Referring back to Applicants claim of fame, we observe that if consumers
are as familiar with the designer Isabel Marant and her house of fashion as Applicant
asserts, they would be even more likely to perceive the registered mark MARANT as
a surname identifying, in abbreviated form, the ISABEL MARANT to whom
Applicants mark refers. Consumers often shorten company names, and in the fashion
industry, they frequently refer to couturiers only by their surnames. See SL&E
Training Stable, 88 USPQ2d at 1219, and cases cited therein.
When viewed in their entireties, the marks are very similar in appearance and
sound, and they create the same commercial impression of an individual with the
surname MARANT. This impression makes it likely that consumers would perceive
the provider of the overlapping fragrances and cosmetics to be the same. Thus, this
du Pont factor weighs in favor of likely confusion.
D. Other Arguments
Applicant raises a number of other arguments that are based on its ownership of
three registrations for the mark ISABEL MARANT for various other goods including
eyeglasses, jewelry, clothing and bags, and one registration for the mark ISABEL
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Serial No. 79206371
MARANT ETOILE for various jewelry, bags and clothing. In particular, Applicant
argues that there is no likelihood of confusion because: Applicant has a family of
marks; there has been no known confusion between its prior registered marks and
the cited mark; and registration of the applied-for ISABEL MARANT mark for the
identified cosmetics and fragrances is within Applicants zone of expansion.5 We have
considered these arguments, but find them unpersuasive.
First, as Applicant acknowledges (App. Br., 12 TTABVUE 14), the family of marks
doctrine is unavailable to applicants seeking to overcome a likelihood of confusion in
an ex parte proceeding. The focus is on the mark an applicant is seeking to register
and not on any other marks the applicant may have used or registered. In re
Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009). See also In re Hitachi High-
Techs. Corp., 109 USPQ2d 1769, 1772 (TTAB 2014) (establishment of a family of
marks requires consideration of use of the marks, which usually is beyond the scope
of examination in an ex parte proceeding).
Second, the test under Section 2(d) is likelihood of confusion, not actual confusion;
thus, it is not necessary to show actual confusion to establish likelihood of confusion.
Detroit Athletic Co., 128 USPQ2d at 1053. Also, while a showing of actual confusion
would be highly probative, the lack of evidence of actual confusion carries little
weight, especially in an ex parte context. Majestic Distilling, 65 USPQ2d at 1205
5Applicant also argues that prior marks have gathered a strong reputation
over the last
decade and as evidenced by the submitted documents. 12 TTABVUE 15. This argument is
subsumed in our above discussion about Applicants claim that Isabel Marant is a famous
French house of fashion.
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(internal citations omitted) ([U]ncorroborated statements of no known instances of
actual confusion are of little evidentiary value). In any event, there is no probative
evidence as to whether there have been meaningful opportunities for actual confusion
to have occurred in the marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842, 184 (Fed. Cir. 2000); Gillette Canada Inc. v. Ranir Corp., 23
USPQ2d 1768, 1774 (TTAB 1992).
Third, the expansion of trade doctrine has limited application in ex parte
proceedings, and usually is applied in inter partes proceedings where a plaintiff
claims that its priority of use of a mark for its goods or services should be extended
to include the defendants goods or services because they are in the natural zone of
expansion of the plaintiffs goods or services. See Orange Bang, Inc. v. Ole Mexican
Foods, Inc., 116 USPQ2d 1102, 1119 (TTAB 2015) (natural zone of expansion
doctrine normally applies in inter partes where priority is an issue). The Board
considers the concept in ex parte proceedings through a traditional relatedness of
goods and services approach. In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1266
(TTAB 2011); In re Ginc UK Ltd., 90 USPQ2d 1472, 1480 n.9 (TTAB 2007). We have
done so here. As discussed above, the goods identified in the application and cited
registration include overlapping fragrances and cosmetics. The coexistence of the
cited registration with Applicants prior registrations for different goods does not
compel a different result.
We distinguish In re Strategic Partners, 102 USPQ2d 1397, 1399 (TTAB 2012). In
that case, an applicant had been refused registration under Section 2(d) even though
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it owned an existing registration that was over five years old for a mark and for goods
that were substantially similar to those set forth in the refused application. The
Board noted that, because the registration was over five years old, it was not subject
to attack by the owner of the cited registration on a claim of priority and likelihood of
confusion. Id. at 1399. See Section 14 of the Trademark Act, 15 U.S.C. § 1064. In
addition, the Board specified that the facts in Strategic Partners constituted a unique
situation, limited to cases that fall within those exact parameters. Strategic
Partners, 102 USPQ2d at 1400. Unlike Strategic Partners, Applicants current
application identifies goods that are not identical to the goods for which its earlier
registrations are subsisting. Cf. In re Inn at St. Johns, LLC, 122 USPQ2d 1742
(TTAB 2018) (declining to extend Strategic Partners where an applied-for mark was
partially similar to the mark in an existing registration owned by that applicant
although the services were identical).
Finally, Applicant argues that it should be allowed to use and register its personal
name. However, Applicant may only do so if it would not cause a likelihood of
confusion as to the origin of the goods sold under that name. See Nina Ricci S.A.R.L.
v. E.T.F. Enters. Inc., 889 F.2d 1070, 12 USPQ2d 1901 (Fed. Cir. 1989) (VITTORIO
RICCI for handbags, clothing and retail clothing store services likely to cause
confusion with NINA RICCI for clothing and accessories even though Vittorio Ricci
was the name of defendants principal); SL&E Training Stable, 88 USPQ2d at 1217
(Thus, the fact that SAM EDELMAN is an individuals name does not give applicant
an unfettered right to use that name if it conflicts with a previously registered
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mark.); Justin Indus. v. D.B. Rosenblatt, Inc., 213 USPQ 968, 976 (TTAB 1981) (the
right to use ones name in his business may be circumscribed if it conflicts with a
mark previously used by another and is likely to cause confusion as to the origin of
the business or of the goods sold thereunder).
II. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the overall similarity of the marks for goods that
include legally identical fragrances and cosmetics that move in the same channels of
trade to the same classes of purchasers, some of whom exercise a lesser standard of
purchasing care, renders confusion likely.
Decision: The refusal to register Applicants mark ISABEL MARANT is affirmed.
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