No. 77325348 (T.T.A.B. Aug. 16, 2013)

Alison Raffaele Cosmetics, Inc.

Trademark Trial and Appeal BoardAug 16, 2013

No. 77325348 (T.T.A.B. Aug. 16, 2013)

Mailed: August 16, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re Alison Raffaele Cosmetics, Inc. ———— Application No. 77325348 Filed: November 8, 2007 ———— Charles A. LeGrand, LeGrand LLC, for applicant. Emily K. Carlsen, Trademark Examining Attorney, (Law Office 103, Michael Ham- ilton, Managing Attorney). ———— Before Quinn, Zervas, and Mermelstein, Administrative Trademark Judges. Opinion by Mermelstein, Administrative Trademark Judge: Applicant seeks registration on the Principal Register of FRUTTA DI VITA, in standard characters, for Cosmetics and cosmetic preparations; Concealers; Cos- metic facial blotting papers; Cosmetic sun-protecting preparations; Cosmetic sun-tanning preparations in International Class 3.1 The examining attorney has refused registration on the ground that registration of applicant’s mark would cause a likelihood of confusion with the mark FRÜT A VIE, in standard characters, registered for 1 Filed alleging a bona fide intent to use the mark in commerce. Amendment to allege use filed and accepted, alleging first use and use in commerce at least as early as April 2008. This Opinion is Not a Precedent of the TTAB Applica in Inter I. L Our probativ likelihoo USPQ 5 Maison jestic D Dixie R the evid quiry m essentia Foods, I 1976); s II. D We 2 Registr ing first ment tha tion No. 77 Cosm skin oils fo tions national C ikelihoo determina e facts in d of confu 63, 567 ( Fondee En istilling C ests. Inc., ence of rec andated b l characte nc. v. For ee In re Az iscussion TheA. Ser begin with ation No. 3 use and us t “[t]he En 325348 etic cream renewal; S r cosmetic lass 3.2 d of Confu tion unde evidence t sion. See I CCPA 197 1772, 396 o., Inc., 31 105 F.3d 1 ord on the y Section ristics of t Howard teca Rest. E Similari vices a compa 861217, iss e in comme glish transl s for skin kin and b use; Wrin sion — L r Tradema hat are re n re E.I. d 3); Palm F.3d 1369 5 F.3d 13 405, 41 U se factors 2(d) goes the goods Paper Co nters., In ty or Diss rison of t ued Octobe rce as of Ja ation of the 2 care; Cosm ody topica kle remov egal Sta rk Act § levant to u Pont de N Bay Imp., , 73 USPQ 11, 65 US SPQ2d 15 , we keep i to the cum and diff ., 544 F.2 c., 50 USP imilarity he goods a r 12, 2010, nuary 4, 2 word ‘A VI etic prep l lotions, ing skin ca ndard 2(d) is bas the factor emours & Inc. v. V 2d 1689 (F PQ2d 120 31 (Fed. C n mind th ulative ef erences in d 1098, 1 Q2d 1209 and Natu t issue. I based on u 010. The re E’ in the m arations f creams an re prepar ed on an s bearing o Co., 476 euve Clicq ed. Cir. 2 1 (Fed. Ci ir. 1997). at “[t]he fu fect of diff the mar 92 USPQ (TTAB 199 re of the n doing s se in comm gistration i ark is ‘of lif or d a- analysis of n the issu F.2d 1357, uot Ponsa 005); In re r. 2003); I In conside ndamenta erences in ks.” Feder 24, 29 (C 9). Goods or o, we are erce, and a ncludes a s e.’ ” the e of 177 rdin Ma- n re ring l in- the ated CPA con- lleg- tate- Application No. 77325348 3 strained to consider the goods as they are identified in the subject application and in the cited registration: The issue in an opposition is the right of an applicant to register the mark depicted in the application for the goods identified therein. The authority is legion that the ques- tion of registrability of an applicant’s mark must be de- cided 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 applicant’s goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed. Octocom Sys. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant’s identification of goods begins with “cosmetics and cosmetic prepara- tions,” and goes on to list “concealers; cosmetic facial blotting papers; cosmetic sun- protecting preparations; [and] cosmetic sun-tanning preparations.” But since we must construe “cosmetics and cosmetic preparations” to include all such goods with- out limitation, we can ignore the following four items, each of which is a type of cosmetic or cosmetic preparation. The cited prior registration likewise lists four items, at least three3 of which are cosmetics or cosmetic preparations. Thus it is clear that applicant’s “cosmetics and cosmetic preparations” are legally identical — 3 The registrant’s first three goods are explicitly stated to be cosmetics. Although it seems likely, it is not entirely clear whether the remaining item — “wrinkle removing skin care preparations” — is a type of cosmetic or cosmetic preparation. Nonetheless, it is apparent that such “wrinkle . . . preparations” are at least related to cosmetics. The examining attor- ney has made of record a number of third-party trademark registrations based on use in commerce identifying both cosmetics and wrinkle preparations. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785–86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1469 (TTAB 1988), aff’d, No. 88–1444 (Fed. Cir. Nov. 14, 1988) (not prece- dential). Applica at least to the ex A fi ports a f Unl istration trade no Kalart C Further must as are like (“Given the lack purchas purchas USPQ2d must be class of (Fed. C and clas in deter tion No. 77 in part — tent that nding that inding of l TheB. Con ess explici practice rmal for s o., Inc. v. , to the ext sume that wise ident the in-par of any re ers, these ers throug 1531, 15 presumed purchaser ir. 2012) ( ses of con mining lik 325348 to the spe applicant’s the goods ikelihood o Similari tinue Tra tly limited that iden uch items. Camera-M ent that g the respe ical. Genes t identica strictions clothing i h the sam 32 (TTAB to travel s”); see In even thou sumers, th elihood of cific cosm goods enc at issue a f confusio ty or Diss de Chan in the app tified good In re Elba art, Inc., oods in an ctive purc co Inc. v. l and in-p in the ide tems could e channe 1994) (“B in the sam re Viterra gh there w e Board w confusion) 4 etic items ompass th re identica n. imilarity nels lication, i s are pre um, 211 U 258 F.2d applicatio hasers an Martz, 66 art related ntification be offere ls of trade ecause th e channel Inc., 671 F as no evi as entitle . identified e registran l in whole of Establ t is a fund sumed to SPQ 639, 956, 119 U n and regi d channels USPQ2d nature o s thereof a d and sol ”); In re e goods ar s of trade, .3d 1358, dence rega d to rely o in the cite t’s. or in par ished, Lik amental p move in a 640 (TTA SPQ 139 stration ar of trade 1260, 1268 f the part s to trade d to the s Smith and e legally and be so 101 USPQ rding cha n this lega d registra t strongly ely-to- rinciple of ll channe B 1981) (c (CCPA 19 e identica for such g (TTAB 2 ies’ goods, channels ame classe Mehaffey identical, ld to the s 2d 1905, nnels of t l presump tion, sup- reg- ls of iting 58)). l, we oods 003) and and s of , 31 they ame 1908 rade tion Applica We are usu arations cosmeti ternet. As w the app vant pu cant’s a for good goods a tive goo and cos verse cl probabl their tee phistica App applican uses th plex,” R tion No. 77 conclude th al for such are sold c counters, TheC. Mad as the ca lication — rchasers. A nd the cite s of the ty re partiall ds are like metic prep ass of con y a good n nage year tion. licant sub t’s founde e applied-f affaele De 325348 at applica goods. It i in a rang to drug st Conditio e se in deter and specif gain, we m d registran pe identifi y identical wise iden arations” sumers, c umber of s on, and mitted the r and Chie or mark o cl. ¶ 2 (Se nt’s identi s common e of settin ores, disco ns Under mining the ically to t ust presu t’s respec ed. And ag , we must tical. Give without lim omprising men, as w is not limi declaratio f Creative n applican pt. 15, 201 5 fied goods knowledge gs, from s unt retail Which a relevant he identif me that th tive goods ain, becau assume th n the good itation), most adu ell. This ted by edu n of Aliso Officer. M t’s “exclu 1), and th are sold in that cosm alons and ers, superm nd Buyer channels o ied goods — e relevan include al se applica at the pu s at issue this is a p lt (and yo group like cation, soc n Raffaele s. Raffaele sive anti-a at “given t all chann etics and fancy dep arkets, a s to Whom f trade, w to deter t purchase l of the us nt’s and t rchasers o in this ca articularly ung adult ly include ial status, Tatem (R indicates ging, anti he nature els of trad cosmetic p artment s nd over th Sales ar e look aga mine the rs of the a ual purcha he registra f their res se (“cosm large an ) women, s people income, o affaele D that appli -oxidant, of Applica e as rep- tore e in- e in to rele- ppli- sers nt’s pec- etics d di- and from r so- ecl.), cant com- nt’s Application No. 77325348 6 goods, confusion is highly unlikely” because applicant’s goods are “ ‘prestige’ cosmet- ics,” “sold at mid to high price points and, especially with a consumer’s first pur- chase of the particular product, are ordinarily purchased from knowledgeable sales staff and beauty consultants,” and because purchasers of all cosmetics are “highly particular regarding the products they use — both for aesthetic and safety reasons.” Id. at ¶ 7. Applicant complains that the examining attorney did not give sufficient weight to the Raffaele declaration. E.g. Reply Br. at 8. While the examining attorney’s characterization of the declaration as “self-serving,” Ex. Att. Br. at 21, was not help- ful,4 the examining attorney was correct to discount this evidence. As we have ex- plained, for purposes of registration, we must consider applicant’s goods to be those goods which are identified in the application. The issue before us is applicant’s right to a trademark registration, and it is the application that defines the scope of the registration applicant seeks. The fact that in reality, applicant uses its mark only on “exclusive” or “prestige” cosmetics sold at moderate to high prices by well-trained sales staff is irrelevant because none of those limitations appear in the application. 4 Of course the Raffaele declaration is self-serving, although it is no surprise that applicant submitted an affidavit which supported its case. “Deposition testimony, affidavits, respons- es to interrogatories, and other written statements by their nature are self-serving. [But] . . . the term ‘self serving’ must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story. . . .” Hill v. Tangherlini, — F.3d —, No. 12–3447, slip op. at 4–5 (7th Cir. Aug. 1, 2013) (citation omitted). Despite an appli- cant’s obvious interest in its own application, an applicant’s declaration should not be dis- counted on that ground alone. Although we doubt that it was the examining attorney’s in- tent to do so, we will not impugn applicant’s declaration merely because it was made by ap- plicant. Application No. 77325348 7 To the contrary, applicant seeks registration for use of its mark on goods identified broadly as “cosmetics and cosmetic preparations.” Accordingly, we must consider the subject application to cover all cosmetics and cosmetic preparations of whatever nature, sold in all places where cosmetics are normally sold, at all price points for such products, and to all usual purchasers of such goods. As for the notion that purchasers of cosmetics are “highly particular” about their purchasing decisions, Ms. Raffaele’s statement again appears to focus on ap- plicant’s actual goods and customers, rather than the goods identified in its applica- tion and the customers and channels of trade they entail. For purposes of this appli- cation, potential purchasers of the identified goods include uneducated people, peo- ple in a hurry, people looking for a bargain on a cheap product, people who may have only a hazy memory of the product they bought last time or the one a friend recommended, and even people whose reading skills are less than perfect. While the group likely also includes some who exercise a great deal of care in their cosmetic purchases, it stretches the bounds of credulity to accept that all — or even the ma- jority — of these ordinary people are immune from source confusion. And even if some consumers are sophisticated, “we must base our decision on the least sophisti- cated potential purchasers.” Gen. Mills Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1600 (TTAB 2011), appeal docketed, No. 11–01174 (N.D.N.Y. Sept. 30, 2011) (citing Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1027 (TTAB 2009)). And as we have often noted, even careful purchasers can be confused by sim- ilar marks. In re Wilson, 57 USPQ2d 1863, 1865–66 (TTAB 2001); In re Decombe, 9 Applica USPQ2d “[t]hat t that cla lar good ble.’ ” In 1986) (q 1403, 16 We identifie goods a which n trade an the degr In c ing, and consider nents of ence in Inc. v. F Und tion No. 77 1812, 18 he relevan ss the resp s. ‘Human re Resear uoting Ca 8 USPQ 1 conclude t d goods ar re sold to o greater d potentia ee of care TheD. Ent omparing commerc the mark the mark the overal F Acquisit 1. M er the do 325348 14–1815 t class of b onsibility memorie ch and Tra rlisle Che 10, 112 (C hat the ch e identica ordinary than ordin l purchase is neutral. Similari ireties the marks ial impres s in their e s. “[I]t is t l impressi ion, LLC, eaning ctrine of f (TTAB 198 uyers may of distingu s even of d ding Corp m. Works, CPA 1970) annels of l to those consumers ary care rs support ty or Diss at issue, sion. Palm ntireties, hese indiv ons made 600 F.3d 1 of the Ma oreign equ 8 8). As ou exercise c ishing bet iscriminat ., 793 F.2d Inc. v. H ). trade and of the cite and freq is exercise s the find imilarity we consid Bay, 73 it is not in idual aspe by the ma 343, 93 US rks — Doc ivalents, r primary are does n ween sim ing purch 1276, 23 ardman & potential d registran uently und d. The ide ing of a lik of the Ma er their ap USPQ2d appropria cts that co rks.” Odom PQ2d 203 trine of F words from reviewing ot necessa ilar tradem asers . . . 0 USPQ 49 Holden purchasers t, and tha er condit ntity of t elihood of rks in Th pearance, at 1692. W te to consi llectively ’s Tenn. P 0, 2032 (F oreign E common court pu rily impos arks for s are not in , 50 (Fed. Ltd., 434 of applica t the rele ions of sal he channe confusion, eir sound, m hile we m der the com create a di ride Saus ed. Cir. 20 quivalent , modern t it, e on imi- falli- Cir. F.2d nt’s vant e in ls of and ean- ust po- ffer- age, 10). s lan- Application No. 77325348 9 guages are translated into English to determine similarity of connotation with Eng- lish words in a likelihood of confusion analysis. In re La Peregrina Ltd., 86 USPQ2d 1645, 1647–48 (TTAB 2008). Applicant has applied to register FRUTTA DI VITA; the examining attorney maintains that applicant’s mark is similar to the mark in the cited prior registration, FRÜT A VIE. There is no dispute that applicant’s mark is in Italian, and that it means “Fruit of Life.” Application (Nov. 8, 2007); see also App. Br. at 4 (unnumbered); Raffaele Decl. ¶ 8. On the other hand, the meaning of the prior registrant’s mark (and its similari- ty to applicant’s mark) has been a subject of contention. The examining attorney first argued that “applicant’s mark and the registrant’s mark translate into English as FRUIT OF LIFE,” Ofc. Action (March 15, 2011), a position she adhered to in her Final Office Action. Final Ofc. Action (Sept. 23, 2011). The examining attorney’s on- ly evidence of this statement appears to have been the translation statement in the cited registration. However, the translation in the cited registration indicates only that “[t]he English translation of the word ‘A VIE’ in the mark is ‘of life.’ ” Applicant contends that the term FRÜT in the prior registration is not actually a word in any language, although it looks as if it might be German because of the umlaut, which is a feature typical of German. THE NEW OXFORD AMERICAN DICTIONARY, 1834 (2001) (“umlaut”). Applicant’s evidence supports its claim that FRÜT is not a word. It does not appear in the relevant excerpts from the Italian, German, or French dictionaries applicant submitted, and the examining attorney submitted no dictionary evidence at all. See LeGrand Decl. Exh. D–F (Resp. to Ofc. Action (Sept. 15, 2011)). We are Application No. 77325348 10 not aware that FRÜT has any meaning in English, and we conclude that — at least on this record — it is not a word in any language. Applicant also questions the meaning of “A VIE” as used in the cited registra- tion, submitting a letter from Barry Saxon, President of Cosmetictranslation.com (a firm that specializes in translation exclusively for the cosmetics industry). Raffaele Decl. Exh. D. Mr. Saxon briefly indicates that in French,5 “of life” would be written “de la vie.” Id. On appeal, the examining attorney admits that “ ‘a vie’ does not pos- sess the literal translated meaning ‘of life’ in French,” but argues that “the mark should not be dissected into three distinct terms for purposes of translation. Rather, the phrase ‘FRUT A VIE’ should be evaluated for its meaning.”6 Ex. Att. Br. at 12. In light of Mr. Saxon’s statement, we conclude that “A VIE,” as used in the cited registration is ungrammatical French. Whether it would nonetheless be recognized 5 Applicant’s dictionary evidence indicates that “vie” means “life” in French, but means something completely different in Italian, and does not appear in the German dictionary at all. 6 As authority for this proposition, the examining attorney cites In re Trimarchi, a non- precedential decision of the Board. Citation of non-precedential opinions is permitted, Cita- tion of Opinions to the Trademark Trial and Appeal Board, Official Gazette (Jan. 23, 2007), although not recommended. While we generally do not comment at length on non-precedential decisions, we note that In re Trimarchi does not support the examining attorney’s position. In that case, a mark comprising the words ALLEZ FILLES! had been refused registration in view of a previous registration for the mark GO GIRL. Despite evidence that the literal translation of ALLEZ FILLES! was “go girls,” the Board reversed the refusal, finding that the marks were dissim- ilar because ALLEZ FILLES! did not carry the idiomatic connotation of “go girls.” The panel in Trimarchi thus focused on the meaning of the foreign terms at issue; the case is not au- thority for looking at the mark as a whole in an attempt to divine a general impression, de- spite the meaning (or lack of it) in the foreign tongue. In re Trimarchi, App. No. 77222086, slip op. at 8–12 (TTAB May 14, 2009). Indeed, the Board remarked that “it is not clear that French speakers would even stop and translate this phrase because it is grammatically in- correct and they may simply “take it as it is.” Id. (citing Palm Bay, 73 USPQ2d at 1696). Application No. 77325348 11 by a French speaker as meaning “of life” is not clear. The examining attorney also admits in her brief that “ ‘früt’ is not a term that can be translated,” contending instead that “the doctrine of foreign equivalents is not necessarily inapplicable simply because the registered mark is not solely com- prised of foreign wording.” Ex. Att. Br. at 13 (citing TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1207.01(b)(vi)(A) (April 2013)). She suggests that because FRÜT could be pronounced like the English word “fruit,” that phonetic equivalence, plus the translation of “A VIE” as “of life” yields the meaning “fruit of life” for the cited registration, Ex. Att. Br. at 8, corresponding exactly with the translation of applicant’s mark. While it has often been said that foreign words are not registrable if their Eng- lish equivalents would not be, e.g. Mary Kay Cosmetics, Inc. v. Dorian Fragrances, Ltd., 180 USPQ 406, 407 (TTAB 1973), the doctrine of foreign equivalents is not un- limited, and it is not an absolute rule. We have characterized the doctrine as a “guideline” to be applied in appropriate cases, In re Isabella Fiore LLC, 75 USPQ2d 1564, 1569 (TTAB 2005), and precedent counsels caution in its application. For in- stance, we will only apply the doctrine when the foreign wording in the mark has a direct and exact English translation, In re Sarkli, Ltd., 721 F.2d 353, 220 USPQ 111, 112‒13 (Fed. Cir. 1983) (“second chance” is not the direct translation of “repe- chage”), and even then, only “when it is likely that the ordinary American purchaser would ‘stop and translate [the foreign wording] into its English equivalent.’ ” Palm Bay, 73 USPQ2d at 1696 (quoting In re Pan Tex Hotel Corp., 190 USPQ 109, 110 Application No. 77325348 12 (TTAB 1976)). Moreover — and of particular relevance to this case — the Board has been reticent to apply the doctrine of foreign equivalents to compare a mark in one foreign language to a mark in different one, although this is not a hard-and-fast rule either. Compare Safeway Stores Inc. v. Bel Canto Fancy Foods Ltd., 5 USPQ2d 1980, 1982 (TTAB 1987) (“[T]his Board does not think it proper to take the French expression “bel air” and the Italian expression “bel aria” and then convert both into English and compare the English translations to determine whether there is simi- larity as to connotation. . . .”), with Miguel Torres S.A. v. Casa Vinicola Gerardo Ce- sari S.R.L., 49 USPQ2d 2018, 2020‒21 (TTAB 1998) (“[I]n this case, we do not be- lieve that purchasers and prospective purchasers need be fluent in Spanish and Ital- ian to readily understand the connotations of these marks.”). And finally, we are not aware of any precedent on the application of the doctrine to a phrase like the one at hand, comprised in part of foreign wording and in part of a non-word, the sound of which is the phonetic equivalent of an English word. There is no contention that the wording in applicant’s mark is obscure or vague or would otherwise be inappropriate for consideration under the doctrine of foreign equivalents. Applicant and the examining attorney appear to agree that the direct translation of FRUTTA DI VITA is “fruit of life,” and there is no argument that speakers of Italian would not recognize it as such. But the translation of the cited registrant’s mark is less certain. Part of the mark appears to be in French, although that may not be clear at first glance. Ac- cepting for the sake of argument the examining attorney’s contention that A VIE Application No. 77325348 13 means “of life” (albeit in ungrammatical French), the registrant’s mark has the ap- pearance of a phrase, but only partly French. The first word in the phrase, FRÜT, is neither French nor English, although because of the umlaut, it might appear at first glance to be German, so even French speakers might not immediately realize that “A VIE” is in French. The examining attorney argues that FRÜT could be pronounced the same as the English word, “fruit,” and we agree. But we think it is a stretch to conclude that prospective purchasers would, upon seeing the prior mark, readily understand the meaning of its phrase to be cobbled together from the (English) phonetic equivalent of the first word, together with the translation (from French) of the ungrammatical next two words. Then, with that connotation of the prior mark in mind, and upon seeing applicant’s mark, translate applicant’s mark from Italian into English, and compare the two. We conclude that application of the doctrine of foreign equivalents to the prior registration in this situation would go too far. Given the limited application of the doctrine in our case law, it is too speculative to assume that prospective purchasers would “stop and translate” these marks and compare their meaning. We conclude instead that for purposes of comparison with applicant’s mark, purchasers would likely perceive the previously-registered mark, FRÜT A VIE as it is, and without translating it into English. Therefore, although there is no dispute that FRUTTA DI VITA means “fruit of life,” even those familiar with Italian and French and like- ly to “stop and translate” applicant’s mark into English are not likely to consider the Application No. 77325348 14 marks to be equivalent in meaning. Although we have rejected its application in this case, it is important to recog- nize that the doctrine of foreign equivalents concerns only one aspect (meaning) in the comparison of the marks. And just as important, our finding that the doctrine of equivalents should not be applied does not by itself compel a conclusion that the marks are significantly different or that confusion is not likely. Cf. Sarkli, 220 USPQ at 113 (“[S]uch similarity as there is in connotation must be weighed against the dissimilarity in appearance, sound, and all other factors, before reaching a con- clusion on likelihood of confusion as to source.” (quoting Sure-Fit Prods. v. Saltzson Drapery Co., 254 F.2d 158, 160, 117 USPQ 295, 297 (CCPA 1958))). 2. Visual Similarity Applicant argues that “[t]he marks are . . . visually distinct in that they have differing lengths, differing numbers of letters in their component words, and one features a German language umlaut.” App. Br. at 8‒9. While we agree that the marks are clearly not identical in appearance, we nonetheless find that they are visually similar. Again, applicant’s mark is FRUTTA DI VITA, while the mark in the cited reg- istration is FRÜT A VIE. Each mark consists of three words which are (or appear to be) in a foreign language. The first word of both marks7 begins with the letters F- 7 It is often said that the first word of a mark is most significant, as it is frequently the mark’s most “prominent feature.” Palm Bay, 73 USPQ2d at 1692. In this case, both the first and the last words of the marks share substantial similarities, and we find it unnecessary to determine which of the two is more prominent. By contrast, the middle term of both (continued...) Application No. 77325348 15 R-U-T, although in applicant’s mark the first word includes the additional letters T- A, and the cited mark includes an umlaut. Likewise, the last word of both marks is a short word beginning with the letters V-I, although they differ in that the word in applicant’s mark again ends in T-A, while the mark in the cited registration ends in an E. Both marks include a short middle word, although there is no other visual similarity between applicant’s DI and the registrant’s A. While we must ultimately consider the marks in their entireties, we can and should consider their individual features. But in determining similarity, the test is not whether the marks can be distinguished when subjected to a painstaking side- by-side comparison, but rather whether the marks are sufficiently similar in their overall commercial impressions that confusion as to the source of the goods or ser- vices offered under the respective marks is likely to result. The focus is on the recol- lection of the average purchaser, who normally retains a general rather than a spe- cific impression of trademarks. Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). As applicant argues, its mark is indeed longer than the cited registrant’s (four- teen characters — including spaces — compared with ten characters in the cited mark) and applicant’s mark comprises twelve letters compared with the registrant’s eight. But these differences are unremarkable, and in any event, we think it highly unlikely that consumers under the relevant market conditions would notice, let alone retain an accurate memory of the number of characters in the marks or their marks is short and insignificant in both appearance and sound. Application No. 77325348 16 comparative length, and thereby be able to distinguish them. Moreover, it is worth noting that both marks are in “standard character” form, i.e., “without claim to any particular font style, size, or color.” Trademark Rule 2.52(a). Thus the words in both marks could be used in any manner, including one that makes them look more simi- lar in size than they might appear from a comparison of the drawings in the appli- cation and registration. See Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258‒59 (Fed. Cir. 2011) (a standard character mark is not limited as to its display). Likewise, the marks could be displayed in identical fonts or color schemes. We acknowledge that the umlaut in the cited registration and the differences in the letters comprising the two marks present points by which the marks could be visually distinguished when examined side-by-side. Nonetheless, these differences are less likely to distinguish the marks in commerce. To many — especially those who do not speak either Italian or French — both marks are likely to be perceived simply as similar-looking foreign phrases of unknown meaning. Thus, while in some respects, the marks differ in appearance, their basic struc- ture (including first and last words beginning FRUT— and VI—, respectively) and their general appearance of foreignness are more likely to be recalled by consumers than the more detailed and specific differences between them. 3. Similarity in Sound Finally, we find that the marks are also similar in their sound or pronunciation. Again, we agree with the examining attorney that the word FRÜT in the regis- Applica trant’s m Similarl “fruit-uh with a s the addi The in the r bly “vye be pron pronunc to the en In s theless appeara has poin marks’ s Arg large nu VITA, o Exh. G‒ tion No. 77 ark woul y, the firs ,” or poss ound that tion of the last word egistered m ” (rhyming ounced “ve iation, the d of the fi um, althou find that t nce and s ted out, a imilaritie TheE. Goo uing that mber of “ r VIE and K; App. Br 325348 d most lik t word in ibly “fruit is identica “-uh” or “- in each m ark is lik with sky) e-tuh” or “ only diffe nal word i gh we do he marks ound. In d lthough we s. This fact Number ds the matte registratio which co . at 8. Wh ely be pron applicant’s -tuh.” Eith l, or near tuh” sound ark is like ely to be p , while the vye-tuh.” V rence bein n applican not apply at issue a oing so, w find that or also sup and Natu r shared b ns . . . for ncern good ile we hav 17 ounced th mark, FR er way, t ly so, the o in applic wise simil ronounced term VIT IE and V g — again t’s mark. the doctri re in their e have no such diffe ports a fin re of Sim y the ma marks inc s in Inter e considere e same as UTTA is he first te nly differe ant’s mark ar in pron “vee” (rhy A in appli ITA are th — the add ne of forei entireties t ignored rences wou ding of lik ilar Mark rks is wea luding th national C d this evi the Englis likely to rm of each nce betwe . unciation. ming with cant’s mar erefore hi ition of th gn equival substanti the differe ld be outw elihood of s in use o k, applica e words ‘F lass 3,” L dence, it is h word “fr be pronou mark be en them b The term bee) or p k would li ghly simila e “-tuh” so ents, we n ally simila nces appli eighed by confusion n Simila nt relies RUIT,’ ‘LI eGrand D entitled t uit.” nced gins eing VIE ossi- kely r in und one- r in cant the . r on a FE,’ ecl., o lit- Application No. 77325348 18 tle weight.8 Although “[t]he number and nature of similar marks in use on similar goods” is a consideration in the determination of likelihood of confusion, du Pont, 177 USPQ at 567 (factor # 6), registrations are not evidence of use of the registered marks,9 and they are not proof that consumers are familiar with the registered marks so as to be accustomed to the existence of the same or similar marks in the marketplace. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462 (CCPA 1973); AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1407, 177 USPQ 268 (CCPA 1973); Richardson-Vicks, Inc. v. Franklin Mint Corp., 216 USPQ 989 (TTAB 1982). Moreover, the fact that similar marks may have been registered in the past does not entitle an applicant to registration of its own mark. See Plus Prods. v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983) (“the third party registrations relied on by applicant cannot justify the registration of another confusingly similar mark”); In re Rodale Inc., 80 USPQ2d 1696, 1700 (TTAB 2006) (“Although con- sistency in examination is a goal of the Office, the decisions of previous Trademark Examining Attorneys are not binding on us, and we must decide each case based on the evidence presented in the record before us.”). 8 Along with the registrations, applicant included more than forty pages of TESS results listings for its searches. Such lists are not an appropriate means to introduce evidence of registrations. Because the examining attorney did not object to applicant’s submission, we consider the lists to be of record, In re District of Columbia, 101 USPQ2d 1588, 1592 n.5 (TTAB 2012), although they are of no help because they do not indicate the goods or ser- vices and other important information for each of the listed registrations. 9 We note that some of these marks were registered solely under Trademark Act §§ 44 or 66. Such registrations do not require the applicant to have used its mark in United States commerce prior to issuance. Application No. 77325348 19 Third-party registrations may, however, be considered in determining the de- scriptiveness or suggestiveness of a mark or an element of it. Knight Textile Corp. v. Jones Inv. Co., 75 USPQ2d 1313, 1316 (TTAB 2005); In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987). “As to strength of a mark, however, registration evidence may not be given any weight.” Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (emphasis in original) (citing AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973)). Applicant cites Knight Textile for the proposition that “[t]he Board can deter- mine that a mark is highly suggestive by looking to the presence of multiple other registrations with common elements in the same class of goods.” App. Br. at 8. In that case, the Board looked to dictionary definitions to determine the meaning of “essentials” with respect to the goods, then noted that this suggestive significance was “corroborated by the third-party registrations.” Knight Textile, 75 USPQ2d 1316. But applicant’s argument differs from the logic of Knight Textile. While appli- cant urges that the marks involved in this case are highly suggestive, it does not in- dicate what the marks are suggestive of, i.e., what suggestive or descriptive mean- ing the applicant attributes to them. Our perusal of the many registrations applicant made of record includes a num- ber comprising the term “fruit” for cosmetic products, and which include disclaimers of that term, are registered under Trademark Act § 2(f), or on the Supplemental Register. From these registrations we can infer that the term “fruit” is descriptive or highly suggestive of cosmetic products — at least to the extent it is a separable Application No. 77325348 20 element of the mark in question.10 However, neither applicant’s mark nor that of the cited registrant feature the word “fruit” (or its foreign equivalent) as a separable el- ement. The word FRUTTA in applicant’s mark is used as part of a phrase, while FRÜT in the cited registration does not mean anything at all (although it has the appearance of being part of a phrase in a foreign language). Thus, the third-party registrations do not indicate that either FRUTTA or FRÜT is descriptive or sug- gestive as used in the marks at issue. Applicant also submitted a number of registrations comprising the words “VITA” or “VIE” or “life” for goods in International Class 3, but none of them seem to use those words descriptively or suggestively. And finally, none of the third-party registrations is for FRUTTA DI VITA or FRÜT A VIE or close variations of them, so the registrations do not suggest in any way that the involved marks are, as a whole, suggestive or descriptive. Thus, although “fruit” standing alone does appear to be descriptive or suggestive with respect to cosmetics, neither applicant’s mark nor that of the cited registrant consists of or comprises the term “fruit” as a separa- ble element. As for the proffered registrations comprising the terms “life,” “VITA,” or “VIE,” we can conclude nothing more than that those terms have “appealed to others . . . to 10 It would appear that “fruit” is often disclaimed in registrations claiming use of the mark on cosmetics and the like because the identified goods contain fruit, or ingredients extract- ed from it. Indeed, applicant’s specimen shows use of FRUTTA DI VITA in connection with a cosmetic product which includes “lycium barbarum (gogi berry) fruit extract [and] punica granatum (pomegranate) extract,” as ingredients. Amdt. to Allege Use (June 29, 2012). Application No. 77325348 21 use as a mark.” Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 462‒63 (CCPA 1973). They do not demonstrate that those terms are actually descriptive or suggestive, and without evidence of use, the registrations themselves are not evidence of the weakness of the marks at issue. In re Hub Distrib., Inc., 218 USPQ 284, 286 (TTAB 1983) (“third party registration evidence proves nothing about the impact of the third-party marks on purchasers in terms of dilution of the mark in question or conditioning of the purchasers as their weakness in distinguish- ing source”). Finally, even if we could consider these registrations to determine whether the mark of the prior registrant is weak, they would not help applicant’s case. Although applicant has mustered an impressive number of registrations from the USPTO’s records — one hundred thirty-one, by our count — the number of registrations is misleading. The relevant du Pont factor requires consideration of the number and nature of similar marks used on similar goods. While each of the registrations ap- plicant submitted include the words “fruit,” “VITA,” “VIE,” or “life,” none of them share much trademark similarity with the marks at issue here. Again, while we do consider the elements of trademarks, any comparison of them must ultimately rest on consideration of the marks as a whole. The existence of marks like PASSION FRUIT TINI (for sun-tanning preparations), LORD OF THE FRUIT FLIES (for drain cleaner), HEALTHY, BEAUTIFUL SKIN FOR LIFE. (for dermatology ser- vices), VITA-CIMENT (for shampoos and balms), or LA VIE EN ROSE (for co- logne), tells us little about how consumers are likely to view the marks at issue Applica here, no they do bly close cream w grape-se the mar mark as Thu cosmeti descript (to the e this evid or that c App from its evidenc rarely i (CCPA The sion has USPQ2d tion No. 77 r do they e not engen st to the c ith shea ed extract ks in the applicant s, while w c items, ap ive as it is xtent tha ence supp onfusion i TheF. licant poin use of the e of actual s, J.C. Ha 1965), and statutory actually o 1375, 13 325348 vidence “w der a simi ited mark, butter), a ), share li third-part ’s and the e recogniz plicant’s used in t t “FRÜT” ort a conc s not likely Nature a ts out tha applied-f confusion ll Co. v. H that is esp issue befo ccurred. H 80 (Fed. C eakness” lar overall e.g., POU nd C LA ttle overal y registra registrant’ e that the third-party he Italian would be c lusion that . We cons nd Exten t it is not or mark. A is highly allmark C ecially tru re us is wh erbko Int ir. 2002) ( 22 of them be impressio R LA VIE VIE COM l similarit tions are a s marks ar term “fru registrat phrase FR onsidered the mark ider this fa t of any A aware of pp. Br. at significant ards, Inc., e in an ex ether con ’l Inc. v. K actual con cause whe n. Even th (for lipsti PLEX ( y with FR s similar e to each o it” by itse ions do no UTTA D the equiva s at issue ctor to be ctual Co any insta 10; Raffa , evidence 340 F.2d parte cont fusion is li appa Book fusion not n consider ose regist ck), SHEA skin care ÜT A VIE to the cit ther. lf is descr t indicate I VITA or lent of “fr here are g neutral. nfusion nces of con ele Decl. ¶ of the lac 960, 144 U ext. kely, not w s Inc., 308 required). ed as a wh rations ar LA VIE ( products . And non ed registra iptive of m that “frui FRÜT A uit”), nor enerally w fusion ari 6‒7. Altho k of confu SPQ 435, hether co F.3d 1156 A lack of ole, gua- skin with e of nt’s any t” is VIE does eak, sing ugh sion 438 nfu- , 64 con- Application No. 77325348 23 fusion is probative of that question only when the evidence establishes that the marks have actually been used under circumstances in which confusion — if it is likely — would have already occurred. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000). Therefore, a lack of confusion is only relevant when the applicant and the owner of the prior mark have actually used their respective marks in significant volume, for a significant period of time in the same geographical markets and channels of trade, and on goods which are similar in fact. E.g., Citigroup, 98 USPQ2d at 1259 (lack of actual confusion a factor where there was no evidence of confusion despite concurrent use in same geographic mar- kets since 1975, with nineteen branches in close vicinity, and heavy advertising of opposer’s renowned marks). While Ms. Raffaele’s declaration includes some general statements about applicant’s sale of goods under the mark, there is very little spe- cific evidence of applicant’s actual business activities in this record, and there is no evidence at all of the prior registrant’s.11 Accordingly, we can conclude nothing from the fact that applicant is unaware of any actual confusion. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1202 (TTAB 2007) (“the evidence in this case is not sufficient to show that a meaningful opportunity for actual confusion has existed”). This factor is likewise neutral. 11 It is also noted that while applicant states that it has heard no complaints indicating con- fusion, Raffaele Decl. ¶¶ 6-7, we cannot assume that the prior registrant — who is not a party to this proceeding — can say the same. In re Kangaroos U.S.A., 223 USPQ 1025, 1026‒27 (TTAB 1984) (applicant’s lack of knowledge of actual confusion is of little relevance in ex parte proceedings). Application No. 77325348 24 III. Conclusion: Balancing the Factors We have carefully considered all of the evidence and argument of record, includ- ing any which we have not specifically discussed. In balancing the du Pont factors, we note first that we have found applicant’s goods identical, at least in part, to those listed in the cited prior registration. And because the goods are legally identical, we must likewise consider the relevant channels of trade and potential purchasers to also be the same. The fact that the goods are identical is itself a significant factor in our analysis. But in addition, “where . . . the goods at issue are identical, ‘the degree of similarity necessary to support a conclusion of likely confusion declines.’ ” Viterra Inc., 101 USPQ2d at 1908 (quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992)). Applicant and the examining attorney focused much of their argument on the similarity of the marks (and correctly so). We decline to apply the doctrine of foreign equivalents as urged by the examining attorney. Nevertheless, and while recogniz- ing that the marks are clearly not identical, we find that they are substantially sim- ilar in appearance and sound, and in their overall impression, and that their simi- larities clearly outweigh their differences. This similarity is significant in light of our findings that the relevant goods include inexpensive, as well as expensive items, and that they are sold to ordinary consumers who exercise an ordinary degree of care in their purchasing decisions, because ordinary purchasers, exercising ordinary care, may be confused when encountering similar marks used on identical goods. Application No. 77325348 25 And while applicant’s third-party registrations infer that “fruit,” per se, is descrip- tive of cosmetics, that fact alone does not establish that applicant’s mark or that of the cited registrant are weak at all, let alone so weak as to make confusion unlikely. And finally, applicant’s unawareness of any actual confusion is irrelevant on this record. The relevant du Pont factors weigh in favor of affirming the refusal. We con- clude that purchasers familiar with the goods sold under the cited mark, FRÜT A VIE are likely, when encountering the goods sold under applicant’s mark, FRUTTA DI VITA, to be confused or mistaken as to their source or affiliation. Trademark Act § 2(d). To the extent we have any doubt, we must resolve that doubt in favor of the prior registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290‒1291 (Fed. Cir. 1984). Decision: The refusal to register is affirmed.