Allergan, Inc.v.ATA Medical International Inc.

Trademark Trial and Appeal Board

Dec 2, 2014

No. 91206811 (T.T.A.B. Dec. 2, 2014)

This Opinion is not a
Precedent of the TTAB

Mailed: December 2, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Allergan, Inc.
v.
ATA Medical International Inc.
_____

Opposition No. 91206811
_____

Kenneth L. Wilton and Carrie P. Price of Seyfarth Shaw LLP,
for Allergan, Inc.

Matthew H. Swyers of The Trademark Company, PLLC,
for ATA Medical International Inc.
_____

Before Quinn, Kuhlke and Masiello,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

ATA Medical International Inc. (“Applicant”) filed an application to register the
mark JEUNE DERM (in standard characters) (“DERM” disclaimed) for
Aromatherapy body care products, namely, body lotion,
shower gel, cuticle cream, shampoo, conditioner, non-
medicated lip balm, soap, body polish, body and foot scrub
and non-medicated foot cream; beauty creams for body
care; body and beauty care cosmetics; colognes, perfumes
and cosmetics; cosmetic creams for skin care; cosmetic
products in the form of aerosols for skin care; cosmetics in
Opposition No. 91206811
2
the form of milks, lotions and emulsions; exfoliants for
facial cleanser; lotions for face and body care; non-
medicated herbal body care products, namely, body oils,
salves, and lip balms; non-medicated preparations all for
the care of skin, hair and scalp; non-medicated serums for
use on skin and hair; non-medicated skin care
preparations, namely, creams, lotions, gels, toners,
cleaners and peels; non-medicated skin creams; non-
medicated stimulating lotions for the skin; private label
cosmetics; skin and body topical lotions, creams and oils
for cosmetic use; skin care preparation, namely, body
polish; skin care preparations, namely, body balm; skin
care preparations, namely, skin peels; skin care products,
namely, non-medicated skin serum; skin creams; skin
emollients; skin lotion; skin masks; wrinkle removing
skin care preparations (in International Class 3).1

The application includes the following statement: “The English translation of Jeune
Derm is Young Skin.”
Allergan, Inc. (“Opposer”) opposed registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used in connection with Applicant’s goods, so resembles Opposer’s previously used
and registered mark JUVEDERM (in standard characters) for “pharmaceutical
preparations for the treatment of glabellar lines, facial wrinkles, asymmetries and
defects and conditions of the human skin, all to be sold and marketed only to
licensed physicians, surgeons, and healthcare professionals” in International Class
5,2 as to be likely to cause confusion.3

1 Application Serial No. 77945295, filed February 25, 2010, based on an intent to use the
mark in commerce pursuant to Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), and
on Canadian Application No. 1470992, filed on the same date, pursuant to Section 44(d) of
the Trademark Act, 15 U.S.C. § 1044(d).
2 Registration No. 3706974, issued November 3, 2009.
Opposition No. 91206811
3
Applicant, in its answer, denied the salient allegations of the likelihood of
confusion claim.
The record consists of the pleadings; the file of the involved application; trial
testimony, with related exhibits, taken by each party; and a status and title copy of
Opposer’s registration, and dictionary entries, all introduced by way of Opposer’s
notices of reliance. The parties filed briefs.
Before turning to the merits of Opposer’s claim, we direct our attention to an
evidentiary matter, namely Applicant’s objection (raised both at the deposition and
in its brief) to Opposer’s Exhibit 15 introduced during the testimony deposition of
Michael Jafar, Opposer’s director of marketing. The exhibit is a printout of an
excerpt from a third-party website showing use of the same mark for both injectable
dermal fillers and over-the-counter skin care preparations (that is, the same types
of goods involved herein). The essence of Applicant’s objection is summed up as
follows: “[A]s the document was not produced prior to the trial deposition of Mr.
Jafar despite being clearly within the control of the Opposer and responsive to
Applicant’s legitimate discovery efforts Opposer should not be afforded the ability to
surprise Applicant at the trial of this matter with documents it withheld during the
discovery period of this matter.” (Brief, pp. 4-5; 23 TTABVue 8-9). Applicant

3 Opposer also alleged in the Notice of Opposition that Applicant’s mark is likely to dilute
the distinctiveness of Opposer’s mark by blurring under Section 43(a) of the Trademark
Act, 15 U.S.C. § 1125. Opposer did not mention the dilution issue in its brief and, in its
reply brief (p. 2, 24 TTABVue 7), Opposer confirms that likelihood of confusion is the only
issue in this case. Accordingly, we deem the dilution claim waived.
Opposition No. 91206811
4
requests that the exhibit and all testimony relating thereto be stricken from the
record.
Opposer, in response, states: “While Opposer concedes the website printout
should have been produced prior to trial, it respectfully suggests that allowing its
introduction will be harmless, and Applicant’s requested sanction should be denied.”
Opposer goes on to argue that during discovery it informed Applicant that it
intended to demonstrate that the goods were related; that Applicant had “plenty of
time to find and introduce whatever evidence it thought related” to the exhibit; and
that “[a]llowing the evidence will not in any manner disrupt the completed trial.”
(Reply Brief, p. 4; 24 TTABVue 9).
A party that fails to provide information may be precluded from using that
information at trial unless the failure to disclose was substantially justified or is
harmless. TBMP § 527.01(e) (2014). See Spier Wines (PTY) Ltd. v. Shepher, 105
USPQ2d 1239, 1242, 1246 (TTAB 2012). In the present case, Mr. Jafar
acknowledged that he was shown Exhibit 15 months before his deposition, at about
the same time of Opposer’s responses to Applicant’s requests for production of
documents. Consistent with this testimony, Opposer readily concedes that the
exhibit “should have been produced prior to trial.”
Opposer’s exhibit 15 and the testimony relating thereto are probative and have a
direct bearing on the second du Pont factor, namely the similarity between the
goods. As such, the failure to disclose this evidence was neither substantially
justified nor harmless.
Opposition No. 91206811
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Accordingly, Applicant’s objection is sustained. Exhibit 15 and Mr. Jafar’s
testimony relating thereto are stricken from the record, and have not been
considered in reaching our decision.
We now turn to the substantive merits of this proceeding. Michael Jafar testified
that Opposer’s product is a hyaluronic acid within the category of fillers; it is
indicated to fill wrinkles and folds. (Jafar dep., 23; 18 TTABVue 24). The hyaluronic
acid-based product is injected into the consumer by a medical professional in an
office setting. (Jafar dep., pp. 102-106; 18 TTABVue 103-109). The injection is
ideally made once every nine months to one year. (Jafar dep., p. 117; 18 TTABVue
118). Each injection ranges in price between $300 and $500, depending on the
geographic market. (Jafar dep., p. 120; 18 TTABVue 121). The product obtained
FDA approval in the United States in 2006, and Opposer began direct-to-consumer
advertising in 2007, and went “broad scale” in 2010. (Jafar dep., p. 26; 18 TTABVue
27). Opposer launched a website, in 2007. (Jafar dep., pp. 59-60; 18
TTABVue 60-61). Opposer’s product has been advertised in print media, including
the magazines Allure, Us Weekly, New Beauty, O, Vogue, Southern Living, and
Coastal Living. (Jafar dep., pp. 32, 48; 18 TTABVue 33, 49). In 2008 Opposer began
running national television ads for its JUVEDERM product. (Jafar dep., p. 41; 18
TTABVue 42).
Over the years, Opposer expanded its product line. JUVEDERM VOLUMA is a
filler indicated for deep injection to treat age-related skin volume deficit in the mid-
face. (Jafar dep., p. 29; 18 TTABVue 30). JUVEDERM XC was introduced in 2010
Opposition No. 91206811
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and is a formulation of Opposer’s product that includes a numbing agent to alleviate
pain upon injection. (Jafar dep., p. 45; 18 TTABVue 46). Other products include
JUVEDERM ULTRA, JUVEDERM ULTRA PLUS, JUVEDERM ULTRA XC, and
JUVEDERM ULTRA PLUS XC. (Jafar dep., pp. 90-91; 18 TTABVue 91-92).
Opposer’s target audience comprises women, aged 30-60 years old, with the
“sweet spot” in the 40-45 range, with a household income of at least $45,000. (Jafar
dep., p. 64; 18 TTABVue 65). Opposer estimates that this target audience comprises
around 40-45 million women; of those, Opposer estimates that 14 million are
realistic potential customers. (Jafar dep., pp. 65, 67; 18 TTABVue 66, 68). Opposer’s
current customer base for its JUVEDERM product is 700,000-800,000, with a
retention rate of repeat customers at 77 percent. (Jafar dep., p. 71; 18 TTABVue
72). JUVEDERM is the number one selling dermal filler in the United States. (Jafar
dep., p. 48; 18 TTABVue 49).
Saeed Hosseini, Applicant’s founder (currently serving Applicant in an advisory
capacity), testified that Applicant manufactures and sells skin care products with a
natural base. (Hosseini dep., p. 15; 22 TTABVue 18). The products are retail over-
the-counter cosmetic products. (Hosseini dep., p. 24; 22 TTABVue 27). The products
have heretofore been sold only in Canada, via Applicant’s website and Applicant’s
single retail store, as well as through third-party spas, boutiques and hair salons.
(Hosseini dep., pp. 26-28; 22 TTABVue 29-31). To date, Applicant has 15 customers.
(Hosseini dep., p. 17; 22 TTABVue 20). Applicant considers its products to be
“higher-end” and they are targeted to male and female adults needing a skin care
Opposition No. 91206811
7
product. (Hosseini dep., p. 31; 22 TTABVue 34). Applicant markets its products
through online advertising and at trade shows. (Hosseini dep., pp. 35-36; 22
TTABVue 38-39). Applicant’s products range in price from $20 to $120, with an
average price of $75. (Hosseini dep., p. 36; 22 TTABVue 40).
Opposer established its standing to oppose registration of the applied-for mark
by virtue of its registration of the mark JUVEDERM for the recited goods (11
TTABVue 4-8). Thus, Opposer has shown that it is not a mere intermeddler. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000);
Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
In view of Opposer’s ownership of a valid and subsisting registration of its mark
JUVEDERM, Opposer’s priority is not in issue with respect to use of Opposer’s
mark on the recited goods. King Candy, Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974).
Our determination under Section 2(d) is based on an analysis of all of the facts
in evidence that are relevant to the factors bearing on the likelihood of confusion
issue. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). Opposer must establish that there is a likelihood of confusion by a
preponderance of the evidence. In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
Opposition No. 91206811
8
We begin with the du Pont factor involving fame inasmuch as fame of a prior
mark plays a dominant role in likelihood of confusion cases featuring a famous
mark. Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303
(Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894 (Fed.
Cir. 2000); Kenner Parker Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d 350, 22
USPQ2d 1453 (Fed. Cir. 1992). Because of the extreme deference accorded to a
famous mark in terms of the wide latitude of legal protection it receives, and the
dominant role fame plays in the likelihood of confusion analysis, it is the duty of the
party asserting fame to clearly prove it. Lacoste Alligator S.A. v. Maxoly Inc., 91
USPQ2d 1594, 1597 (TTAB 2009); Leading Jewelers Guild Inc. v. LJOW Holdings
LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). We may consider evidence of sales,
advertising expenditures, and the length of time the mark has been used, among
other things, when determining whether a mark is famous. Bose Corp. v. QSC
Audio Products Inc., 63 USPQ2d at 1309.
Opposer’s JUVEDERM mark has been used since the U.S. Food and Drug
Administration approved the product sold thereunder in June 2006. Opposer’s
world-wide sales under the mark have exceeded $1 billion; the most recent annual
revenue figures of record show sales under the mark in 2011 totaled over $362
million. (Jafar dep., pp. 91-97; 18 TTABVue 93-98). Opposer has spent “millions of
dollars educating consumers of the last five years on Juvederm.” (Jafar dep., p. 34;
18 TTABVue 35). As indicated earlier, Opposer’s JUVEDERM product is the
number one selling dermal filler in the United States, and has been in the number
Opposition No. 91206811
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one position since 2010. Of ultimate consumers who visit their doctors seeking
treatment for wrinkles of facial skin, 40% ask for the JUVEDERM brand product by
name. (Jafar dep., pp. 102-03; 18 TTABVue 103-04).
Opposer’s proofs fall short of proving fame. Although Opposer’s sales revenue
under the mark JUVEDERM is impressive, the figures represent world-wide sales.
The record is silent, however, regarding the level of sales Opposer enjoys in the
United States. Further, Opposer’s testimony regarding “millions of dollars” of
advertising expenditures lacks specificity, and there is no indication of the dollar
figure attributed to advertising in this country. Based on the evidence of record, we
find that Opposer’s proofs fail to establish the fame of the mark JUVEDERM in the
United States as contemplated by case law. We can say, however, that Opposer’s
mark JUVEDERM is strong and distinctive. In this connection, we also note that
the record is devoid of any evidence of third-party uses or registrations of the same
or similar mark in the beauty care field.
We next turn to consider the second du Pont factor regarding the
similarity/dissimilarity between the goods. It is well settled that the goods of the
parties need not be identical or competitive, or even be offered through the same
channels of trade, to support a holding of likelihood of confusion. It is sufficient that
the respective goods of Opposer and Applicant are related in some manner, and/or
that the conditions and activities surrounding the marketing of the goods are such
that they would or could be encountered by the same persons under circumstances
that could, because of the similarity of the marks, give rise to the mistaken belief
Opposition No. 91206811
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that they originate from the same source. See Hilson Research, Inc. v. Society for
Human Resource Management, 27 USPQ2d 1423 (TTAB 1993); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The issue here, of
course, is not whether purchasers would confuse the goods, but rather whether
there is a likelihood of confusion as to the source of these goods. L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); and In re Rexel Inc., 223 USPQ 830
(TTAB 1984).
We make our determination regarding the similarities between the parties’
goods, channels of trade and classes of purchasers based on the goods as they are
identified in the application and registration, respectively. Octocom Systems Inc. v.
Houston Computers Services, Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1783 (Fed. Cir. 1992). Contrary to the gist of one of Applicant’s arguments (Brief,
pp. 14-15; 23 TTABVue 18-19), it is settled that likelihood of confusion must be
found if there is likely confusion with respect to any item that comes within the
identification of goods in the application and the registration. See Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Opposer’s pharmaceutical preparations are intended to improve the appearance
of wrinkles and folds on facial skin. Applicant’s goods include “wrinkle removing
skin care preparations.” Further, on its website Applicant touts that its various skin
care products reduce the appearance of wrinkles. Thus, the products are used for
the same purpose. While Opposer views its product and over-the-counter products
Opposition No. 91206811
11
like Applicant’s to be “not comparative,” it considers the products to be
“competitive.” (Jafar dep., pp. 74-75; 18 TTABVue 74-75). Indeed, Opposer’s
research indicates that consumers lump together the categories of skin
pharmaceuticals with over-the-counter skin preparations. Id. As Mr. Jafar stated:
Lines and wrinkles is probably the most commonly used
phrase in over-the-counter products. But, in essence, [the
JUVEDERM product is] indicated to instantly almost
eliminate the appearance of a wrinkle and a fold. So
consumers look at these two as one and the same. And
they don’t recognize the difference between the two. So
therefore, [Opposer] acknowledges the fact that over-the-
counter products claims impede on Juvederm’s claims.
(Jafar dep., p. 74; 18 TTABVue 75).
Hyaluronic acid, the active ingredient in Opposer’s product, is included in
Applicant’s goods. Opposer’s and Applicant’s products also both include the
ingredients of seaweed extract and purified water. (Jafar dep., p. 80; 18 TTABVue
81).
Accordingly, while Opposer’s product is a pharmaceutical that is injected by a
medical professional and Applicant’s product is sold over the counter, the
preparations are both used to improve the appearance of wrinkles on facial skin. We
find, therefore, that the goods are related and/or complementary for purposes of
likelihood of confusion. This factor weighs in Opposer’s favor.
As to trade channels, Opposer’s identification of goods specifically limits the
goods to sales through licensed physicians, surgeons, and healthcare professionals.
Applicant’s goods, on the other hand, are sold over the counter, presumably in drug
stores, through the Internet, beauty salons, and the like. Contrary to Opposer’s
argument on this point, the goods move through different trade channels. While
Opposition No. 91206811
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both parties’ types of goods may be advertised on television and over the Internet
(and indeed Opposer’s goods are so advertised), we do not find this tangential
overlap in advertising locations sufficient to establish overlapping trade channels.
This difference weighs in Applicant’s favor.
There is an overlap in consumers for the parties’ goods. The same types of
purchasers, namely ordinary consumers who are interested in reducing the
appearance of facial skin wrinkles, would buy the products. The identity in the class
of purchasers weighs in Opposer’s favor.
Applicant argues that while its goods are sold to ordinary consumers, Opposer’s
goods are sold to medical professionals. What applicant overlooks, however, is that
likelihood of confusion may be considered from the perspective of users (in this case,
ordinary consumers), not just actual purchasers (here, medical professionals). See
Octocom Systems Inc. v. Houston Computers Services Inc., 16 USPQ2d at 1787. As
noted above, the users may also be exposed to the mark in advertising. Moreover,
these same medical professionals also are members of the purchasing public who
likely buy over-the-counter products like Applicant’s, and who mistakenly may
believe that both types of products emanate from a common source.
With respect to the first du Pont factor involving the similarity between the
parties’ marks, we must compare Opposer’s mark JUVEDERM (in standard
characters) to Applicant’s mark JEUNE DERM (in standard characters) as to
appearance, sound, connotation and commercial impression to determine the
similarity or dissimilarity between them. Palm Bay Imports, Inc. v. Veuve Clicquot
Opposition No. 91206811
13
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed.
Cir. 2005), quoting In re E. I. du Pont de Nemours & Co., 177 USPQ at 567. “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.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). The focus is on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106 (TTAB 1975).
The marks are similar in appearance. The first portions of both comprise
similar-looking terms beginning with the letter “J” and including the letters “U” and
“E,” albeit in different order (JUVE and JEUNE), followed by the identical term
DERM. The space between the two terms in Applicant’s mark is of scant
consequence in comparing the marks. See Cooper Industries, Inc. v. Repcoparts
USA, Inc., 218 USPQ 81, 84 (TTAB 1983) (METAL MASTER and METALMASTER
are virtually identical).
As to sound, the parties argue back and forth over the proper pronunciation of
their respective marks. The marks begin, respectively, with a portion that could be
pronounced similarly, followed by the identical portion DERM. Although the marks
are likely to have some aural similarities, “there is no correct pronunciation of a
Opposition No. 91206811
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trademark, and consumers may pronounce a mark differently than intended by the
brand owner.” In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir.
2012) (citing Interlego AG v. Abrams/Gentile Entm’t Inc., 63 USPQ2d 1862, 1863
(TTAB 2002) (finding similarity between LEGO and MEGO, despite the applicant’s
contention that consumers would pronounce MEGO as “me go”)). In any event, any
minor differences in the sound of these marks may go undetected by consumers and,
therefore, would not be sufficient to distinguish the marks.
With respect to meaning, Opposer’s product was originally developed by a
French company, and in this connection Opposer contends that its mark “is
evocative of the French word ‘juvénile,’ which means “youthful.” (Notice of Reliance,
Exs. A-F; 17 TTABVue 2-29). Applicant states that its mark comprises the French
word “jeune” for “young” or “youthful,” and the term “derm,” which is an “accepted
term meaning ‘skin.’” (Hosseini dep., p. 13; 22 TTABVue 16). Thus, both marks
convey the same meaning, namely “young” or “youthful” skin.
Given the similarities between the marks, they engender similar overall
commercial impressions, namely, that users of the respective products will have
“young” or “youthful” skin.
In sum, although there are specific differences between the marks, the
similarities between JUVEDERM and JEUNE DERM outweigh the differences.
This du Pont factor weighs in favor of a finding of likelihood of confusion.
Applicant’s arguments relating to two additional factors merit mention. First,
Applicant argues that purchasers of the goods are sophisticated and that they are
Opposition No. 91206811
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less likely to be confused by the marks. However, even assuming that Applicant’s
and/or Opposer’s goods may involve a careful purchase after exercising due
diligence, it is settled that even sophisticated purchasers are not immune from
source confusion, especially in cases such as the instant one involving similar marks
and related and/or complementary goods. See In re Research Trading Corp., 793
F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human
memories even of discriminating purchasers ... are not infallible.”). See also In re
Decombe, 9 USPQ2d 1812 (TTAB 1988). We find that the similarity between the
marks and the relatedness of the goods sold thereunder outweigh any presumed
sophisticated purchasing decision. See HRL Associates, Inc. v. Weiss Associates, Inc.,
12 USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL Associates, Inc.,
902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks
outweigh sophisticated purchasers, careful purchasing decision, and expensive
goods).
Second, Applicant contends that there is no evidence of record to suggest that
Applicant intended to adopt a mark similar to Opposer’s mark. We agree,
recognizing that Applicant selected its mark in a brainstorming session between
Mr. Hosseini and his family, and that he conducted on his own a trademark search
using the PTO’s online database. Further, the Examining Attorney did not refuse
registration under Section 2(d) on the basis of Opposer’s registration, and Applicant
decided to wait until a decision in this proceeding before offering its products in the
Opposition No. 91206811
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United States. These facts are treated as neutral in our analysis. Although evidence
of an intent to confuse or deceive may lead to the conclusion that a defendant’s
efforts were successful, the converse is not true. Good faith adoption of a mark will
not prevent a finding of likelihood of confusion. Lebanon Seaboard Corp. v. R&R
Turf Supply Inc., 101 USPQ2d 1826, 1834 (TTAB 2012); Mag Instrument Inc. v.
Brinkmann Corp., 96 USPQ2d 1701, 1713 (TTAB 2010), aff’d mem, No. 2011-1052,
2011 WL 5400095 (Fed. Cir. Nov. 9, 2011).
The relevant du Pont factors involving likelihood of confusion between the
marks, as discussed above, weigh predominantly in favor of Opposer. We have
carefully considered all of the evidence of record, as well as all of the arguments
with respect thereto, including any arguments not specifically discussed in this
opinion. We conclude, based on a preponderance of the evidence, that consumers
familiar with Opposer’s pharmaceutical preparations for the treatment of facial
wrinkles, asymmetries and defects and conditions of the human skin, all to be sold
and marketed only to licensed physicians, surgeons, and healthcare professionals,
sold under the mark JUVEDERM are likely to mistakenly believe, upon
encountering Applicant’s mark JEUNE DERM for non-medicated skin care
preparations, including wrinkle-removing skin care preparations, that the goods
originated with or are somehow associated with or sponsored by the same entity. It
is reasonable to expect that consumers familiar with Opposer’s pharmaceutical
preparations to reduce wrinkles sold under the mark JUVEDERM and
administered by healthcare professionals will mistakenly perceive Applicant’s mark
Opposition No. 91206811
17
JEUNE DERM as identifying a less expensive, over-the-counter product to reduce
wrinkles that also emanates from Opposer.
Decision: The opposition is sustained, and registration to applicant is refused.