Aloxxi International Corporation

Trademark Trial and Appeal Board

Aug 14, 2012

No. 85117551 (T.T.A.B. Aug. 14, 2012)

Mailed:
August 14, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Aloxxi International Corporation
________
Serial No. 85117551
_______
Thomas I. Rozsa for Aloxxi International Corporation

Karanendra S. Chhina, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
_______
Before Kuhlke, Wolfson and Shaw, Administrative Trademark
Judges.

Opinion by Wolfson, Administrative Trademark Judge:
On August 27, 2010, Aloxxi International Corporation
filed an application to register the mark COLOURLOCK (in
standard character format) for “hair bleaching preparations,
non-medicated hair care preparations, hair cleaning
preparations, hair color removers, hair coloring
preparations, hair lighteners, hair coloring rinse, hair
lightening bleach, hair rinses, hair color colorants, all in
the form of liquid, gel and cream” in International Class 3,
based on applicant’s bona fide intent to use the mark in
commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
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Serial No. 85117551
- 3 -
this case by virtue of the fact that the appeal brief is
associated with the application file. See In re City of
Houston, 101 USPQ2d 1534, 1536 (TTAB 2012); TBMP § 1203.01
(3rd ed. 2012) (“[P]apers that are already in the application
should not, as a matter of course, be resubmitted as
exhibits to the brief.”).
The other two printouts are copies of third-party
marks: one third-party registration and one third-party
application. They were submitted for the first time with
applicant’s reply brief. Trademark Rule 2.142(d) provides,
in pertinent part:
(d) The record in the application should be
complete prior to the filing of an appeal. The
Trademark Trial and Appeal Board will ordinarily
not consider additional evidence filed with the
Board by the appellant or by the examiner after
the appeal is filed.
….

The prohibition on additional evidence “is especially
true with respect to evidence submitted for the first time
with a reply brief, to which the examining attorney may not
respond.” City of Houston, 101 USPQ2d at 1537. See also,
In re Petroglyph Games Inc., 91 USPQ2d 1332, 1334 (TTAB
2009) (applicant’s evidence, included for the first time
with its reply brief, considered “manifestly untimely”); In
re Zanova Inc., 59 USPQ2d 1300, 1302 (TTAB 2001).
Serial No. 85117551
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Because it is untimely, we have not considered the
evidence submitted for the first time with applicant’s reply
brief.2
The only other evidence in this case was submitted by
the examining attorney, who searched, at “www.onelook.com”
(an on-line dictionary resource), for the terms “colour
lock,” “colourlock,” “color lock,” and “colorlock.”3 Each
of these searches yielded the same answer as the result:
“no dictionaries indexed in the selected category contain
the exact phrase.”
II. Applicable Law
Our determination under Trademark Act § 2(d) is based
on an analysis of the probative facts in evidence that are
relevant to the factors bearing on a likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973); see also Palm Bay Imp.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.

2 We hasten to add that the evidence would not have been
particularly probative. It is highly unlikely that one third-
party registration would serve to show that the cited mark is
weak, and the third-party application is not evidence of anything
except of the fact that it was filed on a certain date. See In
re 1st USA Realty Professionals, Inc., 84 USPQ2d 1581, 1583 (TTAB
2007); and In re Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694,
1699 (TTAB 1992).
3 Accessed February 24, 2011; attached to Final Office action.
Serial No. 85117551
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Cir. 2003); and In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997). In considering the evidence
of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976); see also In re Azteca
Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
III. Discussion
A. Similarity or Dissimilarity of the Parties’ Goods

We base our evaluation on the goods as they are
identified in the cited registration and in applicant’s
application. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). See also Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). It is
settled that it is not necessary that the respective goods
be identical or even competitive in order to find that they
are related for purposes of our likelihood of confusion
analysis. That is, the issue is not whether consumers would
confuse the goods themselves, but rather whether they would
be confused as to the source of the goods. See In re Rexel
Inc., 223 USPQ 830 (TTAB 1984). The goods need only be
Serial No. 85117551
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sufficiently related that consumers would be likely to
assume, upon encountering the goods under similar marks,
that the goods originate from, are sponsored or authorized
by, or are otherwise connected to the same source. See In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991).
Applicant seeks registration of the mark COLOURLOCK
for, inter alia, products that add to or change the color of
one’s hair, namely, “hair coloring rinse” and “hair color
colorants.” These products are identical to “hair color,”
listed in the identification of goods of the cited
registration. Along the same lines, applicant’s mark
includes products that remove, bleach, or lighten the color
from the hair, one of which is “hair color removers.” The
cited registration also covers the identical product, “hair
color removers.” In addition, the cited registration covers
“shampoo,” while applicant has applied for the legally
identical goods, “hair cleaning preparations.”
Applicant also seeks to register its mark for “non-
medicated hair care preparations” and “hair rinses,” and the
registration covers “cosmetics for treating and curing skin
and hair, namely, non-medicated stimulating lotions for the
skin and hair; hair permanent wave; [and] hair care
Serial No. 85117551
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preparations for hair setting.” These products are closely
related in function to treat conditions of the hair or to
beautify the hair.
Clearly, identical goods are related for purposes of
finding a likelihood of confusion. Moreover, “[l]ikelihood
of confusion may be found based on any item that comes
within the identification of goods in the involved
application and registration.” In re La Peregrina Ltd., 86
USPQ2d 1645, 1647 (TTAB 2008). Here, the goods are in part
identical and in part closely related. This factor favors a
finding of likelihood of confusion.
B. Similarity or Dissimilarity of the Marks in Their
Entireties

In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 73
USPQ2d at 1692. Where, as here, the applicant’s goods are
identical in part to the registrant’s goods, the degree of
similarity between the marks which is required to support a
finding of likelihood of confusion is less than it would be
if the goods were not identical. Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992); see also, In re Mighty Leaf Tea, 601
F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In
Serial No. 85117551
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re Dixie, 41 USPQ2d at 1534. In comparing the marks, the
test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather, whether
the marks are sufficiently similar in terms of their overall
commercial impression so that confusion as to the source of
those goods or services offered under the respective marks
is likely to result. Coach Services Inc. v. Triumph
Learning LLC, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The
focus is on the recollection of the average purchaser who
normally retains a general rather than specific impression
of trademarks. L'Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1438 (TTAB 2012); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
The marks at issue in this case are similar in
appearance, sound, connotation and commercial impression.
The term COLOURLOCK, which forms applicant’s entire mark, is
the dominant feature of registrant’s mark. Applicant argues
that “there is no rule that an applicant cannot register a
trademark which contains in part the whole of a prior
registered trademark,”4 citing several cases where no
likelihood of confusion was found although the marks
involved shared common elements. However, in this case,
applicant has not appropriated the entire prior registered

4 Applicant’s Brief, p. 11.
Serial No. 85117551
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trademark and added other elements; applicant has
appropriated the dominant portion of registrant’s mark as
its own without adding any other distinguishing elements.
Likelihood of confusion has frequently been found where one
mark incorporates the entirety of another mark. Coca-Cola
Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E.
Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106
(CCPA 1975) (BENGAL for gin and BENGAL LANCER for
nonalcoholic club soda, quinine water and ginger ale);
Johnson Publishing Co. v. International Development Ltd.,
221 USPQ 155, 156 (TTAB 1982) (EBONY for cosmetics and EBONY
DRUM for hairdressing and conditioner); and In re South Bend
Toy Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB
1983) (LIL’ LADY BUG for toy doll carriages and LITTLE LADY
for doll clothing).
Moreover, as the first term in the cited mark, COLOUR
LOCK is the portion of registrant’s mark likely to be
impressed upon a purchaser, as purchasers in general are
inclined to focus on the first word or portion in a
trademark. Presto Products, Inc. v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the
first part of a mark which is likely to be impressed upon
the mind of a purchaser and remembered”). See also, Palm
Bay, 73 USPQ2d at 1692. This is especially true here
Serial No. 85117551
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because the remaining wording in the mark, “by BES,” merely
modifies the term COLOUR LOCK, and the lock design serves to
emphasize the words COLOUR LOCK and reinforce the impression
of the words in the minds of the purchasing public. As a
modifier, “by BES” could suggest that the product is
designed, made or offered by someone named “Bes” and is less
dominant than the words COLOUR LOCK, despite the larger
lettering in which the word BES appears. The lock design,
moreover, is less likely to be remembered than any of the
words; when a mark comprises both words and a design, the
words are normally accorded greater weight because they
would be used by purchasers to request the goods or
services. See In re Appetito Provisions Co., 3 USPQ2d 1553
(TTAB 1987).
Applicant argues that “the phrase ‘COLOR LOCK’ is a very
common term”5 and that the terms “colour” and “lock” are
descriptive and in “broad use.”6 However, applicant has not
submitted any evidence showing that the relevant public would
understand “color lock” to describe a feature of the goods.
The only evidence in the record, the dictionary evidence from
onelook.com, supports a finding that the wording is
suggestive only: there are no dictionaries that define

5 Applicant’s Reply Brief, p. 2.
6 Id., p. 5.
Serial No. 85117551
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“color lock” or “colour lock” as a phrase. We do, however,
recognize that separately, the words “color” and “lock” have
the respective meanings of “1 a : a phenomenon of light (as
red, brown, pink or gray) or visual perception that enables
one to differentiate otherwise identical objects” (color);
and “1 a : a fastening (as for a door) operated by a key or a
combination; 3 a : a locking or fastening together” (lock).7
Thus, “colour lock” may suggest or connote hair treatment
products that “lock in” artificial color dye for a longer
lasting effect. In this case, however, the term as used in
both marks would convey the same suggestive meaning and
neither would be considered merely descriptive of the goods.
Finally, applicant’s mark and the cited registration
create similar overall commercial impressions. Potential
consumers who are familiar with registrant’s “COLOUR LOCK by
BES and Design” products may mistakenly believe that
applicant’s products are simply another line of products
made by Bes, or that they have been updated to remove the
designer’s personal name.

7 From www.merriam-webster.com. The Board may take judicial
notice of dictionary definitions that exist in printed format.
See University of Notre Dame du Lac v. J. C. Gourmet Food Imports
Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).

Serial No. 85117551
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For the above reasons, the marks are similar in sight,
sound, meaning and overall commercial impression. This du
Pont factor favors a finding of likelihood of confusion.
C. Trade Channels and Classes of Purchasers
Considering the channels of trade and classes of
purchasers, because the goods are in part identical and
there are no restrictions in the identifications as to trade
channels or purchasers, we must presume that these identical
goods will be sold in the same channels of trade, such as
hair salons and in the beauty section of department stores,
and will be offered to the same ordinary classes of
purchasers. See Hewlett-Packard, 62 USPQ2d at 1005; Octocom
Systems, 16 USPQ2d at 1788; Genesco Inc. v. Martz, 66 USPQ2d
1260, 1268 (TTAB 2003)(“Given the in-part identical and in-
part related nature of the parties’ goods and the lack of
any restrictions in the identifications thereof as to trade
channels and purchasers, these clothing items could be
offered and sold to the same classes of purchasers through
the same channels of trade.”). We find that the
similarities in the channels of trade and classes of
purchasers also favor a finding of likelihood of confusion.
IV. Conclusion
We have carefully considered the entire record,
including all arguments and the evidence submitted. We find
Serial No. 85117551
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that the marks are similar and the goods are closely
related. Use of applicant’s mark COLOURLOCK in association
with “hair bleaching preparations, non-medicated hair care
preparations, hair cleaning preparations, hair color
removers, hair coloring preparations, hair lighteners, hair
coloring rinse, hair lightening bleach, hair rinses, hair
color colorants, all in the form of liquid, gel and cream”
is likely to cause confusion with the registered mark COLOUR
LOCK by BES and Design.
Decision: The refusal to register under Trademark Act
§ 2(d) is affirmed.