Ariix, LLC

Trademark Trial and Appeal Board

Sep 9, 2016

No. 86135227 (T.T.A.B. Sep. 9, 2016)

This Opinion is
not a
Precedent of the
TTAB

Mailed: September 9, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Ariix, LLC

_____

Serial No. 86135227
_____

Tyler B. Jones, Esq.
for Ariix, LLC.
Anne C. Gustason, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
_____

Before Wellington, Wolfson, and Kuczma,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Ariix, LLC (“Applicant”) seek to register the standard character
mark REVIIVE on the Principal Register for “aromatic shampoo and
Serial No. 86135227
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conditioner sold through Applicant's exclusive network of direct sales
distributors” in International Class 3.1
The Trademark Examining Attorney refused registration of the
mark on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). The Examining Attorney’s position
is that Applicant’s mark so resembles the registered mark RÉ VIVE for
goods that include “non-medicated skin products, namely, creams,
lotions, gels, toners, cleaners and peels” in International Class 3, that it
is likely to cause confusion or mistake or to deceive prospective
purchasers.2
After the Trademark Examining Attorney made the refusal final,
Applicant appealed. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all
of the probative facts in evidence that are relevant to the factors bearing
on the issue of likelihood of confusion. 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., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed.

1 Application Serial No. 86135227 was filed on December 4, 2013, under Section
1(b) of the Trademark Act, based on an allegation of a bona fide intent to use
the mark in commerce.
2 Registration No. 2539403, issued on February 19, 2002; renewed. The mark
was registered in “typeset” form. Effective November 2, 2003, Trademark Rule
2.52, 37 C.F.R. § 2.52, was amended to replace the term “typed” drawing with
“standard character” drawing. A mark depicted as a typed drawing is the legal
equivalent of a standard character mark. See In re Brack, 114 USPQ2d 1338,
1339 n.2 (TTAB 2015).
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Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the
similarities between the goods. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 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.”).
A. The similarity of the marks.
We first consider the du Pont likelihood of confusion factor involving
the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression. In re E. I.
du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, “two
marks may be found to be confusingly similar if there are sufficient
similarities in terms of sound or visual appearance or connotation.”
Kabushiki Kaisha Hattori Seiko v. Satellite Int'l, Ltd., 29 USPQ2d 1317,
1318 (TTAB 1991), aff'd mem., 979 F.2d 216 (Fed. Cir. 1992) (citation
omitted). See also Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d
1511, 1519 (TTAB 2009) (citing Krim-Ko Corp. v. Coca-Cola Co., 390
F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the
similarity in either form, spelling or sound alone is likely to cause
confusion.”)).
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Moreover, “[t]he 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). See also San Fernando Electric
Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ
1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d
1735, 1741 (TTAB 1991), aff'd mem., 972 F.2d 1353 (Fed. Cir. 1992).
We find the involved marks to be extremely similar because they are
both likely to be perceived by consumers as intentional misspellings of
the word “revive,” with little differences to distinguish them. Applicant’s
mark, REVIIVE, merely contains an additional letter “I” whereas
Registrant’s mark, RÉ VIVE, contains an accent mark on the first “E”
followed by a space. Because the marks so closely resemble the word
“revive,” they are not only visually similar but will also likely be
pronounced in a similar manner. In addition, the meaning of the word
“revive” has some suggestive value in the context of the involved goods
and helps impart a similar connotation and commercial impression for
the two marks.3 That is, consumers will understand both marks as

3 We take judicial notice that the word “revive” is defined as follows: “to make
(someone or something) strong, healthy, or active again.” Merriam-Webster’s
Learner’s Dictionary (from online version www.merriam-webster.com). The
Board may take judicial notice of dictionary definitions, Univ. of Notre Dame
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suggestive of a rejuvenating or reinvigorating quality to the skin care
and hair products.
Applicant acknowledges that its mark “appears to be a misspelling
of the English word ‘revive,’” but asserts that the registered mark is
“broken into two distinct word parts and has [an] acute accent (l’accent
aigu) over the ‘e,’ giving a reasonable consumer the commercial
impression that RÉ VIVE is a French word, perhaps a misspelling of the
French word ‘revivre.’”4 We are not persuaded that the accent and space
play a significant role for purposes of distinguishing the two marks.
Because there is no correct pronunciation of a mark which is not a
common English word, it is impossible to predict how the public will
pronounce the registered mark. Edwards Lifesciences Corp. v. VigiLanz
Corp., 94 USPQ2d 1399, 1409 (TTAB 2010); In re Teradata Corp., 223
USPQ 361, 362 (TTAB 1984). Thus, there is no certainty that the two
marks will be pronounced any differently by consumers, even those who
speak French. Even if there are consumers who perceive the registered
mark as a misspelling of the French word “revivre,” as Applicant
suggests, there is no further explanation or evidence showing that the
meaning of the French term is significantly different from the English

du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that
exist in printed format or regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
4 Brief, p. 3, 4 TTABVUE 4.
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word “revive.”5 Ultimately, we find it remains more likely that the two
marks will be verbalized in a very similar, if not the same, manner due
to the near identity in spelling; both marks will also be understood as
intentional misspellings of the English word “revive,” and project
similar connotations.
In assessing the degree of similarity of the marks, we further note
that there is no argument, let alone evidence, showing that the term
“revive” is diluted in the field of skin or hair care products. Thus, we
cannot make a finding that there may be more trademarks with the term
REVIVE as part thereof being used in connection with the relevant
goods and that, as a consequence, consumers might be accustomed to
distinguishing the marks based on otherwise different elements in the
marks.
Finally, Applicant argues that the use of the “ii” element in its mark
“creates a distinct commercial impression” because Applicant employs
“a specific branding strategy that points back to the source of the goods
… by deliberately nam[ing] its products by incorporating the ‘-ii’ spelling
into its product names.”6 Applicant makes reference to two registered
marks it owns that also contain the “ii” element. In essence, Applicant

5 According to the Collins French-English Dictionary (online version at
www.collinsdictionary.com), the French word “revivre” may be defined as “to
be revived.”
6 Brief, p. 4, 4 TTABVUE 5.
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is attempting to raise a family of marks argument and the Board has
long held that this argument is “not available to an applicant seeking to
overcome a likelihood-of-confusion refusal.” In re Cynosure, Inc., 90
USPQ2d 1644, 1645-46 (TTAB 2009). See also In re Hitachi High-
Technologies Corp., 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). In an ex
parte proceeding, the focus of a likelihood of confusion analysis must be
on the mark Applicant seeks to register vis-à-vis the cited mark, and not
other marks Applicant may have used or registered.
In sum, we find that the marks are extremely similar in appearance,
sound, connotation and commercial impression.
B. The similarity or dissimilarity and nature of the goods

In support of the refusal, the Examining Attorney submitted
printouts from five different websites.7 These include:
• “Xocai Healthy Chocolate Co.” website (www.mxicorp.com) that
advertises a Xophoria-brand anti-aging skin cream alongside a
Xophoria-branded shampoo and conditioner product. The
following is an excerpt from the website:

7 Submitted with Office action issued on August 18, 2015. The Examining
Attorney submitted additional website printouts with her previous Office
action (issued on July 7, 2014); however, these materials were being relied
upon to show a relationship between goods that were previously identified in
the application, i.e., body lotion and body care products, that were later deleted
by amendment. Regardless, all materials are of record and we have carefully
considered their relevance to the issue now on appeal.
Serial No. 86135227
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• “Garden Isle Bath & Body LLC” website (www.gardenislebathand
body.com) offering products in categories such as “shampoo/
conditioner” and “body frosting/ dry skin cream … butter creams
& lotions … aloe moisturizers … children’s skin care”

• “Aurora Naturally” website (www.warmskin.com) that describes
itself as a company that manufactures “high quality skin and hair
care products, formulated with natural ingredients.”

• “Healing Moringa Tree” website (www.healingmoringatree.com)
provides “A-Z Moringa Beauty Products Shampoo, Conditioner,
Soap, Oils, Lotions and more … Moringa hair and skin care
products that restores [sic] and nourishes [sic] your hair.” The
following is an excerpt from the website:

• “Walgreens” website (www.walgreens.com) advertising skin and
moisturizing cream products alongside a medicated psoriasis
“shampoo plus conditioner” product:

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The evidence is sufficient for purposes of demonstrating a close
relationship between Applicant’s goods, namely, shampoo and
conditioner and those of Registrant, namely, skin products, such as
creams, lotions and gels. Indeed, the record shows that there are “bath
and body” companies like Garden Isle and Healing Moringa Tree that
specialize in skin and hair care products. The evidence also
demonstrates there is the possibility that the same entity may use a
single brand for both skin creams as well as hair shampoo and
conditioner, e.g., Xophoria shampoo/conditioner and anti-aging skin
cream.
Accordingly, the du Pont factor involving the similarity of the goods
favors a finding of a likelihood of confusion.
C. The established and likely-to-continue channels of trade and
sophistication of consumers.

Applicant’s identification of goods is expressly limited to goods “sold
through Applicant’s exclusive network of direct-sales distributors” and
it argues that this restriction makes it “impossible for consumers to
encounter Applicant’s goods in the same commercial setting as those
covered by the registered mark.”8 Applicant also argues that its
“exclusive channel of trade forces consumers to make careful,
sophisticated, and deliberate choices when purchasing REVIIVE.”9

8 Brief, p. 6, 4 TTABVUE 7.
9 Id.
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As is evident from the Board’s decision in In re Shoe Works, Inc., 6
USPQ2d 1890 (TTAB 1988), cited by Applicant, the ultimate finding of
no likelihood of confusion in that case was based on various relevant
factors, and not just the trade channel limitation. The Board
particularly placed some emphasis on the fact that Applicant was able
to submit a detailed consent agreement between itself and the owner of
the cited registration. The Board also acknowledged the differences in
the involved goods, i.e., shoes versus pants.
In this case, the trade channel restriction for Applicant’s identified
goods is a factor that favors a finding of no likelihood of confusion.
However, inasmuch as Registrant’s identification of goods is not
restricted, its goods may be sold in all other normal trade channels, and
prospective consumers who are familiar with Applicant’s goods but
unfamiliar with Applicant’s marketing approach may, upon
encountering Registrant’s goods, mistakenly believe that Applicant has
expanded its distribution network. Moreover, this factor is not outcome
determinative; as explained infra, we balance all relevant factors
involving a likelihood of confusion based on the record before us. We also
disagree with Applicant’s assertion that the trade channel restriction
results in consumers being more careful or sophisticated in their
purchasing decisions. The relevant consumer for both Applicant’s and
Registrant’s goods is anyone interested in purchasing hair shampoo and
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conditioner, skin cream, skin lotion, skin gels, etc., and this includes the
general public. The goods themselves are of a type that may be relatively
inexpensive.10 Consequently, although consumers are limited to
purchasing Applicant’s goods through Applicant’s “exclusive network,”
this does not mean that they are sophisticated purchasers or will be
exercising a higher degree of care in their purchasing selections.
Balancing the factors.
Because the marks are very similar and the goods are related, we
find that Applicant's mark, REVIIVE, when used on hair shampoo and
conditioner, is likely to cause confusion with the registered mark,
RÉ VIVE, for skin products, namely, creams, lotions, gels, toners,
cleaners and peels, despite Applicant’s goods being sold via Applicant’s
exclusive network of direct sales distributors. As mentioned, the goods
are relatively inexpensive and consumers are not necessarily aware of
this channel of trade restriction. Consumers already familiar with
Registrant’s RÉ VIVE skin creams and lotions, upon encountering
Applicant’s REVIIVE hair shampoo and conditioner products, albeit via
one of Applicant’s distributors, may mistakenly believe these goods
emanate from a common source.
Decision: The refusal to register Applicant’s mark is affirmed.

10 As shown above in the evidence excerpt, the Walgreen’s website advertises
“shampoo and conditioner” and skin cream for under $ 8.00.