Beeology, LLCv.David Rzepka dba Beetanicals LLC

Trademark Trial and Appeal Board

May 2, 2014

No. 92054225 (T.T.A.B. May. 2, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
April 30, 2014 May 2, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Beeology, LLC
v.
David Rzepka
_____

Cancellation No. 92054225
_____

Thomas W. Adams of Renner, Otto, Biosselle & Sklar, LLP for Beeology, LLC.

Donald Crandlemire and Caroline C. Smith of Shaheen & Gordon PA for David
Rzepka.
_____

Before Taylor, Bergsman and Gorowitz, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Beeology, LLC (“petitioner”) has filed a petition to cancel Registration No.
3911187 for the mark BEECOLOGY and design, shown below,

for the following goods in Class 3:
Cancellation No. 92054225

2

Anti-aging cream; Anti-aging creams; Bar soap; Beauty
creams; Body cream; Body creams; Face creams; Hair
conditioner; Hair conditioners; Hair rinses; Hand cream;
Lip balm; Lip balm; Liquid soap; Liquid soaps; Shampoo-
conditioners; Shampoos; Skin care preparations, namely,
body balm.1
As the ground for cancellation, petitioner has alleged that respondent’s mark
is likely to cause confusion with petitioner’s mark BeeOlogy for the goods set forth
below:
3-in-1 organic soap bars for use as soap, shampoo and
conditioner; Aromatic 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; Bar soap; Bath
soaps in liquid, solid or gel form; Beauty creams for body
care; Beauty lotions; Body creams; Body lotions; Boot
cream; Cuticle cream; Deodorant soap; Eye lotions; Face
and body beauty creams; Face and body lotions; Hand
cream; Hand creams; Hand lotions; Hand soaps; Lip balm;
Liquid soaps for hands and face; Loofah soaps; Massage
creams; Massage lotions; Moisturizing creams; Natural
soap bars; Naturally handmade soap bars; Non-medicated
foot lotions; Non-medicated herbal body care products,
namely, body oils, salves, and lip balms; Non-medicated
skin care creams and lotions; Non-medicated skin care
preparations, namely, creams, lotions, gels, toners,
cleaners and peels; Perfumed soap; Scent eliminating
shampoo and soap for use associated with hunting and
outdoor recreation; Scented body lotions and creams;
Shaving balm; Shaving soap; Shower creams; Skin and
body topical lotions, creams and oils for cosmetic use;
Soaps for body care, in class 3.
In his answer, respondent admitted that the mark in his Registration No.
3911187 was cited as a bar to the registration of petitioner’s application to register

1 Issued January 25, 2011, based on a filing date of June 18, 2010, and claiming dates of
first use anywhere and first use in commerce on October 11, 2007.
Cancellation No. 92054225

3

its mark BeeOlogy, in standard character form, for the above-noted goods.2
Respondent denied the remaining salient allegations in the petition for cancellation.
Preliminary Issue
In its main brief, petitioner did not renew objections to any of the evidence
introduced by respondent.3 However, in its reply brief, petitioner objected to
various documents introduced by respondent during his testimony period. In order
to preserve an objection that was seasonably raised at trial, a party should
maintain the objection in its brief on the case. Because petitioner did not maintain
its objections in its main brief on the case, we deem the objections to be waived.
Petitioner cannot wait until its reply brief to maintain objections; to allow
petitioner’s objections in its reply brief effectively forecloses respondent from
responding to the objections. See Productos Lacteos Tocumbo S.A. de C.V. v.
Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1928 (TTAB 2011); Kohler Co. v.
Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objections raised at
trial waived when petitioner waited until its reply brief to renew objections).
Accordingly, we have considered all of respondent’s testimony and evidence,
according it whatever probative weight it merits.

2 Application Serial No. 85223918, filed January 23, 2011, and claiming a date of first use
anywhere on May 30, 2001 and first use in interstate commerce on February 9, 2002.
3 When petitioner recounted the record in its brief, it indicated that all of respondent’s
testimony and evidence was subject to an objection. (Petitioner’s Brief, p. 5; TTABVue 36,
p. 6). Noting an objection without more is not sufficient to preserve it at final decision
because the other party does not have an opportunity to respond to the basis of the
objection.
Cancellation No. 92054225

4

The Record
The record includes the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), respondent’s registration file. In addition, the parties
introduced the testimony and evidence listed below.
A. Petitioner’s Testimony and Evidence.
1. Testimony deposition of Ellen L. Harnish, a partner in petitioner, with
attached exhibits (TTABVue 23);
2. Testimony deposition of David D. Duncan, a partner in petitioner, with
attached exhibits (TTABVue 23); and
3. Notice of reliance on respondent’s responses to petitioner’s
interrogatories and requests for admission (TTABVue 22).
B. Respondent’s Testimony and Evidence.
1. Testimony deposition of David J. Rzepka with attached exhibits
(TTABVue 35);
2. Notice of reliance on dictionary definitions of “ecology” and “biology”
(TTABVue 30 and 31);
3. Notice of reliance on third-party registrations that have the word “Bee”
in some form in connection with goods in Class 3 (TTABVue 32 and 34); and
4. Notice of reliance on third-party websites that have the word “Bee” as
part of the name of the third-party in connection with the sale of cosmetics
(TTABVue 33).

Cancellation No. 92054225

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Standing
Petitioner filed an application to register its mark BeeOlogy (Serial No.
85223918). The USPTO refused to register petitioner’s mark on the ground that
petitioner’s mark so resembles respondent’s registered mark BEECOLOGY and
design (Registration No. 3911187) as to be likely to cause confusion.4 As noted
above, in his answer, respondent admitted that his registered mark was cited as a
bar to the registration of petitioner’s mark. To have standing, it is sufficient if
petitioner proves that it filed an application and that a rejection was made because
of respondent’s registration. See Lipton Industries, Inc. v. Ralston Purina
Company, 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). In view of the
foregoing, petitioner has standing to prosecute this petition for cancellation.5
Priority
Respondent’s date of first use is April 2007.6
Ms. Harnish testified on behalf of petitioner that petitioner was offering the
sale of hand cream, soap and lip balm under the mark BeeOlogy through
petitioner’s website as of February 2002.7 Ms. Harnish placed the “shopping cart”
function on the website at the end of 2002. Prior to that time, customers would

4 Harnish Dep., p. 61 (TTABVue 23, p. 63).
5 At the oral hearing, respondent’s counsel stated that respondent did not contest
petitioner’s standing.
6 Rzepka Dep., p. 154 (TTABVue 35, p. 157); Respondent’s response to petitioner’s
Interrogatory No. 1 (TTABVue 22, pp. 26-27).
7 Harnish Dep., pp. 11-12 (TTABVue 23, pp. 13-14). See also Harnish Dep., pp. 15-16
(TTABVue 23, pp. 17-18) (advertising BeeOlogy products on the Internet since 2002);
Harnish Dep., pp. 36-38 (TTABVue 23, pp. 38-40) (petitioners sold BeeOlogy gift baskets
comprising hand cream, soap, lip balm, honey and candles since 2002).
Cancellation No. 92054225

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email petitioner with orders.8 During her deposition, Ms. Harnish specifically
testified that petitioner began selling BeeOlogy branded products at the following
times:
1. Bar soap in 2001;
2. Body creams in 2002;
3. Face creams 2010;
4. Hand cream 2001;
5. Lip balm in 2001; and
6. Shampoo-conditioners in 2010.9
In view of the foregoing, we find that petitioner has established priority of
use for its BeeOlogy mark on bar soap, body creams, hand cream and lip balm.10
In analyzing the issue of likelihood of confusion, we will focus our analysis on the
products for which petitioner has proven priority.
Likelihood of Confusion
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 Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion

8 Harnish Dep., pp. 13-14 (TTABVue 23, pp. 15-16).
9 Harnish Dep., pp. 57-58 (TTABVue 59-60). Her testimony regarding petitioner’s first use
of BeeOlogy on beauty creams and body balms was equivocal and, therefore, we have not
considered it.
10 At the oral hearing, respondent’s counsel stated that priority was not at issue.
Cancellation No. 92054225

7

analysis, two key considerations are the similarities between the marks and the
similarities between the services. 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”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
A. The similarity or dissimilarity and nature of the goods.

As indicated above, for purposes of the likelihood of confusion analysis, we
are going to focus on products for which petitioner has established priority: hand
cream, body cream, soap and lip balm. Respondent has registered its mark for,
inter alia, lip balm, hand cream, body cream and bar and liquid soap. In view of the
foregoing, we find that the goods are in part identical.
B. Likely-to-continue channels of trade and classes of consumers.
Because there are no limitations as to channels of trade or classes of
purchasers in the description of goods in respondent’s registration, it is presumed
that registrant’s goods move in all channels of trade normal for those goods, and
that they are available to all classes of purchasers for those goods, including the
channels of trade in which petitioner’s products move and to the classes of
consumers to whom petitioner sells. See Paula Payne Products Co. v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-
Cancellation No. 92054225

8

Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992).
C. The number and nature of similar marks in use on similar goods.

Under this du Pont factor, we consider evidence pertaining to the number
and nature of similar marks in use on similar goods. “The purpose of a defendant
introducing third party uses is to show that customers have become so conditioned
by a plethora of such similar marks that customers have been educated to
distinguish between different such marks on the bases of minute distinctions.” Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005).
Respondent has introduced 22 registered marks that include the word “Bee”
for products similar to those at issue in this proceeding. The following registrations
are illustrative:
1. Registration No. 4280712 for the mark BEE BALD, in standard
character form;
2. Registration No. 3276717 for the mark BEE-LIEVE, in standard
character form; and
3. Registration No. 4121496 for the mark BEE SMOOTH & BEE
HEALTHY, in standard character form.11

11 TTABVue 32.
Cancellation No. 92054225

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Respondent has introduced excerpts from numerous third-party websites that
use the word “Bee” to describe similar products. The following websites are
illustrative:
1. BEEYOND THE HIVE (beeyondthehive.com);
2. BeePharm: Beauty & The Bee (beepharm.com); and
3. BEELUXE (beeluxe.com).12
Respondent contends that “[t]he coexistence of all these marks on the
Register and in the marketplace supports Registrant’s assertion that the marks in
question in this case also should be permitted to coexist.”13
Respondent’s evidence establishes that companies that manufacture and sell
cosmetic products made from beeswax or bee honey use some variation of the word
“Bee” to identify their products. Thus, respondent’s use of the word “Bee” as a part
of his mark and petitioner’s use of the word “Bee” as part of its mark would not be a
sufficient basis upon which to find that the marks are similar.
At the oral hearing, respondent’s counsel asserted that the only third party
mark starting with the letters “BE” and including the suffix “OLOGY” is a
registration for the mark BEOLOGY. With the exception of the mark BEOLOGY,
none of the marks in the registrations or websites introduced by respondent are as
close to petitioner’s BeeOlogy mark as respondent’s BEECOLOGY and design
mark.

12 TTABVue 33.
13 Respondent’s Brief, p. 10 (TTABVue 38, p. 12).
Cancellation No. 92054225

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Moreover, the registration of the mark BEOLOGY, in standard character
form, for, inter alia, soaps and skin creams (Registration No. 4066001) can be
distinguished from the case at bar. This registration is not based on use in
commerce. The registration issued under the provisions of Section 44(e) of the
Trademark Act, 15 U.S.C. § 1126(e), based on European Registration No.
009336851.14 Thus, there is no evidence this mark has ever been used in the United
States and that the mark has had an opportunity to make a commercial impact.
Even if this mark had been used in the United States, without evidence of the
extent of its use and its commercial impact, the existence of this mark has little
probative value because the issue before us is the likelihood of confusion between
petitioner’s mark and respondent’s mark, not the third-party mark. See Stock Pot
Restaurant, Inc. v. Stockpot, Inc., 737 F.2d 1576, 222 USPQ 665, 669 (Fed. Cir.
1984), quoting Krug Vins Fins de Champagne v. Rutman Wine Co., 197 USPQ 572,
574-75 (TTAB 1977) (“The conflict here is between petitioner [appellee] and
respondent [appellant] and not between petitioner and the world.”); Maytag Co. v.
Luskin’s, Inc., 228 USPQ 747, 750 (TTAB 1986) (“another’s prior use of a confusing
similar mark for the same goods or services may not be relied upon as a defense in
opposition and cancellation proceedings.”). Petitioner is entitled to cancel
respondent’s registration if it can show that it has superior rights.
In view of the foregoing, we find that the number and nature of similar
marks in use on similar goods is a neutral factor.

14 TTABVue 34, p. 47.
Cancellation No. 92054225

11

D. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We now evaluate 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, any one of
these means of comparison may be critical in finding the marks to be similar. In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks, we are mindful that
where, as here, the goods are in part identical, the degree of similarity necessary to
find likelihood of confusion need not be as great as where there is a recognizable
disparity between the goods. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992);
Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-
Plough HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB
2007).
Further, 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 the goods offered under the respective marks is likely
to result. Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012) (citation omitted); San Fernando Electric Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Cancellation No. 92054225

12

Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general rather than specific
impression of the marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207
USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). Since the products at issue are soaps, hand creams, body creams,
and lip balm, the average customer is an ordinary consumer.
Respondent’s mark is BEECOLOGY and design shown below.

Petitioner’s mark is BeeOlogy, in standard character form. Marks presented in
standard characters are not limited to any particular depiction. The rights
associated with a mark in standard characters reside in the wording and not in any
particular display. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11
(Fed. Cir. 2012); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed.
Cir. 1983); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re
Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). This means that
petitioner may display its mark in yellow lettering with a black outline around each
letter. This would not be an unusual way to display a “Bee” formative mark
because bumblebees are black and yellow.
Because the similarity or dissimilarity of the marks is determined based on
the marks in their entireties, the analysis cannot be predicated on dissecting the
Cancellation No. 92054225

13

marks into their various components; that is, the decision must be based on the
entire marks, not just part of the marks. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, __ F.3d ___, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also
Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of
confusion”). On the other hand, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. In re National Data Corp., 224 USPQ at 751. We focus on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. See L’Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1438 (TTAB 2012).
In the case of marks consisting of words and a design, the words are normally
given greater weight because they would be used by consumers to request the
products. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re
Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). See also Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed.
Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ
390 (Fed. Cir. 1983). Accordingly, with respect to respondent’s mark, we find that
the name BEECOLOGY is the dominant part of the mark. Moreover, the design
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Cancellation No. 92054225

15

The meaning and commercial impression engendered by the marks are
similar. Both marks are derived by combining the word “Bee” with the suffix
“ology.” Respondent argues that in the case of petitioner, the suffix “ology” is
derived from the word “Biology” to create BeeOlogy, and in the case of respondent
from the word “Ecology” to create BEECOLOGY.
Respondent argues that petitioner’s mark can be construed as “bee biology”
and that its mark can be read as “bee ecology.” The word “Biology” is defined as
“the plant and animal life of a region or environment” or “the life process especially
of an organism or group: broadly: ECOLOGY.”15 The word “Ecology” is defined as
“a branch of science concerned with the interrelationship of organisms and their
environments” or “the totality or pattern of relationships between organisms and
their environment.”16 Thus, biology and ecology are related.
Respondent argues that “consumers will understand that ‘biology’ and
‘ecology’ are two different words with two different meanings and based on these
differences be able to distinguish the marks and understand that they come from
separate sources.”17 The problem with respondent’s contention is that he is
dissecting both marks into their component parts: “Bee,” on the one hand, and
“Biology” or “Ecology” on the other. However, the marks must be considered in
their entireties: BeeOlogy and BEECOLOGY (with the design). Since the average
consumer will not have the opportunity to make a side-by-side comparison of the

15 Merriam-Webster (m-w.com) (TTABVue 30, p. 7).
16 Id. at p. 4.
17 Respondent’s Brief, p. 7 (TTABVue 38, p. 9).
Cancellation No. 92054225

16

marks and consumers retain a generally hazy recollection of marks, respondent is
asking us to focus on the differences rather than the overall commercial impression
of the marks.
We find that the marks are similar in appearance, sound, connotation and
commercial impression.
E. Instances of actual confusion.
Petitioner introduced into evidence two letters from customers purporting to
be confused by the BEECOLOGY trademark.18 These letters have little, if any,
probative value. First, they are hearsay because neither declarant testified.
Second, they both appear to have been written in support of this litigation rather
than in the regular course of business. The letter from the owner of Apple Hill
Orchards is dated February 19, 2012, six months after petitioner filed the petition
for cancellation and one or two years (the declarant is not sure) after the declarant’s
encounter with respondent. The second letter is undated but references the 2011
Great Lakes Brewfest. It is not clear whether the letter was written
contemporaneously with the purported confusion or at some later date.
However, as has often been said, proof of actual confusion is not necessary
because the test is likelihood of confusion. Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 1165, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002); Weiss Associates, Inc.
v. HRL associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1843 (Fed. Cir. 1990).
We find that this du Pont factor is neutral.

18 Duncan Dep., Exhibits 24 and 25 (TTABVue 23, pp. 233 – 34).
Cancellation No. 92054225

17

F. Balancing the factors.
Because the marks are similar, the goods are in part identical and there is a
presumption that the goods travel in the same channels of trade and are sold to the
same classes of consumers, we find that respondent’s mark BEECOLOGY and
design for “Anti-aging cream; Anti-aging creams; Bar soap; Beauty creams; Body
cream; Body creams; Face creams; Hair conditioner; Hair conditioners; Hair rinses;
Hand cream; Lip balm; Lip balm; Liquid soap; Liquid soaps; Shampoo-conditioners;
Shampoos; Skin care preparations, namely, body balm” is likely to cause confusion
with petitioner’s mark BeeOlogy for hand cream, body cream, soap and lip balm.
Decision: The petition for cancellation is granted.