Carman, Amber R. dba Tangled Tantrum

Trademark Trial and Appeal Board

Aug 27, 2014

No. 85758055 (T.T.A.B. Aug. 27, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
August 27, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Carman, Amber R. dba Tangled Tantrum
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Serial No. 85758055
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Peter M. de Jonge and Eric E. Westerberg of Thorpe North & Western, LLP for
Carman, Amber R.

Nicholas Altree, Trademark Examining Attorney, Law Office 107 (J. Leslie Bishop,
Managing Attorney).
_____

Before Quinn, Mermelstein, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Carman, Amber R. (“Applicant”), identified as a limited liability company
doing business as Tangled Tantrum, filed an application1 to register on the
Principal Register the trademark shown below for the following goods:
Hair oils; Hair shampoos and conditioners; Hair spray;
Hair sprays and hair gels; Hair styling fixative in the
nature of hair wax; Hair styling preparations; Hair
styling spray; Hair wax; Hair-washing powder; Styling

1 Application Serial No. 85758055 was filed on October 18, 2012 under Trademark Act
§1(a), 15 U.S.C. § 1051(a), stating October 17, 2012 as the date of first use and first use in
commerce.
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clay for hair; Styling foam for hair; Styling paste for hair,
in International Class 3.

The colors teal, black and white are claimed as features of the mark.
The Trademark Examining Attorney refused registration on the following
four grounds: (a) likelihood of confusion with a registered mark, under § 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d); (b) failure to submit an acceptable specimen of
use of the mark, under §§ 1 and 45, 15 U.S.C. §§ 1051 and 1127; (c) failure to clarify
an inconsistency between the name of Applicant and its type of entity; and (d)
failure to provide a complete description of the mark, under 37 C.F.R. § 2.37. When
the refusals were made final, Applicant appealed. Applicant and the Examining
Attorney have filed briefs.
1. Refusal under Section 2(d).
The Examining Attorney refused registration under Section 2(d) on the
ground that Applicant’s mark, as used in connection with Applicant’s goods, so
resembles the registered mark TANTRUM as to be likely to cause confusion, or to
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cause mistake, or to deceive. The cited mark is registered in standard characters
for the following goods:
Beauty care cosmetics; haircare products and
preparations, namely, shampoo, conditioners, shampoo
and body wash, leave-in conditioner, detangle spray;
haircare products in the form of hair sprays; hair care
agents, namely, coloured hair spray; hair cleaning
preparations; gels, mousses, and non-medicated balms for
hairdressing and haircare; hair lacquers; preparations in
aerosol form for hairdressing and haircare, namely,
sprays for hair styling, glitter sprays for hair styling,
detangle spray, leave-in conditioner; hair-colouring and
hair-decolourising preparations; preparations for waving
and setting hair; natural body care products for the hair,
namely, natural shampoo, conditioner, hair lotion, hair
gel, hair detangler, swimmers shampoo, leave-in
conditioner; oils for use in haircare, namely, hair oils;
perfumes, eaux de toilette; non-medicated toiletries; bath
and shower gels; toilet soaps; deodorants for personal use;
cosmetics; cosmetic preparations; beauty creams; creams,
milks, lotions, and non-medicated balms and gels for the
face, body and hands; skin cleansing preparations and
products for non-medical use; non-medicated skin care
preparations; sun-tanning and after-sun preparations,
namely, milks, gels, oils, sprays, creams, lotions, balms,
and after-sun lotion; make-up preparations; beauty face
packs comprising cosmetics; beauty tonics for application
to the face and body; essential oils, in International Class
3.2
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 as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). Two key considerations are the similarities
between the marks and the similarities between the goods at issue. See Federated

2 Reg. No. 4173352 issued on July 17, 2012. The registration also covers services in
International Class 44, which the Examining Attorney did not cite as a factor in his refusal.
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Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Addressing first the goods of Applicant and Registrant, we find that they are,
in part, identical. The application and the registration both cover shampoos,
conditioners, and gels for hair; hair oils; and hair spray. Moreover, Applicant’s
“hair styling preparations” are defined with sufficient breadth to encompass
Registrant’s more specifically identified “preparations for waving and setting hair”
and “preparations in aerosol form for hairdressing and haircare, namely, sprays for
hair styling, glitter sprays for hair styling, detangle spray, leave-in conditioner.”
We need not address the degree of similarity of all of the identified goods of
Applicant and Registrant. In the context of an analysis under Section 2(d), it is
sufficient if likelihood of confusion is found with respect to use of the mark on any
item that comes within the description of goods in a single-class application.
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398
(TTAB 2007). Accordingly, the du Pont factor of the similarity or dissimilarity of
the goods favors a finding of likelihood of confusion.
As Applicant’s goods are legally identical to those of Registrant, we must
presume that the goods of Applicant and Registrant move in the same channels of
trade and are offered to the same classes of consumers. See In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
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entitled to rely on this legal presumption in determining likelihood of confusion);
American Lebanese Syrian Associated Charities Inc. v. Child Health Research
Institute, 101 USPQ2d 1022, 1028 (TTAB 2011); In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994). Accordingly, the du Pont factor relating to the
similarity or dissimilarity of trade channels favors a finding of likelihood of
confusion.
We next consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In comparing the marks, we are
mindful that where, as here, the goods are 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. 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).
We consider each mark in its entirety. However, 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 that our ultimate conclusion rests upon a comparison of
the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985).
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The cited mark is TANTRUM in standard characters. Applicant’s mark is a
design of concentric circles, with an outer serrated edge, that includes the wording
TANGLED TANTRUM in large stylized letters and, in much smaller lettering, the
wording LIFE IS A MIX-UP. The mark also includes silhouette representations of a
can of hairspray and a comb inside a separate, non-concentric circle; and a curved
banner across the center of the mark. The various components of the mark are teal,
black, and white in color.
We note Applicant’s warning that “it is incorrect to compare marks b[y]
eliminating portions thereof and then simply comparing the residue.”3 Nonetheless,
giving due regard to all elements of Applicant’s mark, it is clear that the mark is
dominated by the wording TANGLED TANTRUM. In the case of marks consisting
of words and a design, the words normally have 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, although
the mark includes a number of graphic elements, they are less significant as source
identifiers than the wording TANGLED TANTRUM.4

3 Applicant’s brief at 4.
4 We also agree with the Examining Attorney’s observation that the silhouette designs of
the spray can and the comb are suggestive of Applicant’s hair care products and thus have
reduced distinctiveness as source indicators. (Examining Attorney’s brief at 8.) Moreover,
the circular “seal” design is not particularly distinctive.
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We also find that the wording TANGLED TANTRUM is far more likely than
the slogan LIFE IS A MIX-UP to be used by customers in calling for the goods. The
mark, by its very format, induces customers to focus on the words TANGLED
TANTRUM, which occupies the center of the mark, is highlighted by the black
banner, and is by far the largest wording in the mark.
In appearance, the marks at issue are similar in part, inasmuch as the
registered mark TANTRUM is incorporated, in its entirety, into the dominant
element (TANGLED TANTRUM) of Applicant’s mark. Moreover, because the cited
mark is registered in standard character form, we must consider that it may be
displayed in any style of lettering, including a stylization similar to that of
Applicant. See In re Viterra, 101 USPQ2d at 1910; Citigroup Inc. v. Capital City
Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011). Other
aspects of Applicant’s mark differ from the registered mark in appearance.
The marks are also partly similar in sound, to the extent that TANTRUM
would be pronounced the same in both marks. We give due consideration to the
other wording in Applicant’s mark that would give rise to differences in sound,
including the alliterative T in the phrase TANGLED TANTRUM.
With respect to the meaning of the marks, Applicant defines TANTRUM to
mean “a violent demonstration of rage or frustration”; Applicant defines TANGLED
to mean “complicated, mixed-up, intricate, or confused.”5 Applicant argues:

5 Applicant’s brief at 6, citing Dictionary.com; we note that Applicant has not actually made
any dictionary definitions of record.
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“tangled tantrum” creates a commercial impression of
confusion, mix-up, or something that is complicated or
intricate. This meaning is further supported because
“tangled” appears before “tantrum” and is the dominant
term. Additionally, both “tangled tantrum” and “life is a
mix-up” are included in Applicant’s mark, further
contributing to the impression of something that is
complicated or confused.
Assuming, for the sake of our analysis, that Applicant’s definitions are
correct, we note that the word TANTRUM would have the same meaning in both
marks. We acknowledge that Applicant’s mark, viewed as a whole, includes the
suggestion of “confusion, mix up,” primarily because of the correspondence between
the words MIX-UP and TANGLED. However, in the context of Applicant’s goods,
which are hair care and hair styling products, the word TANGLED is suggestive of
tangled hair that needs styling or disentangling, tasks that, a customer might
believe, may be accomplished by the use of Applicant’s products. In other words, a
customer may view the word TANGLED as a reference to the purpose of Applicant’s
goods. The suggestiveness of the word TANGLED reduces its capacity to
distinguish the dominant portion of Applicant’s mark, TANGLED TANTRUM, from
the cited mark TANTRUM.
In considering the overall commercial impression of the marks in their
entireties, we bear in mind that “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). In view of
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the dominance of the wording TANGLED TANTRUM in Applicant’s mark and the
suggestive quality of the word TANGLED, a customer who is familiar with the cited
mark TANTRUM may, upon seeing Applicant’s mark, mistakenly believe that
Applicant’s product is a TANTRUM product that is especially suited to treatment of
tangled hair. Accordingly, we find that the overall commercial impressions created
by the two marks are similar, and that the du Pont factor of the similarity or
dissimilarity of the marks weighs in favor of a finding of likelihood of confusion.
Neither Applicant nor the Examining Attorney has submitted evidence or
arguments as to any other du Pont factors. We treat those factors as neutral.
Having considered all of the relevant du Pont factors and all evidence and
arguments of record, including those not specifically discussed herein, we find that
Applicant’s mark, as applied to Applicant’s goods, so closely resembles the cited
registered mark as to be likely to cause confusion, mistake or deception as to the
source of Applicant’s goods. Accordingly, we affirm the refusal under Section 2(d).
2. Refusals relating to specimen of use; Applicant’s name and entity; and the
description of the mark.

In addition to the refusal to register the mark under Section 2(d), the
Examining Attorney required that Applicant submit a substitute specimen of use;
that it provide an explanation regarding Applicant’s name and form of entity; and
that it provide a more complete description of the mark. Applicant never responded
to any of these three requirements and the Examining Attorney ultimately made
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his requirements final.6 Applicant makes no mention of any of these requirements
in its brief.
Applicant’s failure to address the three outstanding requirements in its brief
is, itself, a basis upon which the Board may affirm the Examining Attorney’s
refusal. “All requirements made by the examiner and not the subject of appeal shall
be complied with prior to the filing of an appeal.” 37 C.F.R. § 2.142(c). “If an
applicant that files an appeal to the Board fails to comply with such a requirement,
the refusal to register may be affirmed by the Board for failure to comply with that
requirement, regardless of the disposition made by the Board of the issue or issues
that are the subject of appeal.” TBMP § 1201.04 (2014). Accordingly, the three
requirements stand and we affirm the Examining Attorney’s refusal of registration
for failure to comply with them. Moreover, as we discuss below, we find that all
three requirements were well-founded.
(a) Refusal for failure to submit an acceptable specimen of use.
In connection with an application under Trademark Act § 1(a), an applicant
must file “such number of specimens or facsimiles of the mark as used as may be
required by the Director.” 15 U.S.C. § 1051(a). The Trademark Rules require that
an applicant submit “One specimen per class showing how the applicant actually
uses the mark in commerce.” 37 C.F.R. § 2.34(a)(1)(iv). A specimen must “show[ ]
the mark as used on or in connection with the goods or services.” 37 C.F.R. 2.56(a).

6 Applicant’s response to the first Office Action addressed only the § 2(d) refusal, adding
that Applicant “will address the other issues raised by the Examiner separately.” Response
to Office Action of June 6, 2013. No such response was ever filed.
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“A trademark specimen is a label, tag, or container for the goods, or a display
associated with the goods.” 37 C.F.R. § 2.56(b)(1). These Trademark Rules give
effect to the definition of “use in commerce” as set forth in Trademark Act § 45, 15
U.S.C. § 1127.
The specimen of use submitted with Applicant’s application is merely an
image of the mark; it appears to be identical to the drawing of the mark submitted
with the application. It is not a representation of a label, tag or container for the
goods, nor of a display that is used in such a way as to associate the mark with the
goods. It does not demonstrate the manner in which the mark is used on or in
connection with the goods. Applicant did not submit any substitute specimen in
response to the Examining Attorney’s requirement that it do so.
In sum, Applicant has failed to meet the requirement of Section 1(a) of the
Act that Applicant submit a specimen of use. Accordingly, we affirm the Examining
Attorney’s refusal under Sections 1 and 45 of the Trademark Act.
(b) Requirements regarding Applicant’s name and entity; and the
description of the mark.

The application identifies Applicant as “Carman, Amber R.” and indicates
that Applicant is a limited liability company organized under the laws of Nevada.
The Examining Attorney required Applicant to “clarify this inconsistency,” citing
Section 1(a)(2) of the Trademark Act, 15 U.S.C. § 1051(a)(2); and 37 C.F.R.
§§ 2.32(a)(2) and 2.32(a)(3)(i) and (ii). The Examining Attorney’s perception of an
inconsistency was well-founded. We note that the application was signed by
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“Amber Carman” as “Owner,” suggesting that “Carman, Amber R.” is the name of
an individual, rather than a limited liability company.
The examining attorney also found the description of the mark in the
application to be deficient. He required Applicant to “provide a more complete
description of the applied-for mark,” citing 37 C.F.R. § 2.37, and offered a proposed
description. We note that Applicant’s description of the mark did not assign the
various colors of the mark to particular wording and design elements and made no
mention of certain design elements, such as the black banner and the serrated outer
circle.
In connection with both these requirements, we note that Section 1(a)(4) of
the Act provides that “The applicant shall comply with such rules or regulations as
may be prescribed by the Director.” 15 U.S.C. § 1051(a)(4). We find that both
requirements were validly based on the statute and applicable rules. Moreover, as
Applicant makes no mention of either requirement in its appeal brief, it has waived
its opportunity to argue that the requirements are inappropriate. See TBMP
§ 1203.02(g). We accordingly affirm the refusal to register the mark on the basis of
Applicant’s failure to address the Examining Attorney’s requirements.
Decision: The refusal to register is affirmed on grounds of likelihood of
confusion, under Section 2(d); on grounds of failure to submit an acceptable
specimen of use, under Sections 1 and 45; and on the ground of Applicant’s failure
to comply with the Examining Attorney’s requirements relating to the proper
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identification of Applicant and the submission of a complete description of the mark,
under Section 1(a)(4) and 37 C.F.R. §§ 2.32 and 2.37.