Cinderella Bridez, LLC

Trademark Trial and Appeal Board

Sep 24, 2015

No. 86091547 (T.T.A.B. Sep. 24, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: September 24, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cinderella Bridez, LLC
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Serial No. 86091547
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Aasheesh V. Shravah of Tarter Krinsky & Drogin LLP,
for Cinderella Bridez, LLC.
Christina Sobral, Trademark Examining Attorney, Law Office 109,
Mike Kazazian, (Acting) Managing Attorney.
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Before Seeherman, Wellington and Ritchie,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Cinderella Bridez, LLC (“Applicant”) seeks registration on the Principal Register
of the mark CINDERELLA BRIDEZ (in standard characters) for:
Beauty consultation services; Beauty consultation
services in the selection and use of cosmetics, fragrances,
beauty aids, personal care products, and bath, body and
beauty products; Make-up application services; Providing
on-site beauty services, namely, hair styling and make-up
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application services; Services of a make-up artist in
International Class 44.1
The exclusive right to use of the word BRIDES was disclaimed by Applicant.2
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act based on a likelihood of confusion
with the registered mark CINDERELLA EYEBROWS SPA (in standard
characters) for:
Body waxing services; Eyebrow threading services; Health spa
services, namely, laser treatments for acne, rejuvenation, scars,
tattoo removal and for facials and massage; Massage therapy
services in International Class 44.3

The registration includes a disclaimer of EYEBROWS SPA.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Matter
We note that Applicant merely listed information about two third-party
registrations in its response to the first Office action, and then again discussed
them in its brief. An applicant that seeks to rely on third-party registrations, for

1 Application Serial No. 86091547 was filed on October 15, 2013, based Applicant’s claim of
use of the mark anywhere and use in commerce since at least as early as January 1, 2007,
under Section 1(a) of the Trademark Act.
2 If a mark comprises a word that is misspelled but nonetheless must be disclaimed, it is
proper for the examining attorney to require a disclaimer of the word or words in the
correct spelling. Trademark Manual of Examining Procedure (“TMEP”) § 1213.08(c) (July
2015). Applicant provided the disclaimer in its response (filed on July 30, 2014) to the
Examining Attorney’s requirement in the first Office Action that Applicant “disclaim the
descriptive wording ‘BRIDEZ’ apart from the mark as shown because it merely describes
the intended audience of the applicant’s services.” The Examining Attorney also stated that
BRIDEZ is an obvious misspelling of “brides,” and that the wording must appear in its
correct spelling—BRIDES---in the disclaimer. January 30, 2014 Office action.
3 Registration No. 3916845 issued on February 8, 2011.
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whatever purpose, should submit copies of the registrations, either paper copies of
the issued registration or printouts taken from the electronic records of the Office,
and these should be submitted prior to appeal. See Trademark Board Manual of
Procedure (“TBMP”) § 1208.02 and authorities cited therein. However, because the
Examining Attorney did not advise Applicant that the mere listing of the two
registrations was insufficient to make the registrations of record at any point when
Applicant could have corrected this error, the Examining Attorney is deemed to
have waived any objection to consideration of the list itself. Thus, we have
considered the information provided by Applicant regarding the two third-party
registrations.
II. Applicable Law
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
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.
A. The similarity or dissimilarity and nature of the services
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In determining whether the services are related, it is not necessary that the
services of Applicant and Registrant be similar or competitive in character to
support a holding of likelihood of confusion; it is sufficient for such purposes that
the services are related in some manner and/or that conditions and activities
surrounding marketing of these services are such that they would or could be
encountered by the same persons under circumstances that could, because of the
similarities of marks used with them, give rise to the mistaken belief that they
originate from or are in some way associated with the same source. Coach Servs.,
Inc. v. Triumph Learning LLC, 101 USPQ2d at 1722; Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); Schering Corporation v. Alza
Corporation, 207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corporation v.
Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978).
Here, the record supports a finding that Applicant’s “beauty consultation
services,” “make-up application services,” “services of a make-up artist” and “on-site
… make-up application services” are related to Registrant’s “eyebrow threading
services,” “body waxing services” and “massage therapy” services. In particular,
Registrant’s eyebrow threading services and Applicant’s make-up services are very
interconnected, as one would first have her brow shaped by the threading activity,
before the brow would be ready to have make-up applied to it. Many women might
regard these functions as part of the same over-all process. Thus, we find that the
eyebrow threading and make-up application services are inherently complementary.
In addition, the Examining Attorney submitted copies of eight third-party
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registrations in which the same mark was registered for the services identified in
both Applicant’s application and Registrant’s registration.4 See, for example,
Registration No. 4464097 for, inter alia, beauty consultation services, in-person
makeup consultation and application services, eyebrow threading services, body
waxing services and massage; Registration No. 4133896 for, inter alia, beauty
consultation services, body waxing services, massage, make-up application services,
and services of a make-up artist; and Registration No. 4376077 for, inter alia,
beauty consultation services, body waxing services, eyebrow threading services,
massages and services of a make-up artist. While third-party registrations are not
evidence that the registered marks are used on a commercial scale or that they are
known to the public, third-party registrations based on use in commerce serve to
suggest that the goods or services listed therein are of a type which may emanate
from a single source. L'Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1140 (TTAB 2012);
see also H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1724 n. 27 (TTAB 2008).
In addition, the Examining Attorney submitted printouts from four different third-
party spa treatment websites advertising services that include the same services
recited in both the application and registration.5 In particular, the website for Red
Door Spa (www.reddoorspas.com) states that it provides “professional makeup
services,” including “wedding day makeup,” “massage services,” waxing services,
including “threading” and “eyebrow design.” Likewise, Sugar House Day Spa &
Salon (www.sugarhousedayspa.com) lists, inter alia, the following services “Waxing

4 Attached to Office Action issued on January 30, 2014.
5 Attached to Office Action issued on August 27, 2014.
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… Massage Therapy …[and] Make-up,” and Pure Bliss Salon & Spa
(www.pureblisssalonspa.com) advertises “Massage Bliss … Spa Waxing …[and]
Purely Makeup.”
With respect to Applicant’s argument on page 6 of its brief that it is “an onsite
consultation and special occasion service provider specifically for women engaged to
be married, rather than a fixed physical location that serves all individuals seeking
broad health-spa related services,” we must consider the services as they are
described in the application and registration, regardless of what the record may
reveal as to the particular nature of the services, channels of trade or class of
consumers. Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question
of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods, the particular channels of
trade or the class of purchasers to which the sales of goods are directed”). To the
extent that Applicant attempts to distinguish its services as only being offered “on-
site” and Registrant’s services as only being rendered at a fixed address, this is not
borne out in the respective recitations of services. That is, while Applicant’s hair
styling and make-up application services are prefaced as “on-site,” its other
services, such as make-up artist and beauty consultation services, are not limited in
this manner. Moreover, Registrant’s “body waxing” and “massage therapy” services
are not prefaced as “health spa services” or otherwise necessarily limited to being
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rendered at a fixed site. In other words, some of Registrant’s services may be
rendered on-site in the same manner as Applicant’s services. Nor does the
description in the application limit Applicant’s services to being rendered only to
brides, or to brides only on their wedding day. As identified, the services can be
rendered to anyone, and therefore the potential consumers are the same as those
who would purchase Registrant’s services.
Accordingly, based on the recitations of services and the record before us, we find
Applicant’s services are, in part, closely related to the services identified in the
registration, and may travel through the same channels of trade to the same classes
of consumers.
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
We turn next to the du Pont likelihood of confusion factor focusing on 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 comparing the marks, we are mindful that “[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) (citation omitted). See also San Fernando Electric Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
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Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992). Finally, although we must compare
the marks in their entireties, it is a well-established principle that, in articulating
reasons for reaching a conclusion on the issue of likelihood of confusion, there is
nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark. See In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
With the above principles in mind, we find that Applicant’s mark is similar to
the registered mark inasmuch as the initial literal element, and only non-
disclaimed word, in each mark is the term CINDERELLA. That is, the secondary
term, BRIDEZ, in Applicant mark is the phonetic equivalent of BRIDES which is
merely descriptive of a class of consumers of Applicant’s beauty consultation and
other services, and thus has been disclaimed. Likewise, the secondary wording in
Registrant’s mark, EYEBROWS SPA, has been disclaimed because it merely
describes Registrant’s health spa and eyebrow threading services. It is also well-
settled that disclaimed, descriptive matter generally has less significance in
likelihood of confusion determinations. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000), quoting, In re National Data
Corp., 224 USPQ at 752 (“Regarding descriptive terms, this court has noted that the
descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion”); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1533-34 (Fed. Cir. 1997); and In re Code Consultants, Inc., 60 USPQ2d 1699,
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1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark's commercial impression”).
The shared term, “Cinderella,” refers, of course, to a famous fairy tale about a
girl who is treated like a scullery maid by her evil stepmother and who, aided by a
fairy godmother, is transformed into a beautiful woman and captures the heart of a
prince. In the context of Applicant’s beauty consultation services, the mark
CINDERELLA BRIDEZ will likely be understood as suggestive of services offered to
brides so they may be transformed, like Cinderella, into a beauty for their
“fairytale” wedding. Registrant’s mark, CINDERELLA EYEBROW SPA, too, will be
understood as making reference to the fairytale and the transformation that the
eyebrow threading and spa services will cause. While Applicant’s mark may place
some attention on a target consumer, i.e., brides, and the registered mark places
some emphasis on the type of treatment, i.e., eyebrows and spa, because of the
shared term CINDERELLA the marks have very similar overall connotations and
commercial impressions; this is not obviated by the additional, descriptive wording
in the marks.
Applicant argues that CINDERELLA is “very highly suggestive and
commercially weak and diluted, and thus entitled to only a narrow scope of
protection.” Brief, p. 5. Applicant did not submit any evidence to support these
assertions other than to identify two third-party registrations (Reg. No. 4413231 for
CINDERELLA HAIR for hair care products; and Reg. No. 3432137 for
CINDERELLA SOAP COMPANY for bath salts, soaps and other toiletry products).
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However, these two registered CINDERALLA-formative marks for haircare, soaps
and other toiletry products have very little, if any, probative value with respect to
its argument that marks with that term are commercially weak. There is no
evidence that these referenced marks are in actual use or that consumers are even
aware they exist; the record before us does not come close to rising to the level
whereby we can conclude that CINDERELLA-formative marks are diluted in use
and commercially weak. Cf., Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., No. 2014-1789, 2015 WL 4934553 (Fed.
Cir. Aug. 19, 2015); and Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d
1334, 115 USPQ2d 1671 (Fed. Cir. 2015).6 As far as any inherent weakness in the
shared term CINDERELLA, we agree that it has a suggestive meaning in
connection with beauty services since, as previously discussed, CINDERELLA
evokes a beauty transformation experience, akin to what occurred in the fairy tale,
as a result of the involved services. However, even highly suggestive or weak marks
are entitled to protection. King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 109 (CCPA 1974) (“likelihood of confusion is to be avoided, as
much between ‘weak’ marks as between ‘strong’ marks, or as between a ‘weak’ and
‘strong’ mark.”). In this case, because of the very highly related nature of some of
the services, in particular the make-up application services and the eyebrow

6 Applicant appears to make the argument that if these two third-party marks can coexist
on the Register, Applicant’s mark should be able to coexist with the cited registration.
However, it is well-established that this Board must assess each mark on the particular
record adduced during examination. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001).
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threading services, the scope of protection to be accorded Registrant’s mark extends
to prevent the registration of Applicant’s mark for its services.
Ultimately, we find that the marks, when considered in their entireties, are
similar in sight, sound, connotation and commercial impression. This factor
therefore weighs in favor of finding a likelihood of confusion.
C. Conclusion
These are the only du Pont factors discussed by Applicant and the Examining
Attorney. To the extent that any other factors are deemed relevant, we treat them
as neutral. In view of the similarity of the marks in their entireties in sound,
appearance, meaning and commercial impression, and the relatedness of the
respective services, and evidence that the services travel in the same channels of
trade, we find that Applicant's CINDERELLA BRIDEZ mark is likely to cause
confusion with the registered mark, CINDERELLA EYEBROW SPA.
Decision: The refusal to register Applicant’s mark CINDERELLA BRIDEZ is
affirmed.