Coach Services, Inc.

Trademark Trial and Appeal Board

Jan 9, 2012

No. 77606502 (T.T.A.B. Jan. 9, 2012)

With ref

Hearing: Mailed:
July 12, 2011 1/9/12

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Coach Services, Inc.
________

Serial No. 77606502
_______

Norman H. Zivin and Tonia A. Sayour of Cooper & Dunham for
Coach Services, Inc.

Naakwama Ankrah, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
_______

Before Quinn, Grendel and Taylor,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Coach Services, Inc. filed, on November 4, 2008, an
intent-to-use application to register the mark POPPY (in
standard character form) for “after shave lotions; body
sprays; cologne; cosmetics; hand lotions; perfume; skin
lotion; skin moisturizer; skin soap; toilet soap” (in
International Class 3); and “bracelets; earrings; jewelry;
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Ser No. 77606502
2
necklaces; rings being jewelry; watches” (in International
Class 14).1
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s mark, when applied
to applicant’s goods, so resembles the previously
registered marks shown below as to be likely to cause
confusion.

for “hair and scalp conditioner” (in International Class
3);2 and

for “brooches, rings, jewelry, bracelets; collectible and
commemorative coins; badges of precious metal; articles of

1 The application, as originally filed, also included goods in
International Class 18. Pursuant to applicant’s request to
divide, those goods were placed into child application serial no.
77978390, from which Reg. No. 3812170 issued on June 29, 2010.
2 Registration No. 2988454, issued August 30, 2005 under the
provisions of Section 2(f); Section 8 affidavit filed and
accepted.
Ser No. 77606502
3
precious metal, namely, jewelry, collectible and
commemorative coins, badges” (in International Class 14).3
The registrations are owned by different entities.
When the refusals were made final, applicant appealed.
Applicant and the examining attorney submitted briefs, and
both appeared at an oral hearing.
Likelihood of Confusion
There are legal principles that apply to both
refusals. Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also: In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
With respect to the marks, we must compare the marks
in their entireties as to appearance, sound, connotation
and commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v.

3 Registration No. 3139328, issued September 5, 2006.
Ser No. 77606502
4
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test, under the
first du Pont factor, 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 that confusion
as to the source of the goods offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009).
As to the goods, it is well settled that the question
of likelihood of confusion must be determined based on an
analysis of the goods recited in applicant’s application
vis-à-vis the goods identified in the cited registration.
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.
4 (Fed. Cir. 1993); and Canadian Imperial Bank v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992).
Where the goods in the application at issue and/or in the
cited registration are broadly identified as to their
nature and type, such that there is an absence of any
restrictions relating to the channels of trade and no
limitation relating to the classes of purchasers, it is
presumed that in scope the identification of goods
Ser No. 77606502
5
encompasses not only all the goods of the nature and type
described therein, but that the identified goods are
offered in all channels of trade which would be normal
therefor, and that they would be purchased by all potential
buyers thereof. In re Elbaum, 211 USPQ 639, 640 (TTAB
1981). Further, it is not necessary that the respective
goods be identical or competitive, or even that they move
in the same channels of trade to support a holding of
likelihood of confusion. It is sufficient that the
respective goods are related in some manner, and/or that
the conditions and activities surrounding the marketing of
the goods are such that they would or could be encountered
by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originated from the same producer. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991). Likelihood of
confusion in each of the refusals may be found based on any
item that comes within the identifications of goods in the
application and the cited registration. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981).
With respect to each refusal, applicant submitted a
dictionary definition of “poppy,” and copies of third-party
registrations in an attempt to show that applicant’s mark
Ser No. 77606502
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and the registered marks could coexist. The examining
attorney introduced third-party registrations and Internet
evidence in support of the position that the goods are
related.
The dictionary evidence shows the term “poppy”
defined, in pertinent part, as follows: “any of numerous
annual, biennial, and perennial herbs or rarely subshrubs
of Papaver or sometimes of closely related genera having
showy flowers.” Webster’s Third New International
Dictionary (1986).
We now turn to consider each of the refusals.

Registration No. 2988454 (against Class 3)
Applicant’s brief is entirely silent on the similarity
between the marks. As to the goods, applicant makes the
distinction that its goods are used on the skin whereas
registrant’s goods are for the hair.
The examining attorney maintains that the marks are
identical, and that the goods are similar.
The marks are essentially identical, and applicant
does not argue to the contrary. The stylization of
registrant’s mark is very minimal, and does virtually
nothing to distinguish the cited mark from applicant’s mark
in standard character form. See Citigroup Inc. v. Capital
Ser No. 77606502
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City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-
59 (Fed. Cir. 2011) (a standard character mark may be
depicted in any font style, size, or color). Simply put,
the marks are essentially identical in appearance, and
actually identical in sound, meaning and overall commercial
impression. The virtual identity between the marks is a du
Pont factor that weighs heavily in favor of a finding of
likelihood of confusion.
Given that the marks are identical, applicant’s
disagreement with the refusal rests on the du Pont factor
of the similarity/dissimilarity between the goods. In
considering this du Pont factor, we initially note that
where essentially identical marks are involved, as is the
case here, the degree of similarity between the goods that
is required to support a finding of likelihood of confusion
declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688-1689 (Fed. Cir. 1993) (“even when the goods or
services are not competitive or intrinsically related, the
use of identical marks can lead to the assumption that
there is a common source”); Time Warner Entertainment Co.
v. Jones, 65 USPQ2d 1650 (TTAB 2002); and In re Opus One
Inc., 60 USPQ2d 1812 (TTAB 2001). It is only necessary
that there be a viable relationship between the goods to
support a finding of likelihood of confusion. In re
Ser No. 77606502
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Concordia International Forwarding Corp., 222 USPQ 355, 356
(TTAB 1983). The issue here, of course, is not whether
purchasers would confuse the goods, but rather whether
there is a likelihood of confusion as to the source of
these goods. In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
Insofar as the goods are concerned, we must compare
applicant’s “after shave lotions; body sprays; cologne;
cosmetics; hand lotions; perfume; skin lotion; skin
moisturizer; skin soap; toilet soap” to registrant’s “hair
and scalp conditioner.”
Although we recognize that the goods are specifically
different, they are all personal care/grooming products
which are often used together. As such, we find the goods
to be closely related; this finding is consistent with
prior determinations made by the Board. See, e.g., Johnson
Publishing Co. v. International Development Ltd., 221 USPQ
155 (TTAB 1982);and In re Cosvetic Laboratories, Inc., 202
USPQ 842 (TTAB 1979). Closely related personal
care/grooming products such as cosmetics, lotions, soaps,
and hair conditioners are presumed to travel in the same
trade channels (e.g., drug stores, and personal care
products section of grocery stores and department stores
such as Walmart and Target). Further, these goods are
bought by the same classes of purchasers, including
Ser No. 77606502
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ordinary consumers. Given that these personal care
products are relatively inexpensive and subject to frequent
replacement, they are the types of goods that may be
purchased on impulse.
With respect to the relatedness of the goods, the
examining attorney introduced several use-based third-party
registrations, each showing a mark registered for one or
more of the goods identified in the application and in the
cited registration. “Third-party registrations which cover
a number of differing goods and/or services, and which are
based on use in commerce, although not evidence that the
marks shown therein are in use on a commercial scale or
that the public is familiar with them, may nevertheless
have some probative value to the extent that they may serve
to suggest that such goods or services are of a type which
may emanate from a single source.” In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d,
864 F.2d 149 (Fed. Cir. 1988). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).4
The du Pont factors relating to the similarity between
the goods, and the identity in trade channels and

4 The examining attorney’s Internet evidence of third-parties’
websites is not persuasive on this point, essentially for the
reasons advanced by applicant. (Reply Brief, pp. 6-7).
Ser No. 77606502
10
purchasers, as well as the conditions of sale, strongly
weigh in favor of a finding of a likelihood of confusion.
Applicant submitted copies of five third-party
registrations “for some form of the term POPPY used in
connection with personal care products and perfumes.”
Applicant characterizes the evidence as showing “expansive
third-party use” that diminishes the likelihood of
confusion among consumers. (Brief, pp. 11-12). Applicant
also points to two sets of other marks (PINK and SO PINK;
and SILVER BRIGHTS and SILVER SHADOW) as evidence that
marks with similar appearances and sounds for hair products
and skin products can coexist.5
Applicant’s evidence is not persuasive of a different
result. Generally, the existence of third-party
registrations cannot justify the registration of another
mark that is so similar to a previously registered mark as
to create a likelihood of confusion, or to cause mistake,
or to deceive. Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 463 (CCPA 1973). Nevertheless,
third-party registrations may be relevant to show that the

5 Applicant also relies on two other third-party registrations of
POPPY (POPI) marks for printed publications. Inasmuch as those
goods are not similar to the goods involved herein, this evidence
is irrelevant. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed Cir. 1992),
cert. denied, 506 U.S. 1034 (1992).
Ser No. 77606502
11
mark or a portion of the mark has been so commonly adopted
that the public will look to other elements of a mark to
distinguish the source of the goods or services. See,
e.g., AMF Inc. v. American Leisure Products, Inc., 474 F.2d
1403, 1406, 177 USPQ 268, 269-70 (CCPA 1973); and Plus
Products v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB
1983).
The problem with applicant’s argument is that there is
no distinctive element in either applicant’s or
registrant’s mark other than POPPY that consumers would
look to in order to distinguish these marks. Further, each
of the third-party registered marks includes additional
matter which serves to distinguish those marks from others;
clearly, none of the third-party marks is as close to
registrant’s mark as is applicant’s mark.
In any event, third-party registrations are not
evidence of use of the marks shown therein. AMF Inc. v.
American Leisure Products, Inc., 177 USPQ at 269. Thus,
they are not proof that consumers are familiar with such
marks so as to be accustomed to the existence of similar
marks in the marketplace, and as a result are able to
distinguish among POPPY marks for personal care/grooming
products based on any differences in the marks. Smith
Bros. Mfg. Co. v. Stone Mfg. Co., 177 USPQ at 463. Cf. In
Ser No. 77606502
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re Broadway Chicken Inc., 38 USPQ2d 1559, 1565-66 (TTAB
1996) (“Evidence of widespread third-party use, in a
particular field [restaurants], of marks containing a
certain shared term [BROADWAY] is competent to suggest that
purchasers have been conditioned to look to the other
elements of the marks as a means of distinguishing the
source of goods or services in the field.”).
We conclude that consumers familiar with registrant’s
“hair and scalp conditioner” sold under the mark POPPY
(stylized) would be likely to believe, upon encountering
applicant’s mark POPPY for after shave lotions; body
sprays; cologne; cosmetics; hand lotions; perfume; skin
lotion; skin moisturizer; skin soap; toilet soap,” that the
goods originated from or are somehow associated with or
sponsored by the same source.

Registration No. 3139328 (against Class 14)
Applicant argues that the marks are different and that
the examining attorney has improperly dissected the cited
mark by focusing on the POPPY portion of registrant’s mark,
completely disregarding the remaining word and design
feature. More specifically, applicant contends that the
marks differ in the number of words and syllables; that the
marks appear differently and sound differently; and that
Ser No. 77606502
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the marks have different connotations due to the presence
of the word “PINK” in the cited mark. As to the goods,
applicant urges that its goods include watches and
ornamental jewelry, which are not covered by the cited
registration, and that “relatedness based merely on
membership in the same general industry is insufficient to
support a likelihood of confusion determination.” (Brief,
p. 9).
The examining attorney maintains that the POPPY
portion of the cited mark creates a “more significant
commercial impression” than the remaining portions, and
that this portion is identical to applicant’s mark. In any
event, the marks, when considered in their entireties, are
similar. As to the goods, the examining attorney states
that they are identical in part, or otherwise closely
related.
Turning first to the goods, we must compare
applicant’s “bracelets; earrings; jewelry; necklaces; rings
being jewelry; watches” with registrant’s “brooches, rings,
jewelry, bracelets; collectible and commemorative coins;
badges of precious metal; articles of precious metal,
namely, jewelry, collectible and commemorative coins,
badges.”
Ser No. 77606502
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As is obvious from this comparison, the
identifications of goods are identical to the extent that
both list “jewelry,” “rings” and “bracelets.” Further,
applicant’s and registrant’s goods otherwise are closely
related; the fact that the cited registration does not
cover “watches,” a point pressed by applicant, is
irrelevant. See Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 209 USPQ at 988 (likelihood of confusion may be
found based on any item that comes within the
identifications of goods in the application and the cited
registration). Given the identity and/or close
relationship between the goods, we presume that they travel
in the same trade channels (such as jewelry stores and the
jewelry departments of mass merchandisers), and that the
same classes of purchasers, including ordinary consumers,
buy the goods. Because the identifications do not include
any limitation as to price, we must assume that the goods
include inexpensive jewelry, rings and bracelets that may
be bought with relatively little thought. See Recot, Inc.
v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir.
2000) (when products are relatively low-priced the risk of
likelihood of confusion is increased because purchasers of
such products exercise less purchasing care than when the
cost of the products is high).
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The identity between the goods, trade channels and
purchasers weighs heavily in favor of a finding of
likelihood of confusion.
Where, as in the present case, the marks are used on
identical goods (at least in part), the degree of
similarity between the marks that is necessary to support a
finding of likely confusion declines. Century 21 Real
Estate Corp. v. Century Life of America, 23 USPQ2d at 1701.
We thus turn to compare applicant’s mark POPPY with
registrant’s mark PINK POPPY and design.
It is well settled that one feature of a mark may be
more significant than another, and it is not improper to
give more weight to this dominant feature in determining
the commercial impression created by the mark. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985) (“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 consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.”).
Where both words and a design comprise the mark (as in
registrant’s mark), then the words are normally accorded
greater weight because the words are likely to make an
Ser No. 77606502
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impression upon purchasers, would be remembered by them,
and would be used by them to request the goods. In re
Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987);
and Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ
461, 462 (TTAB 1985). See also Giant Food, Inc. v.
Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390
(Fed. Cir. 1983). Thus, although we have taken into
account the design feature of registrant’s mark, we find
that the dominant portion is the literal portion, PINK
POPPY, of registrant’s mark.
When we consider the literal portion of registrant’s
mark, PINK POPPY, this portion in turn is dominated by the
word POPPY. We say this because the word “POPPY” is
reinforced by the presence in the mark of the stylized
design of a flower.
The dominant portion of registrant’s mark, PINK POPPY,
is very similar to the entirety of applicant’s mark POPPY.
Although we have given more weight to the dominant PINK
POPPY portion of registrant’s mark, so as to be clear, in
comparing the marks, we ultimately have compared
registrant’s mark in its entirety with the applied-for
mark.
In doing so, we find that the marks are similar in
sound and appearance, both sharing the identical word
Ser No. 77606502
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POPPY. We recognize that registrant’s mark includes a
design feature, but as noted above, this feature is
dominated by the literal portion, PINK POPPY, that is
similar to applicant’s mark. Simply put, the presence of
the stylization of the letters and the flower design in
registrant’s mark is insufficient to distinguish the cited
mark from applicant’s mark.
As to meaning, applicant contends that its mark
“suggests a bold, fun, and fiery attitude” whereas
registrant’s mark “suggests children’s products.” (Brief,
p. 7, n.4). We find these statements to be a speculative
stretch, and not persuasive in the least.6 Rather, we find
that applicant’s mark connotes the poppy flower, while
registrant’s mark, which includes a flower design, connotes
a poppy that is pink in color. These meanings, although
not identical, are very similar.
Given the similarities between the marks POPPY and
PINK POPPY, we find that they engender similar overall
commercial impressions.
In sum, the similarity between the marks weighs in

6 In considering applicant’s contention, we cannot help but note
that it has claimed ownership of Registration No. 925921 of the
mark for clothing; the registered mark obviously includes
a flower design.
Ser No. 77606502
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favor of a finding of likelihood of confusion.
As was the case with applicant’s argument against the
other refusal, applicant again points to the coexistence of
third-party registrations to justify the coexistence of its
mark with the cited mark. More specifically, applicant
submitted copies of registrations of the marks ARMY and
PINK ARMY for jewelry goods; SATURN for jewelry and SATURN
for watches; and PURPLE POPPY for retail clothing store
services and PAISLEY POPPY for retail furniture store
services. For the same reasons discussed above, we do not
find applicant’s evidence of these third-party
registrations to be persuasive of a different result.
We conclude that consumers familiar with registrant’s
“brooches, rings, jewelry, bracelets; collectible and
commemorative coins; badges of precious metal; articles of
precious metal, namely, jewelry, collectible and
commemorative coins, badges” sold under the mark PINK POPPY
and design would be likely to believe, upon encountering
applicant’s mark POPPY for “bracelets; earrings; jewelry;
necklaces; rings being jewelry; watches,” that the goods
originated from or are somehow associated with or sponsored
by the same source.
Lastly, we have no doubt with respect to either of the
refusals. Even if we did, however, any doubt is required
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to be resolved in favor of the prior registrant. In re
Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025
(Fed. Cir. 1988); and In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusals to register are affirmed.