De Beers Intangibles Limited

Trademark Trial and Appeal Board

Nov 28, 2018

No. 79198047 (T.T.A.B. Nov. 28, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 28, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re De Beers Intangibles Limited
_____
Serial No. 79198047
_____
Brian R. McGinley, Tiffany L. Schwartz, and Jonathan A. Malki
of Dentons US LLP
for De Beers Intangibles Limited

Hai-Ly Lam, Trademark Examining Attorney, Law Office 112,
Renee Servance, Managing Attorney.
_____
Before Ritchie, Shaw, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background
De Beers Intangibles Limited (“Applicant”) seeks an extension of protection into
the U.S. of International Registration 1323292 for the mark DE BEERS TRUE
BRILLIANT in standard characters for:
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Precious metals and their alloys; jewellery and imitation
jewellery; precious and semi-precious stones; horological
and chronometric instruments in International Class 14;
and
Retail store and wholesale store services, on-line retail
store and wholesale store services and advertising and
marketing services, all in the field of precious metals and
their alloys, jewellery and imitation jewellery, precious and
semi-precious stones, and horological and chronometric
instruments in International Class 35.1
The application includes a disclaimer of BRILLIANT. The Examining Attorney
refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
based on a likelihood of confusion with the registered mark TRU BRILLIANCE in
standard characters for “Diamond jewelry; Jewelry” in International Class 14.2 After
the Examining Attorney made the refusal final, Applicant filed a request for
reconsideration and appealed. The Examining Attorney denied reconsideration, and
the appeal proceeded. For the reasons set forth below, we affirm the refusal to
register.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any

1 Application Serial No. 79198047 is based on Section 66(a) of the Trademark Act, 15 U.S.C.
§ 1141f(a), and has a filing date of October 25, 2016.
2 Registration No. 5042296 issued September 13, 2016 on the Principal Register.
Serial No. 79198047
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likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc.,
380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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 Goods and Services
“[L]ikelihood of confusion can be found ‘if the respective products [or services] are
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.’” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1722 (Fed. Cir. 2012) (internal citations omitted). Applicant’s goods and
services and Registrant’s goods need not be “competitive or intrinsically related” to
find a likelihood of confusion. Joseph Phelps Vineyards, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1737 (Fed. Cir. 2017).
In analyzing the second du Pont factor, we look to the identifications in the
application and cited registration. See Stone Lion Capital Partners v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v.
Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
“[I]t is sufficient for finding a likelihood of confusion if relatedness is established for
any item encompassed by the identification of goods [or services] within a particular
class in the application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB
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2015); see also Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981).
The International Class 14 goods in the application and in the cited registration
overlap at least as to jewelry, so they are identical in part. As to Applicant’s services
in International Class 35, we find retail store services in the field of jewelry related
to jewelry, as identified in the cited registration. We note that retail store services
have frequently been found to be related to goods sold by those retail stores. See, e.g.,
In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988)
(BIGGS for retail grocery and general merchandise store services likely to be confused
with BIGGS for furniture); In re Thomas, 79 USPQ2d 1021, 1024 (TTAB 2006) (“It is
clear that consumers would be likely to believe that jewelry on the one hand and retail
stores selling jewelry on the other emanate from or are sponsored by the same source
if such goods and services are sold under the same or similar marks.”); In re Peebles
Inc., 23 USPQ2d 1795, 1796 (TTAB 1992) (“As we have said before there is no
question that store services and the goods which may be sold in that store are related
goods and services …”).
In this regard, the Examining Attorney submitted persuasive evidence that
consumers are accustomed to encountering jewelry and retail store services featuring
jewelry under the same marks. For example:
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• The Brighton website shows both retail store services and jewelry featured
under the BRIGHTON mark;3
• The David Yurman website offers retail services and jewelry under the DAVID
YURMAN mark;4
• The Helzberg Diamonds website shows use of HELZBERG both in connection
with retail store services and for jewelry;5
• The Blue Nile website features the mark BLUE NILE for jewelry retail
services as well as for jewelry;6
• The Charleston Alexander website features CHARLESTON ALEXANDER in
connection with both jewelry retail services and jewelry (diamond rings);7
• The Mikimoto website shows use of MIKIMOTO as a retail jewelry service
mark and as a trademark for jewelry;8 and
• The Tacori website features TACORI as a mark for jewelry and retail store
services.9

3 August 31, 2017 Office Action at 160-162, 170 (brighton.com). Citations to the record come
from TSDR in pdf.
4 Id. at 179-196 (davidyurman.com).
5 Id. at 225-230 (helzberg.com);
6 April 6, 2018 Denial of Reconsideration at 20 (bluenile.com).
7 Id. at 131-138 (wherethediamondsare.com).
8 Id. at 139-156 (mikimotoamerica.com).
9 Id. at 157-169 (tacori.com).
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The record includes other examples,10 and this marketplace evidence shows consumer
exposure to the same mark in use on services such as Applicant’s and for goods such
as those in the cited registration.
The Examining Attorney also introduced a large number of use-based third-party
registrations that include jewelry, precious stones, precious metals and/or horological
and chronometric instruments under the same mark as retail, wholesale, advertising
or marketing services featuring the same types of goods.11 Third-party registrations
based on use in commerce that cover the same sorts of goods and services suggest
that they may emanate from the same source. Aquamar, 115 USPQ2d at 1126 n.5; In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Applicant offers no
arguments against the relatedness of the goods and services, and explicitly concedes
that its goods and those in the cited registration “are admittedly related.”12
The foregoing evidence demonstrates the relatedness of the goods and services at
issue. The legal identity of Applicant’s and Registrant’s jewelry and the relatedness
of the goods and services not only weighs heavily in favor of finding a likelihood of
confusion, but also reduces the degree of similarity between the marks necessary to
find a likelihood of confusion. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,

10 Id. at 170-228.
11 August 31, 2017 Office Action at 24-157; April 6, 2018 Denial of Reconsideration at 73-
130.
12 16 TTABVUE 18 (Applicant’s Brief).
Serial No. 79198047
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1908 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260
(Fed. Cir. 2010); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010).
B. Trade Channels and Classes of Consumers
Turning to the trade channels and consumers, because Applicant’s and the
registrant’s recitations of goods overlap in part, we presume that the goods also move
in overlapping channels of trade and are available to overlapping classes of potential
consumers. Viterra, 101 USPQ2d at 1908 (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); see also Inter IKEA
Sys. B.V. v. Akea, 110 USPQ2d 1734, 1743 (TTAB 2014); L. & J.G. Stickley, Inc. v.
Cosser, 81 USPQ2d 1956, 1971 (TTAB 2007) (“Because the goods of both parties are
at least overlapping, we must presume that the purchasers and channels of trade
would at least overlap.”). As for the similarity of channels of trade between
Applicant’s services and the goods in the cited registration, the marketplace evidence
of relatedness discussed above demonstrates that jewelry, as identified in the cited
registration, and retail jewelry services, as recited by Applicant, are featured together
on the same websites, and would be encountered by the same consumers. Thus, this
factor weighs in favor of likely confusion.
C. Number and Nature of Similar Marks for Similar Goods
Because the strength of the cited mark under the sixth du Pont factor impacts our
comparison of the marks, we next address Applicant’s claim under this factor that
“[t]he abundance of third party uses of ‘TRUE BRILLIANT’ and similar variations
Serial No. 79198047
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underscore [sic] that the matter common to the marks is diluted and generic.”13 The
Federal Circuit has held that evidence of extensive registration and use of a term by
others for similar goods can be “powerful” evidence of the term’s weakness. Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If the evidence
establishes that the consuming public is exposed to widespread third-party use of
similar marks for similar goods, it “is relevant to show that a mark is relatively weak
and entitled to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693
(Fed. Cir. 2005).
As an initial matter, Applicant’s evidence does not show third-party “uses,” and
Applicant points to only one example from the Examining Attorney’s evidence of
“third-party trademark use of the word ‘brilliance’ for diamond jewelry – Zales “Arctic
Brilliance.”14 Instead, Applicant’s evidence consists of a large number of use-based
third-party registrations of marks that contain either the term BRILLIANT(S),
BRILLIANCE, or TRU(E).15 With only one third-party use, the record thus does not

13 16 TTABVUE 14 (Applicant’s Brief).
14 19 TTABVUE 8. In its Reply Brief, Applicant points to examples from the Examining
Attorney’s evidence of what Applicant correctly characterizes as third-party “descriptive
uses” of “brilliance” and “brilliant.” 19 TTABVUE 5-8 (Applicant’s Reply Brief).
15 August 7, 2017 Response to Office Action at 26-179 (more than 80 third-party registrations
with BRILLIANT(S) or BRILLIANCE for jewelry); id. at 180-298 (more than 50 third-party
registrations with TRU(E) for jewelry). We do not consider the pending applications, which
are only evidence that they were filed, nor do we find persuasive registrations for other types
of goods and services. See In re i.am.symbolic llc, 866 USPQ2d 1315, 123 USPQ2d 1744, 1751
Serial No. 79198047
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convince us of commercial weakness from third-party use, and does not show that
consumers are conditioned to distinguish among marks including BRILLIANT(S),
BRILLIANCE, and TRU(E). Nonetheless, we agree that the substantial third-party
registration evidence shows conceptual weakness, in that terms carry a suggestive
or descriptive connotation in the relevant industry. See Juice Generation, 115
USPQ2d at 1674 (commenting that the “real evidentiary value of third party
registrations per se is to show the sense in which . . . a mark is used in ordinary
parlance.”); see also In re Morinaga Nyugyo Kaisha, 120 USPQ2d 1738, 1745 (TTAB
2018) (noting that “third-party registrations are relevant evidence of the inherent or
conceptual strength of a mark or term because they are probative of how terms are
used in connection with the goods or services identified in the registrations,” citing
Juice Generation and other cases). Indeed, other evidence discussed below, including
dictionary definitions and third-party descriptive use, further supports the
descriptive nature of BRILLIANT(S) and BRILLIANCE, and the suggestive nature
of TRU(E) in the jewelry industry. Overall, we find the terms in the cited mark
conceptually weak, individually.
However, the record does not show weakness of the combination of terms in the
cited mark – TRU BRILLIANCE. We bear in mind the presumption afforded the cited
registration, which is on the Principal Register without a claim of acquired

(Fed. Cir. 2017) (disregarding third-party registrations for goods where the proffering party
“has neither introduced evidence, nor provided adequate explanation to support a
determination that the existence of I AM marks for goods in other classes, … support a
finding that registrants’ marks are weak with respect to the goods identified in their
registrations”).
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distinctiveness. See, e.g., Wincharger Corp. v. Georator Corp., 157 USPQ 212 (TTAB
1968) (distinctiveness of registered marks presumed). Notably, none of the third-
party registrations submitted by Applicant combines BRILLIANT(S) or
BRILLIANCE with TRU(E). Also, the Examining Attorney introduced search results
from the USPTO database showing no such registrations exist for the recited goods
and services, or anything related thereto.16 Thus, the cited registration is the only
one combining these terms for the relevant goods and services.
Considering the record in its entirety, we find some degree of conceptual weakness
of each of the terms in the cited mark. Yet even though it contains descriptive or
suggestive terms, the registered mark still is entitled to appropriate protection
against the registration of confusingly similar marks. King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974); Max Capital,
93 USPQ2d at 1246; see also In re Clorox Co., 578 F.2d 305, 198 USPQ 337, 341
(CCPA 1978) (ERASE for a laundry soil and stain remover held confusingly similar
to STAIN ERASER, registered on the Supplemental Register, for a stain remover).
D. Similarity of the Marks
We next compare the marks DE BEERS TRUE BRILLIANT and TRU
BRILLIANCE “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ
at 567). The test assesses not whether the marks can be distinguished in a side-by-

16 April 6, 2018 Denial of Reconsideration at 8-9.
Serial No. 79198047
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side comparison, but rather whether their overall commercial impressions are so
similar that confusion as to the source of the goods and services offered under the
respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721; see also Edom
Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
According to the Examining Attorney, the similarity in the marks derives from
the wording TRUE BRILLIANT in Applicant’s mark being nearly identical to the
cited mark TRU BRILLIANCE. The Examining Attorney and Applicant agree that
TRU is merely a misspelling of TRUE. The Examining Attorney asserts that
BRILLIANCE and BRILLIANT are interchangeable forms of the same root word that
look and sound very similar, and mean essentially the same thing, but in noun and
adjective form, respectively. Applicant, on the other hand, contends that
BRILLIANCE and BRILLIANT look and sound different.
While acknowledging that the inclusion of DE BEERS in Applicant’s mark creates
some difference, the Examining Attorney maintains that adding a house mark does
not obviate confusion, and instead may increase its likelihood. Applicant, however,
maintains that the incorporation of “the famous DE BEERS trademark” offsets “[t]he
effect of the marks’ similar common terms.”17 Pointing to holdings from a case in the
U.S. District Court for the Southern District of New York regarding the fame of the
DE BEERS mark and to prior registrations of DE BEERS-formative marks, Applicant
insists that the DE BEERS component of its mark sufficiently distinguishes it from
the cited mark to avoid likely confusion.

17 16 TTABVUE 11 (Applicant’s Brief).
Serial No. 79198047
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We find the overall appearance and sound of the marks to be similar because of
the wording TRUE BRILLIANT and TRU BRILLIANCE. As Applicant acknowledges,
TRU is a mere misspelling that omits the silent “E” from TRUE and sounds identical
to TRUE. BRILLIANT and BRILLIANCE also look very similar, varying only by the
ending letters “T” versus “CE.” There is only a minimal difference in the final sound
of these words. Considering DE BEERS TRUE BRILLIANT in its entirety, obviously
the DE BEERS portion of Applicant’s mark is a visual and phonetic element not found
in the cited mark. However, because the remainder of Applicant’s mark is nearly
identical to the cited mark, we find them similar overall in appearance and sound.
See In re Nat’l Data Corp., 224 USPQ at 751 (“[I]n articulating reasons for reaching
a conclusion on the issue 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,
provided the ultimate conclusion rests on consideration of the marks in their
entireties”); see also Stone Lion Capital Partners, 110 USPQ2d at 1161.
The connotations and commercial impressions of the marks also are quite similar.
As noted above, TRU in the cited mark is a mere misspelling of “true,” and thus has
the same meaning as TRUE in Applicant’s mark. “Brilliance” is a noun meaning
“intense brightness of light.”18 “Brilliant” can be a noun meaning “[a] diamond of
brilliant cut” or an adjective meaning “very bright and radiant.”19 These forms of the
same root word are often used together to refer to or describe gemstones in the jewelry

18 August 31, 2017 Office Action at 16 (Oxford Dictionary at en.oxforddictionaries.com).
19 February 7, 2017 Office Action at 16 (Oxford Dictionary at en.oxforddictionaries.com).
Serial No. 79198047
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industry. For example, according to the Wikipedia entry for “Brilliant (diamond
cut),” “[a] brilliant is a diamond or other gemstone cut in a particular form with
numerous facets so as to have exceptional brilliance. The shape resembles that of a
cone and provides maximized light return through the top of the diamond.”20 The
Zales website notes that “[t]he 58-facet round brilliant cut is the most popular
because of its fire and brilliance.”21 Similarly, the website of Blue Nile, which refers
to itself as “the Source of Brilliance,” states that “[t]he round brilliant cut diamond
is by far the most popular” which “optimize[s] the fire and brilliance in a round
diamond….”22 The Hardasrocks.info website states that “[a] skillful diamond cutter
brings out all the brilliance and sparkle of the diamond, by choosing the most
appropriate cut, such as the Brilliant Diamond cut.”23 Even on Applicant’s webpage
featuring the DE BEERS TRUE BRILLIANT mark, a photo of a diamond is
captioned, “Fire, Life and Brilliance,” and the website explains each characteristic,
including that “‘Brilliance’ centres on the natural transparency of a diamond, which
leads to its brightness.”24 While the noun meaning of BRILLIANT, referring to a
particular cut of gemstone, may reflect a difference from BRILLIANCE, the adjective
meaning of BRILLIANT is highly similar to that of BRILLIANCE, and nothing in
Applicant’s mark as a whole supports one meaning over the other. Regardless, as

20 Id. at 19 (en.wikipedia.org) (emphasis added).
21 Id. at 28 (zales.com) (emphasis added).
22 Id. at 22 (bluenile.com) (emphasis added).
23 April 6, 2018 Denial of Reconsideration at 26 (hardasrocks.info) (emphasis added).
24 April 6, 2018 Denial of Reconsideration at 11-12 (debeers.com) (emphasis added).
Serial No. 79198047
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noted above, BRILLIANT and BRILLIANT are often used together in an intrinsically
related manner. Thus, we find TRU BRILLIANCE similar in meaning and
impression to TRUE BRILLIANT.
Applicant’s DE BEERS TRUE BRILLIANT mark also includes the DE BEERS
element, of which we take account in considering the mark as a whole. While we
acknowledge Applicant’s arguments and persuasive evidence that many consumers
would recognize DE BEERS as a house mark, we note that the addition of even a
famous house mark by the junior party does not obviate a finding of likelihood of
confusion. See du Pont, 177 USPQ at 567 (du Pont factors only list fame of the prior
mark as relevant to the analysis). The addition of a junior user’s well known house
mark may actually increase likely confusion, with consumers mistakenly believing
the goods under the prior registered mark emanate from the newcomer. In re
Christian Dior, S.A., 225 USPQ 533, 534 (TTAB 1985) (“such addition may actually
be an aggravation of the likelihood of confusion as opposed to an aid in distinguishing
the marks so as to avoid source confusion”). If an applicant’s fame were to be
considered, a newcomer could unfairly wrest ownership of a prior user’s mark merely
by spending more on advertising. Thus, “[a] junior party’s fame cannot excuse
likelihood of confusion created by its use of a mark similar to one already in use.”
General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1602
(TTAB 2011), citing In re Christian Dior SA, 225 USPQ at 535 (CACHET vs. LE
CACHET DE DIOR: “those purchasers familiar with registrant’s ‘CACHET’ products
would, upon encountering ‘LE CACHET DE DIOR’ shirts, assume that DIOR is the
Serial No. 79198047
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source of the CACHET products.”); see also In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1271 (TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus,
and TITAN for medical ultrasound device, likely to cause confusion, noting that the
marks are more similar than they are different and that the addition of applicant’s
“product mark,” VANTAGE, to the registered mark would not avoid confusion); In re
Apparel Ventures, Inc., 229 USPQ 225, 226 (TTAB 1986) (SPARKS BY SASSAFRAS
is similar to SPARKS). The Trademark Act “protects the registrant and senior user
from adverse commercial impact due to use of a similar mark by a newcomer.” In re
Shell Oil Co., 992 F.2d 1024, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
Even taking into account some degree of conceptual weakness of the individual
terms TRU and BRILLIANCE in the cited mark, the overall strong similarities in
Applicant’s mark and the cited mark result in this factor supporting a finding of
likelihood of confusion regardless. While we have considered the cases cited by
Applicant, we do not find them analogous to the situation at issue here. As noted
above, the cited mark is entitled to appropriate protection against the registration of
confusingly similar marks, in this case a mark that pairs almost identical wording to
the cited mark with a house mark. See King Candy, 182 USPQ at 109. Here,
appropriate protection of the cited mark forecloses Applicant’s mark from registering
because it is so close to the cited mark.
E. Sophisticated Purchasing
In its Brief, Applicant asserts without pointing to evidence that the relevant
consumers are sophisticated purchasers, so as to negate a likelihood of confusion.
Serial No. 79198047
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Applicant focuses on “[d]iamonds and expensive jewelry” in making its arguments.25
However, Applicant’s identification of goods and services is not so restricted, instead
including “jewellery and imitation jewellery” and retail services featuring the same,
which we cannot conclude inherently must be expensive. See In re FCA US LLC, 126
USPQ2d 1214, 1222 (TTAB 2018) (“Applicant seeks registration of its mark for all
‘passenger automobiles,’ which we must interpret to include the smallest and least
expensive subcompacts as well as expensive vehicles for specialized uses”). Similarly,
the goods in the cited registration include “jewelry,” which we must assume
encompasses any type, quality, and cost. We note that “Board precedent requires our
decision to be based on the least sophisticated potential purchasers.” Id. (citing Stone
Lion, 110 USPQ2d at 1163). We consider this factor neutral.
III. Conclusion
The overall similarity of these marks for in-part identical goods and related goods
and services that move in the same channels of trade to the same classes of customers
renders confusion likely.
Decision: The refusal to register Applicant’s mark is affirmed.

25 16 TTABVUE 19-20 (Applicant’s Brief).