Donald E. Moriarty

Trademark Trial and Appeal Board

Jun 26, 2012

No. 77946129 (T.T.A.B. Jun. 26, 2012)

Mailed:
June 26, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Donald E. Moriarty
________

Serial No. 77946129
_______

Jed H. Hansen of Thorpe North & Western LLP for Donald E.
Moriarty.

Tina Brown, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______

Before Cataldo, Taylor, and Wellington
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Donald E. Moriarty (“applicant”) has filed an
application to register on the Principal Register the mark
HAUT COZEES (in standard character form) for “clothing,
namely, pants, denim pants, cargo pants, capri pants,
stretch pants, jogging pants” in International Class 25.1

1 Serial No. 77946129, filed February 26, 2010, based on an
allegation of a bona fide intent to use the mark in commerce on
the identified goods.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 77946129
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), in view of
three registrations for the mark COZEEZ (in standard
character form) covering “slippers”;2 “sleeping garments,
namely, pajama tops and bottoms, nightgowns, sleepwear,
[and] night shirts”;3 and “baby newborn and infant layette
apparel, namely, creepers, hats, booties, blankets,
rompers, coveralls, outwear jackets.”4 The three
registrations are owned by the same entity and all goods in
the cited registrations are in International Class 25.
Applicant appealed the final refusal of his
application and both applicant and the examining attorney
have filed briefs. As discussed below, the refusal to
register is affirmed.
As a preliminary matter, the examining attorney has
objected to applicant’s mention in his brief of a third-
party application. In particular, applicant points to the
prosecution history of that application and argues that it
culminated in a different result despite similar
circumstances with the instant application. The examining
attorney has properly objected because applicant did not,
prior to appeal, identify this application or attach copies

2 Registration No. 1469133 issued December 15, 1987; renewed.
3 Registration No. 2500833 issued on November 23, 2001; renewed.
Serial No. 77946129
3
of the actual application and/or file history. The
objection is well taken and we have not considered the
third-party application. See Trademark Rule 2.142(d)(the
record should be complete prior to the filing of an
appeal). Even if we had considered the third-party
application, our decision would be the same inasmuch as
each case is considered on its own facts and record. In re
Netts Design Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001).
We turn now to the merits of the refusal.
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, 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).

4 Registration No. 2500833 issued on July 14, 2009.
Serial No. 77946129
4
We first consider the relatedness of applicant's and
registrant’s goods. With regard to this factor, applicant
submitted little in the way of argument.5 Nevertheless, it
is the examining attorney’s burden to establish at least a
viable relationship between the goods. Here, we find the
record created by the examining attorney establishes that
registrant’s slippers, sleeping garments and baby and
infant apparel are closely related to applicant’s pants.
The examining attorney has submitted numerous use-based,
third-party registrations which individually cover either
both pants and slippers, or both pants and sleeping
garments, or both pants and baby/infant apparel. This
evidence serves to suggest that such goods are of a type
that may emanate from a single source. See In re Albert
Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993); In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1469 (TTAB 1988), aff'd
(unpublished) No. 88-1444 (Fed. Cir. Nov. 14, 1988). In
further support, the examining attorney submitted internet
evidence showing pants being offered for sale in proximity
to registrant’s various goods on the same retail apparel

5 Applicant’s sole statement regarding the relatedness of the
goods is relegated to a footnote wherein he simply cites to one
Board decision in support of his statement that “the
dissimilarity of the goods associated with each mark...further
supports a finding of no likelihood of confusion.” Applicant’s
brief, p. 5 footnote 2.

Serial No. 77946129
5
websites. This evidence shows that applicant’s and
registrant’s clothing goods may be found in the same
channels of trade.
Based on the record, we find that applicant’s pants
are related to registrant’s identified goods and we resolve
the du Pont factors regarding the similarity of the goods
and trade channels against applicant.
We now consider the similarity and dissimilarity
between the marks. Our focus is on whether the marks are
similar in sound, appearance, meaning, and commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005).
We find there is strong similarity between applicant’s
proposed mark, HAUT COZEES, and the registered mark,
COZEEZ. The latter term in applicant's mark is nearly
identical to registrant’s mark. The difference in the last
letter, “s” versus “z”, hardly distinguishes these two
terms visually. While there is no correct pronunciation of
a trademark, it stands to reason that the COZEES and COZEEZ
are very likely to be pronounced identically. To the
extent that both applicant’s and registrant’s goods include
apparel, the terms COZEES and COZEEZ being used in
connection with such goods will have the same suggestive
Serial No. 77946129
6
connotation of apparel that is “cozy” or comfortable.
However, we further note that the record does not show that
the term COZEES or COZEEZ is so suggestive or has been used
by third-parties such that it may be considered weak or
treated as having less source-identifying significance.
We do not overlook the fact that our analysis is
ultimately based on the respective marks in their
entireties. Viewing applicant’s mark as a whole, we must
determine to what degree, if any, of similarity it bears to
the registered mark. We have given careful consideration
to applicant’s arguments that the marks taken as a whole
are dissimilar because HAUT is the dominant portion of the
mark due to its position as the initial term and because a
double entendre is created by the mark. Applicant also
argues that HAUT “in English vernacular is audibly
synonymous with the term ‘hot’ meaning cool or sexy” and
that this “dual meaning makes the composite trademark HAUT
COZEES even more distinctive and different from the
commercial impression conveyed by the term COZEEZ alone.”
Brief, p. 3.
While HAUT is clearly the initial term of applicant’s
mark and, as such, may remain in consumers’ minds when
recalling applicant’s mark, we do not agree with
applicant’s analysis of the commercial impression created
Serial No. 77946129
7
by the combined terms HAUT COZEES. In particular, there is
no evidence to support applicant’s contention that
consumers will perceive the term “haut” as synonymous with
“hot,” either phonetically or in meaning, or will perceive
the cool or sexy connotations. Applicant’s assertion that
his mark has a dual meaning or creates a double entendre is
without any evidentiary support that consumers will
understand or find a dual meaning in applicant’s proposed
mark.6 Thus, the addition of HAUT to COZEES does not create
a new or different meaning to applicant’s mark such that it
will significantly distinguish it, as a whole, from the
registered mark, COZEEZ. In sum, the similarity of the
marks resulting from the near identity of the latter term
in applicant’s proposed mark with the registered mark
outweighs the dissimilarity based on applicant’s addition
of the term HAUT.

6 In his brief, applicant also argued that “the term Haut is a
German word meaning high-class or fashionable” and that this has
relevance in creating a different commercial impression. Brief,
p. 3. However, applicant did not make citation to any
authoritative reference and we further note the term is
translated from German to mean “skin, hide.” German-English
Collins Dictionary (5th ed. 2004, William Colins Sons & Co. Ltd).
On the other hand, the same term is translated from French as
meaning “high” and may be used in its feminine form with other
terms to mean “high fashion” (“haute couture”). See, Collins
English French Electronic Dictionary (Harper Collins Publishers
2005).

Serial No. 77946129
8
In view of the foregoing, and because we do not
consider whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar that confusion as to the
source of the goods offered under the respective marks is
likely to result, see Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106 (TTAB 1975), we find that the du Pont factor
regarding the similarity of the marks favors a finding of a
likelihood of confusion.
Neither applicant nor the examining attorney presented
arguments or evidence directed toward any of the remaining
du Pont factors. As a result, we find the factors
discussed above to be most relevant to our determination
herein.
In conclusion, because of the similarity in the marks
and the closely related goods, as well as the similarity in
the trade channels, we find that purchasers familiar with
registrant's goods offered under the mark COZEEZ would be
likely to believe, upon encountering applicant's mark HAUT
COZEES for pants that they originate with or are somehow
associated with the same entity.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.