Enchanté Accessories Inc.

Trademark Trial and Appeal Board

Apr 18, 2018

No. 86374985 (T.T.A.B. Apr. 18, 2018)

Mailed: April 18, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Enchanté Accessories Inc.
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Serial No. 86374985
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John Zaccaria of Notaro, Michalos & Zaccaria PC,
for Enchanté Accessories Inc.
Katherine Stoides, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
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Before Taylor, Hightower, and Larkin,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Enchanté Accessories Inc. seeks to register on the Principal Register
the standard-character mark RESTOLOGY for “beds for household pets” in
International Class 20.1 The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark, as applied to the goods identified in the application, so

1 Application Serial No. 86374985 was filed August 22, 2014 based on Applicant’s allegation
of a bona fide intention to use the mark in commerce under Trademark Act Section 1(b),
15 U.S.C. § 1051(b).
This Opinion Is Not a
Precedent of the TTAB
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resembles the following two marks previously registered on the Principal Register to
the same owner as to be likely to cause confusion, to cause mistake, or to deceive:
• RESTOLOGIE in standard characters for “mattresses and pillows; air
mattresses, namely, inflatable mattresses for indoor use, not for medical or
recreational use” in International Class 20;2 and
• for “mattresses and pillows; air mattresses for use
as beds, not for medical purposes” in International Class 20.3
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
I. Evidentiary Issue
We begin by observing that all of the Internet evidence submitted by the
Examining Attorney during prosecution is deficient because none of it reflects the
date accessed and URL required to permit its full evaluation. Trademark Manual of
Examining Procedure (TMEP) § 710.01(b) (Oct. 2017) mandates that:
When making Internet evidence part of the record, the
examining attorney must both (1) provide complete
information as to the date the evidence was published or
accessed from the Internet, and its source (e.g., the
complete URL address of the website), and (2) download
and attach the evidence to the Office action. See Safer Inc.
v. OMS Invs. Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).4

2 Registration No. 4640640, issued November 18, 2014.
3 Registration No. 4837907, issued October 20, 2015. The description of the mark states: “The
mark consists of the wording ‘RESTOLOGIE’ in a lower-case font, with a thin wavy-line [sic]
underlining the letters ‘RESTOLOG’.” Color is not claimed as a feature of the mark.
4 This passage is unchanged from the April 2016 version of the TMEP, the edition current
when the first Office Action was issued in May 2016.
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Therefore, we consider only the Examining Attorney’s web evidence that Applicant
affirmatively treated as of record by referencing it in its brief, that is, the evidence
attached to the January 13, 2017 Final Office Action at TSDR 2-4 and 6-9. We do not
consider any Internet evidence submitted with the May 16, 2016 first Office Action.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all 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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (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. 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. Similarity of the Marks
The first du Pont factor is the similarity of the marks. In a likelihood of confusion
analysis, we compare the marks in their entireties for similarities and dissimilarities
in appearance, sound, connotation, and commercial impression. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir.
2014). “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
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between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted).
For purposes of our likelihood of confusion analysis, we focus on RESTOLOGIE in
standard characters (Registration No. 4640640). We find this to be the more relevant
of the two cited marks, both of which are registered for goods including “mattresses.”
If we find a likelihood of confusion with respect to RESTOLOGIE, we need not find it
as to the cited mark . On the other hand, if we do not reach that
conclusion, we would not find a likelihood of confusion as to the composite mark
either. See In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016);
In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
We find Applicant’s mark RESTOLOGY to be highly similar in appearance, sound,
connotation, and overall commercial impression to the cited mark RESTOLOGIE.
Although there is no “correct” pronunciation of a mark, In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012), we find that consumers are most
likely to verbalize Applicant’s mark identically to the cited mark. The marks are
differentiated slightly in appearance by the final letters –Y in Applicant’s mark and
–IE in the cited mark. This minor point of distinction, however, does not significantly
diminish the strong similarity between these two otherwise identical marks. The first
du Pont factor thus weighs in favor of a finding that confusion is likely.
B. Similarity of the Goods
We next consider the second du Pont factor, the similarity of the goods. The test
is not whether consumers would be likely to confuse the goods, but rather whether
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they would be likely to be confused as to their source. In re Anderson, 101 USPQ2d
1912, 1919 (TTAB 2012). Therefore, to support a finding of likelihood of confusion, it
is not necessary that the goods be identical or even competitive. It is sufficient that
the goods are related in some manner, or that the circumstances surrounding their
marketing are such that they would be encountered by the same persons in situations
that would give rise, because of the marks, to a mistaken belief that they originate
from the same source, or that there is an association or connection between the
sources. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
We disagree with the Examining Attorney’s contention that Applicant’s goods,
“beds for household pets,” are encompassed by Registrant’s “mattresses and pillows.”
Examiner’s Brief, 10 TTABVUE 7. No properly submitted evidence supports a finding
that pet beds are considered types of mattresses or pillows. To the contrary, Applicant
submitted a printout of the results of a search of the Trademark Acceptable
Identification of Goods and Services Manual (ID Manual) for the terms “bed” and
“mattress.” Search results included “dog beds,” “portable beds for pets,” and
Applicant’s identified goods, “beds for household pets,” but none associated pets with
the term “mattress.”5
Although the record does not establish that Applicant’s goods are encompassed
within Registrant’s identified goods, it does demonstrate that there is a relationship
between them. With the Final Office Action, subject to the evidentiary rulings supra,
the Examining Attorney submitted three examples of mattresses and dog beds offered

5 November 10, 2016 Response to Office Action, Exhibit C at TSDR 49-51.
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under the same marks: SEALY,6 SERTA,7 and TEMPUR-PEDIC.8 This evidence
shows that mattresses on the one hand and beds for household pets on the other are
goods of a kind that may emanate from the same source under the same mark. In our
likelihood of confusion analysis, the second du Pont factor also supports a finding that
confusion is likely.
C. Channels of Trade
We next consider the third du Pont factor, the similarity or dissimilarity of
established, likely-to-continue trade channels. Among the three examples submitted
by the Examining Attorney of dog beds offered under the same mark as mattresses,
only one appears to be sold through the same trade channel: the Serta “iComfort
Cuddler” pet bed shown in the record excerpt below.9

6 January 13, 2017 Final Office Action at TSDR 2, 9.
7 Id. at TSDR 3, 8.
8 Id. at TSDR 6-7.
9 Id. at TSDR 8. As noted supra, because the Examining Attorney’s evidence did not include
the URL, we assume without deciding that the bed is on a Serta website. In any event, the
bed is offered for sale near the SERTA mark on a website also offering mattresses.
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In contrast, TEMPUR-PEDIC dog beds are offered on what appears to be the Orvis
website, which is shown to offer other dog products but not mattresses or pillows:10

10 Id. at TSDR 7.
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Similarly, the “Sealy Premium Bolster Dog Bed” appears to be offered on the
PetSmart website along with other pet-related goods:11

In addition, Applicant submitted printouts of numerous pages from the websites of
mattress retailers Sleepy’s12 and Mattress Firm13 offering mattresses under many
brands but no pet beds.
We find the sole example of the respective identified goods available through the
same channel of trade insufficient to prove that the goods travel in the same
established, likely-to-continue trade channels. Considering the record as a whole, the
third du Pont factor therefore weighs against a finding that confusion is likely.

11 Id. at TSDR 9.
12 November 10, 2016 Response to Office Action, Exhibit A at TSDR 9-25 (from sleepys.com).
13 Id., Exhibit B at TSDR 26-48 (from mattressfirm.com).
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D. Strength of the Cited Mark
Finally, we address Applicant’s argument that, unlike the well-known mattress
marks featured in the Examining Attorney’s evidence (SEALY, SERTA, TEMPUR-
PEDIC): “There is no evidence of record that RESTOLOGIE enjoys the same level of
renown or familiarity in the mattress field.” Appeal Brief at 6, 8 TTABVUE 7. This
argument pertains to the fifth du Pont factor, the fame of the cited mark, and it is
unavailing. Strong marks are entitled to a broader scope of protection than weak
ones, but even weak marks are entitled to protection from registration by a
subsequent user of a confusingly similar mark for related goods. See, e.g., King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974);
Max Capital Grp., 93 USPQ2d at 1246. We find the fifth du Pont factor neutral.
III. Conclusion
We have considered all of the arguments and evidence properly of record as they
pertain to the relevant du Pont likelihood of confusion factors. To the extent that any
other du Pont factors for which no evidence was presented by Applicant or the
Examining Attorney may nonetheless be applicable, we treat them as neutral. We
have found that the first and second du Pont factors weigh in favor of a finding that
confusion is likely, the third factor weighs against such a finding, and the fifth factor
is neutral. On this record, we find that Applicant’s mark RESTOLOGY is likely to
cause confusion with the mark RESTOLOGIE in cited Registration No. 4640640
when used in association with “beds for household pets.”
Decision: The refusal to register Applicant’s mark is affirmed.