Enrich Int’l.

Trademark Trial and Appeal Board

May 29, 1997

EX (T.T.A.B. May. 29, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB May 29,1997
Paper No. 19
CEW
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Enrich International
___________
Serial No. 74/429,940
___________
A. John Pate, Esq., Berne S. Broadbent, Esq., and Michele K.
Nigliazzo, Esq. for applicant.
Steven R. Fine, Trademark Examining Attorney, Law Office 107
(Thomas Lamone, Managing Attorney).
____________
Before Rice, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Enrich International has filed a trademark application
to register the mark AEON and design, shown below, for “skin
lotions; skin cleansing lotions; skin moisturizers; skin
soaps; skin toner; skin emollients; skin creams; skin
cleansing creams; skin clarifiers; body lotions; body
Serial No. 74/429,940
2
creams; and night creams sold directly to home purchasers
and through independent home distributors.”1

The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark E’ON 5 and design, shown below and
previously registered for “cleansing creams, skin freshener,
night creams, facial finish, lipsticks, rouge, face powder,
and skin care lotions and creams,”2 that, if used on or in
connection with applicant’s goods, it would be likely to
cause confusion or mistake or to deceive.

1 Serial No. 74/429,940, in International Class 3, filed August 25,
1993, based on use of the mark in commerce, alleging dates of first use
and first use in commerce of June 1, 1993.
2 Registration No. 1,551,550 issued August 15, 1989, to International
Aesthetics, Inc., in International Class 3. Sections 8 and 15
affidavits accepted and acknowledged, respectively. The present owner
of record, by assignment recorded at the Patent and Trademark Office, is
ATM America Corporation.
Serial No. 74/429,940
3

Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
In a likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods. With regard to the
goods, we find that, as asserted by the Examining Attorney
and not contested by applicant, applicant’s goods are
identical to some of the goods identified in the cited
registration, and closely related to the remaining goods
identified therein. Applicant has limited the channels of
trade for its goods to direct sales to home purchasers and
sales through independent home distributors. However, the
pleaded registration is broadly worded and contains no
limitations to the identification of goods. Therefore, we
must presume that the goods of the registrant are sold in
all of the normal channels of trade to all of the normal
purchasers for goods of the type identified, which would
include direct sales to home purchasers and sales through
independent home distributors. See Canadian Imperial Bank
v. Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
Serial No. 74/429,940
4
1987). Thus, the limitation to applicant’s identification
of goods does not adequately distinguish its goods from
those of registrant.
Turning our consideration to the similarities between
the marks, we begin with the premise that “when marks would
appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Further, we are cognizant of the well
established principle that one who adopts a mark similar to
the mark of another for the same or closely related goods or
services does so at his own peril, and any doubt as to
likelihood of confusion must be resolved against the
newcomer and in favor of the prior user or registrant. W.R.
Grace & Co. v. Herbert J. Meyer Industries, Inc., 190 USPQ
308 (TTAB 1976).
The Examining Attorney contends that the marks are
confusingly similar because the word portions of the
respective marks are dominant; the E’ON portion of
registrant’s mark would be perceived as equivalent to the
word EON, which is a variant spelling of the word AEON;3 the
AEON portion of applicant’s mark would be pronounced the

3 The Examining Attorney submitted a copy of a dictionary definition of
AEON as “1: an immeasurably or indefinitely long period of time; 2: a
unit of time equal to one billion years - used in geology”; and a
Serial No. 74/429,940
5
same as the E’ON portion of registrant’s mark;4 and E’ON is
not a recognizable contraction of another word and, even if
it is, it is likely that it would still be pronounced the
same as EON or AEON.
On the other hand, applicant contends that the marks
differ significantly in their entireties and claims that the
Examining Attorney has failed to properly consider the
different design elements of the two marks, the number “5”
in registrant’s mark, and the apostrophe in registrant’s
mark (i.e., E’ON). Applicant contends that the apostrophe
in registrant’s mark is critical as it implies additional
letters in the place of the apostrophe so that E’ON would be
perceived as a totally different word than either EON or
AEON.5 In particular, applicant refers to material
allegedly from the PTO file for the cited registration and
states that the packaging for registrant’s products
indicates that registrant’s products are marketed to the
African American community and that “E’ON is probably

definition of EON as “var[iation] of AEON.” Webster’s Ninth New
Collegiate Dictionary (undated copy).
4 The previously referenced dictionary definition shows identical
pronunciations of AEON and EON, both beginning with a long “e” sound,
thus, the “a” in AEON is silent.
5 Both applicant, with its second request for remand, and the Examining
Attorney, with his brief, submit definitions of “apostrophe.” As the
definitions are essentially the same, we take judicial notice of the
definition contained in The Random House Unabridged Dictionary, 2d Ed.
(undated copy), as it is more expansive: “n. the sign (‘) as used: to
indicate the omission of one or more letters in a word, whether
unpronounced, as in o’er, or pronounced, as in gov’t for government; to
indicate the possessive case, as in man’s; or to indicate plurals of
abbreviations and symbols, as in several M.D.’s, 3’s.”
Serial No. 74/429,940
6
intended to evoke “ebon,” which means “ebony.”6
Additionally, applicant suggests that the E’ON portion of
registrant’s mark may be perceived as referring to vitamin E
on the skin.7
While we agree with applicant that the marks must be
viewed in their entireties, it is equally true that, in
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.” In re National Data Corp., 732 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). We conclude that E’ON is
the dominant portion of registrant’s mark. The number “5”
in registrant’s mark E’ON 5 is likely to be perceived as a
style or grade designation, emphasizing the primary
significance of the word E’ON. Likewise, we conclude that
AEON is the dominant portion of applicant’s mark. The word
portion of a mark comprised of both a word and a design is
normally accorded greater weight because it would be used by
purchasers to request the goods. In re Appetito Provisions
Co., 3 USPQ2d 1553, 1554 (TTAB 1987); and Kabushiki Kaisha

6 Applicant submitted a copy of a definition of “ebon” as “1. Made of
ebony. 2. Black - n. Ebony” and of “ebony” as “2. Black”. Webster’s II
New Riverside University Dictionary (1984).
7 In support thereof, applicant submits a copy of an article about skin
lotions from Consumer Reports, November 1986 edition, stating that
Serial No. 74/429,940
7
Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985).
Such a conclusion is warranted in this case as the abstract
design above the word AEON in applicant’s mark is
significantly smaller than the word portion of the mark.
With regard to both applicant’s and registrant’s marks, the
stylized scripts in which the marks appear have minimal
impacts on the overall impressions of the respective marks.
We are not convinced by applicant’s arguments that the
apostrophe in the E’ON portion of registrant’s mark
distinguishes the term significantly from the term EON. As
we are determining registrability in an ex parte context
herein, applicant’s contentions that registrant’s evidence
submitted as specimens during the application pendency of
the cited registration are not relevant to our
consideration. Rather, we must consider the marks in
connection with the goods identified in the registration.
The registration contains no language limiting or connecting
the goods identified therein to goods for use by African
Americans or people of any skin color or tone. In the
absence of persuasive evidence that the consuming public is
likely to perceive the term E’ON as a contraction of, or a
reference to, the word “ebony,” we believe that E’ON is
likely to be perceived as the same word as EON or as an
insignificantly different variation thereof. In view of the

“Vitamin E has been touted for years as having special properties for
the skin.”
Serial No. 74/429,940
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dictionary definition of EON as merely a variation of AEON,
with the identical pronunciation and meaning, we find the
word portion of applicant’s mark, AEON, to be essentially
identical to the word portion of registrant’s mark, E’ON.8
Further, the test of likelihood of confusion is not
whether the marks can be distinguished when subjected to a
side-by-side comparison. The issue is whether the marks
create the same overall commercial impression, which we have
found to be the case herein. Visual Information Institute,
Inc. v. Vicon Industries Inc., 209 USPQ 179 (TTAB 1980).
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, AEON and design, and registrant’s mark, E’ON 5 and
design, their contemporaneous use on the same and closely
related goods involved in this case is likely to cause
confusion as to the source or sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.
J. E. Rice

8 The identity of the word portions of the two marks, AEON and E’ON, is
not mitigated by a possibility, suggested by applicant, that
registrant’s mark may be perceived by some consumers as suggesting the
use of vitamin E on the skin. Even if E’ON had such a connotation,
which is not established herein, in view of the identity of
pronunciation of the two words, AEON and E’ON, the same suggestive
quality would be equally applicable to applicant’s mark and, thus, would
not distinguish the two marks.
Serial No. 74/429,940
9
G. D. Hohein
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board