Fashion Box S.P.A.

Trademark Trial and Appeal Board

Oct 6, 2015

No. 86051465 (T.T.A.B. Oct. 6, 2015)

This Opinion is Not a
Precedent of the TTAB

Hearing: September 16, 2015 Mailed: October 6, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Fashion Box S.P.A.
_____

Serial No. 86051465
_____

Keith A. Weltsch of Scully, Scott, Murphy & Presser, P.C.,
for Fashion Box S.P.A.
Greta Yao, Trademark Examining Attorney, Law Office 118,
Thomas Howell, Managing Attorney.
_____

Before Seeherman, Mermelstein and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Fashion Box S.P.A. (“Applicant”) seeks registration on the Principal Register of
the mark RS RED SEAL and design, shown below, for “men's clothing, namely,
denim pants, denim shirts, denim jackets, jeans, trousers, jackets, sweaters, shorts,
polo-shirts, T-shirts, sweatshirts, coats, belts, hats, bucket caps, caps with visor,
sports caps, skull caps, knot caps, swim caps,” in International Class 25.1

1 Application Serial No. 86051465 was filed on August 29, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 86051465
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Applicant described its mark as follows:
The mark consists of a circular design in red with the
words "RED SEAL" in large black stylized letters on the
top edge of the circle, and the words "THE ORIGIN" in
smaller black letters on the bottom edge of the circle, all
of which surround a smaller black circle drawn in the
middle of the design, inside of which contain the letters
"RS" in large black stylized characters.
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the previously registered mark RED
SEAL (standard character format) for “carry-all bags, leather pouches, rucksacks,
duffle bags, travel bags, tool bags sold empty, backpacks, purses, trunks, suitcases,
garment bags for travel, billfolds, wallets, harnesses, leather bags, leather bag
laces, valises,” in Class 18, as to be likely to cause confusion.2
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all of the
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

2 Registration No. 3978673; issued June 14, 2011.
Serial No. 86051465
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USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the services. 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. The similarity of dissimilarity and nature of the goods.
To prove that the goods in the application and the cited registration are related,
the Trademark Examining Attorney submitted third-party trademark registrations
and excerpts from third-party websites showing the same mark used to identify the
goods listed in the application and the cited registration.
1. Third-party registrations
The Trademark Examining Attorney submitted 25 copies of use-based, third-
party registrations for goods listed in both the application and the cited
registration.3 Third-party registrations which individually cover a number of
different goods that are based on use in commerce may have some probative value
to the extent that they serve to suggest that the listed goods are of a type which

3 We did not consider Registration No. 3467807 for the mark PUNKYSISTERS or
Registration No. 4404888 for the mark MONCRIEF because they were filed under Section
44 and they were not based on use.
We did not consider Registration No. 3060358 for the mark HARVEYS because the clothing
products set forth in Class 25 goods were cancelled.
Finally, we note that Eddie Bauer, Swissbrands, and Pink Dolphin Clothing each owned
two of the registrations submitted by the Trademark Examining Attorney.
Serial No. 86051465
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may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988). The registrations listed in the table below are
representative.4 We point out that the majority of the registrations are for
“ordinary,” as opposed to “designer” marks.5 We recognize that designer name
marks may be licensed for a broader range of unrelated goods and services, and
therefore that registrations for such marks may be of less probative value to show
that goods and services are related. See Helene Curtis Indus. Inc. v. Suave Shoe
Corp., 13 USPQ2d 1618, 1624 (TTAB 1989) (“In considering this [third-party
registrations and exhibits], we have kept in mind defendant's observation that the
link between personal care products and wearing apparel is generally apparent in
the category of so-called designer or high-fashion marks, and usually involves the
names of well-known designers.”).
MARK REG. NO. GOODS

WARMBLOOD 3617554 Carryall bags, duffel bags, travel bags,
backpacks, purses, suitcases, garment
bags, rucksacks, wallets, leather bags

Jeans, jackets, sweaters, shorts, t-shirts,
sweatshirts, belts, hats, caps,

4 Only the goods that appear in both Applicant’s application and Registrant’s registration
are listed in the table.
5 Applicant contends that “the Examining Attorney included evidence from well-known
clothing companies which allegedly establish that certain types of men’s wear covered by
Applicant’s pending application would be related to different types of Class 18 goods
included in the cited registration” as it applies to the third-party registrations. 4 TTABVUE
12. To the extent that Applicant argues that these registrations are not probative, we
disagree. The fact that a well-known clothing company uses its marks for both clothing and
Class 18 goods does not affect the probative value of such registrations.
Serial No. 86051465
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MARK REG. NO. GOODS

HALV 4183962 Carryall bags, duffel bags, travelling
bags, backpacks, leather pouches, purses,
trunks, suitcases, wallets, harnesses,
leather bags

Denim jackets, jackets, trousers, shorts,
polo shirts, t-shirts, sweatshirts, coats,
belts, hats, caps, swim caps

AEROMOZA BY
PASSION GITANA
4230703 All purpose carrying bags, namely duffel
bags, backpacks, trunks, travelling bags,
wallets, and purses

T-shirts, jackets, coats, sweaters, shorts,
jeans, belts, hats and caps

ANNELORE 4136923 Trunks, suitcases, travelling bags,
garment bags, backpacks, purses, wallets

Polo shirts, trousers, jeans, denim jeans,
sweatshirts, sweaters, jackets, coats,
hats, shorts

4098799 Trunks, garment bags, duffel bags,
carryall bags, backpacks, purses, wallets,
rucksacks

Jeans, t-shirts, sweatshirts, shorts,
jackets, sweaters, hats, caps, belts

2. Third-party websites
The Trademark Examining Attorney submitted excerpts from six third-party
websites to show that entities have adopted the same mark for the clothing listed in
the application and the various types of luggage, wallets, etc. listed in the cited
registration. A close inspection of this evidence reveals, however, that three of the
websites are designer labels. As noted above, such marks may be licensed for a
Serial No. 86051465
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broader range of goods and services which are otherwise unrelated, and therefore
they may be of less probative value to show that goods and services are related. Cf.
In re Donnay International Societe Anonyme, 31 USPQ2d 1953, 1954 n.3 (TTAB
1994); ); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d at 1470 n.6 (discounting the
evidentiary value of third-party registrations from an amusement park and a
department store where a wide variety of goods and services are sold).
The remaining three third-party websites are listed below:
a. J. Crew website (jcrew.com) advertising the sale of wallets and purses
and sweaters, t-shirts, denim pants, and shorts;6
b. Coach website (coach.com) advertising the sale of purses, wallets, coats
and jackets;7
c. Bonobos website (bonobos.com) advertising the sale of, inter alia, duffel
bags, backpacks, pants, and shirts.8
We distinguish the J. CREW and COACH house marks from designer labels. As
noted above, designer labels may be used on a wide variety of unrelated products
sold through diverse channels of trade. However, websites for house marks are
probative that the products advertised on a particular website can be found in one
place and that consumers could purchase the goods there.
Applicant argued that the website evidence does not show the relatedness of
men’s clothing and bags because the websites feature only women’s clothing.9

6 October 11, 2013 Office Action.
7 Id.
8 March 24, 2014 Office Action.
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However, the above-noted websites advertise the sale of pants, suits, shirts, travel
bags, duffel bags, carryall bags, backpacks, and wallets to both men and women.
While Applicant acknowledges that “there might be a slight relationship
between the goods covered by the registered mark in the abstract and clothing in
the abstract,” it argues that the evidence is not sufficient to prove that the relevant
public would encounter both marks under circumstances likely to give rise to the
mistaken belief that the goods emanate from a single source. In other words,
Applicant contends that the Examining Attorney has not established that the same
consumers would encounter both marks.10 We disagree. While we acknowledge that
the evidence of three websites alone might not be sufficient to show that men’s
clothing and various types of luggage, wallets, etc. are related, they add support to
the evidence of the third-party registrations, and the evidence in its totality is
sufficient for us to find that the goods are related.
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
We now turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, “two marks may be found to be confusingly
similar if there are sufficient similarities in terms of sound or visual appearance or
connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d

9 7 TTABVUE 10.
10 4 TTABVUE 12-13.
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1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) (citation
omitted). See also Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519
(TTAB 2009).
In comparing the marks, we are mindful that “[t]he 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 between the parties.” Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012). See also San Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v.
Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed.
Cir. 1992). The proper focus is on the recollection of the average customer, who
retains a general rather than specific impression of the marks. L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Industries, Inc. v. Oliver
& Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975). Since the goods at issue are clothing and
various types of luggage, wallets, etc., the average customer is an ordinary
consumer.
As indicated above, Applicant is seeking to register the mark RS RED SEAL and
design, shown below, and the registered mark is RED SEAL in standard characters.
Serial No. 86051465
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The marks are similar because they both include the arbitrary term “Red Seal”
and different because Applicant’s mark includes the initials RS, a circular design
which engenders the commercial impression of a red seal as evidenced by the
concentric rings, and the term “The Origin.”
With respect to the letters RS, we note that they appear in the center of the red
seal design and in the largest font. On one hand, because the letters RS are visually
prominent, they might be considered the dominant feature of Applicant’s mark. On
the other hand, however, the letters “RS” are likely to be viewed as an abbreviation
for the term RED SEAL appearing directly above the letters RS. See In re Mighty
Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (“ML is likely to be
perceived as a shortened version of ML MARK LEES when used on the same or
closely related skin care products.”); In re TSI Brands Inc., 67 USPQ2d 1657, 1661-
62 (TTAB 2002) (customers will perceive the letters AK in applicant’s mark AK
AMERICAN KHAKIS and design as standing for the term “American Khakis”
which is substantially different from the cited AK and design marks which are
highly stylized and “have nothing in common with applicant’s mark.”). Thus, the
letters RS do not distinguish Applicant’s mark from the cited mark, since because
they appear in a red seal they reinforce the commercial impression of a red seal.
Serial No. 86051465
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With respect to the pronunciation of the mark, we cannot say with certainty
whether consumers will refer to the mark as RS or as RED SEAL. Certainly either
pronunciation is reasonable, and therefore we must assume that at least some
consumers will pronounce the mark identically to the cited mark.
As for connotation and commercial impression, “[i]t has frequently been held
that a picture and the word that describes the picture have the same effect and
must be treated as legal equivalents in proceedings such as this.” In re Duofold, 184
USPQ 638, 640 (TTAB 1974) (the representation of a golden eagle is similar to
EAGLE). Thus, we find that Applicant’s pictorial representation of a red seal and
the registered mark RED SEAL conjure up the same mental image, meaning and
commercial impression. In other words, Applicant’s red seal design reinforces the
commercial impression engendered by the term RED SEAL. See In re Wilson, 57
USPQ2d 1863, 1865 (TTAB 2001) (PINE CONE BRAND and the design of pine
cones and fruit is similar to PINE CONE in part because “the illustration of the
pine cones merely reinforces the dominance of the arbitrary designation PINE
CONE.”); In re Shipp, 4 USPQ2d 1174, 1175 (TTAB 1987) (PURITAN and the
design of a woman in a Puritan costume is similar to PURITAN); In re Kangaroos
U.S.A., 223 USPQ 1025 (TTAB 1984) (BOOMERANG is similar to BOOMERANG
and a swirl-like design); Arrow-Hart, Inc. v Yazaki Corp, 169 USPQ 249, 250 (TTAB
1971) (ARROW and arrow design is similar to ARROW).
We acknowledge that Applicant’s mark also includes the term “The Origin.”
Applicant concedes that “The Origin” is less prominent than the letters RS and less
Serial No. 86051465
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likely to resonate with consumers.11 Because of the manner in which it appears, on
the lower part of the outer circle, it conveys the impression of being informational or
a motto, and rather than distinguishing the marks, merely reinforces the
significance of the mark as a red seal.
Applicant argues that the Trademark Examining Attorney has improperly
dissected the mark by placing too much emphasis on the term RED SEAL.12
In the present case, the registered mark is only comprised
of the wording RED SEAL. By comparison, a consumer
looking at Applicant’s mark will notice not just the RED
SEAL wording, but also, the red color contained in the
stylized mark, as well as the RS lettering and the phrase
“the origin”. The fact that Applicant’s mark contains all of
these additional elements makes it highly unlikely that a
typical consumer would look at Applicant’s mark, and
solely remember the RED SEAL element contained
therein when making a comparison to the registered
mark, which would tend to make confusion between the
marks highly unlikely. Further to this point, a consumer
asking for clothing sold under Applicant’s brand is just as
likely to ask for RS jeans as s/he theoretically might be
inclined to ask for RED SEAL jeans.13
We disagree. As noted above, the red seal design and the letters RS reinforce the
term RED SEAL. Rather than distinguishing the marks, the additional elements in
Applicant’s mark merge to form a single composite mark which consumers will
remember as the red seal. Regardless of the differences which might be apparent in
a side-by-side comparison, both marks engender the commercial impression of a red
seal. The fact that Applicant’s mark may not be identical to the registered mark in

11 4 TTABVUE 10.
12 4 TTABVUE 8-9.
13 4 TTABVUE 9.
Serial No. 86051465
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all details is less important to our analysis than the basic similarity arising from
the fact that both marks engender the same meaning and commercial impression.
At oral argument and in support of its position that the marks are not similar,
Applicant referenced In re Covalinski, 113 USPQ2d 1166 (TTAB 2014), which was
decided after the close of briefing. In Covalinski, the applicant sought to register the
mark REDNECK RACEGIRL and design, shown below, for “athletic apparel,
namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms.”

The Trademark Examining Attorney refused registration on the ground of
likelihood of confusion with RACEGIRL (in standard characters) for clothing,
including shirts, jackets, caps and hats. The Board found that the marks were not
similar because (i) the display of the letters RR “draw attention to the letters apart
from the wording,” (ii) the display of the mark makes the word “Racegirl” hard to
notice and (iii) the visual impression is the most important feature of the mark. Id.
at 1168. In view thereof, the Board found that “the overall commercial impression of
Applicant's mark is dominated by its design features, particularly the large double-
letter RR configuration.” Id. at 1169.
In the case before us, the display of the letters RS does not draw the viewer’s
attention to the letters apart from any other element of the mark. In that respect,
Serial No. 86051465
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the term “Red Seal” is clearly visible and constitutes an important feature of the
mark. Unlike in Covalinski, where the letters RR dominated the commercial
impression of the mark, in this case, the letters RS and the seal-like design
reinforce the term “Red Seal.”
Applicant also cited In re Electrolyte Laboratories Inc., 929 F.2d 645, 16 USPQ2d
1239 (Fed. Cir. 1990) for the proposition that that “there is no general rule as
whether letters or designs will dominate in composite marks; nor is the dominance
of letters or design dispositive of the issue.” 16 USPQ2d at 1240.14 In Electrolyte
Labs, the applicant sought to register the mark K+ and design for a dietary
potassium supplement. The Trademark Examining Attorney cited the registered
mark K+EFF for the same goods as a bar to registration, and the Board affirmed
the refusal. The court held that the Board erred in focusing on K+ as the dominant
element of both marks because the design elements in the applicant’s mark
comprised a significant feature of the mark and the letters EFF in the registered
mark were also significant. Accordingly, the court held that “[a]lthough the symbols
and abbreviations can be pronounced, they are not identical, and the design of the
marks is substantially different.” Id.
As indicated above, in the case before us, the main features of Applicant’s mark
reinforce the term “Red Seal.” In view of the foregoing, we find that marks are
similar in appearance, sound, connotation and commercial impression.

14 4 TTABVUE 8.
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C. “The wording RED SEAL is very commonly used for a variety of products.”15
Applicant argues that “the wording RED SEAL has been used by a multitude of
different entities in a variety of fields,” citing third-party registrations Applicant
submitted with its March 10, 2014 Response to an Office Action.
Of note are the registrations for HONG BAU (which when
translated means RED SEAL) for use with wine and
liquor in Class 33 (Reg. No. 3,027,759), RED SEAL for use
with paint in Class 2 (Reg. No. 2,601,840), RUEDRICH'S
RED SEAL ALE HAND MADE SINCE 1987
MENDOCINO COUNTY NORTH COAST BREWING
COMPANY for use with beer in Class 32 (Reg. No.
2,009,351), a separate registration for RED SEAL in Class
34 for snuff (Reg. No. 527,124), in addition to all of the
other RED SEAL registrations attached to Applicant’s
response to the first non-final Office Action.16
Extensive evidence of third-party use may be probative in showing that a term is
weak and that customers have been educated to distinguish between different
marks on the basis of small distinctions. See Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., ___F.3d___,
___USPQ2d___, No. 14-1789 (Fed. Cir. Aug. 19, 2015); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015). In this case,
Applicant has not provided any evidence of third-party use. The third-party
registrations are not evidence of use of the marks. See also Olde Tyme Foods Inc. v.

15 4 TTABVUE 10. The relevant du Pont factor is “the number and nature of similar marks
in use on similar goods.” 77 USPQ at 567. However, third-party registrations unsupported
by evidence of use have little probative value in proving that a mark is weak and, therefore,
entitled to only a narrow scope of protection or exclusivity of use. See Olde Tyme Foods Inc.
v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a
mark, however, registration evidence may not be given any weight”); AMF Inc. v. American
Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); Lilly Pulitzer, Inc.
v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (C.C.P.A. 1967).
16 4 TTABVUE 10-11.
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Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to
strength of a mark, however, registration evidence may not be given any weight.”);
Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA
1973) (the purchasing public is not aware of registrations reposing in the U.S.
Patent and Trademark Office). However, third-party registrations may be used in
the manner of dictionary definitions, to show that a term has been adopted by
various registrants because it has a suggestive significance. The Institut National
des Appellations D’Origine v. Vintners International Co. Inc., 958 F.2d 1574, 22
USPQ2d 1190, 1196 (Fed. Cir. 1992); Interstate Brands Corp. v. Celestial
Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 153 (CCPA 1978). In the present
case, the third-party registrations have little probative value because none is for the
goods in either the application or the cited registration. See In re Thor Tech Inc., 90
USPQ2d 1634, 1639 (TTAB 2009) (the third-party registrations are of limited
probative value because the goods identified in the registrations appear to be in
fields which are far removed from the goods at issue). See also Key Chemicals, Inc.
v. Kelite Chemicals Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is
our conclusion altered by the presence in the record of about 40 third-party
registrations which embody the word “KEY”. The great majority of those registered
marks are for goods unrelated to those in issue, and there is no evidence that they
are in continued use. We, therefore, can give them but little weight in the
circumstances present here”); In re Melville Corp., 18 USPQ2d 1386, 1388-89 (TTAB
1991) (“Registrations for goods unrelated to the clothing field are irrelevant to our
Serial No. 86051465
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discussion.”); Sheller-Globe Corporation v. Scott Paper Company, 204 USPQ 329,
336 (TTAB 1979) (“we need not comment on the third-party registrations placed in
the record by applicant save to note that they pertain to completely unrelated goods
and are therefore irrelevant.”). We certainly cannot conclude from the four third-
party registrations made of record by Applicant, for goods in such removed fields as
tobacco products, alcoholic beverages and paint, that RED SEAL has a readily
understood meaning in connection with luggage and the other products listed in the
cited registration, and men’s clothing, such that consumers would look to other
elements of Applicant’s mark to distinguish it from the Registrant’s.
D. Balancing the factors.
Because the marks are similar and the goods are related, we find that
Applicant’s mark for “men's clothing, namely, denim pants, denim shirts,
denim jackets, jeans, trousers, jackets, sweaters, shorts, polo-shirts, T-shirts,
sweatshirts, coats, belts, hats, bucket caps, caps with visor, sports caps, skull caps,
knot caps, swim caps” is likely to cause confusion with the registered mark RED
SEAL for “carry-all bags, leather pouches, rucksacks, duffle bags, travel bags, tool
bags sold empty, backpacks, purses, trunks, suitcases, garment bags for travel,
billfolds, wallets, harnesses, leather bags, leather bag laces, valises.”
While this conclusion is not without doubt, any doubt must be resolved in favor
of the prior registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d
Serial No. 86051465
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1025 (Fed. Cir. 1988); In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565,
223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register Applicant’s mark is affirmed.