Fuhu, Inc.

Trademark Trial and Appeal Board

Aug 28, 2013

No. 85363558 (T.T.A.B. Aug. 28, 2013)

Mailed: August 28, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fuhu, Inc.
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Serial No. 85363558
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Michael I. Shokrian of the Law Offices of Michael Isaac Shokrian for Fuhu, Inc..
Renee McCray, Trademark Examining Attorney, Law Office 111 (Robert L. Lorenzo,
Managing Attorney).
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Before Taylor, Lykos, and Masiello, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:

On July 5, 2011, Fuhu, Inc. (“applicant”) filed an application to register the
mark UNDER 20 in standard character format for “online retail store services
featuring a wide variety of consumer goods of others” in International Class 35.1
The Trademark Examining Attorney 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 registered mark displayed below2

1 Application Serial No. 85363558, filed pursuant to Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).
2 Registration No. 3787526, registered on May 11, 2010, based on Section 66A of the
Trademark Act. Color is not claimed as a feature of the mark.
This Opinion is Not a
Precedent of the TTAB
Serial No. 85363558
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that when used on or in connection with applicant’s identified services, it is likely to
cause confusion or mistake or to deceive. The registration includes a disclaimer of
the wording “UNDER TWENTY” and is for the following goods:
Cosmetics; cosmetic creams, emulsions, lotions, gels, skin oils and
balsams for skin; soaps; non-medicated wash and bath preparations;
hair cleaning and hair care preparations; perfumery products, namely,
perfumes; toilet waters and eau de colognes; essential oils; body
deodorants and anti-perspirants; make-up and make-up removing
preparations; non-medicated lip care and lip make-up preparations; nail
care and nail colouring preparations; non-medicated intimate hygiene
preparations; suntan preparations and preparations protecting against
UV; self-tan preparations; depilatory preparations; non-medicated
make-up powders; non-medicated after-bath powders; non-medicated
hygienic powders; dentifrices and preparations for oral cavity care,
namely, mouth washes, not for medicinal purposes; breath freshening
sprays; toothpaste; toiletries, namely, non-medicated toiletries in
International Class 3; and

Creams, emulsions, liquids, gels, for medical purposes; medicinal oils
and balsams, bath salts for medical use, and medicated bath
preparations in International Class 5.

The examining attorney has also refused registration under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that UNDER TWENTY is
merely descriptive of applicant's identified services.
Upon final refusal of registration, applicant filed a request for reconsideration
and timely appeal. Both applicant and the examining attorney filed briefs. For the
reasons explained below, we affirm both refusals to register.
Serial No. 85363558
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I. Section 2(e)(1) – Descriptiveness Refusal
We first turn our attention to the refusal under Section 2(e)(1) that applicant's
mark is merely descriptive of the identified services, “online retail store services
featuring a wide variety of consumer goods of others.”
A term is merely descriptive if it immediately conveys knowledge of a significant
quality, characteristic, function, feature or purpose of the products it identifies. See,
e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219
(Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987). Determining the descriptiveness of a mark is done in relation to an
applicant’s goods and/or services, the context in which the mark is being used, and
the possible significance the mark would have to the average purchaser because of
the manner of its use or intended use. See In re The Chamber of Commerce of the
U.S., supra, citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007)). Descriptiveness of a mark is not considered in the
abstract. In re Bayer Aktiengesellschaft, 82 USPQ2d at 1831. In other words, the
question is whether someone who knows what the services or products are will
understand the mark immediately to convey information about them. In re MBNA
America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003).
Based on the evidence of record, we find that applicant's mark, UNDER
TWENTY, when considered in relation to the identified services, immediately
informs prospective purchasers that applicant’s online retail store services feature
products selling for less than or under twenty dollars.
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The dictionary definitions submitted by the examining attorney support this
finding. The word “under” is defined as “below or short of some quantity, level
or limit <$10 or under>” and the word “twenty” is defined as either the number
twenty or “a twenty dollar bill.” See definitions of “under” and “twenty” obtained
from the Merriam-Webster Dictionary online at www.merriam-webster.com
(September 11, 2011 Office Action).
Our determination is confirmed by applicant’s affirmative response to the
examining attorney’s inquiry as to whether applicant’s online retail store services
will feature merchandise priced under twenty dollars. Applicant’s Request for
Reconsideration (June 22, 2012). As applicant further elaborated:
Applicant intends to work with consumer brands and/or partners to offer
certain products for Under $20, somewhat similar to the brick and mortar
“99 cent” stores. The products offered for under $20 would be based on
data points that Applicant would capture from the user. For example, if
Jane Doe is a female between the ages of 30-40, is an Android® user, and
a business professional, Applicant’s online retail store may offer to Jane a
$19 stylus for a tablet computer.

See id. A mark is merely descriptive even if it only describes one significant
function, attribute, or property of the goods or services. In re Oppedahl & Larson
LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004). Applicant’s statements
describing its online retail store emphasize that the price point is a significant
attribute of the services. Indeed, the following advertising slogans from third-party
websites showing use of the term by competitors promoting the sale of merchandise
for less than twenty dollars lend further support to the determination that
applicant’s mark is merely descriptive: Sears website, www.sears.com, “BEYBLADE
Serial No. 85363558
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KEYCHAIN FOR UNDER 20 DOLLARS” and “CORONA SHIRT UNDER 20
DOLLARS”; Walmart website, www.walmart.com, “CLOTHES UNDER 20
DOLLARS”; Vermont Country Store website, www.vermontcountrystore.com,
“GREAT DEALS UNDER $20.” See Denial of Applicant’s Request for
Reconsideration (December 23, 2011). This, coupled with applicant’s concession in
its brief that its mark is “directed to an online website featuring goods less than
$20” (Applicant’s Brief, p. 17) and confirmed by the disclaimer of the wording
“UNDER TWENTY” in the cited registration in support of the 2(d) refusal, also
establish the descriptive nature of the mark.
Applicant asserts that a merely descriptive mark for its identified services would
be a mark such as “store,” “online store,” “retail store,” “on-line retail store” or
“online store selling the goods of others” as opposed to applicant’s applied-for mark
UNDER TWENTY. Applicant confuses the test for genericness with the test for
mere descriptiveness. A proposed mark is a generic name if it refers to the class or
category of goods and/or services on or in connection with which it is used. In re
Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001),
citing H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782
F.2d 987, 228 USPQ 528 (Fed. Cir. 1986). Clearly the hypothetical marks offered
above by applicant such as “store,” “online store” would be generic for applicant’s
identified services. This however is not the test for descriptive marks. As explained
earlier, a term is merely descriptive if it immediately conveys knowledge of a
Serial No. 85363558
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significant quality, characteristic, function, feature or purpose of the products it
identifies. See In re Chamber of Commerce of the U.S., supra.
Applicant also argues that the mark UNDER TWENTY has “numerous
meanings” such as a unit of measurement, unit of length, or age and that the
services identified in the involved application do not provide a clear context as to
what the terms “UNDER” and “TWENTY” are referring to. Applicant contends that
until the consumer is actually using the online retail services, he/she would not
understand that the mark refers to merchandise under twenty dollars but may
instead ascribe other meanings to the mark, for example, that the online store sells
products that are “twenty feet under-ground; under twenty feet tall; directed to
people nineteen years and younger; under twenty pounds; under twenty thousand
dollars; under twenty cents.” Applicant’s Brief, p. 16. This argument is
unpersuasive. The question of whether a proposed mark is merely descriptive is not
determined by asking whether one can guess, from the mark itself, what the goods
or services are, but rather by asking, when the mark is seen on or in connection
with the goods or services, whether it immediately conveys information about their
nature. See In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539 (TTAB
1998). See also In re The Chamber of Commerce of the U.S., supra. In other words,
the issue is whether someone who knows what the products are will understand the
mark to convey information about them. See In re MBNA America Bank N.A.,
supra. See e.g., In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); In
re Patent & Trademark Serv. Inc., 49 USPQ2d at 1539. Applicant’s recitation of
Serial No. 85363558
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services is sufficiently broad to encompass services that include the online sale of
merchandise less than twenty dollars in price. Hence upon encountering applicant’s
online retail services, prospective consumers will immediately understand that the
proposed mark UNDER TWENTY refers to the price of the goods sold for less than
twenty dollars.
Applicant also points to the registration of other third-party marks as evidence
that its applied-for mark is not merely descriptive. With the exception of
Registration No. 3369328, for the design mark MOST UNDER $10. NOTHING
OVER $20 for jewelry and watches, the other marks applicant relies upon are so
different in appearance, sound and commercial impression in comparison to
applicant’s applied-for mark that they do not merit consideration. See e.g.
Registration No. 3454871 for the mark THE PAK, in connection with purses and
bags. Moreover, because the wording MOST UNDER $10. NOTHING OVER $20 is
disclaimed, this registration actually undercuts applicant’s position and bolsters the
examining attorney’s determination that applicant’s mark is merely descriptive.
Thus, based on the record evidence discussed above, we find that the examining
attorney has met her burden of proof of demonstrating that applicant’s mark
UNDER TWENTY is merely descriptive.
II. Section 2(d) Refusal
Next, we consider the refusal to register applicant’s mark UNDER 20 under
Section 2(d). We base our determination under Section 2(d) on an analysis of all of
the probative evidence of record bearing on a likelihood of confusion. In re E. I. du
Serial No. 85363558
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Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du
Pont”).3 See also, In re Majestic Distilling Company, Inc., 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 and/or services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We shall consider these and other
relevant factors argued by applicant.
A. The Goods and Services/Trade Channels
First, we compare the goods and services as well as the channels of trade.
Applicant argues that its online retail store services will not feature registrant’s
anti-aging cosmetics and creams but will instead feature products costing less than
twenty dollars offered individually to each user based on data points comprising the
user’s age, gender and product preferences. In addition, applicant contends that the
trade channels are distinct, pointing to the fact that registrant’s anti-aging
cosmetics and creams are sold exclusively from a single website.
Applicant’s arguments are unconvincing. While applicant may in fact not
intend to sell registrant’s brand of anti-aging cosmetics and creams (or for that
matter any brand of cosmetics and creams), the scope of registrant’s services must
be determined on the basis of the recitation as set forth in the registration. See, e.g.,
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1370, 101 USPQ2d

3 Applicant mistakenly relies upon the Ninth Circuit decision’s in AMF, Inc. v. Sleekcraft
Boats, 599 F.2d 341 (9th Cir. 1979) as the seminal case for the likelihood of confusion
analysis.

Serial No. 85363558
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1713, 1722 (Fed. Cir. 2012); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d
1261, 1267, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). In addition, it is well
established that consumers are likely to be confused by the use of similar marks on
or in connection with retail services featuring said goods. See In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S for
retail grocery and general merchandise store services likely to be confused with
BIGGS for furniture). Applying these principles to the case before us, the wording
“consumer goods” in applicant’s recitation of services of “online retail store services
featuring a wide variety of consumer goods of others” is, to state the obvious,
sufficiently broad to encompass registrant’s more specifically identified cosmetics
and creams. In addition, the examining attorney has made of record third-party
registrations that demonstrate that the same entity may provide retail store
services and cosmetics and creams. See e.g., Registration No. 3385583, OUR
EARTH REVOLVES AROUND YOU for, in pertinent part, body oils, cosmetic oils,
massage oils, nail strengtheners, skin conditioners, skin lotion, skin moisturizer
and retail store services featuring a wide variety of consumer goods of others;
Registration No. 4015452, BRONSON for, in pertinent part, anti-wrinkle creams,
body cream, body milks, cosmetic preparations for body care, essential oils for
personal use, hair care preparations, hair conditioners, hair shampoo, non-
medicated food lotions, non-medicated skin care preparations, skin cleansers, skin
whitening preparations, skin cleansers, skin whitening preparations, wrinkle
minimizing cosmetic preparations for topical facial use, and retail store services
Serial No. 85363558
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featuring a wide variety of consumer goods of others. This evidence is probative to
the extent that it shows that the goods and services listed therein are of kinds that
may emanate from a single source under a single mark. See In re Davey Prods. Pty
Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988). As further evidence, the examining attorney made of
record excerpts from third-party websites showing that retail stores sell cosmetic
and beauty products of others and that these goods and services are marketed and
sold by the same sources in the same channels of trade. For example,
www.saksfifthavenue.com sells Chanel beauty and fragrance products;
www.lordandtaylor.com sells Lancome beauty products; www.nordstrom.com sells
La Mer moisturizing cream and MAC lipstick; www.neimanmarcus.com sells Laura
Mercer and Laprairie beauty products.
Applicant’s assertion that the trade channels are distinct because registrant’s
cosmetics and creams are sold exclusively from a single website is equally
unavailing. Registrant's description of goods is not restricted or limited to any trade
channels. Because there are no limitations as to channels of trade or classes of
purchasers in the description of goods in the cited registration, it is presumed that
registrant's goods move in all channels of trade normal for those goods, and that
they are available to all classes of purchasers for those goods, including distribution
via any Internet website. See Paula Payne Products Co. v. Johnson Publishing Co.,
473 F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d
Serial No. 85363558
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956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716, 1716
(TTAB 1992).
In sum, the relatedness of the goods and services and identical nature of the
trade channels favor finding a likelihood of confusion.
B. Comparison of the Marks
Next, we consider the du Pont likelihood of confusion factor regarding the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. See Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks. In re Jack B.
Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
Applicant contends that despite the identical presence of the wording “under
twenty,” the marks present a different commercial impression. More specifically,
applicant argues that consumers would first notice “the large hand-drawn Down
Arrow” which precedes the number “20” presented in a font which mimics hand-
drawing with a wide-tipped marker. Applicant asserts that the most common
meaning given to a “down arrow” is “down” or alternatively, “downward” or “down
arrow.” Thus, applicant maintains that the registered mark would be read by
consumers as: “Down 20 Under Twenty,” thereby creating a different commercial
impression. In addition, applicant argues that when considered in relation to
Serial No. 85363558
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applicant’s and registrant’s respective goods and services, each mark engenders a
different commericial impression, namely that applicant sells merchandise for
under twenty dollars whereas registrant’s brand of anti-aging cosmetics and creams
are designed to make the wearer look under twenty years of age.
We are not persuaded by applicant’s arguments. In this particular instance,
both applicant’s and registrant’s marks share the identical wording UNDER
TWENTY. While applicant contends that this phrase engenders different meanings
when considered in relation to the respective goods and services, as explained
above, because the goods and services at issue are commercially related and will be
encountered in the same contexts, we expect that the marks will create the same
commercial impression, even if that impression might vary in different contexts.
As to the design element present in registrant’s mark, instead of distinguishing
the two marks, we find that the downward pointing arrow design in registrant’s
mark only serves to reinforce the similar connotation and commercial impression of
the wording “UNDER TWENTY.” Cf. In re Society for Private and Commercial
Earth Stations, 226 USPQ 436 (TTAB 1985) (representation of satellite dish held
merely descriptive of services of an association promoting the interests of members
of the earth station industry); In re Underwater Connections, Inc., 221 USPQ 95
(TTAB 1983) (pictorial representation of a compressed air gas tank held merely
descriptive of travel tour services involving underwater diving). Moreover, because
applicant has applied to register its mark in standard character format, it could be
used in the same distinctive style font as the registered mark. See In re Viterra Inc.,
Serial No. 85363558
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671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf
Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010). See also Squirtco
v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir. 1983) (stating
that “the argument concerning a difference in type style is not viable where one
party asserts rights in no particular display”).
In view of the foregoing, we find that applicant's mark is similar to the
registered mark in terms of appearance, sound, meaning and commercial
impression.4 Even assuming, arguendo, that the marks have different connotations
as applicant asserts, the identical sound of the literal portion of registrant’s mark
and similarity in appearance outweigh any alleged differences in meaning or
connotation. Thus, this du Pont factor weighs in favor of finding a likelihood of
confusion.
C. Degree of Care/Sophistication of Consumers
Applicant argues that prospective consumers of anti-aging cosmetics and
creams “take looking young very seriously,” “exercise extreme caution and show
significant loyalty to a product that works for them” (Applicant’s Brief, p. 11), and
therefore are capable of distinguishing the marks at issue. We disagree. In the
absence of any restrictions in the registration, the relevant consumer is the
ordinary consumer; not all of the consumers can reasonably be expected to exercise
the same high degree of care as applicant contends. See Electronic Design & Sales,

4 Applicant argues that registrant’s mark is a weak mark entitled to a narrow scope of
protection because it has virtually no presence online. This argument essentially amounts
to a collateral attack on the involved registration and therefore has not been considered.
Serial No. 85363558
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Inc., v Electronic Data Systems Corp., 954 F.2d 713, 21 USPQ2d 1388, 1390 (Fed.
Cir. 1992). Accordingly, we deem this du Pont factor to be neutral.
To the extent that there are any other relevant du Pont factors, we treat them
as neutral.
After considering all of the evidence of record and argument pertaining to the
du Pont likelihood of confusion factors, we conclude that there is a likelihood of
confusion between applicant’s mark and registrant’s mark when used in connection
with their identified goods and services. As discussed, the marks are highly similar
in commercial impression and applicant’s online retail store services are identified
broadly, such that they may involve the sale of registrant’s identified goods. As
such, prospective consumers upon encountering these goods and services offered
under highly similar marks would be likely to assume they come from the same
source. Applicant’s intent not to cause confusion is of no avail.
DECISION: The refusals to register under Section 2(d) and 2(e)(1) are both
affirmed.