Garcoa, Inc.

Trademark Trial and Appeal Board

Mar 1, 2011

No. 77747427 (T.T.A.B. Mar. 1, 2011)

Mailed:
March 1, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Garcoa, Inc.
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Serial No. 77747427
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Michael A. Painter of Isaacman, Kaufman & Painter for
Garcoa, Inc.

Ameen Imam, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
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Before Bucher, Cataldo, and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Garcoa, Inc. (“applicant”) filed an application to
register on the Principal Register the mark YOUR HEALTHY
LEGS, in standard character form, for “beauty gels; body
creams; body lotions,” in Class 3. Applicant disclaimed
the exclusive right to use the word “legs.”
The Trademark Examining Attorney refused to register
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 is likely to cause confusion with the previously
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77747427
2
registered mark HEALTHY LEGS, in typed drawing form, for
the services set forth below:
Retail store services featuring socks,
support stockings and foot accessories,
namely, footwear, orthotics for the
feet, medical hosiery, medicated foot
creams and non-medicated foot creams;
on-line retail store services featuring
socks, medical hosiery, support
stockings and foot accessories, namely,
footwear and orthotics for the feet,
Class 35.1

Our determination of likelihood of confusion 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 USPQ 563, 567 (CCPA 1973). 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, two key considerations are the similarities
between the marks and the similarities between the goods
and 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

1 Registration No. 2838131, issued May 4, 2004; Section 8
affidavit accepted.
Serial No. 77747427
3
characteristics of the goods and differences in the
marks”).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first 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,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks,
we are mindful that the test is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression so
that confusion as to the source of the goods offered under
the respective marks is likely to result. 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 unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average
Serial No. 77747427
4
customer, who retains a general rather than a specific
impression of the marks. 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). In this case, the average consumer would be
an ordinary consumer who purchases body gels, creams and
lotions and patronizes retail stores selling socks, support
stockings and foot accessories, orthotics for the feet,
medical hosiery, medicated foot creams and non-medicated
foot creams.
The marks are essentially identical: HEALTHY LEGS vs.
YOUR HEALTHY LEGS. The only difference between the marks
is applicant’s addition of the pronoun “Your” which does
not serve to distinguish the marks. In this regard, one of
the dictionary definitions for the word “your” is “used
with little or no meaning almost as an equivalent of the
definite article the .” Merriam-
Webster Online Dictionary (2009) (merriam-webster.com).2
Accordingly, we find that the marks are similar in
terms of appearance, sound, meaning and commercial
impression. Specifically, we find that the addition of the

2 December 14, 2009 Office Action. See also The American
Heritage Dictionary of the English Language (4th ed. 2009)
(dictionary.com).
Serial No. 77747427
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word “Your” in applicant’s mark is not sufficient to
differentiate the two marks.
B. The similarity or dissimilarity and nature of the
goods described in the application and goods described
in the registration, likely-to-continue trade channels
and classes of consumers.

We begin our discussion by considering applicant’s
goods and the registrant’s services. In analyzing the
similarity of the goods and services at issue, we focus on
registrant’s sales of medicated and non-medicated foot
creams. The fact that the examining attorney did not
submit evidence regarding the other products identified in
registrant’s description of services does not affect our
analysis. See Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely
to be confusion with respect to any item that comes within
the description of goods).
To show that applicant’s body lotions, gels and creams
are related to the registrant’s retail store services, the
examining attorney submitted two sets of third-party
registrations. Third-party registrations which
individually cover a number of different products that are
based on use in commerce may have some probative value to
the extent that they serve to suggest that the listed
Serial No. 77747427
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products are of a type which 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 first set of third-party registrations comprise 29
use-based registrations for body creams, gels and/or
lotions and foot creams that show that body creams gels and
lotions are related to foot creams. The second set of
third-party registrations comprise 6 use-based
registrations for body creams, gels, and/or lotions and
foot creams and retail store, online ordering and or mail
order services in the field of cosmetics including foot
creams that show that the products and services at issue
may emanate from a single source.
Also, the examining attorney submitted excerpts from
12 third-party websites advertising the sale of body
lotions, creams and/or gels and foot creams. In 10 of
those instances, the body lotions, creams, gels and foot
creams are displayed under the same marks. For example,
1. AVON (avon.com) advertising AVON body lotions,
creams, gels and foot creams;
2. ULTA BEAUTY (ulta.com) advertising NEUTOGENA body
lotions, creams, gels and foot creams; and
Serial No. 77747427
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3. BATH & BODY WORKS (bathandbodyworks.com)
advertising C.O. BIGELOW and TRUE BLUE body lotions,
creams, gels and foot creams.
In view of the foregoing, we find that body lotions,
creams and gels are related to foot creams and that retail
store services in the field of body lotions, creams, gels
and foot creams are related to foot creams. In this
regard, we have previously found that likelihood of
confusion in connection with the same or similar marks for
goods, on the one hand, and for services involving those
goods, on the other. See In re United Service
Distributors, Inc., 229 USPQ 237 (TTAB 1986) (silhouette of
a man and a woman for distributorship services in the field
of health and beauty aids held likely to be confused with
the silhouette of a man and woman for skin cream). See
also In re Hyper Shoppes, 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Cir. 1988) (because applicant’s general merchandise
services may include the sale of furniture, the goods and
services are related); In re U.S. Shoe Corp., 229 USPQ 707
(TTAB 1985) (CAREER IMAGE (stylized) for retail women’s
clothing store services and clothing held likely to be
confused with CREST CAREER IMAGES (stylized) for uniforms);
Fortunoff Silver Sales, Inc. v. Norman Press, Inc., 225
USPQ 863, 866 (TTAB 1985) (“there is little question that
Serial No. 77747427
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jewelry store services and jewelry are highly related goods
and services”); In re Jewelmasters, Inc., 221 USPQ 90, 91
(TTAB 1983) (retail jewelry store services and jewelry are
highly related).
Moreover, because the evidence shows that third-party
retailers are selling body lotions, creams and gels and
foot creams to the general public, we find that the
channels of trade and classes and consumers are the same.
C. Balancing the factors.
Because the marks are almost identical, the goods and
services are related, and move in the same channels of
trade and are sold to the same classes of consumers, we
find that applicant’s mark YOUR HEALTH LEGS for body gels,
lotions and creams is likely to cause confusion with
Registration No. 2838131 for the mark HEALTY LEGS for
“retail store services featuring socks, support stockings
and foot accessories, namely, footwear, orthotics for the
feet, medical hosiery, medicated foot creams and non-
medicated foot creams.”
Decision: The refusal to register is affirmed.