Heidi Balvanera De Uriate

Trademark Trial and Appeal Board

Aug 5, 2020

88146983 (T.T.A.B. Aug. 5, 2020)

Mailed: August 05, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Heidi Balvanera De Uriate
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Application Serial No. 88146983
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Deborah M. Nesset, Esq. for Heidi Balvanera De Uriate.

Robert N. Guliano, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
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Before Zervas, Bergsman and Kuczma, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Heidi Balvanera De Uriate (Applicant) seeks registration on the Principal
Register of the mark MUKII LIFE, in standard character form, for the goods listed
below:
Children’s jewelry, in International Class 14;
Children’s travel bags, diaper bags, purses, and clothing
bags, namely, tote bags, in International Class, 18; and
This Opinion Is Not a
Precedent of the TTAB

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Children’s clothing, namely, one-piece garments, pajamas,
pants, t-shirts, sweatshirts, dresses, leggings, socks, hats
and shoes, in International Class 25.1
The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), based on the registered mark MUKI and
design, reproduced below, for “bandanas; bibs not of paper; bottoms; footwear; hats;
leggings; tops,” in International Class 25.2

The description of the mark reads as follows:
Color is not claimed as a feature of the mark. The mark
consists of the wording “MUKI” in stylized font with three
triangles below the letter “M” and three triangles above the
letters “KI” in the wording “MUKI”, all contained inside a
circular ban made of intersecting circles.

1 Serial No. 88146983 filed October 8, 2018, under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use her mark in
commerce.
2 Registration No. 4695371 registered March 3, 2015.
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We base our determination under Section 2(d) on an analysis of all probative facts
in evidence relevant to the factors bearing on the likelihood of confusion. In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019), quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997), quoting DuPont,
177 USPQ at 567. “Not all of the DuPont factors are relevant to every case, and only
factors of significance to the particular mark need be considered.” Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018), quoting In re
Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). See also M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.
2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA
1973). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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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.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”), quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002).
I. The similarity or dissimilarity and nature of the goods.
As noted above, Applicant is seeking to register her mark for the goods listed
below:
Children's jewelry, in International Class 14;
Children's travel bags, diaper bags, purses, and clothing
bags, namely, tote bags, in International Class 18; and
Children's clothing, namely, one-piece garments, pajamas,
pants, t-shirts, sweatshirts, dresses, leggings, socks, hats
and shoes, in International Class 25.
The description of goods in the cited registration is “bandanas; bibs not of paper;
bottoms; footwear; hats; leggings; tops,” in International Class 25.
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With respect to the goods in International Class 25, both descriptions of goods
include bottoms or leggings and pants,3 tops or t-shirts and sweatshirts,4 footwear or
shoes, and hats. Therefore, the goods in Class 25 are in part legally identical.
Where, as here, the goods in the cited registration are broadly identified (i.e., not
limited or restricted to any particular customers, users, channels of trade or price
points as compared to Applicant’s description of goods that is restricted to children’s
clothing), we presume Registrant’s clothing items encompass all clothing of the type
identified. Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015)
(where the goods in an application or registration are broadly described, they are
deemed to encompass all the goods of the nature and type described therein). See also
In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018) (where the
goods in an application or registration are broadly described, they are deemed to
encompass all the goods of the nature and type described therein); Venture Out Props.
LLC v. Wynn Resorts Holdings, LLC, 81 USPQ2d 1887, 1893 (TTAB 2007). Therefore,
Registrant’s bottoms, tops, leggings, hats, and footwear include children’s bottoms,
tops, leggings, hats, and footwear.

3 Merriam-Webster.com (accessed August 3, 2020) defines “bottoms,” inter alia, as “the part
of a garment worn on the lower part of the body // white tops and navy blue bottoms.” The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014),
aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128
USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB
2006).
4 Merriam-Webster.com (accessed August 3, 2020) defines “top,” inter alia, as “a garment
worn on the upper body.”
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Under this DuPont factor, the Examining Attorney need not prove, and we need
not find, similarity as to each product listed in the description of goods. It is sufficient
for a refusal based on likelihood of confusion that we find any item encompassed by
the identification of goods in a particular class in the application and registration
related. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d
866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); In re Aquamar, Inc., 115 USPQ2d
1122, 1126 n.5 (TTAB 2015) (“it is sufficient for finding a likelihood of confusion if
relatedness is established for any item encompassed by the identification of goods
within a particular class in the application.”).
With respect to Applicant’s “children’s jewelry,” in International Class 14, and
“children’s travel bags, diaper bags, purses, and clothing bags, namely, tote bags,” in
International Class 18, the Examining Attorney submitted excerpts from the third-
party websites listed below to show that such goods are sold under the same marks
as clothing.
A. Clothing and children’s jewelry
•AZZ website (azz.com) advertising the sale of LEBIG children’s clothing and
LEBIG children’s jewelry.5

5 June 5, 2019 Office Action (TSDR 42-48). Citations to the prosecution record are to the
USPTO’s Trademark Status and Document Retrieval system (TSDR) in the downloadable
.pdf format.
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•Valenti website (valentichildrensboutique.com) advertising the sale of VALENTI
children’s clothing and VALENTI jewelry.6
•Pearls and Piggytails website (pearlsandpiggytails.com) advertising the sale of
PEARLS AND PIGGYTAILS tops and necklaces.7
•Emily + Addie website (emilyandaddie.com) advertising the sale of
PEPPERCORN KIDS children’s clothing, bracelets and necklaces.8
•O’Child website (ochildboutique.com) advertising the sale of DOLLBABY
necklaces and DOLLBABY tutus.9
•Cotton:On website (cottonon.com) advertising the sale of COTTON ON pants and
COTTON ON necklaces.10
B. Clothing and children’s travel bags, diaper bags, purses, and clothing bags,
namely, tote bags

•Kate Spade website (katespade.com) advertising KATE SPADE “kids scout bag”
and KATE SPADE “kids sneakers.”11
•Aviation Life website (aviationlife.com) advertising AVIATION children’s
backpacks and AVIATION clothing.12

6 Id. at TSDR 50-51.
7 Id. at TSDR 52-53.
8 Id. at TSDR 54-55.
9 Id. at TSDR 64-65.
10 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 9 and 11).
11 January 17, 2019 Office Action (TSDR 9-10).
12 June 5, 2019 Office Action (TSDR 34-39).
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•AZZ website (azz.com) advertising the sale of LEBIG children’s clothing and
LEBIG children’s backpacks.13
•Valenti website (valentichildrensboutique.com) advertising the sale of VALENTI
children’s clothing and VALENTI children’s purses.14
•O’Child website (ochildboutique.com) advertising the sale of JOULES children’s
purses and JOULES t-shirts and MAE LI ROSE children’s dresses, leggings, and
MAE LI ROSE children’s purses.15
•Blackbear website (blackbear.com) advertising the sale of GRAY LABEL
backpacks and GRAY LABEL t-shirts, bib overalls, and dresses.16
•Little English website (littleenglish.com) advertising the sale of LITTLE
ENGLISH garment bags, duffle bags, and tote bags and LITTLE ENGLISH bibs.17
•Gucci website (gucci.com) advertising the sale of GUCCI children’s sweatshirts
and GUCCI children’s totes.18
•Herschel website (herschel.com) advertising the sale of THE HERSCHEL
SUPPLY CO. hats and LITTLE HERSCHEL travel luggage.19

13 Id. at TSDR 42-48.
14 Id. at TSDR 49-50.
15 Id. at TSDR 69-71.
16 Id. at TSDR 76-77.
17 Id. at TSDR 82-85.
18 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 15-16).
19 Id. (5 TTABVUE 22-23).
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•Seven Rock Life website (sevenrocklife.com) advertising the sale of SEVEN
ROCK LIFE backpacks and drawstring bags and SEVEN ROCK LIFE clothing.20
Applicant contends the likelihood of confusion refusal “should apply only to Class
25. Otherwise, the examining attorney has granted the owner of the Muki logo a
monopoly on any classes that involve children.”21 We disagree. The issue is not
whether purchasers would confuse the goods, but rather whether there is a likelihood
of confusion as to their source. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439
(TTAB 2012); In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984). The Internet excerpts
the Examining Attorney submitted show that third parties sell jewelry, bags, and
clothing under the same marks. This evidence demonstrates a commercial
relationship among the goods. In re C.H. Hanson Co., 116 USPQ2d 1351, 1355-56
(TTAB 2015) (relatedness found where Internet evidence demonstrated goods
commonly emanated from the same source under a single mark); Wet Seal Inc. v. FD
Mgmt., Inc., 82 USPQ2d 1629, 1640 (TTAB 2007) (women’s clothing and fragrances
found to be commercially related based, in part, on testimony “indicating that it is
not uncommon for both clothing and fragrance products to come from the same
source, if not under the same marks”).
We find that Applicant’s products listed in Classes 14 and 18 and Registrant’s
clothing products in Class 25 are related.

20 Id. (5 TTABVUE 41).
21 Applicant’s Reply Brief, p. 1 (12 TTABVUE 2).
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II. Established, likely-to-continue channels of trade and classes of consumers.
Because Applicant’s children’s clothing and Registrant’s clothing are in part
legally identical, we presume that the channels of trade and classes of purchasers are
the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (identical goods are presumed to travel in same channels of trade to same class
of purchasers) (cited in Cai v. Diamond Hong, 127 USPQ2d at 1801 (“With respect to
similarity of the established trade channels through which the goods reach
customers, the TTAB properly followed our case law and ‘presume[d] that the
identical goods move in the same channels of trade and are available to the same
classes of customers for such goods….’”); In re Yawata Iron & Steel Co., 403 F.2d 752,
159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the
channels of trade and classes of purchasers are considered to be the same); United
Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); Am. Lebanese
Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022,
1028 (TTAB 2011).
With respect to the products in International Classes 14 and 18, the third-party
Internet websites discussed above show third parties selling their branded clothing,
jewelry, and bags online through their websites. In addition,
•The Charming Charlie website (charmingcharlie.com) advertises different
brands of clothing and children’s jewelry. 22

22 January 17, 2019 Office Action (TSDR 11-12).
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•While it is not clear from the record whether the Wyatt Lilly website
(wyattlilly.com) advertises the sale of its own brand or the brand of others, the
website shows that company advertising the sale of children’s clothing, children’s
necklaces, and children’s purses.23
•The Hair Bow website (thehairbowcompany.com) advertises the sale of
unidentified brands of children’s clothing and children’s necklaces. 24
•The J.Crew website (jcrew.com) advertises the sale of unidentified brands of
children’s clothing and children’s necklaces.25
•The Justice website (shopjustice.com) advertises the sale of unidentified brands
of clothing and necklaces.26
•The Claire’s website (claires.com) advertises the sale of an unidentified brand of
bandanas and Claire’s children’s purses.27
•The Pottery Barn website (potterybarn.com) advertises the sale of an
unidentified brand of diaper bag and an unidentified brand of children’s pajamas.28
•As noted above, the O’Child website (ochildboutique.com) advertises the sales of
different brands of children’s clothing, children’s necklaces, and children’s purses.29

23 June 5, 2019 Office Action (TSDR 56-63).
24 June 5, 2019 Office Action (TSDR 72-75).
25 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 13-14).
26 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 10 and 12).
27 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 17-18).
28 December 2, 2019 Request for Reconsideration Denial (5 TTABVUE 19-21).
29 June 5, 2019 Office Action (TSDR 64-71).
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Finally, the Examining Attorney submitted an excerpt from Registrant’s
Instagram account showing that Registrant advertises a MUKI children’s boutique.
Muki Kids Inc™ by Fiona
Children’s Lifestyle Boutique for the modern child.
Teethers, moccs, harems plus more!30
From this exhibit, we infer that Applicant sells a wide variety of children’s products,
thus, supporting that the goods at issue are offered in the same channels of trade to
the same classes of consumers.
This evidence shows that the same entities sell clothing, children’s bags and
children’s jewelry which are offered in the same channels of trade.
III. The similarity or dissimilarity of the marks.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014)); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d
728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”) (citation omitted).
“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

30 June 5, 2019 Office Action (TSDR 8).
Serial No. 88146983

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between the parties.” Cai v. Diamond Hong, 127 USPQ2d at 1801 (quoting Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012)). See also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A.,
685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg.
Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Rests. 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. Geigy Chem. Corp. v. Atlas
Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are clothing, children’s
bags, and children’s jewelry without any restrictions or limitations as to channels of
trade, classes of consumers or price points, the average customer is an ordinary
consumer.
Applicant is seeking to register the mark MUKII LIFE in standard character form.
The mark in the cited registration is MUKI and design reproduced below.

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In comparing the marks, we focus our attention on the word “Muki” in the
registered mark. In the case of marks consisting of words and a design, consumers
normally accord greater weight to the words because the words are likely to make an
impression upon purchasers, purchasers will remember them, and purchasers will
use them to request the products. See In re Viterra, 101 USPQ2d at 1908, 1911 (citing
CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)); Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir.
1987). There is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark, such as a common dominant
element, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. Viterra, 101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
With respect to Applicant’s mark, we give more weight to the word “Mukii”
because as the first part of the mark, it has a position of prominence and consumers
are likely to notice and remember it. See In re Detroit Athletic Co., 903 F.3d 1297, 128
USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “the identity of the marks’ two initial
words is particularly significant because consumers typically notice those words
first”); Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of
the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the
first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am.,
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970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers will first notice the identical lead word).
In addition, third parties commonly use the word “Life” as a suffix for marks in
connection with clothing to convey a lifestyle theme. See e.g.,
•GOOLIFE (goolifeclothing.com) for gender-neutral streetwear.31
•The Lakeshore Life (thelakeshorelife.net) for clothing (“Celebrating the good life
through photograph, apparel and more.”).32
•Desert Life (desertlifeclothing.com) for UV protective clothing.33
•K9 Life Clothing (k9lifeclothing.com) for clothing with dog related
ornamentation.34
•Chef Life (cheflifeclothing.com) for clothing with cooking related
ornamentation.35
As noted above, Applicant is seeking to register MUKII LIFE in standard
character form. Marks presented in standard characters are not limited to any
particular depiction. The rights associated with a mark in standard characters reside
in the wording, and not in any particular display. Thus, Applicant may depict MUKII
LIFE in any manner, regardless of the font style, size, or color, and might at any time
in the future display it in a manner similar to Registrant’s mark. Viterra,

31 June 5, 2019 Office Action (TSDR 9-11).
32 Id. at TSDR 12.
33 Id. at TSDR 13-14.
34 Id. at TSDR 15-16.
35 Id. at TSDR 18-19.
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101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining
whether two marks are similar, a mark in a typed drawing (equivalent to modern
standard character format) is distinct from such mark in a logo format; “[b]y
presenting its mark in a typed drawing, a difference cannot legally be asserted by
that party” (emphasis in original)). For example, Applicant may display its mark as
follows:

LIFE
In view of the foregoing, Applicant’s mark MUKII LIFE is similar to Registrant’s
MUKI and design mark in appearance and sound. The slight differences in spelling
between Applicant’s use and display of MUKII and Registrant’s use and display of
MUKI, if even noticed by consumers, does not distinguish the marks. See Weiss
Assoc., Inc. v. HRL Associates, 902 F.2d 1546, 14 USPQ2d 1840, 1841 (Fed. Cir. 1990)
(“It is especially hard to distinguish between TMS and TMM when the marks only
differ by the last letter.”); Mag Instr. Inc. v. Brinkmann Corp., 96 USPQ2d 1701,
1714-15 (TTAB 2010) (difference of a single letter does not suffice to distinguish MAG
STAR from MAXSTAR); U.S. Mineral Prods. Co. v. GAF Corp., 197 USPQ 301, 306
(TTAB 1977) (“‘AFCO’ and ‘CAFCO,’ which differ only as to the letter ‘C’ in USM’s
Serial No. 88146983

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mark, are substantially similar in appearance and sound”); In re Bear Brand Hosiery
Co., 194 USPQ 444, 445 (TTAB 1977) (“The mark of the applicant, ‘KIKS’ and the
cited mark ‘KIKI’ differ only in the terminal letter of each mark. While differing in
sound, the marks are similar in appearance and have a somewhat similar
connotation”).
For these reasons, we disagree with Applicant’s contention that the marks are
“drastically different in visual appearance” and do not sound similar.36
There is no evidence of record as to the meaning of words “Muki” or “Mukii.”
“Muki” appears to be a fanciful or coined term and, thus, it is a conceptually strong
term, entitled to a broad scope of protection or exclusivity of use. See The Nautilus
Grp. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173, 1181 (Fed. Cir.
2004) (fanciful marks are typically strong); Mishawaka Rubber & Woolen Mfg. Co. v.
Bata Narodni Podnik, 222 F.2d 279, 105 USPQ 432, 437 (CCPA 1955) (“A strong and
fanciful mark is entitled to broad protection.”); In re Ginc UK Ltd. , 90 USPQ2d 1472,
1479 (TTAB 2007) (completely unique and arbitrary, if not coined, nature of mark in
relation to goods entitles the registered mark to a broad scope of protection, and
significantly increases the likelihood that the marks, when used in connection with
the identical goods would cause confusion). Accordingly, consumers may mistakenly
believe that MUKII LIFE is a lifestyle spinoff or derivation of children’s clothing, bags
and jewelry of the previously registered MUKI and design brand clothing. Thus, the
marks are similar in meaning and commercial impression.

36 Applicant’s Brief, p. 7 (9 TTABVUE 8).
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We find that Applicant’s mark MUKII LIFE is similar to the registered mark
MUKI and design in appearance, sound, connotation and commercial impression.37
IV. The conditions under which and consumers to whom sales are made.
Applicant contends, without any evidence, that her consumers exercise a high
degree of care.
Applicant’s goods are far from impulse purchases.
Applicant’s customers are sophisticated and not likely to be
confused between the products s [sic] they [sic] are choosing
clothing for children and [are] very particular in what they
purchase.38
As noted above, because Applicant’s description of goods are for children’s jewelry,
children’s bags, and children’s clothing without any other restrictions or limitations
as to channels of trade, classes of consumers or price points, the average purchaser is
an ordinary consumer. With respect to this description of goods, we are required to
consider the “least sophisticated consumer in the class.” Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014).
See also In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (finding

37 Applicant relies heavily on the non-precedential decision Royal Chain, Inc. v. Mansur
Gavriel LLC (TTAB 2018) (Opposition No. 91214740). Applicant’s Brief, pp. 7-9 (9 TTABVUE
8-10). We find Applicant’s reliance on this decision is misplaced. First,
Royal Chain is not a precedent of the Board. While the Board permits the citation to non-
precedential final decisions, we do not encourage it. TRADEMARK TRIAL AND APPEAL MANUAL
OF BOARD PROCEDURE (TBMP) § 801.03 (2020). Second, the Board dismissed the opposition
in Royal Chain because the opposer failed to prove priority. For purposes of completeness,
the Board analyzed the likelihood of confusion rendering that analysis dicta. Finally, the
facts in Royal Chain are not similar to the facts before us. Royal Chain involved common
names, this case involves fanciful terms. In addition, this case has evidence that third parties
commonly use the word “Life” that is part of Applicant’s mark in connection with clothing,
whereas there was no similar evidence in Royal Chain.
38 Applicant’s Brief, pp. 6-7 (9 TTABVUE 7-8).
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that not all purchasers of wine may be discriminating because while some may have
preferred brands, “there are just as likely to be purchasers who delight in trying new
taste treats.”).
In addition, we must consider the goods as they are described in the application
and registration. Stone Lion Capital Partners, 110 USPQ2d at 1161; Octocom Sys,
Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) (“The authority is legion that the question of registrability of an applicant’s
mark must be decided on the basis of the identification of goods set forth in the
application regardless of what the record may reveal as to the particular nature of an
applicant's goods, the particular channels of trade or the class of purchasers to which
the sales of goods are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d
901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the respective descriptions of
goods”).
Where, as here, there is no limitation in Applicant’s identification of goods or
Registrant’s description of goods, the Board must presume that Applicant’s goods
move in all channels of trade that would be normal for such goods, and that they
would be purchased by all potential customers. Citigroup Inc. v. Capital City Bank
Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); CBS Inc. v. Morrow,
708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983). Notwithstanding Applicant’s
argument regarding the actual scope of its own goods, we may not limit, by resort to
extrinsic evidence or uncorroborated argument, the scope of goods as identified in the
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cited registration or in the subject application. E.g., In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Fisher Scientific Co., 440
F.2d 43, 169 USPQ 436, 437 (CCPA 1971); In re La Peregrina Ltd., 86 SPQ2d 1645,
1646 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
We find that the conditions under which sales, and consumers to whom sales, are
made is a neutral DuPont factor.
V. Conclusion
Because the marks are similar, the goods are in part legally identical or otherwise
related and we presume that the clothing products are offered for sale in the same
channels of trade to the same classes of consumers and that the other products are,
also, offered for sale in the same channels of trade, we find that Applicant’s mark
MUKII LIFE for “children’s jewelry,” “children’s travel bags, diaper bags, purses, and
clothing bags, namely, tote bags,” and “children’s clothing, namely, one-piece
garments, pajamas, pants, t-shirts, sweatshirts, dresses, leggings, socks, hats and
shoes” is likely to cause confusion with the registered mark MUKI and design for
“bandanas; bibs not of paper; bottoms; footwear; hats; leggings; tops.”
Decision: The refusal to register Applicant’s mark MUKII LIFE is affirmed.