Jeunique Int’l., Inc.

Trademark Trial and Appeal Board

Jan 6, 2000

No. 75257418 (T.T.A.B. Jan. 6, 2000)

Paper No. 12
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN. 6, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jeunique International, Inc.
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Serial No. 75/257,418
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Mario A. Martella of Beehler & Pavitt for Jeunique
International, Inc.
Lynn A. Luthey, Trademark Examining Attorney, Law Office
104 (Sidney Moskowitz, Managing Attorney)
_______
Before Hanak, Walters and Chapman, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
Jeunique International, Inc. has filed an application
to register the mark AU NATURELLE for “skin care
preparations, namely clarifying cleanser, balancing toner,
replenishing moisturizer, night cream, herbal deep
cleansing scrub, purifying skin masque, skin cream, facial
cleanser, skin toner, skin moisturizer, breast skin cream,
body moisturizing gel, hand and nail treatment cream, foot
Ser. No. 75/257418
2
moisturizing cream, liquid makeup, and souffle makeup; and
hair care preparations, namely, hair shampoo and skin
cleansing gel, and hair revitalizing conditioner, lipstick
and mascara, all distributed in direct selling to the
consumer” in International Class 3.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), in view of
the mark shown below
for “essential oils for personal use, bath gels, bath oils,
non-medicated bath salts, body lotion, massage oil, massage
lotion, hair care preparations, nail care preparations,
cuticle removing preparations, nail polish remover, nail
treatments, namely, nail strengthener, non-medicated
manicure/pedicure mineral bath salts, manicure/pedicure
soaking solituion, nail polish remover with citrus oils,
nail polish kits comprised of an assortment of nail

1 Serial No. 75/257,418, filed March 14, 1997, based on
applicant’s bona fide intent to use the mark in commerce.
Applicant included the following statement: “The translation of
the mark ‘AU NATURELLE’ is the adverb ‘naturally’ in French.”
Ser. No. 75/257418
3
polishes, hand and foot lotion, lip gloss, potpourri, foot
massaging lotion, aromatherapy oils, and aromatherapy oil
sprays” in International Class 3.2
The Examining Attorney contends that applicant’s mark,
if applied to its identified goods, would so resemble the
previously registered mark as to be likely to cause
confusion, mistake or deception.3
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested.
We reverse the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Food, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).

2 Reg. No. 2,085,270, issued August 5, 1997. The claimed date of
first use is June 1975. The registration includes the following
statement: “The English translation of the word in the mark is
‘unadorned’, ‘natural’, ‘unpretentious’, in ‘the natural state’,
‘the way God made us’.”
3 The Examining Attorney originally cited and made final the
refusal to register under Section 2(d) based on four
registrations (three issued to Helene Curtis, Inc.) and the
registration listed above, issued to Joyce Carol. In her brief
on the case, the Examining Attorney withdrew her Section 2(d)
refusal to register based on the three registrations issued to
Helene Curtis, Inc.
Ser. No. 75/257418
4
Applicant stated in its brief on the case (page 5)
“There is no dispute that the goods of applicant and those
of the registrants are ‘closely related or identical.’” We
agree that the respective goods of applicant and the cited
registrant are closely related or identical.
Further, the Board must determine the issue of
likelihood of confusion on the basis of the goods as
identified in the application and the registration. See
Canadian Imperial Bank of Commerce, National Association v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987). Even though applicant has restricted the channels
of trade for its goods to “all distributed in direct
selling to the consumer,” nonetheless, the cited
registrant’s channels of trade are not limited in any way.
Thus, the Board must consider that the cited registrant’s
goods could be offered and sold via all normal channels of
trade, including the method used by applicant, namely,
“direct selling to the consumer.” See In re Smith and
Mehaffey, 31 USPQ2d 1531 (TTAB 1994); and In re Elbaum, 211
USPQ 639 (TTAB 1981).
Turning to a consideration of the marks, it is well
settled that marks must be considered in their entireties.
That is, marks must be compared in their entireties, not
dissected or split into component parts and each part
Ser. No. 75/257418
5
compared with other parts. It is the impression created by
the marks as a whole that is important. See 3 J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition,
§23:41 (4th ed. 1999). In the case before us, the cited
registrant’s mark is composed of two equally significant
parts--the design feature of some type of flora and the
double underlined words AU NATUREL, whereas applicant’s
mark is a typed presentation of the words AU NATURELLE.
Both applicant’s mark and the word portion of the cited
registrant’s mark are very highly suggestive of the
involved goods.4 In this case, when the marks are
considered in their entireties as the purchasing public
views them, we find that the commercial impressions created
by the two involved marks are dissimilar.
Decision: The refusal under Section 2(d) is reversed.
E. W. Hanak
C. E. Walters
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board

4 The Examining Attorney requested in her brief on appeal that
the Board take judicial notice of dictionary definitions offered
as exhibits with the brief. Said request is granted pursuant to
TBMP §712.