King LMTD., LLC

Trademark Trial and Appeal Board

Sep 14, 2021

88772529 (T.T.A.B. Sep. 14, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: September 14, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re King LMTD., LLC
_____

Serial No. 88772529
_____

Amanda V. Dwight of Dwight Law Group,
for King LMTD., LLC.
Ankhi Lindemyer, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Kuhlke, Adlin, and Allard,
Administrative Trademark Judges.

Opinion by Allard, Administrative Trademark Judge:
King LMTD., LLC (“Applicant”) seeks registration on the Principal Register of the
mark NIGHT MOVES in standard character form for “streetwear, namely, headwear,
hoodies, pullovers, long sleeve shirts, socks, sweatpants, sweatshirts, t-shirts, tank
tops” in International Class 25.1

1 Application Serial No. 88772529 was filed on January 24, 2020, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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The Trademark Examining Attorney refused registration of Applicant’s mark un-
der Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Appli-
cant’s mark so resembles the identical registered mark NIGHT MOVES for “women’s
belts and shoes; bridal gowns; bridal dresses; bridesmaid dresses; prom dresses; cock-
tail and evening wear, namely, evening gowns, dresses, skirts, blouses and jackets,”
in International Class 252 as to be likely to cause confusion.
When the refusal was made final, Applicant appealed and requested reconsidera-
tion. After the Examining Attorney denied the request for reconsideration, the appeal
was resumed. We affirm the refusal to register.
I. Evidentiary Issues
In its Appeal Brief, Applicant asks that we consider the definition of “night moves”
in , even though Applicant did not introduce the definition
during prosecution. 6 TTABVUE 7 n.2.3 The Examining Attorney has objected to this
evidence as untimely and not properly made of record. 8 TTABVUE 6. We sustain the
objection. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), provides that “[t]he record
in an application should be complete prior to the filing of an appeal” and “[e]vidence
should not be filed with the Board after the filing of a notice of appeal.” Thus, the

2 Registration No. 4074571, issued December 20, 2011; Sections 8 and 15 combined
declaration accepted and acknowledged.
3 Citations to TTABVUE throughout the decision are to the Board’s public online database
that contains the appeal file, available on the USPTO website, www.USPTO.gov. The first
number represents the docket number in the TTABVUE electronic case file and the second
represents the page number(s).
Citations to the examination record refer to the USPTO’s online Trademark Status and
Document Retrieval system (TSDR).
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dictionary definition evidence submitted for the first time in the Appeal Brief will not
be considered. In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018),
aff’d, 777 F. App’x. 516 (Fed. Cir. 2019).
Additionally, the Applicant submitted links to and
to support its arguments regarding “streetwear” (Request for
Reconsideration at 6 n.1; Response to Office Action dated August 20, 2020 at 6, n.2)
and to and to subpages therein to support its arguments
that Registrant is a wholesaler of evening wear with an emphasis on prom and bridal
gowns (6 TTABVUE 5 n.1). The Examining Attorney did not object to this evidence
and addressed these references and arguments on their merits in the Examining
Attorney’s Appeal Brief (Final Office Action, dated September 10, 2020, p. 6;
Examining Attorney’s Appeal Brief at 19-22). Thus, although it is not sufficient to
simply provide a web address or hyperlink, we consider the arguments presented with
regard to these hyperlinks as any objection has been waived. In re Homeland Vinyl
Products, 81 USPQ2d at 1381 n.5; In re Rodale Inc., 80 USPQ2d at 1699 n.4.
Further, Applicant attached printouts from certain websites as exhibits during
prosecution (Request for Reconsideration dated March 9, 2021, Exhibits A, A2, B, C
and D), reattached most of them to its Appeal Brief (6 TTABVUE, Exhibits A, A2, B
and C)4 and added new website printouts as Exhibit C2 to its Appeal Brief. None of
the website printouts contain the requisite website URL and the date of website

4 For clarification, Exhibit D to the Request for Reconsideration corresponds to Exhibit C to
the Applicant’s Appeal Brief.
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access. In re I-Coat Company, LLC, 126 USPQ2d 1730, 1733 (TTAB 2018)(“[W]e will
no longer consider Internet evidence filed by an applicant in an ex parte proceeding
to be properly of record unless the URL and access or print date has been identified,
either directly on the webpage itself, or by providing this information in a response,
except where the examining attorney does not object.”) In addition, Exhibit C2 is new
evidence which, as mentioned above, should not have been introduced for the first
time on appeal.
However, the Examining Attorney did not object to these website printouts;
similarly, the Examining Attorney did not object to Exhibit C2 as new evidence. 8
TTABVUE 7. As a preliminary matter, we note that Applicants are discouraged from
attaching evidence to their briefs. In re Information Builders Inc., 2020 USPQ2d
10444, at *2 n.4 (TTAB 2020); In re City of Houston, 101 USPQ2d 1534, 1536 (TTAB
2012). Because the Examining Attorney did not object to these printouts and
addressed them on the merits in her brief, we will consider this evidence. In re I-Coat
Company, 126 USPQ2d at 1733.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the issue of likelihood of confusion. In re E.I.
duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting
forth factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203-04 (Fed. Cir. 2003). We consider each DuPont factor for which
there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
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USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. 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)); In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34
(Fed. Cir. 1997).
A. The Marks
We compare the marks in their entireties as to “appearance, sound, connotation
and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Mai-
son Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting
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, 126 USPQ2d 1742,
1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014).
Here, Applicant’s and Registrant’s marks are identical. Registrant’s mark is
NIGHT MOVES in standard characters; similarly, Applicant’s mark consists of the
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exact same terms also in standard character format. As such, the marks are identical
in sound and appearance. Indeed, Applicant concedes this point. 6 TTABVUE 7
(“[T]hey are legally identical in sound and appearance.”). In re i.am.symbolic, llc, 116
USPQ2d 1406, 1411 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir.
2017).
Although the literal elements of Applicant’s and Registrant’s marks are identical,
Applicant argues that the marks make different commercial impressions when con-
sidered in light of the specific pieces of clothing items offered thereunder. 6
TTABVUE 7-8. However, Applicant did not submit any evidence that the consumer
impression is different, only attorney argument. EnzoBiochem, Inc. v. Gen-Probe Inc.,
424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) ("Attorney argument is no
substitute for evidence.") There is nothing about the particular items of clothing of-
fered by the Applicant that causes one to reach a different understanding of the mark,
in terms of commercial impression or connotation, when considered in light of Appli-
cant’s streetwear as opposed to Registrant’s formal wear. Even if we were to agree
with Applicant that the commercial impression is not the same, the marks’ identical
appearance and sound outweighs any difference therein. In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014)(“Similarity in any one of these elements may be sufficient to
find the marks confusingly similar.”).5

5 Applicant cites two cases in support of its position that its mark makes a different commer-
cial impression when considered in light of Applicant’s and Registrant’s goods: In re Sydel
Lingerie Co., Inc., 197 USPQ 629 (TTAB 1977) and In re British Bulldog, Ltd., 224 USPQ 854
(TTAB 1984). 6 TTABVUE 7-8. We do not find these cases persuasive. In In re Sydel, the
mark BOTTOMS UP for ladies’ and children’s underwear was found to make a different com-
mercial impression when compared to the mark BOTTOMS UP as applied to men’s suits,
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In sum, in light of the fact that the Applicant’s and Registrant’s marks are identi-
cal in sight and sound and there is no evidence that the marks create different com-
mercial impressions when considered in light of the pertinent goods, this factor
weighs heavily in favor of likelihood of confusion.
B. The Goods, Channels of Trade, Pricing and Purchasers
We turn next to the similarity between the respective goods, channels of trade,
pricing and purchasers, focusing on the goods as they are identified in the involved
application and the cited registration. Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as identified in
involved application and cited registration compared); Octocom Sys., Inc. v. Houston
Computer Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (Registrant’s goods are broadly
identified without any limitation as to the kind of computer programs or the field of
use; therefore, we must assume that they would travel in the same channels of trade
normal for those goods and to all classes of prospective purchasers for those goods.).
It is well established that it is not necessary that the goods be similar or competitive,
or even that they move in the same channels of trade, to support a holding of likeli-
hood of confusion. It is sufficient that the respective goods of the involved application
and cited registration are related in some manner, and/or that the conditions and

coats and trousers. Similarly, in British Bulldog, the mark PLAYERS was found to have
different connotations when applied to shoes (where it implied a fit, style, color, and durabil-
ity adapted to outdoor activities) as opposed to men’s underwear where the mark implied
something else, “primarily indoors in nature”. British Bulldog, 224 USPQ at 856. Here, the
nature of the respective clothing items, streetwear v. formal wear, neither implies nor fore-
closes any particular connotation or commercial impression from the phrase NIGHT MOVES.
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activities surrounding the marketing of the goods are such that they would or could
be encountered by the same persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief that they originate from the
same source. In re International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir.2002) (“Even if the goods and services in question are not iden-
tical, the consuming public may perceive them as related enough to cause confusion
about the source or origin of the goods and services.”); Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]even if the goods in question are
different from, and thus not related to, one another in kind, the same goods can be
related in the mind of the consuming public as to the origin of the goods”); Kohler Co.
v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1109 (2007).
As mentioned, Registrant’s goods are “women’s belts and shoes; bridal gowns;
bridal dresses; bridesmaid dresses; prom dresses; cocktail and evening wear, namely,
evening gowns, dresses, skirts, blouses and jackets”. As noted by the Examining At-
torney, Registrant’s “women’s belts and shoes” are not limited to formal wear; these
particular goods are separated from the others by a semicolon and stand alone. In
re Midwest Gaming & Entertainment LLC, 106 USPQ2d 1163, 1166 (TTAB 2013)
(“Under standard examination practice, a semicolon is used to separate distinct cat-
egories of goods or services.”). Because “women’s belts and shoes” are not restricted
Serial No. 88772529
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in any way, they encompass women’s belts and shoes of all types, including both for-
mal and casual, for example. See Canadian Imperial Bank of Commerce, N.A. v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987).
Applicant argues that its description of goods is limited to “streetwear” and that
“streetwear” is completely unrelated to formal wear. Specifically, Applicant argues
that “Streetwear is about culture and not clothing per se” and that the Applicant’s
and Registrant’s “types of apparel are at opposite ends of the spectrum with respect
to customers and lifestyles”. Applicant’s Request for Reconsideration dated March 9,
2020 at 6; Applicant’s Response to the Office Action dated August 20, 2002 at 6.
However, the Examining Attorney argued that the limitation of Applicant’s de-
scription to “streetwear” did not render Applicant’s clothing unrelated to Registrant’s.
Indeed, the Examining Attorney properly introduced evidence that “streetwear” is
commonly understood to mean “fashionable casual clothing”, i.e., a type of casual
clothing. 8 TTABVUE at 20. The Examining Attorney also pointed out that even the
Wikipedia page and the Rebels Market blog post, both cited by Applicant, similarly
support the conclusion that streetwear is equivalent to casualwear. 8 TTABVUE 21.
After reviewing the evidence of record and considering the Applicant’s arguments,
we find “streetwear” to be equivalent to “casual wear” and that, as a result, Appli-
cant’s limiting its description of goods to “streetwear” does not render its clothing
unrelated to the Registrant’s clothing.
To support the position that Applicant’s and Registrant’s clothing items are re-
lated, the Examining Attorney properly introduced evidence in the form of Internet
Serial No. 88772529
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websites showing that Applicant’s and Registrant’s clothing items are the types of
clothing items that commonly emanate from the same source under a common mark.
8 TTABVUE 11-12; Final Office Action dated September 10, 2020, pp. 7-22. The fol-
lowing evidence is representative of the evidence proffered by the Examiner:

Serial No. 88772529
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Final Office Action at 43, 52. The Examining Attorney also submitted other Internet
evidence showing the goods in the involved application and the goods described in the
cited registration commonly emanate from the same source, including:
 www.gucci.com showing evening gowns, shirts, tops, hats, socks, sweatpants,
sweatshirts, hoodies, jackets, tanks, and t-shirts (Final Office Action at 7-23);
 www.thereformation.com showing bridal dresses, sweaters, sweatpants,
shorts, jeans and dresses (Id. at 34-42);
 www.jcrew.com showing hoodies, t-shirts, tank tops, belts and shoes (Office
Action dated February 22, 2020 at 7-12); and
 www.express.com showing cocktail and evening wear, i.e., dresses, skirts,
blouses and jackets, hoodies, sweatshirts, sweatpants, Office Action dated Feb-
ruary 22, 2020 at 13-20.
Based on this evidence of record, we agree with the Examining Attorney that Appli-
cant’s casual clothing items are related to Registrant’s goods, i.e., “women’s belts and
shoes; bridal gowns; bridal dresses; bridesmaid dresses; prom dresses; cocktail and
evening wear, namely, evening gowns, dresses, skirts, blouses and jackets,” and these
items are commonly marketed together to consumers under the same mark.
In addition to the above-recited Internet evidence, the Examining Attorney sub-
mitted many use-based third party registrations showing that the same marks are
registered in connection with Registrant’s goods, such as formal wear and/or women’s
belts and shoes (or similar encompassing goods) on the one hand and Applicant’s
Serial No. 88772529
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goods, i.e., hoodies, pullovers, long sleeve shirts, sweatpants and sweatshirts, t-shirts
and tank tops (or similar or encompassing goods) on the other, which is also persua-
sive to show that the goods are “related”. Representative samples of the registration
evidence are summarized below:
Mark/Owner Reg. No. Select Goods from the
Registration6

BALMAIN
Pierre Balmain S.A.S. Société
Par Actions Simplifiée France
36317867 Clothing … formal wear, namely, even-
ing gowns and tuxedos; leather wear,
namely, … belts, shoes, boots; shirts;
skirts; pants; dresses; jackets; … belts
CASTIGLIANO
Hawkscrest Limited
3727022 Clothing, namely, shirts, T-shirts, …,
shorts, … gowns, dresses, skirts, dress
suits, dress shirts, tops, belts … bridal
wear and formal wear, namely, wedding
dresses, wedding gowns …
JD4U
Sawa Amana & Jaha, Inc.
3483805 [C]lothing, namely, T-shirts, sweat-
pants, sweatshirts, shirts, … athletic
wear, namely, shirts, jackets, jerseys,
skirts, shorts, … gowns, … bridal wear
MARIE SAINT PIERRE

10026328 Canada Inc.
4013115 Clothing, namely, dress wear, evening
dresses, evening gowns, bridal wear, …
sweatpants, tank tops; belts

Boutique Tristan & Iseut Inc.
5387039

Clothing, namely, casual wear, namely,
Bermuda shorts, polo shirts; … formal-
wear, namely, gowns, tuxedos, dinner
jackets;

6 The Examining Attorney correctly points out that the full scope of the goods recited in the
registration must be considered. In re Country Oven, Inc., 2019 USPQ2d 443903, at *9 (TTAB
2019). As held by this Board in Country Oven, “a registration that describes goods broadly is
presumed to encompass all goods or services of the type described.” Country Oven, at *9.
Accordingly, the terms “tops” and “shirts” in the third party registrations are broad enough
to encompass the hoodies, pullovers, long sleeve shirts, t-shirts, and tank tops in the appli-
cation, and the term “pants” in the third-party registrations is broad enough to encompass
the sweatpants in the application.
7 The Examining Attorney’s Brief recited Reg. No. 3631781 but this appears to be a typo. The
correct registration number is used above, i.e., 3631786.

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MUMU WEDDINGS

Show Me Your Mumu LLC
5387126 Dresses, skirts, pants, jeans, shorts,
tops, … bridal wear, namely, bridal
party dresses, wedding gowns and veils

Nancy Vuu, Inc.
5444340 Dresses, gowns, skirts, … shirts,
blouses, tank tops, t-shirts, pants,
slacks, jeans, shorts, sweaters, …;
bridal wear, namely, wedding gowns,
dresses, bridesmaid dresses …
GRACE LOVES LACE

Grace Loves Lace Pty Ltd
5652337 Bridal gowns; camis, tees, t-shirts, crop
tops, pants, skirts, dresses, shoes, ties,
belts
IWANTPEACE
Nassiri, Fred DBA Nassiri
Music LLC
5411058 Clothing, namely, athletic apparel,
namely, shirts, pants, jackets, footwear,
hats and caps, formal wear, namely,
tuxedos, shirts and casual wear,
namely, shirts, jackets, t-shirts

Nightcap Clothing, Inc.
5501929 Clothing, namely, pants, dresses, tops,
skirts, shorts, … gowns, jackets, sweat-
ers, t-shirts …; bridal wear, namely,
wedding dresses
J.D.4.U JESUS DIED FOR
YOU

Sawa Amana & Jaha Inc.
5754408 Clothing for men, women and children,
namely, T-shirts; sweatpants; sweat-
shirts; shirts; … top coats; suit jackets;
…dresses, namely, evening gowns, …;
bridal wear, namely, … gowns, dresses,
and stockings; … belts

8 TTABVUE 13-18. Third-party registrations which cover a number of differing goods
and/or services, and which are based on use in commerce, are probative to the extent
that they show that certain goods or services are of a type that may emanate from a
single source. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998).
Here, the Examining Attorney’s third party use evidence establishes that
women’s belts, shoes, bridal wear, and evening and cocktail wear, emanate from the
same source under the same mark as streetwear/casual wear. Thus, we find this
evidence, supported by the third-party registration evidence, sufficient to establish
Serial No. 88772529
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that the goods of involved application and the cited registration are related.
Consequently, this factor weighs in favor of a likelihood of confusion.
Turning to the channels of trade, purchasers and conditions of sale, we note as
an initial matter that neither the application nor the cited registration includes any
restriction regarding channels of trade, consumer or price; we must therefore
presume that the recited goods are sold in the ordinary or normal trade channels for
such goods, to all consumers for such goods and without any limitation to price.
Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1357
(Fed. Cir. 2000) (“When the registration does not contain limitations describing a
particular channel of trade or class of customer, the goods or services are assumed to
travel in all normal channels of trade.”); Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 940 (Fed. Cir. 1983). The third-party websites discussed above showing
the relatedness of the goods show that the clothing items of Applicant and Registrant
are sold by the same clothing retailers and would be encountered by the same types
of customers. Thus, the channels of trade and classes of purchasers for the goods
overlap. Consequently, this factor weighs in favor of a finding of likelihood of
confusion.
Further, Applicant’s arguments based on “real world” evidence, such as price dif-
ferentials, have no impact on our decision as we must decide on the basis of the iden-
tification of the goods in the involved application and the cited registration. Stone
Lion, 110 USPQ2d at 1162 (“It was proper, however, for the Board to focus on the
application and registrations rather than on real-world conditions ….”). This is so,
Serial No. 88772529
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regardless of what the record may reveal as to the particular nature of Applicant’s
goods, the particular channels of trade, the class of purchasers to which sales of the
goods are directed, and the costs of such goods. Id.
As to the Applicant’s argument about the likely care consumers would exercise,
we must base our determination on the least sophisticated consumer of the identified
goods. Stone Lion, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d
1214, 1222 (TTAB 2018) (“Board precedent requires our decision to be based on the
least sophisticated potential purchasers.”)). Because the respective identifications of
goods are unrestricted, we must assume that these goods are offered to ordinary pur-
chasers who exercise no more than ordinary care in their purchasing decisions. See
In re Fabfitfun, Inc., 127 USPQ2d 1670, 1673 (TTAB 2018) (no restriction of price).
Here, the consumers for Applicant’s and Registrant’s goods comprise the general pub-
lic. Other than perhaps the formal wear, the relevant goods would not involve a par-
ticular or raised level of care in the purchasing decision. To the extent there is a raised
level of care, in particular as to the formal wear, it is not one that would outweigh the
other factors.
The DuPont factors of the relatedness of the goods, overlap in channels of trade
and consumers, and conditions of sale weigh in favor of likelihood of confusion.
III. Conclusion
After considering Applicant’s arguments and evidence in light of the relevant
DuPont factors, we find that the marks are identical, the goods are related, and the
Serial No. 88772529
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channels of trade and consumers overlap. Therefore, confusion between the marks is
likely.
Decision: The refusal to register Applicant’s mark is affirmed.