Lancôme Parfums et Beauté & Ciev.Cote, LLC

Trademark Trial and Appeal Board

Mar 19, 2019

OPP (T.T.A.B. Mar. 19, 2019)

This Opinion is Not a Precedent of the TTAB Mailed: March 19, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Lancôme Parfums et Beauté & Cie v. Cote, LLC _____ Opposition No. 91219885 _____ Natalie G. Furman and Robert L. Sherman of Paul Hastings LLP for Lancôme Parfums et Beauté & Cie. James Kaen of Harris Kaen, for Cote, LLC. _____ Before Taylor, Hightower and Larkin, Administrative Trademark Judges. Opinion by Taylor, Administrative Trademark Judge: Cote, LLC (“Applicant”) seeks registration on the Principal Register for the stylized “O” mark, shown below, for “Nail enamel; Nail polish,” in International Class 3.1 1 Application Serial No. 86249168, filed April 10, 2014, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Opposition No. 91219885 - 2 - The application includes the following statements: “The mark consists of the letter ‘o’ wherein the top and bottom of the letter are missing and wherein the ‘o’ has a corresponding accent at the top of the letter. Both the letter ‘o’ and the accent are in the color coral.” “The color(s) coral is/are claimed as a feature of the mark.” Lancôme Parfums et Beauté & Cie (“Opposer”) has opposed registration of Applicant’s mark on the ground of priority and likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2 Opposer alleges ownership of the previously used and registered marks listed below:3 2 Opposer additionally sought to assert dilution as a ground for opposition. However, Opposer failed to properly plead this claim since the notice of opposition contains no allegations regarding the date when Opposer’s pleaded marks allegedly become famous, i.e., prior to the filing date of Applicant’s involved application. See Omega SA (Omega AG) (Omega Ltd.) v. Alpha Phi Omega, 118 USPQ2d 1289 (TTAB 2016) (citing Polaris Indus. Inc. v. DC Comics, 59 USPQ2d 1798, 1800 (TTAB 2000) (“opposer’s allegation of dilution is legally insufficient inasmuch as there is no allegation as to when opposer’s mark became famous”)); see also Toro Co. v. ToroHead Inc., 61 USPQ2d 1164, 1174 (TTAB 2001) (where an intent-to-use application is the subject of an opposition, the opposer must plead that its mark became famous prior to the filing date (i.e., date of constructive use) of the opposed intent-to-use application). Accordingly, no further consideration will be given to this improperly pleaded claim. Even if properly pleaded, because we find in favor of Opposer on its Section 2(d) ground, as fully discussed in this decision, we need not, and would not, reach this claim. See Venture Out Props. LLC v. Wynn Resorts Holdings LLC, 81 USPQ2d 1887, 1894 (TTAB 2007) (“In view of our decision finding a likelihood of confusion, we need not reach the issue of dilution.”); Interlego AG v. Abrams/Gentile Entm’t Inc., 63 USPQ2d 1862, 1864 (TTAB 2002) (“Having found that there exists a likelihood of confusion, we elect to sustain the opposition on this basis alone.”). 3 1 TTABVUE. Citations in this opinion are to the TTABVUE docket entry number and, where applicable, the electronic page number where the document or testimony appears. Because the Board primarily uses TTABVUE in reviewing evidence, it prefers that citations to non-confidential parts of the record include the TTABVUE docket entry number and the TTABVUE page number. See RxD Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1804 (TTAB 2018); TBMP §§ 801.01, 801.03 (2018). Opposition No. 91219885 - 3 - Reg. No. Mark Registration Date/Status Goods4 2714772 May 13, 2003; renewed Eau de toilette 2745457 “Oui” is the French word for “yes.” August 5, 2003; renewed Perfume 4141137 The English translation of “DE L’ORANGERIE” is “OF THE ORANGE GROVE.” May 15, 2012; Section 8 and 15 affidavits accepted and acknowledged Eau de toilette 4124404 The English translation of “DE” in the marks is “OF.” April 10, 2012; Section 8 and 15 affidavits accepted and acknowledged Toilet water 3022836 LANCOME5 (standard characters) December 6, 2005; renewed Nail polish 4 The listed goods include only those that are currently covered by the registrations. 5 Opposer’s standard character mark may be presented in any font style, size or color, In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018), and is most often displayed with a circumflex over the letter O, as follows: LANCÔME. We take judicial notice that “circumflex” is defined, in part, as “[a]ny of several marks, especially (^), used over a vowel in certain languages or in phonetic keys to indicate quality of pronunciation.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019) (www.ahdictionary.com, retrieved February 19, 2019). The Board may take judicial notice of Opposition No. 91219885 - 4 - Opposer also claims prior common law ownership of these marks as well as the letter O with a circumflex above it, Ô, alone, “in connection with perfumery and other cosmetic products,” collectively referred to by Opposer as the “Lancôme Ô mark[s].” Applicant, in its answer, has denied the salient allegations in the notice of opposition.6 Applicant did not file any testimony or other evidence and only Opposer filed a brief. See TBMP § 801.02(b) (2018) (“The filing of a brief on the case is optional, not mandatory, for a party in the position of defendant.”); see also 37 C.F.R. § 2.128(a)(1). I. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122, 37 CFR § 2.122, the file of the subject application. The record also includes the following: dictionary definitions, including online dictionaries that exist in printed format or have regular fixed editions. 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). 6 4 TTABVUE. In addition to being a proper responsive pleading, i.e., admitting, denying or indicating insufficient information to do either in response to each allegation, Applicant made certain argumentative statements which are more in the nature of a brief on the case, and attached copies of two third-party registrations presumably in support of its position in this proceeding. We point out, however, that under Fed. R. Civ. P. 8(b), a response to a pleading should in addition to admitting and denying the allegations asserted in the notice of opposition, state in short and plain terms defenses to each claim asserted in the notice. To the extent Applicant’s answers exceed setting forth its defenses, they will not be further considered. Similarly, the two third-party registrations have been given no further consideration. Except in limited circumstances, which are not present here, an exhibit to a pleading is not evidence on behalf of the party to whose pleading the exhibit is attached unless identified and introduced in evidence as an exhibit during the period for the taking of testimony. Trademark Rules 2.122(c) and 2.122(d)(1), 37 C.F.R. §§ 2.122(c) and 2.122(d)(1). Even if we had considered Applicant’s arguments and proffered third-party registrations, our decision would be the same. Opposition No. 91219885 - 5 - 1. Copies of Opposer’s five pleaded registrations listed above, which were submitted via printouts showing current status and title from the USPTO’s Trademark Status & Document Retrieval (TSDR) electronic database, attached as exhibits to the Notice of Opposition pursuant to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1). 2. Opposer’s first notice of reliance on: a. Applicant’s responses and amended responses to Opposer’s Requests for Admission Nos. 2-13 (18 TTABVUE 7-24); and b. Testimony declaration, with exhibits B-G, of Natalie G. Furman, one of Opposer’s attorneys (18 TTABVUE 20- 214);7 3. Opposer’s second notice of reliance on the testimony declaration of Mollie Meyer (21 TTABVUE 8-15). II. Standing Standing is a threshold issue that must be proven by a plaintiff in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 7 Although the better practice is to submit testimony declarations as separate filings, Opposer’s filing of its testimony declarations under notice of reliance in this case is “of no consequence,” because the notices of reliance were properly served on Applicant, Applicant did not object to such submissions, and the testimony was clearly characterized as such in the notices of reliance. Indeed, the sole attachment to Opposer’s second notice of reliance is a testimony declaration. See WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1037 (TTAB 2018) (Applicant’s failure to file testimony declarations separately instead of attaching them as exhibits to its notice of reliance was “of no consequence,” in view of the pretrial disclosure of the declarants and the service by Applicant of the testimony declaration as exhibits to the notice of reliance). Opposition No. 91219885 - 6 - 213 USPQ 185, 189 (CCPA 1982). To establish standing in an opposition, a plaintiff must show both a real interest in the proceeding as well as a reasonable belief of damage. Empresa Cubana Del Tabaco v. Gen. Cigar, 111 USPQ2d at 1062; Ritchie v. Simpson, 50 USPQ2d at 1025. Opposer’s standing to oppose registration of Applicant’s mark is established by its five pleaded registrations, properly made of record with its Notice of Opposition, which the record shows to be valid and subsisting, and owned by Opposer. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); N.Y. Yankees P'ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501 (TTAB 2015). III. Priority To establish priority in a likelihood of confusion claim brought under Trademark Act Section 2(d), a party must prove that, vis-à-vis the other party, it owns “a mark or trade name previously used in the United States ... and not abandoned....” Trademark Act Section 2, 15 U.S.C. § 1052. A party may establish its own prior proprietary rights in a mark through ownership of a registration, actual use or through use analogous to trademark use. See Trademark Act Sections 2(d) and 45, 15 U.S.C. §§ 1052(d) and 1127; T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996). Because Opposer’s pleaded registrations are properly of record, priority is not in issue in the opposition with respect to those marks for the goods listed therein. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Opposition No. 91219885 - 7 - In order to prevail on its claim of likelihood of confusion based on its common law claim of ownership of the Ô mark alone, the mark must be distinctive, inherently or otherwise, and Opposer must show priority of use. See Towers v. Advent Software, Inc., 913 F.2d 942, 945, 16 USPQ2d 1039, 1041 (Fed. Cir. 1990); Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981). Applicant did not file a brief and thus we are unaware of any challenges to the distinctiveness of Opposer’s pleaded Ô common law mark. In fact, both parties claim rights in a stylized letter “O” and, during the course of this proceeding, have treated Opposer’s Ô mark as being inherently distinctive. We shall do the same. Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1023 (TTAB 2009) (“Respondent has not raised an issue as to the distinctiveness of petitioner’s mark or otherwise put petitioner on notice of this defense, and therefore we find that the mark is distinctive.”) (citing Wet Seal Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1634 (TTAB 2007)). As to common law priority, the record shows that Opposer began using the Lancôme Ô marks, particularly the Ô OUI and Ô DE LANCOME marks since as early as 20098 and the marks Ô DE L’ORANGERIE and Ô D’AZUR since as early as 2011,9 all of which prominently feature the stylized letter Ô. The bottles for the eau de toilette sold under the those marks accordingly support Opposer’s claim of use of the stylized letter Ô, alone,10 because the singular representation of that letter clearly 8 21 TTABVUE 11 (Meyer decl. ¶ 8). 9 Id. 10 For example, the marks are used in the following manner: Opposition No. 91219885 - 8 - imparts a separate commercial impression apart from the other wording and/or designs in those marks. See, e.g., Dena Corp. v. Belvedere Int’l Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (finding EUROPEAN FORMULA and design, , for cosmetic products not unitary since “the elements are not so merged together that they cannot be regarded as separate”). Opposer’s first use date of its common law mark is well before the filing date of Applicant’s intent to use application and establishes Opposer’s priority.11 IV. Likelihood of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the likelihood of confusion issue. 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. See 18 TTABVUE 129 and 132 (First Not. of Rel., Ex. E). 11 Applicant did not prove, or even claim, a date of first use of its applied-for mark prior to the filing date of its application. Embarcadero Tech. Inc. v. RStudio Inc., 105 USPQ2d 1825, 1834 (TTAB 2013) (“For priority purposes, applicant, at the very least, can rely on the filing date of its trademark applications.”); Kraft Grp. LLC v. Harpole, 90 USPQ2d 1837, 1841(TTAB 2009) (“A party that has filed an intent-to-use application may rely on the filing date of its application to establish priority.”). Opposition No. 91219885 - 9 - Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We consider these factors and any likelihood of confusion factors about which the parties introduced evidence or argued, and treat the remaining factors as neutral. For the sake of economy, we confine our analysis to the marks in pleaded Registration No. 4141137 (Ô DE L’ORANGERIE, as stylized ) and Registration No. 4124404 (Ô DE LANCÔME, as stylized ), and the common law mark Ô, all of which prominently feature or are solely comprised of, as explained below, the “Lancôme Ô,” and all of which are used on or in connection with eau de toilette. If the opposition cannot be sustained on the basis of these marks, it could not be sustained on the basis of the other pleaded marks. See, e.g., In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. The Goods We first consider the du Pont factor regarding the similarity or dissimilarity of the parties’ respective goods. It is not necessary that the goods be identical or competitive, or even that they move in the same channels of trade, to support a finding of likelihood of confusion. Rather, it is sufficient that the goods are related in some manner, or that the circumstances surrounding their marketing are such that they would or could be encountered by the same persons in situations that would give rise, because of the similarity of the marks, to a mistaken belief that they originate from the same source or that there is an association or connection between the sources Opposition No. 91219885 - 10 - of the goods. Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). Applicant’s goods are “nail enamel; [and] nail polish.” Opposer’s goods are identified in its registrations as “eau de toilette” or the English equivalent “toilet water,” and the record further establishes that Opposer uses its Ô mark on or in connection with eau de toilette. As evidence that the goods are related, Opposer submitted printouts from the websites of Chanel, Gucci, Elizabeth Arden, and Saks Fifth Avenue/Dolce-and- Gabbana, third parties that offer both nail polish or nail enamel and eau de toilette under the same mark. The marks include the following: CHANEL, GUCCI, ELIZABETH ARDEN, and DOLCE & GABBANA.12 Also of record are various third-party, use-based live registrations13 showing the same mark registered for both nail polish and/or enamel and fragrances,14 which 12 18 TTABVUE 198-203, 205-07 and 212-14. We have not considered the printouts from the websites of Dior (18 TTABVUE 204), Estée Lauder (18 TTABVUE 208-209) and Burberry (18 TTABVUE 210-11), because they do not show use of a single mark on or in connection with goods of the types identified in Applicant’s application and Opposer’s registrations or on which Opposer uses its common law marks. 13 18 TTABVUE 143-155, 159-90 and 195-97. We have not considered Reg. Nos. 3069443 (18 TTABVE 156-58) because it does not include both types of the subject goods. We also have not considered Reg. No. 3983307 (18 TTABVUE 191-94) because it was cancelled effective February 2, 2018. A cancelled or expired registration has no probative value other than to show that it once issued and it is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act. In Re Ginc UK Ltd., 90 USPQ2d 1472, 1480 (TTAB 2007); see also Action Temp. Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“[A] cancelled registration does not provide constructive notice of anything.”); In re Hunter Publ’g Co., 204 USPQ 957, 963 (TTAB 1979) (cancellation “destroys the Section [7(b)] presumptions and makes the question of registrability ‘a new ball game’ which must be predicated on current thought”). 14 We consider the term “nail preparations” to include nail polish and enamel. We also consider eau de toilette sufficiently related to perfume and cologne to include in our Opposition No. 91219885 - 11 - often specifically include eau de toilette, perfume and cologne: Reg. No. 4795458 (GUCCI); Reg. No. 4773549 (misc. design mark ); Reg. No. 1226396 (CALVIN KLEIN); Reg. No. 1579710 (ELIZABETH ARDEN); Reg. 3217192 (ESTEE LAUDER); Reg. No. 3023827 (MAC); Reg. No. 2153858 (CHRISTIAN DIOR); Reg. No. 1626589 (CLINIQUE); Reg. No. 4854434 (CYNTHIA ROWLEY); Reg. No. 4650035 (ALEX AND ANI); Reg. No. 4589270 (SCENT 7); Reg. No. 4896155 (OUTRAGEOUSLY VIBRANT); Reg. No. 4896158 (EXTRAVAGANCE RUSSE); Reg. No. 4896910 (SIMPLY DIVINE); Reg. No. 3983305 (DOLCE & GABBANA); and Reg. No. 4817393 (MY BURBERRY). “Third-party registrations which cover a number of differing goods and/or services, and which are based on use in commerce, although not evidence that the marks shown therein are in use on a commercial scale or that the public is familiar with them, may nevertheless have some probative value to the extent that they may serve to suggest that such goods or services are of a type which may emanate from a single source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, comparison, and the word “fragrances” to include “eau de toilette,” perfume and cologne as they are all fragrances differing only by the concentration of fragrant oils. We take judicial notice of the definition of “fragrances,” which is defined in the online MERRIAM-WEBSTER DICTIONARY, as “something (such as perfume) compounded to give off a sweet or pleasant odor.” www.merriam-webster.com/dictionary/fragrance, retrieved February 14, 2019. We also take judicial notice of the definition of the term “eau de toilette” which is defined as “a perfumed liquid containing a lower percentage of fragrant oils than is contained in ordinary perfume or eau de parfum.” www.merriam-webster.com/dictionary/eau%20de%20toilette, retrieved February 14, 2019. Opposition No. 91219885 - 12 - 864 F.2d 149 (Fed. Cir. 1988). See also L’Oreal S.A. v. Marcon, 102 USPQ2d at 1439- 40; In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). We find this evidence sufficient to show that Applicant’s “nail enamel; [and] nail polish” are commercially related to Opposer’s eau de toilette, such goods all being cosmetic and beauty products that may emanate from the same source under the same mark. This du Pont factor thus favors a finding of likelihood of confusion. B. Channels of Trade/Classes of Purchasers Because there are no limitations as to channels of trade or classes of purchasers in Opposer’s or Applicant’s identifications of goods, we must presume that Opposer’s and Applicant’s goods move in all channels of trade usual for these goods. See In re Detroit Athletic, 128 USPQ2d 1047, 1052 (TTAB 2018) (quoting In re i.am.symbolic, 866 F.3d 1315, 123 USPQ2d 1744, 1750 (Fed. Cir. 2017) (“In the absence of meaningful limitations in either the application or the cited registrations, the Board properly presumed that the goods travel through all usual channels of trade and are offered to all normal potential purchasers.”). As shown by the record, channels of trade for both Opposer’s and Applicant’s goods include, or would include, online and brick and mortar department stores, beauty supply stores, and fashion and beauty retailers15 which are, or would be, purchased by the usual classes of purchasers, which in this case include ordinary consumers. 15 21 TTABVUE 11 (Meyer decl. ¶ 10). Opposition No. 91219885 - 13 - We accordingly find the channels of trade and the classes of consumers of Opposer’s and Applicant’s goods at a minimum to overlap. This du Pont factor thus favors a finding of likelihood of confusion. C. Conditions of Purchase and Consumer Sophistication The fourth du Pont factor assesses the “conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177 USPQ at 567. Opposer maintains that Applicant’s application covers relatively inexpensive goods whose actual and prospective purchasers consist of “unsophisticated purchasers and include impulse buyers.”16 Although the record is devoid of specific pricing information for either Applicant’s or Opposer’s goods, both parties’ goods include basic cosmetic and beauty items that may be purchased in a wide range of prices and by a variety of consumers, including ordinary consumers who would exercise no more than ordinary care in their purchasing decisions. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (affirming that the Board properly considered all potential purchasers for recited services, including both sophisticated and unsophisticated investors, since precedent requires consumer care for likelihood of confusion decisions be based “on the least sophisticated potential purchasers”). We thus find this factor neutral. 16 21 TTABVUE 28 (Opposer’s Br. p. 22). Opposition No. 91219885 - 14 - D. Strength of Opposer’s Mark Opposer maintains that its LANCÔME and Ô marks are exceedingly strong and famous, and argues that: The Ô is an integral, well-known, distinctive and dominant element of the LANCÔME mark and brand. As used alone on perfumery, Ô instantly evokes the famous LANCÔME Mark and identifies Lancôme as the product source.17 The strength of a mark rests on the extent to which “a significant portion of the relevant consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)). In determining the strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014); see also In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). 1. Inherent Strength Opposer’s stylized Ô DE L’ORANGERIE, , and Ô DE LANCÔME, , marks are inherently distinctive. As stated above, Opposer has 17 24 TTABVUE 19 (Opposer’s Br. p. 13). Opposition No. 91219885 - 15 - made of record these pleaded registrations which are not subject to a counterclaim. They are registered on the Principal Register without any disclaimers or claims of acquired distinctiveness (in whole or in part) and, as such, are entitled to all presumptions under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), including the presumption that the marks are inherently distinctive. Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). In addition, we note that Applicant at no time challenged the validity of Opposer’s common law Ô mark and, indeed, seeks to register an extremely similar variation, as discussed below, of the letter “O,” without a claim of acquired distinctiveness. In making our determination as to inherent distinctiveness, we note that there is no evidence properly of record regarding the number and nature of similar marks in use on similar goods or services or of third-party registrations consisting in whole, or in part, of the letter “O” or LANCÔME or variations thereof. Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millenium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“[E]vidence of third-party registrations is relevant to ‘show the sense in which a mark is used in ordinary parlance,’ … that is, some segment that is common to both parties’ marks may have ‘a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.’”) (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (the extent of third-party use or registrations may indicate that a term carries a suggestive or descriptive connotation and is weak for that reason)). Opposition No. 91219885 - 16 - 2. Commercial Strength We next analyze the commercial strength or fame of Opposer’s marks. Such strength “may be measured indirectly by the volume of sales and advertising expenditures in connection with the [goods] sold under the mark, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the [goods] identified by the mark []; and the general reputation of the [goods].” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017); see also Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305-06 (Fed. Cir. 2002). To demonstrate the commercial strength of its Ô DE L’ORANGERIE, Ô DE LANCÔME and Ô marks, Opposer primarily relies on testimony and exhibits as to: • its use of the LANCÔME mark, emphasizing the Ô, both in the house mark and other trademarks, on products in the United States for more than 70 years;18 • French branding and its adoption of the LANCÔME mark, and Lancôme’s use of the Ô (circumflex O), chiefly taken from its website and various other blog spots and websites,19 which prominently appears on the packaging for all Lancôme products and at cosmetic and fragrance counters and on in- store displays;20 • availability of the Lancôme products, which include perfumery and nail polish, in all 50 states21 at online and brick and mortar retailers, including 18 21 TTABVUE 10 (Meyer decl. ¶ 3). 19 21 TTAVUE 10 (Meyer decl. ¶ 5); 18 TTABVUE 22, 68-101 (Furman decl. ¶¶ 8-10, exhs. C1-2). Opposer is reminded that its internet evidence is only probative for what it shows on its face and not the truth of what has been printed. See Couch/Braunsdorf v. 12 Interactive, 110 USPQ2d at 1467 n.30 (internet webpage evidence admissible only to show what has been printed and not for the truth of what has been printed). 20 21 TTABVUE 10 (Meyer decl. ¶ 6). 21 21 TTABVUE 10 (Meyer decl. ¶ 4). Opposition No. 91219885 - 17 - Neiman Marcus, Nordstrom, Bloomingdales, Macy’s, Saks Fifth Avenue, Bergdorf Goodman, Dillards, Bonton, Belk, Lord & Taylor, Vonmaur, Century 21, Stage Stores, Halls, Ulta, Sephora, Perfumania, through the Home Shopping Network, and Lancome.com, as well as the Army, Air Force and Navy Exchanges;22 • expenditures of more than $1,250,000 to advertise products under the Lancôme Ô marks in the United States prior to Applicant’s filing date and more than $110 million dollars annually for the years 2012 through 2014 to advertise products under the LANCÔME mark in the United States,23 as well as advertising information from AdvertisingAge showing that Lancôme was ranked as one of the “Top 200 Megabrands” in the 2012-2013 editions - specifically number 193 in 2012, number 170 in 2013 and one of the “200 Biggest Brands” in the 2014-2015 editions - specifically number 143 in 2014, and number 168 in 2015;24 and • revenue in excess of $10 million dollars over the past five years for products sold under the Ô mark in the U.S, and for all products from $868,500,000 in 2011 to more than $1 billion in 2015, with over 25 million units sold in the years 2012-2014, including 100,000 units of nail polish sold under the LANCÔME mark in 2013.25 Opposer’s evidence of commercial strength in the form of lengthy use, high sales volume and revenue under the mark, substantial advertising expenditures, and some recognition, shows widespread consumer exposure of Opposer’s LANCÔME mark and reflects some degree of renown of Opposer’s Ô DE LANCÔME mark. We thus find it to be relatively commercially strong, weighing in favor of a finding of likelihood of confusion. However, even if we were to have found that mark to be of average 22 21 TTABVUE 11 (Meyer decl. ¶ 10). 23 21 TTABVUE 11-12 (Meyer decl. ¶¶ 11 and15). 24 21 TTABVUE 12 (Meyer decl. ¶ 14 and 18); TTABVUE 21-22, 25-66 (Furman decl. ¶¶ 3- 7, exhs. B1-4). 25 21 TTABVUE 13 (Meyer decl. ¶ 16). Opposition No. 91219885 - 18 - strength, our ultimate ruling on likelihood of confusion on this record would remain the same. In the context of likelihood of confusion, fame varies along a spectrum from very strong to very weak. Joseph Phelps v. Fairmont Holdings, 122 USPQ2d at 1734 (quoting Palm Bay v. Veuve Clicquot, 73 USPQ2d at 1694). “In view of the extreme deference that is accorded to a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of confusion analysis, we think that it is the duty of a plaintiff asserting that its mark is famous to clearly prove it.” Blue Man Prods. Inc. v. Tarmann, 75 USPQ2d 1811, 1819 (TTAB 2005). While Opposer has shown that its Ô and Ô-formative mark(s) have some recognition apart from the LANCÔME mark, the evidence does not convince us that these “Ô marks” have achieved more than a minimal amount of fame. Therefore, we accord the Ô DE L’ORANGERIE and Ô marks the normal degree of protection to which inherently distinctive marks are entitled. Bell’s Brewery, Inc. v. Innovation Brewing Co., 125 USPQ2d 1340, 1347 (TTAB 2017). E. Similarity/Dissimilarity of the Marks We next consider the similarity or dissimilarity of the marks. In comparing the marks, we consider their appearance, sound, meaning, and commercial impression. Palm Bay v. Veuve Clicquot 73 USPQ2d at 1691. “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 between the parties.” Coach Servs. v. Triumph Opposition No. 91219885 - 19 - Learning, 101 USPQ2d at 1721. “[I]n articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat'l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. L’Oreal v. Marcon, 102 USPQ2d at 1438; 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). Here, the average customer is someone who buys basic cosmetic and beauty items. We have found that this group includes ordinary consumers exercising no more than ordinary care in their purchasing decisions. We compare Opposer’s registered marks and , and its common law Ô mark, as displayed on its eau de toilette bottles as shown in footnote 10 and repeated below, with Applicant’s mark. Registrant’s pleaded marks are dominated by, or solely comprised of, the stylized letter “Ô.” The phrases “DE L’ORANGERIE” and “DE LANCÔME,” which Opposition No. 91219885 - 20 - respectively translate to “of the orange grove” and “‘of’ Lancôme,” are subordinate to, and visually smaller than, the stylized letter “Ô.” Given the marks’ structures and syntax, the wording “DE L’ORANGERIE” and “DE LANCÔME” serve to clarify, in each mark, the nature of the “Ô” portion of the mark. Moreover, the initial stylized letter “Ô” is the first and visually largest component in the Ô DE L’ORANGERIE and Ô DE LANCÔME marks. Purchasers in general are inclined to focus on the first word or portion in a trademark. Presto Products, Inc. v. Nice-Pak Prodts., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is likely to be impressed upon the mind of a purchaser and remembered”); see also Palm Bay v. Veuve Clicquot, 73 USPQ2d at 1692. The dominant or sole portions of Opposer’s marks are extremely similar to Applicant’s applied-for mark in appearance, sound and meaning, all being comprised of a stylized letter “O” topped by an accent mark, often referred to as a circumflex. While the letter “O” in Opposer’s marks is slightly more elongated than in Applicant’s mark and Applicant’s mark does not meet at the top and bottom of the “O,” these differences are unlikely to be noticed or remembered, especially when the respective marks are viewed at different times. The coral color26 of Applicant’s mark also is insufficient to distinguish it from Opposer’s marks because it is a color commonly 26 We take judicial notice of the definition of “coral” which is defined, in part, in THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019), as “[a] deep or strong pink to moderate red or reddish orange.” (www.ahdictionary.com, retrieved March 15, 2019). Opposition No. 91219885 - 21 - used for nail polish and enamels, as well as in connection with other cosmetic items,27 and thus serves to further emphasize the nature of Applicant’s products. We recognize that in comparing the marks, we must consider them in their entireties. We nonetheless find that the similarities between the marks in sound, appearance and meaning due to the shared and very similarly-stylized letter “Ô” outweigh any differences between them, and that they all engender very similar commercial impressions. The du Pont factor of similarity of the marks thus strongly favors a finding of likelihood of confusion. F. Analyzing the Factors After considering all of the evidence made of record pertaining to the issue of likelihood of confusion, as well as all of the arguments related thereto, including any evidence and arguments not specifically discussed in this opinion, we conclude that confusion is likely between Applicant’s mark for “nail enamel; [and] nail polish” and Opposer’s stylized Ô, Ô DE L’ORANGERIE and Ô DE LANCÔME marks for eau de toilette. We conclude so principally due to the substantial similarities between the marks, the relatedness of the goods and the overlapping trade channels and classes of purchasers. Decision: The opposition on the ground of likelihood of confusion is sustained. 27 18 TTABVUE 110, 127, 198, 203, 206, 208 and 212 (Furman decl., exhs. E and G).