Little Moon Essentials, LLC

Trademark Trial and Appeal Board

Jul 24, 2018

No. 86580372 (T.T.A.B. Jul. 24, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 24, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Little Moon Essentials, LLC

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Serial No. 86580372
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Ury Fischer and Noah H. Rashkind of Lott & Fischer PL,
for Little Moon Essentials, LLC.
Marlene Bell, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.
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Before Kuhlke, Greenbaum and Larkin,
Administrative Trademark Judges

Opinion by Greenbaum, Administrative Trademark Judge:
Little Moon Essentials, LLC (“Applicant”) filed an application seeking registration
on the Principal Register of the mark CLEAR MIND (in standard characters) for:
Body sprays in International Class 3.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that

1 Application Serial No. 86580372 was filed on March 30, 2015, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as August 1, 1996 under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
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Applicant’s mark, when used in connection with Applicant’s goods, so resembles the
mark (ClearMind in stylized format), previously registered on the
Principal Register, for “Dietary food supplements” in International Class 5 as to be
likely to cause confusion, mistake or deception.2
When the refusal was made final, Applicant appealed. We affirm the refusal to
register.
I. Applicable Law – Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods or services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d
1944, 1945-46 (Fed. Cir. 2004); 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.”). We discuss below these and other relevant
factors. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123

2 Registration No. 2534205 issued on January 29, 2002; renewed.
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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)).
A. The similarity or dissimilarity of the marks
We begin by comparing Applicant’s standard character mark CLEAR MIND and
Registrant’s stylized mark ClearMind “in their entireties as to appearance, sound,
connotation and commercial impression.” In re Viterra, 671 F.3d 1358, 101 USPQ2d
1905, 1908 (Fed. Cir. 2012) (quoting du Pont, 177 USPQ at 567). See also Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). The marks are virtually identical in all respects,
and Applicant does not contend otherwise.
Applicant concedes that the marks convey the same suggestion of mental clarity
or peace of mind: “[the] mark[s] are comprised of common place words (‘Clear’ and
‘Mind’), with suggestive significance when applied to the goods at issue (e.g., use of
the products will have a mind clearing or calming effect on the purchaser),”3 but
appears to contend that this suggestiveness renders Registrant’s mark weak.4 We
disagree. Although the mark is suggestive, there is no evidence of any third-party

3 8 TTABVUE 12. Applicant raises this argument in connection with its discussion on the du
Pont factor concerning the similarity of the goods.
4 Id. Heading “C” in Applicant’s Brief states: “Consumers expect that goods marketed under
suggestive marks will emanate from different sources.”
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uses or registrations of similar marks in the dietary and nutritional supplement field,
and thus no evidence that the term is commercially weak for such goods. Cf. Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015) (at least fourteen
relevant third-party uses or registrations of record); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015) (at least
twenty-six relevant third-party uses or registrations of record).
The marks are virtually indistinguishable in appearance, and identical in sound,
meaning, and commercial impression, weighing heavily in favor of likely confusion.
B. Goods and Channels of Trade
We next consider the du Pont factors of the relatedness of the goods and the
channels of trade. We must make our determinations under these factors based on
the goods as they are identified in the application and registration. See In re Dixie
Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004-05 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Computs. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
1. Relatedness of Goods
The goods need not be “competitive or intrinsically related” to find a likelihood of
confusion. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1737 (Fed. Cir. 2017). “Instead, likelihood of confusion can be
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found ‘if the respective products are related in some manner and/or the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.’” Coach Servs. Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (internal citation
omitted). We also bear in mind that where, as here, essentially identical marks are
involved, the relationship between the goods need not be as close as may be required
with less similar marks to support a finding of likelihood of confusion. In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-1689 (Fed. Cir. 1993) (“even when the
goods or services are not competitive or intrinsically related, the use of identical
marks can lead to the assumption that there is a common source”). It is only necessary
that there be a viable relationship between the goods to support a finding of likelihood
of confusion. In re Concordia Int’l Forwarding Corp., 225 USPQ 355, 356 (TTAB
1983).
The goods identified in the application are “body sprays,” and the goods identified
in the registration are “dietary food supplements.” The identified goods are related
because they serve the same general purpose: to promote one’s health and well-being.
As noted above, we must consider the goods as they are identified, and Applicant’s
“body sprays” encompass all types of body sprays, including those that are directed
to health and well-being such as aromatherapy body sprays.
The evidence demonstrates that the identified goods also are commercially related.
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First, the Examining Attorney submitted evidence from third-party commercial
websites to show that body sprays and dietary supplements emanate from the same
source under the same mark. In particular:
1. The ULTA website offers body sprays and dietary supplements under the
BLISS mark;5
2. The website for Dreamous shows the DREAMOUS mark used on facial mists
and supplements;6
3. The Heritage Store website offers “Passion Flower Fusion” and castor oil
supplements as well as “Honeysuckle Flower Water” aromatherapy body spray
under the HERITAGE STORE mark;7
4. The Life-flo website shows its mark on liquid iodine and “Complete Body
Cleanse Kit” supplements as well as a body spray with aloe vera;8
5. The website for Melaleuca shows its mark on multivitamins and foot spray;9
and
6. The SkinStore website offers body spray and dietary supplements under the
MURAD mark as well as dry oil body spray and a liquid supplement with
vitamins and minerals under the THALGO mark.10

5 October 24, 2015 Office Action, TSDR 4-11. Citations to the TSDR database are to the
downloadable .pdf format.
6 Id., TSDR 12-15.
7 Id., TSDR 16-21.
8 Id., TSDR 22-28.
9 Id., TSDR 29-37.
10 Id., TSDR 38-47.
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We find this marketplace evidence persuasive to establish that consumers encounter
body spray and dietary supplements being sold by a single entity under the same
mark. See, e.g., In re C.H. Hanson Co., 115 USPQ2d 1351, 1355-56 (TTAB 2015); In
re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).
Next, the Examining Attorney made of record several use-based, third-party
registrations of marks identifying body sprays and dietary or nutritional supplements
(e.g., Reg. No. 4727684 for PHYTOBIOL, Reg. No. 5142745 for SORIECX, and Reg.
No. 5121088 for HEARTSHIINE).11 While third-party registrations are not evidence
that the marks shown therein are in commercial use, or that the public is familiar
with them, such registrations that individually cover a number of different items and
are based on use in commerce may have some probative value to the extent that they
serve to suggest that the listed goods are of a type which may emanate from a single
source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988); see also In re
Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993).
Applicant argues that the Examining Attorney submitted insufficient evidence to
establish that the identified goods are related, and attempts to distinguish the
aforementioned evidence from that which was required in the above-cited cases. We
have considered Applicant’s arguments, and do not find them persuasive. We
recognize that body sprays and dietary supplements have specific differences.

11 June 12, 2017 Final Office Action, TSDR 51-59.
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However, as discussed above, “likelihood of confusion can be found ‘if the respective
products are related in some manner and/or if the circumstances surrounding their
marketing are such that they could give rise to the mistaken belief that they emanate
from the same source.”’ Coach Servs., 101 USPQ2d at 1722. Based upon the ample
evidence of record, we find that the goods identified in the application are related to
the goods identified in the registration, and that they serve the same general purpose
of promoting the user’s well-being. We further find that consumers would believe body
sprays and dietary supplements are goods of a type that may emanate from a common
source.
2. Channels of Trade
Considering the channels of trade and classes of purchasers, because there are no
limitations or restrictions as to trade channels or classes of purchasers in the
identifications of goods in the application or registration, we presume that the
identified goods are or would be marketed in all normal trade channels for such goods
to all normal classes of purchasers of such goods. Stone Lion, 110 USPQ2d at 1161;
see also Coach Servs., 101 USPQ2d at 1722 (absent limitation “goods are presumed
to travel in all normal channels … for the relevant goods.”). The evidence from the
commercial websites listed above reflects that body sprays and dietary supplements
are promoted and sold together through the same websites, either directly online by
the manufacturer, or through a third-party online retailer, reaching the same classes
of consumers, namely, individuals interested in health and well-being, which includes
the general public. Thus, we find that the trade channels and classes of consumers
overlap. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846
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(Fed. Cir. 2000) (affirming Board finding that where the identification is unrestricted,
“we must deem the goods to travel in all appropriate trade channels to all potential
purchasers of such goods”); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Additional marketplace evidence12 from the Professional Supplement Center,
Creation’s Garden, Tunie’s, Meijer, and Vitacost, all of which offer various body
sprays and dietary supplements, confirms this finding. See Anderson, 101 USPQ at
1920. Applicant’s arguments concerning the display of “skin care products” and
“nutritional supplements in different aisles and completely separate sections of the
store”13 are unsupported and, in light of the evidence of record, unpersuasive.
The similarities of the goods and their channels of trade weigh in favor of a finding
of likelihood of confusion.
C. Lack of Actual Confusion
With regard to Applicant's assertion of coexistence with Registrant’s mark for
more than 15 years with no known instances of actual confusion, we first observe that
while a showing of actual confusion would be highly probative, the “lack of evidence
of actual confusion carries little weight, especially in an ex parte context.” Majestic
Distilling, 65 USPQ2d at 1205 (internal citations omitted) (“uncorroborated
statements of no known instances of actual confusion are of little evidentiary value”).

12 June 12, 2017 Final Office Action, TSDR 5-7, 19-39. Walgreens also offers both types of
products. Id. at 8-18. However, we find this evidence less probative because Walgreens is
akin to a “big box store” that carries a wide variety of goods, not all of which are related.
Nonetheless, the evidence from the Walgreens website also corroborates that the trade
channels and classes of purchasers are the same for body sprays and dietary supplements.
13 8 TTABVUE 14.
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See also In re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973)
(stating that self-serving testimony of applicant’s corporate president’s unawareness
of instances of actual confusion was not conclusive that actual confusion did not exist
or that there was no likelihood of confusion). In any event, the record is devoid of
probative evidence relating to whether there have been meaningful opportunities for
actual confusion to have occurred in the marketplace. See Cunningham, 55 USPQ2d
1842, 1847 (Fed. Cir. 2000); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768,
1774 (TTAB 1992). Moreover, the test under Section 2(d) is likelihood of confusion,
not actual confusion. Accordingly, the du Pont factor of the length of time during and
conditions under which there has been contemporaneous use without evidence of
actual confusion is considered neutral.
D. Purchasing Conditions
Finally, we address Applicant’s contentions pertaining to consumer
sophistication. This argument concerns the fourth du Pont factor, the “conditions
under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful,
sophisticated purchasing.” du Pont, 177 USPQ at 567. Applicant argues, without
evidentiary support, that “there is likely to be an extremely high degree of care
exercised when purchasing either internally ingested dietary supplements or
products applied directly to the skin or body.”14 Further, at least with respect to
dietary supplements, Applicant posits that “consumers are likely to take significant

14 8 TTABVUE 14.
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care when purchasing health care items, the misuse of which could cause injury.”15
“[M]ere attorney arguments unsubstantiated by record evidence are suspect at best.”
Martahus v. Video Duplication Servs., Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed.
Cir. 1993). In addition, because there are no limitations in the application or cited
registration, we presume that the goods identified in the application and registration
are available to all potential classes of ordinary consumers. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Integrated Embedded, 120 USPQ2d 1504, 1515 (TTAB 2016). When relevant
consumers include both discerning purchasers and the general public, precedent
requires that we base our decision on the least sophisticated potential purchasers.
Stone Lion, 110 USPQ2d at 1163.
Even assuming that consumers would exercise some degree of care in the purchase
of dietary supplements, some of which are relatively expensive,16 there is no reason
to presume that they also would exercise care in the purchase of body sprays, which
are relatively inexpensive items,17 and are not known to potentially cause damage to
the user. Moreover, to the extent consumers would be expected to exercise at least
some degree of care to ensure they are purchasing the specific dietary supplements
they desire, it is settled that even sophisticated purchasers are not immune from
source confusion, especially where the marks are virtually identical. See In re

15 Id.
16 October 24, 2015 Office Action, TSDR 9, displaying BLISS vitamin packs for $99.
17 October 24, 2015 Office Action, TSDR 24, and June 12, 2017 Office Action, TSDR 19, both
displaying body sprays for less than $10.
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Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ
110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers … are
not infallible.”)).
This du Pont factor is neutral.
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, as they pertain to the relevant du Pont factors. To
the extent that any other du Pont factors not discussed by Applicant may nonetheless
be applicable, we treat them as neutral. We conclude that Applicant’s mark CLEAR
MIND is virtually identical to the cited mark , and that the goods
identified in the application and registration are related products that are directed to
the health and well-being of the purchaser and move through the same channels of
trade to the same class of purchasers. In addition, we find that the purchasing
conditions and absence of actual confusion are neutral, and do not outweigh the other
factors. We therefore find that Applicant’s mark is likely to cause confusion with the
cited mark when used in connection with the goods identified in the application.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.