Marketfleet, Inc.

Trademark Trial and Appeal Board

Feb 20, 2019

EX (T.T.A.B. Feb. 20, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 20, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Marketfleet, Inc.
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Serial No. 87746722
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Ignacio Bellver,
for Marketfleet, Inc.
Joan Blazich, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
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Before Taylor, Wolfson and Greenbaum,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Marketfleet, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark MOONSTONE (in standard characters) for
Bean bag beds; Bean bag chairs; Bean bag pillows;
Furniture made of foam-filled materials; Futon mattresses;
Futons; Lounge chairs; Lounge furniture; Sofas; Chaise
lounges; Cushions; Fabric sold as an integral component of
finished furniture; Fitted furniture covers not of fabric;
Fitted fabric furniture covers; Fitted fabric slipcovers for
Serial No. 87746722
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furniture; Furniture in the nature of sectionals; Pouf
ottomans in International Class 20.1
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 the
mark is likely to be confused with the two commonly owned registered marks listed
below:2
MOONSTONE (in typed format3) for “sleeping bags”
in International Class 20;4 and
MOONSTONE and design, shown below, for
sleeping bags in International Class 20.5

When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.

1 Application Serial No. 87746722 was filed on January 8, 2018, based upon Applicant’s claim
of first use of the mark anywhere and in commerce since at least as early as November 15,
2017.
2 The Examining Attorney also required Applicant to amend the identification of goods to
correct punctuation to clarify the individual items in the list of goods. The Examining
Attorney indicated in her April 2, 2018 Final Office Action that Applicant had satisfied the
identification requirement.
3 Effective November 2, 2003, the term “standard character” drawing replaced the term
“typed” drawing. TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct.
2018).
4 Registration Nos. 1674263 issued February 4, 1992; renewed.
5 Registration No. 2299948 issued December 14, 1999; renewed.
Serial No. 87746722
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I. Evidentiary Issues
Applicant included for the first time with its reply brief webpage printouts from
the websites of Crate&Barrel, Big Agnes, Coleman, CordaRoy’s and Yogibo within
the body of the brief, and Exhibits A-H thereto, consisting of webpage printouts from
the websites of Bed Bath & Beyond, The Company Store, Hayneedle, KidKraft,
Lands’ End, PBteen, pottery barn kids, and RH TEEN, and argued against the
probative value to be given the Examining Attorney’s Internet evidence, discussed
infra. Because Applicant’s Internet materials were not made of record until after the
filing of the appeal, they are untimely and will be given no further consideration.6 See
Trademark Rule 2.142(d), 37 C.F.R. § 142(d) (“The record in the application should
be complete prior to the filing of an appeal. Evidence should not be filed with the
Board after the filing of a notice of appeal.”). See also In re Zanova Inc., 59 USPQ2d
1300, 1302 (TTAB 2001) (“By attempting to introduce evidence with its reply brief,
applicant has effectively shielded this material from review and response by the
Examining Attorney.”). Any arguments based solely on the untimely materials also
will not be considered.
Applicant, throughout prosecution of its application, also included various links
to Internet websites as support for many of its arguments. Applicant did not attach
any webpages from these websites, and merely providing a link to an Internet site

6 The Board does not take judicial notice of Internet materials of the type submitted by
Applicant. If Applicant desired to introduce additional evidence, it could have requested
suspension of the proceeding and remand of the application for further examination. See
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d).
Serial No. 87746722
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cannot guarantee its authenticity because the nature of a web site is dynamic, not
static. See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1195 n.21 (TTAB 2018)
(“we do not consider websites for which only links are provided); In re Olin Corp., 124
USPQ2d 1327, 1332 n.15 (TTAB 2017) (“Because the information displayed at a link’s
Internet address can be changed or deleted, merely providing a link to a website is
insufficient to make information from that site of record.”); In re HSB Solomon
Associates, LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (the Board will not utilize a
link or reference to a website’s Internet address to access the site to consider whatever
content may appear therein); In re Planalytics Inc., 70 USPQ2d 1453, 1458 (TTAB
2004) (links are not enough to make websites of record). Accordingly, the
unsubstantiated arguments have diminished probative value.
II. Applicable Law/Limitation of Cited Registration
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (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 Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors.
Serial No. 87746722
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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).
In analyzing likelihood of confusion, we limit our discussion to Registration
No. 1674263 (‘263 Reg.) for the mark MOONSTONE (in typed format) for “sleeping
bags” because the mark in Registration No. 2299948 (‘948 Reg.) includes points of
difference not present in the typed mark. If we find no likelihood of confusion with
the typed mark, then it follows there would be no likelihood of confusion with the
mark in the ‘948 Reg. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245
(TTAB 2008) (confining likelihood of confusion analysis to one of multiple cited
registrations deemed closest to the applied-for mark).
III. Likelihood of Confusion Analysis
A. Similarity/Dissimilarity of the Marks
We first turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks, and compare the marks, as we must, in their
entireties in terms of appearance, sound, meaning and commercial impression. See
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin En 1722, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). Applicant’s mark MOONSTONE is identical to
Registrant’s cited mark MOONSTONE in sound, appearance and connotation, and is
likely to convey the same commercial impression when considered in connection with
Applicant’s and Registrant’s respective goods.
Serial No. 87746722
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While Applicant, in passing, suggests that the marks differ in connotation
apparently because of the presence of the stylized design, we point out that the design
is included in only one of the cited marks, and we have confined our discussion to the
typed mark. In any event, there is nothing in the record that indicates that the term
“MOONSTONE” (with or without the moon design – which merely enhances the
connotation of the term “MOONSTONE” as having to do with the moon) has any
meaning with regards to any of the goods at issue and, accordingly, is likely to convey
the same arbitrary commercial impression in both Applicant’s and Registrant’s
marks.
This du Pont factor thus weighs heavily in favor of finding a likelihood of
confusion.
B. Relatedness of the Goods
We now consider the goods, keeping in mind that the greater the degree of
similarity between the marks at issue, the lesser the degree of similarity between the
respective goods that is required to support a finding of likelihood of confusion. In re
Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB 2001); In re Concordia International
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983). Where, as in this case, the
applicant’s mark is identical to the registrant’s mark, there need only be a viable
relationship between the goods to find that there is a likelihood of confusion. See In
re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even when
the goods or services are not competitive or intrinsically related, the use of identical
Serial No. 87746722
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marks can lead to the assumption that there is a common source”); Concordia
International Forwarding Corp., 222 USPQ at 356.
Indeed, it is well settled that the goods of Registrant and Applicant need not be
identical or competitive, or even be offered through the same channels of trade, to
support a holding of likelihood of confusion. It is sufficient that the respective goods
are related in some manner, and/or that the conditions and 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. See Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d. 1356, 101 USPQ2d 1713, 1723 (Fed. Cir.
2012); Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d
1423 (TTAB 1993). The issue here, of course, is not whether purchasers would confuse
the goods, but rather whether there is a likelihood of confusion as to the source of
these goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel
Inc., 223 USPQ 830 (TTAB 1984).
In making our determination regarding the similarity or relatedness of the goods,
we must look to the goods as identified in the application and the cited registration.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Houston Computers Servs.,
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co.,
97 USPQ2d 1990, 1991 (TTAB 2011).
Serial No. 87746722
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Applicant’s goods are identified as “bean bag beds; bean bag chairs; bean bag
pillows; furniture made of foam-filled materials; futon mattresses; futons; lounge
chairs; lounge furniture; sofas; chaise lounges; cushions; fabric sold as an integral
component of finished furniture; fitted furniture covers not of fabric; fitted fabric
furniture covers; fitted fabric slipcovers for furniture; furniture in the nature of
sectionals; [and] pouf ottomans” and Registrant’s goods are identified as “sleeping
bags.”
The Examining Attorney maintains that the goods are related because “the same
entity commonly manufactures, produces, and provides the relevant goods and
market[s] the goods under the same mark, and that [because] the relevant goods are
sold or provided through the same trade channels for use by the same classes of
consumers in the same fields of use they are of a type that are commonly provided.”7
In support of this position, the Examining Attorney made of record webpages from
various websites showing use of the same mark for one or more goods of the type
identified in Applicant’s application and the cited registration.
The Internet uses include:8

7 9 TTABVUE 7.
8 The Examining Attorney also made of record excerpts from the websites of Big Agnes
(February 26, 2018 Office Action; TSDR 9), Coleman (February 26, 2018 Office Action; TSDR
10), Kelty (February 26, 2018 Office Action; TSDR 12-13) and SJK Slumberjack (February
26, 2018; TSDR 14-15). While these websites feature both chairs and sleeping bags sold under
the same mark by the same entity, we find this evidence has little to no probative value
because the chairs identified in the application are restricted to “lounge chairs,” while the
chairs on these websites are clearly for camping purposes.
We also have not considered the webpages from CordaRoy’s (February 26, 2018 Office
Action; TSDR 11) because they neither show use of the same mark on goods of a type
identified in both Applicant’s application and the cited registration nor, as the Examining
Serial No. 87746722
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• The Company Store (www.thecompanystore.com)9 showing
furniture, including chairs and bedding, including “slumber sack
and bags”10 sold under the THE COMPANY STORE mark;
• Crate & Barrel (www.crateandbarrel.com)11 showing bean bag
chairs and poufs, furniture, including sofas and chairs and
sleeping bags sold under the CRATE & BARREL mark;
• Hayneedle (www.hayneedle.com)12 showing bean bag chairs and
furniture, including sofas and chairs and sleeping bags sold under
the HAYNEEDLE mark;

Attorney suggests, that a single product performs the functions of both a bean bag chair and
a sleeping bag.
We also find the webpages from the website of YOGIBO (February 26, 2018 Office Action;
TSDR 16) unpersuasive because they do not show use by the same entity of the same mark
for goods of a type identified in both the involved application and the cited registration. We
likewise find this deficiency in the materials from the Bed Bath and Beyond website. (April
2, 2018 Final Office Action; TSDR 7- 9). However, while those materials are not probative to
show that the same entity uses the same mark on goods of a type identified in both
Applicant’s application and the cited registration, they are somewhat probative to show that
the same store offers for sale both bean bag chairs and other furniture items and sleeping
bags.
The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations
reference the docket and electronic file databases for the involved application. All citations
to the TSDR database are to the downloadable .pdf version of the documents. Complete URLs
may be found in the cited TSDR records.
9 April 2, 2018 Final Office Action; TSDR 10-17.
10 We consider “slumber bags” to be synonymous with “sleeping bags.”
11 April 2, 2018 Final Office Action; TSDR 18-28.
12 Id. at TSDR 29-31.
Serial No. 87746722
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• Kid Kraft (www.kidkraft.com)13 showing kid’s furniture,
including chairs and sleeping bags sold under the KID KRAFT
mark;
• Lands’ End (www.landsend.com)14 showing bean bag chairs and
sleeping bags sold under the LANDS’ END mark;
• PBteen (www.pbteen.com)15 showing bean bags, furniture,
including sofas and futons and sleeping bags sold under the
PBteen mark;
• pottery barn kids (www.potterybarnkids.com)16 showing bean
bags, furniture, including sofas and futons and sleeping bags sold
under the “pottery barn kids” mark; and
• RH Teen (www.rhteen.com)17 showing bean bags, poufs and
furniture, including sectionals and chairs, and sleeping bags sold
under the RH TEEN mark.
The Examining Attorney also made of record printouts of eleven (11) use-based,
third-party registrations for marks covering one or more of the goods identified in
Applicant’s application, e.g., bean bag chairs, cushions, poufs and ottomans, and

13 Id. at TSDR 32-36.
14 Id. at TSDR 37-44.
15 Id. at TSDR 45-57.
16 Id. at TSDR 58-60.
17 Id. at TSDR 61-76.
Serial No. 87746722
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“sleeping bags,” the only goods identified in the cited registration.18 Third-party
registrations that individually cover different goods and that are based on use in
commerce serve to suggest that the listed goods are of a type that may emanate from
a single source. See Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)
(Although third-party registrations are “not evidence that the marks shown therein
are in use on a commercial scale or that the public is familiar with them, [they] may
nonetheless 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”).
See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993). A
sampling of the registrations, as excerpted below, follow:
Registration
No.
Mark Pertinent Goods19
5241721 ZOLO Bean bag chairs, cushions, poufs and
ottomans and sleeping bags
4850578 SANRIO Bean bag chairs and ottomans and
sleeping bags
4850605 HELLO KITTY Bean bag chairs and ottomans and
sleeping bags
5030621

(IH DUSTRIAL HOME and design, as
shown above)
Bean bag chairs, fitted fabric furniture
covers, pillows, and ottomans and
sleeping bags
5381398

(SACRAMENTO KINGS and design,
as shown above)
Bean bag chairs and sleeping bags
5095394 MOIOM Bean bag pillows and cushions and
sleeping bags
5404817 RH BABY & CHILD Sofas, bean bag chairs and cushions and
sleeping bags
5267698 VALDLER Bean bag chairs and sleeping bags

18 February 26, 2018 Office Action; TSDR 17-48.
19 The registrations include additional goods and/or services that are not at issue here.
Serial No. 87746722
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We find this evidence sufficient to show that, at a minimum, Applicant’s “bean
bag beds; bean bag chairs; lounge chairs, sofas; and pouf ottomans” are commercially
related to Registrant’s “sleeping bags,” such goods all being household items that may
emanate from the same source under the same mark. The Trademark Examining
Attorney need not prove, and we need not find, similarity as to each and every product
listed in Applicant’s description of goods. It is sufficient for a refusal based on
likelihood of confusion that relatedness is established for any item encompassed by
the identification of goods in a particular class in the application. Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In
re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015); Inter IKEA Sys. B.V. v.
Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
We find Applicant’s arguments to the contrary unpersuasive and we address each
in turn. First, Applicant challenges the probative value of the Examining Attorney’s
evidence demonstrating the relatedness of the goods20 by introducing third-party
registrations for marks presumably owned by some of the same entities featured in
the third-party use evidence. That these entities may not have registered their marks
for all of the goods on which their respective marks are used does not detract from
the probative value of the Internet evidence which, on its face, shows such use of a
single mark for goods of the types identified in both Applicant’s application and the

20 We find Applicant’s challenge to the Examining Attorney’s evidentiary materials from the
websites of Big Agnes, Coleman, CordaRoy’s, Kelty, SJK Slumberjack and Yogibo moot,
inasmuch as we have not considered this evidence in our decision for the reasons enumerated
in footnote 7.
Serial No. 87746722
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cited registration. Applicant’s arguments and extrinsic evidence challenging the
breath of the goods covered by the third-party registrations similarly are unavailing.
Those third-party registrations are entitled to the presumptions afforded by Section
7(b) of the Trademark Act, 15 U.S.C. §1057(b), which provides that a federal
trademark registration on the Principal Register “shall be prima facie evidence … of
the owner's exclusive right to use the registered mark in commerce on or in
connection with the goods or services specified in the
certificate …. ” (emphasis added).
We likewise are not persuaded by Applicant’s attempt to distinguish the goods by
introducing extrinsic evidence, including dictionary definitions of “furniture” and
“sleeping bags,” to support its contention that its goods are “items in a room,” whereas
Registrant’s sleeping bags are “insulated items for outside use.” However, even if the
primary purpose of a sleeping bag may be for sleeping outdoors, they are suitable for
sleeping indoors and for use as furniture coverings or throws. Moreover, because
Registrant’s identification does not limit the recited “sleeping bags” to outside use,
we must presume that they include sleeping bags designed to be used in an indoor
room. Indeed, it is well established that an applicant may not restrict the scope of its
goods or the scope of the goods covered in the cited registration by extrinsic argument
or evidence. See, e.g., In re Midwest Gaming & Entertainment LLC, 106 USPQ2d
1163, 1165 (TTAB 2013); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB
2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986).
Serial No. 87746722
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Last, that Applicant must provide suffocation warnings for its products, while
Registrant assertedly is not so required, does not lead us to conclude that the goods
are not commercially related.
As stated, the record convinces us that Applicant’s “bean bag beds; bean bag
chairs; lounge chairs, sofas; and pouf ottomans” are commercially related to
Registrant’s “sleeping bags” for purposes of finding a likelihood of confusion.
Accordingly, the du Pont factor focusing on the relatedness of the goods favors a
finding of likelihood of confusion.
C. Channels of Trade/Classes of Purchasers
Because there are no limitations as to channels of trade or classes of purchasers
in Applicant’s or Registrant’s identifications of goods, we must presume that
Applicant’s and Registrant’s goods move in all channels of trade usual for these goods.
See In re Detroit Athletic, 128 USPQ2d 1047, 1052 (TTAB 2018) (citing i.am.symbolic,
866 F.3d at 1327 (“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 Applicant’s and Registrant’s goods
include online and brick and mortar home furnishing and department stores, which
are purchased by the usual classes of purchasers, which in this case include ordinary
consumers. We accordingly find the channels of trade and the classes of consumers of
Applicant’s and Registrant’s goods to overlap.
This du Pont factor thus favor a finding of likelihood of confusion.
Serial No. 87746722
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D. Conclusion
When we consider all of the arguments and evidence relating to the relevant
likelihood of confusion factors, even if not specifically discussed in this opinion, we
find that confusion is likely between Applicant’s mark MOONSTONE for “bean bag
beds; bean bag chairs; bean bag pillows; furniture made of foam-filled materials; futon
mattresses; futons; lounge chairs; lounge furniture; sofas; chaise lounges; cushions;
fabric sold as an integral component of finished furniture; fitted furniture covers not
of fabric; fitted fabric furniture covers; fitted fabric slipcovers for furniture; furniture
in the nature of sectionals; [and] pouf ottomans” and the cited registered mark
MOONSTONE for “sleeping bags.” We find so principally due to the identity of the
marks, the commercial relatedness of the goods, and the overlap in purchasers and
trade channels.
Decision: The refusal to register Applicant’s mark MOONSTONE under Section
2(d) of the Act is affirmed.