Mattress Firm, Inc.

Trademark Trial and Appeal Board

Sep 30, 2015

No. 86116171 (T.T.A.B. Sep. 30, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Mattress Firm, Inc.
_____

Serial No. 86116171
_____

Jeffrey M. Becker of Haynes and Boone LLP,
for Mattress Firm, Inc.
Brian Pino, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Cataldo, Kuczma and Greenbaum,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Mattress Firm, Inc. (“Applicant”) seeks registration on the Principal Register of
the mark SLEEPCORE (in standard characters) for:

beds; mattresses; mattress frames; mattress foundations;
box springs in International Class 20.1

1 Application Serial No. 86116171 was filed on November 12, 2013, 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).
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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), citing the
following registration owned by Pacific Coast Feather Company:
Registration No. 4222894
Mark: CORE SLEEP
For: pillows in International Class 20.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under § 2(d) is based on an analysis of all probative facts in
evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. 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., Inc., 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. See 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.”). In this case, we also consider the similarity of the trade
channels, and the classes and sophistication of purchasers for the goods.

2 Issued October 9, 2012, based on an application filed on July 7, 2011, claiming ownership
of Registration No. 2798849 for the mark SLUMBER CORE. The mark consists of standard
characters and “SLEEP” is disclaimed.
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A. Similarity of the Goods
We first consider the du Pont factor involving the similarity or dissimilarity of
Applicant’s goods, “beds, mattresses, mattress frames, mattress foundations, box
springs,” in relation to the “pillows” in the cited Registration. The question of
likelihood of confusion is determined based on the description of the goods in the
application and registration at issue. See, e.g., Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (quoting
Octocom Systems Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990)); In re Hughes Furniture Industries, Inc., 114 USPQ2d
1134, 1137 (TTAB 2015).
The fact that the goods of the parties differ is not controlling in determining
likelihood of confusion. The issue is not likelihood of confusion between particular
goods, but likelihood of confusion as to the source or sponsorship of those goods. In
re Majestic Distilling Co., 65 USPQ2d at 1205; In re Shell Oil Co., 26 USPQ2d 1687,
1689.
The respective goods need only be “related in some manner and/or if the
circumstances surrounding their marketing [be] such that they could give rise to the
mistaken belief that [the goods and/or services] emanate from the same source.”
Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713,
1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). Thus, it is not necessary that goods be similar or even competitive to
support a finding of likelihood of confusion. It is sufficient if the goods are related
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in some manner and/or that the conditions surrounding their marketing are such
that they would be encountered by the same persons under circumstances that
could, because of the marks used thereon, give rise to the mistaken belief that they
emanate from or are associated with the same source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783 (TTAB 1993).
The evidence establishes that the goods at issue are marketed by the same
entities and sold under the same or very similar marks. Applicant itself owns
trademark and retail store service mark registrations which include furniture, beds,
mattresses . . . box springs, mattress toppers, and pillows.3 Additionally, the
original identification of goods at the time of filing the present application included
pillows. Thus, the beds, mattresses, mattress frames and foundations, and box
springs in Applicant’s application are related to the pillows in the cited
Registration, all being complementary products that are used together for sleep or
rest.
As shown by the Internet evidence submitted by the Examining Attorney,
mattresses and pillows are sold on-line by the Mattress Firm, YūMē, and Sealy.
They are also marketed together and sold online by retailers such as Walmart,

3 See February 25, 2014 Office Action: Reg. No. 3721030 SLEEP RX PRESSURE
RELIEVING TECHNOLOGY retail store services featuring mattresses, pillows . . .
mattress pads, bed sheets, pillow cases, bed covers and mattress protectors, TSDR pp. 21-
23; Reg. No. 3053436 WE MAKE IT EASY TO GET A GREAT NIGHT’S SLEEP retail store
services featuring sleep products, namely mattresses, pillows, mattress pillow tops, and
mattress protective liners, TSDR pp. 25-26; Reg. No. 4317518 CLIMATE CONTROL
SLEEP FOR YOU AND ME and Design for furniture, beds, mattresses . . . box springs,
mattress toppers, and pillows, TSDR pp. 49-51; 4015066 SAVE MONEY. SLEEP HAPPY
for retail stores services featuring furniture, beds, mattresses . . . box springs, mattress
covers, mattress pads, mattress toppers, pillows, pillow covers and sleep-related products,
TSDR pp. 52-53.
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Sleep Like the Dead, and BedInABox.com.4 In addition, Applicant and several other
entities have registered trademarks for goods including mattresses, other bed
products and pillows.5 Thus, Applicant’s goods and Registrant’s goods may emanate
from a common source and are offered to the same potential customers.
In view of the foregoing, we find that Applicant’s and Registrant’s goods are
complementary items that often are used together for sleeping or resting and are
therefore related, supporting a likelihood of confusion. See e.g., In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)
(holding bread and cheese to be related because they are often used in combination
and noting that “[s]uch complementary use has long been recognized as a relevant
consideration in determining a likelihood of confusion”); In re Davey Products Pty
Ltd., 92 USPQ2d 1198, 1202-03 (TTAB 2009); In re Toshiba Medical Systems Corp.,

4 See September 9, 2014 Final Office Action, TSDR pp. 10-14, 16-17, 18-25, 26, 27-28, 29-30.
5 See September 9, 2014 Final Office Action, Reg. No. 4206466 (Mattress Firm, Inc.), TSDR
pp. 32-33; Reg. No. 4317518 (Mattress Firm, Inc.), TSDR pp. 34-36; Reg. No. 4342934
(Mattress Firm, Inc.), TSDR pp. 37-38; Reg. No. 3954715 (Perry Textiles), TSDR pp. 39-40;
Reg. No. 3968000 (Future Foam, Inc.), TSDR pp. 41-42; Reg. No. 3980790 (Zinus Inc.),
TSDR pp. 43-45; Reg. No. 3980794 (Michael Rothbard), TSDR pp. 46-47; Reg. 3965827
(Relief-Mart, Inc.), TSDR pp. 48-49; Reg. No. 4071650 (Springs Creative Products Group,
LLC), TSDR pp. 50-52; Reg. No. 4005237 (Winco Bedding USA, L.L.C.), TSDR pp.53-55;
Reg. No. 4161824 (Mirage Resorts, Inc.), TSDR pp. 56-58; Reg. No. 3977160 (John E.
Webb), TSDR pp. 59-61; Reg. No. 3974161 (Rylaxing, LLC), TSDR pp. 62-63; Reg. No.
4206615 (Fit for Life Sleep, Inc.), TSDR pp. 64-65; Reg. No. 4025202 (Carolina Mattress
Guild, Inc.), TSDR pp. 66-67; Reg. No. 4172349 (B Hotel Group LLC), TSDR pp. 68-69; Reg.
No. 3972045 (Zinus Inc. dba Vivon Life Corporation), TSDR pp. 70-71; Reg. No. 3972047
(Zinus Inc. dba Vivon Life Corporation), TSDR pp. 72-73; Reg. No. 4292786 (Kickball
Concepts, LLC), TSDR pp. 74-76; Reg. No. 3974702 (Michael Rothbard), TSDR pp. 77-78;
Reg. No. 3989442 (Richard Scott Freeson dba New World Mattress), TSDR pp. 79-80; Reg.
No. 3978121 (Boyd Specialty Sleep Corp.), TSDR pp. 81-82; Reg. No. 4116374 (Mattress
Firm, Inc.), TSDR pp. 83-85; Reg. No. 4230550 (Mattress Firm, Inc.), TSDR pp. 86-88; Reg.
No. 4226360 (Mattress Firm, Inc.), TSDR pp. 89-91; Reg. No. 4292832 (Mattress Firm Inc.),
TSDR pp. 92-94.
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91 USPQ2d 1266, 1271-72 (TTAB 2009) (holding medical MRI diagnostic apparatus
and medical ultrasound devices to be related, based in part on the fact that such
goods have complementary purposes because they may be used by the same medical
personnel of the same patients to treat the same disease).
B. Similarity of Trade Channels and Classes of Purchasers
Because there is no limitation as to trade channels or classes of purchasers in
the description of goods in either the application or the cited registration, we must
presume that Applicant’s bedding products and Registrant’s pillows are marketed
in all normal trade channels for such goods and to all normal classes of purchasers
for such products. See In re Anderson, 101 USPQ2d 1912, 1920 (TTAB 2012); In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992); In re Elbaum, 211 USPQ 639,
640 (TTAB 1981).
The evidence establishes that the parties’ goods are sold or provided through the
same trade channels for use by the same classes of customers in the same fields of
use.6 Given the relationship between pillows and bedding products shown above,
Registrant’s customers are part of the general consuming public for Applicant’s
mattresses and bedding products. To the extent that Applicant’s and Registrant’s
goods are offered to the general consuming public, the channels of trade and classes
of purchasers overlap. This overlap weighs in favor of a finding of likelihood of
confusion, under the third and fourth du Pont factors. In re Wilson, 57 USPQ2d
1863, 1866 (TTAB 2001).

6 See September 9, 2014 Final Office Action, TSDR pp. 10-14, 18-25,
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C. Similarity of the Marks
In any likelihood of confusion determination, the marks are compared in their
entireties for similarities in appearance, sound, connotation, and commercial
impression. E.I. du Pont, 177 USPQ at 567; In re Viterra Inc., 101 USPQ2d 1905,
1908 (Fed. Cir. 2012). Although the court may place more weight on a dominant
portion of a mark, for example if another feature of the mark is descriptive or
generic standing alone, the ultimate conclusion nonetheless must rest on
consideration of the marks in total. In re Viterra, 101 USPQ2d at 1908; Packard
Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir.
2000); In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir.
1985). Thus, the fact that the word “SLEEP” is disclaimed in the cited Registration
does not mean that it is not relevant to the assessment of similarity. In re Shell Oil
Co., 26 USPQ2d at 1689. Confusion is evaluated from the perspective of the
purchasing public which is not aware that certain words or phrases have been
disclaimed. In re National Data Corp., 224 USPQ2d at 751.
Although the marks at issue are not identical, when comparing marks, the test
is not whether the marks can be distinguished in a side-by-side comparison, but
rather whether the marks are sufficiently similar in terms of their overall
commercial impression that confusion as to the source of the goods offered under
the respective marks is likely to result. Midwestern Pet Foods, Inc. v. Societe des
Produits Nestle S.A., 685 F.3d 1046, 1053, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012);
In re Davia, 110 USPQ2d 1810, 1813 (TTAB 2014). The proper focus is on the
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recollection of the average purchaser, who retains a general rather than specific
impression of trademarks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB
2012); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant’s mark SLEEPCORE and Registrant’s mark CORE SLEEP are similar
in sound, appearance and connotation, due to the identical terms CORE and SLEEP
comprising the marks. Because the marks consist of reverse combinations or
transpositions of the same words we must consider the commercial impressions
conveyed by each mark.
Applicant offers several articles to show that Registrant’s mark CORE SLEEP is
a term of art that describes a sleep stage.7 Applicant’s articles use the term “core
sleep” to describe the period of time when one is longest asleep8, the initial sleep
period of the night9, “about 5.5 hours of sleep, or what is called ‘core sleep’”10, “[c]ore
sleep is the essential part of the sleep and is mainly slow wave sleep. . . . Core sleep
is obtained during the first three sleep cycles and the remainder of the night sleep is

7 Applicant’s Brf. p. 6 (4 TTABVUE 12).
8 Core Sleep published in Sleep Polyphasic at
http://www.sleeppolyphasic.com/articles/core sleep.php, Response to Office Action, TSDR
p. 13 of 52.
9 Sleep debt: Theoretical and empirical issues* by Hans Pa Van Dongen, Naomi L. Rogers
and David F. Dinges, Sleep and Biological Rhythms 2003, 1:5-13, p. 7 © 2003 Japanese
Society of Sleep Research, attached to Response to Office Action, TSDR p. 14-17 of 52.
10 Core Sleep and the Effects of Insomnia by Dr. Gregg Jacobs August 22, 2014,
http://www.truestarhealth.com/members/cm archives13ml3plal.html © Copyright 2014,
Truestar Health Inc., attached to Response to Office Action, TSDR p. 18 of 52.
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considered optional sleep.”11 Based on these articles, Applicant argues that “core
sleep” is a term of art in the relevant field of sleep-related goods and services.12
Applicant maintains that Registrant’s CORE SLEEP mark has a well-known
meaning in the “industry” and is “descriptive of the covered goods” while Applicant’s
mark is a fabricated word with no meaning in any context; thus the two marks
create different commercial impressions.13 Even if we accept that “core sleep” is a
term used to describe a sleep phase, this does not mean that the term is “a term of
art” for, or merely descriptive of, pillows. Nor does it affect the trademark rights
borne by Registrant’s federal registration of CORE SLEEP as a trademark for
pillows. Furthermore, to the extent Applicant’s argument that the registered mark
is “descriptive of the covered goods” is an attack on the validity of Registrant’s
registration, such arguments are not permitted in an ex parte proceeding. In re
Dixie Restaurants, Inc., 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). We must accord the
cited registration the presumption of validity provided for in § 7 of the Trademark
Act, 15 U.S.C. § 1057.
Applicant also contends its mark SLEEPCORE is a fabricated word that is not a
term of art in the industry and has no definition. Although it has no denotation
according to Applicant, Applicant argues that it connotes an integral or
foundational sleeping product such as a bed. Thus, when consumers see Applicant’s

11 Aging of core and optional sleep. A. Wauquier and B. van Sweden, Biol Psychiatry, 1992
May 1; 31(9):866-80 http://www.ncbi.nlm.nih.gov/pubmed/1637928, attached to Response
to Office Action, TSDR p. 19 of 52.
12 Applicant’s Brf. p. 4 (4 TTABVUE 10).
13 Applicant’s Brf., p. (4 TTABVUE 4); Reply Brf. p. 4 (7 TTABVUE 8).
Serial No. 86116171
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mark, they will not identify it as a sleep cycle as they do with the cited mark;
instead, Applicant contends its mark creates the commercial impression that the
goods it covers are foundational sleeping products such as beds or mattresses. While
acknowledging that its mark SLEEPCORE is a transposition of the cited mark
CORE SLEEP, confusion is not likely according to Applicant because the
transposition of the CORE SLEEP mark to SLEEPCORE changes the overall
commercial impression.14
The Examining Attorney disagrees that Applicant’s SLEEPCORE mark is
limited to one particular connotation. Instead, he maintains that Applicant’s mark
has the same general overall impression as the mark in the cited Registration as
both marks are related to sleep and particularly to core sleep. Because Applicant’s
mark SLEEPCORE is not limited to any single particular connotation that is
fundamentally different than the cited mark CORE SLEEP, the Examining
Attorney concludes that both marks create the same general connotation.
Confusion is likely between two marks consisting of reverse combinations of the
same elements if they convey the same meaning or create substantially similar
commercial impressions. See, e.g., In re Wine Society of America Inc., 12 USPQ2d
1139, 1142 (TTAB 1989) (holding THE WINE SOCIETY OF AMERICA and design,
for “wine club membership services including the supplying of printed materials,
sale of wines to members, conducting wine tasting sessions and recommending
specific restaurants offering wines sold by applicant,” likely to be confused with

14 Applicant’s Brf. p. 6 (4 TTABVUE 12).
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AMERICAN WINE SOCIETY 1967 and design, registered for a newsletter, bulletin
and journal of interest to members of the registrant); Bank of America National
Trust and Savings Association v. The American National Bank of St. Joseph, 201
USPQ 842, 845 (TTAB 1978) (“the words ‘BANKAMERICA’ and ‘BANK OF
AMERICA’, on the one hand, and ‘AMERIBANC’, on the other, convey the same
meaning and create substantially similar commercial impressions”); In re
Nationwide Industries Inc., 6 USPQ2d 1882, 1884 (TTAB 1988) (in finding RUST
BUSTER, with “RUST” disclaimed, for a rust-penetrating spray lubricant likely to
be confused with BUST RUST for a penetrating oil, we held that “the reversal in
one mark of the essential elements of another mark may serve as a basis for a
finding of no likelihood of confusion only if the transposed marks create distinctly
different commercial impressions.”); TMEP §1207.01(b)(vii).
Contrary to Applicant’s argument, the term “core sleep” is not a term of art in
the “relevant field of sleep-related goods and services.” Rather, based on Applicant’s
evidence “core sleep” is a term of art for a particular type of sleep. The evidence does
not show that “core sleep” is brought about by certain products. Thus, the terms
CORE and SLEEP contained in each mark are likely to convey an overall similar
meaning.
The transposition of marks may serve as a basis to distinguish between them
when the reversed combination creates a distinctly different connotation and/or is
readily distinguishable in sound and appearance. In re Akzona Inc., 219 USPQ 94,
96 (TTAB 1983) (“Applicant’s mark ‘SILKY TOUCH,’ conveys the impression that
Serial No. 86116171
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applicant’s synthetic yarns are silky to the touch. On the other hand, registrant’s
mark ‘TOUCH O’ SILK,’ suggests that registrant’s clothing products contain a small
amount of silk.”); Murphy, Brill and Sahner, Inc. v. New Jersey Rubber Company,
102 USPQ 420 (Commr. Pat. 1954) (finding that TOPFLITE for shoe soles conveys a
different meaning than FLITE TOP for hosiery).
In this case, however, not only do CORE SLEEP and SLEEPCORE engender the
same connotation when used on complementary and related goods, but the
resemblances between them in sound and appearance are such that considering
that the average individual is not infallible in his or her recollection of trademarks
and is prone to transpose marks, little distinction can be drawn between them.15 See
Carlisle Chemical Works, Inc. v. Hardman & Holden, 434 F.2d 1403, 168 USPQ 110
(CCPA 1970) (reversing dismissal of oppositions to registration of COZIRC based on
use of ZIRCO for related goods, finding that the marks “are substantially similar,
the difference being in a reversal of syllables which are essentially the same”); In re
General Tire & Rubber Company, 213 USPQ 870 (TTAB 1982) (affirming refusal to
register SPRINT STEEL RADIAL for pneumatic tires based on registration for
RADIAL SPRINT for vehicle tires, finding that the marks “convey the same
meaning, that is, a steel radial tire called ‘SPRINT’ or a radial tire called ‘SPRINT’
both of which could emanate from the same source”); Plus Products v. Physicians
Formula Cosmetics, Inc., 198 USPQ 111, 114 (TTAB 1978) (“… the use of identical
terms in inverse order as we have in the present case is likely to cause confusion in

15 Indeed, in addition to its registered CORE SLEEP mark, Registrant also owns
Registration No. 2798849 for the mark SLUMBER CORE for pillows.
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trade when used on such closely related cosmetic products”); In re Wm. E. Wright
Co., 185 USPQ 445, 446 (TTAB 1975) (FLEXI-LACE confusingly similar to LACE-
FLEX); In re Altantic Gulf Service, 184 USPQ 828, 830 (TTAB 1974) (ATLANTIC
GULF SERVICE so resembles GULF ATLANTIC as to be likely to cause confusion);
Fisher Scientific Company v. Ipco Hospital Supply Corporation, 165 USPQ 471, 472
(TTAB 1970) (sustaining opposition to MIX O THERM based on THERMIX used for
identical goods, stating “they are in their essentials merely reverse combinations of
the same words, and such being the case, would more than likely convey
substantially the same commercial impressions”); Royal Crown Cola Co. v. Bakers
Franchise, 150 USPQ 698 (TTAB 1966), aff’d, 404 F.2d 985, 160 USPQ 192 (CCPA
1969) (“… the applicant’s compound mark includes the same words which make up
opposer’s mark, that is to say ‘RITE DIET’ is merely ‘DIET-RITE’ transposed. The
marks of the parties create substantially the same commercial impressions …”). In
short, we find that the marks convey similar meanings.
Further, because the marks include the identical words, in reverse order, they
look and sound similar. Therefore, SLEEPCORE so resembles CORE SLEEP as to
be likely to cause purchasers to attribute the goods sold thereunder to the same
source. Persons familiar with CORE SLEEP pillows, upon encountering mattresses
and related products bearing the mark SLEEPCORE are reasonably likely to
mistakenly assume that they originate from the same source. In re Sybron Corp.,
165 USPQ 410, 412 (TTAB 1970) (finding that VACUUM AIRE and AIRVAC
“engender the same suggestive connotation” and therefore “persons familiar with
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‘AIRVAC’ dental equipment, upon encountering dental apparatus bearing the mark
‘VACUUM AIRE’, are reasonably likely to mistakenly assume that they originate
from the same source”).
D. Sophistication of Purchasers
Applicant argues that the beds and mattresses covered in its application are
relatively expensive and are offered to sophisticated and knowledgeable consumers
who do not make the decision to purchase the respective goods casually, thereby
negating any likelihood of confusion between the marks.16
Applicant’s unrestricted identification of goods is not limited to “high end”
mattresses (or any other “high end” products), and must be presumed to include
mattresses (and its other products) in all price points for products of those types.
There is also no evidence which supports Applicant’s argument that its goods are
relatively expensive or that its customers are sophisticated. Nor is there any
evidence that purchasers of pillows are sophisticated purchasers. Even assuming
that Applicant’s goods are relatively expensive, they are not of such a highly
complex or technical nature to be purchased only by sophisticated purchasers.
Indeed, mattresses are products used and purchased by many people in this
country. When the relevant consumer includes the general public, the standard of
care for purchasing the goods is that of the least sophisticated potential purchaser.
Stone Lion Capital Partners, LP v. Lion Capital LLP, 110 USPQ2d at 1163 (quoting

16 Applicant’s Brf. p. 8 (4 TTABVUE 14).
Serial No. 86116171
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Gen. Mills, Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1600 (TTAB
2011)); Alfacell Corp. v. Anticancer, Inc., 71 USPQ2d 1301, 1306 (TTAB 2004).
Applicant cites Sleepmaster Products Co. v. American Auto-Felt Corp., 241 F.2d
738, 113 USPQ 63, 66 (CCPA 1957), for the proposition that the average consumer
exercises enough care to avoid confusion when buying a mattress because of the
considerable price, significance, and infrequency of the purchase.17 There, the court
found that this consideration, in conjunction with the dissimilarities of the marks,
lead to the conclusion that there was no likelihood of confusion.
Unlike the marks involved in the Sleepmaster case, the marks at issue in this
case are quite similar, as discussed above. Moreover, times have changed since the
Sleepmaster case was decided nearly sixty years ago. The evidence submitted by
Applicant suggests that if one’s mattress is five to seven years old, it may be time to
get a new mattress.18 Based on such information, it is likely that people purchase
several mattresses during their lifetime. Even assuming that mattress purchasers
are discriminating, there is no evidence of record that supports a finding that they
would exercise the same level of care when purchasing pillows which the evidence
shows are offered at prices substantially less than those of mattresses.
Moreover, to the extent purchasers of mattresses may be sophisticated, the fact
that purchasers are sophisticated or knowledgeable in a particular field does not
necessarily mean that they are sophisticated or knowledgeable in the field of
trademarks or immune from source confusion. See, e.g., Stone Lion Capital

17 Applicant’s Brf., p. 9 (4 TTABVUE 15).
18 Response to Office Action, TSDR p. 51 of 52.
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Partners, LP v. Lion Capital LLP, 110 USPQ2d at 1163; Top Tobacco LP v. North
Atlantic Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011).
E. Conclusion
In view of the foregoing, because the marks are a transposition of terms and the
goods are closely related sleep goods that travel in the same trade channels, there is
a likelihood of confusion between Applicant’s mark SLEEPCORE and Registrant’s
mark CORE SLEEP in the cited registration. Therefore, SLEEPCORE so resembles
CORE SLEEP as to be likely to cause purchasers to attribute the goods sold
thereunder to the same source. Persons familiar with CORE SLEEP pillows, upon
encountering mattresses and related products bearing the mark SLEEPCORE are
reasonably likely to mistakenly assume that they originate from the same source.
Decision: The refusal to register Applicant’s mark SLEEPCORE is affirmed.