87647692 (T.T.A.B. Aug. 12, 2019)

Mei Li Brands

Trademark Trial and Appeal BoardAug 12, 2019

87647692 (T.T.A.B. Aug. 12, 2019)

This Opinion is not a Precedent of the TTAB Mailed: August 12, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Mei Li Brands _____ Serial No. 87647692 _____ Kevin Hartley, Randy Michels, and Bill Ferrell of Trust Tree Legal, P.C., for Mei Li Brands Caroline E. Wood, Trademark Examining Attorney, Law Office 110, Chris A.F. Pedersen, Managing Attorney. _____ Before Kuhlke, Bergsman, and Heasley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Mei Li Brands (“Applicant”) seeks registration on the Principal Register of the mark MEI LI (in standard characters) for “fashion handbags” in International Class 18.1 1 Application Serial No. 87647692 was filed on October 16, 2017 based on 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). Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. Serial No. 87647692 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s proposed mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on likelihood of confusion with the registered standard character mark MEI-LI FIGHTING (with “FIGHTING” disclaimed) for “Athletic tops and bottoms for mma; Bottoms; Clothing for wear in wrestling games; Gloves as clothing; Headbands for clothing; Jackets; Tops; Wearable garments and clothing, namely, shirts; Wraps” in International Class 25.2 After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. I. Likelihood of Confusion We base our determination of likelihood of confusion under Trademark Act Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019). We have considered each DuPont factor that is relevant, and have treated other factors as neutral. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered.”)); 2 Registration No. 4579716, issued on the Principal Register on Aug. 5, 2014. Serial No. 87647692 - 3 - ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less weighty roles in any particular determination”). Two key considerations are the similarities between the marks and the relatedness of the goods or services. In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018) (citing Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)). A. The Marks Under the first DuPont factor, we determine the similarity or dissimilarity of Applicant’s and Registrant’s marks in their entireties, taking into account their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “‘Similarity in any one of these elements may be sufficient to find the marks confusingly similar.’ In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim- Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (‘It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.’)” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018). Serial No. 87647692 - 4 - Applicant argues that the two marks, MEI LI and MEI-LI FIGHTING, are unlikely to be confused when they are considered in their entireties.3 Applicant submits that under the anti-dissection rule, the Examining Attorney did not give sufficient weight to the “distinctive and attention-grabbing word ‘FIGHTING’ in the Cited Mark, nor to the hyphenation of the term ‘MEI-LI’ in the Cited Mark.”4 Although the word FIGHTING has been disclaimed in the cited mark, as it is descriptive of some of Registrant’s identified clothing (“athletic tops and bottoms for mma [mixed martial arts]” and “clothing for wear in wrestling games”), Applicant argues that the public would be unaware of the disclaimer.5 Applicant analogizes to In re Hearst Corp., 982 F.2d 493, 25 USPQ2d 1238, 1239 (Fed. Cir. 1992), in which the Federal Circuit found that VARGAS for calendars was not confusingly similar to VARGA GIRL for calendars, as “[t]he appearance, sound, sight, and commercial impression of VARGA GIRL derives significant contribution from the component ‘girl.”’ In this case, Applicant asserts, the component “‘FIGHTING’ is not only an attention-capturing word but one that clarifies for consumers the type of apparel associated with the mark: athletic apparel related to fighting sports such as MMA and wrestling.”6 “In the present case, however, Applicant’s Mark is for use in connection with luxury handbags, a product that could not have less to do with 3 Applicant’s brief, 4 TTABVUE 8 et seq. 4 Applicant’s brief, 4 TTABVUE 8-9. 5 Applicant’s brief, 4 TTABVUE 10. 6 Applicant’s brief, 4 TTABVUE 12. Serial No. 87647692 - 5 - fighting.”7 Applicant concludes that the marks in this case are even more dissimilar than in Hearst. We bear in mind that we must consider the marks as the public views them, in their entireties, and not dissected. Cai v. Diamond Hong, 127 USPQ2d at 1801; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). On the other hand, “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) quoted in TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1116 (TTAB 2019). In this case, we find that the marks, taken in their entireties, are more similar than dissimilar, for several reasons. To begin with, the cited registered mark MEI-LI FIGHTING incorporates Applicant’s MEI LI proposed mark in its entirety. “Marks have frequently been found to be similar where one mark incorporates the entirety of another mark, as is the case here. Coca-Cola Bottling Co. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL is similar to BENGAL LANCER); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY is similar to EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ 7 Applicant’s brief, 4 TTABVUE 11. Serial No. 87647692 - 6 - 479, 480 (TTAB 1983) (LIL’ LADY BUG is similar to LITTLE LADY).” TiVo v. Tivoli, 129 USPQ2d at 1115 (TIVOTAPE and TIVOBAR similar to TIVO). “The identity of the marks’ initial two words,”―MEI LI, the entirety of Applicant’s mark, and MEI-LI, the first two words of Registrant’s mark―“is particularly significant because consumers typically notice those words first. … Indeed, in view of the marks’ structural similarity, the lead words are their dominant portion and are likely to make the greatest impression on consumers.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (citing Palm Bay Imps. v. Veuve Clicquot Ponsardin, 73 USPQ2d at 1692 (“‘Veuve’ is the most prominent part of the mark VEUVE CLICQUOT because ‘veuve’ is the first word in the mark and the first word to appear on the label) and Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers would first notice the identical lead word)). The hyphen in the cited mark does not appreciably distinguish it from Applicant’s mark. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016). Given this marked similarity in the first parts of the respective marks, Registrant’s addition of the word FIGHTING does not suffice to distinguish them. Consumers normally retain a general rather than a specific impression of marks, In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016), and naturally tend to shorten their pronunciation of marks. See, e.g., In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring); Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1819 (TTAB 2015) (BUDWEISER shortened to BUD). So they would naturally tend to view MEI LI as a variation of Serial No. 87647692 - 7 - Registrant’s mark, indicating different lines of clothing and accessories emanating from the same source. See In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“Even those purchasers who are fully aware of the specific differences between the marks may well believe, because of the similarities between them, that the two marks are simply variants of one another, used by a single producer to identify and distinguish companion lines of products.”). For example, in In re Collegian Sportswear, Inc., 224 USPQ 174 (TTAB 1984) an application for COLLEGIAN OF CALIFORNIA and design for women’s clothing and sportswear was refused based on a likelihood of confusion with the registered mark COLLEGIENNE and design for inter alia girls’ coats, suits, dresses, sweaters, skirts and blouses. The Board found that: While “CALIFORNIA” is a geographical term and is disclaimed apart from the mark, it is true that even disclaimed matter must be considered in determining the issue of likelihood of confusion. In this case we have considered the “OF CALIFORNIA” portion of the mark but are of the view that the addition of this term does not obviate likelihood of confusion since customers familiar with registrant’s “COLLEGIENNE” clothing might believe that “COLLEGIAN OF CALIFORNIA” clothing was a new line of clothing from registrant featuring a “California” or west coast style. Id. at 176. Here, as in Collegian Sportswear, even if we give due consideration to the disclaimed term “FIGHTING,” which is descriptive of some of Registrant’s goods, that does not obviate a likelihood of confusion, for customers can still view the marks as variations indicating different lines of clothing and accessories emanating from the same source. See also Nina Ricci S.A.R.L. v. Haymaker Sports Inc., 134 USPQ 26, 28 (TTAB 1962) (persons familiar with NINA RICCI or RICCI for women’s apparel would logically assume that women’s clothing bearing RICCI OF HAYMAKER Serial No. 87647692 - 8 - emanates from same source or is connected in some way). Consistent with Hearst, we have given each element of applicant’s mark appropriate weight and have ultimately considered the similarities and dissimilarities of the marks in their entireties. The Court in Hearst recognized that the weight to be given terms in a mark is “not entirely free of subjectivity” and provided examples to “illustrate the fact-dependency of such determinations.” In re Hearst, 25 USPQ2d at 1239 & n. 2. In this case, the marks are more similar than dissimilar, and the first DuPont factor weighs in favor of a likelihood of confusion. B. The Goods The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration,” Stone Lion v. Lion Capital, 110 USPQ2d at 1159. “This factor considers whether ‘the consuming public may perceive [the respective goods and services of the parties] as related enough to cause confusion about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014). Applicant’s goods are “fashion handbags,” and Registrant’s goods are “Athletic tops and bottoms for mma; Bottoms; Clothing for wear in wrestling games; Gloves as clothing; Headbands for clothing; Jackets; Tops; Wearable garments and clothing, namely, shirts; Wraps.” Applicant characterizes the respective goods as “luxury handbags” versus “fighting-related apparel.”8 It notes that “Registrant operates an apparel company 8 Applicant’s brief, 4 TTABVUE 13. Serial No. 87647692 - 9 - specializing in MMA fighting apparel for women,”9 and “Registrant’s Goods do not include fashion handbags (or any handbags at all),”10 ultimately concluding that its goods “are not closely related to Registrant’s Goods on any interpretation.”11 As the Examining Attorney correctly notes, however, we must look to the goods as they are identified in the application and in the cited registration. See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162 (citing Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant may not rely on extrinsic evidence to limit the goods identified in the cited registration. See, e.g., In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). So even though the goods identified in the cited Registration are fighting apparel―“athletic tops and bottoms for mma” and “clothing for wear in wrestling games”―the remaining clothing is not so restricted: “Bottoms; Gloves as clothing; Headbands for clothing; Jackets; Tops; Wearable garments and clothing, namely, shirts; Wraps.” In an ex parte proceeding such as this, we are required to give “full sweep” to Registrant’s identified goods. Paula Payne Prods. Co. v. Johnson Publ’g Co., Inc., 473 F.2d 901, 177 USPQ 76, 77-78 (CCPA 1973); see also Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013) (consider Applicant’s and Registrant’s goods to include all goods of the type identified). So Registrant’s goods 9 Applicant’s brief, 4 TTABVUE 7, citing Registrant’s website, MeiLiFighting.com 4/19/2018, ex. B, April 27, 2018 Response to Office Action at 21-22. 10 Applicant’s brief, 4 TTABVUE 14. 11 Applicant’s brief, 4 TTABVUE 13. Serial No. 87647692 - 10 - are not limited to fighting-related apparel, and include within their sweep other sorts of clothing.12 Even though Registrant’s identified goods do not include handbags, “the test is not whether consumers would be likely to confuse these goods, but rather whether they would be likely to be confused as to their source.” In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB 2018). Handbags and clothing items are related to the extent that they are part of the overall ensemble, encompassing apparel and accessories. See In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991) (products sold as part of a woman’s ensemble are related). To show the relatedness of the goods, the Examining Attorney submits evidence of 14 use-based third-party registrations that identify goods such as those in the subject application and the cited registration under the same mark.13 E.g.: Mark and Reg. No. Pertinent Goods MAX PARIS Reg. No. 5376088 Handbags; jackets, shirts, scarves, men’s and women’s sportswear, namely, shirts, blouses, pants and trousers; leather clothing, namely, leather jackets, leather coats, leather scarves TRIBE ACTIVE Reg. No. 5381538 Handbags, handbags for ladies; Jackets; Tops; Gloves as clothing; Scarfs. 12 Applicant contends that the Examining Attorney has taken inconsistent positions by arguing on the one hand that the word “FIGHTING” in the cited mark should be given less weight in the likelihood-of-confusion calculus because it is disclaimed as descriptive of Registrant’s clothing items, yet arguing on the other hand that the cited registration identifies apparel that is not fighting-related. See Applicant’s brief, 4 TTABVUE 5-6, 16-17. Applicant’s contention is incorrect for two reasons. First, only some of Registrant’s identified goods are fighting-related; not all. And second, as noted above, even if Registrant’s goods are more “athletic” than Applicant’s, the public, viewing them under very similar marks, is likely to perceive them simply as different lines of clothing and accessories emanating from the same source. 13 Jan. 26, 2018 Office Action at 8-48. Serial No. 87647692 - 11 - SEAM SIREN Reg. No. 5341821 Handbags; Scarves; Shirts; Clothing wraps PINK MISTRESS Reg. No. 5336484 Handbags, Handbags for ladies; Handbags, purses and wallets; Pants; Shirts and Short-sleeved shirts ISABELLA HEARST NEW YORK Reg. No. 5321284 Handbags; tank tops, shirts, jacket, scarfs, gloves SATINATO Reg. No. 5333620 Handbags; Gloves; Jackets; Scarves; Shirts BELLE AMPLEUR Reg. No. 5310875 Handbags, purses, jackets, shirts, tops SATURDAYS NEW YORK CITY Reg. No. 5384662 Handbags, purses, collared shirts, jackets, gloves, scarves Although such registrations are not evidence that the marks are in use or that the public is familiar with them, they nonetheless have probative value to the extent that they serve to suggest that the goods are of a kind that may emanate from a single source under a single mark. See, e.g., In re I-Coat, 126 USPQ2d at 1738; In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). The Examining Attorney supplements this proof of relatedness with evidence that third-party clothing retailers such as Gucci,14 Armani,15 ToryBurch,16 Kate Spade,17 and Yves Saint Lauren18 commonly offer handbags and athletic clothing under the same mark. Applicant does not controvert the third-party registration evidence, but contends 14 Gucci.com 5/23/2018, May 23 Office Action at 8-21. 15 Armani.com 5/23/2018, May 23 Office Action at 22-42. 16 TorySport.com 5/23/2018, May 23 Office Action at 43-62. 17 Nordstrom.com, KateSpade.com 5/23/2018, May 23 Office Action at 63-83. 18 YSL.com 5/23/2018, May 23 Office Action at 84-97. Serial No. 87647692 - 12 - that the Examining Attorney’s Internet search for third-party use of both types of goods in commerce was too broad, as it should have searched for “fashion handbags” and “wrestling-related” or “fighting-related” clothing. “None of the internet evidence attached to the Final Office Action indicates that there is any company dealing in both fashion handbags and MMA fighting clothing,” Applicant urges.19 The problems with Applicant’s argument are twofold. First, as we have seen, Registrant’s identified goods are not limited to fighting-related clothing. And second, the term “fashion” does not meaningfully narrow the scope of Applicant’s goods, as “fashion” merely means “a prevailing style (as in dress) during a particular time”20 which encompasses a broad range of current styles―not necessarily luxury goods. Applicant argues that “even if there are some companies in the world, such as Gucci and Armani, that offer high-end handbags as well as certain types of (non- fighting) apparel,” that does not demonstrate the relevant point: that the public would expect Applicant’s goods and Registrant’s goods to come from the same source; such disparate goods could come from Amazon.com, it argues, without being related.21 However, evidence that “a single company sells the goods and services of both parties, if presented, is relevant to the relatedness analysis.” Hewlett-Packard v. Packard 19 Applicant’s brief, 4 TTABVUE 14. 20 Examining Attorney’s brief, 6 TTABVUE 13, citing the MERRIAM WEBSTER DICTIONARY. “The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed form or regular fixed editions. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).” M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd. and Global Technology & Trade Marks Limited, 2019 USPQ2d 14909, *1 n. 2 (TTAB 2019). 21 Applicant’s brief, 4 TTABVUE 15. Serial No. 87647692 - 13 - Press, 281 F.3d 1261, 62 USPQ2d 1001, 1004 quoted in In re Integrated Embedded, 120 USPQ2d 1504, 1514-15 (TTAB 2016). And as the Examining Attorney points out, its third-party examples are clothing retailers, not concerns like Amazon.com, which offers a wide range of goods under a single mark.22 As with the third-party registration evidence above, we find that this evidence of third parties offering both sorts of goods in commerce under the same mark is probative of their relatedness as complementary parts of an ensemble. In re Melville Corp., 18 USPQ2d at 1388. For these reasons, the second DuPont factor weighs in favor of a likelihood of confusion. C. The Channels of Trade and Classes of Consumers The third DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Applicant argues that it targets a discrete subset of customers through distinct marketing channels:23 Here, the parties occupy different markets and are not in competition with one another. As explained above, Applicant’s Goods are luxury handbags. They are marketed to shoppers who are looking for a high-quality, fashionable and functional handbags. Consistent with the luxury handbag market, these handbags uniformly cost over $300 each. … In contrast, Registrant offers athletic apparel, specifically targeting consumers interested in apparel for fighting sports (e.g. MMA and wrestling)…. Put another way, if the parties are not competing, consumers are not likely to encounter either parties’ goods or services together in the marketplace.24 22 Examining Attorney’s brief, 6 TTABVUE 14-15. 23 Applicant’s brief, 4 TTABVUE 17. 24 Applicant’s brief, 4 TTABVUE 17-18 (citing Exhibit B to Applicant’s April 27, 2018 Response to Office Action at 21-22). Serial No. 87647692 - 14 - We agree with the Examining Attorney, however, that this does not evince separate or distinct channels of trade. First, it is not necessary that the goods identified in the application and registration be competitive in character to support a finding of likelihood of confusion; it is sufficient for such purposes that the goods are related in some manner and/or that conditions and activities surrounding marketing of these goods are such that they would or could be encountered by the same persons under circumstances that could, because of similarities of marks used with them, give rise to the mistaken belief that they originate from or are in some way associated with the same source. Coach Servs., 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)). Second, the limitations to which Applicant alludes as to the price and nature of the respective goods do not appear in the identification of goods. Applicant’s identification of goods does not limit its handbags to a particular price point, so we must treat its goods as including inexpensive as well as more costly handbags. See, e.g., In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“[B]ecause neither Applicant nor Registrant has limited its products to any particular style, type of consumer, or price point, we must assume that both identifications include ‘residential and commercial furniture’ of all types, styles, and price levels offered to the full range of usual consumers for such goods.”). And as we have seen, Registrant’s goods are not limited to fighting apparel, so we must presume that her identified clothing items include all types, styles and price levels. Id. Applicant’s and Registrant’s goods are presumed to move in all channels of trade Serial No. 87647692 - 15 - normal for such goods―all types of clothing stores, both online and brick and mortar―and are available to all potential classes of ordinary consumers―ordinary purchasers of clothing and accessories. See Citigroup v. Capital City Bank Group, 98 USPQ2d at 1261; Coach Servs., 101 USPQ2d at 1722; Centraz Indus. Inc. v. Spartan Chem. Co., 77 USPQ2d 1698, 1700 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). The Examining Attorney’s evidence of third party clothing retailers offering handbags and clothing items together corroborates the similar channels of trade.25 Applicant argues that “internet evidence alone is insufficient to prove that the relevant goods may be encountered in overlapping channels of trade by the same classes of consumers.”26 It is true that the Internet is a pervasive medium―so much so that “the mere fact that goods and services may both be advertised and offered through the Internet is not a sufficient basis to find that they are sold through the same channels of trade.” Bond v. Taylor, 119 USPQ2d 1049, 1054 (TTAB 2016) (quoting Parfums de Couer Ltd. v. Lazarus, 83 USPQ2d 1012, 1021 (TTAB 2007)). But Internet evidence of the same retailers offering the same goods for sale under the same marks is relevant evidence demonstrating that the goods can be encountered in overlapping channels of trade. See In re I-Coat, 126 USPQ2d at 1738 (third-party Internet website evidence showing applicant’s and registrant’s goods offered by same businesses under same marks accepted as evidence of common channel of trade). 25 May 23 Office Action at 8-117. 26 Applicant’s brief, 4 TTABVUE 9 (citing In re St. Helena Hosp., 113 USPQ2d at 1087-88). Serial No. 87647692 - 16 - For these reasons, the third DuPont factor also favors a finding of likelihood of confusion. D. The Care and Sophistication of the Consumers Under the fourth DuPont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567. Applicant argues that: Applicant’s handbags are marketed to careful, sophisticated consumers of fashion who are looking for a high-quality, high-end fashion handbag. Applicant’s handbags are not impulse purchases—consistent with the luxury handbag market, Applicant’s handbags uniformly cost over $300 each. … In light of this sophisticated, careful shopping, consumers buying Applicant’s Goods are going to diligently ensure that Applicant is the source before they make their purchases. (Conversely, because fashion handbags are relatively expensive purchases, a purchaser looking for MMA-related apparel is not likely to impulsively spend more than $300 for a handbag.)27 This argument fails for several reasons. First, as noted above, Applicant’s goods are not limited to a particular price point, and may include inexpensive as well as expensive handbags. In re Hughes Furniture Indus., 114 USPQ2d at 1137. Second, Registrant’s clothing goods are not limited to MMA-related clothing, and may be encountered by the same class of consumers, ordinary purchasers of clothing and accessories, through the same channels of trade. Third, the applicable standard of care is that of the least sophisticated consumers. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163 cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 27 Applicant’s brief, 4 TTABVUE 6, 20. Serial No. 87647692 - 17 - 2018) (“Board precedent requires our decision to be based on the least sophisticated potential purchasers.”). In sum, in the absence of specific limitations, the likelihood of confusion engendered by the similarity of the marks and the relatedness of the goods is unlikely to be obviated by care and sophistication in consumers’ purchasing decisions. The fourth DuPont factor is therefore neutral. II. Conclusion When we consider the record and the relevant likelihood of confusion factors, and all of Applicant’s arguments relating thereto, including those arguments not specifically addressed herein, we conclude that consumers familiar with Registrant’s goods offered under her mark would be likely to believe, upon encountering Applicant’s proposed mark, that its goods originate with or are associated with or sponsored by the same source. There is therefore a likelihood of confusion under Section 2(d). Decision: The refusal to register Applicant’s proposed mark MEI LI is affirmed.