Meredith Grembowicz, M.D.

Trademark Trial and Appeal Board

May 24, 2013

No. 85174576re (T.T.A.B. May. 24, 2013)

Mailed: May 24, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Meredith Grembowicz, M.D.
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Serial No. 85174576
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Gregory C. Smith of Garvey, Smith, Nehrbass & North, L.L.C. for
Meredith Grembowicz, M.D.

Colleen Kearney, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
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Before Holtzman, Mermelstein and Kuczma, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Request for Reconsideration

The Board, on October 31, 2012, issued a final decision
affirming the examining attorney's refusal to register under
Section 2(d) of the Trademark Act on the ground that applicant's
standard character mark DR. G'S SEA SALTS (SEA SALTS disclaimed)
for "non-medicated bath salts containing sea salt" is likely to
cause confusion with the registered mark DR. G'S in typed form
THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Serial No. 85174576
2
for "nail lotions and solutions, hand and body lotions, skin
lotions."
Applicant timely filed a request for reconsideration on
November 29, 2012.
The premise underlying a request for reconsideration under
Trademark Rule 2.144 is that, based on the evidence of record and
the prevailing authorities, the Board erred in reaching the
decision it issued. The request may not be used to introduce
additional evidence. See Trademark Rule 2.142(d); and TBMP
§ 1219.01 (3d ed. rev. 2012), citing TBMP §§ 543 and 544. Thus,
at the outset, the evidence submitted by applicant for the first
time with her request for reconsideration is inappropriate and
untimely, and it cannot be considered.1
We have reviewed applicant's arguments, but are not
persuaded that there is any error in our decision.
Applicant argues that the Board "improperly dissected" her
mark and ignored the presence of the disclaimed term "SEA SALTS"
in the mark. To the contrary, we considered applicant's mark in
its entirety, including the disclaimed wording, and found that
the addition of this disclaimed and descriptive term SEA SALTS to

1 This evidence includes a TESS listing of third-party applications and
registrations of which applicant requests that we take judicial notice.
Even if this evidence were timely, it would not be appropriate for
judicial notice. See In re Carolina Apparel, 48 USPQ2d 1542, 1542 n.2
(TTAB 1998) (“The Board does not take judicial notice of third-party
registrations, and the mere listing of them is insufficient to make
them of record”); and TBMP § 704.12(a) n.1. The request is denied.

Serial No. 85174576
3
these otherwise identical marks was insufficient to distinguish
the marks as a whole. As we stated, the disclaimed matter
"merely provides descriptive information about applicant's bath
salts, and it therefore contributes little to the commercial
impression of the mark." See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1845 (Fed. Cir. 2000) (LASERSWING
likely to cause confusion with LASER, both for golf clubs;
"...the Board was justified in examining each component of the
mark LASERSWING and the effect of that component on the issue of
likelihood of confusion as between the respective marks in their
entireties."); In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985) ("a descriptive component of a mark may
be given little weight in reaching a conclusion on likelihood of
confusion.").
Applicant further argues that registrant's products are sold
through either beauty salons or nail supply companies whereas
applicant's products are sold in drug stores. This argument is
unavailing and applicant's attempt to rely on extrinsic evidence
to limit the channels of trade for the respective goods is
improper. The law is clear that the question of likelihood of
confusion must be determined based on the identification of goods
in the application and cited registration, regardless of what the
record may reveal as to the actual nature of the goods, the
particular channels of trade or the class of purchasers to which
Serial No. 85174576
4
the goods are directed. Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990) (“The authority is legion that the question of
registrability of an applicant's mark must be decided on the
basis of the identification of goods set forth in the application
[and registration].”).
Because there are no restrictions in either the application
or the cited registration, we must presume that applicant's bath
salts and registrant's hand, skin and body lotions will be sold
in all the normal channels of trade for such goods.2 These trade
channels would include, as the evidence of record showed, retail
outlets such as beauty supply stores. Moreover, it is common
knowledge that drug stores are a normal channel of trade for
personal care products such as hand lotions. Thus, we must
presume that registrant's hand lotions will be sold in the same
drug stores where applicant's products are sold.
Finally, applicant's contention that its goods are sold only
"within a limited region of the country" is legally irrelevant.

2 Although registrant's goods also include "nail lotions and
solutions," we focused our decision on the portion of its goods
comprising "hand and body lotions, skin lotions" and the relationship
of those goods to applicant's bath salts. It is sufficient if
likelihood of confusion is established for any item encompassed by the
identification of goods or services. Cf. Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 987 (CCPA 1981).
(registration properly denied when likelihood of confusion is
established as to any of the goods or services described in the
application). It was not necessary to consider the remaining goods in
the cited registration.
Serial No. 85174576
5
Inasmuch as applicant is seeking a nationwide, geographically
unrestricted registration, it is presumed that applicant will
offer its identified goods on a nationwide basis. See In re
Appetito Provisions Co., 3 USPQ2d 1553, 1554 n.4 (TTAB 1987) (a
geographically unrestricted registration under Section 7(b) of
the Trademark Act "accords a registrant prima facie exclusive
rights in the registered mark for the goods or services recited
in the registration throughout the United States regardless of
its actual extent of use."). See also Giant Food, Inc. v.
Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed.
Cir. 1983); Peopleware Systems, Inc. v. Peopleware, Inc., 226
USPQ 320 (TTAB 1985) (while the parties may presently be
geographically separated in their uses, this is irrelevant where
applicant seeks a nationwide unrestricted registration).
The request for reconsideration is accordingly denied, and
the Board's October 31, 2012 decision stands.