Mighty Leaf Tea

Trademark Trial and Appeal Board

May 8, 2009

No. 76678969 (T.T.A.B. May. 8, 2009)

Hearing: Mailed:
April 21, 2009 May 8, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Mighty Leaf Tea
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Serial No. 76678969
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Charles C. Valauskas of Valauskas & Pine LLC for Mighty
Leaf Tea.

Priscilla W. Milton, Trademark Examining Attorney, Law
Office 110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Seeherman, Grendel and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Mighty Leaf Tea (“applicant”) filed a use-based
application on the Principal Register for the mark ML, in
standard character form, for “personal care products and
skin care preparations, namely, skin soap, body wash, foam
bath, body lotion, body scrub, bath salts and massage oil;
potpourri; incense,” in Class 3.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the registered mark
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76678969
2
ML MARK LEES, shown below, for “skin care products, namely,
skin cleanser, skin toner, skin cream, skin lotion, skin
mask gel, make-up foundation, powder and blush,” in Class
3.1

Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
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 Company, 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
and/or services. 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

1 Registration No. 2132830, issued January 27, 1998; Sections 8
and 15 affidavits accepted and acknowledged; renewed.
Serial No. 76678969
3
characteristics of the goods and differences in the
marks”).
A. The similarity or dissimilarity and nature of the
goods described in the application and registration.

The goods identified in the application and
registration are in part identical and, insofar as bath
salts and massage oil are concerned, otherwise closely
related.2
Applicant’s Goods Personal care products and
skin care preparations,
namely, skin soap, body wash,
foam bath, body lotion, body
scrub, bath salts and massage
oil; potpourri; incense

Registrant’s Goods Skin care products, namely,
skin cleanser, skin toner,
skin cream, skin lotion, skin
mask gel, make-up foundation,
powder and blush”

B. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because the goods identified in the application and
the cited registration are in part identical and otherwise
closely related, we must presume that the channels of trade
and classes of purchasers are the same. See Genesco Inc.
v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-

2 The fact that applicant’s description of goods also includes
potpourri and incense in Class 3 does not obviate the relatedness
of the other listed products. Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Serial No. 76678969
4
part identical and in-part related nature of the parties’
goods, and the lack of any restrictions in the
identifications thereof as to trade channels and
purchasers, these clothing items could be offered and sold
to the same classes of purchasers through the same channels
of trade”); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532
(TTAB 1994) (“Because the goods are legally identical, they
must be presumed to travel in the same channels of trade,
and be sold to the same class of purchasers”).
C. The conditions under which and buyers to whom sales
are made (i.e., impulse vs. careful, sophisticated
purchasing).

With regard to the conditions of sale, because there
are no restrictions in the description of goods, the skin
care products listed in the description of goods may
include inexpensive lotions and creams that would not be
purchased with a great deal of care and do not require
purchaser sophistication. See Recot Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When
products are relatively low-priced and subject to impulse
buying, the risk of likelihood of confusion is increased
because purchasers of such products are held to a lesser
standard of purchasing care”) (citations omitted). Thus,
this factor favors finding a likelihood of confusion.
Serial No. 76678969
5
D. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where, as here, the goods are in part
identical and otherwise closely related, the degree of
similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity
between the goods. Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992); Schering-Plough HealthCare Products Inc. v.
Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007); Jansen
Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007).
Moreover, in comparing the marks, the test is not
whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
Serial No. 76678969
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impression so that confusion as to the source of the goods
and services offered under the respective marks is likely
to result. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3
(CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-
1086 (Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general
rather than a specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
We find that the marks are identical in terms of
appearance and sound to the extent that they share the
letters “ML.” The fact that these letters in the
registered mark appear in stylized form does not
distinguish them because applicant is attempting to
register its mark in standard character form, and a
registration therefor would entitle applicant to use the
mark in the same stylization. In re Hester Industries,
Inc., 231 USPQ 881, 883 n.6 (TTAB 1986) (“Inasmuch as the
drawing of applicant’s mark is in typed form, applicant is
not limited to any particular form of display, and might
use its mark in the same form as registrant”). See also
Serial No. 76678969
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TMEP §1207.01(c)(iii) (5th ed. 2007) (“If a mark (in either
an application or a registration) is presented in standard
characters, the owner of the mark is not limited to any
particular depiction. The rights associated with a mark in
standard characters reside in the wording (or other literal
element, e.g., letters, numerals, punctuation) and not in
any particular display”). There is no doubt that if the
marks at issue were placed side-by-side, certain
differences between them, including those specifically
enumerated by applicant, would be readily discernible.
However, as indicated above, in the normal environment of
the marketplace where purchases are actually made,
purchasers and prospective purchasers do not usually have
the opportunity for a careful examination of marks in
minute detail. An individual relies on the recollection of
the various marks that he or she has previously seen in the
marketplace and, more frequently than not, in the case of
letter marks, such as in this case, the consumer’s
recollection is not obscured with minute details or
specific characteristics of the marks, but is determined by
an overall or general impression of the many and various
marks that he or she has encountered in his or her daily
living experiences. Winnebago Industries, Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980) (applicant’s
Serial No. 76678969
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block letter “W” within a circular design is similar to
opposer’s block “W” with a line extending from the top
portion of the right leg of the “W”).
Applicant argues that the commercial impression
engendered by the marks is different because the registered
mark includes the name MARK LEES and presumably consumers
will view the letters ML as the initials for MARK LEES, as
opposed to simply an arbitrary combination of letters.
However, the inclusion of the name MARK LEES in
registrant’s mark does not preclude likelihood of confusion
with applicant’s “ML” mark. Likelihood of confusion has
frequently been found where contested marks used on related
products involve one mark which consists of a single word
and another which is comprised of that same word followed
by a second term. Johnson Publishing Co. v. International
Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY DRUM
for hairdressing and conditioner is likely to cause
confusion with EBONY for cosmetics). See also Lilly
Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ
406 (CCPA 1967) (THE LILLY for dresses is likely to cause
confusion with LILLI ANN for dresses); In re Sunmarks Inc.,
32 USPQ2d 1470 (TTAB 1994) (ULTRA for gasoline likely to
cause confusion with ULTRA LUBE for lubricating oils and
greases); Corporate Fitness Programs Inc. v. Weider Health
Serial No. 76678969
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and Fitness Inc., 2 USPQ2d 1682 (TTAB 1987) (SHAPE for
fitness magazines is likely to cause confusion with SHAPE
WRITEUP for physical fitness newsletters); In re Dennison
Manufacturing Co., 229 USPQ 141 (TTAB 1986) (GLU STIC for
adhesives is likely to cause confusion with UHU GLU STIC
for adhesives); In re United States Shoe Corporation, 229
USPQ 707 (TTAB 1985) (CAREER IMAGE for women’s clothing
stores and women’s clothing is likely to cause confusion
with CREST CAREER IMAGES for clothing). For example,
consumers familiar with the registered mark for skin care
products are likely to assume, when they encounter
applicant’s ML mark on the same or closely related
products, that this is a variation of the registrant’s ML
MARK LEES trademark, a monogram used for esthetic or
marketing reasons.
Applicant contends that because the letters ML have
been registered numerous times in connection with skin care
products, the fact that applicant’s mark contains the same
letters ML as in the registrant’s mark is not a sufficient
basis on which to base a finding of likelihood of
confusion. In support, applicant submitted copies of the
following third-party registrations for skin care products:3

3 Applicant also included copies of applications for the marks
TMLA, MLAB, FEMLOGIC and design, and SIMLINE. The Board has long
Serial No. 76678969
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Registration Number Mark

3320567 MLE

3190546 MLUXE

2763224 M’LIS

2335027 JML and design

31935532 AMLAVI

There are a number of problems with applicant’s
argument. The five third-party registrations that
applicant made of record fail to demonstrate that the
various ML marks for skin care products are actually being
used, much less that the extent of such third-party use is
so great that consumers have become accustomed to seeing
various ML marks and, therefore, have learned to
distinguish between them.4 See Smith Bros. Mfg. Co. v.
Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA
1973) (the purchasing public is not aware of registrations
reposing in the U.S. Patent and Trademark Office); AMF Inc.
v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ

held that third-party applications are evidence only of the fact
that they were filed; they have no other probative value.
Interpayment Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463,
1467 n.6 (TTAB 2003). Nevertheless, even if we considered these
applications, they would not change our decision because they
suffer the same probative defects as the registered marks.
4 And, of course, applicant is seeking to register ML per se,
without any additional distinguishing element.
Serial No. 76678969
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268, 269 (CCPA 1973); In re Mucky Duck Mustard Co., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988). In this respect,
applicant’s reliance in its brief on Federal Circuit and
Board cases for the proposition that the third-party
registrations are evidence of the wide-spread use of the
letters “ML” in connection with skin care products is
misplaced because third-party registrations are not
evidence of use.
While third-party registrations may be used in the
manner of a dictionary to show that a mark or a portion of
a mark is descriptive or suggestive of goods and services,
the third-party marks submitted by applicant are not for
the element ML qua ML. Applicant has merely submitted a
group of registrations that have the letters “ML” as part
of a longer letter string (i.e., MLUXE, M’LIS, JML and
AMLAVI). The indiscriminate citation of third-party
registrations without regard to the similarity of the marks
involved is not indicative that the letters ML have a
suggestive or descriptive connotation. See In re George
Weston Ltd., 228 USPQ 57, 58 (TTAB 1985) (third-party
registrations covering different marks for different
products does not prove that SPEEDI-BAKE is merely
descriptive of frozen dough); Cook’s Pest Control, Inc. v.
Sanitas Pest Control Corporation, 197 USPQ 265, 271 (TTAB
Serial No. 76678969
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1977) (third-party registrations that contain different
design elements and do not include the word marks at issue
are of little probative value); Aileen, Inc. v. Eileen
Togs, Corp., 188 USPQ 698, 700 (TTAB 1975) (third-party
registrations for personal names different from those at
issue are of no significance). The only mark that is
arguably close to applicant’s mark and registrant’s mark is
MLE, but that registration in addition to the marks at
issue are not sufficient to demonstrate that the letters
“ML” have significance in connection with skin care
products.
In view of the foregoing, we find that the marks are
similar in terms of appearance, sound, connotation and
commercial impression, and that any dissimilarities are
outweighed by the similarities.
F. Balancing the factors.

In view of the similarities of the marks, the in part
identical and otherwise closely related goods and the
presumption that the goods move in the same channels of
trade and are sold to the same classes of consumers, we
find that applicant’s mark ML for “personal care products
and skin care preparations, namely, skin soap, body wash,
foam bath, body lotion, body scrub, bath salts and massage
oil; potpourri; incense” is likely to cause confusion with
Serial No. 76678969
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the registered mark ML MARK LEES and design for “skin care
products, namely, skin cleanser, skin toner, skin cream,
skin lotion, skin mask gel, make-up foundation, powder and
blush.”
Decision: The refusal to register is affirmed.